Full Text of SB2895 099th General Assembly
SB2895 99TH GENERAL ASSEMBLY |
| | 99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016 SB2895 Introduced 2/18/2016, by Sen. James F. Clayborne, Jr. SYNOPSIS AS INTRODUCED: |
| 820 ILCS 105/3 | from Ch. 48, par. 1003 | 820 ILCS 105/3.5 new | |
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Amends the Minimum Wage Law. Sets forth the criteria for establishing that a person is conclusively presumed to be an independent contractor. Effective immediately.
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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 Minimum Wage Law is amended by changing | 5 | | Section 3 and by adding Section 3.5 as follows:
| 6 | | (820 ILCS 105/3) (from Ch. 48, par. 1003)
| 7 | | Sec. 3. As used in this Act:
| 8 | | (a) "Director" means the Director of the Department of | 9 | | Labor, and
"Department" means the Department of Labor.
| 10 | | (b) "Wages" means compensation due to an employee by reason | 11 | | of his
employment, including allowances determined by the | 12 | | Director in
accordance with the provisions of this Act for | 13 | | gratuities and, when
furnished by the employer, for meals and | 14 | | lodging actually used by the
employee.
| 15 | | (c) "Employer" includes any individual, partnership, | 16 | | association,
corporation, limited liability company, business | 17 | | trust, governmental or quasi-governmental body, or
any person | 18 | | or group of persons acting directly or indirectly in the
| 19 | | interest of an employer in relation to an employee, for which | 20 | | one or
more persons are gainfully employed on some day within a | 21 | | calendar year.
An employer is subject to this Act in a calendar | 22 | | year on and after the
first day in such calendar year in which | 23 | | he employs one or more persons,
and for the following calendar |
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| 1 | | year.
| 2 | | (d) "Employee" includes any individual permitted to work by | 3 | | an
employer in an occupation, but does not include any | 4 | | individual permitted
to work:
| 5 | | (1) For an employer employing fewer than 4 employees | 6 | | exclusive of
the employer's parent, spouse or child or | 7 | | other members of his immediate
family.
| 8 | | (2) As an employee employed in agriculture or | 9 | | aquaculture (A) if such
employee is
employed by an employer | 10 | | who did not, during any calendar quarter during
the | 11 | | preceding calendar year, use more than 500 man-days of | 12 | | agricultural
or aquacultural
labor, (B) if such employee is | 13 | | the parent, spouse or child, or other
member of the | 14 | | employer's immediate family, (C) if such employee (i) is
| 15 | | employed as a hand harvest laborer and is paid on a piece | 16 | | rate basis in
an operation which has been, and is | 17 | | customarily and generally recognized
as having been, paid | 18 | | on a piece rate basis in the region of employment,
(ii) | 19 | | commutes daily from his permanent residence to the farm on | 20 | | which he
is so employed, and (iii) has been employed in | 21 | | agriculture less than 13
weeks during the preceding | 22 | | calendar year, (D) if such employee (other
than an employee | 23 | | described in clause (C) of this subparagraph): (i) is
16 | 24 | | years of age or under and is employed as a hand harvest | 25 | | laborer, is paid
on a piece rate basis in an operation | 26 | | which has been, and is customarily
and generally recognized |
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| 1 | | as having been, paid on a piece rate basis in
the region of | 2 | | employment, (ii) is employed on the same farm as his
parent | 3 | | or person standing in the place of his parent, and (iii) is | 4 | | paid
at the same piece rate as employees over 16 are paid | 5 | | on the same farm.
| 6 | | (3) In domestic service in or about a private home.
| 7 | | (4) As an outside salesman.
| 8 | | (5) As a member of a religious corporation or | 9 | | organization.
| 10 | | (6) At an accredited Illinois college or university | 11 | | employed by the
college
or university at which he is a | 12 | | student who is covered under the provisions
of the Fair | 13 | | Labor Standards Act of 1938, as heretofore or hereafter
| 14 | | amended.
| 15 | | (7) For a motor carrier and with respect to whom the | 16 | | U.S. Secretary of
Transportation has the power to establish | 17 | | qualifications and maximum hours of
service under the | 18 | | provisions of Title 49 U.S.C. or the State of Illinois | 19 | | under
Section 18b-105 (Title 92 of the Illinois | 20 | | Administrative Code, Part 395 -
Hours of Service of | 21 | | Drivers) of the Illinois Vehicle
Code.
| 22 | | (8) An individual described in Section 3.5. | 23 | | The above exclusions from the term "employee" may be | 24 | | further defined
by regulations of the Director.
| 25 | | (e) "Occupation" means an industry, trade, business or | 26 | | class of work
in which employees are gainfully employed.
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| 1 | | (f) "Gratuities" means voluntary monetary contributions to | 2 | | an
employee from a guest, patron or customer in connection with | 3 | | services
rendered.
| 4 | | (g) "Outside salesman" means an employee regularly engaged | 5 | | in making
sales or obtaining orders or contracts for services | 6 | | where a major
portion of such duties are performed away from | 7 | | his employer's place of
business.
| 8 | | (h) "Day camp" means a seasonal recreation program in | 9 | | operation for no more than 16 weeks intermittently throughout | 10 | | the calendar year, accommodating for profit or under | 11 | | philanthropic or charitable auspices, 5 or more children under | 12 | | 18 years of age, not including overnight programs. The term | 13 | | "day camp" does not include a "day care agency", "child care | 14 | | facility" or "foster family home" as licensed by the Illinois | 15 | | Department of Children and Family Services. | 16 | | (Source: P.A. 94-1025, eff. 7-14-06; 95-945, eff. 1-1-09.)
| 17 | | (820 ILCS 105/3.5 new) | 18 | | Sec. 3.5. Independent contractor; presumption. | 19 | | (a) For the purposes of this Act, a person is conclusively
| 20 | | presumed to be an independent contractor if: | 21 | | (1) unless the person is a foreign national who is | 22 | | legally
present in the United States, the person possesses | 23 | | or has applied for an employer identification number or | 24 | | social security number or has filed an income tax return | 25 | | for a business or earnings from self-employment with the |
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| 1 | | Internal Revenue Service in the previous year; | 2 | | (2) the person is required by the contract with the | 3 | | principal to hold any necessary State or local business | 4 | | license and to maintain any necessary occupational | 5 | | license, insurance, or bonding; and | 6 | | (3) the person satisfies 3 or more of the following | 7 | | criteria: | 8 | | (A) Notwithstanding the exercise of any control | 9 | | necessary to comply with any statutory, regulatory, or | 10 | | contractual obligations, the person has control and | 11 | | discretion over the means and manner of the performance | 12 | | of any work and the result of the work, rather than the | 13 | | means or manner by which the work is performed, is the | 14 | | primary element bargained for by the principal in the | 15 | | contract. | 16 | | (B) Except for an agreement with the principal | 17 | | relating to the completion schedule, range of work | 18 | | hours or, if the work contracted for is entertainment, | 19 | | the time such entertainment is to be presented, the | 20 | | person has control over the time the work is performed. | 21 | | (C) The person is not required to work exclusively | 22 | | for one principal unless: | 23 | | (i) a law, regulation, or ordinance prohibits | 24 | | the person from providing services to more than one | 25 | | principal; or | 26 | | (ii) the person has entered into a written |
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| 1 | | contract to provide services to only one principal | 2 | | for a limited period. | 3 | | (D) The person is free to hire employees to assist | 4 | | with the work. | 5 | | (E) The person contributes a substantial | 6 | | investment of
capital in the business of the person | 7 | | including, without limitation, the: | 8 | | (i) purchase or lease of ordinary tools, | 9 | | material, and equipment regardless of source; | 10 | | (ii) obtaining of a license or other | 11 | | permission from the principal to access any work | 12 | | space of the principal to perform the work for | 13 | | which the person was engaged; and | 14 | | (iii) lease of any work space from the | 15 | | principal
required to perform the work for which | 16 | | the person was engaged. | 17 | | The determination of whether an investment of capital is
| 18 | | substantial for the purpose of this subsection must be made on
| 19 | | the basis of the amount of income the person receives, the
| 20 | | equipment commonly used, and the expenses commonly incurred
in | 21 | | the trade or profession in which the person engages. | 22 | | (b) The fact that a person is not conclusively presumed to | 23 | | be
an independent contractor for failure to satisfy 3 or more | 24 | | of
the criteria set forth in paragraph (3) of subsection (a) | 25 | | does
not automatically create a presumption that the person is | 26 | | an
employee. |
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| 1 | | (c) As used in this Section, "foreign national" has the | 2 | | meaning
ascribed to it in 52 U.S.C 30121.
| 3 | | Section 99. Effective date. This Act takes effect upon | 4 | | becoming law.
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