97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1565

 

Introduced 2/9/2011, by Sen. Kimberly A. Lightford - Iris Y. Martinez - Jacqueline Y. Collins

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 105/3  from Ch. 48, par. 1003
820 ILCS 105/4  from Ch. 48, par. 1004
820 ILCS 105/4a  from Ch. 48, par. 1004a
820 ILCS 105/12  from Ch. 48, par. 1012

    Amends the Minimum Wage Law. Provides for fewer limitations on the definition of "employee." Provides a procedure for increasing the minimum wage annually to restore the minimum wage to its historic level and thereafter increasing the minimum wage by the increase in the cost of living during the preceding year. Deletes language pertaining to temporary or irregular employees and employees under the age of 18. Provides for an increased amount of damages recoverable by an employee that is paid less than the wage to which he is entitled to under the Minimum Wage Law. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB1565LRB097 08781 AEK 48911 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 5. The Minimum Wage Law is amended by changing
5Sections 3, 4, 4a, and 12 as follows:
 
6    (820 ILCS 105/3)  (from Ch. 48, par. 1003)
7    Sec. 3. As used in this Act:
8    (a) "Director" means the Director of the Department of
9Labor, and "Department" means the Department of Labor.
10    (b) "Wages" means compensation due to an employee by reason
11of his employment, including allowances determined by the
12Director in accordance with the provisions of this Act for
13gratuities and, when furnished by the employer, for meals and
14lodging actually used by the employee.
15    (c) "Employer" includes any individual, partnership,
16association, corporation, limited liability company, business
17trust, governmental or quasi-governmental body, or any person
18or group of persons acting directly or indirectly in the
19interest of an employer in relation to an employee, for which
20one or more persons are gainfully employed on some day within a
21calendar year. An employer is subject to this Act in a calendar
22year on and after the first day in such calendar year in which
23he employs one or more persons, and for the following calendar

 

 

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1year.
2    (d) "Employee" includes any individual permitted to work by
3an employer in an occupation, but does not include any
4individual permitted to work:
5        (1) (Blank). For an employer employing fewer than 4
6    employees exclusive of the employer's parent, spouse or
7    child or other members of his immediate family.
8        (2) As an employee employed in agriculture or
9    aquaculture (A) if such employee is employed by an employer
10    who did not, during any calendar quarter during the
11    preceding calendar year, use more than 500 man-days of
12    agricultural or aquacultural labor, (B) if such employee is
13    the parent, spouse or child, or other member of the
14    employer's immediate family, (C) if such employee (i) is
15    employed as a hand harvest laborer and is paid on a piece
16    rate basis in an operation which has been, and is
17    customarily and generally recognized as having been, paid
18    on a piece rate basis in the region of employment, (ii)
19    commutes daily from his permanent residence to the farm on
20    which he is so employed, and (iii) has been employed in
21    agriculture less than 13 weeks during the preceding
22    calendar year, (D) if such employee (other than an employee
23    described in clause (C) of this subparagraph): (i) is 16
24    years of age or under and is employed as a hand harvest
25    laborer, is paid on a piece rate basis in an operation
26    which has been, and is customarily and generally recognized

 

 

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1    as having been, paid on a piece rate basis in the region of
2    employment, (ii) is employed on the same farm as his parent
3    or person standing in the place of his parent, and (iii) is
4    paid at the same piece rate as employees over 16 are paid
5    on the same farm.
6        (3) (Blank). In domestic service in or about a private
7    home.
8        (4) As an outside salesman.
9        (5) As a member of a religious corporation or
10    organization.
11        (6) At an accredited Illinois college or university
12    employed by the college or university at which he is a
13    student who is covered under the provisions of the Fair
14    Labor Standards Act of 1938, as heretofore or hereafter
15    amended.
16        (7) For a motor carrier and with respect to whom the
17    U.S. Secretary of Transportation has the power to establish
18    qualifications and maximum hours of service under the
19    provisions of Title 49 U.S.C. or the State of Illinois
20    under Section 18b-105 (Title 92 of the Illinois
21    Administrative Code, Part 395 - Hours of Service of
22    Drivers) of the Illinois Vehicle Code.
23    The above exclusions from the term "employee" may be
24further defined by regulations of the Director.
25    (e) "Occupation" means an industry, trade, business or
26class of work in which employees are gainfully employed.

 

 

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1    (f) "Gratuities" means voluntary monetary contributions to
2an employee from a guest, patron or customer in connection with
3services rendered.
4    (g) "Outside salesman" means an employee regularly engaged
5in making sales or obtaining orders or contracts for services
6where a major portion of such duties are performed away from
7his employer's place of business.
8    (h) "Day camp" means a seasonal recreation program in
9operation for no more than 16 weeks intermittently throughout
10the calendar year, accommodating for profit or under
11philanthropic or charitable auspices, 5 or more children under
1218 years of age, not including overnight programs. The term
13"day camp" does not include a "day care agency", "child care
14facility" or "foster family home" as licensed by the Illinois
15Department of Children and Family Services.
16(Source: P.A. 94-1025, eff. 7-14-06; 95-945, eff. 1-1-09.)
 
17    (820 ILCS 105/4)  (from Ch. 48, par. 1004)
18    Sec. 4. (a)(1) Every employer shall pay to each of his
19employees in every occupation wages of not less than $2.30 per
20hour or in the case of employees under 18 years of age wages of
21not less than $1.95 per hour, except as provided in Sections 5
22and 6 of this Act, and on and after January 1, 1984, every
23employer shall pay to each of his employees in every occupation
24wages of not less than $2.65 per hour or in the case of
25employees under 18 years of age wages of not less than $2.25

 

 

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1per hour, and on and after October 1, 1984 every employer shall
2pay to each of his employees in every occupation wages of not
3less than $3.00 per hour or in the case of employees under 18
4years of age wages of not less than $2.55 per hour, and on or
5after July 1, 1985 every employer shall pay to each of his
6employees in every occupation wages of not less than $3.35 per
7hour or in the case of employees under 18 years of age wages of
8not less than $2.85 per hour, and from January 1, 2004 through
9December 31, 2004 every employer shall pay to each of his or
10her employees who is 18 years of age or older in every
11occupation wages of not less than $5.50 per hour, and from
12January 1, 2005 through June 30, 2007 every employer shall pay
13to each of his or her employees who is 18 years of age or older
14in every occupation wages of not less than $6.50 per hour, and
15from July 1, 2007 through June 30, 2008 every employer shall
16pay to each of his or her employees who is 18 years of age or
17older in every occupation wages of not less than $7.50 per
18hour, and from July 1, 2008 through June 30, 2009 every
19employer shall pay to each of his or her employees who is 18
20years of age or older in every occupation wages of not less
21than $7.75 per hour, and from July 1, 2009 through June 30,
222010 every employer shall pay to each of his or her employees
23who is 18 years of age or older in every occupation wages of
24not less than $8.00 per hour, and on and after July 1, 2010
25every employer shall pay to each of his or her employees who is
2618 years of age or older in every occupation wages of not less

 

 

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1than $8.25 per hour.
2    (2) (Blank). Unless an employee's wages are reduced under
3Section 6, then in lieu of the rate prescribed in item (1) of
4this subsection (a), an employer may pay an employee who is 18
5years of age or older, during the first 90 consecutive calendar
6days after the employee is initially employed by the employer,
7a wage that is not more than 50 less than the wage prescribed
8in item (1) of this subsection (a); however, an employer shall
9pay not less than the rate prescribed in item (1) of this
10subsection (a) to:
11        (A) a day or temporary laborer, as defined in Section 5
12    of the Day and Temporary Labor Services Act, who is 18
13    years of age or older; and
14        (B) an employee who is 18 years of age or older and
15    whose employment is occasional or irregular and requires
16    not more than 90 days to complete.
17    (3) (Blank). At no time shall the wages paid to any
18employee under 18 years of age be more than 50 less than the
19wage required to be paid to employees who are at least 18 years
20of age under item (1) of this subsection (a).
21    (4) Beginning on the later of July 1, 2011 or 60 days after
22the effective date of this amendatory Act of the 97th General
23Assembly, and on July 1st of each year thereafter, the minimum
24wage established in subsection (a)(1) of this Section shall be
25increased by $0.50 plus an additional amount equal to the
26increase in the cost of living during the preceding year, until

 

 

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1the minimum wage is restored to its historic level. Thereafter
2the minimum wage shall be increased on July 1st of each year by
3the increase in the cost of living during the preceding year.
4    (5) The historic level of the minimum wage shall be the
5inflation adjusted equivalent of $1.60 per hour in 1968, and
6shall be calculated by adjusting that wage rate to the current
7year's dollars based on the percentage change in the Consumer
8Price Index for all Urban Consumers (or a successor index if
9any) as published by the Bureau of Labor Statistics of the
10United States Department of Labor, between January 1, 1968 and
11the most recent month for which data is available at the time
12the adjustment is made.
13    (6) The increase in the cost of living during the preceding
14year shall be calculated by multiplying the current minimum
15wage by the twelve-month percentage increase, if any, in the
16Consumer Price Index for all Urban Consumers based on the most
17recent 12 month period for which data is available when the
18adjustment is made and rounding that result to the nearest 5
19cents.
20    (7) The adjusted minimum wage shall be calculated and
21announced by April 1 of each year, except for 2011 when the
22adjusted minimum wage may be announced later than April 1.
23    (b) No employer shall discriminate between employees on the
24basis of sex or mental or physical handicap, except as
25otherwise provided in this Act by paying wages to employees at
26a rate less than the rate at which he pays wages to employees

 

 

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1for the same or substantially similar work on jobs the
2performance of which requires equal skill, effort, and
3responsibility, and which are performed under similar working
4conditions, except where such payment is made pursuant to (1) a
5seniority system; (2) a merit system; (3) a system which
6measures earnings by quantity or quality of production; or (4)
7a differential based on any other factor other than sex or
8mental or physical handicap, except as otherwise provided in
9this Act.
10    (c) (Blank). Every employer of an employee engaged in an
11occupation in which gratuities have customarily and usually
12constituted and have been recognized as part of the
13remuneration for hire purposes is entitled to an allowance for
14gratuities as part of the hourly wage rate provided in Section
154, subsection (a) in an amount not to exceed 40% of the
16applicable minimum wage rate. The Director shall require each
17employer desiring an allowance for gratuities to provide
18substantial evidence that the amount claimed, which may not
19exceed 40% of the applicable minimum wage rate, was received by
20the employee in the period for which the claim of exemption is
21made, and no part thereof was returned to the employer.
22    (d) No camp counselor who resides on the premises of a
23seasonal camp of an organized not-for-profit corporation shall
24be subject to the adult minimum wage if the camp counselor (1)
25works 40 or more hours per week, and (2) receives a total
26weekly salary of not less than the adult minimum wage for a

 

 

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140-hour week. If the counselor works less than 40 hours per
2week, the counselor shall be paid the minimum hourly wage for
3each hour worked. Every employer of a camp counselor under this
4subsection is entitled to an allowance for meals and lodging as
5part of the hourly wage rate provided in Section 4, subsection
6(a), in an amount not to exceed 25% of the minimum wage rate.
7    (e) A camp counselor employed at a day camp is not subject
8to the adult minimum wage if the camp counselor is paid a
9stipend on a onetime or periodic basis and, if the camp
10counselor is a minor, the minor's parent, guardian or other
11custodian has consented in writing to the terms of payment
12before the commencement of such employment.
13(Source: P.A. 94-1072, eff. 7-1-07; 94-1102, eff. 7-1-07;
1495-945, eff. 1-1-09.)
 
15    (820 ILCS 105/4a)  (from Ch. 48, par. 1004a)
16    Sec. 4a. (1) Except as otherwise provided in this Section,
17no employer shall employ any of his employees for a workweek of
18more than 40 hours unless such employee receives compensation
19for his employment in excess of the hours above specified at a
20rate not less than 1 1/2 times the regular rate at which he is
21employed.
22    (2) The provisions of subsection (1) of this Section are
23not applicable to:
24        A. Any salesman or mechanic primarily engaged in
25    selling or servicing automobiles, trucks or farm

 

 

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1    implements, if he is employed by a nonmanufacturing
2    establishment primarily engaged in the business of selling
3    such vehicles or implements to ultimate purchasers.
4        B. Any salesman primarily engaged in selling trailers,
5    boats, or aircraft, if he is employed by a nonmanufacturing
6    establishment primarily engaged in the business of selling
7    trailers, boats, or aircraft to ultimate purchasers.
8        C. (Blank). Any employer of agricultural labor, with
9    respect to such agricultural employment.
10        D. Any employee of a governmental body excluded from
11    the definition of "employee" under paragraph (e)(2)(C) of
12    Section 3 of the Federal Fair Labor Standards Act of 1938.
13        E. Any employee employed in a bona fide executive,
14    administrative or professional capacity, including any
15    radio or television announcer, news editor, or chief
16    engineer, as defined by or covered by the Federal Fair
17    Labor Standards Act of 1938 and the rules adopted under
18    that Act, as both exist on March 30, 2003, but compensated
19    at the amount of salary specified in subsections (a) and
20    (b) of Section 541.600 of Title 29 of the Code of Federal
21    Regulations as proposed in the Federal Register on March
22    31, 2003 or a greater amount of salary as may be adopted by
23    the United States Department of Labor. For bona fide
24    executive, administrative, and professional employees of
25    not-for-profit corporations, the Director may, by
26    regulation, adopt a weekly wage rate standard lower than

 

 

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1    that provided for executive, administrative, and
2    professional employees covered under the Fair Labor
3    Standards Act of 1938, as now or hereafter amended.
4        F. Any commissioned employee as described in paragraph
5    (i) of Section 7 of the Federal Fair Labor Standards Act of
6    1938 and rules and regulations promulgated thereunder, as
7    now or hereafter amended.
8        G. Any employment of an employee in the stead of
9    another employee of the same employer pursuant to a
10    worktime exchange agreement between employees.
11        H. Any employee of a not-for-profit educational or
12    residential child care institution who (a) on a daily basis
13    is directly involved in educating or caring for children
14    who (1) are orphans, foster children, abused, neglected or
15    abandoned children, or are otherwise homeless children and
16    (2) reside in residential facilities of the institution and
17    (b) is compensated at an annual rate of not less than
18    $13,000 or, if the employee resides in such facilities and
19    receives without cost board and lodging from such
20    institution, not less than $10,000.
21        I. Any employee employed as a crew member of any
22    uninspected towing vessel, as defined by Section 2101(40)
23    of Title 46 of the United States Code, operating in any
24    navigable waters in or along the boundaries of the State of
25    Illinois.
26    (3) Any employer may employ any employee for a period or

 

 

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1periods of not more than 10 hours in the aggregate in any
2workweek in excess of the maximum hours specified in subsection
3(1) of this Section without paying the compensation for
4overtime employment prescribed in subsection (1) if during that
5period or periods the employee is receiving remedial education
6that:
7        (a) is provided to employees who lack a high school
8    diploma or educational attainment at the eighth grade
9    level;
10        (b) is designed to provide reading and other basic
11    skills at an eighth grade level or below; and
12        (c) does not include job specific training.
13    (4) A governmental body is not in violation of subsection
14(1) if the governmental body provides compensatory time
15pursuant to paragraph (o) of Section 7 of the Federal Fair
16Labor Standards Act of 1938, as now or hereafter amended, or is
17engaged in fire protection or law enforcement activities and
18meets the requirements of paragraph (k) of Section 7 or
19paragraph (b)(20) of Section 13 of the Federal Fair Labor
20Standards Act of 1938, as now or hereafter amended.
21(Source: P.A. 92-623, eff. 7-11-02; 93-672, eff. 4-2-04.)
 
22    (820 ILCS 105/12)  (from Ch. 48, par. 1012)
23    Sec. 12. (a) If any employee is paid by his employer less
24than the wage to which he is entitled under the provisions of
25this Act, the employee may recover in a civil action the amount

 

 

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1of any such underpayments, including interest thereon,
2together with costs and such reasonable attorney's fees as may
3be allowed by the Court, and an additional amount of damages
4equal to twice the underpaid wages and damages of 2% of the
5amount of any such underpayments for each month following the
6date of payment during which such underpayments remain unpaid.
7Any agreement between the employee and the employer to work for
8less than such wage is no defense to such action. At the
9request of the employee or on motion of the Director of Labor,
10the Department of Labor may make an assignment of such wage
11claim in trust for the assigning employee and may bring any
12legal action necessary to collect such claim, and the employer
13shall be required to pay the costs incurred in collecting such
14claim. Every such action shall be brought within 3 years from
15the date of the underpayment. Such employer shall be liable to
16the Department of Labor for up to 20% of the total employer's
17underpayment where the employer's conduct is proven by a
18preponderance of the evidence to be willful, repeated, or with
19reckless disregard of this Act or any rule adopted under this
20Act. Such employer shall be additionally liable to the employee
21for an additional amount of damages equal to twice the
22underpaid wages damages in the amount of 2% of the amount of
23any such underpayments for each month following the date of
24payment during which such underpayments remain unpaid. These
25penalties and damages may be recovered in a civil action
26brought by the Director of Labor in any circuit court. In any

 

 

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1such action, the Director of Labor shall be represented by the
2Attorney General.
3    If an employee collects an additional amount of damages
4equal to twice the underpaid wages damages of 2% of the amount
5of underpayments as a result of an action brought by the
6Director of Labor, the employee may not also collect those
7damages in a private action brought by the employee for the
8same violation. If an employee collects an additional amount of
9damages equal to twice the underpaid wages damages of 2% of the
10amount of underpayments in a private action brought by the
11employee, the employee may not also collect those damages as a
12result of an action brought by the Director of Labor for the
13same violation.
14    (b) If an employee has not collected damages under
15subsection (a) for the same violation, the Director is
16authorized to supervise the payment of the unpaid minimum wages
17and the unpaid overtime compensation owing to any employee or
18employees under Sections 4 and 4a of this Act and may bring any
19legal action necessary to recover the amount of the unpaid
20minimum wages and unpaid overtime compensation and an equal
21additional amount equal to twice the unpaid wages and
22compensation as damages, and the employer shall be required to
23pay the costs incurred in collecting such claim. Such employer
24shall be additionally liable to the Department of Labor for up
25to 20% of the total employer's underpayment where the
26employer's conduct is proven by a preponderance of the evidence

 

 

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1to be willful, repeated, or with reckless disregard of this Act
2or any rule adopted under this Act. The action shall be brought
3within 5 years from the date of the failure to pay the wages or
4compensation. Any sums thus recovered by the Director on behalf
5of an employee pursuant to this subsection shall be paid to the
6employee or employees affected. Any sums which, more than one
7year after being thus recovered, the Director is unable to pay
8to an employee shall be deposited into the General Revenue
9Fund.
10(Source: P.A. 94-1025, eff. 7-14-06.)
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.