CBA Legislative News: April 6, 2020

By Julie Vyverberg, CBA Lawyer Referral Service and Legislative Director

In the last edition of the CBA Record, we reported on 4 bills (Sponsored Legislation) that were drafted by CBA substantive law committees, reviewed by the Legislative Committee, and approved by the Board of Managers for the 101th General Assembly. In the time since that reporting, the Legislative Committee has reviewed dozens of Non-Sponsored bills presented by various substantive law committees. Non-sponsored legislation are those bills introduced in the State Senate and House by sitting legislators and deemed to be of special interest to the CBA’s constituency and the legal profession in general. Read below for a summary of a few of the bills that have come before the Legislation Committee this session. For a full text copy of the bills, go to the Illinois General Assembly website: www.ilga.gov or contact Juli Vyverberg, the Legislative Liaison at the CBA at (312) 554-2062.

HB4051 (Wehrli) would amend the Transportation Network Providers Act (“TNPA”) by providing that notwithstanding any laws to the contrary, a transportation network company and a driver may establish by contract that the driver is an independent contractor and not an employee. Currently, a rideshare company can be held liable under principles of agency for a drivers’ tortious conduct. The amendment would protect rideshare companies from liability while leaving injured passengers remediless. The First District is currently considering the constitutionality of Section 25(e) of the TNPA under the Special Legislation provision found in Article IV, Section 8(d) of the Illinois constitution (JANE DOE, Plaintiff-Appellant, v. LYFT, INC., ANGELO MCCOY; and STERLING INFOSYSTEMS, INC. d/b/a STERLING TALENT SOLUTIONS, Defendants-Appellees. On Appeal from the Circuit Court of Cook County, Illinois County Department, Law Division, Case No. 17 L 11355, Hon. Patricia O’Brien Sheahan, Judge Presiding). The amendment also attempts to work around the heightened common law duty of owed by common carriers to passengers. The Tort Litigation Committee voted 44-5 to oppose this bill with high priority. The Legislative Committee voted 10-0-2 to support this opposition and the Board of Managers voted 17-0-1 to support the Legislative Committee’s position.

HB3866 (Ford) This bill would limit the time to collect a debt arising from a violation of a municipal ordinance to 7 years after the date of the alleged violation. The consensus of the Consumer Credit Committee members was in support of the bill to provide a much needed bright-line statute of limitations for municipal debt collection. It should be noted that under current law, there is no statute of limitations for this type of municipal debt collection. Additionally, the Legislative Committee indicated that it supported the proposed bill in its current form, but that it would also support a bill that proposed a lesser Statute of Limitations, e.g. 5 years. The Legislative Committee voted 11-0-1 to support the bill and the Board of Managers voted 17-0-1 to support it as well.

HB4171 (West) This bill eliminates the Cook County pilot program fee waiver for expungements and sealing of arrest records that was only applicable in counties of 3,000,000 or more inhabitants and is set to expire on January 1, 2021, and replaces it with a permanent, state-wide waiver. The bill provides that no fee shall be required if the records sought to be expunged or sealed were arrests resulting in release without charging or arrests or charges not initiated by arrest resulting in acquittal, dismissal, or conviction when the conviction was reversed or vacated, except for the expungement or sealing of certain records of minor traffic violations. The Legal Aid Committee voted to support this bill and the Legislative Committee voted 6-0-0 to support that position.

HB4295 (Guzzardi) Under the Privilege for Restorative Justice, nothing said or done in this preparation for in follow up can be referred to, used, or admitted in any civil, criminal, juvenile, or administrative proceeding unless the privilege is waived, during the proceeding or in writing, by the party or parties protected by the privilege. The bill also provides that the legitimacy of a restorative justice practice, if challenged in any civil, juvenile, criminal, or administrative proceeding, shall be determined by a judge. The privilege will not apply when disclosure is (1) necessary to prevent death, great bodily harm, or the commission of a crime; or (2) necessary to comply with another law. Nor will it apply if a court, tribunal, or administrative body requires a report on a restorative justice practice, but such report shall be limited to the fact that a practice has taken place, an opinion regarding the success of the practice, and whether further restorative justice practices are expected. The Legal Aid Committee voted to support this bill and the Legislative Committee voted 6-0-0 to support.

HB4125 changes the oath taken by grand jurors to be: “Do each of you swear (or affirm) that you will diligently inquire into all matters presented to you; that you will return no indictment through malice or ill will, or fail to return one due to fear or reward; and that in all our decisions you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding.” These changes do not appear to be substantive, but are a plain language alternative. The Legal Aid Committee voted to support these changes with High priority. The Legislative Committee voted 5-0-1 to support that position.

HB4911 (Ramirez) This bill amends the Eviction Article of the Code of Civil Procedure to provide that a complaint for an eviction action shall include specified information (nature of tenancy, type of notice given, basis of eviction, etc.). The bill further provides that upon entry of an eviction order, the court shall make specified findings. On sealing, the bill provides the court file shall be sealed: (1) in a foreclosure-related eviction action; (2) in a not-for-cause eviction; (3) if the parties to the eviction action so agree; and (4) in any action not resulting in an eviction order entered in favor of the plaintiff and that any tenant or occupant named as a defendant in an eviction action may file a motion or petition to seal the court file. The bill also details the manner in which court files shall be sealed, specifically that the clerk of the circuit court shall automatically seal all eviction court files no later than 3 years after the plaintiff’s initial filing with the court. The bill excludes from sealing evictions in which: (1) the tenancy is commercial, or (2) the property that the plaintiff seeks possession of is a condominium unit and no tenants or occupants are named as defendants. However, the bill allows the court to order that the court file in an eviction action be sealed if the interests of justice outweigh the interests of the public, taking specified factors in account. The bill requires that if a person knows or has reasonable cause to know that information is derived from a sealed court file, they may not disseminate the information. Nor shall a consumer reporting agency disclose, or use in a consumer report, information regarding an eviction action in which there is no final disposition entered or the court file is sealed. Any violation would constitute an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. Finally, the bill provides for damages in the amount of $2,000 for each violation, or twice the actual and consequential damages sustained, whichever is greater, and the costs of the action. The Legal Aid Committee voted to support this bill and the Legislative Committee voted 3-2-1 to support that position.

HB4293/SB3295 (Guzzardi, Villivalam) This bill amends the Illinois Wage Payment and Collection Act to increase statutory damages from 2% to 5% of any wage underpayment violation. In the last legislative session, Gov. Pritzker signed into law an increase in the statutory penalty for failure to pay the state minimum wage from 2% to 5%. The idea behind this bill is to establish parity between the penalty for non-payment of wages and the penalty for under payment of wages. The Labor and Employment Committee voted to support this bill and the Legislative Committee voted 6-0-0 to support it as well.

HB3430 (Steans) This bill seeks to codify existing Illinois precedent and thereby remedy the discrepancy between state and federal approaches to the Illinois law. It amends the Illinois Freedom to Work Act to require employers to provide adequate consideration for non-compete agreements in order for those agreements to be enforceable (if employment is less than 2 years or is low-wage). Despite rulings by Illinois courts to deem non-compete agreements unenforceable unless supported by adequate consideration, federal courts have yet to adopt that rule. This amendment requires that an employee receive time to review their restrictive covenants to ensure they understand their obligation, state reasonableness standards and permit prevailing employees to recover attorney’s fees. The Labor and Employment Committee voted to support this bill and the Legislative Committee voted 6-0-0 to support their position.

SB3427 (Crowe) This legislation amends two longstanding section of the Mechanics Liens Act and Illinois case law dealing with the enforceability of a subcontractor’s mechanics lien. It requires a subcontractor to provide written notice of this lien upon the completion of the work under the contractors contract with the owner (previously within 90 days of substantial completion of its own work) and file suite or record its lien within 4 months after the completion of the work under the contractor’s contract with the owner (previously within 4 months of substantial completion of the work). The Real Property Law, Mechanics Liens and Construction subcommittee voted to oppose this bill and the Legislative Committee voted 6-0-0 to support that opposition.

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