Full Text of SB0208 102nd General Assembly
SB0208ham003 102ND GENERAL ASSEMBLY | Rep. Jehan Gordon-Booth Filed: 1/5/2023
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| 1 | | AMENDMENT TO SENATE BILL 208
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 208, AS AMENDED, | 3 | | by replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 1. Short title. This Act may be cited as the Paid | 6 | | Leave for All Workers Act. | 7 | | Section 5. Findings; legislative intent; construction. | 8 | | (a) The General Assembly finds that it is in the public | 9 | | policy interests of the State for all working Illinoisans to | 10 | | have some paid leave from work to maintain their health and | 11 | | well-being, care for their families, or use for any other | 12 | | reason of their choosing. | 13 | | (b) It is the intent of the General Assembly by enacting | 14 | | this Act: | 15 | | (1) To establish a minimum paid leave standard for all | 16 | | workers in Illinois. |
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| 1 | | (2) To provide employment security and economic | 2 | | security for employees who need to use paid time off from | 3 | | work for any reason. | 4 | | (3) To safeguard the welfare, health, safety, and | 5 | | prosperity of the people of Illinois. | 6 | | (4) To ensure that an employee not be denied use of | 7 | | leave for noncompliance with leave notification policies | 8 | | if the employer has not provided a written copy of its | 9 | | notification policy to the employee. | 10 | | In order to effectuate this intent, the provisions of this | 11 | | Act shall be liberally construed in favor of providing workers | 12 | | with the greatest amount of paid time off from work and | 13 | | employment security. | 14 | | (c) Nothing in this Act shall be construed to discourage | 15 | | employers from adopting or retaining paid sick leave, paid | 16 | | vacation, paid holidays, or any other paid time off or paid | 17 | | leave policy more generous than policies that comply with the | 18 | | requirements of this Act. Nothing in this Act shall be | 19 | | construed to discourage or prohibit an employer from allowing | 20 | | the use of paid leave at an earlier date than this Act | 21 | | requires. | 22 | | Unless otherwise provided in a collective bargaining | 23 | | agreement, nothing in this Act shall be construed to waive or | 24 | | otherwise limit an employee's right to final compensation for | 25 | | any type of leave promised to be paid under a contract of | 26 | | employment or employment policy and earned by the employee |
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| 1 | | pursuant to the Illinois Wage Payment and Collection Act. | 2 | | Section 10. Definitions. As used in this Act: | 3 | | "Construction industry" means any constructing, altering, | 4 | | reconstructing, repairing, rehabilitating, refinishing, | 5 | | refurbishing, remodeling, remediating, renovating, custom | 6 | | fabricating, maintenance, landscaping, improving, wrecking, | 7 | | painting, decorating, demolishing, or adding to or subtracting | 8 | | from any building, structure, highway, roadway, street, | 9 | | bridge, alley, sewer, ditch, sewage disposal plant, | 10 | | waterworks, parking facility, railroad, excavation or other | 11 | | structure, project, development, real property, or | 12 | | improvement, or to do any part thereof, whether or not the | 13 | | performance of the work herein described involves the addition | 14 | | to or fabrication into, any structure, project, development, | 15 | | real property, or improvement herein described of any material | 16 | | or article of merchandise. | 17 | | "Construction industry" also includes moving construction | 18 | | related materials on the job site or to or from the job site, | 19 | | snow plowing, snow removal, and refuse collection. | 20 | | "Department" means the Illinois Department of Labor. | 21 | | "Domestic work" and "domestic worker" have the same | 22 | | meanings as defined in Section 10 of the Domestic Workers' | 23 | | Bill of Rights Act, except that "domestic worker" also | 24 | | includes independent contractors, sole proprietors, and | 25 | | partnerships. |
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| 1 | | "Employee" has the same application and meaning as that | 2 | | provided in Sections 1 and 2 of the Illinois Wage Payment and | 3 | | Collection Act. "Employee" also includes all domestic workers, | 4 | | and, for the purposes of this Act, domestic workers shall not | 5 | | be excluded as employees under the provisions of item (1), | 6 | | (2), or (3) of Section 2 of the Illinois Wage Payment and | 7 | | Collection Act. "Employee" does not include: | 8 | | (1) an employee as defined in the federal Railroad | 9 | | Unemployment Insurance Act (45 U.S.C. 351 et seq.) or the | 10 | | Railway Labor Act; | 11 | | (2) a student enrolled in and regularly attending | 12 | | classes in a college or university that is also the | 13 | | student's employer, and who is employed on a temporary | 14 | | basis at less than full time at the college or university, | 15 | | but this exclusion applies only to work performed for that | 16 | | college or university; or | 17 | | (3) a short-term employee who is employed by an | 18 | | institution of higher education for less than 2 | 19 | | consecutive calendar quarters during a calendar year and | 20 | | who does not have a reasonable expectation that they will | 21 | | be rehired by the same employer of the same service in a | 22 | | subsequent calendar year. | 23 | | "Employer" has the same application and meaning as that | 24 | | provided in Sections 1 and 2 of the Illinois Wage Payment and | 25 | | Collection Act, except that for purposes of this Act, | 26 | | "employer" also means the State and units of local government, |
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| 1 | | any political subdivision of the State or units of local | 2 | | government, or any State or local government agency. | 3 | | "Employer" does not include school districts organized | 4 | | under the School Code or park districts organized under the | 5 | | Park District Code. | 6 | | "Writing" or "written" means a printed or printable | 7 | | communication in physical or electronic format, including a | 8 | | communication that is transmitted through electronic mail, | 9 | | text message, or a computer system or is otherwise sent or | 10 | | stored electronically. | 11 | | Section 15. Provision of paid leave. | 12 | | (a) An employee who works in Illinois is entitled to earn | 13 | | and use up to a minimum of 56 hours of paid leave during a | 14 | | 12-month period or a pro rata number of hours of paid leave | 15 | | under the provisions of subsection (b). The paid leave may be | 16 | | used by the employee for any purpose as long as the paid leave | 17 | | is taken in accordance with the provisions of this Act. | 18 | | (b) Paid leave under this Act shall accrue at the rate of | 19 | | one hour of paid leave for every 40 hours worked up to a | 20 | | minimum of 56 hours of paid leave or such greater amount if the | 21 | | employer provides more than 56 hours. Employees who are exempt | 22 | | from the overtime requirements of the federal Fair Labor | 23 | | Standards Act (29 U.S.C. 213(a)(1)) shall be deemed to work 40 | 24 | | hours in each workweek for purposes of paid leave accrual | 25 | | unless their regular workweek is less than 40 hours, in which |
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| 1 | | case paid leave accrues based on that regular workweek. | 2 | | Employees shall determine how much paid leave they need to | 3 | | use, however employers may set a reasonable minimum increment | 4 | | for the use of paid leave not to exceed 2 hours per day. If an | 5 | | employee's scheduled workday is less than 2 hours day, the | 6 | | employee's scheduled workday shall be used to determine the | 7 | | amount of paid leave. | 8 | | (c) An employer may make available the minimum number of | 9 | | hours of paid leave, subject to pro rata requirements provided | 10 | | in subsection (b), to an employee on the first day of | 11 | | employment or the first day of the 12-month period. Employers | 12 | | that provide the minimum number of hours of paid leave to an | 13 | | employee on the first day of employment or the first day of the | 14 | | 12-month period are not required to carryover paid leave from | 15 | | 12-month period to 12-month period and may require employees | 16 | | to use all paid leave prior to the end of the benefit period or | 17 | | forfeit the unused paid leave. However, under no circumstances | 18 | | shall an employee be credited with paid leave that is less than | 19 | | what the employee would have accrued under subsections (a) and | 20 | | (g) of this Section. | 21 | | (d) The 12-month period may be any consecutive 12-month | 22 | | period designated by the employer in writing at the time of | 23 | | hire. Changes to the 12-month period may be made by the | 24 | | employer if notice is given to employees in writing prior to | 25 | | the change and the change does not reduce the eligible accrual | 26 | | rate and paid leave available to the employee. If the employer |
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| 1 | | changes the designated 12-month period, the employer shall | 2 | | provide the employee with documentation of the balance of | 3 | | hours worked, paid leave accrued and taken, and the remaining | 4 | | paid leave balance. | 5 | | (e) Paid leave under this Act may be taken by an employee | 6 | | for any reason of the employee's choosing. An employee is not | 7 | | required to provide an employer a reason for the leave and may | 8 | | not be required to provide documentation or certification as | 9 | | proof or in support of the leave. An employee may choose | 10 | | whether to use paid leave provided under this Act prior to | 11 | | using any other leave provided by the employer or State law. | 12 | | (f) Employees shall be paid their hourly rate of pay for | 13 | | paid leave. However, employees engaged in an occupation in | 14 | | which gratuities or commissions have customarily and usually | 15 | | constituted and have been recognized as part of the | 16 | | remuneration for hire purposes shall be paid by their employer | 17 | | at least the full minimum wage in the jurisdiction in which | 18 | | they are employed when paid leave is taken. This wage shall be | 19 | | treated as the employee's regular rate of pay for purposes of | 20 | | this Act. | 21 | | (g) Paid leave under this Act shall begin to accrue at the | 22 | | commencement of employment or on the effective date of this | 23 | | Act, whichever is later. Employees shall be entitled to begin | 24 | | using paid leave 90 days following commencement of their | 25 | | employment or 90 days following the effective date of this | 26 | | Act, whichever is later. |
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| 1 | | (h) Paid leave under this Act shall be provided upon the | 2 | | oral or written request of an employee in accordance with the | 3 | | employer's reasonable paid leave policy notification | 4 | | requirements which may include the following: | 5 | | (1) If use of paid leave under this Act is | 6 | | foreseeable, the employer may require the employee to | 7 | | provide 7 calendar days' notice before the date the leave | 8 | | is to begin. | 9 | | (2) If paid leave under this Act is not foreseeable, | 10 | | the employee shall provide such notice as soon as is | 11 | | practicable after the employee is aware of the necessity | 12 | | of the leave. An employer that requires notice of paid | 13 | | leave under this Act when the leave is not foreseeable | 14 | | shall provide a written policy that contains procedures | 15 | | for the employee to provide notice. | 16 | | (3) Employers shall provide employees with written | 17 | | notice of the paid leave policy notification requirements | 18 | | in this Section in the manner provided in Section 20 for | 19 | | notice and posting and within 5 calendar days of any | 20 | | change to the employer's reasonable paid leave policy | 21 | | notification requirements. | 22 | | (4) An employer may not require, as a condition of | 23 | | providing paid leave under this Act, that the employee | 24 | | search for or find a replacement worker to cover the hours | 25 | | during which the employee takes paid leave. | 26 | | (i) Except as provided in subsection (b), paid leave under |
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| 1 | | this Act shall carry over annually to the extent not used by | 2 | | the employee, provided that nothing in this Act shall be | 3 | | construed to require an employer to provide more than 60 hours | 4 | | of paid leave for an employee in the 12-month period unless the | 5 | | employer agrees to do so. | 6 | | (j) Nothing in this Section or any other Illinois law or | 7 | | rule shall be construed as requiring financial or other | 8 | | payment to an employee from an employer upon the employee's | 9 | | termination, resignation, retirement, or other separation from | 10 | | employment for paid leave accrued under this Act that has not | 11 | | been used. Nothing in this Section or any other Illinois law or | 12 | | rule shall be construed as requiring financial or other | 13 | | reimbursements to an employee from an employer for unused paid | 14 | | leave under this Act at the end of the benefit year or any | 15 | | other time. | 16 | | (k) If an employee is transferred to a separate division, | 17 | | entity, or location, but remains employed by the same | 18 | | employer, the employee is entitled to all paid leave accrued | 19 | | at the prior division, entity, or location and is entitled to | 20 | | use all paid leave as provided in this Section. If there is a | 21 | | separation from employment and the employee is rehired within | 22 | | 12 months of separation by the same employer, previously | 23 | | accrued paid leave that had not been used by the employee shall | 24 | | be reinstated. The employee shall be entitled to use accrued | 25 | | paid leave at the commencement of employment following a | 26 | | separation from employment of 12 months or less. |
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| 1 | | (l) Paid leave under this Act shall not be charged or | 2 | | otherwise credited to an employee's paid time off bank or | 3 | | employee account unless the employer's policy permits such a | 4 | | credit. If the paid leave under this Act is credited to an | 5 | | employee's paid time off bank or employee vacation account | 6 | | then any unused paid leave shall be paid to the employee upon | 7 | | the employee's termination, resignation, retirement, or other | 8 | | separation to the same extent as vacation time under existing | 9 | | Illinois law or rule. Nothing in this Act shall be construed to | 10 | | waive or otherwise limit an employee's right to final | 11 | | compensation for promised and earned, but unpaid vacation time | 12 | | or paid time off, as provided under the Illinois Wage Payment | 13 | | and Collection Act and rules. Employers shall provide | 14 | | employees with written notice of changes to the employer's | 15 | | vacation time, paid time off, or other paid leave policies | 16 | | that affect an employee's right to final compensation for such | 17 | | leave. | 18 | | (m) During any period an employee takes leave under this | 19 | | Act, the employer shall maintain coverage for the employee and | 20 | | any family member under any group health plan for the duration | 21 | | of such leave at no less than the level and conditions of | 22 | | coverage that would have been provided if the employee had not | 23 | | taken the leave. The employer shall notify the employee that | 24 | | the employee is still responsible for paying the employee's | 25 | | share of the cost of the health care coverage, if any. | 26 | | (n) Nothing in this Act shall be deemed to interfere with, |
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| 1 | | impede,
or in any way diminish the right of employees to | 2 | | bargain collectively with their employers through | 3 | | representatives of their own choosing in order to establish | 4 | | wages or other conditions of work in excess of the applicable | 5 | | minimum standards established in this Act. The paid leave | 6 | | requirements
of this Act may be waived in a bona fide | 7 | | collective bargaining agreement, but only if the waiver is set | 8 | | forth explicitly in such agreement in clear and unambiguous | 9 | | terms. | 10 | | Nothing in this Act shall be deemed to affect the validity | 11 | | or change the terms of bona fide collective bargaining | 12 | | agreements in force on July 1, 2023. After that date, | 13 | | requirements of this Act may be waived in a bona fide | 14 | | collective bargaining agreement, but only if the waiver is set | 15 | | forth explicitly in such agreement in clear and unambiguous | 16 | | terms. | 17 | | In no event shall this Act apply to any employee working in | 18 | | the construction industry who is covered by a bona fide | 19 | | collective
bargaining agreement, nor shall this Act apply to | 20 | | any employee who is covered by a bona fide collective | 21 | | bargaining agreement with an employer that provides services | 22 | | nationally and internationally of delivery, pickup, and | 23 | | transportation of parcels, documents, and freight. | 24 | | (o) An agreement by an employee to waive his or her rights | 25 | | under this Act is void as against public policy. |
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| 1 | | Section 20. Related employer responsibilities. | 2 | | (a) An employer subject to this Act shall make and | 3 | | preserve records documenting hours worked, paid leave accrued | 4 | | and taken, and remaining paid leave balance for each employee | 5 | | for a period of not less than 3 years and shall allow the | 6 | | Department access to such records, at reasonable times during | 7 | | business hours, to monitor compliance with the requirements of | 8 | | this Act. In addition, the records shall be preserved for the | 9 | | duration of any claim pending pursuant to Section 35. An | 10 | | employer that provides paid leave on an accrual basis pursuant | 11 | | to subsection (b) of Section 15 shall provide notice of the | 12 | | amount of paid leave accrued or used by an employee upon | 13 | | request by the employee in accordance with the employer's | 14 | | reasonable paid leave policy notification provisions. An | 15 | | employer that fails to comply with this subsection is in | 16 | | violation of the Act and subject to the civil penalties | 17 | | established in Section 35. | 18 | | (b) An employer who provides any type of paid leave policy | 19 | | that satisfies the minimum amount of leave required by | 20 | | subsection (a) of Section 15 is not required to modify the | 21 | | policy if the policy offers an employee the option, at the | 22 | | employee's discretion, to take paid leave for any reason. | 23 | | Nothing in this Act shall be construed as requiring financial | 24 | | or other reimbursements to an employee from an employer for | 25 | | unused paid leave under this Act. Nothing in this Act shall be | 26 | | construed to discourage an employer from adopting a paid leave |
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| 1 | | policy more generous than the requirements of this Act. | 2 | | (c) For domestic workers, if an employer requires evidence | 3 | | of hours worked for other employers to confirm that the | 4 | | domestic worker has worked or is scheduled to work 8 or more | 5 | | hours in the aggregate for any relevant workweek, a signed | 6 | | statement by the domestic worker stating that he or she has | 7 | | performed or is scheduled to perform domestic work for 8 or | 8 | | more hours in the aggregate for any relevant workweek shall | 9 | | satisfy any documentation requirements of hours worked under | 10 | | the Domestic Workers' Bill of Rights Act and this Act. Such | 11 | | employer shall not require more than one signed statement in a | 12 | | calendar quarter if the hours the domestic worker has | 13 | | performed or is scheduled to perform domestic work have not | 14 | | decreased to less than 8 hours in the aggregate in any relevant | 15 | | workweek in that calendar quarter. An employer that requires | 16 | | evidence of hours worked must give the domestic worker written | 17 | | notice of such request and allow no fewer than 7 days or until | 18 | | the next scheduled workday, whichever is greater, for the | 19 | | domestic worker to comply with the request. The employer may | 20 | | not deny paid leave pending submission of the signed | 21 | | statement. | 22 | | (d) An employer shall post and keep posted in a | 23 | | conspicuous place on the premises of the employer where | 24 | | notices to employees are customarily posted, and include it in | 25 | | a written document, or written employee manual or policy if | 26 | | the employer has one, a notice, to be prepared by the |
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| 1 | | Department, summarizing the requirements of this Act and | 2 | | information pertaining to the filing of a charge upon | 3 | | commencement of an employee's employment or 90 days following | 4 | | the effective date of this Act, whichever is later. If an | 5 | | employer's workforce is comprised of a significant portion of | 6 | | workers who are not literate in English, the employer shall | 7 | | notify the Department and a notice in the appropriate language | 8 | | shall be prepared by the Department. Employees may also | 9 | | request that the Department provide a notice in languages | 10 | | other than English, which the employer must post in accordance | 11 | | with this subsection. An employer who violates this subsection | 12 | | shall be fined a civil penalty of $500 for the first audit | 13 | | violation and $1,000 for any subsequent audit violation. | 14 | | (e) No employer shall interfere with, deny, or change an | 15 | | employee's work days or hours to avoid providing eligible paid | 16 | | leave time to an employee. | 17 | | Section 25. Retaliation. It is unlawful for any employer | 18 | | to threaten to take or to take any adverse action against an | 19 | | employee because the employee (1) exercises rights or attempts | 20 | | to exercise rights under this Act, (2) opposes practices which | 21 | | the employee believes to be in violation of this Act, or (3) | 22 | | supports the exercise of rights of another under this Act. It | 23 | | is unlawful for any employer to consider the use of paid leave | 24 | | by an employee as a negative factor in any employment action | 25 | | that involves evaluating, promoting, disciplining, or counting |
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| 1 | | paid leave under a no-fault attendance policy. Such | 2 | | retaliation shall subject an employer to civil penalties | 3 | | pursuant to this Act. | 4 | | An employee who has been unlawfully retaliated against | 5 | | shall also be entitled to recover through a claim filed with | 6 | | the Department, all legal and equitable relief as may be | 7 | | appropriate. | 8 | | Section 30. Department responsibilities. | 9 | | (a) The Department shall administer and enforce this Act. | 10 | | The Department has the powers and the parties have the rights | 11 | | provided in the Illinois Administrative Procedure Act for | 12 | | contested cases. | 13 | | (b) An employee may file a complaint with the Department | 14 | | alleging violations of the Act within 3 years after the | 15 | | alleged violation. An employer that violates this Act is | 16 | | liable to any affected employee for damages in the form of the | 17 | | actual underpayment, compensatory damages, and a penalty of | 18 | | not less than $500 and no more than $1,000. Employees shall | 19 | | also be entitled to such equitable relief as may be | 20 | | appropriate, in addition to reasonable attorney's fees; | 21 | | reasonable expert witness fees, and other costs of the action, | 22 | | which shall be paid by the employer to the employee. | 23 | | (c) The Department has the power to conduct investigations | 24 | | in connection with the administration and enforcement of this | 25 | | Act, including the power to conduct depositions and discovery |
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| 1 | | and to issue subpoenas. If the Department finds cause to | 2 | | believe that this Act has been violated, the Department shall | 3 | | notify the parties in writing, and the matter shall be | 4 | | referred to an Administrative Law Judge to schedule a formal | 5 | | hearing in accordance with hearing procedures established by | 6 | | rule. Administrative decisions shall be reviewed under the | 7 | | Administrative Review Law. | 8 | | (d) The Department is authorized to impose civil penalties | 9 | | prescribed in Section 35 for any violation of this Act. | 10 | | (e) The Department is authorized to collect and supervise | 11 | | the payment of any damages awarded pursuant to Section 25 and | 12 | | subsection (b) of this Section to an employee or employees | 13 | | under this Act. Any sums recovered by the Department on behalf | 14 | | of an employee or employees under this Act shall be paid to the | 15 | | employee or employees affected. The Department is not | 16 | | authorized to collect and supervise the payment of any awarded | 17 | | attorney's fees. Those fees shall be subject to collection by | 18 | | the attorney awarded such fees. | 19 | | (f) The Attorney General may bring an action to enforce | 20 | | the collection of any awards made under this Act. | 21 | | (g) The Department shall adopt rules necessary to | 22 | | administer and enforce this Act. | 23 | | Section 35. Penalties and enforcement. An employer that | 24 | | violates this Act or any rule adopted under this Act shall be | 25 | | subject to a civil penalty of $2,500 for each separate |
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| 1 | | offense. An offense means any violation of this Act with the | 2 | | exception of a violation of the notice requirement in | 3 | | subsection (c) of Section 20. Any penalties collected from an | 4 | | employer under this Section or under subsection (d) of Section | 5 | | 20 for violations of this Act shall be deposited into the Paid | 6 | | Leave for All Workers Fund, a special fund created in the State | 7 | | treasury that is dedicated to enforcing this Act. | 8 | | Section 95. The State Finance Act is amended by adding | 9 | | Section 5.990 as follows: | 10 | | (30 ILCS 105/5.990 new) | 11 | | Sec. 5.990. The Paid Leave for All Workers Fund. | 12 | | Section 97. Severability. The provisions of this Act are | 13 | | severable under Section 1.31 of the Statute on Statutes.
| 14 | | Section 99. Effective date. This Act takes effect July 1, | 15 | | 2023.".
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