Bill Amendment: IL SB2041 | 2023-2024 | 103rd General Assembly
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: FREELANCE WORKER PROTECTION
Status: 2023-06-12 - Chief Sponsor Changed to Sen. Don Harmon [SB2041 Detail]
Download: Illinois-2023-SB2041-Senate_Amendment_001.html
Bill Title: FREELANCE WORKER PROTECTION
Status: 2023-06-12 - Chief Sponsor Changed to Sen. Don Harmon [SB2041 Detail]
Download: Illinois-2023-SB2041-Senate_Amendment_001.html
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1 | AMENDMENT TO SENATE BILL 2041
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2 | AMENDMENT NO. ______. Amend Senate Bill 2041 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 1. Short title. This Act may be cited as the | ||||||
5 | Freelance Worker Protection Act.
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6 | Section 5. Definitions. As used in this Act: | ||||||
7 | "Department" means the Department of Labor. | ||||||
8 | "Director" means the Director of Labor or the Director's | ||||||
9 | designee. | ||||||
10 | "Freelance worker" means a natural person who is hired or | ||||||
11 | retained as an independent contractor by a contracting entity | ||||||
12 | to provide products or services in Illinois or for a | ||||||
13 | contracting entity located in Illinois in exchange for an | ||||||
14 | amount equal to or greater than $500, either in a single | ||||||
15 | contract or when aggregated with all contracts for products or | ||||||
16 | services between the same contracting entity and the freelance |
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1 | worker during the immediately preceding 120 days. "Freelance | ||||||
2 | worker" does not include an individual performing services as | ||||||
3 | an employee under Section 10 of the Employee Classification | ||||||
4 | Act or an employee as defined in Section 2 of the Illinois Wage | ||||||
5 | Payment and Collection Act. | ||||||
6 | "Contracting entity" means any person who retains a | ||||||
7 | freelance worker to provide any service, other than: | ||||||
8 | (1) the United States government; | ||||||
9 | (2) the State of Illinois; | ||||||
10 | (3) a unit of local government, including school | ||||||
11 | districts; or | ||||||
12 | (4) any foreign government. | ||||||
13 | "Natural person" means an individual human being. | ||||||
14 | "Person" means any natural person, individual, | ||||||
15 | corporation, business enterprise or other legal entity, either | ||||||
16 | public or private, and any legal successor, representative, | ||||||
17 | agent or agency of that individual, corporation, business | ||||||
18 | enterprise, or legal entity.
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19 | Section 10. Payment of compensation for freelance workers. | ||||||
20 | (a) Except as otherwise provided by law, a freelance | ||||||
21 | worker shall be paid the contracted compensation amount no | ||||||
22 | later than 30 days after the freelance worker provides the | ||||||
23 | product or completes the services under the contract. | ||||||
24 | (b) Once a freelance worker has commenced preparation of | ||||||
25 | the product or performance of the services under the contract, |
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1 | the contracting entity shall not require as a condition of | ||||||
2 | timely payment that the freelance worker accept less | ||||||
3 | compensation than the amount of the contracted compensation.
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4 | Section 15. Contract for products and services of | ||||||
5 | freelance workers. | ||||||
6 | (a) Whenever a contracting entity retains a freelance | ||||||
7 | worker, the contract for such products or services shall be | ||||||
8 | reduced to writing. The contracting entity shall furnish a | ||||||
9 | copy of the written contract, either physically or | ||||||
10 | electronically, to the freelance worker and each party to the | ||||||
11 | written contract shall retain a copy thereof for a period of 2 | ||||||
12 | years after the products or services are provided. | ||||||
13 | (b) The written contract for the product and service of a | ||||||
14 | freelance worker shall include, at a minimum, the following | ||||||
15 | information: | ||||||
16 | (1) the name and contact information of both the | ||||||
17 | contracting entity and the freelance worker, including the | ||||||
18 | mailing address of the contracting entity; | ||||||
19 | (2) an itemization of all products and services to be | ||||||
20 | provided by the freelance worker, the value of the | ||||||
21 | products and services to be provided under the terms of | ||||||
22 | the contract, and the rate and method of compensation; | ||||||
23 | (3) the date on which the contracting entity must pay | ||||||
24 | the contracted compensation or the mechanism by which such | ||||||
25 | date will be determined, which shall be no later than 30 |
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1 | days after the products or services are provided; and | ||||||
2 | (4) the date by which a freelance worker must submit a | ||||||
3 | list of products or services rendered under such contract | ||||||
4 | to the contracting entity, if such a list is required in | ||||||
5 | order to meet any internal processing deadlines of the | ||||||
6 | contracting entity for the purposes of compensation being | ||||||
7 | timely rendered by the agreed-upon date as stipulated in | ||||||
8 | paragraph (3). | ||||||
9 | (c) The contracting entity shall retain the contract for | ||||||
10 | the service of a freelance worker for no less than 2 years and | ||||||
11 | shall make such contract available to the Department upon | ||||||
12 | request. | ||||||
13 | (d) The Department shall make available model contracts on | ||||||
14 | its website for use by the general public at no cost. Such | ||||||
15 | model contracts shall be made available in English and in the 8 | ||||||
16 | languages most commonly spoken by limited English proficient | ||||||
17 | individuals in the State.
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18 | Section 20. Nondiscrimination. No contracting entity shall | ||||||
19 | threaten, intimidate, discipline, harass, deny a freelance | ||||||
20 | opportunity to, or take any other action that penalizes a | ||||||
21 | freelance worker for, or is reasonably likely to deter a | ||||||
22 | freelance worker from, exercising or attempting to exercise | ||||||
23 | any right guaranteed by this Act, or from obtaining any future | ||||||
24 | work opportunity because the freelance worker has done so.
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1 | Section 25. Complaint procedure. | ||||||
2 | (a) A freelance worker may file a complaint with the | ||||||
3 | Department alleging a violation of the Act by submitting a | ||||||
4 | completed form, provided by the Department, and by submitting | ||||||
5 | copies of all supporting documentation. The Department is | ||||||
6 | authorized to request or require any information the Director | ||||||
7 | deems relevant to the complaint or to its reporting | ||||||
8 | requirements under Section 50, including, but not limited to: | ||||||
9 | (1) the general sector or occupation of the freelance | ||||||
10 | worker submitting a claim under this Act; | ||||||
11 | (2) the county where the work by the freelance work | ||||||
12 | was performed, if in Illinois; and | ||||||
13 | (3) at the discretion of the freelance worker, the | ||||||
14 | demographic data of the freelance worker submitting a | ||||||
15 | claim under this Act. | ||||||
16 | (b) Complaints alleging violation of Section 10, 15, or 20 | ||||||
17 | shall be filed within 2 years after the date the final | ||||||
18 | compensation was due. Complaints shall be reviewed by the | ||||||
19 | Department to determine whether there is cause for the | ||||||
20 | Department to initiate the process of facilitating the | ||||||
21 | exchange of information between the parties. The Department is | ||||||
22 | not required to initiate an information facilitation process | ||||||
23 | if either party to the contract has initiated a civil action in | ||||||
24 | a court of competent jurisdiction alleging a violation of this | ||||||
25 | chapter or a breach of contract arising out of the contract | ||||||
26 | that is the subject of the complaint filed under this Act, |
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1 | unless such civil action has been dismissed without prejudice | ||||||
2 | to future claims; or either party to the contract has filed a | ||||||
3 | claim or complaint before any administrative agency under any | ||||||
4 | local, State, or federal law alleging a breach of contract | ||||||
5 | that is the subject of the complaint filed under this Act, | ||||||
6 | unless the administrative claim or complaint has been | ||||||
7 | withdrawn or dismissed without prejudice to future claims. | ||||||
8 | Failure of a contracting entity to keep adequate records or | ||||||
9 | provide written contract as required by this Act shall not | ||||||
10 | operate as a bar to a freelance worker filing a complaint. | ||||||
11 | (c) Each freelance worker who files a completed complaint | ||||||
12 | alleging a violation of this Act or a rule adopted thereunder | ||||||
13 | shall be provided with a written description of the | ||||||
14 | anticipated processing of the complaint, including | ||||||
15 | notification to the contracting entity and the contracting | ||||||
16 | entity's opportunity to respond. | ||||||
17 | (d) The Department shall, within 20 days of receiving a | ||||||
18 | complaint alleging a violation of this Act, initiate the | ||||||
19 | information facilitation process by sending the contracting | ||||||
20 | entity named in the complaint a written notice of the | ||||||
21 | complaint, or by notifying the freelance worker that the | ||||||
22 | Department lacks jurisdiction to initiate such process. When | ||||||
23 | the Department initiates this process, the notice of complaint | ||||||
24 | shall: (i) inform the contracting entity that a complaint has | ||||||
25 | been filed alleging a violation of this Act; (ii) detail the | ||||||
26 | civil remedies available to a freelance worker for violations |
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1 | of this Act by a contracting entity; (iii) include a copy of | ||||||
2 | the complaint; and (iv) state that failure to respond to the | ||||||
3 | complaint by the deadline established in paragraph (1) of | ||||||
4 | subsection (e) creates a rebuttable presumption in any civil | ||||||
5 | action commenced in accordance with this Act that the | ||||||
6 | contracting entity committed the violations alleged in the | ||||||
7 | complaint. The Department shall send such notice by certified | ||||||
8 | mail. | ||||||
9 | (e) Response. | ||||||
10 | (1) Within 20 days of receiving the notice of | ||||||
11 | complaint, the contracting entity identified in the | ||||||
12 | complaint shall send the Director one of the following: | ||||||
13 | (A) For a complaint under Section 10, a written | ||||||
14 | statement that the freelance worker has been paid in | ||||||
15 | full and proof of such payment. | ||||||
16 | (B) For a complaint under Section 10, a written | ||||||
17 | statement that the freelance worker has not been paid | ||||||
18 | in full and the reasons for the failure to provide such | ||||||
19 | payment. | ||||||
20 | (C) For a complaint under Section 15 or 20, a | ||||||
21 | defense against the alleged violation. | ||||||
22 | (2) If the contracting entity identified in the | ||||||
23 | complaint does not respond to the notice within 20 days, | ||||||
24 | such failure to respond creates a rebuttable presumption | ||||||
25 | in any civil action commenced in accordance with this Act | ||||||
26 | that the contracting entity committed the violations |
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1 | alleged in the complaint.
Within 20 days of receiving a | ||||||
2 | written response, the Director shall send the freelance | ||||||
3 | worker a copy of: | ||||||
4 | (A) the contracting entity's response; | ||||||
5 | (B) any enclosures submitted with the response; | ||||||
6 | (C) materials informing the freelance worker about | ||||||
7 | the freelance worker's right to bring an action in a | ||||||
8 | court of competent jurisdiction; and | ||||||
9 | (D) any other information about the status of the | ||||||
10 | complaint. | ||||||
11 | (3) If the director receives no response to the notice | ||||||
12 | of complaint within the time provided by subsection (a), | ||||||
13 | the Director shall mail a notice of non-response to both | ||||||
14 | the freelance worker and the contracting entity by regular | ||||||
15 | mail and shall include with such notice proof that the | ||||||
16 | Director previously mailed the notice of complaint to the | ||||||
17 | contracting entity by certified mail. Upon satisfying the | ||||||
18 | requirements of this paragraph, the Director may close the | ||||||
19 | case. | ||||||
20 | (f) Attorney General powers. | ||||||
21 | (1) Whenever the Attorney General has reasonable cause | ||||||
22 | to believe that any person or entity is engaged in a | ||||||
23 | pattern and practice prohibited by this Act, the Attorney | ||||||
24 | General may initiate or intervene in a civil action in the | ||||||
25 | name of the People of the State of Illinois in any | ||||||
26 | appropriate court to obtain appropriate relief. |
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1 | (2) Before initiating an action, the Attorney General | ||||||
2 | may conduct an investigation and may: | ||||||
3 | (A) require an individual or entity to file a | ||||||
4 | statement or report in writing under oath or | ||||||
5 | otherwise, as to all information the Attorney General | ||||||
6 | may consider necessary; | ||||||
7 | (B) examine under oath any person alleged to have | ||||||
8 | participated in or with knowledge of the alleged | ||||||
9 | violation; or | ||||||
10 | (C) issue subpoenas or conduct hearings in aid of | ||||||
11 | any investigation. | ||||||
12 | (3) Service by the Attorney General of any notice | ||||||
13 | requiring a person or entity to file a statement or | ||||||
14 | report, or of a subpoena upon any person or entity, shall | ||||||
15 | be made: | ||||||
16 | (A) personally by delivery of a duly executed copy | ||||||
17 | thereof to the person to be served or, if a person is | ||||||
18 | not a natural person, in the manner provided in the | ||||||
19 | Code of Civil Procedure when a complaint is filed; or | ||||||
20 | (B) by mailing by certified mail a duly executed | ||||||
21 | copy thereof to the person to be served at the person's | ||||||
22 | last known abode or principal place of business within | ||||||
23 | this State or, if a person is not a natural person, in | ||||||
24 | the manner provided in the Code of Civil Procedure | ||||||
25 | when a complaint is filed. | ||||||
26 | The Attorney General may compel compliance with |
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1 | investigative demands under this Section through an order | ||||||
2 | by any court of competent jurisdiction. | ||||||
3 | (4)(A) In an action brought under this Act, the | ||||||
4 | Attorney General may obtain, as a remedy, monetary damages | ||||||
5 | to the State, restitution, and equitable relief, including | ||||||
6 | any permanent or preliminary injunction, temporary | ||||||
7 | restraining order, or other order, including an order | ||||||
8 | enjoining the defendant from engaging in a violation, or | ||||||
9 | order any action as may be appropriate. In addition, the | ||||||
10 | Attorney General may request and the court may impose a | ||||||
11 | civil penalty not to exceed $5,000 for each violation or | ||||||
12 | $10,000 for each repeat violation within a 5-year period. | ||||||
13 | For purposes of this Section, each violation of this Act | ||||||
14 | for each person who was subject to an agreement in | ||||||
15 | violation of this Act shall constitute a separate and | ||||||
16 | distinct violation. | ||||||
17 | (B) A civil penalty imposed under this subsection | ||||||
18 | shall be deposited into the Attorney General Court Ordered | ||||||
19 | and Voluntary Compliance Payment Projects Fund. Moneys in | ||||||
20 | the Fund shall be used, subject to appropriation, for the | ||||||
21 | performance of any function pertaining to the exercise of | ||||||
22 | the duties of the Attorney General, including, but not | ||||||
23 | limited to, enforcement of any law of this State and | ||||||
24 | conducting public education programs; however, any moneys | ||||||
25 | in the Fund that are required by the court or by an | ||||||
26 | agreement to be used for a particular purpose shall be |
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1 | used for that purpose. | ||||||
2 | (g) Nothing in this Act shall be construed to prevent any | ||||||
3 | freelance worker from making complaint or prosecuting his or | ||||||
4 | her own claim for compensation. Any freelance worker aggrieved | ||||||
5 | by a violation of this Act or any rule adopted under this Act | ||||||
6 | may file suit in circuit court of Illinois, in the county where | ||||||
7 | the alleged violation occurred or where any freelance worker | ||||||
8 | who is party to the action resides, without regard to | ||||||
9 | exhaustion of any alternative administrative remedies provided | ||||||
10 | in this Act. Actions may be brought by one or more freelance | ||||||
11 | workers for and on behalf of themselves and other freelance | ||||||
12 | workers similarly situated. | ||||||
13 | (h) Nothing in this Act shall be construed to limit the | ||||||
14 | authority of the State's Attorney of any county to prosecute | ||||||
15 | actions for violation of this Act or to enforce the provisions | ||||||
16 | thereof independently and without specific direction of the | ||||||
17 | Department.
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18 | Section 30. Civil enforcement. | ||||||
19 | (a) Any freelance worker not timely paid final | ||||||
20 | compensation by a contracting entity as required by Section 10 | ||||||
21 | shall be entitled to recover through civil action double the | ||||||
22 | amount of any such underpayments, injunctive relief, and other | ||||||
23 | such remedies as may be appropriate. In a civil action for | ||||||
24 | violation of Section 10, such freelance worker shall also be | ||||||
25 | entitled to recover costs and all reasonable attorney's fees. |
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1 | A civil complaint alleging violation of Section 10 shall be | ||||||
2 | filed within 2 years after the date the final compensation was | ||||||
3 | due. | ||||||
4 | (b) Any freelance worker who was retained in violation of | ||||||
5 | Section 15 despite the freelance worker's request for a | ||||||
6 | written contract prior to commencing the contracted work as | ||||||
7 | required by Section 15 shall be entitled to recover through a | ||||||
8 | civil action statutory damages of $500. However, a freelance | ||||||
9 | worker who prevails on a claim alleging violation of Section | ||||||
10 | 15 and on one or more claims under other Sections shall be | ||||||
11 | awarded statutory damages equal to the value of the underlying | ||||||
12 | contract or $500, whichever is greater, in addition to the | ||||||
13 | other remedies provided. Civil complaints alleging violation | ||||||
14 | of Section 15 shall be filed within 2 years after the date the | ||||||
15 | final compensation was due. | ||||||
16 | (c) Any freelance worker who is threatened, intimidated, | ||||||
17 | disciplined, harassed, denied a freelance opportunity, or | ||||||
18 | penalized by a contracting entity in violation of Section 20 | ||||||
19 | shall be entitled to recover through a civil action statutory | ||||||
20 | damages equal to the value of the underlying contract for each | ||||||
21 | violation of Section 20. In a civil action for violation of | ||||||
22 | Section 20, such freelance worker shall also recover costs and | ||||||
23 | all reasonable attorney's fees.
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24 | Section 35. Public policy and intent. | ||||||
25 | (a) The provisions of this Act shall apply only to |
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1 | contracts taking effect after the effective date of this Act. | ||||||
2 | (b) Except as otherwise provided by law, any provision of | ||||||
3 | a contract purporting to waive rights under this Act is void as | ||||||
4 | against public policy. | ||||||
5 | (c) The provisions of this Act are intended to supplement, | ||||||
6 | and do not diminish or replace, any other basis of liability, | ||||||
7 | remedy, or requirement established by statute or common law. | ||||||
8 | (d) Failure to comply with this Section does not render | ||||||
9 | any contract between a contracting entity and a freelance | ||||||
10 | worker void in total, voidable, or otherwise impair any | ||||||
11 | obligation, claim, or right related to the contract, nor does | ||||||
12 | it constitute a defense to any action or proceeding to | ||||||
13 | enforce, or for breach of, such contract. | ||||||
14 | (e) No provision of this Act relating to freelance workers | ||||||
15 | shall be construed as providing a determination about the | ||||||
16 | legal classification of any such worker as an employee or | ||||||
17 | independent contractor.
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18 | Section 40. Public awareness. Subject to appropriation, | ||||||
19 | the Department may conduct a public awareness campaign | ||||||
20 | regarding this Act that, at a minimum, includes making | ||||||
21 | information available on its website, otherwise informing | ||||||
22 | contracting entities of the provisions of this Act, and | ||||||
23 | establishing a means for assistance by a natural person | ||||||
24 | through phone or email.
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1 | Section 45. Reports. One year after the effective date of | ||||||
2 | this Act, and by November 1 every 5 years thereafter, the | ||||||
3 | Department shall submit to the General Assembly and publish on | ||||||
4 | its website a report regarding freelance contracting and | ||||||
5 | payment practices. The report shall include, but is not | ||||||
6 | limited to: | ||||||
7 | (1) the number of complaints received by the | ||||||
8 | Department under this Act; | ||||||
9 | (2) the value of the contracts disaggregated into | ||||||
10 | ranges of $500 and by the Section of this Act the | ||||||
11 | associated contracting entity is alleged to have violated; | ||||||
12 | (3) the numbers of responses and non-responses | ||||||
13 | received from contracting entities by the Department | ||||||
14 | disaggregated by contract value into ranges of $500 and by | ||||||
15 | the Section of this Act the associated contracting entity | ||||||
16 | is alleged to have violated; | ||||||
17 | (4) the general sector or occupation of the freelance | ||||||
18 | workers submitting claims in accordance with this Act; | ||||||
19 | (5) the counties where violations of this Act are | ||||||
20 | alleged to have occurred, if in Illinois, including the | ||||||
21 | number of violations from each county, identified by the | ||||||
22 | county where the work was performed; | ||||||
23 | (6) to the extent available, demographic data of the | ||||||
24 | freelance workers who have alleged violations of this Act; | ||||||
25 | and | ||||||
26 | (7) legislative recommendations as the Director deems |
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1 | appropriate, which may include consideration of whether | ||||||
2 | certain occupations should be exempted from the scope of | ||||||
3 | the definition of freelance worker.
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4 | Section 50. Coordination. The Department is authorized to | ||||||
5 | coordinate efforts under this Act with other agencies and | ||||||
6 | combine complaints under this Act with claims under other | ||||||
7 | Acts.
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8 | Section 55. Rulemaking. The Director, or the Director's | ||||||
9 | authorized representatives, shall administer the provisions of | ||||||
10 | this Act. In order to accomplish the objectives of this Act and | ||||||
11 | to carry out the duties prescribed by this Act, the Director, | ||||||
12 | or the Director's authorized representative, may adopt rules | ||||||
13 | necessary to administer and enforce the provisions of this | ||||||
14 | Act.
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15 | Section 99. Effective date. This Act takes effect July 1, | ||||||
16 | 2024.".
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