Illinois-2023-HB5561-Introduced

103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 HB5561

Introduced 2/9/2024, by Rep. Marcus C. Evans, Jr.

SYNOPSIS AS INTRODUCED:

`740 ILCS 174/5`
`740 ILCS 174/15`
`740 ILCS 174/20`
`740 ILCS 174/20.1`
`740 ILCS 174/20.2`
`740 ILCS 174/25`
`740 ILCS 174/30`
`740 ILCS 174/31 new`

Amends the Whistleblower Act. Changes the definitions of "employer" and "employee". Defines "adverse employment action", "public body", "retaliatory action", and "supervisor". Provides that an employer may not take retaliatory action against an employee who discloses or threatens to disclose information about an activity, policy, or practice of the employer that the employee has a good faith belief that such activity, policy, or practice violates a State or federal law, rule, or regulation or poses a substantial and specific danger to public health or safety. Includes additional relief, damages, and penalties for violation of the Act. Allows the Attorney General to initiate or intervene in a civil action to obtain appropriate relief if the Attorney General has reasonable cause to believe that any person or entity is engaged in a practice prohibited by the Act. Provides that the changes made by the amendatory Act apply to claims arising or complaints filed on or after January 1, 2025. Effective January 1, 2025.

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A BILL FOR

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1 AN ACT concerning civil law.

2 Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4 Section 5. The Whistleblower Act is amended by changing

5 Sections 5, 15, 20, 20.1, 20.2, 25, and 30 and by adding

6 Section 31 as follows:

7 (740 ILCS 174/5)

8 Sec. 5. Definitions. As used in this Act:

9 "Adverse employment action" means any action that creates

10 an adverse change in the terms and conditions of employment

11 viewed in the totality of circumstances.

12 "Employer" means: an individual, sole proprietorship,

13 partnership, firm, corporation, association, and any other

14 entity that has one or more employees in this State, including

15 a political subdivision of the State; a unit of local

16 government; a school district, combination of school

17 districts, or governing body of a joint agreement of any type

18 formed by two or more school districts; a community college

19 district, State college or university, or any State agency

20 whose major function is providing educational services; any

21 authority including a department, division, bureau, board,

22 commission, or other agency of these entities; and any person

23 acting directly or indirectly in the interest of an employer

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1 in relation to an employee ~~within the scope of his or her~~

2 ~~authority express or implied on behalf of those entities in~~

3 ~~dealing with its employees~~.

4 "Employee" means any individual permitted to work ~~who is~~

5 ~~employed on a full-time, part-time, or contractual basis~~ by an

6 employer unless:

7 (1) the individual has been and will continue to be

8 free from control and direction over the performance of

9 his or her work, both under his or her contract of service

10 with his or her employer and in fact;

11 (2) the individual performs work which is either

12 outside the usual course of business or is performed

13 outside all of the places of business of the employer

14 unless the employer is in the business of contracting with

15 parties for the placement of employees; and

16 (3) the individual is in an independently established

17 trade, occupation, profession, or business.

18 "Employee" also includes, but is not limited to, a

19 licensed physician who practices his or her profession, in

20 whole or in part, at a hospital, nursing home, clinic, or any

21 medical facility that is a health care facility funded whole

22 or in part, by the State.

23 "Public body" means any of the following: the State; any

24 officer, board, political subdivision, or commission of the

25 State; any institution supported in whole or in part by public

26 funds; units of local government; and school districts.

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1 "Retaliatory action" means an adverse employment action or

2 the threat of an adverse employment action by an employer or

3 his or her agent to penalize or any non-employment action that

4 would dissuade a reasonable worker from disclosing information

5 under this Act. "Retaliatory action" includes, but is not

6 limited to:

7 (1) taking, or threatening to take, any action that

8 would intentionally interfere with an employee's ability

9 to obtain future employment or post-termination

10 retaliation to intentionally interfere with a former

11 employee's employment;

12 (2) taking, or threatening to take, any action

13 prohibited by subsection (G) of Section 2-102 of the

14 Illinois Human Rights Act; or

15 (3) contacting, or threatening to contact, United

16 States immigration authorities, or otherwise reporting, or

17 threatening to report, an employee's suspected or actual

18 citizenship or immigration status or the suspected or

19 actual citizenship or immigration status of an employee's

20 family or household member to a federal, State, or local

21 agency.

22 "Retaliatory action" does not include:

23 (1) conduct undertaken at the express and specific

24 direction or request of the federal government; or

25 (2) truthful, performance-related information about an

26 employee or former employee provided in good faith to a

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1 prospective employer at the request of the prospective

2 employer. "Employee" also includes, but is not limited to,

3 a licensed physician who practices his or her profession,

4 in whole or in part, at a hospital, nursing home, clinic,

5 or any medical facility that is a health care facility

6 funded, in whole or in part, by the State.

7 "Supervisor" means (i) any individual within an employer's

8 organization, or an organization the employer has a

9 contractual relationship with, (ii) any individual who has the

10 authority to direct and control the work performance of the

11 affected employee, or (iii) any individual who has managerial

12 authority to take corrective action regarding a violation of

13 the law, rule, or regulation disclosed by an employee in

14 accordance with Section 15.

15 (Source: P.A. 95-128, eff. 1-1-08; 96-1253, eff. 1-1-11.)

16 (740 ILCS 174/15)

17 Sec. 15. Retaliation for certain disclosures prohibited.

18 (a) An employer may not take retaliatory action ~~retaliate~~

19 against an employee who discloses or threatens to disclose to

20 a public body conducting investigation, or in a court, an

21 administrative hearing, or any other proceeding initiated by a

22 public body, information related to an activity, policy, or

23 practice of the employer where the employee has a good faith

24 belief that the activity, policy, or practice (i) violates in

25 a court, an administrative hearing, or before a legislative

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1 commission or committee, or in any other proceeding, where the

2 employee ~~has reasonable cause to believe that the information~~

3 ~~discloses a violation~~ of a State or federal law, rule, or

4 regulation or (ii) poses a substantial and specific danger to

5 co-workers, public health or safety..

6 (b) An employer may not take retaliatory action ~~retaliate~~

7 against an employee for disclosing or threatening to disclose

8 information to a government or law enforcement agency

9 information to an activity, policy, or practice of the

10 employer, where the employee has a good faith belief that the

11 activity, policy, or practice of the employer (i) violates

12 ~~reasonable cause to believe that the information discloses a~~

13 ~~violation~~ of a State or federal law, rule, or regulation or

14 (ii) poses a substantial and specific danger to co- workers,

15 public health, or safety.

16 (c) An employer may not take retaliatory action against an

17 employee for disclosing or threatening to disclose to any

18 employees with supervisory authority, principal officer, or

19 board member, information related to an activity, policy, or

20 practice of the employer where the employee has a good faith

21 belief that the activity, policy, or practice(i) violates a

22 State or federal law, rule, or regulation or (ii) poses a

23 substantial and specific danger to co-workers, or public

24 health or safety.

25 (Source: P.A. 95-128, eff. 1-1-08.)

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1 (740 ILCS 174/20)

2 Sec. 20. Retaliation for certain refusals prohibited. An

3 employer may not take retaliatory action ~~retaliate~~ against an

4 employee for refusing to participate in an activity that the

5 employee has a good faith belief that such participation would

6 result in a violation of a State or federal law, rule, or

7 regulation, including, but not limited to, violations of the

8 Freedom of Information Act.

9 (Source: P.A. 96-555, eff. 8-18-09.)

10 (740 ILCS 174/20.1)

11 Sec. 20.1. Other retaliation. Any other act or omission

12 not otherwise specifically set forth in this Act, whether

13 within or without the workplace, also constitutes retaliatory

14 action ~~retaliation~~ by an employer under this Act if the act or

15 omission would be materially adverse to a reasonable employee

16 and is because of the employee disclosing or attempting to

17 disclose public corruption or wrongdoing.

18 (Source: P.A. 96-555, eff. 8-18-09.)

19 (740 ILCS 174/20.2)

20 Sec. 20.2. Threatening retaliation. An employer may not

21 threaten any employee with any act or omission if that act or

22 omission would constitute retaliatory action ~~retaliation~~

23 against the employee under this Act.

24 (Source: P.A. 96-555, eff. 8-18-09.)

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1 (740 ILCS 174/25)

2 Sec. 25. Criminal ~~Civil~~ penalty. Violation of this Act is

3 a Class A misdemeanor.

4 (Source: P.A. 93-544, eff. 1-1-04.)

5 (740 ILCS 174/30)

6 Sec. 30. Damages and penalties. If an employer takes any

7 retaliatory action against an employee in violation of Section

8 15 or 20, the employee may bring a civil action against the

9 employer for all relief necessary to make the employee whole,

10 including but not limited to the following, as appropriate:

11 (1) permanent or preliminary injunctive relief;

12 (1.5) reinstatement with the same seniority status

13 that the employee would have had, but for the violation;

14 (2) back pay, with interest, and front pay, or, in

15 lieu of actual damages, at the employee's election,

16 liquidated damages of $30,000; and

17 (3) compensation for any costs incurred ~~damages~~

18 sustained as a result of the violation, including

19 litigation costs, expert witness fees, and reasonable

20 attorney's fees.

21 (4) Consequential damages, where the damages are a

22 direct and foreseeable result of an employer's violation

23 of this Act.

24 In addition to the remedies specified in paragraphs (1)

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1 through (5), the Attorney General may request and the finder

2 of fact may impose a civil penalty in the amount of $5,000 for

3 each violation, or $10,000 for the second and each subsequent

4 violation within a 5-year period. For purposes of this

5 Section, each violation of this Act for each employee the

6 employer took or threatened to take retaliatory action against

7 shall constitute a separate and distinct violation. A civil

8 penalty imposed under this Section shall be deposited into the

9 Attorney General Court Ordered and Voluntary Compliance

10 Payment Projects Fund.

11 (Source: P.A. 93-544, eff. 1-1-04.)

12 (740 ILCS 174/31 new)

13 Sec. 31. Attorney General enforcement.

14 (a) Whenever the Attorney General has reasonable cause to

15 believe that any person or entity ha s engaged in a practice

16 prohibited by this Act, the Attorney General may, pursuant to

17 the authority conferred by Section 6.3 of the Attorney General

18 Act, initiate or intervene in a civil action in the name of the

19 People of the State in any appropriate court to obtain

20 appropriate relief.

21 (b) Before initiating an action, the Attorney General may

22 conduct an investigation and may:

23 (1) require an individual or entity to file a

24 statement or report in writing, under oath or otherwise,

25 as to all information the Attorney General may consider

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1 necessary;

2 (2) examine under oath any person alleged to have

3 participated in, or with knowledge of, the alleged

4 violation; or

5 (3) issue subpoenas or conduct hearings in aid of any

6 investigation.

7 (c) Service by the Attorney General of any notice

8 requiring a person or entity to file a statement or report, or

9 of a subpoena upon any person or entity, shall be made:

10 (1) personally by delivery of a duly executed copy

11 thereof to the person to be served or, if a person is not a

12 natural person, in the manner provided in the Code of

13 Civil Procedure when a complaint is filed; or

14 (2) by mailing by certified mail a duly executed copy

15 thereof to the person to be served at his or her last known

16 abode or principal place of business within this State or,

17 if the person is not a natural person, in the manner

18 provided in the Code of Civil Procedure when a complaint

19 is filed.

20 The Attorney General may compel compliance with

21 investigative demands under this Section through an order by

22 any court of competent jurisdiction.

23 Section 90. Applicability. The changes made by this

24 amendatory Act of the 103rd General Assembly apply to claims

25 arising or complaints filed on or after January 1, 2025.

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