Capitol News Report: February 2018

By Shattuck & Associates Consulting, Inc.

Preview to 2018 Session

With the gubernatorial primary and an unusually large number of legislative primaries, (many in open seats), the initial few months of the legislative session should be fairly quiet. Already the House cancelled two days in January and will be meeting only a total of 14 days before the March 20th primary elections. The Senate has 18 days scheduled between now and the primary elections. Once March 20th comes and goes however, we expect a flurry of activity on the budget and issues that raise greater political interest.

To kick start 2018, The Governor delivered his State of the State message on January 31. See additional information on the State of the State below.

On February 14th, the Governor will present his budget proposal to the General Assembly. At this time, it is likely that the budget debate will be as contentious as it has been the past three years. Much political finger pointing and blame game will dominate the discussion.

April and May’s legislative calendar and debates will center on issues to advance the interests of the democrat nominee for Governor. Issues such as legalization of marijuana, progressive income tax, single payor healthcare to name a few.

We also will likely see the issues that ABC fought and were vetoed last year by Governor Rauner, resurrected and resent to him for his consideration.   They include:

  • Workers' compensation changes that increase costs for employers;
  • Increasing the minimum wage to $15 per hour;
  • Limits on employers seeking wage, salary, benefit history from job applicants; and
  • Expanding penalties for wage/hour violations, including debarment from contracting with the State.

Many of these issues are used in campaign mailers for those lawmakers who voted for them explaining how much they support the middle class and union households. Lawmakers who vote against these measures are cast as supporting big business and the wealthy.

We anticipate other problematic issues that will be pursued during the 2018 Session such as: 

  • paid leave mandate (Note: the House likely will vote on HB 2771 soon, sending it to the Governor for his consideration); 
  • creation of new wage hour prosecution unit at the Office of the Attorney General, including new liabilities for employers for so-called “wage theft”;
  •  mandating employers provide employee federal transportation benefits; and, 
  • regulation of noncompete agreements. 

Business interests are working with Sen. Heather Steans (D-Chicago), House Majority Leader Barbara Flynn Currie (D-Chicago), the Illinois Department of Human Rights, the Illinois Human Rights Commission and other stakeholders to enact legislation to eliminate and prevent the unacceptable time frames for employment discrimination charges being investigated and adjudicated. 

The Biometric Information Privacy Act is being used by plaintiffs to extend liability for employers when the employer uses certain attendance, time-keeping data for internal purposes. Sen. Chris Nybo (R-Elmhurst) and Sen. Bill Cunningham (D-Chicago) will be introducing legislation to clarify the focus of the Act on its original intent and specifically exclude human resources and internal security activities from the Act.

Sen. Mike Connelly (R-Lisle) is leading efforts to counter legislation severely penalizing and enhancing legal remedies against employers for violation of the Equal Pay Act. Sen. Connelly is pressing for consideration of the Massachusetts model for compliance. Massachusetts uses incentives for employer compliance instead of other Illinois proposals that use the club of litigation and fines.

Mike Unes (R-East Peoria) is preparing legislative changes to Illinois’ workers’ compensation law to help employers reduce their premiums. Last year, lawmakers were very close to a bipartisan agreement that would have been helpful to improving the system for employers and injured workers. Rep. Unes is attempting to resurrect a similar proposal.

 

2018 State of the State

Governor Rauner presented his State of the State speech Wednesday, January 31st, in Springfield tying in themes of economic opportunity and potential. He mentioned his administration’s achievements in ethics politics, education funding, criminal justice reform, spending restraint, and technology advances as opportunities for further growth.

The Governor laid out his agenda for the upcoming year to include controlling spending, introducing legislation to make the Ethics Act the supreme law of the state in all matters involving misconduct, getting term limits on the ballot and “let the people decide”, and aggressively dealing with property tax assessment corruption by introducing legislation to prohibit legislators from practicing before assessment appeal boards in Illinois to name a few initiatives.

While the speech took a note of positivity calling on the collaboration of issues everyone can agree on and listing the long list of historic achievements Illinois has seen, it’s difficult to predict that this will be a collaborative session with this year being a gubernatorial election. Both political sides will be ready for all-out assaults after the March primaries.

 

Bills of Interest for ABC Members

HB 2771, sponsored by Rep. Mitchell (D-Chicago)/Sen. Hutchinson (D-Chicago Heights), creates the Healthy Workplace Act and amends the State Finance Act to require employers to provide 40 hours of paid sick days to employees. Sets forth the purposes for and manner in which the sick days may be used. Contains provisions regarding employer responsibilities, unlawful employer practices, and other matters. Provides that the Department of Labor shall administer the Act. Authorizes the imposition of civil penalties. Authorizes individuals to file civil actions with respect to violations. Creates the Healthy Workplace Fund as a special fund in the State treasury. Provides an exemption for the construction industry. Excludes school districts, park districts, and certain City of Chicago sister agencies. Provides that an employee may earn sick days 180 days after beginning employment. Effective immediately. House Calendar to Concur with Senate Amendments 1 & 2

HB 4163, sponsored by Rep. Moeller (D-Elgin), amends the Equal Pay Act of 2003 to prohibit an employer from: (i) screening job applicants based on their wage or salary history, (ii) requiring that an applicant's prior wages satisfy minimum or maximum criteria, and (iii) requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant disclose prior wages or salary. Prohibits an employer from seeking the salary, including benefits or other compensation or salary history, of a job applicant from any current or former employer, with some exceptions. Limits defenses. Provides for penalties and injunctive relief. House Second Reading

HB 4268, sponsored by Rep. Thapedi (D-Chicago), Amends the Home Repair and Remodeling Act. In the home repair consumer rights pamphlet, replaces notice language concerning lien waivers with the following: "Illinois law requires that, before payment, your contractor give you a sworn statement which lists: (1) all the persons or companies your contractor hired to work on your home and their addresses; and (2) the amounts previously paid, the amounts about to be paid, and the total amount owed after the payment to these persons or companies. The sworn statement should be fully completed, signed, and notarized. When the contractor's sworn statement lists an amount due or to become due to a subcontractor, or when a subcontractor gives you notice of an amount due to the subcontractor, you must retain sufficient funds to pay that subcontractor. Subcontractors give the contractors lien waivers when they are paid. Ask your contractor for copies of these lien waivers. If your contractor tells you he or she needs a payment from you in order to pay subcontractors, you have the right to pay the subcontractors directly.".  (This bill takes portions of the Mechanic’s Lien Act and places it within the Home Repair & Remodeling Act) Assigned to House Judiciary-Civil Committee/Real & Personal Property Law Subcommittee

HB 4315, sponsored by Rep. McDermed (R-Frankfort), amends the Environmental Protection Act to require, within 180 days after the effective date, the Pollution Control Board to adopt rules to require groundwater monitoring at all clean construction or demolition debris fill operations and all uncontaminated soil fill operations. The groundwater monitoring requirements must be designed to detect and prevent exceedances of the Board’s Class I groundwater quality standards and meet specified requirements. Groundwater monitoring would not be required if, before the effective date, the owner or operator has completed post-closure maintenance and, for clean construction or demolition debris fill operations, received specified notice from the EPA, or, for uncontaminated soil fill operations, submitted specified information to the EPA. Effective immediately. House Rules Committee

HB 4324, sponsored by Rep. Welch (D-Westchester), creates the Wage Lien Act to allow for the creation of a lien on an employer's property for the amount of unpaid wages owed to an employee. Defines terms and includes provisions concerning creation of the lien; exemptions; notice; limitations; recording of the lien; enforcement; other claims on the employer's property; successor obligations; and construction. Assigned to House Labor & Commerce Committee

HB 4363, sponsored by Rep. Jimenez (R-Springfield), amends the Business Enterprise for Minorities, Females, and Persons with Disabilities Act to require any contractor awarded a contract under the Act to make periodic reports to the contracting State agency on all expenditures made to achieve compliance with the provisions of the Act. Provides for the required contents of the report. Provides remedies for a contractor's non-compliance with the commitment to businesses owned by minorities, women, or persons with disabilities under the Act. Provides additional terms by which a contracting State agency may terminate a contract under the Act. Allows a contracting State agency to have access to a contractor's books and records for compliance purposes. House Rules Committee

HB 4389, sponsored by Rep. Bennett (R-Pontiac), amends the Workers' Compensation Act to create the Workers' Compensation Transparency Task Force. Provides that the Task Force shall collect and review information and data on the effects of the changes in workers' compensation law enacted by the General Assembly and that the purpose of the collection and review of information is to make as transparent as possible all information relating to the medical treatment, legal representation, and benefits paid to injured workers in this State. Repeals the language creating the Task Force on April 1, 2023. Repeals certain requirements relating to reports and promulgation of rules concerning workers' compensation insurance by the Department of Insurance on April 1, 2023. Effective immediately. House Rules Committe

HB 4419, sponsored by Rep. Skillicorn (R-Crystal Lake), creates the Employment Relations Act to allow employees to (a) organize together or form, join, or assist in labor organization; (b) engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection; (c) negotiate or bargain collectively with their employers through representatives of their own free choice; or (d) refrain from any or all of the activities previously identified. It also allows for an individual to not be required as a condition of employment to (1) refrain or resign from a labor organization; (2) become or remain a member of a labor organization; (3) pay any dues, fees, assessments or other charges/expenses to a labor organization; or (4) pay to any charitable organization/third party in lieu of the charges/expenses required of labor organization members. Prohibits any agreement or contract between an employer and labor organization that requires an employee to satisfy any activities identified in items (1) through (4). Effective immediately. House Rules Committee

HB 4421, sponsored by Rep. Reis (R-Olney), amends the Right to Privacy in the Workplace Act to require every employer, after hiring an employee, to verify the employment eligibility of the employee through the E-Verify program. Provides that, in addition to any other requirement for an employer to receive a grant, loan, or performance-based incentive from any government entity, the employer shall register with and participate in the E-Verify program. Provides that before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the E-Verify program. Provides that the State, its political subdivisions, and units of local government, including home rule units, shall require each employer to use an Employment Eligibility Verification System as a condition of receiving a government contract or a business license. Effective immediately. House Rules Committee

HB 4432, sponsored by Rep. Hoffman (D-Belleville), reintroduces the House Democrats’ Workers’ Compensation “reform” proposal from last year found in HB 2525. Contains codification of current bad case law for “causation” and “traveling employee”. Prevents employers from being able to achieve a change in case law from future courts. Contains increased regulation and litigation. House Rules Committee

HB 4495, sponsored by Rep. Thapedi, creates the Vocational Academy Opportunity Act to create 2 vocational academies, one located in Cook County and the other in St. Clair County, which shall be residential institutions. Provides that each academy shall be a State agency, funded by State appropriations, private contributions, and endowments. Provides that the academies shall be governed by a single Board of Trustees for the collective operation and oversight of the academies. Provides for the membership of the Board. Specifies the duties and powers of the Board. Provides that each academy shall be empowered to lease or purchase real and personal property on commercially reasonable terms for the use by the academy. House Rules Committee

HB 4513, sponsored by Rep. Conyears (D-Chicago), same as HB 3744 from last year, amends the Illinois Procurement Code to require any project under a construction contract at least 10% of man-hours performing construction services be performed by individuals who reside in areas of poverty. Requires the Department of Central Management Services to annually release a list of areas of poverty that meet the requirements. House Rules Committee

SB 2282, sponsored by Sen. Weaver (R-Peoria), Creates the Limitations on Actions for Negligent Hiring Act. Provides that a cause of action may not be brought against a party solely for hiring an employee or independent contractor who has been convicted of a nonviolent, non-sexual offense. Provides that in a negligent hiring action for the acts of an employee or independent contractor, the fact that the employee or independent contractor was convicted of a nonviolent, non-sexual offense before the beginning of the employee's or independent contractor's employment or contractual obligation may not be introduced into evidence. Provides that the new provisions do not preclude any existing cause of action for failure of an employer or other person to provide adequate supervision of an employee or independent contractor, except that the fact that the employee or independent contractor has been convicted of a nonviolent, non-sexual criminal offense may be introduced into evidence in the suit only if: (1) the employer knew of the conviction or was grossly negligent in not knowing of the conviction; and (2) the conviction was directly related to the nature of the employee's or independent contractor's work and the conduct that gave rise to the alleged injury that is the basis of the suit. Provides exceptions in certain situations. Assigned to Senate Judiciary Committee

SB 2333, sponsored by Sen. Connelly (R-Naperville), responds to HB 4163 by amending the Equal Pay Act of 2003 to prohibit an employer from requiring an employee to sign a contract or waiver that would prohibit the employee from disclosing or discussing the employee's wage or salary; however, an employer may prohibit a human resources employee, a supervisor, or any other employee whose job responsibilities require or allow access to other employees' wage or salary information from disclosing such information without prior written consent from the employee whose information is sought or requested. Provides that it is unlawful for an employer to seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer or to require that a prospective employee's prior wage or salary history meet certain criteria, with some exceptions. Provides that an employer against whom an action is brought alleging a violation of the Act's prohibition against gender-based wage differentials and who, within the previous 3 years and prior to the commencement of the action, has completed a self-evaluation of the employer's pay practices and can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for the same or substantially similar work in accordance with that evaluation shall have an affirmative defense to liability. Provides that an employer who cannot demonstrate that the evaluation was reasonable in detail and scope shall not be entitled to an affirmative defense, but is liable for any civil fine of: (1) up to $500 per employee affected, if the employer has fewer than 4 employees; or (2) up to $2,500 per employee affected, if the employer has 4 or more employees. Unlike HB 4163, this does not take away an employer’s defenses for a wage differential. Senate Labor Committee

SB 2335, sponsored by Sen. Murphy (D-Elk Grove Village), Amends the Workers' Compensation Act in relation to repetitive injuries. Provides that an accidental injury that results from repetitive or cumulative trauma and occurs within 6 months after the employee begins employment shall not be considered by a workers' compensation insurer in setting rates. Provides for contribution by prior employers with respect to awards for repetitive or cumulative injuries.  Assigned to Senate Judiciary Committee

SB 2449, sponsored by Sen. Brady (R-Bloomington), Amends and re-enacts provisions of the Civil Practice Article of the Code of Civil Procedure concerning actions on account of bodily injury or death or physical damage to property based on negligence or product liability based on strict tort liability. Provides that the court shall not instruct the jury of the consequence of any findings of fault of any plaintiff or defendant under specified provisions of the Code. Deletes language providing that the court shall instruct the jury in writing that the defendant shall be found not liable if the jury finds that the contributory fault of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. In the Section concerning joint liability, deletes language providing that: any defendant whose fault is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant except the plaintiff's employer, is severally liable for non-medical damages; and any defendant whose fault is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants except the plaintiff's employer, is jointly and severally liable for non-medical damages. Adds language providing that: any defendant whose fault is less than 25% of the proximate cause of the injury or damage for which recovery is sought by the plaintiff is severally liable for non-medical damages; and any defendant whose fault is 25% or greater of the proximate cause of the injury or damage for which recovery is sought by the plaintiff is jointly and severally liable for non-medical damages. Contains applicability provisions. Senate Assignments Committee

SB 2453sponsored by Sen. Terry Link (D-Gurnee), amends the Illinois Underground Utility Facilities Damage Prevention Act to clarify that the term “underground utility facilities” or “facilities” does not include underground storm sewers located within a right-of-way controlled by the counties of DuPage, Kane, Lake, McHenry, and Will.Senate Assignments Committee

SB 2480, sponsored by Sen. Mike Hastings (D-Orland Hills), creates the Illinois Hazardous Materials Workforce Training Act. Provides that the Environmental Protection Agency shall develop by rule a curriculum of approved advanced safety training for workers at high hazard facilities. Provides that an owner or operator, when contracting for the performance of construction work at the stationary source, shall require that its contractors and any subcontractors use a skilled and trained workforce to perform all onsite work within an apprenticeable occupation in the building and construction trades and pay the prevailing wage. Senate Assignments Committee

Elisa Fox