103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3509

 

Introduced 2/9/2024, by Sen. Cristina Castro

 

SYNOPSIS AS INTRODUCED:
 
740 ILCS 174/5
740 ILCS 174/15
740 ILCS 174/20
740 ILCS 174/20.1
740 ILCS 174/20.2
740 ILCS 174/25
740 ILCS 174/30
740 ILCS 174/31 new

    Amends the Whistleblower Act. Changes the definitions of "employer" and "employee". Defines "adverse employment action", "public body", "retaliatory action", and "supervisor". Provides that an employer may not take retaliatory action against an employee who discloses or threatens to disclose information about an activity, policy, or practice of the employer that the employee has a good faith belief that such activity, policy, or practice violates a State or federal law, rule, or regulation or poses a substantial and specific danger to public health or safety. Includes additional relief, damages, and penalties for violation of the Act. Allows the Attorney General to initiate or intervene in a civil action to obtain appropriate relief if the Attorney General has reasonable cause to believe that any person or entity is engaged in a practice prohibited by the Act. Provides that the changes made by the amendatory Act apply to claims arising or complaints filed on or after January 1, 2025. Effective January 1, 2025.


LRB103 38995 JRC 69132 b

 

 

A BILL FOR

 

SB3509LRB103 38995 JRC 69132 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Whistleblower Act is amended by changing
5Sections 5, 15, 20, 20.1, 20.2, 25, and 30 and by adding
6Section 31 as follows:
 
7    (740 ILCS 174/5)
8    Sec. 5. Definitions. As used in this Act:
9    "Adverse employment action" means any action that creates
10an adverse change in the terms and conditions of employment
11viewed in the totality of circumstances.
12    "Employer" means: an individual, sole proprietorship,
13partnership, firm, corporation, association, and any other
14entity that has one or more employees in this State, including
15a political subdivision of the State; a unit of local
16government; a school district, combination of school
17districts, or governing body of a joint agreement of any type
18formed by two or more school districts; a community college
19district, State college or university, or any State agency
20whose major function is providing educational services; any
21authority including a department, division, bureau, board,
22commission, or other agency of these entities; and any person
23acting directly or indirectly in the interest of an employer

 

 

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1in relation to an employee within the scope of his or her
2authority express or implied on behalf of those entities in
3dealing with its employees.
4    "Employee" means any individual permitted to work who is
5employed on a full-time, part-time, or contractual basis by an
6employer unless:
7        (1) the individual has been and will continue to be
8    free from control and direction over the performance of
9    his or her work, both under his or her contract of service
10    with his or her employer and in fact;
11        (2) the individual performs work which is either
12    outside the usual course of business or is performed
13    outside all of the places of business of the employer
14    unless the employer is in the business of contracting with
15    parties for the placement of employees; and
16        (3) the individual is in an independently established
17    trade, occupation, profession, or business.
18    "Employee" also includes, but is not limited to, a
19licensed physician who practices his or her profession, in
20whole or in part, at a hospital, nursing home, clinic, or any
21medical facility that is a health care facility funded whole
22or in part, by the State.
23    "Public body" means any of the following: the State; any
24officer, board, political subdivision, or commission of the
25State; any institution supported in whole or in part by public
26funds; units of local government; and school districts.

 

 

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1    "Retaliatory action" means an adverse employment action or
2the threat of an adverse employment action by an employer or
3his or her agent to penalize or any non-employment action that
4would dissuade a reasonable worker from disclosing information
5under this Act. "Retaliatory action" includes, but is not
6limited to:
7        (1) taking, or threatening to take, any action that
8    would intentionally interfere with an employee's ability
9    to obtain future employment or post-termination
10    retaliation to intentionally interfere with a former
11    employee's employment;
12        (2) taking, or threatening to take, any action
13    prohibited by subsection (G) of Section 2-102 of the
14    Illinois Human Rights Act; or
15        (3) contacting, or threatening to contact, United
16    States immigration authorities, or otherwise reporting, or
17    threatening to report, an employee's suspected or actual
18    citizenship or immigration status or the suspected or
19    actual citizenship or immigration status of an employee's
20    family or household member to a federal, State, or local
21    agency.
22    "Retaliatory action" does not include:
23        (1) conduct undertaken at the express and specific
24    direction or request of the federal government; or
25        (2) truthful, performance-related information about an
26    employee or former employee provided in good faith to a

 

 

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1    prospective employer at the request of the prospective
2    employer. "Employee" also includes, but is not limited to,
3    a licensed physician who practices his or her profession,
4    in whole or in part, at a hospital, nursing home, clinic,
5    or any medical facility that is a health care facility
6    funded, in whole or in part, by the State.
7    "Supervisor" means (i) any individual within an employer's
8organization, or an organization the employer has a
9contractual relationship with, (ii) any individual who has the
10authority to direct and control the work performance of the
11affected employee, or (iii) any individual who has managerial
12authority to take corrective action regarding a violation of
13the law, rule, or regulation disclosed by an employee in
14accordance with Section 15.
15(Source: P.A. 95-128, eff. 1-1-08; 96-1253, eff. 1-1-11.)
 
16    (740 ILCS 174/15)
17    Sec. 15. Retaliation for certain disclosures prohibited.
18    (a) An employer may not take retaliatory action retaliate
19against an employee who discloses or threatens to disclose to
20a public body conducting investigation, or in a court, an
21administrative hearing, or any other proceeding initiated by a
22public body, information related to an activity, policy, or
23practice of the employer where the employee has a good faith
24belief that the activity, policy, or practice (i) violates in
25a court, an administrative hearing, or before a legislative

 

 

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1commission or committee, or in any other proceeding, where the
2employee has reasonable cause to believe that the information
3discloses a violation of a State or federal law, rule, or
4regulation or (ii) poses a substantial and specific danger to
5co-workers, public health or safety..
6    (b) An employer may not take retaliatory action retaliate
7against an employee for disclosing or threatening to disclose
8information to a government or law enforcement agency
9information to an activity, policy, or practice of the
10employer, where the employee has a good faith belief that the
11activity, policy, or practice of the employer (i) violates
12reasonable cause to believe that the information discloses a
13violation of a State or federal law, rule, or regulation or
14(ii) poses a substantial and specific danger to co- workers,
15public health, or safety.
16    (c) An employer may not take retaliatory action against an
17employee for disclosing or threatening to disclose to any
18employees with supervisory authority, principal officer, or
19board member, information related to an activity, policy, or
20practice of the employer where the employee has a good faith
21belief that the activity, policy, or practice(i) violates a
22State or federal law, rule, or regulation or (ii) poses a
23substantial and specific danger to co-workers, or public
24health or safety.
25(Source: P.A. 95-128, eff. 1-1-08.)
 

 

 

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1    (740 ILCS 174/20)
2    Sec. 20. Retaliation for certain refusals prohibited. An
3employer may not take retaliatory action retaliate against an
4employee for refusing to participate in an activity that the
5employee has a good faith belief that such participation would
6result in a violation of a State or federal law, rule, or
7regulation, including, but not limited to, violations of the
8Freedom of Information Act.
9(Source: P.A. 96-555, eff. 8-18-09.)
 
10    (740 ILCS 174/20.1)
11    Sec. 20.1. Other retaliation. Any other act or omission
12not otherwise specifically set forth in this Act, whether
13within or without the workplace, also constitutes retaliatory
14action retaliation by an employer under this Act if the act or
15omission would be materially adverse to a reasonable employee
16and is because of the employee disclosing or attempting to
17disclose public corruption or wrongdoing.
18(Source: P.A. 96-555, eff. 8-18-09.)
 
19    (740 ILCS 174/20.2)
20    Sec. 20.2. Threatening retaliation. An employer may not
21threaten any employee with any act or omission if that act or
22omission would constitute retaliatory action retaliation
23against the employee under this Act.
24(Source: P.A. 96-555, eff. 8-18-09.)
 

 

 

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1    (740 ILCS 174/25)
2    Sec. 25. Criminal Civil penalty. Violation of this Act is
3a Class A misdemeanor.
4(Source: P.A. 93-544, eff. 1-1-04.)
 
5    (740 ILCS 174/30)
6    Sec. 30. Damages and penalties. If an employer takes any
7retaliatory action against an employee in violation of Section
815 or 20, the employee may bring a civil action against the
9employer for all relief necessary to make the employee whole,
10including but not limited to the following, as appropriate:
11         (1) permanent or preliminary injunctive relief;
12        (1.5) reinstatement with the same seniority status
13    that the employee would have had, but for the violation;
14        (2) back pay, with interest, and front pay, or, in
15    lieu of actual damages, at the employee's election,
16    liquidated damages of $30,000; and
17        (3) compensation for any costs incurred damages
18    sustained as a result of the violation, including
19    litigation costs, expert witness fees, and reasonable
20    attorney's fees.
21        (4) Consequential damages, where the damages are a
22    direct and foreseeable result of an employer's violation
23    of this Act.
24    In addition to the remedies specified in paragraphs (1)

 

 

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1through (5), the Attorney General may request and the finder
2of fact may impose a civil penalty in the amount of $5,000 for
3each violation, or $10,000 for the second and each subsequent
4violation within a 5-year period. For purposes of this
5Section, each violation of this Act for each employee the
6employer took or threatened to take retaliatory action against
7shall constitute a separate and distinct violation. A civil
8penalty imposed under this Section shall be deposited into the
9Attorney General Court Ordered and Voluntary Compliance
10Payment Projects Fund.
11(Source: P.A. 93-544, eff. 1-1-04.)
 
12    (740 ILCS 174/31 new)
13    Sec. 31. Attorney General enforcement.
14    (a) Whenever the Attorney General has reasonable cause to
15believe that any person or entity ha s engaged in a practice
16prohibited by this Act, the Attorney General may, pursuant to
17the authority conferred by Section 6.3 of the Attorney General
18Act, initiate or intervene in a civil action in the name of the
19People of the State in any appropriate court to obtain
20appropriate relief.
21    (b) Before initiating an action, the Attorney General may
22conduct an investigation and may:
23        (1) require an individual or entity to file a
24    statement or report in writing, under oath or otherwise,
25    as to all information the Attorney General may consider

 

 

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1    necessary;
2        (2) examine under oath any person alleged to have
3    participated in, or with knowledge of, the alleged
4    violation; or
5        (3) issue subpoenas or conduct hearings in aid of any
6    investigation.
7    (c) Service by the Attorney General of any notice
8requiring a person or entity to file a statement or report, or
9of a subpoena upon any person or entity, shall be made:
10        (1) personally by delivery of a duly executed copy
11    thereof to the person to be served or, if a person is not a
12    natural person, in the manner provided in the Code of
13    Civil Procedure when a complaint is filed; or
14        (2) by mailing by certified mail a duly executed copy
15    thereof to the person to be served at his or her last known
16    abode or principal place of business within this State or,
17    if the person is not a natural person, in the manner
18    provided in the Code of Civil Procedure when a complaint
19    is filed.
20    The Attorney General may compel compliance with
21investigative demands under this Section through an order by
22any court of competent jurisdiction.
 
23    Section 90. Applicability. The changes made by this
24amendatory Act of the 103rd General Assembly apply to claims
25arising or complaints filed on or after January 1, 2025.
 

 

 

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1    Section 99. Effective date. This Act takes effect January
21, 2025.