103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB5071

 

Introduced 2/8/2024, by Rep. Lilian Jiménez

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Work Without Fear Act. Provides that it is unlawful for any person to engage in, or to direct another person to engage in, immigration-related retaliation against any person or his or her family member or household member for the purpose of, or with the effect of, retaliating against any person for exercising any right protected under State employment laws or by any local employment ordinance. Sets forth the duties and powers of the Department of Labor under 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 has violated the Act. Provides that nothing in the Act shall be construed to prevent any person from making complaint or prosecuting his or her own claim for damages caused by retaliation. Allows a person who is the subject of retaliation prohibited by the Act to bring a civil action for: (1) back pay, with interest, and front pay, or, in lieu of actual damages, liquidated damages of $30,000; (2) a civil penalty in an amount not to exceed $10,000; (3) reasonable attorney's fees and court costs; and (4) equitable relief as the court may deem appropriate and just. Provides that a person that violates any provision of the Act shall be subject to an additional civil penalty in an amount of $25,000 for each violation, or $50,000 for each repeat violation within a 5-year period. Sets forth license suspension penalties for violations of the Act. Effective January 1, 2025.


LRB103 39402 SPS 69583 b

 

 

A BILL FOR

 

HB5071LRB103 39402 SPS 69583 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Work
5Without Fear Act.
 
6    Section 5. Legislative findings. The General Assembly
7finds as follows:
8        (1) Wage theft is a serious and widespread problem
9    that causes severe hardship to low-wage workers, their
10    families, and their communities.
11        (2) When a worker is denied wages or is forced to work
12    "off the clock", there is an immediate and irreparable
13    harm to the worker and his or her family.
14        (3) Low-wage, often immigrant, workers are among the
15    most frequent victims of wage theft and are also exposed
16    to the greatest hazards at work.
17        (4) Immigrant workers are among those most frequently
18    injured or killed on the job.
19        (5) Workers who come forward to expose unfair, unsafe,
20    or illegal conditions face retaliation from employers with
21    alarming frequency. When those workers are immigrants,
22    employer retaliation often involves threats or efforts to
23    contact law enforcement agencies, including immigration

 

 

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1    enforcement agencies, if a worker engages in protected
2    conduct.
3        (6) No applicant or employee should have to fear
4    adverse action, whether it involves threats to cut hours,
5    move a worker to an undesirable schedule, or contact law
6    enforcement agencies, for exercising employment rights
7    guaranteed by the State of Illinois.
8        (7) It is in the public policy interest of the State of
9    Illinois that workers be able to report concerns to their
10    employers and to Illinois labor enforcement agencies
11    without fear of retaliation or discrimination.
12        (8) It is in the public policy interest of the State of
13    Illinois for workers to be willing to come forward to
14    expose hazardous, unsafe, and unfair conditions at their
15    work sites so that local, State, and federal agencies can
16    effectively enforce the law.
17        (9) It is essential to the enforcement of Illinois'
18    labor laws that broad, clear, and effective protections
19    from all forms of employer retaliation, including
20    prohibiting immigration-related threats, exist for workers
21    engaging in conduct protected by law.
 
22    Section 10. Definitions. As used in this Act:
23    "Applicable employment laws" means the Wage Payment and
24Collection Act, the Prevailing Wage Act, the Minimum Wage Law,
25the Day and Temporary Labor Services Act, the Equal Pay Act of

 

 

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12003, the Workers Compensation Act, the One Day Rest in Seven
2Act, the Victims' Economic Security and Safety Act, the
3Employee Sick Leave Act, the Child Labor Law, the Collective
4Bargaining Freedom Act, the Employee Classification Act, the
5Domestic Workers Bill of Rights, the Right to Privacy in the
6Workplace Act, the Illinois Worker Adjustment and Retraining
7Notification Act, the Family Bereavement Act, the Job
8Opportunities for Qualified Applicants Act, the Paid Leave for
9All Workers Act, the Personnel Record Review Act, and any new
10Act concerning employment rights.
11    "Applicant" means any person pursuing employment with an
12employer or with or through an employment agency or a day and
13temporary labor service agency.
14    "Department" means the Department of Labor.
15    "Director" means the Director of Labor.
16    "Employer" means an individual, sole proprietorship,
17partnership, firm, association, corporation, limited liability
18company, business trust, and any other entity that has one or
19more employees in this State or any person or group of persons
20acting directly or indirectly in the interest of an employer
21in relation to an employee.
22    "Employee" means any individual permitted to work by an
23employer in an occupation, but shall not include any
24individual:
25        (1) who has been and will continue to be free from
26    control and direction over the performance of his or her

 

 

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1    work, both under a contract of service with the employer
2    and in fact;
3        (2) who performs a service that is outside the usual
4    course of services performed by the employer; and
5        (3) who is in an independently established trade,
6    occupation, profession, or business.
7    "Family or household member" means a spouse or party to a
8civil union, parent, grandparent, child, grandchild, sibling,
9or any other person related by blood or by present or prior
10marriage or civil union, any other person who shares a
11relationship through a child, or any other individual whose
12close association with the applicant, employee, or independent
13contractor is the equivalent of a family relationship as
14determined by the applicant, employee, independent contractor,
15or persons jointly residing in the same household.
16    "Immigration-related retaliation" means any of the
17following practices, when undertaken for a retaliatory
18purpose:
19        (1) contacting or threatening to contact United States
20    immigration authorities, or otherwise reporting or
21    threatening to report a person's or employee's suspected
22    citizenship or immigration status or the suspected
23    citizenship or immigration status of a family or household
24    member of the person or employee to a federal, State, or
25    local agency;
26        (2) using the federal E-Verify system to check the

 

 

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1    employment authorization status of a person at a time or
2    in a manner not required under 8 U.S.C. 1324a(b) or not
3    authorized under any memorandum of understanding governing
4    the use of the federal E-Verify system;
5        (3) engaging in unfair documentary practices by
6    demanding more or different documents than necessary,
7    requesting specific documents, or rejecting reasonably
8    genuine-looking documents while verifying a worker's
9    citizenship, immigration status, or national origin, as
10    described in 8 U.S.C. 1324b(a)(6); and
11        (4) filing or threatening to file a false police
12    report.
13    "Immigration-related retaliation" does not include conduct
14undertaken at the express and specific direction or request of
15the federal government.
16    "License" means any agency permit, certificate, approval,
17registration, or charter that is required by law and that is
18issued by any agency for the purposes of operating a business
19in this State. "License" does not include a professional
20license.
21    "Person" means every natural person, firm, partnership,
22copartnership, limited liability company, corporation,
23association, business trust, or other legal entity, or its
24legal representatives, agents, or assignees.
25    "Violation" means each incident when an act of
26immigration-related retaliation was committed, without

 

 

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1reference to the number of applicants, employees, or
2independent contractors involved in the incident.
 
3    Section 15. Prohibited immigration-related retaliation.
4    (a) Notwithstanding any other provision of law, it shall
5be unlawful for an employer or any other person or entity to
6engage in, or to direct another person or entity to engage in,
7immigration-related retaliation against any applicant,
8employee, independent contractor, or his or her family member
9or household member for the purpose of, or with the effect of,
10retaliating against any applicant, employee, or independent
11contractor who in good faith:
12        (1) files a complaint or informs any person of an
13    employer's or other party's alleged violation of an
14    applicable employment law;
15        (2) seeks information regarding whether an employer or
16    other party is in compliance with an applicable employment
17    law;
18        (3) informs a person of his or her potential rights
19    and remedies under an applicable employment law or assists
20    them in asserting those rights;
21        (4) files a complaint, seeks information, or informs a
22    person of his or her rights concerning conduct prohibited
23    by Section 2-101 of the Illinois Human Rights Act;
24        (5) has exercised his or her rights protected by an
25    applicable employment law or local ordinance in any former

 

 

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1    employment; or
2        (6) discloses or threatens to disclose that an
3    activity, policy, or practice of the employer poses a
4    substantial and specific danger to public health or
5    safety.
6    (b) Engaging in immigration-related retaliation against a
7person within 90 days after the person's exercise of rights
8protected under this Act shall raise a rebuttable presumption
9of having done so in retaliation for the exercise of those
10rights. The presumption of an unfair immigration-related
11action taken by an employer or other entity may be rebutted by
12clear and convincing evidence that the action was taken for a
13permissible purpose.
 
14    Section 20. Enforcement by Department.
15    (a) It shall be the duty of the Department to inquire
16diligently into any alleged violations of this Act, to
17institute the actions for the penalties provided in this
18Section, and to enforce the provisions of this Act.
19        (1) An applicant, employee, or independent contractor
20    may file a complaint with the Department alleging
21    violations of this Act by submitting a signed, completed
22    complaint on the form provided by the Department alleging
23    immigration-related retaliation and by submitting copies
24    of all supporting documentation. Complaints shall be filed
25    within one year after the date of the retaliation.

 

 

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1        (2) Complaints shall be reviewed by the Department to
2    determine whether there is cause for investigation.
3    (b) The Department shall have the following powers to
4enforce this Act:
5        (1) Investigate and attempt equitably to adjust
6    controversies between applicants, employees, or
7    independent contractors and employers regarding claims of
8    immigration-related retaliation under this Act, including
9    administering oaths, subpoenaing and examining witnesses,
10    issuing subpoenas duces tecum requiring the production of
11    books, papers, records, and documents as may be evidence
12    of any matter under inquiry, and examining and inspecting
13    the books, papers, records, and documents as may relate to
14    the question in dispute. Service of subpoenas shall be
15    made by any sheriff or any person. Any court in this State,
16    upon the application of the Department, may compel
17    attendance of witnesses, the production of books and
18    papers, and the giving of testimony before the Department
19    by attachment for contempt or in any other way as the
20    production of evidence may be compelled before the court.
21        (2) Take complaints of immigration-related retaliation
22    in the name of the Director and his or her successors in
23    office and prosecute actions for the collection of
24    remedies and penalties for immigration-related retaliation
25    for persons financially unable to prosecute the claims
26    when in the judgment of the Department the claims are

 

 

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1    valid and enforceable in the courts. No court costs or any
2    fees for necessary process and proceedings shall be
3    payable in advance by the Department for prosecuting the
4    actions. If there is a judgment rendered against the
5    defendant, the court shall assess as part of the judgment
6    the costs of the proceeding. Upon collection of the
7    judgment, the Department shall pay from the proceeds of
8    the judgment the costs to the person who is by law entitled
9    to compensation. The Department may join in a single
10    proceeding any number of immigration-related retaliation
11    claims against the same employer, but the court shall have
12    discretionary power to order a severance or separate trial
13    for hearings.
14        (3) Make complaint in any court of competent
15    jurisdiction of violations of this Act.
16        (4) Order the appropriate government agency to suspend
17    licenses held by violating parties.
18    In addition to these powers, the Department may establish
19an administrative procedure to adjudicate claims and to issue
20final and binding administrative decisions on claims subject
21to the Administrative Review Law. To establish the procedure,
22the Director or the Director's authorized representative may
23adopt rules. The adoption, amendment, or rescission of rules
24for the procedure shall be in conformity with the requirements
25of the Illinois Administrative Procedure Act. If a final and
26binding administrative decision issued by the Department

 

 

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1requires an employer or other party to pay wages, penalties,
2or other amounts in connection with an immigration-related
3retaliation claim, and the employer or other party has
4neither: (i) made the required payment within 35 days after
5the issuance of the final and binding administrative decision;
6nor (ii) timely filed a complaint seeking review of the final
7and binding administrative decision pursuant to the
8Administrative Review Law in a court of competent
9jurisdiction, the Department may file a verified petition
10against the employer or other party to enforce the final
11administrative decision and to collect any amounts due in
12connection therewith in the circuit court of any county where
13an official office of the Department is located.
 
14    Section 25. Enforcement by Attorney General.
15    (a) Whenever the Attorney General has reasonable cause to
16believe that any employer, putative employer, or person acting
17on behalf of an employer has violated this Act, the Attorney
18General may, pursuant to the authority in Section 6.3 of the
19Attorney General Act, initiate or intervene in a civil action
20in the name of the People of the State in any circuit court to
21obtain appropriate relief.
22    (b) Before initiating or intervening in an action, the
23Attorney General may, pursuant to the authority in Section 6.3
24of the Attorney General Act, conduct an investigation and may:
25        (1) require any individual to file a statement or

 

 

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1    report in writing under oath or otherwise as to all
2    information the Attorney General may consider necessary;
3        (2) examine under oath any individual alleged to have
4    participated in or with knowledge of the alleged
5    violation; or
6        (3) issue subpoenas or conduct hearings in aid of any
7    investigation.
8    (c) Whenever a party refuses to produce a document, answer
9an interrogatory, or provide testimony under oath in response
10to a subpoena from the Attorney General, the Attorney General,
11pursuant to the authority in Section 6.3 of the Attorney
12General Act, may petition the circuit court for an order
13compelling compliance.
 
14    Section 30. Private right of action. Nothing in this Act
15shall be construed to prevent any applicant, employee,
16putative employee, or independent contractor from making
17complaint or prosecuting his or her own claim for damages
18caused by immigration-related retaliation. Any applicant,
19employee, putative employee, or independent contractor
20aggrieved by an actual or suspected violation of this Act or
21any rule adopted under this Act may, within 2 years after the
22date of the retaliation, file suit in circuit court, in the
23county where the alleged violation occurred or where any
24person who is party to the action resides, without regard to
25exhaustion of any alternative administrative remedies provided

 

 

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1in this Act. Actions may be brought by one or more applicants,
2employees, or independent contractors for and on behalf of
3themselves and other persons similarly situated.
 
4    Section 35. Remedies and penalties.
5    (a) An applicant, employee, or other person who is the
6subject of an immigration-related retaliation prohibited by
7this Act, or a representative of that applicant, employee, or
8person, may bring a civil action for any one or more of the
9following remedies:
10        (1) back pay, with interest, and front pay, or, in
11    lieu of actual damages, at the employee's election,
12    liquidated damages of $30,000;
13        (2) a civil penalty in an amount not to exceed
14    $10,000, payable to the applicant, employee, or
15    independent contractor;
16        (3) reasonable attorney's fees and court costs,
17    including any expert witness costs; and
18        (4) equitable relief as the court may deem appropriate
19    and just.
20    An action under this Act shall not limit or otherwise
21affect the applicability of other rights and remedies under an
22applicable employment law or under the Whistleblower Act.
23    (b) An employer that violates any provision of this Act
24shall be subject to an additional civil penalty in an amount of
25$25,000 for each violation of Section 10 and $50,000 for each

 

 

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1repeat violation of Section 10 within a 5-year period.
2    The penalty amount may be recovered in any administrative
3proceeding by the Department or a civil action filed in any
4circuit court by the Director or the Attorney General. All
5moneys received by the Department as fees and civil penalties
6under this Act shall be deposited into the Child Labor and Day
7and Temporary Labor Services Enforcement Fund and shall be
8used by the Department for administration, investigation, and
9other expenses incurred in carrying out its powers and duties
10under this Act.
11    In any civil action brought by the Attorney General, the
12penalty amount shall be deposited into the Attorney General
13Court Ordered and Voluntary Compliance Payment Projects Fund.
14Moneys in the Fund shall be used for the performance of any
15function pertaining to the exercise of the duties of the
16Attorney General, including, but not limited to, enforcement
17of any law of this State and conducting public education
18programs. However, any moneys in the Fund that are required by
19the court or by an agreement to be used for a particular
20purpose shall be used for that purpose. Any uncollected
21penalty amount shall be subject to the provisions of the
22Illinois State Collection Act of 1986.
23    (c) Upon a finding by a court of applicable jurisdiction
24of a violation of this Act:
25        (1) For a first violation, the court may order the
26    appropriate government agencies to suspend all licenses

 

 

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1    subject to this Act that are held by the violating party
2    for a period of up to 14 days. On receipt of the court's
3    order and notwithstanding any other law, the appropriate
4    agencies shall immediately suspend the licenses.
5        (2) For a second violation, the court may order the
6    appropriate government agencies to suspend all licenses
7    subject to this Act that are held by the violating party
8    for a period of up to 30 days. On receipt of the court's
9    order and notwithstanding any other law, the appropriate
10    agencies shall immediately suspend the licenses.
11        (3) For a third violation and any violation
12    thereafter, the court may order the appropriate government
13    agencies to suspend all licenses subject to this Act that
14    are held by the violating party for a period of up to 90
15    days. On receipt of the court's order and notwithstanding
16    any other law, the appropriate agencies shall immediately
17    suspend the licenses.
18    For the purposes of this subsection, the licenses that are
19subject to suspension are all licenses held by the violating
20party specific to the business location or locations where the
21immigration-related retaliation occurred. In determining
22whether a suspension of all licenses is appropriate, the court
23shall consider whether the employer knowingly committed
24immigration-related retaliation, the good faith efforts of the
25employer to resolve any alleged immigration-related
26retaliation after receiving notice of the violations, and the

 

 

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1harm other applicants, employees, or independent contractors
2of the employer, or applicants, employees, or independent
3contractors of other employers on a multi-employer job site,
4will suffer as a result of the suspension of all licenses.
5    (d) An applicant, employee, or other person who is the
6subject of immigration-related retaliation prohibited by this
7Section, and who prevails in an action authorized by this
8Section, shall recover its reasonable attorney's fees and
9costs, including any expert witness costs.
 
10    Section 40. Administration. The Director or the Director's
11authorized representatives shall administer and enforce the
12provisions of this Act. In order to accomplish the objectives
13of this Act and to carry out the duties prescribed by this Act,
14the Director or the Director's authorized representatives
15shall, within one year after the effective date of this Act,
16adopt rules necessary to administer and enforce the provisions
17of this Act, including the procedures that shall be followed
18for investigations and hearings under Section 20, in
19accordance with the Illinois Administrative Procedure Act.
 
20    Section 99. Effective date. This Act takes effect January
211, 2025.