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Public Act 098-0106 Public Act 0106 98TH GENERAL ASSEMBLY |
Public Act 098-0106 | HB2649 Enrolled | LRB098 07683 JLS 37756 b |
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| AN ACT concerning employment.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Employee Classification Act is amended by | changing Sections 5, 25, 30, and 40 and by adding Section 63 as | follows: | (820 ILCS 185/5)
| Sec. 5. Definitions. As used in this Act: | "Construction" means any constructing, altering, | reconstructing, repairing, rehabilitating, refinishing, | refurbishing, remodeling, remediating, renovating, custom | fabricating, maintenance, landscaping, improving, wrecking, | painting, decorating, demolishing, and adding to or | subtracting from any building, structure, highway, roadway, | street, bridge, alley, sewer, ditch, sewage disposal plant, | water works, parking facility, railroad, excavation or other | structure, project, development, real property or improvement, | or to do any part thereof, whether or not the performance of | the work herein described involves the addition to, or | fabrication into, any structure, project, development, real | property or improvement herein described of any material or | article of merchandise. Construction shall also include moving | construction related materials on the job site to or from the |
| job site.
| "Contractor" means any individual, sole proprietor, | partnership, firm, corporation, limited liability company, | association or other legal entity permitted by law to do | business within the State of Illinois who engages in | construction as defined in this Act. | "Contractor" includes a general contractor and a | subcontractor.
| "Department" means the Department of Labor.
| "Director" means the Director of the Department of Labor.
| "Employer" means any contractor that employs individuals | deemed employees under Section 10 of this Act; however, | "employer" does not include (i) the State of Illinois or its | officers, agencies, or political subdivisions or (ii) the | federal government.
| "Entity" means any contractor for which an individual is | performing services and is not classified as an employee under | Section 10 of this Act; however, "entity" does not include (i) | the State of Illinois or its officers, agencies, or political | subdivisions or (ii) the federal government.
| "Interested party" means a person with an interest in | compliance with this Act. | "Performing services" means the performance of any | constructing, altering, reconstructing, repairing, | rehabilitating, refinishing, refurbishing, remodeling, | remediating, renovating, custom fabricating, maintenance, |
| landscaping, improving, wrecking, painting, decorating, | demolishing, and adding to or subtracting from any building, | structure, highway, roadway, street, bridge, alley, sewer, | ditch, sewage disposal plant, water works, parking facility, | railroad, excavation or other structure, project, development, | real property or improvement, or to do any part thereof, | whether or not the performance of the work herein described | involves the addition to, or fabrication into, any structure, | project, development, real property or improvement herein | described of any material or article of merchandise. | Construction shall also include moving construction related | materials on the job site to or from the job site.
| (Source: P.A. 95-26, eff. 1-1-08.) | (820 ILCS 185/25)
| Sec. 25. Enforcement. | (a) Any interested party may file a complaint with the | Department against an entity or employer covered under this Act | if there is a reasonable belief that the entity or employer is | in violation of this Act. It shall be the duty of the | Department to enforce the provisions of this Act. The | Department shall have the power to conduct investigations in | connection with the administration and enforcement of this Act | and any investigator with the Department shall be authorized to | visit and inspect, at all reasonable times, any places covered | by this Act and shall be authorized to inspect, at all |
| reasonable times, documents related to the determination of | whether an individual is an employee under Section 10 of this | Act. The Director of Labor or his or her representative may | compel, by subpoena, the attendance and testimony of witnesses | and the production of books, payrolls, records, papers, and | other evidence in any investigation and may administer oaths to | witnesses. Within 120 days of the filing of a complaint, the | Department shall notify the employer in writing of the filing | of a complaint and provide the employer the location and | approximate date of the project or projects, affected | contractors, and the nature of the allegations being | investigated.
| (b) Whenever the Department believes upon investigation | that there has been a violation of any of the provisions of | this Act or any rules or regulations promulgated under this | Act, the Department may: (i) issue and cause to be served on | any party an order to cease and desist from further violation | of the Act, (ii) take affirmative or other action as deemed | reasonable to eliminate the effect of the violation, (iii) | collect the amount of any wages, salary, employment benefits, | or other compensation denied or lost to the individual, and | (iv) assess any civil penalty allowed by this Act. The civil | penalties assessed by the Department as well as any other | relief requested by the Department shall be recoverable in an | action brought in the name of the people of the State of | Illinois by the Attorney General.
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| (c) If, upon investigation, the Department finds cause to | believe that Section 20 or Section 55 of this Act has been | violated, the Department shall notify the employer, in writing, | of its finding and any proposed relief due and penalties | assessed and that the matter will be referred to an | Administrative Law Judge to schedule a formal hearing in | accordance with the Illinois Administrative Procedure Act. | (d) The employer has 28 calendar days from the date of the | Department's findings to answer the allegations contained in | the Department's findings. If an employer fails to answer all | allegations contained in the Department's findings, any | unanswered allegations or findings shall be deemed admitted to | be true and shall be found true in the final decision issued by | the Administrative Law Judge. If, within 30 calendar days of | the final decision issued by the Administrative Law Judge, the | employer files a motion to vacate the Administrative Law | Judge's final decision and demonstrates good cause for failing | to answer the Department's allegations, and the Administrative | Law Judge grants the motion, the employer shall be afforded an | opportunity to answer and the matter shall proceed as if an | original answer to the Department's findings had been filed. | (e) A final decision of an Administrative Law Judge issued | pursuant to this Section is subject to the provisions of the | Administrative Review Law and shall be enforceable in an action | brought in the name of the people of the State of Illinois by | the Attorney General. |
| (Source: P.A. 95-26, eff. 1-1-08.) | (820 ILCS 185/30)
| Sec. 30. Attorney General; State's Attorneys. Criminal | violations of this Act shall be prosecuted by the Attorney | General or the appropriate State's Attorney. The Department | shall refer matters to the Attorney General and the appropriate | State's Attorney upon determining that a criminal violation may | have occurred. In all other proceedings the Department shall be | represented by the Attorney General's Office.
| (Source: P.A. 95-26, eff. 1-1-08.) | (820 ILCS 185/40)
| Sec. 40. Penalties. | (a) An employer or entity that violates any of the | provisions of this Act or any rule adopted under this Act shall | be subject to a civil penalty not to exceed $1,000 $1,500 for | each violation found in the first audit by the Department. | Following a first audit, an employer or entity shall be subject | to a civil penalty not to exceed $2,000 $2,500 for each repeat | violation found by the Department within a 5 year period. For | purposes of this Section, each violation of this Act for each | person and for each day the violation continues shall | constitute a separate and distinct violation. In determining | the amount of a penalty, the Director shall consider the | appropriateness of the penalty to the employer or entity |
| charged, upon the determination of the gravity of the | violations. | (b) The amount of the penalty, when finally determined, may | be recovered in any administrative proceeding or a civil action | filed in any circuit court by the Director of Labor, or a | person aggrieved by a violation of this Act or any rule adopted | under this Act. | (1) The Department shall distribute to all affected | employees 10% of the civil penalty recovered as a result of | any administrative proceeding or civil action brought by | the Department. The remaining 90% of the amount recovered | shall be submitted to the Director of Labor. | (2) In any civil action brought by an interested party | pursuant to this Section, the circuit court shall award the | interested party 10% of the amount recovered. In such case, | the remaining amount recovered shall be submitted to the | Director of Labor. | (c) Any uncollected amount shall be subject to the | provisions of the Illinois State Collection Act of 1986.
| (Source: P.A. 95-26, eff. 1-1-08.) | (820 ILCS 185/63 new) | Sec. 63. Individual liability. In addition to an individual | who is an employer pursuant to Section 5 of this Act, any | officer of a corporation or agent of a corporation who | knowingly permits such employer to violate the provisions of |
| this Act may be held individually liable for all violations and | penalties assessed under this Act. This Section shall not apply | to an individual who is an officer or agent of a corporation | which on the project under investigation satisfies the | responsible bidder requirements set forth in the Illinois | Procurement Code.
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Effective Date: 1/1/2014
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