97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB3155

 

Introduced 2/1/2012, by Sen. Dale A. Righter

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 130/2  from Ch. 48, par. 39s-2
820 ILCS 130/4  from Ch. 48, par. 39s-4
820 ILCS 130/11a  from Ch. 48, par. 39s-11a

    Amends the Prevailing Wage Act. Defines "compensatory damages" as the sum of economic and non-economic damages. Provides that any individual, contractor, or subcontractor who has been aggrieved by a falsely filed complaint may institute a civil action for damages, including, but not limited to, compensatory damages, legal fees, administrative fees, penalties assessed by the Department of Labor under the complaint, injunctive relief, and other appropriate equitable relief. Provides that no public body, including a home rule unit, is authorized to use, as a basis for denying a contract to a contractor or subcontractor, any complaint filed with the Department or any determination by the Department that the contractor or subcontractor has committed a violation under the Act, unless the contractor or subcontractor is debarred at the time of the bid.


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HOME RULE NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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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 5. The Prevailing Wage Act is amended by changing
5Sections 2, 4, and 11a as follows:
 
6    (820 ILCS 130/2)  (from Ch. 48, par. 39s-2)
7    Sec. 2. This Act applies to the wages of laborers,
8mechanics and other workers employed in any public works, as
9hereinafter defined, by any public body and to anyone under
10contracts for public works. This includes any maintenance,
11repair, assembly, or disassembly work performed on equipment
12whether owned, leased, or rented.
13    As used in this Act, unless the context indicates
14otherwise:
15    "Public works" means all fixed works constructed or
16demolished by any public body, or paid for wholly or in part
17out of public funds. "Public works" as defined herein includes
18all projects financed in whole or in part with bonds, grants,
19loans, or other funds made available by or through the State or
20any of its political subdivisions, including but not limited
21to: bonds issued under the Industrial Project Revenue Bond Act
22(Article 11, Division 74 of the Illinois Municipal Code), the
23Industrial Building Revenue Bond Act, the Illinois Finance

 

 

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1Authority Act, the Illinois Sports Facilities Authority Act, or
2the Build Illinois Bond Act; loans or other funds made
3available pursuant to the Build Illinois Act; or funds from the
4Fund for Illinois' Future under Section 6z-47 of the State
5Finance Act, funds for school construction under Section 5 of
6the General Obligation Bond Act, funds authorized under Section
73 of the School Construction Bond Act, funds for school
8infrastructure under Section 6z-45 of the State Finance Act,
9and funds for transportation purposes under Section 4 of the
10General Obligation Bond Act. "Public works" also includes (i)
11all projects financed in whole or in part with funds from the
12Department of Commerce and Economic Opportunity under the
13Illinois Renewable Fuels Development Program Act for which
14there is no project labor agreement; (ii) all work performed
15pursuant to a public private agreement under the Public Private
16Agreements for the Illiana Expressway Act; and (iii) all
17projects undertaken under a public-private agreement under the
18Public-Private Partnerships for Transportation Act. "Public
19works" also includes all projects at leased facility property
20used for airport purposes under Section 35 of the Local
21Government Facility Lease Act. "Public works" also includes the
22construction of a new wind power facility by a business
23designated as a High Impact Business under Section 5.5(a)(3)(E)
24of the Illinois Enterprise Zone Act. "Public works" does not
25include work done directly by any public utility company,
26whether or not done under public supervision or direction, or

 

 

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1paid for wholly or in part out of public funds. "Public works"
2does not include projects undertaken by the owner at an
3owner-occupied single-family residence or at an owner-occupied
4unit of a multi-family residence.
5    "Compensatory damages" means the sum of economic and
6non-economic damages.
7    "Construction" means all work on public works involving
8laborers, workers or mechanics. This includes any maintenance,
9repair, assembly, or disassembly work performed on equipment
10whether owned, leased, or rented.
11    "Locality" means the county where the physical work upon
12public works is performed, except (1) that if there is not
13available in the county a sufficient number of competent
14skilled laborers, workers and mechanics to construct the public
15works efficiently and properly, "locality" includes any other
16county nearest the one in which the work or construction is to
17be performed and from which such persons may be obtained in
18sufficient numbers to perform the work and (2) that, with
19respect to contracts for highway work with the Department of
20Transportation of this State, "locality" may at the discretion
21of the Secretary of the Department of Transportation be
22construed to include two or more adjacent counties from which
23workers may be accessible for work on such construction.
24    "Public body" means the State or any officer, board or
25commission of the State or any political subdivision or
26department thereof, or any institution supported in whole or in

 

 

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1part by public funds, and includes every county, city, town,
2village, township, school district, irrigation, utility,
3reclamation improvement or other district and every other
4political subdivision, district or municipality of the state
5whether such political subdivision, municipality or district
6operates under a special charter or not.
7    The terms "general prevailing rate of hourly wages",
8"general prevailing rate of wages" or "prevailing rate of
9wages" when used in this Act mean the hourly cash wages plus
10fringe benefits for training and apprenticeship programs
11approved by the U.S. Department of Labor, Bureau of
12Apprenticeship and Training, health and welfare, insurance,
13vacations and pensions paid generally, in the locality in which
14the work is being performed, to employees engaged in work of a
15similar character on public works.
16(Source: P.A. 96-28, eff. 7-1-09; 96-58, eff. 1-1-10; 96-186,
17eff. 1-1-10; 96-913, eff. 6-9-10; 96-1000, eff. 7-2-10; 97-502,
18eff. 8-23-11.)
 
19    (820 ILCS 130/4)  (from Ch. 48, par. 39s-4)
20    Sec. 4. Ascertaining prevailing wage.
21    (a) The public body awarding any contract for public work
22or otherwise undertaking any public works, shall ascertain the
23general prevailing rate of hourly wages in the locality in
24which the work is to be performed, for each craft or type of
25worker or mechanic needed to execute the contract, and where

 

 

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1the public body performs the work without letting a contract
2therefor, shall ascertain the prevailing rate of wages on a per
3hour basis in the locality, and such public body shall specify
4in the resolution or ordinance and in the call for bids for the
5contract, that the general prevailing rate of wages in the
6locality for each craft or type of worker or mechanic needed to
7execute the contract or perform such work, also the general
8prevailing rate for legal holiday and overtime work, as
9ascertained by the public body or by the Department of Labor
10shall be paid for each craft or type of worker needed to
11execute the contract or to perform such work, and it shall be
12mandatory upon the contractor to whom the contract is awarded
13and upon any subcontractor under him, and where the public body
14performs the work, upon the public body, to pay not less than
15the specified rates to all laborers, workers and mechanics
16employed by them in the execution of the contract or such work;
17provided, however, that if the public body desires that the
18Department of Labor ascertain the prevailing rate of wages, it
19shall notify the Department of Labor to ascertain the general
20prevailing rate of hourly wages for work under contract, or for
21work performed by a public body without letting a contract as
22required in the locality in which the work is to be performed,
23for each craft or type of worker or mechanic needed to execute
24the contract or project or work to be performed. Upon such
25notification the Department of Labor shall ascertain such
26general prevailing rate of wages, and certify the prevailing

 

 

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1wage to such public body.
2    (a-1) The public body or other entity awarding the contract
3shall cause to be inserted in the project specifications and
4the contract a stipulation to the effect that not less than the
5prevailing rate of wages as found by the public body or
6Department of Labor or determined by the court on review shall
7be paid to all laborers, workers and mechanics performing work
8under the contract.
9    (a-2) When a public body or other entity covered by this
10Act has awarded work to a contractor without a public bid,
11contract or project specification, such public body or other
12entity shall comply with subsection (a-1) by providing the
13contractor with written notice on the purchase order related to
14the work to be done or on a separate document indicating that
15not less than the prevailing rate of wages as found by the
16public body or Department of Labor or determined by the court
17on review shall be paid to all laborers, workers, and mechanics
18performing work on the project.
19    (a-3) Where a complaint is made and the Department of Labor
20determines that a violation occurred, the Department of Labor
21shall determine if proper written notice under this Section 4
22was given. If proper written notice was not provided to the
23contractor by the public body or other entity, the Department
24of Labor shall order the public body or other entity to pay any
25interest, penalties or fines that would have been owed by the
26contractor if proper written notice were provided. The failure

 

 

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1by a public body or other entity to provide written notice does
2not relieve the contractor of the duty to comply with the
3prevailing wage rate, nor of the obligation to pay any back
4wages, as determined under this Act. For the purposes of this
5subsection, back wages shall be limited to the difference
6between the actual amount paid and the prevailing rate of wages
7required to be paid for the project. The failure of a public
8body or other entity to provide written notice under this
9Section 4 does not diminish the right of a laborer, worker, or
10mechanic to the prevailing rate of wages as determined under
11this Act.
12    (a-4) Any individual, contractor, or subcontractor who has
13been aggrieved by a falsely filed complaint may institute a
14civil action for damages, including, but not limited to,
15compensatory damages, legal fees, administrative fees,
16penalties assessed by the Department of Labor pursuant to the
17complaint, injunctive relief, and other appropriate equitable
18relief. Any person found to knowingly file a false complaint
19shall be liable to the individual, contractor, or subcontractor
20who was falsely accused for damages as provided in this
21subsection.
22    (b) It shall also be mandatory upon the contractor to whom
23the contract is awarded to insert into each subcontract and
24into the project specifications for each subcontract a written
25stipulation to the effect that not less than the prevailing
26rate of wages shall be paid to all laborers, workers, and

 

 

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1mechanics performing work under the contract. It shall also be
2mandatory upon each subcontractor to cause to be inserted into
3each lower tiered subcontract and into the project
4specifications for each lower tiered subcontract a stipulation
5to the effect that not less than the prevailing rate of wages
6shall be paid to all laborers, workers, and mechanics
7performing work under the contract. A contractor or
8subcontractor who fails to comply with this subsection (b) is
9in violation of this Act.
10    (b-1) When a contractor has awarded work to a subcontractor
11without a contract or contract specification, the contractor
12shall comply with subsection (b) by providing a subcontractor
13with a written statement indicating that not less than the
14prevailing rate of wages shall be paid to all laborers,
15workers, and mechanics performing work on the project. A
16contractor or subcontractor who fails to comply with this
17subsection (b-1) is in violation of this Act.
18    (b-2) Where a complaint is made and the Department of Labor
19determines that a violation has occurred, the Department of
20Labor shall determine if proper written notice under this
21Section 4 was given. If proper written notice was not provided
22to the subcontractor by the contractor, the Department of Labor
23shall order the contractor to pay any interest, penalties, or
24fines that would have been owed by the subcontractor if proper
25written notice were provided. The failure by a contractor to
26provide written notice to a subcontractor does not relieve the

 

 

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1subcontractor of the duty to comply with the prevailing wage
2rate, nor of the obligation to pay any back wages, as
3determined under this Act. For the purposes of this subsection,
4back wages shall be limited to the difference between the
5actual amount paid and the prevailing rate of wages required
6for the project. However, if proper written notice was not
7provided to the contractor by the public body or other entity
8under this Section 4, the Department of Labor shall order the
9public body or other entity to pay any interest, penalties, or
10fines that would have been owed by the subcontractor if proper
11written notice were provided. The failure by a public body or
12other entity to provide written notice does not relieve the
13subcontractor of the duty to comply with the prevailing wage
14rate, nor of the obligation to pay any back wages, as
15determined under this Act. For the purposes of this subsection,
16back wages shall be limited to the difference between the
17actual amount paid and the prevailing rate of wages required
18for the project. The failure to provide written notice by a
19public body, other entity, or contractor does not diminish the
20right of a laborer, worker, or mechanic to the prevailing rate
21of wages as determined under this Act.
22    (c) A public body or other entity shall also require in all
23contractor's and subcontractor's bonds that the contractor or
24subcontractor include such provision as will guarantee the
25faithful performance of such prevailing wage clause as provided
26by contract or other written instrument. All bid specifications

 

 

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1shall list the specified rates to all laborers, workers and
2mechanics in the locality for each craft or type of worker or
3mechanic needed to execute the contract.
4    (d) If the Department of Labor revises the prevailing rate
5of hourly wages to be paid by the public body, the revised rate
6shall apply to such contract, and the public body shall be
7responsible to notify the contractor and each subcontractor, of
8the revised rate.
9    (e) Two or more investigatory hearings under this Section
10on the issue of establishing a new prevailing wage
11classification for a particular craft or type of worker shall
12be consolidated in a single hearing before the Department. Such
13consolidation shall occur whether each separate investigatory
14hearing is conducted by a public body or the Department. The
15party requesting a consolidated investigatory hearing shall
16have the burden of establishing that there is no existing
17prevailing wage classification for the particular craft or type
18of worker in any of the localities under consideration.
19    (f) It shall be mandatory upon the contractor or
20construction manager to whom a contract for public works is
21awarded to post, at a location on the project site of the
22public works that is easily accessible to the workers engaged
23on the project, the prevailing wage rates for each craft or
24type of worker or mechanic needed to execute the contract or
25project or work to be performed. In lieu of posting on the
26project site of the public works, a contractor which has a

 

 

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1business location where laborers, workers, and mechanics
2regularly visit may: (1) post in a conspicuous location at that
3business the current prevailing wage rates for each county in
4which the contractor is performing work; or (2) provide such
5laborer, worker, or mechanic engaged on the public works
6project a written notice indicating the prevailing wage rates
7for the public works project. A failure to post or provide a
8prevailing wage rate as required by this Section is a violation
9of this Act.
10(Source: P.A. 95-331, eff. 8-21-07; 96-437, eff. 1-1-10.)
 
11    (820 ILCS 130/11a)  (from Ch. 48, par. 39s-11a)
12    Sec. 11a. (a) The Director of the Department of Labor shall
13publish in the Illinois Register no less often than once each
14calendar quarter a list of contractors or subcontractors found
15to have disregarded their obligations to employees under this
16Act. The Department of Labor shall determine the contractors or
17subcontractors who, on 2 separate occasions within 5 years,
18have been determined to have violated the provisions of this
19Act. Upon such determination the Department shall notify the
20violating contractor or subcontractor. Such contractor or
21subcontractor shall then have 10 working days to request a
22hearing by the Department on the alleged violations. Failure to
23respond within the 10 working day period shall result in
24automatic and immediate placement and publication on the list.
25If the contractor or subcontractor requests a hearing within

 

 

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1the 10 working day period, the Director shall set a hearing on
2the alleged violations. Such hearing shall take place no later
3than 45 calendar days after the receipt by the Department of
4Labor of the request for a hearing. The Department of Labor is
5empowered to promulgate, adopt, amend and rescind rules and
6regulations to govern the hearing procedure. No contract shall
7be awarded to a contractor or subcontractor appearing on the
8list, or to any firm, corporation, partnership or association
9in which such contractor or subcontractor has an interest until
104 years have elapsed from the date of publication of the list
11containing the name of such contractor or subcontractor.
12    (b) A contractor or subcontractor convicted or found guilty
13under Section 5 or 6 of this Act shall be subject to an
14automatic and immediate debarment, thereafter prohibited from
15participating in any public works project for 4 years, with no
16right to a hearing.
17    (c) No public body, including a home rule unit, is
18authorized to use, as a basis for denying a contract to a
19contractor or subcontractor, any complaint filed with the
20Department or any determination by the Department that the
21contractor or subcontractor has committed a violation under
22this Act, unless the contractor or subcontractor is debarred at
23the time of the bid as provided under this Section. This
24subsection is a limitation under subsection (i) of Section 6 of
25Article VII of the Illinois Constitution on the concurrent
26exercise by home rule units of powers and functions exercised

 

 

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1by the State.
2(Source: P.A. 97-571, eff. 1-1-12.)