ILCA
2625 Butterfield Rd. Ste 204W
Oak Brook, Illinois 60523
Phone 630-472-2851
Fax 630-472-3150

 

Legislative Updates

Table of Contents of Legislative Issues:
State/Federal
Issue
Complying with the Clean Construction and Demolition Debris (CCDD) Act
Updated 11-24-10

ILCA Legislative Lieutenants

ILCA identifies a Legislative Lieutenant for each of the state’s 19 federal congressional districts. Lieutenants are citizens of the district. When ILCA needs local contractors to converse with their local legislators we rely on our Lieutenants to spread the word.

Additionally, Lieutenants contact other local contractors to encourage them to discuss pending legislation with their representatives.

Please contact Scott Grams at sgrams@ilca.net for more information. If you do not know your congressional district contact ILCA or visit: http://www.house.gov/

Federal District
Legislative Lieutenant
1
2
3
Tom Lupfer, Lupfer Landscaping
4
5
Zach Lukes, Hinsdale Nurseries, Inc.
6
Karen Morby, Robert Ebl, Inc.
Dan Wanzung, American Gardens, Inc.
7
8
Maureen Scheitz, Acres Group
Joe Hobson, The Brickman Group
Charlie Keppel, The Care of Trees
9
Scott Grams, ILCA
10
Jim Martin, James Martin Associates
Terry Culver, Rocco Fiore & Sons
11
12
Tim Caldwell, The Savanna Group
13
Mike Rizzi, Hursthouse, Inc.
Keith Pekau, Groundskeepr
14
Liz Kesler, Landscape Concepts Management
Brian Baumgartner, Landscape Concepts Construction
15
16
Tyler Smith, Tyler's Landscaping Service
17
18
19

Clean Construction and Demolition Debris Act

This law went into effect on July 30, 2010. The following documents will guide landscape contractors with compliance. The handbook and two forms are essential if hauling uncontaminated soil from either a commercial or residential job site.

Handbook for Landscape Contractors
Updated 11-24-10

Source Site Certification by Owner or Operator LPC-662 (soil taken from a residential property)

Uncontaminated Soil Certification by Licensed Professional Engineer LPC-663 (soil taken from a commercial/industrial property)

H-2B and the Cap Exemption

H2B 2nd Half Cap Reached
The second half cap for H2B was reached on 1/8/2009. It is clear that H2B is no longer a reliable source of labor for Illinois contractors. This remains high on ILCA's and PLANET's legislative agendas. For contractors asking, "what now?" visit:

 

The H-2B temporary seasonal worker program is used by many landscape contractors as a means to employ legal alien workers. In Illinois, nearly 2,300 workers are requested through this program – and more are being added each year.

There is – for all nontechnical, nonagricultural workers, i.e., hotels, resorts, tourism, timber, fishing, stable hands, amusement venues, landscaping, etc. – an annual cap of 66,000 such workers for the entire U.S.

Given the timing of the seasons, and that one cannot apply more than 120 days before the need, this cap has filled before the northern U.S. companies could get workers.

To ease that, legislation was passed to halve the cap into 33,000 for one six-month period and 33,000 for the other six-month period. And, most importantly, those who were employed through the program within the previous three years were exempted from the cap.

The first 33,000 of the 66,000 cap (for all nonagriculture, nontechnical jobs) (33,000 for each half of the year) was met in September 2007. The second 33,000 filled on January 2, 2008. The legislation to extend the exemption of the cap for repeat workers who have proven to the government that they are not security risks did not pass. It is unlikely that members will get workers through this program. Some hire as few as four, others as many as 175 workers through the H-2B program.

What to do?!
If you have already made the request to legislators, it won’t hurt to remind them. Ask your employees, family, friends and customers to do the same. It is important to keep asking legislators for help with this program. 

Sen. Durbin: Chicago, Ph 312-353-4952, Fx 312-353-0150; Springfield, Ph 217-492-4062, Fx 217-492-4382; Marion, Ph 618-998-8812, Fx 618-997-0176

Sen. Obama: Chicago 312-886-3506, Fx 312-886-3514; Springfield 217-492-5089, Fx 217-492-5099; Marion 618-997-2402, Fx 618-997-2850

U.S. Representatives may be found at ilga.gov - legislator lookup - input your address
OR, call your senators and member of Congress in their Washington, D.C., offices through the Congressional switchboard at (202) 225-3121. Ask to speak to the staff member who handles immigration issues.

OR, go to PLANET’s website and use the H-2B ToolKit at http://landcarenetwork.org/planetFile/pdfs/H2B_Script.pdf

How does H2B Impact Suppliers:
If landscape contractors who use the H-2B Temporary Worker Program do not get their workers and cannot replace them, how can they maintain current purchasing levels or grow their businesses? Your help to the landscape contractors is a help to your company.

Prevailing Wage

Q. I own a small business. Why do I need to know anything about prevailing wage?
A. We know that without realizing it, some landscape contractors have worked on projects which are legally bound to prevailing wage, but have not paid the appropriate prevailing wage. Examples: for a school, post office, park, local roadway, IDOT project, Metropolitan Sanitary District, or such.

Q. How could this happen?
A. One way is, you receive a call from a general contractor who needs some sod laid or has a very small job to be done before the contract can be completed. You are needed ASAP [more like "yesterday"]. You could use the work, have the time and the labor...so you do it. Another way is that occasionally local governing authorities say that prevailing wage is not applicable when indeed it is. You may even see the federal rates typed or handwritten onto the form. However! The statement you sign is that you agree to pay the appropriate prevailing wage. If legally that is the State rate, that's what you've agreed to pay, regardless of what someone may tell you or write onto the contract.

Q. So, what does that mean?
A. Now, you've finished the job and the G.C. asks for a certified payroll. Okay, no problem, you complete one and think that's that. But, now he says, those aren't the right rates. The 2008 general laborer prevailing rate for Cook and metropolitan counties, for example, is $33.15 & $33.90 + fringe benefits of $13.87. Now, what do you do? You have put yourself in the position of having to back track to pay your employees the prevailing rate. And, you could be facing fines and penalties.

Q. What is this prevailing wage?
A. Prevailing wages are those rates decreed by the State of Illinois and U.S. Departments of Labor as the appropriate wage for particular construction labor in a particular county.

There are actually two prevailing wage laws, the Illinois Prevailing Wage Act and the federal Davis Bacon Act. And, despite what you may have heard, neither has any legal relationship to the unions. However, the rates used by both the State of Illinois and the U.S. Department of Labor are very close to or the same as union rates because they believe that these rates must prevail in a majority of the contracting industry in order to be agreed to in union contracts.

The Davis-Bacon Act regulates prevailing wage rates for any project funded by any amount of federal monies. Historically, their wage determinations included landscape classifications, using the rates agreed to by the Illinois Landscape Contractors Bargaining Association (not affiliated with ILCA) and the Operating Engineers Local 150 and Teamsters Local 703. However, in fall 1990, the International Laborers Union rate was used. Once this error was discovered, the U.S. Dept. of Labor dropped the landscape classification entirely. ILCA worked with the U.S. Dept. Labor to encourage member and nonmember landscape contracting firms to participate in a federal wage survey which resulted in landscape classifications and rates closer to the wages that prevailed in that county for building, residential, heavy, and highway construction projects.

Illinois counties covered by the federal wage determination are Boone, Cook, DeKalb, DuPage, Grundy, Henry, Kane, Kankakee, Kendall, Lake, McHenry, McLean, Ogle, Peoria, Rock Island, Tazewell, Will, Winnebago, and Woodford.

The State of Illinois prevailing wage rates do not include landscape classifications. Despite our efforts to have landscape work recognized as unique and apart from general labor, the Illinois Department of Labor refuses to do so. In meetings with the Director and staff, we have been told: "Anyone can dig a hole." "General laborers have always done landscape work and there is no reason now to think that it's unique." "It's an attempt to exploit the worker." ILCA has never asked that any other classification rate be changed, only that landscape plantsman, truck drivers and equipment operators be recognized, using the rates that prevail in the landscape industry as determined through a survey of all landscape work, as was accomplished by the U.S. Dept. of Labor in 1991. Because there are no landscape classifications, truck drivers and equipment operators are included with all others, and all landscape work is included in the general laborer classification.

Q. What can I do to pay my usual wage rate?
A. If there is no federal money in the project, the State rate must be used. To do otherwise means you are breaking the law and are subject to the penalties.

If there is any amount of federal money involved, for the counties cited above, you pay the appropriate USDOL rate.

Q. Can something be done about this?
A. There are three ways the state prevailing wage classifications could be changed to include landscape work. First, it could be fairly easily handled if the Dept. of Labor would agree to a rules change. To date, they won't. The second option would be a legislative change. While there are legislators who agree with us, when it comes down to actually doing something legislatively, there is not sufficient support. Each year, however, bills are introduced that range from eliminating prevailing wages to establishing means to set them more fairly. None of these get very far in the legislative process, however. The third option is a test court case which we could be certain of winning. To date none has become available.

At one point several years ago, we were able to get agreement from the Director for a public hearing on the subject. However, the Illinois Prevailing Wage Act requires state prevailing wage rates to be set based on public works. Since all public works require paying the prevailing wage, admitting to any other rate would be admission to breaking the law and who, at a public hearing, would be willing to admit to that? Thus, the status continues. In 2006, ILCA filed suite against IDOL in an unsuccessful attempt to achieve landscape classifications. If you agree that it's unfair, please tell your State Representative and Senator. They need to hear from their constituents on this issue.

New I-9 Form Available and Required for December 26, ’07

The U.S. Citizenship and Immigration Services (USCIS) released an amended Form I-9 (Employment Eligibility Verification form) that removes five of the List A documents, modifies/clarifies other List A documents and instructs employees that providing their social security number in Section 1 of the Form is optional, unless the employer participates in the E-Verify system.

Employers are required to use the Form I-9 to verify the identity and employment authorization of newly hired employees.

When the USCIS released the new Form, it stated that the new form is the only version that is valid for use. However, subsequently, the USCIS has released an additional notice confirming that the U.S. Department of Homeland Security (DHS) will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007. However, the USCIS in the notice stated that employers that fail to use the new Form I-9 after December 26, 2007 may be subject to penalties as enforced by the U.S. Immigration and Customs Enforcement (ICE).

The USCIS confirmed that employers should not need to complete the new Form I-9 for current employees because there should already be a properly completed Form I-9 on file.

Note: The "No-Match" Rule that was to have gone into effect in mid-September, was challenged and the court continues to suspend enforcement through March 2008. We will keep you informed of the issue.

Lawn Irrigation Contractor and Lawn Sprinkler System Registration Code Regulations

Because the Lawn Irrigation Contractor and Lawn Sprinkler System Registration Code regulations, Public Act 92-778, was signed into law on August 6, 2002, and are very detailed and lengthy, we will not include them here. If you install lawn sprinkler systems, please call the ILCA office (630-472-2851) and we will gladly fax or mail a complete set of the regulations to you.

In January 2009, all newly installed automatically operated lawn sprinkler systems must have furnished and installed technology that inhibits or interrupts operation of the landscape irrigation system during periods of sufficient moisture or rainfall. 

Sales Tax

Following is a letter from Daniel Goodwin, Attorney at Law, addressing the sales tax issue as it relates to the landscape contracting industry in Illinois.

DANIEL GOODWIN
ATTORNEY AT LAW
10 S. WACKER DR. SUITE 4000
CHICAGO, ILLINOIS 60606
(312) 715-4759
October 1, 1990

re: Illinois Sales Tax

Dear ILCA member:

After a year of work by all of us in the industry, the new landscape contractor sales tax rules became final and official on September 21, 1990. These rules dramatically change the way the landscape contractors are supposed to handle sales tax. This letter will provide some guidance in applying the new rules, but you should consult your attorney or accountant for specific guidance with the respect to the specifics of your business.

Here are the new rules:

Almost all of the work of landscape contractors - planting trees and shrubs, laying seed and sod, planting ground cover and flowers, and building decks, walks and retaining walls - is considered improvement of real estate and taxed like the work of other construction contractors. The landscape contractor does not charge the customer sales tax on this work, but does pay sales tax to it's supplier. This is fair, simple, and conforms to reality.

Sales of such items by landscape contractors without planting are subject to sales tax (more precisely Retailers Occupation Tax or ROT), but no tax need be paid by the landscape contractors to their vendors.

Maintenance work, including snow plowing, is considered service and subject to sales tax (actually Service Occupation Tax or SOT). The landscape contractor may either charge the customer tax on the selling price of the materials transferred, or may elect to not charge tax to the customer but instead pay tax to the supplier. This election is only available if the cost of the materials transferred is less than 35% of the gross receipts, which is usually the case with such work.

Work done for tax-exempt customers, or work improving land which is required to be transferred to a local government, may be exempt. Generally, this gives the landscape contractor the right to purchase materials tax free.

The new Rules are effective September 10, 1990. I suggest that you begin applying the new rules as soon as possible.

Most landscape contractors can now organize their businesses to avoid entirely the need for filing sales tax returns. There are two aspects to this, one concerning work done for customers and other concerning purchases. The only work which could require the filing of a return would be maintenance work. This work is service and is subject to SOT. This tax is to be collected from the customer and paid over to the Department of Revenue along with a sales tax return. A landscape contractor may elect to not collect this tax and instead pay tax on it's purchases if the cost of the materials transferred incident to the service is less than 35% of the gross receipts collected from this service. In most cases, this election will be available. If so, collection of tax and the tax return associated with that tax can be avoided completely. Of course, sales of items without planting are subject to tax and require the filing of a sales tax return.

Purchases also must be organized properly to avoid the need for a sales tax return. A landscape contractor that has structured it's work as described above will be required to pay tax to it's suppliers on most or all of it's purchases of materials, supplies and tools. Illinois vendors will charge Illinois sales tax (ROT) and there is no need to file a return with respect to those purchases.

Items purchased from out-of-state vendors are not subject to ROT, but are subject to Illinois Use Tax if brought into Illinois. Many out-of-state vendors will charge no tax or only the sales tax of another state. (The sales tax of another state should not be paid on the purchase of items delivered in Illinois. The payment of the sales tax of another state does not relieve you of the obligation to pay Illinois Use Tax and file an Illinois sales tax return to accompany that tax.) On most purchases from out-of-state vendors, it is proper to pay no Illinois sales tax (ROT or Use Tax) at the time of the purchase, but if the items are brought into Illinois, a Use tax must be paid. This tax may be collected by the out-of-state retailer if it is registered with the Illinois Department of Revenue to do so. Otherwise, it is paid along with the filing of an Illinois sales tax return. Thus to avoid the need to file a sales tax return all purchases should be made from Illinois retailers or from out-of-state retailers registered with the Department of Revenue who collect Illinois Use Tax.

If you have any questions about the new rules, feel free to contact me. It was a pleasure working on this issue and meeting a number of the wonderful people in the industry. I am particularly pleased that the matter was resolved so favorably.

Sincerely,
Daniel Goodwin 

Home Repair and Remodeling Update and Pamphlet

Home Repair: Know Your Consumer Rights 

As you plan for your home repair/improvement project, it is important to ask the right questions in order to protect your investment. The tips in this fact sheet should allow you to protect yourself and minimize the possibility that a misunderstanding may occur.

Contracts

1) Get all estimates in writing.

2) Do not be induced into signing a contract by high-pressure sales tactics.

3) Never sign a contract with blank spaces or one you do not fully understand. If you are taking out a loan to finance the work, do not sign the contract before your lender approves the loan.

4) Remember, you have three (3) business days from the time you sign your contract to cancel any contract if the sale is made at your home. The contractor cannot deprive you of this right by initiating work, selling your contract to a lender, or any other tactic.

5) If the contractor does business under a name other than the contractor’s real name, the business must either be incorporated or registered under the Assumed Business Name Act. Check with the Secretary of State to see if the business is incorporated or with the County Clerk to see if the business has registered under the Assumed Business Name Act.

6) Homeowners should check with local and county units of government to determine if permits or inspections are required.

7) Determine whether the contractor will guarantee his or her work and products.

8) Determine whether the contractor has the proper insurance.

9) Do not sign a certificate of completion or make final payment until the work is done to your satisfaction.

10) Remember, homeowners should know who provides supplies and labor for any work performed on your home. Suppliers and contractors have a right to file a lien against your property if the general contractor fails to pay them. To protect your property, request lien waivers from the general contractor.

Basic Terms to Be Included in a Contract

1) Contractor’s full name, address and telephone number. Illinois law requires that persons selling home repair and improvement services provide their customers with notice of any change to their business name or address that comes about prior to the agreed dates for beginning or completing the work.

2) A description of the work to be performed.

3) Starting and estimated completion dates.

4) Total cost of work to be performed.

5) Schedule and method of payment, including down payment, subsequent payments, and final payment.

6) A provision stating the grounds for termination of the contract by either party. However, the homeowner must pay the contractor for work completed. If the contractor fails to commence or complete work within the contracted time period, the homeowner may cancel and may be entitled to a refund of any down payment or other payments made towards the work, upon written demand by certified mail.

Homeowners should obtain a copy of the signed contract and keep it in a safe place for reference as needed.Section 25. Insurance required. Any person engaged in the business of home repair and remodeling shall obtain and maintain in full force and effect during the operation of the business public liability and property damage insurance in the amount of $100,000 per person and $300,00 per occurrence of bodily injury, $50,000 per occurrence for property damage, and in the amount of $10,000 per occurrence for improper home repair or remodeling not in conformance with applicable State, county, or municipal building codes, unless the person has a net worth of not less than $10,000,000 as determined on the basis of the person’s most recent financial statement, prepared within 13 months.Section 30. Unlawful acts. It is unlawful for any person engaged in the business of home repairs and remodeling to remodel or make repairs or charge for remodeling or repair work before obtaining a signed contract or work order over $1,000. This conduct is unlawful, but is not exclusive nor meant to limit other kinds of methods, acts, or practices that may be unfair or deceptive.

Enforcement.

a) The Attorney General or the State’s Attorney of any county in this State may bring an action in the name of the people of this State against any person to restrain and prevent any pattern or practice violation of this Act. In the enforcement of this Act, the Attorney General or the State’s Attorney may accept an assurance of voluntary compliance from anyone engaged in any conduct, act, or practice deemed in violation of this Act. Failure to perform the terms of any such assurance constitutes prima facie evidence of a violation of this act.

b) All remedies, penalties, and authority granted to the Attorney General or the State’s Attorney of any county in this State by the Consumer Fraud and Deceptive Business Practices Act shall be available to him or her for enforcement of this Act, and any violation of this Act shall constitute a violation of the consumer Fraud and Deceptive Business Practices Act.Section 900. The Consumer Fraud and Deceptive Business Practices Act is amended by changing Section 2Z as follows: (815 ILCS 505(2Z) (from Ch., 121 1 / 2, par. 262Z).Section 2Z Violations of Other Acts.

Section 999. Effective date. This Act takes effect January 1, 2000.

If you think you have been defrauded or you have questionsIf you think you have been defrauded by a contractor or have any questions, please bring it to the attention of your State’s Attorney or the Illinois Attorney General’s Office. Attorney General Toll-Free Numbers:

Carbondale 800-243-0607

Springfield 800-243-0618

Chicago 800-386-5438 

prepared by the
Illinois Landscape Contractors Association

 
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