Illinois 2023-2024 Regular Session

Illinois Senate Bill SB0291 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB0291 Introduced 2/2/2023, by Sen. Celina Villanueva SYNOPSIS AS INTRODUCED: New Act30 ILCS 105/5.990 new Creates the Secure Jobs Act. Establishes a framework for employee discipline and discharge. Prohibits the unjust discharge of an employee. Contains provisions concerning factors to be considered when determining whether an employee has been discharged for just cause and the conditions that allow for a discharge based on bona fide economic reasons. Requires employers to use progressive discipline measures. Limits the use of electronic monitoring. Provides for severance pay. Directs the Department of Labor to adopt rules and administer the Act. Provides statutory remedies for wrongfully discharged employees and authorizes the recovery of damages. Creates the Wrongful Discharge Enforcement Fund as a special fund in the State treasury. Effective January 1, 2024. LRB103 27122 SPS 53490 b A BILL FOR 103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB0291 Introduced 2/2/2023, by Sen. Celina Villanueva SYNOPSIS AS INTRODUCED: New Act30 ILCS 105/5.990 new New Act 30 ILCS 105/5.990 new Creates the Secure Jobs Act. Establishes a framework for employee discipline and discharge. Prohibits the unjust discharge of an employee. Contains provisions concerning factors to be considered when determining whether an employee has been discharged for just cause and the conditions that allow for a discharge based on bona fide economic reasons. Requires employers to use progressive discipline measures. Limits the use of electronic monitoring. Provides for severance pay. Directs the Department of Labor to adopt rules and administer the Act. Provides statutory remedies for wrongfully discharged employees and authorizes the recovery of damages. Creates the Wrongful Discharge Enforcement Fund as a special fund in the State treasury. Effective January 1, 2024. LRB103 27122 SPS 53490 b LRB103 27122 SPS 53490 b A BILL FOR
2	2	103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB0291 Introduced 2/2/2023, by Sen. Celina Villanueva SYNOPSIS AS INTRODUCED:
3	3	New Act30 ILCS 105/5.990 new New Act 30 ILCS 105/5.990 new
4	4	New Act
5	5	30 ILCS 105/5.990 new
6	6	Creates the Secure Jobs Act. Establishes a framework for employee discipline and discharge. Prohibits the unjust discharge of an employee. Contains provisions concerning factors to be considered when determining whether an employee has been discharged for just cause and the conditions that allow for a discharge based on bona fide economic reasons. Requires employers to use progressive discipline measures. Limits the use of electronic monitoring. Provides for severance pay. Directs the Department of Labor to adopt rules and administer the Act. Provides statutory remedies for wrongfully discharged employees and authorizes the recovery of damages. Creates the Wrongful Discharge Enforcement Fund as a special fund in the State treasury. Effective January 1, 2024.
7	7	LRB103 27122 SPS 53490 b LRB103 27122 SPS 53490 b
8	8	LRB103 27122 SPS 53490 b
9	9	A BILL FOR
10	10	SB0291LRB103 27122 SPS 53490 b SB0291 LRB103 27122 SPS 53490 b
11	11	SB0291 LRB103 27122 SPS 53490 b
12	12	1 AN ACT concerning employment.
13	13	2 Be it enacted by the People of the State of Illinois,
14	14	3 represented in the General Assembly:
15	15	4 Section 1. Short title. This Act may be cited as the Secure
16	16	5 Jobs Act.
17	17	6 Section 5. Definitions. In this Act:
18	18	7 "Benefits" means the cash value of any employer-paid
19	19	8 vacation leave, sick leave, medical insurance plan, disability
20	20	9 insurance plan, life insurance plan, annuity, and pension
21	21	10 benefit plan in effect on the date of discharge.
22	22	11 "Casual employee" refers to work in or around a private
23	23	12 home, that is irregular, uncertain, or incidental in nature
24	24	13 and duration.
25	25	14 "Constructive discharge" means the voluntary termination
26	26	15 of employment by an employee because of a situation created by
27	27	16 an act or omission of the employer that an objective,
28	28	17 reasonable person would find so intolerable that voluntary
29	29	18 termination is the only reasonable alternative.
30	30	19 "Day or temporary laborer", "day and temporary labor
31	31	20 services agency", and "third party client" have the meaning
32	32	21 ascribed to those terms under Section 5 of the Day and
33	33	22 Temporary Labor Services Act.
34	34	23 "Department" means the Department of Labor.
35	35
36	36
37	37
38	38	103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB0291 Introduced 2/2/2023, by Sen. Celina Villanueva SYNOPSIS AS INTRODUCED:
39	39	New Act30 ILCS 105/5.990 new New Act 30 ILCS 105/5.990 new
40	40	New Act
41	41	30 ILCS 105/5.990 new
42	42	Creates the Secure Jobs Act. Establishes a framework for employee discipline and discharge. Prohibits the unjust discharge of an employee. Contains provisions concerning factors to be considered when determining whether an employee has been discharged for just cause and the conditions that allow for a discharge based on bona fide economic reasons. Requires employers to use progressive discipline measures. Limits the use of electronic monitoring. Provides for severance pay. Directs the Department of Labor to adopt rules and administer the Act. Provides statutory remedies for wrongfully discharged employees and authorizes the recovery of damages. Creates the Wrongful Discharge Enforcement Fund as a special fund in the State treasury. Effective January 1, 2024.
43	43	LRB103 27122 SPS 53490 b LRB103 27122 SPS 53490 b
44	44	LRB103 27122 SPS 53490 b
45	45	A BILL FOR
46	46
47	47
48	48
49	49
50	50
51	51	New Act
52	52	30 ILCS 105/5.990 new
53	53
54	54
55	55
56	56	LRB103 27122 SPS 53490 b
57	57
58	58
59	59
60	60
61	61
62	62
63	63
64	64
65	65
66	66	SB0291 LRB103 27122 SPS 53490 b
67	67
68	68
69	69	SB0291- 2 -LRB103 27122 SPS 53490 b SB0291 - 2 - LRB103 27122 SPS 53490 b
70	70	SB0291 - 2 - LRB103 27122 SPS 53490 b
71	71	1 "Discharge" means any cessation of employment, including
72	72	2 constructive discharge, indefinite suspension, layoff, or
73	73	3 reduction in hours.
74	74	4 "Egregious misconduct" means deliberate or grossly
75	75	5 negligent conduct that:
76	76	6 (1) endangers the safety or well-being of the
77	77	7 individual, co-workers, customers, or other persons,
78	78	8 including discrimination against, harassment of, or
79	79	9 causing physical or emotional harm to co-workers,
80	80	10 customers, or other persons;
81	81	11 (2) causes serious damage to the employer's or
82	82	12 customers' property or business interests, including, but
83	83	13 not limited to, theft; or
84	84	14 (3) involves grossly inappropriate behavior such as
85	85	15 working under the influence of intoxicants or controlled
86	86	16 substances.
87	87	17 "Electronic monitoring" means the collection of
88	88	18 information concerning worker activities, communications,
89	89	19 actions, biometric information, as that term is defined in
90	90	20 Section 10 of the Biometric Information Privacy Act, or
91	91	21 behaviors by electronic means including, but not limited to,
92	92	22 video or audio surveillance, electronic work pace tracking,
93	93	23 and other means.
94	94	24 "Employ" means to suffer or permit to work.
95	95	25 "Employee" has the meaning given that term in Section 2 of
96	96	26 the Illinois Wage Payment and Collection Act, and also
97	97
98	98
99	99
100	100
101	101
102	102	SB0291 - 2 - LRB103 27122 SPS 53490 b
103	103
104	104
105	105	SB0291- 3 -LRB103 27122 SPS 53490 b SB0291 - 3 - LRB103 27122 SPS 53490 b
106	106	SB0291 - 3 - LRB103 27122 SPS 53490 b
107	107	1 includes a "day or temporary laborer" but does not include a
108	108	2 casual employee who performs work in or around a private home
109	109	3 that is irregular in nature. A person may be an employee of 2
110	110	4 or more employers at the same time. "Employee" does not
111	111	5 include supervisors or persons who hold elective office.
112	112	6 "Employer" has the meaning given that term in Section 2 of
113	113	7 the Illinois Wage Payment and Collection Act, and also
114	114	8 includes a "third party client" and a "day and temporary labor
115	115	9 services agency". More than one entity may be the employer of
116	116	10 an employee, including in circumstances where one entity
117	117	11 controls, is controlled by, or is under common control with
118	118	12 another employer, or where one entity exerts control over the
119	119	13 operations of another employer. An employer-employee
120	120	14 relationship is presumed to exist when an individual performs
121	121	15 labor or services for an employer. The party asserting that an
122	122	16 individual is not an employee must establish by a
123	123	17 preponderance of the evidence that the individual is an
124	124	18 independent contractor.
125	125	19 "Just cause" means:
126	126	20 (1) an employee's failure to satisfactorily perform
127	127	21 his or her job duties or to comply with employer policies;
128	128	22 (2) an employee's egregious misconduct; or
129	129	23 (3) bona fide economic reasons.
130	130	24 "Progressive discipline" means an employer's disciplinary
131	131	25 system that provides a graduated range of reasonable responses
132	132	26 to an employee's failure to satisfactorily perform his or her
133	133
134	134
135	135
136	136
137	137
138	138	SB0291 - 3 - LRB103 27122 SPS 53490 b
139	139
140	140
141	141	SB0291- 4 -LRB103 27122 SPS 53490 b SB0291 - 4 - LRB103 27122 SPS 53490 b
142	142	SB0291 - 4 - LRB103 27122 SPS 53490 b
143	143	1 job duties or comply with employer policies, with the
144	144	2 disciplinary measures ranging from mild to severe, depending
145	145	3 on the frequency and degree of the failure, and the employee
146	146	4 being afforded a reasonable period of time to address
147	147	5 concerns.
148	148	6 "Reduction in hours" means a reduction in an employee's
149	149	7 hours of work totaling at least 15% of the employee's average
150	150	8 weekly work hours.
151	151	9 "Relator" means a current or former employee, contractor,
152	152	10 subcontractor, or employee of such a contractor or
153	153	11 subcontractor of an alleged violator of this Act, regardless
154	154	12 of whether that person has received full or partial relief,
155	155	13 who seeks relief through a public enforcement action brought
156	156	14 under this Act.
157	157	15 "Representative organization" means a nonprofit or labor
158	158	16 organization selected by a relator to initiate a public
159	159	17 enforcement action on the relator's behalf.
160	160	18 "Severance pay" has the meaning of that term as described
161	161	19 in Section 50.
162	162	20 "Short-term position" means employment pursuant to a
163	163	21 written contract that specifies that the position is to end
164	164	22 after a specified period of time, not to exceed 6 months, where
165	165	23 the employer can show that the work or need in question is
166	166	24 expected to end, such as in the case of a seasonal job or a job
167	167	25 to perform a specific project.
168	168
169	169
170	170
171	171
172	172
173	173	SB0291 - 4 - LRB103 27122 SPS 53490 b
174	174
175	175
176	176	SB0291- 5 -LRB103 27122 SPS 53490 b SB0291 - 5 - LRB103 27122 SPS 53490 b
177	177	SB0291 - 5 - LRB103 27122 SPS 53490 b
178	178	1 Section 10. Prohibition against discharge without just
179	179	2 cause.
180	180	3 (a) An employer shall not discharge an employee without
181	181	4 just cause. Just cause may not be based on off-duty conduct
182	182	5 unless there is a demonstrable and material nexus between the
183	183	6 conduct and the employee's job performance or the employer's
184	184	7 legitimate business interests.
185	185	8 (b) The employer shall within 3 days provide a written
186	186	9 explanation to any discharged employee of the specific reasons
187	187	10 for the discharge. In determining whether an employer had just
188	188	11 cause for discharge, a fact finder may not consider any
189	189	12 reasons not included in such written explanation. Where an
190	190	13 employer fails to provide a written explanation to a
191	191	14 discharged employee, the discharge shall not be deemed to be
192	192	15 based on just cause. All information and judgments that the
193	193	16 employer considered in making the determination shall be made
194	194	17 available to the employee or his or her representative.
195	195	18 (c) The employer shall bear the burden of proving just
196	196	19 cause including, if applicable, that the employer followed
197	197	20 progressive discipline, by a preponderance of non-hearsay
198	198	21 evidence in any proceeding brought pursuant to this Act.
199	199	22 Section 15. Factors to be considered. In determining
200	200	23 whether an employee has been discharged for just cause for
201	201	24 failure to satisfactorily perform job duties or for failure to
202	202	25 comply with employer policies, the fact finder shall consider,
203	203
204	204
205	205
206	206
207	207
208	208	SB0291 - 5 - LRB103 27122 SPS 53490 b
209	209
210	210
211	211	SB0291- 6 -LRB103 27122 SPS 53490 b SB0291 - 6 - LRB103 27122 SPS 53490 b
212	212	SB0291 - 6 - LRB103 27122 SPS 53490 b
213	213	1 in addition to any other relevant factors, whether:
214	214	2 (1) the employee knew or should have known of his or
215	215	3 her job duties or of the employer's policy;
216	216	4 (2) the employer provided relevant and adequate
217	217	5 training to the employee;
218	218	6 (3) the employer's policy was reasonable and applied
219	219	7 consistently;
220	220	8 (4) the employer undertook a thorough, fair and
221	221	9 objective investigation; and
222	222	10 (5) the employer used progressive discipline.
223	223	11 Section 20. Discharge for failure to satisfactorily
224	224	12 perform job duties. A discharge for failure to satisfactorily
225	225	13 perform job duties or comply with employer policies shall not
226	226	14 be deemed to be based on just cause unless the employer has
227	227	15 used progressive discipline. Provided, further, that the time
228	228	16 period between a first warning or discipline and termination
229	229	17 shall be not less than 15 days, and the employer may not rely
230	230	18 on a warning or discipline issued more than one year in the
231	231	19 past to justify a discharge.
232	232	20 Section 25. Progressive discipline. Under progressive
233	233	21 discipline, an employer may discharge an employee immediately
234	234	22 for egregious misconduct. A finding of misconduct for purposes
235	235	23 of unemployment insurance eligibility shall not necessarily
236	236	24 constitute serious misconduct for purposes of this Act. An
237	237
238	238
239	239
240	240
241	241
242	242	SB0291 - 6 - LRB103 27122 SPS 53490 b
243	243
244	244
245	245	SB0291- 7 -LRB103 27122 SPS 53490 b SB0291 - 7 - LRB103 27122 SPS 53490 b
246	246	SB0291 - 7 - LRB103 27122 SPS 53490 b
247	247	1 employee discharged for egregious misconduct shall not be
248	248	2 entitled to severance pay.
249	249	3 Section 30. Discharge based on bona fide economic reasons.
250	250	4 A discharge shall not be deemed to be based on bona fide
251	251	5 economic reasons unless the following conditions are met:
252	252	6 (1) the discharge results from a reduction in
253	253	7 production, sales, services, profit, or funding of the
254	254	8 employer, or technological or organizational changes in
255	255	9 the employer's operations that necessitate full or partial
256	256	10 reduction of the employer's operations;
257	257	11 (2) the employees or groups of employees to be
258	258	12 discharged are identified using broadly applicable
259	259	13 criteria that do not appear to target individuals; and
260	260	14 (3) the bona fide economic reasons justifying the
261	261	15 discharge were specified in writing to the employee at the
262	262	16 time of the discharge and are supported by the employer's
263	263	17 records.
264	264	18 A discharge shall be presumed not to be based on bona fide
265	265	19 economic reasons where the employer hired or hires another
266	266	20 employee to perform substantially the same work within 90 days
267	267	21 before or after the discharge. Elimination of staff redundancy
268	268	22 created by a merger or acquisition shall not be deemed a bona
269	269	23 fide economic reason for discharge of employees.
270	270	24 Section 35. Employee actions that do not constitute just
271	271
272	272
273	273
274	274
275	275
276	276	SB0291 - 7 - LRB103 27122 SPS 53490 b
277	277
278	278
279	279	SB0291- 8 -LRB103 27122 SPS 53490 b SB0291 - 8 - LRB103 27122 SPS 53490 b
280	280	SB0291 - 8 - LRB103 27122 SPS 53490 b
281	281	1 cause for termination. In no event shall any of the following
282	282	2 actions by an employee constitute just cause for termination:
283	283	3 (1) an employee's communication about workplace
284	284	4 practices or policies, including, but not limited to,
285	285	5 health or safety practices or hazards related to COVID-19,
286	286	6 to any person, including to an employer, an employer's
287	287	7 agent, other employees, a government agency, or the
288	288	8 public, including through print, online, social media, or
289	289	9 any other media; or
290	290	10 (2) an employee's refusal to work under conditions
291	291	11 that the employee reasonably believes would expose him or
292	292	12 her, other employees, or the public to an unreasonable
293	293	13 health or safety risk, including, but not limited to, risk
294	294	14 of illness or exposure to COVID-19.
295	295	15 An employer shall not retaliate against any employee or
296	296	16 other person for such conduct. Notwithstanding any other
297	297	17 provision of law, such conduct shall constitute protected
298	298	18 conduct and may not be contractually prohibited, or subject to
299	299	19 civil or criminal sanction or liability.
300	300	20 Section 40. Employer assessments. An employer must
301	301	21 conduct its own assessment of an employee, and may not rely on
302	302	22 data gathered through electronic monitoring in discharging or
303	303	23 disciplining an employee. Such employment decisions must be
304	304	24 made based on human-provided information sources such as
305	305	25 supervisors' assessments and documentation, or consulting
306	306
307	307
308	308
309	309
310	310
311	311	SB0291 - 8 - LRB103 27122 SPS 53490 b
312	312
313	313
314	314	SB0291- 9 -LRB103 27122 SPS 53490 b SB0291 - 9 - LRB103 27122 SPS 53490 b
315	315	SB0291 - 9 - LRB103 27122 SPS 53490 b
316	316	1 co-workers. An employer must disclose in advance to employees
317	317	2 any electronic monitoring or data collection at a workplace,
318	318	3 disclose the purposes for which the data will be used, and
319	319	4 provide employees meaningful opportunities to challenge any
320	320	5 electronic monitoring or data systems. However, data gathered
321	321	6 through electronic monitoring may be used in the following
322	322	7 circumstances: for non-employment-related purposes; for
323	323	8 discharging or disciplining an employee in cases of egregious
324	324	9 misconduct or involving threats to the health or safety of
325	325	10 other persons; or where required by State or federal law.
326	326	11 Provided further, information on employee tardiness or
327	327	12 absenteeism from electronic time-keeping systems that are used
328	328	13 to measure employee work shifts for payroll purposes may be
329	329	14 considered for purposes of employee discharge and discipline.
330	330	15 Section 45. Discharge; short-term position. Discharge at
331	331	16 the end of a short-term position shall not require a showing of
332	332	17 just cause and shall not entitle an employee to severance pay.
333	333	18 A position shall not be deemed to be a short-term position
334	334	19 where the employer hires another employee, including another
335	335	20 employee who is a day or temporary laborer, to perform
336	336	21 substantially the same work within 90 days before or after the
337	337	22 discharge. However, discharge prior to the end of the term of a
338	338	23 short-term position shall require a showing of just cause and
339	339	24 shall entitle the employee to severance pay.
340	340
341	341
342	342
343	343
344	344
345	345	SB0291 - 9 - LRB103 27122 SPS 53490 b
346	346
347	347
348	348	SB0291- 10 -LRB103 27122 SPS 53490 b SB0291 - 10 - LRB103 27122 SPS 53490 b
349	349	SB0291 - 10 - LRB103 27122 SPS 53490 b
350	350	1 Section 50. Severance pay. An employee shall accrue an
351	351	2 entitlement to one hour of severance pay for every 12.5 hours
352	352	3 worked during his or her first 2,080 hours of employment, and
353	353	4 for every 50 hours worked thereafter. Within 14 days after
354	354	5 discharge, the employer shall pay the employee his or her
355	355	6 accrued severance pay, calculated based on the number of hours
356	356	7 accrued multiplied by the employee's rate of pay upon
357	357	8 discharge. However, an employee who is discharged at the end
358	358	9 of a short-term position shall not be entitled to severance
359	359	10 pay. Severance pay shall be exclusive of final compensation
360	360	11 due an employee upon separation, as provided for under Section
361	361	12 2 of the Illinois Wage Payment and Collection Act. For
362	362	13 purposes of determining an employee's hours of employment,
363	363	14 tenure, or seniority, multiple periods worked for the
364	364	15 employer, including through a day and temporary services
365	365	16 agency, and any time worked for a predecessor employer shall
366	366	17 be aggregated.
367	367	18 Section 55. Employment through day and temporary labor
368	368	19 services agencies.
369	369	20 (a) Where an employee is a day or temporary laborer who has
370	370	21 worked 100 hours or more for a single third party client, the
371	371	22 third party client shall be deemed his or her employer, shall
372	372	23 become subject to the protections of this Act as regards the
373	373	24 employee, and may not discharge the employee without just
374	374	25 cause. However, if the employee's employment with the third
375	375
376	376
377	377
378	378
379	379
380	380	SB0291 - 10 - LRB103 27122 SPS 53490 b
381	381
382	382
383	383	SB0291- 11 -LRB103 27122 SPS 53490 b SB0291 - 11 - LRB103 27122 SPS 53490 b
384	384	SB0291 - 11 - LRB103 27122 SPS 53490 b
385	385	1 party client qualifies as a short-term position, then a
386	386	2 showing of just cause for discharge at the end of the
387	387	3 position's defined term shall not be required, nor shall
388	388	4 payment of severance pay at the end of the position's defined
389	389	5 term be required. In such a case the third party client must
390	390	6 show that all of the criteria and conditions for a short-term
391	391	7 position in Section 45 and in the definition of short-term
392	392	8 position are satisfied in order for the employment of the day
393	393	9 or temporary laborer to qualify as a short-term position.
394	394	10 (b) Where an employee is a day or temporary laborer who has
395	395	11 not worked 100 hours or more for a single third party client
396	396	12 but has worked 100 hours or more for a temporary labor services
397	397	13 agency, aggregating all hours worked for multiple third party
398	398	14 clients, the employee shall become subject to more limited
399	399	15 protection under the Act. Such an employee shall be given
400	400	16 priority by the temporary labor services agency for future
401	401	17 work assignments over employees who have not worked 100 hours
402	402	18 or more for the agency. When such an employee is discharged by
403	403	19 the day and temporary labor services agency, the employee
404	404	20 shall be entitled to payment of severance pay, as determined
405	405	21 under Section 50. Such an employee shall be deemed discharged
406	406	22 if he or she receives no work assignment offers from the
407	407	23 temporary labor services agency for a period of 21 days or
408	408	24 more. However, if such an employee's employment with the
409	409	25 temporary labor services agency ends in order for the employee
410	410	26 to commence direct employment with a third party client, then
411	411
412	412
413	413
414	414
415	415
416	416	SB0291 - 11 - LRB103 27122 SPS 53490 b
417	417
418	418
419	419	SB0291- 12 -LRB103 27122 SPS 53490 b SB0291 - 12 - LRB103 27122 SPS 53490 b
420	420	SB0291 - 12 - LRB103 27122 SPS 53490 b
421	421	1 no payment of severance pay shall be required.
422	422	2 (c) Employers that are third party clients and employers
423	423	3 that are day and temporary labor services agencies shall be
424	424	4 jointly and severally responsible with one another for
425	425	5 compliance with the Act's requirements.
426	426	6 Section 60. Collective bargaining agreement exemption. The
427	427	7 requirements of this Act shall not apply to employees who are
428	428	8 covered by a valid collective bargaining agreement.
429	429	9 Section 65. Retaliation prohibited. No employer or any
430	430	10 other person shall threaten, intimidate, discipline,
431	431	11 discharge, demote, suspend, or harass an employee, reduce the
432	432	12 hours or pay of an employee, inform another employer that an
433	433	13 employee has alleged that the employer violated this Act or
434	434	14 any other law, discriminate against an employee, or take any
435	435	15 other adverse action that penalizes an employee for, or is
436	436	16 reasonably likely to deter an employee from, exercising or
437	437	17 attempting to exercise any right protected under this Act or
438	438	18 any other law, including informing other employees or persons
439	439	19 of their rights under this Act or any other law, assisting in
440	440	20 any way with any complaint or investigation involving this
441	441	21 Act, including another workers' case, or sharing information
442	442	22 about workplace issues with other employees or the public,
443	443	23 including on social media. Threats or any other adverse action
444	444	24 related to perceived immigration status or work authorization
445	445
446	446
447	447
448	448
449	449
450	450	SB0291 - 12 - LRB103 27122 SPS 53490 b
451	451
452	452
453	453	SB0291- 13 -LRB103 27122 SPS 53490 b SB0291 - 13 - LRB103 27122 SPS 53490 b
454	454	SB0291 - 13 - LRB103 27122 SPS 53490 b
455	455	1 shall constitute threats or adverse actions as those terms are
456	456	2 used in this Section. An employee need not explicitly refer to
457	457	3 this Act or any other law or the rights enumerated herein to be
458	458	4 protected from retaliation. The protections afforded by this
459	459	5 Section shall apply to any person who mistakenly but in good
460	460	6 faith alleges violations of this Act.
461	461	7 Section 70. Protection of former employees from
462	462	8 blacklisting. An employer shall not prevent or attempt to
463	463	9 prevent, by word or writing of any kind, a former employee from
464	464	10 obtaining employment with any other employer. An employer is
465	465	11 not prohibited from providing by word or writing to any other
466	466	12 employer to whom the discharged employee has applied for
467	467	13 employment a truthful statement of the reason for discharge.
468	468	14 Section 75. Notice and posting of rights.
469	469	15 (a) The Department shall publish and make available
470	470	16 notices informing employees of their rights protected under
471	471	17 this Act. Employers shall post such notices in a conspicuous
472	472	18 location in the workplace or at any job site, and shall give a
473	473	19 notice to each employee at the time of hiring and on an annual
474	474	20 basis. The notices shall be made available in a downloadable
475	475	21 format on the Department's website in English, Spanish,
476	476	22 Polish, Mandarin, and Cantonese.
477	477	23 (b) Every employer shall conspicuously post at any
478	478	24 workplace or job site where any employee works the notices
479	479
480	480
481	481
482	482
483	483
484	484	SB0291 - 13 - LRB103 27122 SPS 53490 b
485	485
486	486
487	487	SB0291- 14 -LRB103 27122 SPS 53490 b SB0291 - 14 - LRB103 27122 SPS 53490 b
488	488	SB0291 - 14 - LRB103 27122 SPS 53490 b
489	489	1 described in subsection (a) that apply to the particular
490	490	2 workplace or job site. The notices shall be in English and any
491	491	3 language spoken as a primary language by at least 5% of the
492	492	4 employees at that location if the Department has made the
493	493	5 notice available in that language.
494	494	6 Section 80. Recordkeeping.
495	495	7 (a) Employers shall retain records documenting their
496	496	8 compliance with the applicable requirements of this Act. In
497	497	9 addition, day and temporary labor services agencies shall
498	498	10 maintain records of each individual day or temporary laborer's
499	499	11 start date with such day and temporary labor services agency
500	500	12 and the dates on which that laborer was placed with a third
501	501	13 party client. Employers shall retain such records for a period
502	502	14 of 3 years and shall allow the Department access to such
503	503	15 records and other information, in accordance with applicable
504	504	16 law and with appropriate notice, in furtherance of an
505	505	17 investigation conducted in accordance with this Act.
506	506	18 (b) In addition, employers shall report annually to the
507	507	19 Department, and any person who requests a copy of:
508	508	20 (1) the employer's total employment each year broken
509	509	21 down by full-time employment (defined as at least 30 hours
510	510	22 per week), part-time employment (defined as less than 30
511	511	23 hours per week), short-term employment, and employment
512	512	24 through a temp or staffing agency; and
513	513	25 (2) the employer's total number of separations each
514	514
515	515
516	516
517	517
518	518
519	519	SB0291 - 14 - LRB103 27122 SPS 53490 b
520	520
521	521
522	522	SB0291- 15 -LRB103 27122 SPS 53490 b SB0291 - 15 - LRB103 27122 SPS 53490 b
523	523	SB0291 - 15 - LRB103 27122 SPS 53490 b
524	524	1 year broken down by whether the separation was a discharge
525	525	2 for cause, a discharge for bona fide economic reasons, a
526	526	3 separation as a result of the end of a short-term
527	527	4 position, an employee resignation, or an employee
528	528	5 retirement.
529	529	6 Within 14 days after a request for such records, employers
530	530	7 shall make requested records available for review and copying.
531	531	8 (c) An employer's failure to maintain, retain, or produce
532	532	9 a record or other information required to be maintained by
533	533	10 this Section relevant to a material fact alleged by an
534	534	11 employee in a complaint brought pursuant to this Section or
535	535	12 requested by the Department pursuant to an investigation,
536	536	13 creates a rebuttable presumption that such fact is true.
537	537	14 Section 85. Administrative implementation and enforcement.
538	538	15 (a) The Department shall administer and enforce the
539	539	16 provisions of this Act and shall, within 120 days after its
540	540	17 effective date, adopt rules necessary to administer and
541	541	18 enforce the provisions of this Act. The rules shall include
542	542	19 the procedures for investigations and hearings under this Act.
543	543	20 The adoption, amendment, or rescission of rules shall be in
544	544	21 conformity with the requirements of the Illinois
545	545	22 Administrative Procedure Act.
546	546	23 (b) An aggrieved employee or his or her duly authorized
547	547	24 representative may file a complaint with the Department
548	548	25 regarding violations by an employer of this Act or of any
549	549
550	550
551	551
552	552
553	553
554	554	SB0291 - 15 - LRB103 27122 SPS 53490 b
555	555
556	556
557	557	SB0291- 16 -LRB103 27122 SPS 53490 b SB0291 - 16 - LRB103 27122 SPS 53490 b
558	558	SB0291 - 16 - LRB103 27122 SPS 53490 b
559	559	1 implementing rules. Upon receiving a complaint or on its own
560	560	2 initiative, the Department shall investigate potential
561	561	3 violations, make a determination whether a violation has
562	562	4 occurred, and take appropriate action to enforce the
563	563	5 provisions of this Act and any implementing rules.
564	564	6 (c) If an employer is found by the Department to have
565	565	7 violated this Act or any rules adopted under this Act, the
566	566	8 Department shall order the following, in addition to any other
567	567	9 remedy provided by law:
568	568	10 (1) In the case of unlawful discharge, retaliation,
569	569	11 blacklisting, or unlawful electronic monitoring, actual
570	570	12 and liquidated damages payable to each aggrieved worker
571	571	13 equal to, at the aggrieved party's election, $10,000 or 3
572	572	14 times the actual damages including, but not limited to,
573	573	15 unpaid wages, benefits, other remuneration owed, and
574	574	16 compensation for emotional pain, suffering, inconvenience,
575	575	17 and mental anguish, unless an adjudicator finds that
576	576	18 mitigating circumstances are present, in which case the
577	577	19 adjudicator may order that the preceding liquidated
578	578	20 damages amount be reduced as circumstances make
579	579	21 appropriate, as well as reinstatement, restoration of
580	580	22 hours, other injunctive relief (including to rectify
581	581	23 conditions that led to constructive discharge), punitive
582	582	24 damages, and such other remedies as may be appropriate.
583	583	25 (2) In the case of discharge where severance pay was
584	584	26 not provided, payment of severance pay together with an
585	585
586	586
587	587
588	588
589	589
590	590	SB0291 - 16 - LRB103 27122 SPS 53490 b
591	591
592	592
593	593	SB0291- 17 -LRB103 27122 SPS 53490 b SB0291 - 17 - LRB103 27122 SPS 53490 b
594	594	SB0291 - 17 - LRB103 27122 SPS 53490 b
595	595	1 additional 2 times that amount as liquidated damages, and
596	596	2 such other remedies as may be appropriate including
597	597	3 punitive damages.
598	598	4 (3) In the case of failure to provide a timely written
599	599	5 explanation for a discharge, injunctive relief and
600	600	6 liquidated damages in an amount equal to $5,000, unless an
601	601	7 adjudicator finds that mitigating circumstances are
602	602	8 present, in which case the adjudicator may order that the
603	603	9 preceding liquidated damage amount be reduced as
604	604	10 circumstances make appropriate, and such other remedies as
605	605	11 may be appropriate, including punitive damages.
606	606	12 (4) Payment of a further sum to the Department as a
607	607	13 civil penalty in an amount of $10,000 for unlawful
608	608	14 discharge, retaliation, or blacklisting in violation of
609	609	15 this Act, or unlawful electronic monitoring, in an amount
610	610	16 of $5,000 for or failure to provide a timely written
611	611	17 explanation for a discharge, or in an amount of $1,000 for
612	612	18 other violations of this Act, including the Act's
613	613	19 recordkeeping requirements or failure to produce records
614	614	20 requested in an investigation. However, if an adjudicator
615	615	21 finds that mitigating circumstances are present, the
616	616	22 adjudicator may order that the preceding civil penalty
617	617	23 amounts be reduced as circumstances make appropriate. The
618	618	24 civil penalties imposed in accordance with this Section
619	619	25 shall be imposed on a per employee and per instance basis
620	620	26 for each violation.
621	621
622	622
623	623
624	624
625	625
626	626	SB0291 - 17 - LRB103 27122 SPS 53490 b
627	627
628	628
629	629	SB0291- 18 -LRB103 27122 SPS 53490 b SB0291 - 18 - LRB103 27122 SPS 53490 b
630	630	SB0291 - 18 - LRB103 27122 SPS 53490 b
631	631	1 (5) Payment of the complainant's reasonable attorneys'
632	632	2 fees, expert fees, and other costs. For the purposes of
633	633	3 this provision, a complainant shall be deemed to have
634	634	4 prevailed and entitled to an award of fees and costs if
635	635	5 commencement of a complaint has acted as a catalyst to
636	636	6 effect policy change on the part of the respondent,
637	637	7 regardless of whether that change has been implemented
638	638	8 voluntarily, as a result of a settlement, or as a result of
639	639	9 a judgment in such party's favor.
640	640	10 (6) In assessing an appropriate remedy, due
641	641	11 consideration shall be given to the gravity of the
642	642	12 violation, the history of previous violations, and the
643	643	13 good faith of the employer.
644	644	14 (7) All amounts specified in this Act shall be updated
645	645	15 annually to keep pace with the rising cost of living by
646	646	16 increasing each amount in proportion to the increase over
647	647	17 the most recent 12-month period for which data are
648	648	18 available in the value of the Consumer Price Index for All
649	649	19 Urban Consumers (CPI-U), as calculated by the Bureau of
650	650	20 Labor Statistics of the United States Department of Labor,
651	651	21 and rounding the new amounts to the nearest multiple of
652	652	22 $5. Such increased amounts shall be announced by October 1
653	653	23 of each year, and shall take effect on January 1.
654	654	24 (8) Either party may bring an administrative appeal to
655	655	25 enforce, vacate, or modify the order, determination, or
656	656	26 other disposition.
657	657
658	658
659	659
660	660
661	661
662	662	SB0291 - 18 - LRB103 27122 SPS 53490 b
663	663
664	664
665	665	SB0291- 19 -LRB103 27122 SPS 53490 b SB0291 - 19 - LRB103 27122 SPS 53490 b
666	666	SB0291 - 19 - LRB103 27122 SPS 53490 b
667	667	1 (9) No procedure or remedy set forth in this Section
668	668	2 is exclusive or a prerequisite for asserting a claim for
669	669	3 relief to enforce any rights under this Act in a court of
670	670	4 law.
671	671	5 (10) Any employer who has been ordered by the
672	672	6 Department or ordered by a court to pay unpaid backpay,
673	673	7 front pay and benefits, severance pay, liquidated or
674	674	8 punitive damages, or civil penalties, and who fails to
675	675	9 seek timely review of such a demand or order as provided
676	676	10 for under this Act and who fails to comply within 15
677	677	11 calendar days after such demand or within 35 days after an
678	678	12 administrative or court order is entered shall also be
679	679	13 liable to pay a penalty to the Department of 20% of the
680	680	14 amount found owing and a penalty to the employee of 1% per
681	681	15 calendar day of the amount found owing for each day of
682	682	16 delay in paying such wages to the employee. All moneys
683	683	17 recovered as fees and civil penalties under this Act,
684	684	18 except those owing to the affected employee, shall be
685	685	19 deposited into the Wrongful Discharge Enforcement Fund, a
686	686	20 special fund which is hereby created in the State
687	687	21 treasury. Moneys in the Fund may be used only for
688	688	22 enforcement of this Act.
689	689	23 Section 90. Civil action. Except as otherwise provided by
690	690	24 law, any person claiming to be aggrieved by an employer's
691	691	25 violation of this Act has a cause of action in any court and,
692	692
693	693
694	694
695	695
696	696
697	697	SB0291 - 19 - LRB103 27122 SPS 53490 b
698	698
699	699
700	700	SB0291- 20 -LRB103 27122 SPS 53490 b SB0291 - 20 - LRB103 27122 SPS 53490 b
701	701	SB0291 - 20 - LRB103 27122 SPS 53490 b
702	702	1 upon prevailing, shall be awarded the relief specified in
703	703	2 Section 85 and, if the court finds in favor of the plaintiff,
704	704	3 it shall award such prevailing party, in addition to other
705	705	4 relief, his or her reasonable attorneys' fees, expert fees,
706	706	5 and other costs. As used in this Section, "prevailing" party
707	707	6 includes a party whose commencement of litigation has acted as
708	708	7 a catalyst to effect policy change on the part of the
709	709	8 defendant, regardless of whether that change has been
710	710	9 implemented voluntarily, as a result of a settlement, or as a
711	711	10 result of a judgment in such party's favor. Penalties and fees
712	712	11 under this Act may be assessed by the Department and recovered
713	713	12 in a civil action brought by the Department in any court or in
714	714	13 any administrative adjudicative proceeding under this Act. In
715	715	14 any such civil action or administrative adjudicative
716	716	15 proceeding under this Act, the Department shall be represented
717	717	16 by the Attorney General.
718	718	17 Section 95. Public enforcement action. A relator or
719	719	18 representative organization may initiate a public enforcement
720	720	19 action in any court to pursue civil penalties, injunctive
721	721	20 relief, and declaratory relief, as specified in Section 85, on
722	722	21 behalf of the Department, for a violation of the provisions of
723	723	22 this Act affecting the relator and other current or former
724	724	23 employees, according to the following procedures:
725	725	24 (a) The relator or representative organization shall
726	726	25 give written notice to the Department of the specific
727	727
728	728
729	729
730	730
731	731
732	732	SB0291 - 20 - LRB103 27122 SPS 53490 b
733	733
734	734
735	735	SB0291- 21 -LRB103 27122 SPS 53490 b SB0291 - 21 - LRB103 27122 SPS 53490 b
736	736	SB0291 - 21 - LRB103 27122 SPS 53490 b
737	737	1 provisions of this Act alleged to have been violated,
738	738	2 including the facts and theories to support the alleged
739	739	3 violation. The notice shall be given in such a manner as
740	740	4 the Department may prescribe by rule.
741	741	5 (b) If the Department intends to investigate the
742	742	6 alleged violation, it shall notify the relator or
743	743	7 representative organization of its decision within 65
744	744	8 calendar days after the postmark date of the notice.
745	745	9 Within 60 calendar days after that decision, the
746	746	10 Department may investigate the alleged violation and take
747	747	11 any enforcement action authorized by law. If the
748	748	12 Department determines that additional time is necessary to
749	749	13 complete the investigation, it may extend the time by not
750	750	14 more than 60 additional calendar days and shall notify the
751	751	15 relator or representative organization of the extension.
752	752	16 (c) Notwithstanding any other provision of law, a
753	753	17 public enforcement action brought under this Act must be
754	754	18 commenced within the limitations period specified in
755	755	19 Section 100. The statute of limitations for bringing a
756	756	20 public enforcement action under this Act shall be tolled
757	757	21 from the date a relator or representative organization
758	758	22 files a notice under this Section with the Department, or
759	759	23 the Department commences an investigation, whichever is
760	760	24 earlier.
761	761	25 (d) The relator or representative organization may
762	762	26 commence a civil action under this Act if the Department
763	763
764	764
765	765
766	766
767	767
768	768	SB0291 - 21 - LRB103 27122 SPS 53490 b
769	769
770	770
771	771	SB0291- 22 -LRB103 27122 SPS 53490 b SB0291 - 22 - LRB103 27122 SPS 53490 b
772	772	SB0291 - 22 - LRB103 27122 SPS 53490 b
773	773	1 determines that no enforcement action will be taken, or if
774	774	2 no enforcement action is taken by the Department within
775	775	3 the time limits prescribed.
776	776	4 (e) The Department may intervene in an action brought
777	777	5 under this Act and proceed with any and all claims in the
778	778	6 action as of right within 30 days after the filing of the
779	779	7 action, or for good cause, as determined by the court, at
780	780	8 any time after the 30-day period after the filing of the
781	781	9 action.
782	782	10 (f) Civil penalties recovered in a public enforcement
783	783	11 action brought under this Act shall be distributed as
784	784	12 follows:
785	785	13 (1) If the Department does not intervene in the
786	786	14 action, 60% to the Department, and 40% to the relator
787	787	15 or representative organization, to be distributed to
788	788	16 the employees affected by the violation, including a
789	789	17 service award that reflects the burdens and risks
790	790	18 assumed by the employee or representative organization
791	791	19 in prosecuting the action.
792	792	20 (2) If the Department does intervene in the
793	793	21 action, 70% to the Department, and 30% to the relator
794	794	22 or representative organization, the latter of which
795	795	23 shall be distributed to the employees affected by the
796	796	24 violation, including a service award that reflects the
797	797	25 burdens and risks assumed by the employee or
798	798	26 representative organization in prosecuting the action.
799	799
800	800
801	801
802	802
803	803
804	804	SB0291 - 22 - LRB103 27122 SPS 53490 b
805	805
806	806
807	807	SB0291- 23 -LRB103 27122 SPS 53490 b SB0291 - 23 - LRB103 27122 SPS 53490 b
808	808	SB0291 - 23 - LRB103 27122 SPS 53490 b
809	809	1 (3) The share of penalties recovered for the
810	810	2 Department under this Act shall be used solely to
811	811	3 support the Department's education and enforcement
812	812	4 activities relating to this Act, with approximately
813	813	5 25% of these penalties reserved for grants to
814	814	6 community organizations for outreach and education
815	815	7 about employee rights under this Act.
816	816	8 (g) In any public enforcement action commenced under
817	817	9 this Act, the court shall allow a prevailing relator or
818	818	10 representative organization to recover all reasonable
819	819	11 attorneys' fees, expert fees, and other costs. For the
820	820	12 purposes of this provision, a "prevailing" relator or
821	821	13 representative organization includes a relator or
822	822	14 representative organization whose commencement of
823	823	15 litigation has acted as a catalyst to effect policy change
824	824	16 on the part of the defendant, regardless of whether that
825	825	17 change has been implemented voluntarily, as a result of a
826	826	18 settlement, or as a result of a judgment in such relator or
827	827	19 representative organization's favor.
828	828	20 (h) No public enforcement action brought under this
829	829	21 Act shall be required to meet class action certification
830	830	22 requirements under Part 8 of Article II of the Code of
831	831	23 Civil Procedure or Rule 23(a) of the Federal Rules of
832	832	24 Civil Procedure.
833	833	25 (i) The relator or representative organization may not
834	834	26 recover compensatory damages or back pay, or seek
835	835
836	836
837	837
838	838
839	839
840	840	SB0291 - 23 - LRB103 27122 SPS 53490 b
841	841
842	842
843	843	SB0291- 24 -LRB103 27122 SPS 53490 b SB0291 - 24 - LRB103 27122 SPS 53490 b
844	844	SB0291 - 24 - LRB103 27122 SPS 53490 b
845	845	1 reinstatement, in a public enforcement action. But the
846	846	2 filing of a public enforcement action does not preclude an
847	847	3 employee from pursuing these remedies in another forum.
848	848	4 (j) The right to bring a public enforcement action
849	849	5 under this Act shall not be impaired by any private
850	850	6 contract.
851	851	7 Section 100. Limitation of actions. Notwithstanding any
852	852	8 other provision of law, an action under this Act must be filed
853	853	9 within 3 years after the complainant knew or should have known
854	854	10 of the alleged violation. However, this statute of limitations
855	855	11 period shall be tolled for the duration of any state of
856	856	12 emergency declared by the State or by any city or county in
857	857	13 which the action is commenced.
858	858	14 Section 105. Non-preemption. This Act does not preempt,
859	859	15 limit, or otherwise affect the authority of any other unit of
860	860	16 government to adopt laws, rules, requirements, policies, or
861	861	17 standards providing additional employment or workplace
862	862	18 protections.
863	863	19 Section 110. Violations. An employer that violates this
864	864	20 Act is guilty of a Class A misdemeanor.
865	865	21 Section 115. Severability. The provisions of this Act are
866	866	22 severable under Section 1.31 of the Statute on Statutes.
867	867
868	868
869	869
870	870
871	871
872	872	SB0291 - 24 - LRB103 27122 SPS 53490 b
873	873
874	874
875	875	SB0291- 25 -LRB103 27122 SPS 53490 b SB0291 - 25 - LRB103 27122 SPS 53490 b
876	876	SB0291 - 25 - LRB103 27122 SPS 53490 b
877	877	1 Section 120. The State Finance Act is amended by adding
878	878	2 Section 5.990 as follows:
879	879	3 (30 ILCS 105/5.990 new)
880	880	4 Sec. 5.990. The Wrongful Discharge Enforcement Fund.
881	881
882	882
883	883
884	884
885	885
886	886	SB0291 - 25 - LRB103 27122 SPS 53490 b