Bill Text: IL SB1978 | 2017-2018 | 100th General Assembly | Engrossed


Bill Title: Creates the Home Care Consumer and Worker Protection Act. Provides that an individual performing services for a private home care provider (a home services agency, home nursing agency, or internet-based business that arranges for home care services) is presumed to be an employee unless specified conditions exist; however, a sole proprietor or partnership performing services is not considered an employee of the agency or private party upon a showing that it is a legitimate subcontractor. Makes it a violation of the Act for a private home care provider not to designate an individual as an employee unless the private home care provider complies with specified provisions. Provides that an interested party may file a complaint online through the website of the Department of Labor against a private home care provider if there is a reasonable belief that the employer is in violation of the Act. Provides that the Department shall enforce the Act and may conduct investigations, obtain documentation, and subpoena books, records, and witnesses to conduct its investigations. Prohibits discharge or other retaliation for exercising rights under the Act. Contains provisions concerning violations, penalties, private rights of action, referrals, rulemaking, and other matters. Provides that moneys received by the Department under the Act shall be deposited into the Home Care Consumer and Worker Protection Fund and amends the State Finance Act to include it as a special fund in the State treasury.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Engrossed) 2017-05-31 - Final Action Deadline Extended-9(b) June 30, 2017 [SB1978 Detail]

Download: Illinois-2017-SB1978-Engrossed.html



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1 AN ACT concerning employment.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the Home
5Care Consumer and Worker Protection Act.
6 Section 5. Purpose. This Act is intended to protect
7consumers of home care services and the workers delivering
8those services by ensuring that both the consumers and the
9workers are receiving all affordable labor law protections and
10tax obligation compliances and that there is adherence to
11current licensure requirements and rules governing agencies
12employing or placing home care workers for employment.
13 Section 10. Definitions. As used in this Act:
14 "Consumer" means an individual who is the recipient of home
15care services from a home care worker.
16 "Department" means the Department of Labor.
17 "Director" means the Director of Labor.
18 "Employee" means a person who works in the service of
19another person or company under an express or implied contract
20for hire, under which the employer has the right to control the
21details of work performance for wages, salary, fee, or payment.
22 "Employer" means a person for whom an individual performs

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1or did perform any service, of whatever nature, as an employee.
2 "Home care" or "home services" means care that helps
3individuals maintain healthy and active lifestyles for as long
4as possible in the comfort of their own homes including
5assistance with daily living activities such as bathing,
6dressing, meal preparation, eating, transportation, running
7errands, and light housework. "Home care" or "home services"
8does not include services that would be required to be
9performed by an individual licensed under the Nurse Practice
10Act.
11 "Home care worker" means an individual that provides home
12services to a consumer in the consumer's personal residence.
13 "Home nursing agency" means an agency licensed under the
14Home Health, Home Services, and Home Nursing Agency Licensing
15Act that provides services directly in order to deliver skilled
16nursing and home health aide services to persons in their
17personal residences. A home nursing agency provides services
18that would be required to be performed by an individual
19licensed under the Nurse Practice Act. Workers for home nursing
20agencies are employees of the agency and the agency is
21responsible for ensuring that the workers are receiving all
22affordable labor law protections, tax obligation compliances,
23and adherence to licensure requirements and regulations.
24 "Home services agency" means an agency licensed under the
25Home Health, Home Services, and Home Nursing Agency Licensing
26Act that provides services to assist an individual in his or

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1her residence with activities of daily living, housekeeping,
2personal laundry, and companionship which is intended to enable
3that individual to remain safely and comfortably in their
4residence. Workers for home services agencies are employees of
5the agency and the agency is responsible for ensuring that the
6workers are receiving all affordable labor law protections, tax
7obligation compliances, and adherence to licensure
8requirements and regulations.
9 "Independent contractor" means an individual whose payer
10has the right to control or direct only the result of his or
11her work and not what will be done and how it will be done.
12Additional facts that provide evidence of the degree of control
13and independence can be considered when determining whether an
14individual is an employee or an independent contractor.
15 "Private home care provider" means a home services agency,
16home nursing agency, or Internet-based business that arranges
17for home care services for individuals residing in Illinois.
18 Section 15. Applicability; status of individuals
19performing service. For the purposes of this Act, an individual
20performing services for a private home care provider shall be
21presumed to be an employee unless it is shown that:
22 (1) the individual is free from control or direction
23 over the performance of the service;
24 (2) the service performed is outside the usual course
25 of services performed by the employer; and

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1 (3) the individual is engaged in an independently
2 established trade, occupation, profession or business.
3 A sole proprietor or partnership performing services,
4however, shall not be considered an employee of the agency or
5private party as long as it can be shown that the party is a
6legitimate subcontractor.
7 Section 20. Failure to properly designate or classify
8individuals performing services as employees. It is a violation
9of this Act for a private home care provider to not designate
10an individual as an employee under Section 15 of this Act
11unless the private home care provider complies with Section 15
12of this Act.
13 Section 25. Enforcement.
14 (a) Any interested party may file a complaint online
15through the Department's website against a private home care
16provider subject to this Act if there is a reasonable belief
17that the employer is in violation of this Act. It is the duty
18of the Department to enforce the provisions of this Act. The
19Department has the authority to conduct investigations and send
20investigators to visit and inspect the private home care
21provider's business locations as well as obtain any
22documentation related to the determination of whether an
23individual is an employee of the private home care provider
24under Section 15 of this Act. The Department may also subpoena

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1all books, records, and witnesses as needed to conduct its
2investigation.
3 (b) If the Department concludes that a violation of this
4Act has occurred, the Department may issue a cease and desist
5order; recommend the commencement of a civil action; collect
6any wages, salary, employment benefits, or other compensation
7denied or lost to the individual; assess civil penalties; or
8take any other reasonable action to eliminate the unlawful
9practice or remedy the effect of the violation.
10 Section 30. Retaliation. It is a violation of this Act for
11a private home care provider to discharge or otherwise
12retaliate against an individual for exercising any rights
13granted under this Act. It is a violation of this Act for a
14private home care provider to retaliate against a person for:
15 (1) making a complaint to an employer, co-worker, or
16 community organization, before a public hearing, or to a
17 State or federal agency;
18 (2) causing any proceeding to be instituted under this
19 Act;
20 (3) testifying in an investigation or proceeding under
21 this Act.
22 Section 35. Penalties.
23 (a) A private home care provider that violates any of the
24provisions of this Act or any rule adopted under this Act shall

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1be subject to a civil penalty not to exceed $1,500 for each
2violation found in the first audit by the Department. Following
3a first audit, a private home care provider shall be subject to
4a civil penalty not to exceed $2,500 for each repeat violation
5found by the Department within a 5-year period.
6 (b) For purposes of this Section, each violation of this
7Act for each person and for each day the violation continues
8shall constitute a separate and distinct violation.
9 (c) Civil penalties may be imposed and recovered by the
10Department in an administrative proceeding that complies with
11the Illinois Administrative Procedure Act or in a civil action
12brought by the Director or a person aggrieved by a violation of
13this Act or any rule adopted under this Act.
14 Section 40. Penalties recovered.
15 (a) Moneys received by the Department under this Act shall
16be deposited into the Home Care Consumer and Worker Protection
17Fund, a special fund created in the State treasury.
18 (b) Moneys in the Fund shall be used, subject to
19appropriation by the General Assembly, by the Department for
20administration, investigation, and other expenses incurred in
21carrying out its powers and duties under this Act.
22 Section 45. Willful violations.
23 (a) Whoever willfully violates any of the provisions of
24this Act or any rule adopted under this Act or whoever

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1obstructs the Director, or his or her representatives in their
2efforts to enforce the Act shall be liable for penalties up to
3double the statutory amount.
4 (b) Whoever willfully violates any of the provisions of
5this Act or any rule adopted under this Act shall be liable to
6the employee for punitive damages in an amount equal to the
7penalties assessed in subsection (a) of this Section.
8 Section 50. Private right of action.
9 (a) Any interested party or person aggrieved by a violation
10of this Act or any rule adopted under this Act may file suit
11within 3 years from the final date of performing services for
12the private home care provider. A person may file a private
13right of action without exhausting administrative remedies
14through the Department.
15 (b) A person whose rights have been violated under this Act
16by a private home care provider is entitled to collect:
17 (1) any wages, salary, employment benefits, or other
18 compensation denied or lost to the person by reason of the
19 violation, plus an equal amount in liquidated damages;
20 (2) compensatory damages and an amount up to $500 for
21 each violation of this Act or any rule adopted under this
22 Act;
23 (3) in the case of unlawful retaliation, all legal or
24 equitable relief as may be appropriate; and
25 (4) attorney's fees and costs.

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1 Section 55. Referral to other State agencies.
2 (a) If the Department determines that a private home care
3provider has violated this Act by failing to classify
4individuals performing services as employees, the Department
5must notify the following state authorities:
6 (1) Department of Employment Security;
7 (2) Department of Public Health;
8 (3) Department of Revenue;
9 (4) Office of the State Comptroller; and
10 (5) Illinois Workers' Compensation Commission.
11 (b) The notified State agency shall check such private home
12care provider's compliance with its tax and employment laws as
13well as any other related laws and rules under the agency's
14jurisdiction.
15 Section 60. Rulemaking. The Department may adopt
16reasonable rules to implement and administer this Act.
17 Section 97. The State Finance Act is amended by adding
18Section 5.878 as follows:
19 (30 ILCS 105/5.878 new)
20 Sec. 5.878. The Home Care Consumer and Worker Protection
21Fund.
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