Public Act 094-1025
 
SB2339 Enrolled LRB094 16364 WGH 51615 b

    AN ACT concerning employment.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Minimum Wage Law is amended by changing
Sections 3, 7, and 12 as follows:
 
    (820 ILCS 105/3)  (from Ch. 48, par. 1003)
    Sec. 3. As used in this Act:
    (a) "Director" means the Director of the Department of
Labor, and "Department" means the Department of Labor.
    (b) "Wages" means compensation due to an employee by reason
of his employment, including allowances determined by the
Director in accordance with the provisions of this Act for
gratuities and, when furnished by the employer, for meals and
lodging actually used by the employee.
    (c) "Employer" includes any individual, partnership,
association, corporation, limited liability company, business
trust, governmental or quasi-governmental body, or any person
or group of persons acting directly or indirectly in the
interest of an employer in relation to an employee, for which
one or more persons are gainfully employed on some day within a
calendar year. An employer is subject to this Act in a calendar
year on and after the first day in such calendar year in which
he employs one or more persons, and for the following calendar
year.
    (d) "Employee" includes any individual permitted to work by
an employer in an occupation, but does not include any
individual permitted to work:
        (1) For an employer employing fewer than 4 employees
    exclusive of the employer's parent, spouse or child or
    other members of his immediate family.
        (2) As an employee employed in agriculture or
    aquaculture (A) if such employee is employed by an employer
    who did not, during any calendar quarter during the
    preceding calendar year, use more than 500 man-days of
    agricultural or aquacultural labor, (B) if such employee is
    the parent, spouse or child, or other member of the
    employer's immediate family, (C) if such employee (i) is
    employed as a hand harvest laborer and is paid on a piece
    rate basis in an operation which has been, and is
    customarily and generally recognized as having been, paid
    on a piece rate basis in the region of employment, (ii)
    commutes daily from his permanent residence to the farm on
    which he is so employed, and (iii) has been employed in
    agriculture less than 13 weeks during the preceding
    calendar year, (D) if such employee (other than an employee
    described in clause (C) of this subparagraph): (i) is 16
    years of age or under and is employed as a hand harvest
    laborer, is paid on a piece rate basis in an operation
    which has been, and is customarily and generally recognized
    as having been, paid on a piece rate basis in the region of
    employment, (ii) is employed on the same farm as his parent
    or person standing in the place of his parent, and (iii) is
    paid at the same piece rate as employees over 16 are paid
    on the same farm.
        (3) In domestic service in or about a private home.
        (4) As an outside salesman.
        (5) As a member of a religious corporation or
    organization.
        (6) At an accredited Illinois college or university
    employed by the college or university at which he is a
    student who is covered under the provisions of the Fair
    Labor Standards Act of 1938, as heretofore or hereafter
    amended.
        (7) For a motor carrier and with respect to whom the
    U.S. Secretary of Transportation has the power to establish
    qualifications and maximum hours of service under the
    provisions of Title 49 U.S.C. or the State of Illinois
    under Section 18b-105 (Title 92 of the Illinois
    Administrative Code, Part 395 - Hours of Service of
    Drivers) of the Illinois Vehicle Code.
    The above exclusions from the term "employee" may be
further defined by regulations of the Director.
    (e) "Occupation" means an industry, trade, business or
class of work in which employees are gainfully employed.
    (f) "Gratuities" means voluntary monetary contributions to
an employee from a guest, patron or customer in connection with
services rendered.
    (g) "Outside salesman" means an employee regularly engaged
in making sales or obtaining orders or contracts for services
where a major portion of such duties are performed away from
his employer's place of business.
(Source: P.A. 91-357, eff. 7-29-99.)
 
    (820 ILCS 105/7)  (from Ch. 48, par. 1007)
    Sec. 7. The Director or his authorized representatives have
the authority to:
    (a) Investigate and gather data regarding the wages, hours
and other conditions and practices of employment in any
industry subject to this Act, and may enter and inspect such
places and such records (and make such transcriptions thereof)
at reasonable times during regular business hours, not
including lunch time at a restaurant, question such employees,
and investigate such facts, conditions, practices or matters as
he may deem necessary or appropriate to determine whether any
person has violated any provision of this Act, or which may aid
in the enforcement of this Act.
    (b) Require from any employer full and correct statements
and reports in writing, including sworn statements, at such
times as the Director may deem necessary, of the wages, hours,
names, addresses, and other information pertaining to his
employees as he may deem necessary for the enforcement of this
Act.
    (c) Require by subpoena the attendance and testimony of
witnesses and the production of all books, records, and other
evidence relative to a matter under investigation or hearing.
The subpoena shall be signed and issued by the Director or his
or her authorized representative. If a person fails to comply
with any subpoena lawfully issued under this Section or a
witness refuses to produce evidence or testify to any matter
regarding which he or she may be lawfully interrogated, the
court may, upon application of the Director or his or her
authorized representative, compel obedience by proceedings for
contempt.
(Source: P.A. 77-1451.)
 
    (820 ILCS 105/12)  (from Ch. 48, par. 1012)
    Sec. 12. (a) If any employee is paid by his employer less
than the wage to which he is entitled under the provisions of
this Act, the employee may recover in a civil action the amount
of any such underpayments together with costs and such
reasonable attorney's fees as may be allowed by the Court, and
damages of 2% of the amount of any such underpayments for each
month following the date of payment during which such
underpayments remain unpaid. Any any agreement between the
employee him and the his employer to work for less than such
wage is no defense to such action. At the request of the
employee or on motion of the Director of Labor, the Department
of Labor may make an assignment of such wage claim in trust for
the assigning employee and may bring any legal action necessary
to collect such claim, and the employer shall be required to
pay the costs incurred in collecting such claim. Every such
action shall be brought within 3 years from the date of the
underpayment. Such employer shall be liable to the Department
of Labor for up to 20% of the total employer's underpayment
where the employer's conduct is proven by a preponderance of
the evidence to be willful, repeated, or with reckless
disregard of this Act or any rule adopted under this Act. Such
employer and shall be additionally liable to the employee for
punitive damages in the amount of 2% of the amount of any such
underpayments for each month following the date of payment
during which such underpayments remain unpaid. These penalties
and damages The Director may promulgate rules for the
collection of these penalties. The amount of a penalty may be
determined, and the penalty may be assessed, through an
administrative hearing. The penalty may be recovered in a civil
action brought by the Director of Labor in any circuit court.
The penalty shall be imposed in cases in which an employer's
conduct is proven by a preponderance of the evidence to be
willful. In any such action, the Director of Labor shall be
represented by the Attorney General.
    If an employee collects damages of 2% of the amount of
underpayments as a result of an action brought by the Director
of Labor, the employee may not also collect those damages in a
private action brought by the employee for the same violation.
If an employee collects damages of 2% of the amount of
underpayments in a private action brought by the employee, the
employee may not also collect those damages as a result of an
action brought by the Director of Labor for the same violation.
    (b) If an employee has not collected damages under
subsection (a) for the same violation, the The Director is
authorized to supervise the payment of the unpaid minimum wages
and the unpaid overtime compensation owing to any employee or
employees under Sections 4 and 4a of this Act and may bring any
legal action necessary to recover the amount of the unpaid
minimum wages and unpaid overtime compensation and an equal
additional amount as punitive damages, and the employer shall
be required to pay the costs incurred in collecting such claim.
Such and the employer shall be additionally liable to the
Department of Labor for up to 20% of the total employer's
underpayment where the employer's conduct is proven by a
preponderance of the evidence to be willful, repeated, or with
reckless disregard of this Act or any rule adopted under this
Act. be required to pay the costs. The action shall be brought
within 5 years from the date of the failure to pay the wages or
compensation. Any sums thus recovered by the Director on behalf
of an employee pursuant to this subsection shall be paid to the
employee or employees affected. Any sums which, more than one
year after being thus recovered, the Director is unable to pay
to an employee shall be deposited into the General Revenue
Fund.
(Source: P.A. 92-392, eff. 1-1-02.)
 
    Section 10. The Illinois Wage Payment and Collection Act is
amended by changing Sections 2 and 14 as follows:
 
    (820 ILCS 115/2)  (from Ch. 48, par. 39m-2)
    Sec. 2. For all employees, other than separated employees,
"wages" shall be defined as any compensation owed an employee
by an employer pursuant to an employment contract or agreement
between the 2 parties, whether the amount is determined on a
time, task, piece, or any other basis of calculation. Payments
to separated employees shall be termed "final compensation" and
shall be defined as wages, salaries, earned commissions, earned
bonuses, and the monetary equivalent of earned vacation and
earned holidays, and any other compensation owed the employee
by the employer pursuant to an employment contract or agreement
between the 2 parties. Where an employer is legally committed
through a collective bargaining agreement or otherwise to make
contributions to an employee benefit, trust or fund on the
basis of a certain amount per hour, day, week or other period
of time, the amount due from the employer to such employee
benefit, trust, or fund shall be defined as "wage supplements",
subject to the wage collection provisions of this Act.
    As used in this Act, the term "employer" shall include any
individual, partnership, association, corporation, limited
liability company, business trust, employment and labor
placement agencies where wage payments are made directly or
indirectly by the agency or business for work undertaken by
employees under hire to a third party pursuant to a contract
between the business or agency with the third party, or any
person or group of persons acting directly or indirectly in the
interest of an employer in relation to an employee, for which
one or more persons is gainfully employed.
    As used in this Act, the term "employee" shall include any
individual permitted to work by an employer in an occupation,
but shall not include any individual:
        (1) who has been and will continue to be free from
    control and direction over the performance of his work,
    both under his contract of service with his employer and in
    fact; and
        (2) who performs work which is either outside the usual
    course of business or is performed outside all of the
    places of business of the employer unless the employer is
    in the business of contracting with third parties for the
    placement of employees; and
        (3) who is in an independently established trade,
    occupation, profession or business.
(Source: P.A. 89-364, eff. 8-18-95; 89-626, eff. 8-9-96.)
 
    (820 ILCS 115/14)  (from Ch. 48, par. 39m-14)
    Sec. 14. (a) Any employer or any agent of an employer, who,
being able to pay wages, final compensation, or wage
supplements and being under a duty to pay, wilfully refuses to
pay as provided in this Act, or falsely denies the amount or
validity thereof or that the same is due, with intent to secure
for himself or other person any underpayment of such
indebtedness or with intent to annoy, harass, oppress, hinder,
delay or defraud the person to whom such indebtedness is due,
upon conviction, is guilty of a Class C misdemeanor. Each day
during which any violation of this Act continues shall
constitute a separate and distinct offense.
    (b) Any employer who has been demanded ordered by the
Director of Labor or ordered by the court to pay wages due an
employee and who shall fail to do so within 15 days after such
demand or order is entered shall be liable to pay a penalty of
1% per calendar day to the employee for each day of delay in
paying such wages to the employee up to an amount equal to
twice the sum of unpaid wages due the employee.
    (c) Any employer, or any agent of an employer, who
knowingly discharges or in any other manner knowingly
discriminates against any employee because that employee has
made a complaint to his employer, or to the Director of Labor
or his authorized representative, that he or she has not been
paid in accordance with the provisions of this Act, or because
that employee has caused to be instituted any proceeding under
or related to this Act, or because that employee has testified
or is about to testify in an investigation or proceeding under
this Act, is guilty, upon conviction, of a Class C misdemeanor.
(Source: P.A. 83-202.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.