Bill Text: IL SB1851 | 2011-2012 | 97th General Assembly | Introduced

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Bill Title: Amends the Employee Classification Act. Provides that the term "employment" does not include services performed by an individual as an operator of a truck, truck-tractor, or tractor if certain specified conditions are met. Provides that an individual performing services for a contractor is deemed to be an employee of the employer, unless the contractor is a truck owner-operator as defined in the Act.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-01-08 - Session Sine Die [SB1851 Detail]

Download: Illinois-2011-SB1851-Introduced.html

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97TH GENERAL ASSEMBLY State of Illinois 2011 and 2012 SB1851 Introduced 2/9/2011, by Sen. Gary Forby SYNOPSIS AS INTRODUCED:
820 ILCS 185/5
820 ILCS 185/10
Amends the Employee Classification Act. Provides that the term "employment" does not include services performed by an individual as an operator of a truck, truck-tractor, or tractor if certain specified conditions are met. Provides that an individual performing services for a contractor is deemed to be an employee of the employer, unless the contractor is a truck owner-operator as defined in the Act.
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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 Employee Classification Act is amended by
changing Sections 5 and 10 as follows:
(820 ILCS 185/5)
Sec. 5. Definitions. As used in this Act:
"Construction" means any constructing, altering,
reconstructing, repairing, rehabilitating, refinishing,
refurbishing, remodeling, remediating, renovating, custom
fabricating, maintenance, landscaping, improving, wrecking,
painting, decorating, demolishing, and adding to or
subtracting from any building, structure, highway, roadway,
street, bridge, alley, sewer, ditch, sewage disposal plant,
water works, parking facility, railroad, excavation or other
structure, project, development, real property or improvement,
or to do any part thereof, whether or not the performance of
the work herein described involves the addition to, or
fabrication into, any structure, project, development, real
property or improvement herein described of any material or
article of merchandise. Construction shall also include moving
construction related materials on the job site to or from the
job site.

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"Contractor" means any sole proprietor, partnership, firm,
corporation, limited liability company, association or other
legal entity permitted by law to do business within the State
of Illinois who engages in construction as defined in this Act.
"Contractor" includes a general contractor and a
subcontractor.
"Department" means the Department of Labor.
"Director" means the Director of the Department of Labor.
"Employer" means any contractor that employs individuals
deemed employees under Section 10 of this Act; however,
"employer" does not include (i) the State of Illinois or its
officers, agencies, or political subdivisions or (ii) the
federal government.
"Entity" means any contractor for which an individual is
performing services and is not classified as an employee under
Section 10 of this Act; however, "entity" does not include (i)
the State of Illinois or its officers, agencies, or political
subdivisions or (ii) the federal government.
"Interested party" means a person with an interest in
compliance with this Act.
"Performing services" means the performance of any
constructing, altering, reconstructing, repairing,
rehabilitating, refinishing, refurbishing, remodeling,
remediating, renovating, custom fabricating, maintenance,
landscaping, improving, wrecking, painting, decorating,
demolishing, and adding to or subtracting from any building,

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structure, highway, roadway, street, bridge, alley, sewer,
ditch, sewage disposal plant, water works, parking facility,
railroad, excavation or other structure, project, development,
real property or improvement, or to do any part thereof,
whether or not the performance of the work herein described
involves the addition to, or fabrication into, any structure,
project, development, real property or improvement herein
described of any material or article of merchandise.
Construction shall also include moving construction related
materials on the job site to or from the job site.
"Employment" does not include services performed by an
individual as an operator of a truck, truck-tractor, or
tractor, if the person or entity to which the individual is
contracted for service shows that the individual:
(1) is either:
(i) registered or licensed as a motor carrier of
real or personal property by the Illinois Commerce
Commission, the Interstate Commerce Commission, or any
successor agencies; or
(ii) operating the equipment under an
owner-operator lease contract with the person or
entity, when the person or entity is registered,
licensed, or both, as a motor carrier of real or
personal property licensed by the Illinois Commerce
Commission, the Interstate Commerce Commission, or any
successor agencies;

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(2) has the right to terminate the lease contract and
thereafter has the right to perform the same or similar
services, on whatever basis and whenever he or she chooses,
for persons or entities other than the person or entity to
which the individual is contracted for services;
(3) is not required by the person or entity to which
the individual is contracted for services to perform
services, or be available to perform services, at specific
times or according to a schedule or for a number of hours
specified by the person or entity; pickup or delivery times
specified by a shipper or receiver shall not be deemed
specified by the person or entity;
(4) either leases the equipment or holds title to the
equipment, if the individual or entity from which the
equipment is leased, or which holds any security or other
interest in the equipment, is not:
(i) the person or entity to which the individual is
contracted for service; or
(ii) owned, controlled, or operated by or in common
with, to any extent, whether directly or indirectly,
the person or entity to which the individual is
contracted for services or a family member of a
shareholder, owner, or partner of the person or entity;
(5) pays all costs of licensing and operating the
equipment (except when federal or State law or regulation
requires the carrier to pay), and the costs are not

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separately reimbursed by any other individual or entity;
and
(6) maintains a separate business identity, offering
or advertising his or her services to the public, by
displaying its name and address on the equipment or
otherwise.
The definition of "truck owner-operator" under this
Section does not apply:
(1) if, as a condition for retaining the individual's
services, the person or entity to which the individual is
contracted specifies the person or entity from which the
equipment is to be leased or purchased; or
(2) to any services that are required to be covered as
a condition of approval of this Act by the United States
Secretary of Labor under Section 3304(a)(6)(A) of the
Federal Unemployment Tax Act.
Nothing in this definition of "truck owner-operator" shall
be construed or used to effect the existence or non-existence
of an employment relationship other than for purposes of this
Act. For purposes of this definition of "truck owner-operator":
(1) "Family member" means any parent, sibling, child,
sibling of a parent, or any of the foregoing relations by
marriage.
(2) "Ownership", "control", or "operation" may be
through any one or more natural persons or proxies, powers
of attorney, nominees, proprietorships, partnerships,

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associations, corporations, trusts, joint stock companies,
or other entities or devices, or any combination thereof.
(3) "Persons or entity" means a sole proprietorship,
partnership, association, corporation, or any other legal
entity.
(Source: P.A. 95-26, eff. 1-1-08.)
(820 ILCS 185/10)
Sec. 10. Applicability; status of individuals performing
service.
(a) For the purposes of this Act, an individual performing
services for a contractor is deemed to be an employee of the
employer except as provided in subsections (b), and (c), and
(d) of this Section.
(b) An individual performing services for a contractor is
deemed to be an employee of the contractor unless it is shown
that:
(1) the individual has been and will continue to be
free from control or direction over the performance of the
service for the contractor, both under the individual's
contract of service and in fact;
(2) the service performed by the individual is outside
the usual course of services performed by the contractor;
and
(3) the individual is engaged in an independently
established trade, occupation, profession or business; or

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(4) the individual is deemed a legitimate sole
proprietor or partnership under subsection (c) of this
Section.
(c) The sole proprietor or partnership performing services
for a contractor as a subcontractor is deemed legitimate if it
is shown that:
(1) the sole proprietor or partnership is performing
the service free from the direction or control over the
means and manner of providing the service, subject only to
the right of the contractor for whom the service is
provided to specify the desired result;
(2) the sole proprietor or partnership is not subject
to cancellation or destruction upon severance of the
relationship with the contractor;
(3) the sole proprietor or partnership has a
substantial investment of capital in the sole
proprietorship or partnership beyond ordinary tools and
equipment and a personal vehicle;
(4) the sole proprietor or partnership owns the capital
goods and gains the profits and bears the losses of the
sole proprietorship or partnership;
(5) the sole proprietor or partnership makes its
services available to the general public or the business
community on a continuing basis;
(6) the sole proprietor or partnership includes
services rendered on a Federal Income Tax Schedule as an

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independent business or profession;
(7) the sole proprietor or partnership performs
services for the contractor under the sole
proprietorship's or partnership's name;
(8) when the services being provided require a license
or permit, the sole proprietor or partnership obtains and
pays for the license or permit in the sole proprietorship's
or partnership's name;
(9) the sole proprietor or partnership furnishes the
tools and equipment necessary to provide the service;
(10) if necessary, the sole proprietor or partnership
hires its own employees without contractor approval, pays
the employees without reimbursement from the contractor
and reports the employees' income to the Internal Revenue
Service;
(11) the contractor does not represent the sole
proprietorship or partnership as an employee of the
contractor to its customers; and
(12) the sole proprietor or partnership has the right
to perform similar services for others on whatever basis
and whenever it chooses.
(d) Where a sole proprietor or partnership performing
services for a contractor as a subcontractor is deemed not
legitimate under subsection (c) of this Section, the sole
proprietorship or partnership shall be deemed an individual for
purposes of this Act. An individual performing services for a

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contractor is deemed to be an employee of the employer, unless
the contractor is a truck owner-operator as defined in Section
5 of this Act.
(e) Subcontractors or lower tiered contractors are subject
to all provisions of this Act.
(f) A contractor shall not be liable under this Act for any
subcontractor's failure to properly classify persons
performing services as employees, nor shall a subcontractor be
liable for any lower tiered subcontractor's failure to properly
classify persons performing services as employees.
(Source: P.A. 95-26, eff. 1-1-08.)