Employment Law Council Newsletter - IDOL Offers Rule Changes for Defining "employee" Under Minimum Wage Act

EMPLOYMENT LAW COUNCIL

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JAY SHATTUCK

Executive Director

Employment Law Council

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217/544-6590

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IDOL Offers Rule Changes for Defining "employee" Under Minimum Wage Act

The Illinois Department of Labor proposed rule changes to expand the factors of: "degree of control"; "the extent to which the services rendered by the individual are an integral part of the alleged employer's business"; "the permanency of the relationship"; and "the skill required in the claimed independent operation". The proposed change can be found in the September 28^th Illinois Register found here . Comments are accepted until November 12^th, and the Illinois Chamber will be submitting comments and welcomes any thoughts ELC members may have.

Illinois DOI Seeks to Streamline WC PPP Regulation

On October 5^th, the Illinois Department of Insurance proposed rule changes to streamline the Workers' Compensation Preferred Provider Programs (PPP). Upon reviewing current departmental rules, DOI determined that Appendices A, B, C, and D of Part 2051 are checklists that merely repeat language already established in the rule. Appendix E contains several outdated Biographical Affidavit forms that will be replaced by the current NAIC Biographical Affidavit form that is now posted on the Department's website. The checklists in Appendices A, B, C and D, as well as the Preferred Provider Program Administrator Bond/Fiduciary Account Requirement form contained in Appendix F, have also been placed on the Department's website with other checklists for continuity. As a result, the appendices are unnecessary and are being removed from Part 2051. In addition, the Department is eliminating definitional sections "Emergency Medical Condition" and "Woman's Principal Health Care Provider" from Part 2051. The proposed rule revisions can be found on pages 17368 to 17488 in the Illinois Register . Comments on the proposed rulemaking can be submitted to the Department until November 19^th.

IDES Proposes Several Rule Revisions

The Illinois Department of Employment Security (IDES) has published their proposed changes in the September 28^th edition of the Illinois Register. See pages 16965-17066. Comments on the proposed rule changes are being accepted by IDES until November 12 ^th . In summary, the proposed rule changes are as follows:

Claims, Adjudication, Appeals and Hearings 56 Ill. Adm. Code 2720

Specifies what constitutes the last known address regarding notices sent to claimants or employers. Clarifies the process for filing unemployment-benefit claims. Clarifies the procedure for curing an insufficient protest.

Administrative Hearings and Appeals 56 Ill. Adm. Code 2725

IDES no longer pays unemployment benefits by check. All payments are made by direct deposit or debit card. This rulemaking explains how debit cards are mailed, how misdirected payment claims are investigated, and how benefits due to a deceased or comatose claimant are paid. Specifies the requirements for an electronic signature. Section 2830.50 is repealed because the language this Section defined was removed from Section 401 (PA 93-634). Eliminates obsolete language that suggested IDES was a party to administrative hearings regarding tax/liability issues. Provides how an employer can elect to exclusively receive tax-related notices electronically.

Employment 56 Ill. Adm. Code 2732

Clarifies the right of an employer to request a transfer of contributions under 56 Ill. Adm. Code 2765.64. Permits the electronic submission of various tax-related documents.

Notices, Records, Reports 56 Ill. Adm. Code 2760

Permits the electronic submission of various tax-related documents. Provides for the discontinuation of the practice of mailing quarterly wage reports and remittance forms to employers through the U.S. Mail and provide for downloading of the material.

Payment of Unemployment Contributions, Interest and Penalties 56 Ill. Adm. Code 2765

Updates the amount that will be disregarded from $1 to $2 to reflect the statutory change made by PA 90-554. Clarifies how employer payments will be applied within a quarter. Establishes circumstances under which an employee leasing company's former client can request that payments the leasing company erroneously made to its own account, rather than the client's account, be transferred to the client's account. Clarifies the period for which IDES will waive interest where the agency does not issue a final decision regarding a determination and assessment within 180 days after the determination and assessment is protested. Establishes a penalty/interest waiver for a federally chartered nonprofit organization under certain circumstances. Clarifies time frames within which employers can submit additional materials regarding various tax/liability-related issues. Establishes how experience will be allocated in the event of a transfer of trade or business between two or more employers under substantial common ownership, management or control.

Collection of Unemployment Contributions 56 Ill. Adm. Code 2790

Changes the amount that will be disregarded from $1 to $2 to reflect the statutory change made by PA 90-554. Requires an employer to reimburse the Department for the recording fee as a condition for releasing a lien, to reflect changes made by PA 98-107 and PA 98-1133.

Payment of Benefits 56 Ill. Adm. Code 2830

Upcoming Veto Overrides During the November Veto Session

SB 904 (Hastings/Hoffman) will allow medical providers to pursue workers' compensation medical bill payment issues in circuit court. No other state in the country allows bill collection issues to proceed in court before the issue is resolved administratively. There are a number of changes proposed in this measure that we believe will work against employers' abilities to control medical costs, increases litigation and workers' compensation premiums. ELC OPPOSES A MOTION TO OVERRIDE Governor Amendatory Veto Message

SB 1737 (Muñoz/Hoffman) which makes changes to the workers' compensation insurance rates overseen by the Illinois Department of Insurance (DOI). Those changes will take Illinois from its current competitive marketplace approach to requiring an insurer/rating organization to file its rates, manuals, rules, etc. with DOI 30 days before their use. DOI would have 30 days from the filing to approve or disapprove the rates. It also, requires a company that intends to deviate from the filing of a licensed rating organization of which it is a member, the company shall provide the Director with supporting information that specifies the basis for the requested deviation and provides justification for the deviation. At renewal, if a rate is greater than 5% more than the rate filed with DOI, a notice of the increase must be provided to the policyholder 30 days prior to renewal. The following additional non-workers' compensation changes are in this legislation as well:

Creates the Short-Term, Limited-Duration Health Insurance Coverage Act;
Creates the Domestic Stock Company Division Law in the Insurance Code; and
Amends the Domestic Captive Insurance Companies Article of the Insurance Code regarding the authority and restrictions on captive insurers.

The Governor's AV eliminated the workers' comp and short-term health policy provisions from the bill. Governor's Veto Message

HB 4163 (Moeller/Castro) amends the Equal Pay Act of 2003 prohibiting an employer from inquiring about salary and wage history by adding new standards that limit employer defenses and adding new compensatory and punitive damage penalties on businesses who are not compliant. ELC OPPOSES A MOTION TO OVERRIDE Governor Amendatory Veto Message .

HB 4572 (Guzzardi/Castro) amends the Illinois Human Rights Act to redefine "employer" to include any person employing one (currently 15) or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. ELC OPPOSES A MOTION TO OVERRIDE Governor Veto Message

HB 4743 (Ford/Lightford) amends the Equal Pay Act providing that no employer may discriminate between employees by paying wages to an African-American employee at a rate less than the rate at which the employer pays wages to another employee who is not African-American for the same or substantially similar work on a job that requires equal skill, effort, and responsibility and is performed under similar working conditions. Governor's Amendatory Veto Message

The Illinois Chamber of Commerce Hosting its 11
^th Annual Workers' Compensation & Safety Conference

The Chamber's WC Conference will be held at the Shirley Ryan Ability Lab - 355 E. Erie St., Chicago, IL 60611 - on Wednesday, October 24 ^th from 8 am to 4pm. For more information contact Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org . Event details, sponsorship information, and registration can be found here

The ELC WC Committee's next meeting is the day before the Conference, October 23^rd, at the same location, the Shirley Ryan Ability Lab, from 1-3 pm. Please RSVP by October 19^th if you plan to attend the committee meeting as well.

Illinois Chamber/Illinois SHRM Annual New Laws Conference...A number of new laws, regs both at the state and federal level will be discussed on November 26 ^th from 8:30 am to 4 pm at the Lisle Hilton, 3003 Corporate West Dr., Lisle. For more information and registration go to: https://ilchamber.org/5th-new-laws-forum/

Illinois Chamber Accepting Blog Submissions

Share your area of expertise on the Illinois Chamber's blog! We are asking members to write or submit short articles on issues of interest to our members. Articles for the blog should be around 500-600 words and can be submitted with a photo. Please send your article to lsilvey@ilchamber.org