HB 773 — PREVAILING WAGE-SCOPE-NOTICE

HB0773(f) - 8 - LRB095 09068 RLC 29259 b (d) (b) It shall also be mandatory upon the contractor to whom the contract is awarded to insert into each subcontract and into the project specifications for each subcontract a written stipulation to the effect that not less than the prevailing rate of wages shall be paid to all laborers, workers, and mechanics performing work under the contract.

It HB0773 Engrossed - 8 - LRB095 09068 RLC 29259 b shall also be mandatory upon each subcontractor to cause to be inserted into each lower tiered subcontract and into the project specifications for each lower tiered subcontract a stipulation to the effect that not less than the prevailing rate of wages shall be paid to all laborers, workers, and mechanics performing work under the contract.

A contractor or subcontractor who fails to comply with this subsection (c)(f) (b) is in violation of this Act.

(e)(g) When a contractor has awarded work to a subcontractor without a contract or without a contract specification, the contractor may comply with this subsection (e)(d) by providing a subcontractor a written statement indicating that no less than the prevailing wage rate shall be paid to all laborers, mechanics and other workers performing work on the project.

(f)A Wherecontractor aor complaintsubcontractor haswho beenfails madeto andcomply thewith Departmentthis hassubsection determined(g) thatis ain violation hasof occurred, the Department shall determine if proper notice under this SectionAct. 4 was given.

If(h) properWhere noticea wascomplaint nothas providedbeen tomade theand subcontractor by the contractor, the Department shallhas orderdetermined thethat contractora toviolation payhas anyoccurred, back wages, interest, penalties or fines owed by the HB0773Department -shall 9determine -if LRB095proper 09068written RLCnotice 29259under bthis subcontractorSection to4 allwas laborers,given. mechanics and other workers who performed work on the project.

ForIf proper written notice was not provided to the purposessubcontractor ofby thisthe subsectioncontractor, backthe wagesDepartment shall beorder limitedthe contractor to thepay differenceany betweenback wages, interest, penalties or fines owed by the actualsubcontractor amountto paidall laborers, mechanics and theother prevailingworkers wageswho requiredperformed forwork on the project.

AFor subcontractorthe shallpurposes notof this subsection back wages shall be deemedlimited into violationthe ofdifference thisbetween Actthe ifactual suchamount noticepaid isand notthe provided.prevailing wages HB0773 Engrossed - 9 - LRB095 09068 RLC 29259 b required for the project.

However,A ifsubcontractor propershall notice was not providedbe todeemed thein contractorviolation by the public body under subsections (a) or (b) of this SectionAct 4,if thesuch Departmentwritten shallnotice orderis thenot publicprovided. body to pay any back wages, interest, penalties or fines owed by the subcontractor to all laborers, mechanics and other workers who performed work on the project.

TheHowever, failureif toproper providewritten notice bywas anot contractorprovided doesto notthe diminishcontractor by the obligationpublic body under subsections (a) or (b) of athis subcontractorSection 4, the Department shall order the public body to pay any back wages, interest, penalties or fines owed by the prevailingsubcontractor wageto rateall aslaborers, determinedmechanics underand thisother Act.workers who performed work on the project.

(g)The (c)failure Itto shallprovide alsowritten requirenotice inby alla suchpublic contractor’sbody bondsor that the contractor includedoes suchnot provisiondiminish asthe willright guaranteeof thea faithfullaborer, performanceworker, ofor suchmechanic to prevailing wage clauserate as provideddetermined byunder contract.this Act.

(i) (c) It shall also require in all such contractor’s bonds that the contractor include such provision as will guarantee the faithful performance of such prevailing wage clause as provided by contract.

(h)(j) (d) If the Department of Labor revises the prevailing rate of hourly wages to be paid by the public body, the revised rate shall apply to such contract,contract. and the public body shall be responsible to notify the contractor and each subcontractor notifying its employees pursuant to this Act and paying the , HB0773 - 10 - LRB095 09068 RLC 29259 b of the revised rate.

(i)The (e)public Twobody or morethe investigatoryDepartment hearingsof underLabor thisshall Sectionmake on the issuerevised rate of establishinghourly awages newavailable prevailingto wagethe classificationcontractor forand aeach particularsubcontractor craftand orthe typepublication of workerthe shallrevised berate consolidatedon inthe aDepartment singleof hearingLabor’s beforeofficial thewebsite Department.shall be deemed sufficient notice.

The, and the public body shall be responsible to notify the contractor HB0773 Engrossed - 10 - LRB095 09068 RLC 29259 b and each subcontractor shall notify its employees pursuant to this Act and pay the , of the revised rate.

(e) Two or more investigatory hearings under this Section on the issue of establishing a new prevailing wage classification for a particular craft or type of worker shall be consolidated in a single hearing before the Department.

The(k) requestIt shall be mandatory upon the contractor or construction manager to whom a contract for anpublic investigatoryworks hearingis shallawarded beto filedpost, withinat a location on the monthproject site of June.the public works that is easily accessible to the workers engaged on the project, the prevailing wage rates for each craft or type of worker or mechanic needed to execute the contract or project or work to be performed.

UponIn receivinglieu aof requestposting foron anthe investigatoryproject hearingsite pursuantof tothe thispublic subsection,works, thea Departmentcontractor shallwhich sethas a hearing.business location where laborers, workers and mechanics regularly visit may:

Such hearing shall take place no later than 45 calendar days after the receipt by the Department of Labor of the request for an investigatory hearing, unless all parties consent to a later date.

The Department of Labor is empowered to promulgate, adopt, amend and rescind rules and regulations to govern the hearing procedure.

(j) It shall be mandatory upon the contractor or construction manager to whom a contract for public works is awarded to post, at a location on the project site of the public works that is easily accessible to the workers engaged on the project, the prevailing wage rates for each craft or type of worker or mechanic needed to execute the contract or HB0773 - 11 - LRB095 09068 RLC 29259 b project or work to be performed.

In lieu of posting on a job site, a contractor which has a business location where laborers, workers and mechanics regularly visit may:

or (2) provide such laborer, worker or mechanic engaged on the public works project a written notice indicating the prevailing wage rates for the HB0773 Engrossed - 11 - LRB095 09068 RLC 29259 b public works project.

(k)(l) TheBeginning July 1, 2009, every public body awarding any contract for a public works or otherwise undertaking any public works shall notify the Department of Labor in writing, on a form and in a format prescribed by the Department of Labor, whenever a contract subject to the provisions of this Act has been awarded.

revised 10-29-04.) (820 ILCS 130/5)130/6) (from Ch.

39s-5) Sec.

5.

Certified payroll.

(a) While participating on public works, the contractor and each subcontractor shall:

HB0773 - 12 - LRB095 09068 RLC 29259 b (1) make and keep, for a period of not less than 3 years, records of all laborers, mechanics, and other workers employed by them on the project;

the records shall include each worker’s name, address, telephone number when available, social security number, classification or classifications, the hourly wages paid in each pay period, the number of hours worked each day, and the starting and ending times of work each day;

and (2) submit monthly, in person, by mail, or electronically a certified payroll to the public body in charge of the project.

The certified payroll shall consist of a complete copy of the records identified in paragraph (1) of this subsection (a), but may exclude the starting and ending times of work each day.

The certified payroll shall be accompanied by a statement signed by the contractor or subcontractor which avers that:

(i) such records are true and accurate;

(ii) the hourly rate paid to each worker is not less than the general prevailing rate of hourly wages required by this Act;

and (iii) the contractor or subcontractor is aware that filing a certified payroll that he or she knows to be false is a Class B misdemeanor.

A general contractor is not prohibited from relying on the certification of a lower tier subcontractor, provided the general contractor does not knowingly rely upon a subcontractor’s false certification.

Any contractor or subcontractor subject to this Act who fails to submit a HB0773 - 13 - LRB095 09068 RLC 29259 b certified payroll or knowingly files a false certified payroll is in violation of this Act and guilty of a Class B misdemeanor.

The public body in charge of the project shall keep the records submitted in accordance with this paragraph (2) of subsection (a) for a period of not less than 3 years.

The records submitted in accordance with this paragraph (2) of subsection (a) shall be considered public records, except an employee’s address, telephone number, and social security number, and made available in accordance with the Freedom of Information Act.

The public body shall accept any reasonable submissions by the contractor that meet the requirements of this Section.

This paragraph (a)(2) does not apply to a mechanic performing maintenance, repair, assembly, or disassembly work on leased or rented equipment when the mechanic performing the work is an employee of the entity leasing or renting the equipment, unless the entity leasing or renting the equipment employs a mechanic on the public works project 3 or more consecutive days or 10 or more days in a calendar month.

(b) Upon 7 business days’ notice, the contractor and each subcontractor shall make available for inspection the records identified in paragraph (1) of subsection (a) of this Section to the public body in charge of the project, its officers and agents, and to the Director of Labor and his deputies and agents.

Upon 7 business days’ notice, the contractor and each HB0773 - 14 - LRB095 09068 RLC 29259 b subcontractor shall make such records available at all reasonable hours at a location within this State.

(Source:

P.A.

93-38, eff.

6-1-04;

94-515, eff.

8-10-05;

94-1023, eff.

7-12-06.) (820 ILCS 130/6) (from Ch.

48, par.

Any officer, agent or representative of any public body who wilfully violates, or omits to comply with, any of the provisions of this Act, and any contractor or subcontractor, or agent or representative thereof, doing public work as aforesaid, who wilfully violates, or omits to comply with, any of the provisions of this Act,Act neglects to keep, or cause to be kept, an accurate record of the names, occupation and actual wages paid to each laborer, worker and mechanic employed by him, in connection with the public work or who refuses to allow access to same at any reasonable hour to any person authorized HB0773 Engrossed - 12 - LRB095 09068 RLC 29259 b to inspect same under this Act, is guilty of a Class A misdemeanor.

1-1-06.) (820 ILCS 130/11)130/9) (from Ch.

39s-11)39s-9) HB0773 - 15 - LRB095 09068 RLC 29259 b Sec.

9.

To effectuate the purpose and policy of this Act each public body shall, during the month of June of each calendar year, investigate and ascertain the prevailing rate of wages as defined in this Act and publicly post or keep available for inspection by any interested party in the main office of such public body its determination of such prevailing rate of wage and shall promptly file, no later than July 15 of each year, a certified copy thereof in the office of the Secretary of State at Springfield and the office of the Illinois Department of Labor.

The Department of Labor shall during the month of June of each calendar year, investigate and ascertain the prevailing rate of wages for each county in the State.

If a public body does not investigate and ascertain the prevailing rate of wages during the month of June as required by the previous paragraph, then the prevailing rate of wages for that public body shall be HB0773 Engrossed - 13 - LRB095 09068 RLC 29259 b the rate as determined by the Department under this paragraph for the county in which such public body is located.

Where the Department of Labor ascertains the prevailing rate of wages, it is the duty of the Department of Labor within 30 days after receiving a notice from the public body authorizing the proposed work, to conduct an investigation to ascertain the prevailing rate of wages as defined in this Act and such investigation shall be conducted in the locality in which the work is to be performed.

The Department of Labor shall send a certified copy of its findings to the public body authorizing the work and keep a record of its findings available for inspection by any interested party in the office of the Department of Labor at Springfield.

The public body except for the Department of Transportation with respect to highway contracts shall within 30 days after filing with the Secretary of State, or the Department of Labor shall within 30 days after filing with such public body, publish in a newspaper of general circulation within the area that the determination is effective, a notice of its determination and shall promptly mail a copy of its determination to any employer, and to any association of employers and to any person or association of employees who have filed their names and addresses, requesting copies of any determination stating the particular rates and the particular class of workers whose wages will be affected by such rates.

At any time within 30 days after the Department of Labor HB0773 Engrossed - 14 - LRB095 09068 RLC 29259 b has published on its official web site a prevailing wage schedule, any person affected thereby may object in writing to the determination or such part thereof as they may deem objectionable by filing a written notice with the public body or Department of Labor, whichever has made such determination, stating the specified grounds of the objection.

It shall thereafter be the duty of the public body or Department of Labor to set a date for a hearing on the objection after giving written notice to the objectors at least 10 days before the date of the hearing and said notice shall state the time and place of such hearing.

Such hearing by a public body shall be held within 45 days after the objection is filed, and shall not be postponed or reset for a later date except upon the consent, in writing, of all the objectors and the public body.

If such hearing is not held by the public body within the time herein specified, the Department of Labor may, upon request of the objectors, conduct the hearing on behalf of the public body.

The public body or Department of Labor, whichever has made such determination, is authorized in its discretion to hear each timely filed written objection.

Two or more hearings under this Section on the issue of establishing a new prevailing wage classification for a particular craft or type of worker shall be consolidated in a single hearing before the Department.

Such consolidation shall occur whether each separate hearing is conducted by a public body or the Department.

The party requesting a consolidated hearing shall have the burden of HB0773 Engrossed - 15 - LRB095 09068 RLC 29259 b establishing that there is no existing prevailing wage classification for the particular craft or type of worker in any of the localities under consideration filed separately or consolidate for hearing any one or more written objections filed with them.

At any such hearing the public body or Department of Labor shall introduce in evidence the investigation it instituted which formed the basis of its determination, and the public body or Department of Labor, or any interested objectors may thereafter introduce such evidence as is material to the issue.

Thereafter, the public body or Department of Labor, must rule upon the written objection and make such final determination as it believes the evidence warrants, and promptly file a certified copy of its final determination with such public body and the Secretary of State, and serve a copy by personal service or registered mail on all parties to the proceedings.

The final determination by the Department of Labor or a public body shall be rendered within 30 days after the conclusion of the hearing.

If proceedings to review judicially the final determination of the public body or Department of Labor are not instituted as hereafter provided, such determination shall be final and binding.

The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of any HB0773 Engrossed - 16 - LRB095 09068 RLC 29259 b public body or the Department of Labor hereunder.

The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Appeals from all final orders and judgments entered by the court in review of the final administrative decision of the public body or Department of Labor, may be taken by any party to the action.

Any proceeding in any court affecting a determination of the Department of Labor or public body shall have priority in hearing and determination over all other civil proceedings pending in said court, except election contests.

In all reviews or appeals under this Act, it shall be the duty of the Attorney General to represent the Department of Labor, and defend its determination.

The Attorney General shall not represent any public body, except the State, in any such review or appeal.

(Source:

P.A.

93-38, eff.

6-1-04.) (820 ILCS 130/11) (from Ch.

48, par.

39s-11) Sec.

(a) No public works project shall be instituted unless the provisions of this Act have been complied with.

The Illinois Department of Labor represented by the Attorney General is empowered to sue for injunctive relief against the HB0773 Engrossed - 17 - LRB095 09068 RLC 29259 b awarding of any contract or the continuation of work under any contract for public works at a time when the prevailing wage prerequisites have not been met.

Any laborer, worker or mechanic employed by the contractor or by any sub-contractor under him who is paid for his services in a sum less than the stipulated rates for work done under HB0773 - 16 - LRB095 09068 RLC 29259 b such contract, shall have a right of action for whatever difference there may be between the amount so paid, and the prevailing rate of wages required to be paid on the public works project rates provided by the contract together with costs and such reasonable attorney’s fees as shall be allowed by the court.

Such contractor or subcontractor shall also be liable to the Department of Labor for 20% of such underpayments HB0773 Engrossed - 18 - LRB095 09068 RLC 29259 b and shall be additionally liable to the laborer, worker or mechanic for punitive damages in the amount of 2% of the amount of any such penalty to the State for underpayments for each month following the date of payment during which such underpayments remain unpaid.

An action brought to recover same shall be deemed to be a suit for wages, and any and all judgments entered HB0773 - 17 - LRB095 09068 RLC 29259 b therein shall have the same force and effect as other judgments for wages.

At the request of any laborer, workman or mechanic employed by the contractor or by any subcontractor under him who is paid less than the prevailing wage rate required by this Act, the Department of Labor may take an assignment of such wage claim in trust for the assigning laborer, workman or mechanic and may bring any legal action necessary to collect HB0773 Engrossed - 19 - LRB095 09068 RLC 29259 b such claim, and the contractor or subcontractor shall be required to pay the costs incurred in collecting such claim.

(b) For purposes of this subsection, the following definitions are applicable:

"Accurate records" means the payroll records required to be filed with the public body in charge of the project as required by Section 5 of the Act.

Accurate records shall also mean the hourly rate paid for fringe benefits, including pension, health and welfare, training and vacations, and a designation of whether such fringe benefits were paid into a fund or paid directly to the employee.

"Act" means the Prevailing Wage Act.

"Construction manager" includes, but is not limited to, the contractor, subcontractor or anyone overseeing any project covered by the Act for purposes of the posting requirement.

"Contract" means an agreement either written or oral or otherwise as agreed to between the parties.

"Decision" means that the Department has determined that a violation has occurred that warrants the Director or the HB0773 - 18 - LRB095 09068 RLC 29259 b Director’s designee to issue a notice of violation to a contractor or subcontractor.

Each specific finding listed in the notice of violation is a separate "Decision" that the Act has been violated.

"Director" means the Director of the Illinois Department of Labor or, at the Director’s discretion, the Director’s designee, deputy or agent.

"Employee" means laborers, mechanics and other workers employed in any public works, as defined and covered under the Act, by anyone under contracts for public works.

"Employer" means a contractor or subcontractor, or both, who performs public works projects subject to the Act.

"Notice of second violation" is a notice issued by the Department advising a contractor or subcontractor that a violation as defined in this subsection has occurred within five years from the date of the notice of first violation.

"Notice of violation" means the formal written notice to a contractor or subcontractor that the Department has made a decision that the contractor or subcontractor has violated the Act.

"Prevailing hourly rate of wages" means the hourly cash wages plus fringe benefits for health and welfare, insurance, training, vacations and pensions paid most frequently (numerically most occurring), in the county in which the public works is performed, to employees engaged on public works, as determined by the public body awarding the contract or the most HB0773 - 19 - LRB095 09068 RLC 29259 b recent revision as determined by the Department of Labor effective prior to the date when the contract was let for bids or, if not let for bids, when executed;

and all revisions by the Illinois Department of Labor when effected.

"Violation" means a written decision by the Department that a contractor or subcontractor has:

failed or refused to pay the prevailing wage to one or more laborers, workers, or mechanics under a single contract or subcontract as required by Section 3 of the Act;

failed to keep accurate records as required by the Act;

failed to produce to the Department accurate records or records not in compliance with the provisions of Section 6 of the Act;

refused to submit records to the Department in response to a subpoena issued in accordance with Section 10 of the Act;

refused to comply with the certified payroll provision of Section 5 of the Act;

refused the Department access, at any reasonable hour or at any location designated by the Department, to inspect the contractor’s or subcontractor’s certified records and other records as required by the Act;

failed to insert into each subcontract or lower tiered subcontract and into the project specifications for each subcontract or lower tiered subcontract a written stipulation that not less than the prevailing rate of wages be paid as required by Section 4 of the Act;

or the contractor failed to obtain a bond that guarantees the faithful performance of the prevailing wage clause in the contract.

A violation also means a written decision by the Department that a contractor or HB0773 - 20 - LRB095 09068 RLC 29259 b construction manager failed to post or provide the prevailing wage rates as required by Section 4 of the Act.

After receipt of a complaint or on the Department’s initiative, the Director shall review the investigative file to determine whether there has been a violation or violations of which the contractor or subcontractor must be given notice.

All information and observations made during an audit, investigation or survey shall be considered and shall constitute the basis for the Department’s decision that the Act has been violated and that a notice of violation shall be issued.

The notice of violation shall identify the specific violations of the Act.

The notice of violation shall state the amount of monies estimated due by the Department to be in controversy based on reasons contained in the investigation file.

In making a decision that a contractor or subcontractor has failed to allow the Director access to accurate payroll records, the Director shall rely on the information contained in the investigative file, the certified payroll records filed with the public body in charge of the project or any other information and shall assess a separate violation for each day worked by each worker on the subject project.

Each decision of a separate violation under Section 5 of the Act shall be listed in the notice of violation.

In deciding that the Act has been violated and that the issuance of a notice of violation is required, the Director HB0773 - 21 - LRB095 09068 RLC 29259 b shall base the decision on one or any combination of the following reasons:

(1) The severity of the violations.

The Director will consider the following:

(i) The amount of wages that are determined to be underpaid pursuant to the Act.

(ii) The activity or conduct complained of violates the requirements of the statute and was not merely a technical, non-substantive error.

Examples of a technical error include, but are not limited to, a mathematical error, bookkeeping error, transposition of numbers, or computer or programming error.

(2) The nature and duration of the present violations as well as prior history of the contractor or the subcontractor related to the Act.

The prior history considered cannot exceed 7 years before the date of the second notice of violation.

(3) Whether the contractor or subcontractor filed certified payroll records with the public body in charge of the project;

whether the contractor or subcontractor has kept the payroll records and accurate records for 3 years;

whether the contractor or subcontractor produced certified payroll records in accordance with Section 5 of the Act.

(4) Whether the contractor or subcontractor has violated any other provision of the Act.

The notices of the first and second violations shall be HB0773 - 22 - LRB095 09068 RLC 29259 b sent by the Department by certified mail, deposited in the United States mail, postage prepaid, addressed to the last known address of the persons, partnerships, associations, or corporations involved.

Said notices shall contain a reference to the specific Sections of the Act alleged to have been violated;

identify the particular public works project involved;

the conduct complained of;

an identification as to first or second notice and a statement of remedies available to the contractor or subcontractor and Department.

(c) The Director of the Department of Labor shall publish in the Illinois Register no less often than once each calendar quarter a list of contractors or subcontractors found to have disregarded their obligations to employees under this Act.

The Department of Labor shall determine the contractors or subcontractors who, on 2 separate occasions within 5 years, have been determined to have violated the provisions of this Act.

If a violation of this Act involves a worker who is not a legal resident alien or a United States citizen, then a finding of a single violation within a 5-year period shall require the Department of Labor to proceed directly to a notice of second violation.

Upon such determinations the Department shall notify the violating contractor or subcontractor.

Such contractor or subcontractor shall then have 10 working days to request a hearing by the Department on the alleged violations.

Failure to respond within the 10 working day period shall result in automatic and immediate placement and publication on HB0773 - 23 - LRB095 09068 RLC 29259 b the list.

If the contractor or subcontractor requests a hearing within the 10 working day period, the Director shall set a hearing on the alleged violations.

Such hearing shall take place no later than 45 calendar days after the receipt by the Department of Labor of the request for a hearing.

The Department of Labor is empowered to promulgate, adopt, amend and rescind rules and regulations to govern the hearing procedure.

No contract shall be awarded to a contractor or subcontractor appearing on the list, or to any firm, corporation, partnership or association in which such contractor or subcontractor has an interest until 4 years have elapsed from the date of publication of the list containing the name of such contractor or subcontractor.

(a) No person shall discharge, discipline, or in any other way discriminate against, or cause to be discharged, disciplined, or discriminated against, any employee or any authorized representative of employees by reason of the fact that the employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this Act, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of this Act, HB0773 - 24 - LRB095 09068 RLC 29259 b or offers any evidence of any violation of this Act.

(b) Any employee or a representative of employees who believes that he has been discharged, disciplined, or otherwise discriminated against by any person in violation of subsection (a) of this Section may, within 18060 30 days after the alleged violation occurs, apply to the Director of Labor for a review of the discharge, discipline, or alleged discrimination.

The HB0773 Engrossed - 20 - LRB095 09068 RLC 29259 b investigation shall provide an opportunity for a public hearing at the request of any party to the review to enable the parties to present information relating to the alleged violation.

The party committing the violation shall also be liable to the HB0773 - 25 - LRB095 09068 RLC 29259 b Department of Labor for a penalty of $5,000 for each violation of this Section.

1-1-06.) HB0773 Engrossed - 21 - LRB095 09068 RLC 29259 b (820 ILCS 130/11a rep.) Section 10.