Full Text of SB1851 97th General Assembly
SB1851 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB1851 Introduced 2/9/2011, by Sen. Gary Forby SYNOPSIS AS INTRODUCED: |
| 820 ILCS 185/5 | | 820 ILCS 185/10 | |
| Amends the Employee Classification Act. Provides that the term "employment" does not include services performed by an individual as an operator of a truck, truck-tractor, or tractor if certain specified conditions are met. Provides that an individual performing services for a contractor is deemed to be an employee of the employer, unless the contractor is a truck owner-operator as defined in the Act.
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| | A BILL FOR |
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| 1 | | AN ACT concerning employment.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Employee Classification Act is amended by | 5 | | changing Sections 5 and 10 as follows: | 6 | | (820 ILCS 185/5)
| 7 | | Sec. 5. Definitions. As used in this Act: | 8 | | "Construction" means any constructing, altering, | 9 | | reconstructing, repairing, rehabilitating, refinishing, | 10 | | refurbishing, remodeling, remediating, renovating, custom | 11 | | fabricating, maintenance, landscaping, improving, wrecking, | 12 | | painting, decorating, demolishing, and adding to or | 13 | | subtracting from any building, structure, highway, roadway, | 14 | | street, bridge, alley, sewer, ditch, sewage disposal plant, | 15 | | water works, parking facility, railroad, excavation or other | 16 | | structure, project, development, real property or improvement, | 17 | | or to do any part thereof, whether or not the performance of | 18 | | the work herein described involves the addition to, or | 19 | | fabrication into, any structure, project, development, real | 20 | | property or improvement herein described of any material or | 21 | | article of merchandise. Construction shall also include moving | 22 | | construction related materials on the job site to or from the | 23 | | job site.
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| 1 | | "Contractor" means any sole proprietor, partnership, firm, | 2 | | corporation, limited liability company, association or other | 3 | | legal entity permitted by law to do business within the State | 4 | | of Illinois who engages in construction as defined in this Act. | 5 | | "Contractor" includes a general contractor and a | 6 | | subcontractor.
| 7 | | "Department" means the Department of Labor.
| 8 | | "Director" means the Director of the Department of Labor.
| 9 | | "Employer" means any contractor that employs individuals | 10 | | deemed employees under Section 10 of this Act; however, | 11 | | "employer" does not include (i) the State of Illinois or its | 12 | | officers, agencies, or political subdivisions or (ii) the | 13 | | federal government.
| 14 | | "Entity" means any contractor for which an individual is | 15 | | performing services and is not classified as an employee under | 16 | | Section 10 of this Act; however, "entity" does not include (i) | 17 | | the State of Illinois or its officers, agencies, or political | 18 | | subdivisions or (ii) the federal government.
| 19 | | "Interested party" means a person with an interest in | 20 | | compliance with this Act. | 21 | | "Performing services" means the performance of any | 22 | | constructing, altering, reconstructing, repairing, | 23 | | rehabilitating, refinishing, refurbishing, remodeling, | 24 | | remediating, renovating, custom fabricating, maintenance, | 25 | | landscaping, improving, wrecking, painting, decorating, | 26 | | demolishing, and adding to or subtracting from any building, |
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| 1 | | structure, highway, roadway, street, bridge, alley, sewer, | 2 | | ditch, sewage disposal plant, water works, parking facility, | 3 | | railroad, excavation or other structure, project, development, | 4 | | real property or improvement, or to do any part thereof, | 5 | | whether or not the performance of the work herein described | 6 | | involves the addition to, or fabrication into, any structure, | 7 | | project, development, real property or improvement herein | 8 | | described of any material or article of merchandise. | 9 | | Construction shall also include moving construction related | 10 | | materials on the job site to or from the job site.
| 11 | | "Employment" does not include services performed by an | 12 | | individual as an operator of a truck, truck-tractor, or | 13 | | tractor, if the person or entity to which the individual is | 14 | | contracted for service shows that the individual: | 15 | | (1) is either: | 16 | | (i) registered or licensed as a motor carrier of | 17 | | real or personal property by the Illinois Commerce | 18 | | Commission, the Interstate Commerce Commission, or any | 19 | | successor agencies; or | 20 | | (ii) operating the equipment under an | 21 | | owner-operator lease contract with the person or | 22 | | entity, when the person or entity is registered, | 23 | | licensed, or both, as a motor carrier of real or | 24 | | personal property licensed by the Illinois Commerce | 25 | | Commission, the Interstate Commerce Commission, or any | 26 | | successor agencies; |
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| 1 | | (2) has the right to terminate the lease contract and | 2 | | thereafter has the right to perform the same or similar | 3 | | services, on whatever basis and whenever he or she chooses, | 4 | | for persons or entities other than the person or entity to | 5 | | which the individual is contracted for services; | 6 | | (3) is not required by the person or entity to which | 7 | | the individual is contracted for services to perform | 8 | | services, or be available to perform services, at specific | 9 | | times or according to a schedule or for a number of hours | 10 | | specified by the person or entity; pickup or delivery times | 11 | | specified by a shipper or receiver shall not be deemed | 12 | | specified by the person or entity; | 13 | | (4) either leases the equipment or holds title to the | 14 | | equipment, if the individual or entity from which the | 15 | | equipment is leased, or which holds any security or other | 16 | | interest in the equipment, is not: | 17 | | (i) the person or entity to which the individual is | 18 | | contracted for service; or | 19 | | (ii) owned, controlled, or operated by or in common | 20 | | with, to any extent, whether directly or indirectly, | 21 | | the person or entity to which the individual is | 22 | | contracted for services or a family member of a | 23 | | shareholder, owner, or partner of the person or entity; | 24 | | (5) pays all costs of licensing and operating the | 25 | | equipment (except when federal or State law or regulation | 26 | | requires the carrier to pay), and the costs are not |
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| 1 | | separately reimbursed by any other individual or entity; | 2 | | and | 3 | | (6) maintains a separate business identity, offering | 4 | | or advertising his or her services to the public, by | 5 | | displaying its name and address on the equipment or | 6 | | otherwise. | 7 | | The definition of "truck owner-operator" under this | 8 | | Section does not apply: | 9 | | (1) if, as a condition for retaining the individual's | 10 | | services, the person or entity to which the individual is | 11 | | contracted specifies the person or entity from which the | 12 | | equipment is to be leased or purchased; or | 13 | | (2) to any services that are required to be covered as | 14 | | a condition of approval of this Act by the United States | 15 | | Secretary of Labor under Section 3304(a)(6)(A) of the | 16 | | Federal Unemployment Tax Act. | 17 | | Nothing in this definition of "truck owner-operator" shall | 18 | | be construed or used to effect the existence or non-existence | 19 | | of an employment relationship other than for purposes of this | 20 | | Act.
For purposes of this definition of "truck owner-operator": | 21 | | (1) "Family member" means any parent, sibling, child, | 22 | | sibling of a parent, or any of the foregoing relations by | 23 | | marriage. | 24 | | (2) "Ownership", "control", or "operation" may be | 25 | | through any one or more natural persons or proxies, powers | 26 | | of attorney, nominees, proprietorships, partnerships, |
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| 1 | | associations, corporations, trusts, joint stock companies, | 2 | | or other entities or devices, or any combination thereof. | 3 | | (3) "Persons or entity" means a sole proprietorship, | 4 | | partnership, association, corporation, or any other legal | 5 | | entity. | 6 | | (Source: P.A. 95-26, eff. 1-1-08.) | 7 | | (820 ILCS 185/10)
| 8 | | Sec. 10. Applicability; status of individuals performing | 9 | | service. | 10 | | (a) For the purposes of this Act, an individual performing | 11 | | services for a contractor is deemed to be an employee of the | 12 | | employer except as provided in subsections (b) , and (c) , and | 13 | | (d) of this Section. | 14 | | (b) An individual performing services for a contractor is | 15 | | deemed to be an employee of the contractor unless it is shown | 16 | | that: | 17 | | (1) the individual has been and will continue to be | 18 | | free from control or direction over the performance of the | 19 | | service for the contractor, both under the individual's | 20 | | contract of service and in fact; | 21 | | (2) the service performed by the individual is outside | 22 | | the usual course of services performed by the contractor; | 23 | | and
| 24 | | (3) the individual is engaged in an independently | 25 | | established trade, occupation, profession or business; or
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| 1 | | (4) the individual is deemed a legitimate sole | 2 | | proprietor or partnership under subsection (c) of this | 3 | | Section. | 4 | | (c) The sole proprietor or partnership performing services | 5 | | for a contractor as a subcontractor is deemed legitimate if it | 6 | | is shown that: | 7 | | (1) the sole proprietor or partnership is performing | 8 | | the service free from the direction or control over the | 9 | | means and manner of providing the service, subject only to | 10 | | the right of the contractor for whom the service is | 11 | | provided to specify the desired result;
| 12 | | (2) the sole proprietor or partnership is not subject | 13 | | to cancellation or destruction upon severance of the | 14 | | relationship with the contractor;
| 15 | | (3) the sole proprietor or partnership has a | 16 | | substantial investment of capital in the sole | 17 | | proprietorship or partnership beyond ordinary tools and | 18 | | equipment and a personal vehicle;
| 19 | | (4) the sole proprietor or partnership owns the capital | 20 | | goods and gains the profits and bears the losses of the | 21 | | sole proprietorship or partnership;
| 22 | | (5) the sole proprietor or partnership makes its | 23 | | services available to the general public or the business | 24 | | community on a continuing basis;
| 25 | | (6) the sole proprietor or partnership includes | 26 | | services rendered on a Federal Income Tax Schedule as an |
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| 1 | | independent business or profession;
| 2 | | (7) the sole proprietor or partnership performs | 3 | | services for the contractor under the sole | 4 | | proprietorship's or partnership's name;
| 5 | | (8) when the services being provided require a license | 6 | | or permit, the sole proprietor or partnership obtains and | 7 | | pays for the license or permit in the sole proprietorship's | 8 | | or partnership's name;
| 9 | | (9) the sole proprietor or partnership furnishes the | 10 | | tools and equipment necessary to provide the service;
| 11 | | (10) if necessary, the sole proprietor or partnership | 12 | | hires its own employees without contractor approval, pays | 13 | | the employees without reimbursement from the contractor | 14 | | and reports the employees' income to the Internal Revenue | 15 | | Service;
| 16 | | (11) the contractor does not represent the sole | 17 | | proprietorship or partnership as an employee of the | 18 | | contractor to its customers; and
| 19 | | (12) the sole proprietor or partnership has the right | 20 | | to perform similar services for others on whatever basis | 21 | | and whenever it chooses. | 22 | | (d) Where a sole proprietor or partnership performing | 23 | | services for a contractor as a subcontractor is deemed not | 24 | | legitimate under subsection (c) of this Section, the sole | 25 | | proprietorship or partnership shall be deemed an individual for | 26 | | purposes of this Act.
An individual performing services for a |
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| 1 | | contractor is deemed to be an employee of the employer, unless | 2 | | the contractor is a truck owner-operator as defined in Section | 3 | | 5 of this Act. | 4 | | (e) Subcontractors or lower tiered contractors are subject | 5 | | to all provisions of this Act.
| 6 | | (f) A contractor shall not be liable under this Act for any | 7 | | subcontractor's failure to properly classify persons | 8 | | performing services as employees, nor shall a subcontractor be | 9 | | liable for any lower tiered subcontractor's failure to properly | 10 | | classify persons performing services as employees.
| 11 | | (Source: P.A. 95-26, eff. 1-1-08.)
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