SB3208 103RD GENERAL ASSEMBLY

LRB103 37566 SPS 67692 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3208

Introduced 2/6/2024, by Sen. Karina Villa

SYNOPSIS AS INTRODUCED:

820 ILCS 40/2	from Ch. 48, par. 2002
820 ILCS 115/2	from Ch. 48, par. 39m-2
820 ILCS 115/10	from Ch. 48, par. 39m-10
820 ILCS 115/14	from Ch. 48, par. 39m-14

Amends the Personnel Record Review Act. Provides that every employer shall, upon an employee's request which the employer may require be in writing on a form supplied by the employer, permit the employee to inspect his or her pay stubs. Amends the Illinois Wage Payment and Collection Act. Provides that employers shall keep records of names and addresses of all employees and of wages paid each payday, and shall furnish each employee with a pay stub for each pay period (rather than shall furnish each employee with an itemized statement of deductions made from the employee's wages for each pay period). Provides that an employer shall maintain a copy of an employee's pay stub for a period of not less than 3 years after the date of payment, whether the pay stub is provided electronically or in paper form, and the employer shall furnish the pay stub to the employee or former employee upon the employee or former employee's request. Provides that an employer who furnishes electronic pay stubs in a manner that is restricted to the employer's current employees must, upon an employee's separation from employment, furnish the employee or former employee with a paper or emailed electronic record of all of the employee's or former employee's pay stubs for up to 3 years prior to the date of separation, in the method specified by the employee or former employee. Provides that an employer who fails to furnish an employee with a pay stub or commits any other violation of this Act, except for specified violations, shall be subject to a civil penalty of $500 per violation payable to the Department of Labor. Defines "pay stub".

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 Personnel Record Review Act is amended by changing Section 2 as follows:

(820 ILCS 40/2) (from Ch. 48, par. 2002)

Sec. 2. Open records. Every employer shall, upon an employee's request which the employer may require be in writing on a form supplied by the employer, permit the employee to inspect his or her pay stubs as defined in Section 2 of the Illinois Wage Payment and Collection Act and any personnel documents which are, have been or are intended to be used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action, except as provided in Section 10. The inspection right encompasses personnel documents in the possession of a person, corporation, partnership, or other association having a contractual agreement with the employer to keep or supply a personnel record. An employee may request all or any part of his or her records, except as provided in Section 10. The employer shall grant at least 2 inspection requests by an employee in a calendar year when requests are made at reasonable intervals, unless otherwise provided in a collective bargaining agreement. The employer shall provide the employee with the inspection opportunity within 7 working days after the employee makes the request or if the employer can reasonably show that such deadline cannot be met, the employer shall have an additional 7 days to comply. The inspection shall take place at a location reasonably near the employee's place of employment and during normal working hours. The employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place would be more convenient for the employee. Nothing in this Act shall be construed as a requirement that an employee be permitted to remove any part of such personnel records or any part of such records from the place on the employer's premises where it is made available for inspection. Each employer shall retain the right to protect his records from loss, damage, or alteration to insure the integrity of the records. The employer shall, upon the employee's written request, email or mail a copy of the requested record to the employee by the email address or mailing address identified by the employee for the purpose of receiving the copy of requested record. An employer may charge a fee for providing a copy of the requested record. The fee shall be limited to the actual cost of duplicating the requested record.

(Source: P.A. 103-201, eff. 1-1-24.)

Section 10. The Illinois Wage Payment and Collection Act is amended by changing Sections 2, 10, and 14 as follows:

(820 ILCS 115/2) (from Ch. 48, par. 39m-2)

Sec. 2. Definitions. For all employees, other than separated employees, "wages" shall be defined as any compensation owed an employee by an employer pursuant to an employment contract or agreement between the 2 parties, whether the amount is determined on a time, task, piece, or any other basis of calculation. Payments to separated employees shall be termed "final compensation" and shall be defined as wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays, and any other compensation owed the employee by the employer pursuant to an employment contract or agreement between the 2 parties. Where an employer is legally committed through a collective bargaining agreement or otherwise to make contributions to an employee benefit, trust or fund on the basis of a certain amount per hour, day, week or other period of time, the amount due from the employer to such employee benefit, trust, or fund shall be defined as "wage supplements", subject to the wage collection provisions of this Act.

As used in this Act, the term "employer" shall include any individual, partnership, association, corporation, limited liability company, business trust, employment and labor placement agencies where wage payments are made directly or indirectly by the agency or business for work undertaken by employees under hire to a third party pursuant to a contract between the business or agency with the third party, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, for which one or more persons is gainfully employed.

As used in this Act, the term "employee" shall include any individual permitted to work by an employer in an occupation, but shall not include any individual:

(1) who has been and will continue to be free from control and direction over the performance of his work, both under his contract of service with his employer and in fact; and

(2) who performs work which is either outside the usual course of business or is performed outside all of the places of business of the employer unless the employer is in the business of contracting with third parties for the placement of employees; and

(3) who is in an independently established trade, occupation, profession or business.

"Pay stub" means an itemized statement or statements reflecting an employee's hours worked, rate of pay, overtime pay and overtime hours worked, gross wages earned, deductions made from the employee's wages, total of wages and deductions year to date, and the unused balance of any benefit or paid time off that is available to the employee. For the purposes of this definition, "pay stub" may include the unused balance of any benefit or paid time off in a separate statement from any other required information.

The following terms apply to an employer's use of payroll cards to pay wages to an employee under the requirements of this Act:

"Payroll card" means a card provided to an employee by an employer or other payroll card issuer as a means of accessing the employee's payroll card account.

"Payroll card account" means an account that is directly or indirectly established through an employer and to which deposits of a participating employee's wages are made.

"Payroll card issuer" means a bank, financial institution, or other entity that issues a payroll card to an employee under an employer payroll card program.

(Source: P.A. 98-862, eff. 1-1-15.)

(820 ILCS 115/10) (from Ch. 48, par. 39m-10)

Sec. 10.

(a) Employers shall notify employees, at the time of hiring, of the rate of pay and of the time and place of payment. Whenever possible, such notification shall be in writing and shall be acknowledged by both parties. Employers shall also notify employees of any changes in the arrangements, specified above, prior to the time of change.

(b) Employers shall keep records of names and addresses of all employees and of wages paid each payday, and shall furnish each employee with a pay stub an itemized statement of deductions made from his wages for each pay period.

(c) An employer shall maintain a copy of an employee's pay stub for a period of not less than 3 years after the date of payment, whether the pay stub is furnished electronically or in paper form.

(d) In addition to furnishing a pay stub for each pay period as required under subsection (b), an employer shall furnish the pay stub to an employee or former employee upon the employee or former employee's request. An employer who furnishes electronic pay stubs in a manner that is restricted to the employer's current employees must, upon an employee's separation from employment, provide the employee or former employee with a paper or emailed electronic record of all of the employee's or former employee's pay stubs for up to 3 years prior to the date of separation, in the method specified by the employee or former employee.

(e) Every employer shall post and keep posted at each regular place of business in a position easily accessible to all employees one or more notices indicating the regular paydays and the place and time for payment of his employees, and on forms supplied from time to time by the Department of Labor containing a copy or summary of the provisions of this Act.

(Source: P.A. 81-593.)

(820 ILCS 115/14) (from Ch. 48, par. 39m-14)

Sec. 14. Penalties.

(a) Any employee not timely paid wages, final compensation, or wage supplements by his or her employer as required by this Act shall be entitled to recover through a claim filed with the Department of Labor or in a civil action, but not both, the amount of any such underpayments and damages of 5% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid. In a civil action, such employee shall also recover costs and all reasonable attorney's fees.

(a-5) In addition to the remedies provided in subsections (a), (b), and (c) of this Section, any employer or any agent of an employer, who, being able to pay wages, final compensation, or wage supplements and being under a duty to pay, willfully wilfully refuses to pay as provided in this Act, or falsely denies the amount or validity thereof or that the same is due, with intent to secure for himself or other person any underpayment of such indebtedness or with intent to annoy, harass, oppress, hinder, delay or defraud the person to whom such indebtedness is due, upon conviction, is guilty of:

(1) for unpaid wages, final compensation or wage supplements in the amount of $5,000 or less, a Class B misdemeanor; or

(2) for unpaid wages, final compensation or wage supplements in the amount of more than $5,000, a Class A misdemeanor.

Each day during which any violation of this Act continues shall constitute a separate and distinct offense.

Any employer or any agent of an employer who violates this Section of the Act a subsequent time within 2 years of a prior criminal conviction under this Section is guilty, upon conviction, of a Class 4 felony.

(b) Any employer who has been demanded or ordered by the Department or ordered by the court to pay wages, final compensation, or wage supplements due an employee shall be required to pay a non-waivable administrative fee to the Department of Labor in the amount of $250 if the amount ordered by the Department as wages owed is $3,000 or less; $500 if the amount ordered by the Department as wages owed is more than $3,000, but less than $10,000; and $1,000 if the amount ordered by the Department as wages owed is $10,000 or more. Any employer who has been so demanded or ordered by the Department or ordered by a court to pay such wages, final compensation, or wage supplements and who fails to seek timely review of such a demand or order as provided for under this Act and who fails to comply within 15 calendar days after such demand or within 35 days of an administrative or court order is entered shall also be liable to pay a penalty to the Department of Labor of 20% of the amount found owing and a penalty to the employee of 1% per calendar day of the amount found owing for each day of delay in paying such wages to the employee. All moneys recovered as fees and civil penalties under this Act, except those owing to the affected employee, shall be deposited into the Wage Theft Enforcement Fund, a special fund which is hereby created in the State treasury. Moneys in the Fund may be used for enforcement of this Act and for outreach and educational activities of the Department related to the recovery of unpaid or underpaid compensation and the disbursement of moneys to affected parties.

(b-5) Penalties and fees under this Section may be assessed by the Department and recovered in a civil action brought by the Department in any circuit court or in any administrative adjudicative proceeding under this Act. In any such civil action or administrative adjudicative proceeding under this Act, the Department shall be represented by the Attorney General.

(c) Any employer, or any agent of an employer, who discharges or in any other manner discriminates against any employee because that employee has made a complaint to his or her employer, to the Director of Labor or his or her authorized representative, in a public hearing, or to a community organization that he or she has not been paid in accordance with the provisions of this Act, or because that employee has caused to be instituted any proceeding under or related to this Act, or because that employee has testified or is about to testify in an investigation or proceeding under this Act, is guilty, upon conviction, of a Class C misdemeanor. An employee who has been unlawfully retaliated against shall be entitled to recover through a claim filed with the Department of Labor or in a civil action, but not both, all legal and equitable relief as may be appropriate. In a civil action, such employee shall also recover costs and all reasonable attorney's fees.

(d) Except as provided under subsections (a), (b), and (c), an employer who fails to furnish an employee with a pay stub as required by this Act or commits any other violation of this Act, shall be subject to a civil penalty of $500 per violation payable to the Department.

(Source: P.A. 102-50, eff. 7-9-21; 103-182, eff. 6-30-23.)