Bill Amendment: IL SB0672 | 2021-2022 | 102nd General Assembly
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: FAIR FOOD DELIVERY ACT
Status: 2021-08-13 - Public Act . . . . . . . . . 102-0358 [SB0672 Detail]
Download: Illinois-2021-SB0672-House_Amendment_001.html
Bill Title: FAIR FOOD DELIVERY ACT
Status: 2021-08-13 - Public Act . . . . . . . . . 102-0358 [SB0672 Detail]
Download: Illinois-2021-SB0672-House_Amendment_001.html
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1 | AMENDMENT TO SENATE BILL 672
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2 | AMENDMENT NO. ______. Amend Senate Bill 672 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Illinois Freedom to Work Act is amended by | ||||||
5 | changing Sections 5 and 10 and by adding Sections 7, 15, 20, | ||||||
6 | 25, 30, 35, and 97 as follows:
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7 | (820 ILCS 90/5)
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8 | Sec. 5. Definitions. In this Act: | ||||||
9 | "Adequate consideration" means (1) the employee worked for | ||||||
10 | the employer for at least 2 years after the employee signed an | ||||||
11 | agreement containing a covenant not to compete or a covenant | ||||||
12 | not to solicit or (2) the employer otherwise provided | ||||||
13 | consideration adequate to support an agreement to not compete | ||||||
14 | or to not solicit, which consideration can consist of a period | ||||||
15 | of employment plus additional professional or financial | ||||||
16 | benefits or merely professional or financial benefits adequate |
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1 | by themselves. | ||||||
2 | "Covenant not to compete" means an agreement : (1) between | ||||||
3 | an employer and an a low-wage employee that is entered into | ||||||
4 | after the effective date of this amendatory Act of the 102nd | ||||||
5 | General Assembly that restricts the such low-wage employee | ||||||
6 | from performing: | ||||||
7 | (1) (A) any work for another employer for a | ||||||
8 | specified period of time; | ||||||
9 | (2) (B) any work in a specified geographical area; | ||||||
10 | or | ||||||
11 | (3) (C) work for another employer that is similar | ||||||
12 | to such low-wage employee's work for the employer | ||||||
13 | included as a party to the agreement . ; and
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14 | (2) that is entered into after the effective date of | ||||||
15 | this Act. | ||||||
16 | "Covenant not to compete" also means an agreement between | ||||||
17 | an employer and an employee, entered into after the effective | ||||||
18 | date of this amendatory Act of the 102nd General Assembly, | ||||||
19 | that by its terms imposes adverse financial consequences on | ||||||
20 | the former employee if the employee engages in competitive | ||||||
21 | activities after the termination of the employee's employment | ||||||
22 | with the employer. | ||||||
23 | "Covenant not to compete" does not include (1) a covenant | ||||||
24 | not to solicit, (2) a confidentiality agreement or covenant, | ||||||
25 | (3) a covenant or agreement prohibiting use or disclosure of | ||||||
26 | trade secrets or inventions, (4) invention assignment |
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1 | agreements or covenants, (5) a covenant or agreement entered | ||||||
2 | into by a person purchasing or selling the goodwill of a | ||||||
3 | business or otherwise acquiring or disposing of an ownership | ||||||
4 | interest, (6) clauses or an agreement between an employer and | ||||||
5 | an employee requiring advance notice of termination of | ||||||
6 | employment, during which notice period the employee remains | ||||||
7 | employed by the employer and receives compensation, or (7) | ||||||
8 | agreements by which the employee agrees not to reapply for | ||||||
9 | employment to the same employer after termination of the | ||||||
10 | employee. | ||||||
11 | "Covenant not to solicit" means an agreement that is | ||||||
12 | entered into after the effective date of this amendatory Act | ||||||
13 | of the 102nd General Assembly between an employer and an | ||||||
14 | employee that (1) restricts the employee from soliciting for | ||||||
15 | employment the employer's employees or (2) restricts the | ||||||
16 | employee from soliciting, for the purpose of selling products | ||||||
17 | or services of any kind to, or from interfering with the | ||||||
18 | employer's relationships with, the employer's clients, | ||||||
19 | prospective clients, vendors, prospective vendors, suppliers, | ||||||
20 | prospective suppliers, or other business relationships. | ||||||
21 | "Earnings" means the compensation, including earned | ||||||
22 | salary, earned bonuses, earned commissions, or any other form | ||||||
23 | of taxable compensation, reflected or that is expected to be | ||||||
24 | reflected as wages, tips, and other compensation on the | ||||||
25 | employee's IRS Form W-2 plus any elective deferrals not | ||||||
26 | reflected as wages, tips, and other compensation on the |
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1 | employee's IRS Form W-2, such as, without limitation, employee | ||||||
2 | contributions to a 401(k) plan, a 403(b) plan, a flexible | ||||||
3 | spending account, or a health savings account, or commuter | ||||||
4 | benefit-related deductions. | ||||||
5 | "Employee" means any individual permitted to work by an | ||||||
6 | employer in an occupation. | ||||||
7 | "Employer" has the meaning given to such term in | ||||||
8 | subsection (c) of Section 3 of the Minimum Wage Law. | ||||||
9 | "Employer" does not include governmental or quasi-governmental | ||||||
10 | bodies. | ||||||
11 | "Construction" means any constructing, altering, | ||||||
12 | reconstructing, repairing,
rehabilitating, refinishing, | ||||||
13 | refurbishing, remodeling, remediating, renovating, custom | ||||||
14 | fabricating, maintenance, landscaping, improving, wrecking, | ||||||
15 | painting, decorating, demolishing, and adding to or | ||||||
16 | subtracting from any building, structure, highway, roadway, | ||||||
17 | street, bridge, alley, sewer, ditch, sewage disposal plant, | ||||||
18 | water works, parking facility, railroad, excavation or other | ||||||
19 | structure, project, development, real property or improvement, | ||||||
20 | or to do any part thereof, whether or not the performance of | ||||||
21 | the work herein described involves the addition to, or | ||||||
22 | fabrication into, any structure, project, development, real | ||||||
23 | property or improvement herein described of any material or | ||||||
24 | article of merchandise. | ||||||
25 | "Low-wage employee" means an employee whose earnings do | ||||||
26 | not exceed the greater of (1) the hourly rate equal to the |
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1 | minimum wage required by the applicable federal, State, or | ||||||
2 | local minimum wage law or (2) $13.00 per hour.
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3 | (Source: P.A. 99-860, eff. 1-1-17; 100-225, eff. 8-18-17.)
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4 | (820 ILCS 90/7 new) | ||||||
5 | Sec. 7. Legitimate business interest of the employer. In | ||||||
6 | determining the legitimate business interest of the employer, | ||||||
7 | the totality of the facts and circumstances of the individual | ||||||
8 | case shall be considered. Factors that may be considered in | ||||||
9 | this analysis include, but are not limited to, the employee's | ||||||
10 | exposure to the employer's customer relationships or other | ||||||
11 | employees, the near-permanence of customer relationships, the | ||||||
12 | employee's acquisition, use, or knowledge of confidential | ||||||
13 | information through the employee's employment, the time | ||||||
14 | restrictions, the place restrictions, and the scope of the | ||||||
15 | activity restrictions. No factor carries any more weight than | ||||||
16 | any other, but rather its importance will depend on the | ||||||
17 | specific facts and circumstances of the individual case. Such | ||||||
18 | factors are only non-conclusive aids in determining the | ||||||
19 | employer's legitimate business interest, which in turn is but | ||||||
20 | one component in the 3-prong rule of reason, grounded in the | ||||||
21 | totality of the circumstances. Each situation must be | ||||||
22 | determined on its own particular facts. Reasonableness is | ||||||
23 | gauged not just by some, but by all of the circumstances. The | ||||||
24 | same identical contract and restraint may be reasonable and | ||||||
25 | valid under one set of circumstances and unreasonable and
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1 | invalid under another set of circumstances.
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2 | (820 ILCS 90/10)
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3 | Sec. 10. Prohibiting covenants not to compete and | ||||||
4 | covenants not to solicit for low-wage employees . | ||||||
5 | (a) No employer shall enter into a covenant not to compete | ||||||
6 | with any employee unless the employee's actual or expected | ||||||
7 | annualized rate of earnings exceeds $75,000 per year. This | ||||||
8 | amount shall increase to $80,000 per year beginning on January | ||||||
9 | 1, 2027, $85,000 per year beginning on January 1, 2032, and | ||||||
10 | $90,000 per year beginning on January 1, 2037. A covenant not | ||||||
11 | to compete entered into in violation of this subsection is | ||||||
12 | void and unenforceable. No employer shall enter into a | ||||||
13 | covenant not to compete with any low-wage employee of the | ||||||
14 | employer. | ||||||
15 | (b) No employer shall enter into a covenant not to solicit | ||||||
16 | with any employee unless the employee's actual or expected | ||||||
17 | annualized rate of earnings exceeds $45,000 per year. This | ||||||
18 | amount shall increase to $47,500 per year beginning on January | ||||||
19 | 1, 2027, $50,000 per year beginning on January 1, 2032, and | ||||||
20 | $52,500 per year beginning on January 1, 2037. A covenant not | ||||||
21 | to solicit entered into in violation of this subsection is | ||||||
22 | void and unenforceable. A covenant not to compete entered into | ||||||
23 | between an employer and a low-wage employee is illegal and | ||||||
24 | void.
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25 | (c) No employer shall enter into a covenant not to compete |
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1 | or a covenant not to solicit with any employee who an employer | ||||||
2 | terminates or furloughs or lays off as the result of business | ||||||
3 | circumstances or governmental orders related to the COVID-19 | ||||||
4 | pandemic or under circumstances that are similar to the | ||||||
5 | COVID-19 pandemic, unless enforcement of the covenant not to | ||||||
6 | compete includes compensation equivalent to the employee's | ||||||
7 | base salary at the time of termination for the period of | ||||||
8 | enforcement minus compensation earned through subsequent | ||||||
9 | employment during the period of enforcement. A covenant not to | ||||||
10 | compete or a covenant not to solicit entered into in violation | ||||||
11 | of this subsection is void and unenforceable. | ||||||
12 | (d) A covenant not to compete is void and illegal with | ||||||
13 | respect to individuals covered by a collective bargaining | ||||||
14 | agreement under the Illinois Public Labor Relations Act or the | ||||||
15 | Illinois Educational Labor Relations Act and individuals | ||||||
16 | employed in construction. This subsection (d) does not apply | ||||||
17 | to construction employees who primarily perform management, | ||||||
18 | engineering or architectural, design, or sales functions for | ||||||
19 | the employer or who are shareholders, partners, or owners in | ||||||
20 | any capacity of the employer. | ||||||
21 | (Source: P.A. 99-860, eff. 1-1-17 .)
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22 | (820 ILCS 90/15 new) | ||||||
23 | Sec. 15. Enforceability of a covenant not to compete or a | ||||||
24 | covenant not to solicit. A covenant not to compete or a | ||||||
25 | covenant not to solicit is illegal and void unless (1) the |
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1 | employee receives adequate consideration, (2) the covenant is | ||||||
2 | ancillary to a valid employment relationship, (3) the covenant | ||||||
3 | is no greater than is required for the protection of a | ||||||
4 | legitimate business interest of the employer, (4) the covenant | ||||||
5 | does not impose undue hardship on the employee, and (5) the | ||||||
6 | covenant is not injurious to the public.
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7 | (820 ILCS 90/20 new) | ||||||
8 | Sec. 20. Ensuring employees are informed about their | ||||||
9 | obligations. A covenant not to compete or a covenant not to | ||||||
10 | solicit is illegal and void unless (1) the employer advises | ||||||
11 | the employee in writing to consult with an attorney before | ||||||
12 | entering into the covenant and (2) the employer provides the | ||||||
13 | employee with a copy of the covenant at least 14 calendar days | ||||||
14 | before the commencement of the employee's employment or the | ||||||
15 | employer provides the employee with at least 14 calendar days | ||||||
16 | to review the covenant. An employer is in compliance with this | ||||||
17 | Section even if the employee voluntarily elects to sign the | ||||||
18 | covenant before the expiration of the 14-day period.
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19 | (820 ILCS 90/25 new) | ||||||
20 | Sec. 25. Remedies. In addition to any remedies available | ||||||
21 | under any agreement between an employer and an employee or | ||||||
22 | under any other statute, in a civil action or arbitration | ||||||
23 | filed by an employer (including, but not limited to, a | ||||||
24 | complaint or counterclaim), if an employee prevails on a claim |
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1 | to enforce a covenant not to compete or a covenant not to | ||||||
2 | solicit, the employee shall recover from the employer all | ||||||
3 | costs and all reasonable attorney's fees regarding such claim | ||||||
4 | to enforce a covenant not to compete or a covenant not to | ||||||
5 | solicit, and the court or arbitrator may award appropriate | ||||||
6 | relief.
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7 | (820 ILCS 90/30 new) | ||||||
8 | Sec. 30. Attorney General enforcement. | ||||||
9 | (a) Whenever the Attorney General has reasonable cause to | ||||||
10 | believe that any person or entity is engaged in a pattern and | ||||||
11 | practice prohibited by this Act, the Attorney General may | ||||||
12 | initiate or intervene in a civil action in the name of the | ||||||
13 | People of the State in any appropriate court to obtain | ||||||
14 | appropriate relief. | ||||||
15 | (b) Before initiating an action, the Attorney General may | ||||||
16 | conduct an investigation and may: (1) require an individual or | ||||||
17 | entity to file a statement or report in writing under oath or | ||||||
18 | otherwise, as to all information the Attorney General may | ||||||
19 | consider necessary; (2) examine under oath any person alleged | ||||||
20 | to have participated in or with knowledge of the alleged | ||||||
21 | violation; or (3) issue subpoenas or conduct hearings in aid | ||||||
22 | of any investigation. | ||||||
23 | (c) Service by the Attorney General of any notice | ||||||
24 | requiring a person or entity to file a statement or report, or | ||||||
25 | of a subpoena upon any person or entity, shall be made: |
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1 | (1) personally by delivery of a duly executed copy | ||||||
2 | thereof to the person to be served or, if a person is not a | ||||||
3 | natural person, in the manner provided in the Code of | ||||||
4 | Civil Procedure when a complaint is filed; or | ||||||
5 | (2) by mailing by certified mail a duly executed copy | ||||||
6 | thereof to the person to be served at his or her last known | ||||||
7 | abode or principal place of business within this State or, | ||||||
8 | if a person is not a natural person, in the manner provided | ||||||
9 | in the Code of Civil Procedure when a complaint is filed. | ||||||
10 | The Attorney General may compel compliance with | ||||||
11 | investigative demands under this Section through an order by | ||||||
12 | any court of competent jurisdiction. | ||||||
13 | (d)(1) In an action brought under this Act, the Attorney | ||||||
14 | General may obtain, as a remedy, monetary damages to the | ||||||
15 | State, restitution, and equitable relief, including any | ||||||
16 | permanent or preliminary injunction, temporary restraining | ||||||
17 | order, or other order, including an order enjoining the | ||||||
18 | defendant from engaging in a violation, or order any action as | ||||||
19 | may be appropriate. In addition, the Attorney General may | ||||||
20 | request and the court may impose a civil penalty not to exceed | ||||||
21 | $5,000 for each violation or $10,000 for each repeat violation | ||||||
22 | within a 5-year period. For purposes of this Section, each | ||||||
23 | violation of this Act for each person who was subject to an | ||||||
24 | agreement in violation of this Act shall constitute a separate | ||||||
25 | and distinct violation. | ||||||
26 | (2) A civil penalty imposed under this subsection shall be |
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1 | deposited into the Attorney General Court Ordered and | ||||||
2 | Voluntary Compliance Payment Projects Fund. Moneys in the Fund | ||||||
3 | shall be used, subject to appropriation, for the performance | ||||||
4 | of any function pertaining to the exercise of the duties of the | ||||||
5 | Attorney General, including but not limited to enforcement of | ||||||
6 | any law of this State and conducting public education | ||||||
7 | programs; however, any moneys in the Fund that are required by | ||||||
8 | the court or by an agreement to be used for a particular | ||||||
9 | purpose shall be used for that purpose.
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10 | (820 ILCS 90/35 new) | ||||||
11 | Sec. 35. Reformation. | ||||||
12 | (a) Extensive judicial reformation of a covenant not to | ||||||
13 | compete or a covenant not to solicit may be against the public | ||||||
14 | policy of this State and a court may refrain from wholly | ||||||
15 | rewriting contracts. | ||||||
16 | (b) In some circumstances, a court may, in its discretion, | ||||||
17 | choose to reform or sever provisions of a covenant not to | ||||||
18 | compete or a covenant not to solicit rather than hold such | ||||||
19 | covenant unenforceable. Factors which may be considered when | ||||||
20 | deciding whether such reformation is appropriate include the | ||||||
21 | fairness of the restraints as originally written, whether the | ||||||
22 | original restriction reflects a good-faith effort to protect a | ||||||
23 | legitimate business interest of the employer, the extent of | ||||||
24 | such reformation, and whether the parties included a clause
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25 | authorizing such modifications in their agreement.
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1 | (820 ILCS 90/97 new) | ||||||
2 | Sec. 97. Severability. The provisions of this Act are | ||||||
3 | severable under Section 1.31 of the Statute on Statutes.
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4 | Section 99. Effective date. This Act takes effect January | ||||||
5 | 1, 2022.".
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