Bill Text: IL HB1579 | 2013-2014 | 98th General Assembly | Introduced

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Bill Title: Amends provisions of the Workers' Compensation Act authorizing the issuance of a citation to an employer that is not in compliance with its obligation to have workers' compensation insurance and the imposition of a fine to be paid by the employer to the Commission. Provides that, if the Commission determines that the employer was in compliance with its obligation at the time the citation was issued, the Commission shall refund the amount of the fine to the employer within 10 days.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2014-12-03 - Session Sine Die [HB1579 Detail]

Download: Illinois-2013-HB1579-Introduced.html

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98TH GENERAL ASSEMBLY State of Illinois 2013 and 2014 HB1579 Introduced , by Rep. David Reis SYNOPSIS AS INTRODUCED:
820 ILCS 305/4 from Ch. 48, par. 138.4
Amends provisions of the Workers' Compensation Act authorizing the issuance of a citation to an employer that is not in compliance with its obligation to have workers' compensation insurance and the imposition of a fine to be paid by the employer to the Commission. Provides that, if the Commission determines that the employer was in compliance with its obligation at the time the citation was issued, the Commission shall refund the amount of the fine to the employer within 10 days.
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A BILL FOR
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AN ACT concerning employment.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Workers' Compensation Act is amended by
changing Section 4 as follows:
(820 ILCS 305/4) (from Ch. 48, par. 138.4)
Sec. 4. (a) Any employer, including but not limited to
general contractors and their subcontractors, who shall come
within the provisions of Section 3 of this Act, and any other
employer who shall elect to provide and pay the compensation
provided for in this Act shall:
(1) File with the Commission annually an application
for approval as a self-insurer which shall include a
current financial statement, and annually, thereafter, an
application for renewal of self-insurance, which shall
include a current financial statement. Said application
and financial statement shall be signed and sworn to by the
president or vice president and secretary or assistant
secretary of the employer if it be a corporation, or by all
of the partners, if it be a copartnership, or by the owner
if it be neither a copartnership nor a corporation. All
initial applications and all applications for renewal of
self-insurance must be submitted at least 60 days prior to

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the requested effective date of self-insurance. An
employer may elect to provide and pay compensation as
provided for in this Act as a member of a group workers'
compensation pool under Article V 3/4 of the Illinois
Insurance Code. If an employer becomes a member of a group
workers' compensation pool, the employer shall not be
relieved of any obligations imposed by this Act.
If the sworn application and financial statement of any
such employer does not satisfy the Commission of the
financial ability of the employer who has filed it, the
Commission shall require such employer to,
(2) Furnish security, indemnity or a bond guaranteeing
the payment by the employer of the compensation provided
for in this Act, provided that any such employer whose
application and financial statement shall not have
satisfied the commission of his or her financial ability
and who shall have secured his liability in part by excess
liability insurance shall be required to furnish to the
Commission security, indemnity or bond guaranteeing his or
her payment up to the effective limits of the excess
coverage, or
(3) Insure his entire liability to pay such
compensation in some insurance carrier authorized,
licensed, or permitted to do such insurance business in
this State. Every policy of an insurance carrier, insuring
the payment of compensation under this Act shall cover all

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the employees and the entire compensation liability of the
insured: Provided, however, that any employer may insure
his or her compensation liability with 2 or more insurance
carriers or may insure a part and qualify under subsection
1, 2, or 4 for the remainder of his or her liability to pay
such compensation, subject to the following two
provisions:
Firstly, the entire compensation liability of the
employer to employees working at or from one location
shall be insured in one such insurance carrier or shall
be self-insured, and
Secondly, the employer shall submit evidence
satisfactorily to the Commission that his or her entire
liability for the compensation provided for in this Act
will be secured. Any provisions in any policy, or in
any endorsement attached thereto, attempting to limit
or modify in any way, the liability of the insurance
carriers issuing the same except as otherwise provided
herein shall be wholly void.
Nothing herein contained shall apply to policies of
excess liability carriage secured by employers who have
been approved by the Commission as self-insurers, or
(4) Make some other provision, satisfactory to the
Commission, for the securing of the payment of compensation
provided for in this Act, and
(5) Upon becoming subject to this Act and thereafter as

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often as the Commission may in writing demand, file with
the Commission in form prescribed by it evidence of his or
her compliance with the provision of this Section.
(a-1) Regardless of its state of domicile or its principal
place of business, an employer shall make payments to its
insurance carrier or group self-insurance fund, where
applicable, based upon the premium rates of the situs where the
work or project is located in Illinois if:
(A) the employer is engaged primarily in the building
and construction industry; and
(B) subdivision (a)(3) of this Section applies to the
employer or the employer is a member of a group
self-insurance plan as defined in subsection (1) of Section
4a.
The Illinois Workers' Compensation Commission shall impose
a penalty upon an employer for violation of this subsection
(a-1) if:
(i) the employer is given an opportunity at a hearing
to present evidence of its compliance with this subsection
(a-1); and
(ii) after the hearing, the Commission finds that the
employer failed to make payments upon the premium rates of
the situs where the work or project is located in Illinois.
The penalty shall not exceed $1,000 for each day of work
for which the employer failed to make payments upon the premium
rates of the situs where the work or project is located in

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Illinois, but the total penalty shall not exceed $50,000 for
each project or each contract under which the work was
performed.
Any penalty under this subsection (a-1) must be imposed not
later than one year after the expiration of the applicable
limitation period specified in subsection (d) of Section 6 of
this Act. Penalties imposed under this subsection (a-1) shall
be deposited into the Illinois Workers' Compensation
Commission Operations Fund, a special fund that is created in
the State treasury. Subject to appropriation, moneys in the
Fund shall be used solely for the operations of the Illinois
Workers' Compensation Commission and by the Department of
Insurance for the purposes authorized in subsection (c) of
Section 25.5 of this Act.
(a-2) Every Employee Leasing Company (ELC), as defined in
Section 15 of the Employee Leasing Company Act, shall at a
minimum provide the following information to the Commission or
any entity designated by the Commission regarding each workers'
compensation insurance policy issued to the ELC:
(1) Any client company of the ELC listed as an
additional named insured.
(2) Any informational schedule attached to the master
policy that identifies any individual client company's
name, FEIN, and job location.
(3) Any certificate of insurance coverage document
issued to a client company specifying its rights and

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obligations under the master policy that establishes both
the identity and status of the client, as well as the dates
of inception and termination of coverage, if applicable.
(b) The sworn application and financial statement, or
security, indemnity or bond, or amount of insurance, or other
provisions, filed, furnished, carried, or made by the employer,
as the case may be, shall be subject to the approval of the
Commission.
Deposits under escrow agreements shall be cash, negotiable
United States government bonds or negotiable general
obligation bonds of the State of Illinois. Such cash or bonds
shall be deposited in escrow with any State or National Bank or
Trust Company having trust authority in the State of Illinois.
Upon the approval of the sworn application and financial
statement, security, indemnity or bond or amount of insurance,
filed, furnished or carried, as the case may be, the Commission
shall send to the employer written notice of its approval
thereof. The certificate of compliance by the employer with the
provisions of subparagraphs (2) and (3) of paragraph (a) of
this Section shall be delivered by the insurance carrier to the
Illinois Workers' Compensation Commission within five days
after the effective date of the policy so certified. The
insurance so certified shall cover all compensation liability
occurring during the time that the insurance is in effect and
no further certificate need be filed in case such insurance is
renewed, extended or otherwise continued by such carrier. The

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insurance so certified shall not be cancelled or in the event
that such insurance is not renewed, extended or otherwise
continued, such insurance shall not be terminated until at
least 10 days after receipt by the Illinois Workers'
Compensation Commission of notice of the cancellation or
termination of said insurance; provided, however, that if the
employer has secured insurance from another insurance carrier,
or has otherwise secured the payment of compensation in
accordance with this Section, and such insurance or other
security becomes effective prior to the expiration of the 10
days, cancellation or termination may, at the option of the
insurance carrier indicated in such notice, be effective as of
the effective date of such other insurance or security.
(c) Whenever the Commission shall find that any
corporation, company, association, aggregation of individuals,
reciprocal or interinsurers exchange, or other insurer
effecting workers' compensation insurance in this State shall
be insolvent, financially unsound, or unable to fully meet all
payments and liabilities assumed or to be assumed for
compensation insurance in this State, or shall practice a
policy of delay or unfairness toward employees in the
adjustment, settlement, or payment of benefits due such
employees, the Commission may after reasonable notice and
hearing order and direct that such corporation, company,
association, aggregation of individuals, reciprocal or
interinsurers exchange, or insurer, shall from and after a date

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fixed in such order discontinue the writing of any such
workers' compensation insurance in this State. Subject to such
modification of the order as the Commission may later make on
review of the order, as herein provided, it shall thereupon be
unlawful for any such corporation, company, association,
aggregation of individuals, reciprocal or interinsurers
exchange, or insurer to effect any workers' compensation
insurance in this State. A copy of the order shall be served
upon the Director of Insurance by registered mail. Whenever the
Commission finds that any service or adjustment company used or
employed by a self-insured employer or by an insurance carrier
to process, adjust, investigate, compromise or otherwise
handle claims under this Act, has practiced or is practicing a
policy of delay or unfairness toward employees in the
adjustment, settlement or payment of benefits due such
employees, the Commission may after reasonable notice and
hearing order and direct that such service or adjustment
company shall from and after a date fixed in such order be
prohibited from processing, adjusting, investigating,
compromising or otherwise handling claims under this Act.
Whenever the Commission finds that any self-insured
employer has practiced or is practicing delay or unfairness
toward employees in the adjustment, settlement or payment of
benefits due such employees, the Commission may, after
reasonable notice and hearing, order and direct that after a
date fixed in the order such self-insured employer shall be

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disqualified to operate as a self-insurer and shall be required
to insure his entire liability to pay compensation in some
insurance carrier authorized, licensed and permitted to do such
insurance business in this State, as provided in subparagraph 3
of paragraph (a) of this Section.
All orders made by the Commission under this Section shall
be subject to review by the courts, said review to be taken in
the same manner and within the same time as provided by Section
19 of this Act for review of awards and decisions of the
Commission, upon the party seeking the review filing with the
clerk of the court to which said review is taken a bond in an
amount to be fixed and approved by the court to which the
review is taken, conditioned upon the payment of all
compensation awarded against the person taking said review
pending a decision thereof and further conditioned upon such
other obligations as the court may impose. Upon the review the
Circuit Court shall have power to review all questions of fact
as well as of law. The penalty hereinafter provided for in this
paragraph shall not attach and shall not begin to run until the
final determination of the order of the Commission.
(d) Whenever a panel of 3 Commissioners comprised of one
member of the employing class, one member of the employee
class, and one member not identified with either the employing
or employee class, with due process and after a hearing,
determines an employer has knowingly failed to provide coverage
as required by paragraph (a) of this Section, the failure shall

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be deemed an immediate serious danger to public health, safety,
and welfare sufficient to justify service by the Commission of
a work-stop order on such employer, requiring the cessation of
all business operations of such employer at the place of
employment or job site. Any law enforcement agency in the State
shall, at the request of the Commission, render any assistance
necessary to carry out the provisions of this Section,
including, but not limited to, preventing any employee of such
employer from remaining at a place of employment or job site
after a work-stop order has taken effect. Any work-stop order
shall be lifted upon proof of insurance as required by this
Act. Any orders under this Section are appealable under Section
19(f) to the Circuit Court.
Any individual employer, corporate officer or director of a
corporate employer, partner of an employer partnership, or
member of an employer limited liability company who knowingly
fails to provide coverage as required by paragraph (a) of this
Section is guilty of a Class 4 felony. This provision shall not
apply to any corporate officer or director of any
publicly-owned corporation. Each day's violation constitutes a
separate offense. The State's Attorney of the county in which
the violation occurred, or the Attorney General, shall bring
such actions in the name of the People of the State of
Illinois, or may, in addition to other remedies provided in
this Section, bring an action for an injunction to restrain the
violation or to enjoin the operation of any such employer.

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Any individual employer, corporate officer or director of a
corporate employer, partner of an employer partnership, or
member of an employer limited liability company who negligently
fails to provide coverage as required by paragraph (a) of this
Section is guilty of a Class A misdemeanor. This provision
shall not apply to any corporate officer or director of any
publicly-owned corporation. Each day's violation constitutes a
separate offense. The State's Attorney of the county in which
the violation occurred, or the Attorney General, shall bring
such actions in the name of the People of the State of
Illinois.
The criminal penalties in this subsection (d) shall not
apply where there exists a good faith dispute as to the
existence of an employment relationship. Evidence of good faith
shall include, but not be limited to, compliance with the
definition of employee as used by the Internal Revenue Service.
Employers who are subject to and who knowingly fail to
comply with this Section shall not be entitled to the benefits
of this Act during the period of noncompliance, but shall be
liable in an action under any other applicable law of this
State. In the action, such employer shall not avail himself or
herself of the defenses of assumption of risk or negligence or
that the injury was due to a co-employee. In the action, proof
of the injury shall constitute prima facie evidence of
negligence on the part of such employer and the burden shall be
on such employer to show freedom of negligence resulting in the

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injury. The employer shall not join any other defendant in any
such civil action. Nothing in this amendatory Act of the 94th
General Assembly shall affect the employee's rights under
subdivision (a)3 of Section 1 of this Act. Any employer or
carrier who makes payments under subdivision (a)3 of Section 1
of this Act shall have a right of reimbursement from the
proceeds of any recovery under this Section.
An employee of an uninsured employer, or the employee's
dependents in case death ensued, may, instead of proceeding
against the employer in a civil action in court, file an
application for adjustment of claim with the Commission in
accordance with the provisions of this Act and the Commission
shall hear and determine the application for adjustment of
claim in the manner in which other claims are heard and
determined before the Commission.
All proceedings under this subsection (d) shall be reported
on an annual basis to the Workers' Compensation Advisory Board.
An investigator with the Illinois Workers' Compensation
Commission Insurance Compliance Division may issue a citation
to any employer that is not in compliance with its obligation
to have workers' compensation insurance under this Act. The
amount of the fine shall be based on the period of time the
employer was in non-compliance, but shall be no less than $500,
and shall not exceed $2,500. An employer that has been issued a
citation shall pay the fine to the Commission and provide to
the Commission proof that it obtained the required workers'

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compensation insurance within 10 days after the citation was
issued. If the Commission determines that the employer was in
compliance with its obligation to have workers' compensation
insurance under this Act at the time the citation was issued,
then the Commission shall refund the amount of the fine to the
employer within 10 days. This Section does not affect any other
obligations this Act imposes on employers.
Upon a finding by the Commission, after reasonable notice
and hearing, of the knowing and wilful failure or refusal of an
employer to comply with any of the provisions of paragraph (a)
of this Section, the failure or refusal of an employer, service
or adjustment company, or an insurance carrier to comply with
any order of the Illinois Workers' Compensation Commission
pursuant to paragraph (c) of this Section disqualifying him or
her to operate as a self insurer and requiring him or her to
insure his or her liability, or the knowing and willful failure
of an employer to comply with a citation issued by an
investigator with the Illinois Workers' Compensation
Commission Insurance Compliance Division, the Commission may
assess a civil penalty of up to $500 per day for each day of
such failure or refusal after the effective date of this
amendatory Act of 1989. The minimum penalty under this Section
shall be the sum of $10,000. Each day of such failure or
refusal shall constitute a separate offense. The Commission may
assess the civil penalty personally and individually against
the corporate officers and directors of a corporate employer,

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the partners of an employer partnership, and the members of an
employer limited liability company, after a finding of a
knowing and willful refusal or failure of each such named
corporate officer, director, partner, or member to comply with
this Section. The liability for the assessed penalty shall be
against the named employer first, and if the named employer
fails or refuses to pay the penalty to the Commission within 30
days after the final order of the Commission, then the named
corporate officers, directors, partners, or members who have
been found to have knowingly and willfully refused or failed to
comply with this Section shall be liable for the unpaid penalty
or any unpaid portion of the penalty. Upon investigation by the
insurance non-compliance unit of the Commission, the Attorney
General shall have the authority to prosecute all proceedings
to enforce the civil and administrative provisions of this
Section before the Commission. The Commission shall promulgate
procedural rules for enforcing this Section.
Upon the failure or refusal of any employer, service or
adjustment company or insurance carrier to comply with the
provisions of this Section and with the orders of the
Commission under this Section, or the order of the court on
review after final adjudication, the Commission may bring a
civil action to recover the amount of the penalty in Cook
County or in Sangamon County in which litigation the Commission
shall be represented by the Attorney General. The Commission
shall send notice of its finding of non-compliance and

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assessment of the civil penalty to the Attorney General. It
shall be the duty of the Attorney General within 30 days after
receipt of the notice, to institute prosecutions and promptly
prosecute all reported violations of this Section.
Any individual employer, corporate officer or director of a
corporate employer, partner of an employer partnership, or
member of an employer limited liability company who, with the
intent to avoid payment of compensation under this Act to an
injured employee or the employee's dependents, knowingly
transfers, sells, encumbers, assigns, or in any manner disposes
of, conceals, secretes, or destroys any property belonging to
the employer, officer, director, partner, or member is guilty
of a Class 4 felony.
Penalties and fines collected pursuant to this paragraph
(d) shall be deposited upon receipt into a special fund which
shall be designated the Injured Workers' Benefit Fund, of which
the State Treasurer is ex-officio custodian, such special fund
to be held and disbursed in accordance with this paragraph (d)
for the purposes hereinafter stated in this paragraph (d), upon
the final order of the Commission. The Injured Workers' Benefit
Fund shall be deposited the same as are State funds and any
interest accruing thereon shall be added thereto every 6
months. The Injured Workers' Benefit Fund is subject to audit
the same as State funds and accounts and is protected by the
general bond given by the State Treasurer. The Injured Workers'
Benefit Fund is considered always appropriated for the purposes

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of disbursements as provided in this paragraph, and shall be
paid out and disbursed as herein provided and shall not at any
time be appropriated or diverted to any other use or purpose.
Moneys in the Injured Workers' Benefit Fund shall be used only
for payment of workers' compensation benefits for injured
employees when the employer has failed to provide coverage as
determined under this paragraph (d) and has failed to pay the
benefits due to the injured employee. The Commission shall have
the right to obtain reimbursement from the employer for
compensation obligations paid by the Injured Workers' Benefit
Fund. Any such amounts obtained shall be deposited by the
Commission into the Injured Workers' Benefit Fund. If an
injured employee or his or her personal representative receives
payment from the Injured Workers' Benefit Fund, the State of
Illinois has the same rights under paragraph (b) of Section 5
that the employer who failed to pay the benefits due to the
injured employee would have had if the employer had paid those
benefits, and any moneys recovered by the State as a result of
the State's exercise of its rights under paragraph (b) of
Section 5 shall be deposited into the Injured Workers' Benefit
Fund. The custodian of the Injured Workers' Benefit Fund shall
be joined with the employer as a party respondent in the
application for adjustment of claim. After July 1, 2006, the
Commission shall make disbursements from the Fund once each
year to each eligible claimant. An eligible claimant is an
injured worker who has within the previous fiscal year obtained

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a final award for benefits from the Commission against the
employer and the Injured Workers' Benefit Fund and has notified
the Commission within 90 days of receipt of such award. Within
a reasonable time after the end of each fiscal year, the
Commission shall make a disbursement to each eligible claimant.
At the time of disbursement, if there are insufficient moneys
in the Fund to pay all claims, each eligible claimant shall
receive a pro-rata share, as determined by the Commission, of
the available moneys in the Fund for that year. Payment from
the Injured Workers' Benefit Fund to an eligible claimant
pursuant to this provision shall discharge the obligations of
the Injured Workers' Benefit Fund regarding the award entered
by the Commission.
(e) This Act shall not affect or disturb the continuance of
any existing insurance, mutual aid, benefit, or relief
association or department, whether maintained in whole or in
part by the employer or whether maintained by the employees,
the payment of benefits of such association or department being
guaranteed by the employer or by some person, firm or
corporation for him or her: Provided, the employer contributes
to such association or department an amount not less than the
full compensation herein provided, exclusive of the cost of the
maintenance of such association or department and without any
expense to the employee. This Act shall not prevent the
organization and maintaining under the insurance laws of this
State of any benefit or insurance company for the purpose of

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insuring against the compensation provided for in this Act, the
expense of which is maintained by the employer. This Act shall
not prevent the organization or maintaining under the insurance
laws of this State of any voluntary mutual aid, benefit or
relief association among employees for the payment of
additional accident or sick benefits.
(f) No existing insurance, mutual aid, benefit or relief
association or department shall, by reason of anything herein
contained, be authorized to discontinue its operation without
first discharging its obligations to any and all persons
carrying insurance in the same or entitled to relief or
benefits therein.
(g) Any contract, oral, written or implied, of employment
providing for relief benefit, or insurance or any other device
whereby the employee is required to pay any premium or premiums
for insurance against the compensation provided for in this Act
shall be null and void. Any employer withholding from the wages
of any employee any amount for the purpose of paying any such
premium shall be guilty of a Class B misdemeanor.
In the event the employer does not pay the compensation for
which he or she is liable, then an insurance company,
association or insurer which may have insured such employer
against such liability shall become primarily liable to pay to
the employee, his or her personal representative or beneficiary
the compensation required by the provisions of this Act to be
paid by such employer. The insurance carrier may be made a

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party to the proceedings in which the employer is a party and
an award may be entered jointly against the employer and the
insurance carrier.
(h) It shall be unlawful for any employer, insurance
company or service or adjustment company to interfere with,
restrain or coerce an employee in any manner whatsoever in the
exercise of the rights or remedies granted to him or her by
this Act or to discriminate, attempt to discriminate, or
threaten to discriminate against an employee in any way because
of his or her exercise of the rights or remedies granted to him
or her by this Act.
It shall be unlawful for any employer, individually or
through any insurance company or service or adjustment company,
to discharge or to threaten to discharge, or to refuse to
rehire or recall to active service in a suitable capacity an
employee because of the exercise of his or her rights or
remedies granted to him or her by this Act.
(i) If an employer elects to obtain a life insurance policy
on his employees, he may also elect to apply such benefits in
satisfaction of all or a portion of the death benefits payable
under this Act, in which case, the employer's compensation
premium shall be reduced accordingly.
(j) Within 45 days of receipt of an initial application or
application to renew self-insurance privileges the
Self-Insurers Advisory Board shall review and submit for
approval by the Chairman of the Commission recommendations of

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disposition of all initial applications to self-insure and all
applications to renew self-insurance privileges filed by
private self-insurers pursuant to the provisions of this
Section and Section 4a-9 of this Act. Each private self-insurer
shall submit with its initial and renewal applications the
application fee required by Section 4a-4 of this Act.
The Chairman of the Commission shall promptly act upon all
initial applications and applications for renewal in full
accordance with the recommendations of the Board or, should the
Chairman disagree with any recommendation of disposition of the
Self-Insurer's Advisory Board, he shall within 30 days of
receipt of such recommendation provide to the Board in writing
the reasons supporting his decision. The Chairman shall also
promptly notify the employer of his decision within 15 days of
receipt of the recommendation of the Board.
If an employer is denied a renewal of self-insurance
privileges pursuant to application it shall retain said
privilege for 120 days after receipt of a notice of
cancellation of the privilege from the Chairman of the
Commission.
All orders made by the Chairman under this Section shall be
subject to review by the courts, such review to be taken in the
same manner and within the same time as provided by subsection
(f) of Section 19 of this Act for review of awards and
decisions of the Commission, upon the party seeking the review
filing with the clerk of the court to which such review is

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taken a bond in an amount to be fixed and approved by the court
to which the review is taken, conditioned upon the payment of
all compensation awarded against the person taking such review
pending a decision thereof and further conditioned upon such
other obligations as the court may impose. Upon the review the
Circuit Court shall have power to review all questions of fact
as well as of law.
(Source: P.A. 97-18, eff. 6-28-11.)