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Public Act 098-0106


 

Public Act 0106 98TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 098-0106
 
HB2649 EnrolledLRB098 07683 JLS 37756 b

    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, 25, 30, and 40 and by adding Section 63 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.
    "Contractor" means any individual, 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,
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.
(Source: P.A. 95-26, eff. 1-1-08.)
 
    (820 ILCS 185/25)
    Sec. 25. Enforcement.
    (a) Any interested party may file a complaint with the
Department against an entity or employer covered under this Act
if there is a reasonable belief that the entity or employer is
in violation of this Act. It shall be the duty of the
Department to enforce the provisions of this Act. The
Department shall have the power to conduct investigations in
connection with the administration and enforcement of this Act
and any investigator with the Department shall be authorized to
visit and inspect, at all reasonable times, any places covered
by this Act and shall be authorized to inspect, at all
reasonable times, documents related to the determination of
whether an individual is an employee under Section 10 of this
Act. The Director of Labor or his or her representative may
compel, by subpoena, the attendance and testimony of witnesses
and the production of books, payrolls, records, papers, and
other evidence in any investigation and may administer oaths to
witnesses. Within 120 days of the filing of a complaint, the
Department shall notify the employer in writing of the filing
of a complaint and provide the employer the location and
approximate date of the project or projects, affected
contractors, and the nature of the allegations being
investigated.
    (b) Whenever the Department believes upon investigation
that there has been a violation of any of the provisions of
this Act or any rules or regulations promulgated under this
Act, the Department may: (i) issue and cause to be served on
any party an order to cease and desist from further violation
of the Act, (ii) take affirmative or other action as deemed
reasonable to eliminate the effect of the violation, (iii)
collect the amount of any wages, salary, employment benefits,
or other compensation denied or lost to the individual, and
(iv) assess any civil penalty allowed by this Act. The civil
penalties assessed by the Department as well as any other
relief requested by the Department shall be recoverable in an
action brought in the name of the people of the State of
Illinois by the Attorney General.
    (c) If, upon investigation, the Department finds cause to
believe that Section 20 or Section 55 of this Act has been
violated, the Department shall notify the employer, in writing,
of its finding and any proposed relief due and penalties
assessed and that the matter will be referred to an
Administrative Law Judge to schedule a formal hearing in
accordance with the Illinois Administrative Procedure Act.
    (d) The employer has 28 calendar days from the date of the
Department's findings to answer the allegations contained in
the Department's findings. If an employer fails to answer all
allegations contained in the Department's findings, any
unanswered allegations or findings shall be deemed admitted to
be true and shall be found true in the final decision issued by
the Administrative Law Judge. If, within 30 calendar days of
the final decision issued by the Administrative Law Judge, the
employer files a motion to vacate the Administrative Law
Judge's final decision and demonstrates good cause for failing
to answer the Department's allegations, and the Administrative
Law Judge grants the motion, the employer shall be afforded an
opportunity to answer and the matter shall proceed as if an
original answer to the Department's findings had been filed.
    (e) A final decision of an Administrative Law Judge issued
pursuant to this Section is subject to the provisions of the
Administrative Review Law and shall be enforceable in an action
brought in the name of the people of the State of Illinois by
the Attorney General.
(Source: P.A. 95-26, eff. 1-1-08.)
 
    (820 ILCS 185/30)
    Sec. 30. Attorney General; State's Attorneys. Criminal
violations of this Act shall be prosecuted by the Attorney
General or the appropriate State's Attorney. The Department
shall refer matters to the Attorney General and the appropriate
State's Attorney upon determining that a criminal violation may
have occurred. In all other proceedings the Department shall be
represented by the Attorney General's Office.
(Source: P.A. 95-26, eff. 1-1-08.)
 
    (820 ILCS 185/40)
    Sec. 40. Penalties.
    (a) An employer or entity that violates any of the
provisions of this Act or any rule adopted under this Act shall
be subject to a civil penalty not to exceed $1,000 $1,500 for
each violation found in the first audit by the Department.
Following a first audit, an employer or entity shall be subject
to a civil penalty not to exceed $2,000 $2,500 for each repeat
violation found by the Department within a 5 year period. For
purposes of this Section, each violation of this Act for each
person and for each day the violation continues shall
constitute a separate and distinct violation. In determining
the amount of a penalty, the Director shall consider the
appropriateness of the penalty to the employer or entity
charged, upon the determination of the gravity of the
violations.
    (b) The amount of the penalty, when finally determined, may
be recovered in any administrative proceeding or a civil action
filed in any circuit court by the Director of Labor, or a
person aggrieved by a violation of this Act or any rule adopted
under this Act.
        (1) The Department shall distribute to all affected
    employees 10% of the civil penalty recovered as a result of
    any administrative proceeding or civil action brought by
    the Department. The remaining 90% of the amount recovered
    shall be submitted to the Director of Labor.
        (2) In any civil action brought by an interested party
    pursuant to this Section, the circuit court shall award the
    interested party 10% of the amount recovered. In such case,
    the remaining amount recovered shall be submitted to the
    Director of Labor.
    (c) Any uncollected amount shall be subject to the
provisions of the Illinois State Collection Act of 1986.
(Source: P.A. 95-26, eff. 1-1-08.)
 
    (820 ILCS 185/63 new)
    Sec. 63. Individual liability. In addition to an individual
who is an employer pursuant to Section 5 of this Act, any
officer of a corporation or agent of a corporation who
knowingly permits such employer to violate the provisions of
this Act may be held individually liable for all violations and
penalties assessed under this Act. This Section shall not apply
to an individual who is an officer or agent of a corporation
which on the project under investigation satisfies the
responsible bidder requirements set forth in the Illinois
Procurement Code.

Effective Date: 1/1/2014