HB5270 94TH GENERAL ASSEMBLY

LRB094 18796 WGH 54203 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB5270

Introduced 01/25/06, by Rep. Dave Winters

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 130/5a new
820 ILCS 130/5b new
820 ILCS 130/6	from Ch. 48, par. 39s-6

Amends the Prevailing Wage Act. Provides that a public body or other entity covered by the Act that contracts for work with a contractor or subcontractor without a public bid or project specification shall provide the contractor or subcontractor with a prevailing wage notice on the project on the purchase order or on a separate document. Provides that, if the Department of Labor determines that a violation of the Act has occurred, the Department shall determine whether a proper notice was given to the contractor, and, if a notice was not given, the Department shall order the public body to pay back wages, interest, penalties, or fines owed by the contractor to its employees. Provides that a contractor is not in violation if a notice is not given to the contractor. Provides that the failure to provide a notice does not diminish the obligation of a contractor to pay the prevailing wage. Provides that a contractor who has awarded work to a subcontractor without a contract or without a contract specification may comply with notice requirements by providing a lower tiered subcontractor with a written prevailing wage notice. Provides that a contractor with a business location where workers regularly visit may, instead of posting a prevailing wage notice on a job site, post in a conspicuous location at that business the current prevailing wage rate or give a written notice to those workers. Provides that information made available under a Freedom of Information Act request in accordance with provisions of the Act regarding certified payrolls shall be used only to enforce the Act and that any misuse of the information is prohibited. Sets forth criminal and civil penalties for the misuse of information. Provides that a written complaint regarding an alleged violation of this Act shall be filed with the Director of Labor and sets forth requirements concerning the handling of the complaint. Makes other changes.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Prevailing Wage Act is amended by changing Sections 2, 4, and 6 and adding Sections 5a and 5b as follows:

(820 ILCS 130/2) (from Ch. 48, par. 39s-2)

Sec. 2. This Act applies to the wages of laborers, mechanics and other workers employed in any public works, as hereinafter defined, by any public body and to anyone under contracts for public works.

As used in this Act, unless the context indicates otherwise:

"Public works" means all fixed works constructed by any public body, other than work done directly by any public utility company, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds. "Public works" as defined herein includes all projects financed in whole or in part with bonds issued under the Industrial Project Revenue Bond Act (Article 11, Division 74 of the Illinois Municipal Code), the Industrial Building Revenue Bond Act, the Illinois Finance Authority Act, the Illinois Sports Facilities Authority Act, or the Build Illinois Bond Act, and all projects financed in whole or in part with loans or other funds made available pursuant to the Build Illinois Act. "Public works" also includes all projects financed in whole or in part with funds from the Fund for Illinois' Future under Section 6z-47 of the State Finance Act, funds for school construction under Section 5 of the General Obligation Bond Act, funds authorized under Section 3 of the School Construction Bond Act, funds for school infrastructure under Section 6z-45 of the State Finance Act, and funds for transportation purposes under Section 4 of the General Obligation Bond Act. "Public works" also includes all projects financed in whole or in part with funds from the Department of Commerce and Economic Opportunity Community Affairs under the Illinois Renewable Fuels Development Program Act for which there is no project labor agreement.

"Construction" means all work on public works involving laborers, workers or mechanics.

"Locality" means the county where the physical work upon public works is performed, except (1) that if there is not available in the county a sufficient number of competent skilled laborers, workers and mechanics to construct the public works efficiently and properly, "locality" includes any other county nearest the one in which the work or construction is to be performed and from which such persons may be obtained in sufficient numbers to perform the work and (2) that, with respect to contracts for highway work with the Department of Transportation of this State, "locality" may at the discretion of the Secretary of the Department of Transportation be construed to include two or more adjacent counties from which workers may be accessible for work on such construction.

"Public body" means the State or any officer, board or commission of the State or any political subdivision or department thereof, or any institution supported in whole or in part by public funds, and includes every county, city, town, village, township, school district, irrigation, utility, reclamation improvement or other district and every other political subdivision, district or municipality of the state whether such political subdivision, municipality or district operates under a special charter or not.

The terms "general prevailing rate of hourly wages", "general prevailing rate of wages" or "prevailing rate of wages" when used in this Act mean the hourly cash wages plus fringe benefits for training and apprenticeship programs approved by the U.S. Department of Labor, Bureau of Apprenticeship and Training, health and welfare, insurance, vacations and pensions paid generally, in the locality in which the work is being performed, as well as the hourly cost of vacation benefits, to employees engaged in work of a similar character on public works.

(Source: P.A. 92-16, eff. 6-28-01; 93-15, eff. 6-11-03; 93-16, eff. 1-1-04; 93-205, eff. 1-1-04; revised 1-12-04.)

(820 ILCS 130/4) (from Ch. 48, par. 39s-4)

Sec. 4. (a) The public body awarding any contract for public work or otherwise undertaking any public works, shall ascertain the general prevailing rate of hourly wages in the locality in which the work is to be performed, for each craft or type of worker or mechanic needed to execute the contract, and where the public body performs the work without letting a contract therefor, shall ascertain the prevailing rate of wages on a per hour basis in the locality, and such public body shall specify in the resolution or ordinance and in the call for bids for the contract, that the general prevailing rate of wages in the locality for each craft or type of worker or mechanic needed to execute the contract or perform such work, also the general prevailing rate for legal holiday and overtime work, as ascertained by the public body or by the Department of Labor shall be paid for each craft or type of worker needed to execute the contract or to perform such work, and it shall be mandatory upon the contractor to whom the contract is awarded and upon any subcontractor under him, and where the public body performs the work, upon the public body, to pay not less than the specified rates to all laborers, workers and mechanics employed by them in the execution of the contract or such work; provided, however, that if the public body desires that the Department of Labor ascertain the prevailing rate of wages, it shall notify the Department of Labor to ascertain the general prevailing rate of hourly wages for work under contract, or for work performed by a public body without letting a contract as required in the locality in which the work is to be performed, for each craft or type of worker or mechanic needed to execute the contract or project or work to be performed. Upon such notification the Department of Labor shall ascertain such general prevailing rate of wages, and certify the prevailing wage to such public body. The public body awarding the contract shall cause to be inserted in the project specifications and the contract a stipulation to the effect that not less than the prevailing rate of wages as found by the public body or Department of Labor or determined by the court on review shall be paid to all laborers, workers and mechanics performing work under the contract.

(a-5) When a public body or other entity covered by this Act contracts for work with a contractor or subcontractor without a public bid or project specification, such public body or other entity shall provide the contractor or subcontractor with a written notice that the prevailing wage is required to be paid on the project as a statement on the purchase order related to the work to be done or on a separate document.

Where a complaint has been made and the Department has determined a violation has occurred, the Department shall determine if proper notice was given. If proper notice was not provided to the contractor by the public body, the Department shall order the public body to pay any back wages, interest, penalties or fines owed by the contractor to its employees who worked on the project. A contractor shall not be deemed in violation of this Act if such notice is not provided. The failure to provide notice by a public body does not diminish the obligation of a contractor to pay the prevailing wage rate as determined under this Act.

(b) It shall also be mandatory upon the contractor to whom the contract is awarded to insert into each subcontract and into the project specifications for each subcontract a written stipulation to the effect that not less than the prevailing rate of wages shall be paid to all laborers, workers, and mechanics performing work under the contract. It shall also be mandatory upon each subcontractor to cause to be inserted into each lower tiered subcontract and into the project specifications for each lower tiered subcontract a stipulation to the effect that not less than the prevailing rate of wages shall be paid to all laborers, workers, and mechanics performing work under the contract. A contractor or subcontractor who fails to comply with this subsection (b) is in violation of this Act. When a contractor has awarded work to a subcontractor without a contract or without a contract specification, the contractor may comply with this subsection (b) by providing a lower tiered subcontractor with a written statement indicating that not less than the prevailing wage rate shall be paid to all laborers, workers and mechanics performing work on the project.

(c) It shall also require in all such contractor's bonds that the contractor include such provision as will guarantee the faithful performance of such prevailing wage clause as provided by contract. All bid specifications shall list the specified rates to all laborers, workers and mechanics in the locality for each craft or type of worker or mechanic needed to execute the contract.

(d) If the Department of Labor revises the prevailing rate of hourly wages to be paid by the public body, the revised rate shall apply to such contract, and the public body shall be responsible to notify the contractor and each subcontractor, of the revised rate.

(e) Two or more investigatory hearings under this Section on the issue of establishing a new prevailing wage classification for a particular craft or type of worker shall be consolidated in a single hearing before the Department. Such consolidation shall occur whether each separate investigatory hearing is conducted by a public body or the Department. The party requesting a consolidated investigatory hearing shall have the burden of establishing that there is no existing prevailing wage classification for the particular craft or type of worker in any of the localities under consideration.

(f) It shall be mandatory upon the contractor or construction manager to whom a contract for public works is awarded to post, at a location on the project site of the public works that is easily accessible to the workers engaged on the project, the prevailing wage rates for each craft or type of worker or mechanic needed to execute the contract or project or work to be performed.

In lieu of posting on a job site, a contractor which has a business location where laborers, workers, or mechanics regularly visit may:

(1) post in a conspicuous location at that business the current prevailing wage rate for all public bodies in which such laborers, workers, or mechanics could be on prevailing wage projects; or

(2) provide to such laborers, workers, or mechanics engaged on the project a written notice indicating the prevailing wage rate for the public works project.

A failure to post or provide a prevailing wage rate as required by this Section is a violation of this Act.

(Source: P.A. 92-783, eff. 8-6-02; 93-15, eff. 6-11-03; 93-16, eff. 1-1-04; 93-38, eff. 6-1-04; revised 10-29-04.)

(820 ILCS 130/5a new)

Sec. 5a. Misuse of information; harassment. Information made available pursuant to a request under the Freedom of Information Act in accordance with subparagraph (a) of Section 5 shall be used only to enforce this Act. Any other use of the information, including but not limited to using the information to file complaints that are frivolous, vexatious, or brought primarily for purposes of harassment, constitutes misuse of information and is prohibited.

(820 ILCS 130/5b new)

Sec. 5b. Penalties for misuse of information. Any person who misuses information obtained under this Act is in violation of this Act and shall be:

(1) guilty of a Class B misdemeanor;

(2) liable for reasonable attorney's fees and other litigation costs reasonably incurred by any other party who prevails in any action under this Section; and

(3) liable to the Department of Labor for a penalty of $5,000 for each violation.

(820 ILCS 130/6) (from Ch. 48, par. 39s-6)

Sec. 6. Any officer, agent or representative of any public body who wilfully violates, or omits to comply with, any of the provisions of this Act, and any contractor or subcontractor, or agent or representative thereof, doing public work as aforesaid, who neglects to keep, or cause to be kept, an accurate record of the names, occupation and actual wages paid to each laborer, worker and mechanic employed by him, in connection with the public work or who refuses to allow access to same at any reasonable hour to any person authorized to inspect same under this Act, is guilty of a Class A misdemeanor.

The Department of Labor shall inquire diligently as to any violation of this Act, shall institute actions for penalties herein prescribed, and shall enforce generally the provisions of this Act. The Attorney General shall prosecute such cases upon complaint by the Department or any interested person.

After an alleged violation occurs, a written complaint regarding an alleged violation of this Act shall be filed with the Director of Labor. Within 14 days of a complaint being field with the Director, a copy of the complaint shall be sent to the contractor who allegedly committed the violation, who shall be the respondent.

If the complaint has been filed by an employee of the respondent, the Department shall not send a copy of the complaint to the respondent until the complaint is investigated and closed.

Any information regarding an employee shall be redacted by the Department prior to being sent to the respondent.

Upon receipt of a complaint, the Director shall cause such investigation to be made as he or she deems appropriate.

(Source: P.A. 94-488, eff. 1-1-06.)