Bill Text: IL HB2649 | 2013-2014 | 98th General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends the Employee Classification Act. Includes an individual within the scope of the term "contractor". Provides for notice to an employer of violations and penalties and for a time within which an employer may request a hearing; provides for a formal administrative hearing. Makes changes concerning responsibilities of the Attorney General and the recovery of penalties. Includes discipline within acts prohibited as retaliation against a person for exercising rights under the Act, and adds provisions concerning review, an investigation, and a formal hearing. Provides for individual officers and agents of employers to be liable under the Act.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Passed) 2013-07-23 - Public Act . . . . . . . . . 98-0106 [HB2649 Detail]
Download: Illinois-2013-HB2649-Amended.html
Bill Title: Amends the Employee Classification Act. Includes an individual within the scope of the term "contractor". Provides for notice to an employer of violations and penalties and for a time within which an employer may request a hearing; provides for a formal administrative hearing. Makes changes concerning responsibilities of the Attorney General and the recovery of penalties. Includes discipline within acts prohibited as retaliation against a person for exercising rights under the Act, and adds provisions concerning review, an investigation, and a formal hearing. Provides for individual officers and agents of employers to be liable under the Act.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Passed) 2013-07-23 - Public Act . . . . . . . . . 98-0106 [HB2649 Detail]
Download: Illinois-2013-HB2649-Amended.html
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1 | AMENDMENT TO HOUSE BILL 2649
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2 | AMENDMENT NO. ______. Amend House Bill 2649 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Employee Classification Act is amended by | ||||||
5 | changing Sections 5, 25, 30, and 40 and by adding Section 63 as | ||||||
6 | follows:
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7 | (820 ILCS 185/5)
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8 | Sec. 5. Definitions. As used in this Act: | ||||||
9 | "Construction" means any constructing, altering, | ||||||
10 | reconstructing, repairing, rehabilitating, refinishing, | ||||||
11 | refurbishing, remodeling, remediating, renovating, custom | ||||||
12 | fabricating, maintenance, landscaping, improving, wrecking, | ||||||
13 | painting, decorating, demolishing, and adding to or | ||||||
14 | subtracting from any building, structure, highway, roadway, | ||||||
15 | street, bridge, alley, sewer, ditch, sewage disposal plant, | ||||||
16 | water works, parking facility, railroad, excavation or other |
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1 | structure, project, development, real property or improvement, | ||||||
2 | or to do any part thereof, whether or not the performance of | ||||||
3 | the work herein described involves the addition to, or | ||||||
4 | fabrication into, any structure, project, development, real | ||||||
5 | property or improvement herein described of any material or | ||||||
6 | article of merchandise. Construction shall also include moving | ||||||
7 | construction related materials on the job site to or from the | ||||||
8 | job site.
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9 | "Contractor" means any individual, sole proprietor, | ||||||
10 | partnership, firm, corporation, limited liability company, | ||||||
11 | association or other legal entity permitted by law to do | ||||||
12 | business within the State of Illinois who engages in | ||||||
13 | construction as defined in this Act. | ||||||
14 | "Contractor" includes a general contractor and a | ||||||
15 | subcontractor.
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16 | "Department" means the Department of Labor.
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17 | "Director" means the Director of the Department of Labor.
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18 | "Employer" means any contractor that employs individuals | ||||||
19 | deemed employees under Section 10 of this Act; however, | ||||||
20 | "employer" does not include (i) the State of Illinois or its | ||||||
21 | officers, agencies, or political subdivisions or (ii) the | ||||||
22 | federal government.
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23 | "Entity" means any contractor for which an individual is | ||||||
24 | performing services and is not classified as an employee under | ||||||
25 | Section 10 of this Act; however, "entity" does not include (i) | ||||||
26 | the State of Illinois or its officers, agencies, or political |
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1 | subdivisions or (ii) the federal government.
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2 | "Interested party" means a person with an interest in | ||||||
3 | compliance with this Act. | ||||||
4 | "Performing services" means the performance of any | ||||||
5 | constructing, altering, reconstructing, repairing, | ||||||
6 | rehabilitating, refinishing, refurbishing, remodeling, | ||||||
7 | remediating, renovating, custom fabricating, maintenance, | ||||||
8 | landscaping, improving, wrecking, painting, decorating, | ||||||
9 | demolishing, and adding to or subtracting from any building, | ||||||
10 | structure, highway, roadway, street, bridge, alley, sewer, | ||||||
11 | ditch, sewage disposal plant, water works, parking facility, | ||||||
12 | railroad, excavation or other structure, project, development, | ||||||
13 | real property or improvement, or to do any part thereof, | ||||||
14 | whether or not the performance of the work herein described | ||||||
15 | involves the addition to, or fabrication into, any structure, | ||||||
16 | project, development, real property or improvement herein | ||||||
17 | described of any material or article of merchandise. | ||||||
18 | Construction shall also include moving construction related | ||||||
19 | materials on the job site to or from the job site.
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20 | (Source: P.A. 95-26, eff. 1-1-08.)
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21 | (820 ILCS 185/25)
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22 | Sec. 25. Enforcement. | ||||||
23 | (a) Any interested party may file a complaint with the | ||||||
24 | Department against an entity or employer covered under this Act | ||||||
25 | if there is a reasonable belief that the entity or employer is |
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1 | in violation of this Act. It shall be the duty of the | ||||||
2 | Department to enforce the provisions of this Act. The | ||||||
3 | Department shall have the power to conduct investigations in | ||||||
4 | connection with the administration and enforcement of this Act | ||||||
5 | and any investigator with the Department shall be authorized to | ||||||
6 | visit and inspect, at all reasonable times, any places covered | ||||||
7 | by this Act and shall be authorized to inspect, at all | ||||||
8 | reasonable times, documents related to the determination of | ||||||
9 | whether an individual is an employee under Section 10 of this | ||||||
10 | Act. The Director of Labor or his or her representative may | ||||||
11 | compel, by subpoena, the attendance and testimony of witnesses | ||||||
12 | and the production of books, payrolls, records, papers, and | ||||||
13 | other evidence in any investigation and may administer oaths to | ||||||
14 | witnesses.
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15 | (b) Whenever the Department believes upon investigation | ||||||
16 | that there has been a violation of any of the provisions of | ||||||
17 | this Act or any rules or regulations promulgated under this | ||||||
18 | Act, the Department may: (i) issue and cause to be served on | ||||||
19 | any party an order to cease and desist from further violation | ||||||
20 | of the Act, (ii) take affirmative or other action as deemed | ||||||
21 | reasonable to eliminate the effect of the violation, (iii) | ||||||
22 | collect the amount of any wages, salary, employment benefits, | ||||||
23 | or other compensation denied or lost to the individual, and | ||||||
24 | (iv) assess any civil penalty allowed by this Act. The civil | ||||||
25 | penalties assessed by the Department as well as any other | ||||||
26 | relief requested by the Department shall be recoverable in an |
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1 | action brought in the name of the people of the State of | ||||||
2 | Illinois by the Attorney General.
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3 | (c) If, upon investigation, the Department finds cause to | ||||||
4 | believe that Section 20 or Section 55 of this Act has been | ||||||
5 | violated, the Department shall notify the employer, in writing, | ||||||
6 | of its finding and any proposed relief due and penalties | ||||||
7 | assessed and that the matter will be referred to an | ||||||
8 | Administrative Law Judge to schedule a formal hearing in | ||||||
9 | accordance with the Illinois Administrative Procedure Act. | ||||||
10 | (d) The employer has 14 calendar days from the date of the | ||||||
11 | Department's finding to answer the allegations contained in the | ||||||
12 | Department's finding. If an employer fails to answer or fails | ||||||
13 | to answer all allegations contained in the Department's | ||||||
14 | finding, any unanswered allegations and findings shall be | ||||||
15 | deemed to be admitted to be true and shall be so found in the | ||||||
16 | final decision issued by the Administrative Law Judge. | ||||||
17 | (e) A final decision of an Administrative Law Judge issued | ||||||
18 | pursuant to this Section is subject to the provisions of the | ||||||
19 | Administrative Review Law and shall be enforceable in an action | ||||||
20 | brought in the name of the people of the State of Illinois by | ||||||
21 | the Attorney General. | ||||||
22 | (f) The Department shall have the authority to adopt | ||||||
23 | reasonable rules for the hearing process. The General Assembly | ||||||
24 | finds that the adoption of rules to implement this Section is | ||||||
25 | deemed an emergency and necessary for the public interest and | ||||||
26 | welfare. |
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1 | (Source: P.A. 95-26, eff. 1-1-08.)
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2 | (820 ILCS 185/30)
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3 | Sec. 30. Attorney General; State's Attorneys. Criminal | ||||||
4 | violations of this Act shall be prosecuted by the Attorney | ||||||
5 | General or the appropriate State's Attorney. The Department | ||||||
6 | shall refer matters to the Attorney General and the appropriate | ||||||
7 | State's Attorney upon determining that a criminal violation may | ||||||
8 | have occurred. In all other proceedings the Department shall be | ||||||
9 | represented by the Attorney General's Office.
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10 | (Source: P.A. 95-26, eff. 1-1-08.)
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11 | (820 ILCS 185/40)
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12 | Sec. 40. Penalties. | ||||||
13 | (a) An employer or entity that violates any of the | ||||||
14 | provisions of this Act or any rule adopted under this Act shall | ||||||
15 | be subject to a civil penalty not to exceed $1,500 for each | ||||||
16 | violation found in the first audit by the Department. Following | ||||||
17 | a first audit, an employer or entity shall be subject to a | ||||||
18 | civil penalty not to exceed $2,500 for each repeat violation | ||||||
19 | found by the Department within a 5 year period. For purposes of | ||||||
20 | this Section, each violation of this Act for each person and | ||||||
21 | for each day the violation continues shall constitute a | ||||||
22 | separate and distinct violation. In determining the amount of a | ||||||
23 | penalty, the Director shall consider the appropriateness of the | ||||||
24 | penalty to the employer or entity charged, upon the |
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1 | determination of the gravity of the violations. | ||||||
2 | (b) The amount of the penalty, when finally determined, may | ||||||
3 | be recovered in any administrative proceeding or a civil action | ||||||
4 | filed in any circuit court by the Director of Labor, or a | ||||||
5 | person aggrieved by a violation of this Act or any rule adopted | ||||||
6 | under this Act. | ||||||
7 | (1) The Department shall distribute to all affected | ||||||
8 | employees 10% of the civil penalty recovered as a result of | ||||||
9 | any administrative proceeding or civil action brought by | ||||||
10 | the Department. The remaining 90% of the amount recovered | ||||||
11 | shall be submitted to the Director of Labor. | ||||||
12 | (2) In any civil action brought by an interested party | ||||||
13 | pursuant to this Section, the circuit court shall award the | ||||||
14 | interested party 10% of the amount recovered. In such case, | ||||||
15 | the remaining amount recovered shall be submitted to the | ||||||
16 | Director of Labor. | ||||||
17 | (c) Any uncollected amount shall be subject to the | ||||||
18 | provisions of the Illinois State Collection Act of 1986.
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19 | (Source: P.A. 95-26, eff. 1-1-08.)
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20 | (820 ILCS 185/63 new) | ||||||
21 | Sec. 63. Individual liability. In addition to an individual | ||||||
22 | who is an employer pursuant to Section 5 of this Act, any | ||||||
23 | officer of a corporation or agent of an employer who knowingly | ||||||
24 | permits such employer to violate the provisions of this Act may | ||||||
25 | be held individually liable for all violations and penalties |
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1 | assessed by the Department. ".
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