Full Text of HB1286 99th General Assembly
HB1286ham001 99TH GENERAL ASSEMBLY | Rep. Elizabeth Hernandez Filed: 4/8/2015
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| 1 | | AMENDMENT TO HOUSE BILL 1286
| 2 | | AMENDMENT NO. ______. Amend House Bill 1286 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Domestic Workers' Bill of Rights Act. | 6 | | Section 5. Purpose and findings. Domestic workers play a | 7 | | critical role in Illinois' economy, working to ensure the | 8 | | health and prosperity of Illinois families and freeing others | 9 | | to participate in the workforce. Despite the value of their | 10 | | work, domestic workers have historically been excluded from the | 11 | | protections under State law extended to workers in other | 12 | | industries. Domestic workers are predominantly women who labor | 13 | | to support families and children of their own and who receive | 14 | | low pay and minimal or no benefits. Without clear standards | 15 | | governing their workplaces, and working alone and behind closed | 16 | | doors, domestic workers are among the most isolated and |
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| 1 | | vulnerable workforce in the State. Workforce projections are | 2 | | one of growth for domestic workers, but the lack of decent pay | 3 | | and other workplace protections undermines the likelihood of | 4 | | building and maintaining a reliable and experienced workforce | 5 | | that is able to meet the needs of Illinois families. Therefore, | 6 | | the General Assembly finds that because domestic workers care | 7 | | for the most important elements of Illinoisans' lives, our | 8 | | families and our homes, it is in the interest of employees, | 9 | | employers, and the people of Illinois to ensure that the rights | 10 | | of domestic workers are respected, protected, and enforced and | 11 | | that this Act shall be interpreted liberally to aid this | 12 | | purpose. | 13 | | Section 10. Definitions. As used in this Act: | 14 | | "Department" means the Department of Labor. | 15 | | "Director" means the Director of Labor and his or her
| 16 | | authorized representatives.
| 17 | | "Domestic work" means: | 18 | | (1) housekeeping; | 19 | | (2) house
cleaning; | 20 | | (3) home management; | 21 | | (4) nanny services including
childcare and child | 22 | | monitoring; | 23 | | (5) caregiving, personal care or home health services | 24 | | for elderly persons or persons with an illness, injury, or | 25 | | disability who require assistance in caring for |
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| 1 | | themselves; | 2 | | (6) laundering; | 3 | | (7) cooking; | 4 | | (8) companion services; | 5 | | (9) chauffeuring; or | 6 | | (10) other household services for members of | 7 | | households or their guests in or about a private home or | 8 | | residence or any other location where the domestic work is
| 9 | | performed. | 10 | | "Domestic worker" means a person employed to perform
| 11 | | domestic work. "Domestic worker" does not include: (i) a person
| 12 | | performing domestic work who is the employer's parent, spouse,
| 13 | | child, or other member of his or her immediate family, | 14 | | exclusive of individuals whose primary work duties are | 15 | | caregiving, companion services, personal care or home health | 16 | | services for elderly persons or persons with an illness, | 17 | | injury, or disability who require assistance in caring for | 18 | | themselves; (ii) child and day care home providers | 19 | | participating in the child care assistance program under | 20 | | Section 9A-11 of the Illinois Public Aid Code; (iii) a person | 21 | | who is employed by one or more employers in or about a private | 22 | | home or residence or any other location where the domestic work | 23 | | is performed for 8 hours or less in the aggregate in any | 24 | | workweek on a regular basis, exclusive of individuals whose | 25 | | primary work duties are caregiving, companion services, | 26 | | personal care or home health services for elderly persons or |
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| 1 | | persons with an illness, injury, or disability who require | 2 | | assistance in caring for themselves; or (iv) a person who the | 3 | | employer establishes: (A) has been and will continue to be free | 4 | | from control and direction over the performance of his or her | 5 | | work, both under a contract of service and in fact; (B) is | 6 | | engaged in an independently established trade, occupation, | 7 | | profession or business; or (C) is deemed a legitimate sole | 8 | | proprietor or partnership. A sole proprietor or partnership | 9 | | shall be deemed to be legitimate if the employer establishes | 10 | | that: | 11 | | (1) the sole proprietor or partnership is performing | 12 | | the service free from the direction or control over the | 13 | | means and manner of providing the service, subject only to | 14 | | the right of the employer for whom the service is provided | 15 | | to specify the desired result; | 16 | | (2) the sole proprietor or partnership is not subject | 17 | | to cancellation or destruction upon severance of the | 18 | | relationship with the employer; | 19 | | (3) the sole proprietor or partnership has a | 20 | | substantial investment of capital in the sole | 21 | | proprietorship or partnership beyond ordinary tools and | 22 | | equipment and a personal vehicle; | 23 | | (4) the sole proprietor or partnership owns the capital | 24 | | goods and gains the profits and bears the losses of the | 25 | | sole proprietorship or partnership; | 26 | | (5) the sole proprietor or partnership makes its |
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| 1 | | services available to the general public on a continuing | 2 | | basis; | 3 | | (6) the sole proprietor or partnership includes | 4 | | services rendered on a Federal Income Tax Schedule as an | 5 | | independent business or profession; | 6 | | (7) the sole proprietor or partnership performs | 7 | | services for the contractor under the sole | 8 | | proprietorship's or partnership's name; | 9 | | (8) when the services being provided require a license | 10 | | or permit, the sole proprietor or partnership obtains and | 11 | | pays for the license or permit in the sole proprietorship's | 12 | | or partnership's name; | 13 | | (9) the sole proprietor or partnership furnishes the | 14 | | tools and equipment necessary to provide the service; | 15 | | (10) if necessary, the sole proprietor or partnership | 16 | | hires its own employees without approval of the employer, | 17 | | pays the employees without reimbursement from the employer | 18 | | and reports the employees' income to the Internal Revenue | 19 | | Service; | 20 | | (11) the employer does not represent the sole | 21 | | proprietorship or partnership as an employee of the | 22 | | employer to the public; and | 23 | | (12) the sole proprietor or partnership has the right | 24 | | to perform similar services for others on whatever basis | 25 | | and whenever it chooses. | 26 | | "Employ" includes to suffer or permit to work. |
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| 1 | | "Employee" means a domestic worker. | 2 | | "Employer" means: any individual; partnership; | 3 | | association;
corporation; limited liability company; business | 4 | | trust;
employment and labor placement agency where wages are | 5 | | made
directly or indirectly by the agency or business for work
| 6 | | undertaken by employees under hire to a third party pursuant to
| 7 | | a contract between the business or agency with the third party;
| 8 | | the State of Illinois and local governments, or any political
| 9 | | subdivision of the State or local government, or State or local
| 10 | | government agency; for which one or more persons is
gainfully | 11 | | employed, express or implied, whether lawfully or
unlawfully | 12 | | employed, who employs a domestic worker or who
exercises | 13 | | control over the domestic worker's wage, remuneration, or other | 14 | | compensation, hours of employment, place of employment, or | 15 | | working conditions, or whose agent or any other person or group | 16 | | of persons acting directly or indirectly in the interest of an | 17 | | employer in relation to the employee exercises control over the | 18 | | domestic worker's wage, remuneration or other compensation, | 19 | | hours of employment, place of employment, or working | 20 | | conditions. | 21 | | "Live-in domestic worker" means a domestic worker residing | 22 | | on the employer's premises during the tenure of employment for | 23 | | 5 days or more per week on a regular basis, whether or not the | 24 | | domestic worker maintains a separate residence. | 25 | | "Work time" means the time during which a domestic
worker | 26 | | is suffered or permitted to work, whether or not required to do |
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| 1 | | so, and whether or not any physical or mental exertion is | 2 | | expended by the domestic worker. | 3 | | Section 15. Work time. | 4 | | (a) An employer shall pay the domestic worker for all work | 5 | | time. | 6 | | (b) Only a period during which a domestic worker is | 7 | | completely relieved from duty and which is long enough to | 8 | | enable him or her to use the time effectively for his or her | 9 | | own purposes (at least 30 minutes) is not work time, such as a | 10 | | 30 minute meal period. Periods of shorter duration must be | 11 | | counted as work time. | 12 | | (c) 29 CFR 785, Subpart C, the federal regulations | 13 | | implementing the Fair Labor Standards Act of 1938, as amended, | 14 | | 209 U.S.C. 201, et seq., or successor rule, shall govern work | 15 | | time as it applies to rest and meal periods, sleep and travel | 16 | | time, and the other issues covered by Subpart C. In addition, | 17 | | interruptions of periods of free time for live-in domestic | 18 | | workers are governed by 29 CFR 552.102, or successor rule. | 19 | | (d) All wages must be paid within 30 days from the date of | 20 | | any work time. | 21 | | Section 20. Sleeping facilities; costs. | 22 | | (a) Employers may take appropriate credit for the | 23 | | reasonable cost or fair value, as determined by the Department, | 24 | | for food, lodging, etc. furnished to the domestic worker. 29 |
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| 1 | | CFR 552.100(b), and successor rules, shall govern the | 2 | | application of this provision, except that the amount of these | 3 | | charges shall not individually nor in the aggregate result in | 4 | | the domestic worker earning or receiving less than the minimum | 5 | | wage for any work hour. | 6 | | (b) The employer shall provide sleeping quarters that are | 7 | | adequate, decent, safe, and sanitary to all domestic workers | 8 | | that have sleep time as part of their work schedule, whether or | 9 | | not it is counted as work time. All live-in domestic workers | 10 | | shall be provided private quarters for sleeping and dressing | 11 | | typically used for that purpose, with reasonable access to | 12 | | bathroom, kitchen, and laundry facilities. No domestic worker | 13 | | shall be required to share a bed. | 14 | | (c) Lodging under this Section must be in a condition that | 15 | | is safe, healthful, and fit for occupancy and in compliance | 16 | | with terms of a lease, if any, and with the requirements of | 17 | | federal, State, and local law. | 18 | | Section 25. Scheduled work time and termination. | 19 | | (a) Employers shall provide at least 2 hours' notice on any | 20 | | day the worker is scheduled to work but not required to work. | 21 | | (b) Notwithstanding subsection (a), if an employer does not | 22 | | require the domestic worker to report to work for 2 or more | 23 | | consecutive scheduled work periods on a temporary basis for any | 24 | | reason, such as the employer's vacation, or any other change in | 25 | | the work time schedule on a temporary or permanent basis, the |
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| 1 | | employer shall provide to the domestic worker notice at least 7 | 2 | | days in advance of the first day the worker is not required to | 3 | | report to work or there is a change in schedule. In | 4 | | circumstances where the change in the work time schedule is not | 5 | | foreseeable by the employer, making advance notice impossible, | 6 | | notice shall be given as soon as practicable, but not longer | 7 | | than 24 hours after the worker was first scheduled for work but | 8 | | was not put to work. | 9 | | (c) If an employer terminates a domestic worker, the | 10 | | employer shall provide to the domestic worker notice of | 11 | | termination at least 14 days in advance of the first day the | 12 | | worker is not required to report to work. If such notice is not | 13 | | provided to domestic workers who work 20 or more hours in any | 14 | | workweek on a regular basis for the terminating employer, the | 15 | | employer shall pay the domestic worker 14 days of severance pay | 16 | | at the regular rate of pay from the date of termination, to be | 17 | | paid no later than the day of termination. If such notice is | 18 | | not provided to domestic workers who work more than 8 hours and | 19 | | less than 20 hours in any workweek on a regular basis for the | 20 | | terminating employer, the employer shall pay the domestic | 21 | | worker 7 days of severance pay at the regular rate of pay from | 22 | | the date of termination, to be paid no later than the date of | 23 | | termination. The amount of severance pay shall be based upon | 24 | | the number of work hours per day and days per workweek the | 25 | | domestic worker works on a regular basis. Such notice need not | 26 | | be given nor severance payment made if an employer makes |
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| 1 | | contributions on behalf of the domestic worker for unemployment | 2 | | insurance benefits as required under the Unemployment | 3 | | Insurance Act and, if such employer terminates or reduces the | 4 | | hours of the domestic worker, the domestic worker is eligible | 5 | | for and receives such benefits upon termination or reduction in | 6 | | hours. Furthermore, such notice need not be given nor is | 7 | | severance pay required under limited and extraordinary | 8 | | circumstances, such as when there is probable cause the | 9 | | domestic worker has engaged in child or elder abuse as defined | 10 | | by Illinois law. | 11 | | (d) Any provision included in a relevant collective | 12 | | bargaining agreement supersedes this Section, if applicable. | 13 | | Section 35. Privacy. An employer is not permitted to | 14 | | videotape or otherwise record the domestic worker in any of the | 15 | | bathrooms, the area where the sleeping accommodations are | 16 | | provided while the domestic worker is sleeping, or, in the case | 17 | | of a live-in domestic worker, the area. An employer shall not | 18 | | unreasonably restrict or interfere with a domestic worker's | 19 | | means of private communication, monitor a domestic worker's | 20 | | private communications, or take any of the domestic worker's | 21 | | documents or other personal effects. | 22 | | Section 40. Recordkeeping requirements. | 23 | | (a) An employer subject to any provision of this Act shall | 24 | | make and preserve records in accordance with 29 CFR 516 and |
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| 1 | | 552.110, and any successor rule. | 2 | | (b) An employer shall, upon the oral request of a current | 3 | | or former employee or his or her representative, make the | 4 | | records available for inspection and copying by a current or | 5 | | former employee or his or her representative at an agreed upon | 6 | | location and time within 7 calendar days after such a request. | 7 | | If, however, the employer can reasonably show such deadline | 8 | | cannot be met, the employer shall have an additional 7 days to | 9 | | comply. An employer may charge a fee for providing a copy of | 10 | | such information. The fee shall be limited to the actual cost | 11 | | of duplicating the information. | 12 | | (c) In the absence of employer records, a domestic worker | 13 | | may not be denied recovery of wages or final compensation on | 14 | | the basis that the domestic worker is unable to prove the | 15 | | precise extent of uncompensated work or final compensation. If | 16 | | an employer requires evidence of hours worked for other | 17 | | employers, a sworn statement by the employee stating that he or | 18 | | she has performed or is scheduled to perform domestic work for | 19 | | more than 8 hours in the aggregate for the relevant workweek | 20 | | shall satisfy any documentation requirements of hours worked | 21 | | under this Act. An employer that requires evidence of hours | 22 | | worked must give the domestic worker written notice of such | 23 | | request and allow no less than 10 days or until the next | 24 | | scheduled work day, whichever is greater, for the domestic | 25 | | worker to comply. |
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| 1 | | Section 45. Notice and written contract. | 2 | | (a) The Department shall create a sample written notice and | 3 | | a sample written contract in English, Spanish, and Polish, and | 4 | | shall make the documents available for retrieval at no charge | 5 | | from the Department's website. No notice or written contract | 6 | | shall limit or diminish the scope of this Act or any rights, | 7 | | privileges, or remedies of a domestic worker provided under | 8 | | this Act, or under any other local, State, or federal law or | 9 | | relevant collective bargaining agreement. | 10 | | (b) An employer shall notify all domestic workers and, upon | 11 | | oral request, disclose in writing, the following information, | 12 | | when an offer of employment is made to a domestic worker: | 13 | | (1) the starting date, time, and place of employment; | 14 | | (2) the wage rates to be paid, including overtime; | 15 | | (3) the frequency of the payment of wages; | 16 | | (4) the kinds of domestic work for which the domestic | 17 | | worker may be employed; | 18 | | (5) the hours per day, days per week, days of the week | 19 | | that are work days, and period of employment, including any | 20 | | meal breaks and rest periods; where work hours are | 21 | | irregular from day to day or week to week by mutual | 22 | | agreement, an average monthly work schedule may satisfy | 23 | | this requirement; | 24 | | (6) notice and leave policies for both paid and unpaid | 25 | | time off, including involuntary time off for the domestic | 26 | | worker; |
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| 1 | | (7) changes in scheduled work time, termination and | 2 | | severance pay policies; | 3 | | (8) any employee benefit to be provided, and any costs | 4 | | to be charged for each benefit; | 5 | | (9) any other terms and conditions of employment, | 6 | | including any workplace hazards that may make the domestic | 7 | | worker vulnerable to illnesses and other physical | 8 | | problems; | 9 | | (10) contact information for the employer and the | 10 | | domestic worker to enable the best way to communicate, | 11 | | particularly in the event of an emergency or change in | 12 | | schedule; | 13 | | (11) the employer's contact information, including his | 14 | | or her full name, mailing address, and phone numbers; and | 15 | | (12) any provision included in a relevant collective | 16 | | bargaining agreement, if applicable. | 17 | | (c) If the domestic worker works for one employer more than | 18 | | 8 hours in any workweek on a regular basis, the employer shall | 19 | | provide a written contract. The contract shall be presented to | 20 | | the domestic worker no later than the first day of employment | 21 | | and shall be signed by both the employer and the domestic | 22 | | worker within 10 calendar days after the first day of | 23 | | employment. A new contract shall be signed when there is a | 24 | | material change in the terms of employment. The contract shall | 25 | | include: | 26 | | (1) the name of the domestic worker and the name of the |
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| 1 | | employer; | 2 | | (2) the starting date, time, and place of employment; | 3 | | (3) the rate of pay including overtime and additional | 4 | | compensation for added duties or multilingual skills; | 5 | | (4) the frequency of the payment of wages; | 6 | | (5) the hours per day, days per week, days of the week | 7 | | that are work days, and where applicable, meal breaks and | 8 | | rest periods, paid and unpaid time off, vacations and | 9 | | holidays, and any foreseeable changes in work schedule, | 10 | | such as a reduction or increase in hours per week or weeks | 11 | | per month; | 12 | | (6) any benefits the employer provides and any costs | 13 | | the domestic worker is expected to pay associated with | 14 | | those benefits such as health insurance, if any; | 15 | | (7) a description of the living accommodations | 16 | | provided by the employer and policies on vacating the | 17 | | premises; | 18 | | (8) the kinds of domestic work for which the domestic | 19 | | worker may be employed; | 20 | | (9) the process for addressing increasing wages and the | 21 | | process for addressing grievances; | 22 | | (10) the right to privacy as required under Section 35 | 23 | | of this Act; | 24 | | (11) changes in scheduled work time, and termination | 25 | | and severance pay policies; | 26 | | (12) the contract period; |
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| 1 | | (13) the policies for reimbursement for work-related | 2 | | expenses; | 3 | | (14) any other terms and conditions of employment | 4 | | including workplace hazards that may make the domestic | 5 | | worker vulnerable to illnesses and other physical | 6 | | problems; | 7 | | (15) any other rights or benefits afforded to the | 8 | | domestic worker, including State and federal employment | 9 | | taxes paid or to be paid by the employer related to the | 10 | | domestic worker's employment and notice of employment | 11 | | rights in State law; | 12 | | (16) contact information for the employer and the | 13 | | domestic worker to enable the best way to communicate, | 14 | | particularly in the event of an emergency or change in | 15 | | schedule; | 16 | | (17) the employer's contact information, including his | 17 | | or her full name, mailing address, and phone numbers; and | 18 | | (18) any provision included in a relevant collective | 19 | | bargaining agreement, if applicable. | 20 | | If a valid written contract that complies with this Section | 21 | | is entered into by an individual domestic worker and an | 22 | | employer, the written contract may include an alternative | 23 | | reasonable agreement as to certain provisions of this Act, as | 24 | | indicated in those Sections, as long as the domestic worker is | 25 | | compensated for all work time. |
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| 1 | | Section 50. Prohibited acts. | 2 | | (a) It is unlawful and a violation of this Act for any | 3 | | employer or any other person to discharge, threaten, penalize, | 4 | | or in any other manner discriminate, retaliate, or take any | 5 | | adverse action against an employee, because the employee or a | 6 | | person or organization acting on the employee's behalf: | 7 | | (1) exercises rights or attempts to exercise rights | 8 | | under this Act; | 9 | | (2) opposes practices such employee believes to be in | 10 | | violation of this Act; or | 11 | | (3) supports the exercise of rights under this Act. | 12 | | (b) Exercising rights, opposing practices, or supporting | 13 | | the exercise of rights under this Act includes: | 14 | | (1) filing an action or instituting or causing to be | 15 | | instituted any proceeding under or related to this Act; | 16 | | (2) providing or preparing to provide any information | 17 | | in connection with any inquiry or proceeding relating to | 18 | | any right provided under this Act; | 19 | | (3) testifying or preparing to testify in any inquiry | 20 | | or proceeding relating to any right provided under this | 21 | | Act, in a public hearing, or to a community organization; | 22 | | or | 23 | | (4) informing any other person that his or her employer | 24 | | engages in conduct that the employee reasonably and in good | 25 | | faith believes violates any provisions of this Act.
| 26 | | (c) An agreement by an employee to waive his or her rights |
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| 1 | | under this Act is void as against public policy. The benefits | 2 | | provided to employees under this Act may not be diminished by a | 3 | | collective bargaining agreement or an employment benefit | 4 | | program or plan entered into or renewed after the effective | 5 | | date of this Act.
| 6 | | (d) It is unlawful for an employer to interfere with, | 7 | | restrain, or deny the exercise of or the attempt to exercise | 8 | | any right provided under or in connection with this Act | 9 | | including using the taking of paid time off as a negative | 10 | | factor in an employment action such as hiring, termination, | 11 | | evaluation, promotion, discipline, or counting the paid time | 12 | | off under a no-fault attendance policy.
| 13 | | Section 55. Enforcement. | 14 | | (a) A domestic worker aggrieved by a violation of this Act
| 15 | | or any rule adopted under this Act shall be entitled to
recover | 16 | | any appropriate damages or other relief set forth in subsection | 17 | | (b) of this Section in a civil action or through a claim filed | 18 | | with the Department. Actions may be brought by one or more | 19 | | domestic workers for and on behalf of themselves and other | 20 | | domestic workers similarly situated. Any such action shall be | 21 | | brought no more than 3 years after the date of the last event | 22 | | that constitutes an alleged violation for which the action is | 23 | | brought. | 24 | | (b) A domestic worker aggrieved by a violation of this Act | 25 | | or any rule adopted under this Act shall be entitled to |
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| 1 | | recover: | 2 | | (1) all actual and compensatory damages including the | 3 | | amount of any wages, compensation, or benefits owed or | 4 | | other compensation denied or lost to the person by reason | 5 | | of the violation, with interest at the prevailing rate as | 6 | | is necessary to remedy violations of this Act, as well as | 7 | | punitive damages; | 8 | | (2) any equitable relief as may be appropriate; and | 9 | | (3) reasonable attorney's fees, reasonable expert | 10 | | witness fees, and other costs of the action. | 11 | | (c) Any employer that the Department or a court finds by a | 12 | | preponderance of the evidence to have knowingly, repeatedly, or | 13 | | with reckless disregard violated any provision of this Act or | 14 | | any rule adopted under this Act is subject to civil money | 15 | | penalty of (1) up to $250 for each separate offense if the | 16 | | other relief imposed under subsection (b) is $1,000 or less or | 17 | | (2) a minimum of $250 and up to $3,000 for each separate | 18 | | offense if the damages or other relief imposed under subsection | 19 | | (b) is more than $1,000. In determining the amount of the | 20 | | penalty, the gravity of the violation shall be considered. Any | 21 | | assessed penalties are payable to the domestic worker and shall | 22 | | include interest at the prevailing rate necessary to remedy | 23 | | violations of this Act. | 24 | | (d) Claims filed in circuit court shall be filed in the | 25 | | county where the alleged violation occurred or where any | 26 | | domestic worker who is a party to this action resides, without |
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| 1 | | regard to exhaustion of remedies provided in this Act. | 2 | | (e) Claims filed under this Act with the Department shall | 3 | | be subject to the administrative procedures set forth herein | 4 | | and by rule for the enforcement of this Act. For claims brought | 5 | | at the same time before the Department under this Act and the | 6 | | Minimum Wage Law or the One Day Rest in Seven Act, it shall be | 7 | | the decision of the domestic worker whether or not to proceed | 8 | | under the administrative enforcement procedures set forth in | 9 | | the Minimum Wage Law or the One Day Rest in Seven Act or to | 10 | | proceed under the administrative procedures set forth herein | 11 | | and by rule for the enforcement of this Act. | 12 | | (f) The Department shall have the power to conduct | 13 | | investigations in connection with the administration and | 14 | | enforcement of this Act. The Director or his or her | 15 | | representative may compel by subpoena, the attendance and | 16 | | testimony of witnesses and the production of books, payrolls, | 17 | | records, papers, and other evidence in any investigation and | 18 | | may administer oaths to witnesses. If, upon investigation, the | 19 | | Department finds cause to believe that this Act has been | 20 | | violated, the Department shall notify the parties, in writing, | 21 | | and the matter shall be referred to an Administrative Law Judge | 22 | | to schedule a formal hearing in accordance with hearing | 23 | | procedures established by rule. | 24 | | Where the Department has found that an employer has failed | 25 | | to pay wages or overtime to an employee as required by the | 26 | | Minimum Wage Law, the employee shall be entitled to receive the |
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| 1 | | penalties provided under the Minimum Wage Law. | 2 | | Any employer who has been ordered to pay wages, benefits, | 3 | | and other compensation or other relief due under this Act or | 4 | | under the Minimum Wage Law or the One Day Rest in Seven Act, | 5 | | when the administrative procedures of those Acts have been | 6 | | waived as provided in subsection (e), and who fails to seek | 7 | | timely review of such an order as provided under this Act and | 8 | | who fails to comply within 15 calendar days after such demand | 9 | | or within 35 days of an administrative or court order is | 10 | | entered shall also be liable to pay a penalty to the Department | 11 | | of 20% of the amount found owing. All moneys recovered as fees | 12 | | and penalties by the Department under this Act, except those | 13 | | owing to the affected employee, shall be deposited into the | 14 | | Domestic Workers' Fund, a special fund created in the State | 15 | | treasury. Money in the Fund shall be used by the Department for | 16 | | administration, investigation, and other expenses incurred in | 17 | | carrying out its duties under this Act. | 18 | | A final decision of an Administrative Law Judge issued | 19 | | pursuant to this Section is subject to the provisions of the | 20 | | Administrative Review Law and shall be enforceable in an action
| 21 | | brought in the name of the people of the State of Illinois by | 22 | | the Attorney General. | 23 | | Section 60. Administrative authority. The Department shall | 24 | | administer and enforce this Act. The Director shall adopt rules | 25 | | necessary to administer and enforce this Act in accordance with |
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| 1 | | the Illinois Administrative Procedure Act. | 2 | | Section 65. Construction. Nothing in this Act shall be | 3 | | construed to affect any policies or practices of an employer | 4 | | that provides greater, additional or more generous wages, | 5 | | benefits or working conditions to a domestic worker than those | 6 | | required under this Act. | 7 | | Section 97. Severability. The provisions of this Act are | 8 | | severable under Section 1.31 of the Statute on Statutes. | 9 | | Section 135. The State Finance Act is amended by adding | 10 | | Section 5.866 as follows: | 11 | | (30 ILCS 105/5.866 new) | 12 | | Sec. 5.866. The Domestic Workers' Fund. | 13 | | Section 140. The Illinois Human Rights Act is amended by | 14 | | changing Section 2-101 as follows:
| 15 | | (775 ILCS 5/2-101) (from Ch. 68, par. 2-101)
| 16 | | Sec. 2-101. Definitions. The following definitions are | 17 | | applicable
strictly in the context of this Article.
| 18 | | (A) Employee.
| 19 | | (1) "Employee" includes:
| 20 | | (a) Any individual performing services for |
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| 1 | | remuneration within this
State for an employer;
| 2 | | (b) An apprentice;
| 3 | | (c) An applicant for any apprenticeship.
| 4 | | For purposes of subsection (D) of Section 2-102 of this | 5 | | Act, "employee" also includes an unpaid intern. An unpaid | 6 | | intern is a person who performs work for an employer under | 7 | | the following circumstances: | 8 | | (i) the employer is not committed to hiring the | 9 | | person performing the work at the conclusion of the | 10 | | intern's tenure; | 11 | | (ii) the employer and the person performing the | 12 | | work agree that the person is not entitled to wages for | 13 | | the work performed; and | 14 | | (iii) the work performed: | 15 | | (I) supplements training given in an | 16 | | educational environment that may enhance the | 17 | | employability of the intern; | 18 | | (II) provides experience for the benefit of | 19 | | the person performing the work; | 20 | | (III) does not displace regular employees; | 21 | | (IV) is performed under the close supervision | 22 | | of existing staff; and | 23 | | (V) provides no immediate advantage to the | 24 | | employer providing the training and may
| 25 | | occasionally impede the operations of the | 26 | | employer. |
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| 1 | | (2) "Employee" does not include:
| 2 | | (a) (Blank); Domestic servants in private homes;
| 3 | | (b) Individuals employed by persons who are not | 4 | | "employers" as
defined by this Act;
| 5 | | (c) Elected public officials or the members of | 6 | | their immediate
personal staffs;
| 7 | | (d) Principal administrative officers of the State | 8 | | or of any
political subdivision, municipal corporation | 9 | | or other governmental unit
or agency;
| 10 | | (e) A person in a vocational rehabilitation | 11 | | facility certified under
federal law who has been | 12 | | designated an evaluee, trainee, or work
activity | 13 | | client.
| 14 | | (B) Employer.
| 15 | | (1) "Employer" includes:
| 16 | | (a) Any person employing 15 or more employees | 17 | | within Illinois during
20 or more calendar weeks within | 18 | | the calendar year of or preceding the alleged
| 19 | | violation;
| 20 | | (b) Any person employing one or more employees when | 21 | | a complainant
alleges civil rights violation due to | 22 | | unlawful discrimination based
upon his or her physical | 23 | | or mental disability unrelated to ability, pregnancy, | 24 | | or
sexual harassment;
| 25 | | (c) The State and any political subdivision, | 26 | | municipal corporation
or other governmental unit or |
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| 1 | | agency, without regard to the number of
employees;
| 2 | | (d) Any party to a public contract without regard | 3 | | to the number of
employees;
| 4 | | (e) A joint apprenticeship or training committee | 5 | | without regard to the
number of employees.
| 6 | | (2) "Employer" does not include any religious | 7 | | corporation,
association, educational institution, | 8 | | society, or non-profit nursing
institution conducted by | 9 | | and for those who rely upon treatment by prayer
through | 10 | | spiritual means in accordance with the tenets of a | 11 | | recognized
church or religious denomination with respect | 12 | | to the employment of
individuals of a particular religion | 13 | | to perform work connected with the
carrying on by such | 14 | | corporation, association, educational institution,
society | 15 | | or non-profit nursing institution of its activities.
| 16 | | (C) Employment Agency. "Employment Agency" includes both | 17 | | public and
private employment agencies and any person, labor | 18 | | organization, or labor
union having a hiring hall or hiring | 19 | | office regularly undertaking, with
or without compensation, to | 20 | | procure opportunities to work, or to
procure, recruit, refer or | 21 | | place employees.
| 22 | | (D) Labor Organization. "Labor Organization" includes any
| 23 | | organization, labor union, craft union, or any voluntary | 24 | | unincorporated
association designed to further the cause of the | 25 | | rights of union labor
which is constituted for the purpose, in | 26 | | whole or in part, of collective
bargaining or of dealing with |
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| 1 | | employers concerning grievances, terms or
conditions of | 2 | | employment, or apprenticeships or applications for
| 3 | | apprenticeships, or of other mutual aid or protection in | 4 | | connection with
employment, including apprenticeships or | 5 | | applications for apprenticeships.
| 6 | | (E) Sexual Harassment. "Sexual harassment" means any | 7 | | unwelcome sexual
advances or requests for sexual favors or any | 8 | | conduct of a sexual nature
when (1) submission to such conduct | 9 | | is made either explicitly or implicitly
a term or condition of | 10 | | an individual's employment, (2) submission to or
rejection of | 11 | | such conduct by an individual is used as the basis for
| 12 | | employment decisions affecting such individual, or (3) such | 13 | | conduct has the
purpose or effect of substantially interfering | 14 | | with an individual's work
performance or creating an | 15 | | intimidating, hostile or offensive working
environment.
| 16 | | (F) Religion. "Religion" with respect to employers | 17 | | includes all
aspects of religious observance and practice, as | 18 | | well as belief, unless an
employer demonstrates that he is | 19 | | unable to reasonably accommodate an
employee's or prospective | 20 | | employee's religious observance or practice
without undue | 21 | | hardship on the conduct of the employer's business.
| 22 | | (G) Public Employer. "Public employer" means the State, an | 23 | | agency or
department thereof, unit of local government, school | 24 | | district,
instrumentality or political subdivision.
| 25 | | (H) Public Employee. "Public employee" means an employee of | 26 | | the State,
agency or department thereof, unit of local |
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| 1 | | government, school district,
instrumentality or political | 2 | | subdivision. "Public employee" does not include
public | 3 | | officers or employees of the General Assembly or agencies | 4 | | thereof.
| 5 | | (I) Public Officer. "Public officer" means a person who is | 6 | | elected to
office pursuant to the Constitution or a statute or | 7 | | ordinance, or who is
appointed to an office which is | 8 | | established, and the qualifications and
duties of which are | 9 | | prescribed, by the Constitution or a statute or
ordinance, to | 10 | | discharge a public duty for the State, agency or department
| 11 | | thereof, unit of local government, school district, | 12 | | instrumentality or
political subdivision.
| 13 | | (J) Eligible Bidder. "Eligible bidder" means a person who, | 14 | | prior to a
bid opening, has filed with the Department a | 15 | | properly completed, sworn and
currently valid employer report | 16 | | form, pursuant to the Department's regulations.
The provisions | 17 | | of this Article relating to eligible bidders apply only
to bids | 18 | | on contracts with the State and its departments, agencies, | 19 | | boards,
and commissions, and the provisions do not apply to | 20 | | bids on contracts with
units of local government or school | 21 | | districts.
| 22 | | (K) Citizenship Status. "Citizenship status" means the | 23 | | status of being:
| 24 | | (1) a born U.S. citizen;
| 25 | | (2) a naturalized U.S. citizen;
| 26 | | (3) a U.S. national; or
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| 1 | | (4) a person born outside the United States and not a | 2 | | U.S. citizen who
is not an unauthorized alien and who is | 3 | | protected from discrimination under
the provisions of | 4 | | Section 1324b of Title 8 of the United States Code, as
now | 5 | | or hereafter amended.
| 6 | | (Source: P.A. 97-877, eff. 8-2-12; 98-1037, eff. 1-1-15; | 7 | | 98-1050, eff. 1-1-15; revised 10-3-14.)
| 8 | | Section 145. The Minimum Wage Law is amended by changing | 9 | | Section 3 as follows:
| 10 | | (820 ILCS 105/3) (from Ch. 48, par. 1003)
| 11 | | Sec. 3. As used in this Act:
| 12 | | (a) "Director" means the Director of the Department of | 13 | | Labor, and
"Department" means the Department of Labor.
| 14 | | (b) "Wages" means compensation due to an employee by reason | 15 | | of his
employment, including allowances determined by the | 16 | | Director in
accordance with the provisions of this Act for | 17 | | gratuities and, when
furnished by the employer, for meals and | 18 | | lodging actually used by the
employee.
| 19 | | (c) "Employer" includes any individual, partnership, | 20 | | association,
corporation, limited liability company, business | 21 | | trust, governmental or quasi-governmental body, or
any person | 22 | | or group of persons acting directly or indirectly in the
| 23 | | interest of an employer in relation to an employee, for which | 24 | | one or
more persons are gainfully employed on some day within a |
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| 1 | | calendar year.
An employer is subject to this Act in a calendar | 2 | | year on and after the
first day in such calendar year in which | 3 | | he employs one or more persons,
and for the following calendar | 4 | | year.
| 5 | | (d) "Employee" includes any individual permitted to work by | 6 | | an
employer in an occupation, and includes, notwithstanding | 7 | | subdivision (1) of this subsection (d), one or more domestic | 8 | | workers as defined in Section 10 of the Domestic Workers' Bill | 9 | | of Rights Act, but does not include any individual permitted
to | 10 | | work:
| 11 | | (1) For an employer employing fewer than 4 employees | 12 | | exclusive of
the employer's parent, spouse or child or | 13 | | other members of his immediate
family.
| 14 | | (2) As an employee employed in agriculture or | 15 | | aquaculture (A) if such
employee is
employed by an employer | 16 | | who did not, during any calendar quarter during
the | 17 | | preceding calendar year, use more than 500 man-days of | 18 | | agricultural
or aquacultural
labor, (B) if such employee is | 19 | | the parent, spouse or child, or other
member of the | 20 | | employer's immediate family, (C) if such employee (i) is
| 21 | | employed as a hand harvest laborer and is paid on a piece | 22 | | rate basis in
an operation which has been, and is | 23 | | customarily and generally recognized
as having been, paid | 24 | | on a piece rate basis in the region of employment,
(ii) | 25 | | commutes daily from his permanent residence to the farm on | 26 | | which he
is so employed, and (iii) has been employed in |
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| 1 | | agriculture less than 13
weeks during the preceding | 2 | | calendar year, (D) if such employee (other
than an employee | 3 | | described in clause (C) of this subparagraph): (i) is
16 | 4 | | years of age or under and is employed as a hand harvest | 5 | | laborer, is paid
on a piece rate basis in an operation | 6 | | which has been, and is customarily
and generally recognized | 7 | | as having been, paid on a piece rate basis in
the region of | 8 | | employment, (ii) is employed on the same farm as his
parent | 9 | | or person standing in the place of his parent, and (iii) is | 10 | | paid
at the same piece rate as employees over 16 are paid | 11 | | on the same farm.
| 12 | | (3) (Blank). In domestic service in or about a private | 13 | | home.
| 14 | | (4) As an outside salesman.
| 15 | | (5) As a member of a religious corporation or | 16 | | organization.
| 17 | | (6) At an accredited Illinois college or university | 18 | | employed by the
college
or university at which he is a | 19 | | student who is covered under the provisions
of the Fair | 20 | | Labor Standards Act of 1938, as heretofore or hereafter
| 21 | | amended.
| 22 | | (7) For a motor carrier and with respect to whom the | 23 | | U.S. Secretary of
Transportation has the power to establish | 24 | | qualifications and maximum hours of
service under the | 25 | | provisions of Title 49 U.S.C. or the State of Illinois | 26 | | under
Section 18b-105 (Title 92 of the Illinois |
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| 1 | | Administrative Code, Part 395 -
Hours of Service of | 2 | | Drivers) of the Illinois Vehicle
Code.
| 3 | | The above exclusions from the term "employee" may be | 4 | | further defined
by regulations of the Director.
| 5 | | (e) "Occupation" means an industry, trade, business or | 6 | | class of work
in which employees are gainfully employed.
| 7 | | (f) "Gratuities" means voluntary monetary contributions to | 8 | | an
employee from a guest, patron or customer in connection with | 9 | | services
rendered.
| 10 | | (g) "Outside salesman" means an employee regularly engaged | 11 | | in making
sales or obtaining orders or contracts for services | 12 | | where a major
portion of such duties are performed away from | 13 | | his employer's place of
business.
| 14 | | (h) "Day camp" means a seasonal recreation program in | 15 | | operation for no more than 16 weeks intermittently throughout | 16 | | the calendar year, accommodating for profit or under | 17 | | philanthropic or charitable auspices, 5 or more children under | 18 | | 18 years of age, not including overnight programs. The term | 19 | | "day camp" does not include a "day care agency", "child care | 20 | | facility" or "foster family home" as licensed by the Illinois | 21 | | Department of Children and Family Services. | 22 | | (Source: P.A. 94-1025, eff. 7-14-06; 95-945, eff. 1-1-09.)
| 23 | | Section 150. The Wages of Women and Minors Act is amended | 24 | | by changing Section 1 as follows:
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| 1 | | (820 ILCS 125/1) (from Ch. 48, par. 198.1)
| 2 | | Sec. 1. As used in this Act:
| 3 | | "Department" means the Department of Labor.
| 4 | | "Director" means the Director of the Department of Labor.
| 5 | | "Wage Board" means a board created as provided in this
Act.
| 6 | | "Woman" means a female of 18 years or over.
| 7 | | "Minor" means a person under the age of 18 years.
| 8 | | "Occupation" means an industry, trade or business or branch | 9 | | thereof or
class of work therein in which women or minors are | 10 | | gainfully employed, but
does not include domestic service in | 11 | | the home of the employer or labor on a
farm.
| 12 | | "An oppressive and unreasonable wage" means a wage which is | 13 | | both less
than the fair and reasonable value of the services | 14 | | rendered and less than
sufficient to meet the minimum cost of | 15 | | living necessary for health.
| 16 | | "A fair wage" means a wage fairly and reasonably | 17 | | commensurate with the
value of the services or class of service | 18 | | rendered. In establishing a
minimum fair wage for any service | 19 | | or class of service under this Act the
Department and the wage | 20 | | board without being bound by any technical rules of
evidence or | 21 | | procedure (1) may take into account all relevant circumstances
| 22 | | affecting the value of the service or class of service | 23 | | rendered, and (2)
may
be guided by like considerations as would | 24 | | guide a court in a suit for the
reasonable value of services | 25 | | rendered where services are rendered at the
request of an | 26 | | employer without contract as to the amount of the wage to be
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| 1 | | paid, and (3) may consider the wages paid in the State for work | 2 | | of like or
comparable character by employers who voluntarily | 3 | | maintain minimum fair
wage standards.
| 4 | | "A directory order" means an order the nonobservance of | 5 | | which may be
published as provided in Section 9 of this Act.
| 6 | | "A mandatory order" means an order the violation of which | 7 | | is subject to
the penalties prescribed in paragraph 2 of | 8 | | Section 15 of this Act.
| 9 | | (Source: P.A. 91-357, eff. 7-29-99.)
| 10 | | Section 155. The One Day Rest In Seven Act is amended by | 11 | | changing Section 2 as follows:
| 12 | | (820 ILCS 140/2) (from Ch. 48, par. 8b)
| 13 | | Sec. 2. Hours and days of rest in every calendar week. | 14 | | (a) Every employer shall allow every employee except those | 15 | | specified
in this
Section at least twenty-four consecutive | 16 | | hours of rest in every calendar
week in addition to the regular | 17 | | period of rest allowed at the close of each
working day.
| 18 | | A person employed as a domestic worker, as defined in | 19 | | Section 10 of the Domestic Workers' Bill of Rights Act, shall | 20 | | be allowed at least 24 consecutive hours of rest in every | 21 | | calendar week. This subsection (a) does not prohibit a domestic | 22 | | worker from voluntarily agreeing to work on such day of rest | 23 | | required by this subsection (a) if the worker is compensated at | 24 | | the overtime rate for all hours worked on such day of rest. The |
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| 1 | | day of rest authorized under this subsection (a) should, | 2 | | whenever possible, coincide with the traditional day reserved | 3 | | by the domestic worker for religious worship. | 4 | | (b) Subsection (a) This Section does not apply to the | 5 | | following:
| 6 | | (1) Part-time employees whose total work hours for one | 7 | | employer during a
calendar week do not exceed 20; and
| 8 | | (2) Employees needed in case of breakdown of machinery or | 9 | | equipment or
other emergency requiring the immediate services | 10 | | of experienced and
competent labor to prevent injury to person, | 11 | | damage to property, or
suspension of necessary operation; and
| 12 | | (3) Employees employed in agriculture or coal mining; and
| 13 | | (4) Employees engaged in the occupation of canning and | 14 | | processing
perishable agricultural products, if such employees | 15 | | are employed by an
employer in such occupation on a seasonal | 16 | | basis and for not more than 20
weeks during any calendar year | 17 | | or 12 month period; and
| 18 | | (5) Employees employed as watchmen or security guards; and
| 19 | | (6) Employees who are employed in a bonafide executive, | 20 | | administrative,
or professional capacity or in the capacity of | 21 | | an outside salesman, as
defined in Section 12 (a) (1) of the | 22 | | federal Fair Labor Standards Act, as
amended, and those | 23 | | employed as supervisors as defined in Section 2 (11) of
the | 24 | | National Labor Relations Act, as amended; and
| 25 | | (7) Employees who are employed as crew members of any | 26 | | uninspected towing
vessel, as defined by Section 2101(40) of |
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| 1 | | Title 46 of the United States Code,
operating in any navigable | 2 | | waters in or along the boundaries of the State of
Illinois.
| 3 | | (Source: P.A. 92-623, eff. 7-11-02.)
| 4 | | Section 999. Effective date. This Act takes effect upon | 5 | | becoming law.".
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