Bill Text: IL SB1660 | 2013-2014 | 98th General Assembly | Introduced

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Bill Title: Amends the Workers' Compensation Act and the Unemployment Insurance Act. Sets forth the conditions under which a person who operates a motor vehicle for a carrier of property is an independent contractor and not an employee.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2015-01-13 - Session Sine Die [SB1660 Detail]

Download: Illinois-2013-SB1660-Introduced.html

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98TH GENERAL ASSEMBLY State of Illinois 2013 and 2014 SB1660 Introduced 2/13/2013, by Sen. Gary Forby SYNOPSIS AS INTRODUCED:
820 ILCS 305/1 from Ch. 48, par. 138.1
820 ILCS 405/212.2 new
Amends the Workers' Compensation Act and the Unemployment Insurance Act. Sets forth the conditions under which a person who operates a motor vehicle for a carrier of property is an independent contractor and not an employee.
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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 1 as follows:
(820 ILCS 305/1) (from Ch. 48, par. 138.1)
Sec. 1. This Act may be cited as the Workers' Compensation
Act.
(a) The term "employer" as used in this Act means:
1. The State and each county, city, town, township,
incorporated village, school district, body politic, or
municipal corporation therein.
2. Every person, firm, public or private corporation,
including hospitals, public service, eleemosynary, religious
or charitable corporations or associations who has any person
in service or under any contract for hire, express or implied,
oral or written, and who is engaged in any of the enterprises
or businesses enumerated in Section 3 of this Act, or who at or
prior to the time of the accident to the employee for which
compensation under this Act may be claimed, has in the manner
provided in this Act elected to become subject to the
provisions of this Act, and who has not, prior to such
accident, effected a withdrawal of such election in the manner

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provided in this Act.
3. Any one engaging in any business or enterprise referred
to in subsections 1 and 2 of Section 3 of this Act who
undertakes to do any work enumerated therein, is liable to pay
compensation to his own immediate employees in accordance with
the provisions of this Act, and in addition thereto if he
directly or indirectly engages any contractor whether
principal or sub-contractor to do any such work, he is liable
to pay compensation to the employees of any such contractor or
sub-contractor unless such contractor or sub-contractor has
insured, in any company or association authorized under the
laws of this State to insure the liability to pay compensation
under this Act, or guaranteed his liability to pay such
compensation. With respect to any time limitation on the filing
of claims provided by this Act, the timely filing of a claim
against a contractor or subcontractor, as the case may be,
shall be deemed to be a timely filing with respect to all
persons upon whom liability is imposed by this paragraph.
In the event any such person pays compensation under this
subsection he may recover the amount thereof from the
contractor or sub-contractor, if any, and in the event the
contractor pays compensation under this subsection he may
recover the amount thereof from the sub-contractor, if any.
This subsection does not apply in any case where the
accident occurs elsewhere than on, in or about the immediate
premises on which the principal has contracted that the work be

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done.
4. Where an employer operating under and subject to the
provisions of this Act loans an employee to another such
employer and such loaned employee sustains a compensable
accidental injury in the employment of such borrowing employer
and where such borrowing employer does not provide or pay the
benefits or payments due such injured employee, such loaning
employer is liable to provide or pay all benefits or payments
due such employee under this Act and as to such employee the
liability of such loaning and borrowing employers is joint and
several, provided that such loaning employer is in the absence
of agreement to the contrary entitled to receive from such
borrowing employer full reimbursement for all sums paid or
incurred pursuant to this paragraph together with reasonable
attorneys' fees and expenses in any hearings before the
Illinois Workers' Compensation Commission or in any action to
secure such reimbursement. Where any benefit is provided or
paid by such loaning employer the employee has the duty of
rendering reasonable cooperation in any hearings, trials or
proceedings in the case, including such proceedings for
reimbursement.
Where an employee files an Application for Adjustment of
Claim with the Illinois Workers' Compensation Commission
alleging that his claim is covered by the provisions of the
preceding paragraph, and joining both the alleged loaning and
borrowing employers, they and each of them, upon written demand

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by the employee and within 7 days after receipt of such demand,
shall have the duty of filing with the Illinois Workers'
Compensation Commission a written admission or denial of the
allegation that the claim is covered by the provisions of the
preceding paragraph and in default of such filing or if any
such denial be ultimately determined not to have been bona fide
then the provisions of Paragraph K of Section 19 of this Act
shall apply.
An employer whose business or enterprise or a substantial
part thereof consists of hiring, procuring or furnishing
employees to or for other employers operating under and subject
to the provisions of this Act for the performance of the work
of such other employers and who pays such employees their
salary or wages notwithstanding that they are doing the work of
such other employers shall be deemed a loaning employer within
the meaning and provisions of this Section.
(b) The term "employee" as used in this Act means:
1. Every person in the service of the State, including
members of the General Assembly, members of the Commerce
Commission, members of the Illinois Workers' Compensation
Commission, and all persons in the service of the University of
Illinois, county, including deputy sheriffs and assistant
state's attorneys, city, town, township, incorporated village
or school district, body politic, or municipal corporation
therein, whether by election, under appointment or contract of
hire, express or implied, oral or written, including all

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members of the Illinois National Guard while on active duty in
the service of the State, and all probation personnel of the
Juvenile Court appointed pursuant to Article VI of the Juvenile
Court Act of 1987, and including any official of the State, any
county, city, town, township, incorporated village, school
district, body politic or municipal corporation therein except
any duly appointed member of a police department in any city
whose population exceeds 500,000 according to the last Federal
or State census, and except any member of a fire insurance
patrol maintained by a board of underwriters in this State. A
duly appointed member of a fire department in any city, the
population of which exceeds 500,000 according to the last
federal or State census, is an employee under this Act only
with respect to claims brought under paragraph (c) of Section
8.
One employed by a contractor who has contracted with the
State, or a county, city, town, township, incorporated village,
school district, body politic or municipal corporation
therein, through its representatives, is not considered as an
employee of the State, county, city, town, township,
incorporated village, school district, body politic or
municipal corporation which made the contract.
2. Every person in the service of another under any
contract of hire, express or implied, oral or written,
including persons whose employment is outside of the State of
Illinois where the contract of hire is made within the State of

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Illinois, persons whose employment results in fatal or
non-fatal injuries within the State of Illinois where the
contract of hire is made outside of the State of Illinois, and
persons whose employment is principally localized within the
State of Illinois, regardless of the place of the accident or
the place where the contract of hire was made, and including
aliens, and minors who, for the purpose of this Act are
considered the same and have the same power to contract,
receive payments and give quittances therefor, as adult
employees.
3. Every sole proprietor and every partner of a business
may elect to be covered by this Act.
An employee or his dependents under this Act who shall have
a cause of action by reason of any injury, disablement or death
arising out of and in the course of his employment may elect to
pursue his remedy in the State where injured or disabled, or in
the State where the contract of hire is made, or in the State
where the employment is principally localized.
However, any employer may elect to provide and pay
compensation to any employee other than those engaged in the
usual course of the trade, business, profession or occupation
of the employer by complying with Sections 2 and 4 of this Act.
Employees are not included within the provisions of this Act
when excluded by the laws of the United States relating to
liability of employers to their employees for personal injuries
where such laws are held to be exclusive.

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The term "employee" does not include persons performing
services as real estate broker, broker-salesman, or salesman
when such persons are paid by commission only.
The term "employee" does not include a person operating a
motor vehicle for a carrier of property if each of the
following factors is substantially present:
(1) The person makes a material investment or incurs a
material obligation related to equipment contracted to the
carrier and used in performing service.
(2) The person has direction and control in meeting and
performing contract obligations subject to conformance
with governmental dictates, lawful requirements of third
parties relative to the transport or other contractual
obligations undertaken, and any reasonable administrative
and clerical procedures needed for contract
administration.
(3) The person has the principal burden of the
operating costs and personal expenses related to contract
work.
(4) The person's compensation is based primarily o
factors related to contract work and not on the number of
hours worked and affords the person the opportunity to
realize a profit or loss based upon the relationship of
business receipts and expenditures.
(5) The person is responsible for hiring or otherwise
engaging and paying the necessary personnel to operate the

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equipment and meet any contract obligations related to it.
(6) A written contract governs the relationship and
specifies the relationship of the parties to be that of
independent contractor and not an employer-employee
relationship.
(c) "Commission" means the Industrial Commission created
by Section 5 of "The Civil Administrative Code of Illinois",
approved March 7, 1917, as amended, or the Illinois Workers'
Compensation Commission created by Section 13 of this Act.
(d) To obtain compensation under this Act, an employee
bears the burden of showing, by a preponderance of the
evidence, that he or she has sustained accidental injuries
arising out of and in the course of the employment.
(Source: P.A. 97-18, eff. 6-28-11; 97-268, eff. 8-8-11; 97-813,
eff. 7-13-12.)
Section 10. The Unemployment Insurance Act is amended by
adding Section 212.2 as follows:
(820 ILCS 405/212.2 new)
Sec. 212.2. Motor vehicle operator; independent contractor
determination.
The term "employment" does not include services performed
by a person operating a motor vehicle for a carrier of property
if each of the following factors is substantially present:
(1) The person makes a material investment or incurs a

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material obligation related to equipment contracted to the
carrier and used in performing service.
(2) The person has direction and control in meeting and
performing contract obligations subject to conformance
with governmental dictates, lawful requirements of third
parties relative to the transport or other contractual
obligations undertaken, and any reasonable administrative
and clerical procedures needed for contract
administration.
(3) The person has the principal burden of the
operating costs and personal expenses related to contract
work.
(4) The person's compensation is based primarily o
factors related to contract work and not on the number of
hours worked and affords the person the opportunity to
realize a profit or loss based upon the relationship of
business receipts and expenditures.
(5) The person is responsible for hiring or otherwise
engaging and paying the necessary personnel to operate the
equipment and meet any contract obligations related to it.
(6) A written contract governs the relationship and
specifies the relationship of the parties to be that of
independent contractor and not an employer-employee
relationship.