## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Bartlow v. Costigan , 2012 IL App (5th) 110519

Appellate Court Caption RHONDA BA RTL OW and J ACK BA RTL OW, d/b/a J ack’ s Roofing, RYAN TOWL E, d/b/a J ac k’s Siding and Windows, and CHARL ES ERI C MODGL I

N, Plaintiffs-Appellants, v

. JO SE PH COSTI GAN, in His Capac ity as Dire ctor of L abor, State of I llinois , Def

endant- Appellee

.

District & N o. Fifth District
Docke t No. 5-11-0519

Filed
Rehea ringdenied August 21, 2012

September 20, 2012

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The I llinois Empl oy ee Classification Act, which establishes criter ia for deter mining whether an individual perf orming service s for a construction
contra ctor is an employ ee or an independe nt co n trac tor, is not fac ially unconstitutional under the due proce ss cla u s e, it does not improperly deleg ate leg islative authority
, it is not unco n s t itutionally vague, and it does not violate the equal protec tion claus e or the prohibition ag ainst specia l leg islation.

Dec ision Under
Review Appea l from the Circuit Court of Fr anklin County
, No. 10-CH-35; the Hon. Robert W. L ewis, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l J ana Y ocom, of Jana Yocom, P.C., of Mt. Vernon, f or appe llants.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, Solicito r Gene ral, and Mary E. Welsh, Assistant Attorney Gene ral, of counsel), f

or appe llee.

Marc R. Poulos, Melissa L

. Bine tti, and Kar a M. Principe, all of Indiana, I llinois
, I owa Foundation for Fa ir Contracting
, of Country side, amicus curiae

.

Panel J USTI CE STEWAR T delivere d the judgme nt of the court, with opinion.
J u s t i ce s Goldenher sh and Chapman concur red in the judgme nt and opinion.

OP INION

¶ 1 This appea l conce rns the c o n s ti tu ti o n a li ty of the I llinois Employ ee Classification Act (the Act) (820 I L CS 185/1 to 999 (West 2008)). On Marc h 12, 2010, the plaintiffs, Rhonda Ba rtlow and Jack B artlow, doingbusiness as J ack’ s Roofing, Ry an Towle, doing business

as J ack’ s Siding and Windows, and Charles Eric Mo d gl i n , fi led a complaint in the circ uit
court of Fr anklin County
, I llinois
, for a decla ratory judgme nt and for injunctive relief ag ainst the defe ndant, J oseph Costigan, in his capa city as the Direc tor of the I llinois Depa rtment of L abor (the Depa

rtment). The plaintiffs alleg ed in their complaint that the Depa rtment i s 1
at t empting to enfor ce the Act ag ainst them, but the Act is fac ially unconstitutio n al an d unenfor cea

ble. The circ uit court g rante d the Depa rtment’s motion for a summary judgme nt. We affir m.

¶ 2 BA CKGROUND ¶ 3 The Act was enac ted on J anuar y 1, 2008, and it establishes criter ia to deter mine whether

an i n d i vidual perf

orming service s for a construction contra ctor is an employ ee of the
contra ctor or is an independe nt contra ctor. The Act seeks to ensure that wor k er s in the

c o n s tr u c ti o n in d u s tr y are offe red protec tions under numerous labor laws, including minimu m wag e, overtime, worke rs’ compensation, an d u nemploy ment insurance
, and are not misclassified as independe nt contra ctors by the contra ctor in order to avoid tax and labor law

As a m at te r of la w, J ose ph Cost igan, the cur re nt Dir ect or of the I ll ino i s D e p a r tment of 1 Labo r, has bee n sub st itute d as a par ty in p l a c e of Cat her ine M. Shan non, the ori ginal ly named def end antandCost igan’ s pr ede ces sor . 735 I LCS 5/ 2- 1008 (d) (W est 201 0).

-2-obligations. 820 I L CS 185/ 3 (West 2010); 56 I ll. Adm. Code 240.100 (2008).

¶ 4 Rhonda and J ack Ba rtlow are spouses and g ener al partne rs in a g ener al partne rship that has been doing business as J ack’ s Roofing since 1977. The Ba rtlows are in the business of installing siding, windows, seamless gut t er s , and roofs. Ryan Towle and Charles Eric Modg lin perf

orm siding, window, and roof installation service s for the Ba rt l ows. The Ba rtlows maintain that Towle and Modg lin a re not the ir employ ees, but a re subcontrac tors who operate their own businesses as s o le proprietor s. At the time of the lawsuit, the Depa rtment was investigating whether the Ba rtlows had misclassified Towle, Modg lin, and others as independe nt contra ctors when they should have been classified as employ ees under the Act. ¶ 5 On September 3, 2008, the Depa rtment sent the Ba

rtlows a “notice of investigation a nd
reque st for documents.” The Depa rtment’s reque st for documents soug ht documents

conce rning their rela

tionship with Towle, Modg lin, and other persons who the Depa rtment “conte nds are or were [ J ack’ s Roofing] employ ees,” not subcontrac tors. The investigation

was identified as “F ile Number: 2009-CA-JD08-0017.” On October 15, 2008, the Ba rtlows furnished the Depa

rtment numerous documents it had reque sted. They did not have possession of documents related to the capitalization of their subcontrac tors, information

co n ce rning other customers of the subcontrac tors, or the subcontrac tors’ income t ax compliance

. In April 2009, a conciliator working for the Depa rtment conducte d a telephone interview with Rh o n d a Ba rtlow and with various indi viduals who had contra cted with the Ba rtlows. ¶ 6 On Fe b ru ar y 1 6
, 2010, the Depa rtment sent the Ba

rtlows a “Notice of Preliminary Investig ative Finding s,” stating that it had mad e a p relim inary deter mination that the Ba rtlows “had failed properly to classify ten subcontrac tor s i n v i o lation of the Act.” The notice also stated that the Ba rtlows “may be assessed a fine of $1,683,000” and reque sted a response within 30 day s of the date of the notice. The notice further stated that “upon rec eipt and revie w of the response , [the Depa rtment would] issue a written decision informingthe parties of the final de termination in the matter.” ¶ 7 On Marc h 1, 2 0 1 0
, t h e De p ar t m en t s en t t h e Ba rt lows a notification of a sec ond investigation “of a complaint reg arding work done at 311 West Gra nd, Carter ville, I llinois .” In this second notification, the Departm ent requested “production of documents within 15 cale ndar day s of t he date of the letter” and identified the second investigation as “File No. 2010-CA-RT12-0050.” ¶ 8 On Marc h 12, 2010, the Ba rtlows, Towle, and Modg lin filed a co m p l ai n t against the Depa rtment, reque sting a

decla ratory judgme nt and inj unctive relief. They alleg ed that the Depa rtment had not provided them an “opportunity for hearing,” that their t elephone calls
to the Depa

rtment reque sting settlement discussions had not been returne d, and that the Act and the pending investigations have cre ated uncer tainty conce rning how they are to conduct their business. ¶ 9 The plaintiffs’ fi v e- co u n t complaint maintained that the Act violates the due proc ess clause s of t he United States and I llinois Constitutions, the s pec i al l eg islation clause of t he I llinois Constitution, the equ al p ro tection clause s of the United States and I llinois

-3-Constitutions, and the prohibition of bills of attainder in the United States Constitution. The

plaintiffs also filed a motion for a temp o ra ry restra ining order (TRO) and a preliminary injunction, reque sting the court to enjoin the enfor ceme nt of the Act during the pendenc y of the ac tion. ¶ 10 On Marc h 15, 2010, the circ uit court conducte d a contested hearing on t h e plaintiffs’

re qu es t fo r a TRO and denied the motion. The plaintiffs filed an interlocutory appeal pursuant to I llinois Supreme Court Rule 307 (ef f. Fe b. 26, 2010). On Marc h 25, 2010, on the expedited time t ab l e re quired by Rule 307(d), we reve rsed the circ uit court’s denial of the plaintiffs ’ T RO reque st. Bartlow v. Shannon
, 399 I ll. App. 3d 560, 927 N.E.2d 88 (2010). We conclude d that the plaintiffs’ complaint raised a “fa ir question” conce rning whether the Act violated pr ocedur al due proce ss by g ranting the Department t he powe r to assess fine s, penalties, and sanctions without aff o r d ing the plaintiffs with a meaning ful hearing. Id. at 571, 927 N.E.2d at 98. We did not deter mine the merits of the plaintiffs’ due proce ss claim, only that it raised a “fa ir question.” In addition, we d i d n o t addre ss any of the plaintiffs’ other constitutional claims. We rema nded the case and directed the circ u i t co u rt t o enter a TRO until itconducte d a full hea ringon the plaintiffs’ r equest for a pre liminary

injunction. ¶ 11 On rema

nd, the plaintiffs did not reque st a hear i n g o n t h ei r m o tion for a pre liminary injunction. Instead, the plaintiffs and the Depa rtment eac h filed cross-motions for summary judgme nt, and the parties agree d that no evidentiar y hearing was nece ssary to deter mine the plaintiffs’ constitutional issues. On October 20, 2011, the circ ui t court enter ed a memorandum of decision with respe ct to the parties’ cross-motions for a summary judgme nt, finding that the Act did not violate the guara ntees of due proce ss and equal protec tion or the prohibitions aga inst special leg islation and bills of attainder. ¶ 12 The court n o t ed i n its memorandum that the Act g rante d the Depa rtment the power

to

assess pen alties and sanctions and that there is no provision in the Act for any ty pe of administrative hea

ring . Howeve r, the c ourt ruled a s follows:
“The instant case prese nts a fac ial challeng e only

. No as applied challeng e is
prese nted in Plaintiffs’ Second Amende d Complaint. The Depa rtment is not precluded from g iving Plaintiffs notice and a hearing if it so chooses. There fore
, *** the court finds [t he Ac t] is not facially

unconstitutional.” ¶ 13 On November 14, 2011, the circ uit court enter ed its final order based on its memora ndum of d ec i s i o n

. The court’s final order found that the Act was not unconstitutional specia l leg islation, did not violate the equal protec tion clause of t h e I l l i n o is or United States Constitution, does not constitute a bill of attainder
, and is not fac ially unconstitutional under the due pr ocess c lauses of the United States and I llinois Constitutions. The court enter ed a judgme nt on all counts of the plaintiffs’ complaint in favor of the Depa rtment. The plaintiffs filed a timely

notice of a

ppeal.

¶ 14 DI SCUS SI ON ¶ 15 The plaintiffs argue that the circ uit court err ed in granting the Depa rtment’s motion for
summary judgme nt and den y i n g their motion for summary judgme nt beca use the Act is fac ially unconstituti o n al u n d er both the due proce ss and equal protec tion clause s of the

-4-United States and I llinois Constitutions. The p l ai n tiffs also argue that the Act is an

unconstitutional speci al leg islation in violation of the I llinois Constitution. The plaintiffs
appea l the circ uit court’s judgme nt g ranting a summary judgme nt in favor of the Depa rtment on their constitutional challeng es and de nying the ir motion for summary judgme nt. ¶ 16 “S u m m ary judgme nt is proper when the plead i n gs , d ep o s i t i o n s , an d af fi d av i t s demonstrate that no g enuine issue of materia l fac t exis ts and that the moving party is entitled
to judgme nt as a matter of law.” Schultz v. Illinois Farmers Insurance Co
., 387 I ll. App. 3d 622, 625, 901 N.E.2d 957, 960 (2009). “The court must construe the evidenc e strictly ag ainst the movant and liberally in f a v o r of the opponent.” (Interna l quotation marks omitted.) Gatlin

v. Ruder
, 137 I l l

. 2d 284, 293, 560 N.E.2d 586, 589 (1990). The revie w of the g rant of
summary judgme nt is de novo

. Ioerge r v. Halverson Construction Co.
, 232 I ll. 2d 196, 201, 902 N.E.2d 645, 648 (2008)

. ¶ 17 In addition, applicable to our revie w in the prese nt case , we note that the constitutionalit y

o f a s t at ute is a question of law that we revie w de novo

. Irwin Industrial Tool Co

. v. Departme nt of Rev enue , 238 I l l

. 2d 332, 340, 938 N.E.2d 459, 465 (2010). “Statutes are presumed t o b e const itutional, and we must construe a statute so as to uphold its constitutionalit y if it is r easona bly possible to do so. The party challeng ing the validity of a statute has the bur den of c lear ly establishing a

constitutional viol ation.” Id.

¶ 18 I

. ¶ 19 The Statutory and Regulatory

Fr amewor

k of the Ac t ¶ 20 We beg in our ana ly sis of the constitutionality of the Act by

first outlining the statutory and regulatory fr am ework of the Act. As noted above, the Act is desig ned to addre ss problems in the construction i n du s t ry that arise when contra ctors improperly classify employ ees as independe nt contra ctors in order to avoid cer tain laws and regulations that are desig ned to protec t employ ees. The Act grants the Depa rtment the power to conduct investigations in co nn e c ti o n with the administration and enfor ceme nt of the Act and provides that the Depa

rtment h as the duty to enfor ce the provisions of the Act. 820 I L CS 185/25 (West 2008).

¶ 21 A. ¶ 22 The De partment’s Investig atory Powers ¶ 23 An investigation under the Act beg ins when an interested party files a complaint with the Depa rtment ag ainst an employ er if there is a reas o n able belief that the employ er is in violation of t he Act. 820 I L CS 185 / 2 5 (W es t 2008). The Depa rtment itself may also file a complaint alleg ing a

violation of the Act. 56 I ll. Adm. Code 240.200 (2008). ¶ 24 Upon the filing of a complaint, the Depa rtment revie ws the co mp l ai n t t o d etermine whether there is cause for an investigation. 56 I ll. Adm. C o d e 240.220(a) (2008). I f the Depa rtment deter

mines that there is cause for an investigation, it is obligated to investigate to asce rtain the fac ts relating to the alleg ed violation and deter mine whether a violation has

occur red. 56 I ll. Adm. Code 2 4 0

. 3 0 0 (2 008). The Depa rtment may investigate using “any

-5-method or combination of methods deeme d suitable at the discretion of the Depa rtment.” 56 I ll. Adm. Code 240.300 (2008). “The investigation shall incl u d e a wr i t t en notice to the
contra ctor of the substance of the complaint and a n opportunity

to pr esent any information the contra ctor wishes the Depa rtment to consider in rea ching its deter mination.” 56 I ll. Adm. Code 240.300 (2008). I f a co n t ra ctor ref uses to cooper ate with an investigation, “the De partment may make a finding that the Act has been violated based upon the evidenc e available to the Depa

rtment.” 56 I ll. Adm. Code 240.300(a) ( 2008). ¶ 25 “B efor e making a fi n al d et er m i n at i o n of a violation, the Depa rtment shall notify

the
contra ctors of the substance of the Depa rtment’s investigation and aff ord the contra ctors an opportunity to prese nt any written information, within 30 cale ndar day s, for the Depa rtment to consider in rea ching its deter mination.” 56 I ll. Adm. Code 240.300(d) (2008). “As part of its investigation, the Depa rtment may convene a fac t-finding confe renc e in person or by telephone for the purpose of obtaining additional information or ev i d en ce , identify ing the issues in dispute, asce rtaining the positions of the parties and exploring the poss i b i l i t y of settlement.” 56 I ll. Adm. Code 240.310 (2008). All parties are to be g iven notice of the fac tfinding confe renc e at least 1 5 d ay s prior to the confe renc e, and eac h party may be

acc ompanied by

the par ty ’s attorne y . 56 I ll. Adm. Code 240.310(a), (b) (2008)

.

¶ 26 B. ¶ 27 The Department’s Enf orce ment Powers F ollowing Its Investig ation ¶ 28 The Act and its regulations not only gra n t t h e De p ar t m ent the power to investigate alleg ed violations of the Act, but also g ive the Depa rtment a list of enfor ceme nt reme dies it
may seek once it de termines that there has been a violation of the Act. Section 25(b) of the Act provide s as follows:
“W h en ever the Department believes upon investigation that there has been a viol ation of any of the provisions of this Act or any rules o r re gu lations promulg ated under this Act, the Depa

rtment may : (i) issue and cause to be serve d on any party an order to cea se

an d desist from further violation of the Act, (ii) take aff irmative or other action as deeme d rea sonable to eliminate the eff ect of the violation, (iii) collect the amount of any wag es, salary
, em ploy

ment benef

its, or other compensa

tion denied or lost to the individu al
, an d (iv) assess any civil penalty allowed by this Act. The civil penalties assessed by the Depa

rtment as well as any other relief reque sted by the Depa rtment shall be rec overa

ble in a n action brought in the name of the people of the State of I llinois by the Attorney

Gene ral.” 820 I L CS 185/ 25(b) ( West 2010). ¶ 29 The regulations further provide that the D ep a r tme nt may seek a voluntary settlement with the contra ctor that elim inates the unlawful prac tice and provides appropr iate relief ;

rec ommend the commence ment of a civil action; issue a cea se-a nd-desist order ; assess civil penalties; collect denied or lost wag es, salary
, employ ment benef

its, or compensation owed to the employ ee; place the contra ctor on a debarment li st pursuant to s ection 42 of the Act (820 I L CS 1 8 5 / 4 2 (West 2010)); and/or take any other rea sonable action to eliminate the unlawful prac tice and/or remed y the eff ect of the violation. 56 I ll. Adm. Code 240.510 (2008).

-6-¶ 30 When the Depa rtment makes a decision that a violation has occur red and has dete rmined
to seek reme dies for the violation, it must send a notice to all parties. 56 I ll. Adm. Code 240.500(c) (2008). The Act’s re gulations require the Depa rtment to “see k voluntary compliance by the contra ctor for any violations of the Act,” but if “the contra ctor fails to pay the penalties or comply with the reme dies specifie d in the notice within 30 cale ndar day s, the Depa rtment may within 180 day s ref er the matter to the Attorney Gene ral for enfor ceme nt.” 56 I ll. Adm. Code 240.500(d) (2008). Section 35 of the Act states that, if a contra ctor ref uses to obey a “valid order of the Depa rtment issued under this Act,” the Depa rtment can obtain

a court order commanding the contra ctor to obey the order or be adjudg ed guilty of contempt of cour t and punished ac cording ly . 820 I L CS 185/ 35 (West 2010). ¶ 31 The contra ctor can seek a revie w o f t h e Depa rtment’s final deter

mination by filing a written reque st for an “informa l confe renc e” with the Direc tor of th e Depa rtment. 56 I ll. Adm. Code 240.500(e) (2008). The informal conf ere nce w ill be conducted by the Direc tor and/or the Depa

rtment’s chief leg al counsel. 56 I ll. Adm. Code 240.500(e) (1) (2008). At the informal confe renc e, the contra ctor can “pre sent written or oral information and arguments

as to why the Depa

rtment’s final deter

mination should be amende d or rec onsidered.” 56 I ll. Adm. Code 240.500(e) (1) ( 2008). ¶ 32 Section 42 of the Act provides that when the Depa rtment deter

mines that the contra ctor has committed a second or subsequent violation within five y ear s of an ear lier violation, the Depa rtment must place the contra ctor on a debar ment list posted on its officia l website. 820 I L CS 185/42 (West 2010). Specifica lly
, “the Depa rtment shall add the employ er or entity ’s

name to a list to be posted on t he Depa rtment’s officia l website. Upon such notice, the Depa rtment shall notify the violating employ er or entity

. No state contra ct shall be awa rded
to an employ er or entity appea ring on the list until 4 y ear s have elapse d from the date of the last violation.” 820 I L CS 185/ 42 (West 2010); 56 I ll. Adm. Code 240.530 (2008).

¶ 33 I I

. ¶ 34 Procedur al Due Proc ess ¶ 35 The plaintiffs maintain that the statutory and regulatory scheme under the Act is facia lly unconstitutional under the due proce ss clause s of the United States Constitution and the I llinois Constitution. The plain t i ff s d o not challeng e the Act as applied, only on its fac e. Specifica lly
, the plaintiffs maintain that the Act and its regulations g rant the Depa rtment the
power to impose signific ant penalties and sanctions upon its finding of a violation of the Act, but the Act does not provide an acc used wit h a sufficient hea ringduringthe Depa

rtment’s investigative proce ss. ¶ 36 W e b egi n o ur constitutional analy sis with the presu m p t i o n t h at t h e s t at u t e i s constitutional. Irwin I

ndustrial Tool Co.
, 238 I ll. 2d at 340, 938 N.E.2d at 465. A statute is fac ially unconstitutional only if “ ‘no set of circ umstances exis ts under which the Act would be valid. The fac t that the [st atute] might operate unconstitutionally under some conce ivable
set of circ umstances is insufficient to rende r it wholly invalid’ ” except in the context of the first amendment. In re C.E. , 161 I ll. 2d 200, 210-11, 641 N.E.2d 345, 350 (1994) (quoting United States v. Salerno
, 481 U.S. 739, 745 (1987))

. “[A] challeng e to the fac ial validity of

-7-a statute i s t h e m o s t difficult challeng e to mount succe ssfully ***.” People v. One 1998

GMC , 2011 I L

110236, ¶ 20, 960 N.E.2d 1071. ¶ 37 Whil e we must construe a statute so as to uphold its constitutionalit y if it is rea sonably possible to do so (

Irwin Industrial Tool Co.
, 238 I ll. 2d at 340, 938 N.E.2d at 465), this rule of construc tion is nota license to rewr ite leg islation. In re Branning
, 285 I ll. App. 3d 405, 410, 674 N.E.2d 463, 467 (1996). Nonethele ss, we will resolve any doubt as to the statute’s construction in favor of its validity

. People v. Boec kmann
, 238 I ll. 2d 1, 6-7, 932 N.E.2d 998, 1001 (2010). ¶ 38 The plaintiffs’ due proce ss challeng e raises proce du ra l due proce ss conce rns. The due
proce ss clause s of the United States and I llinois Constitutions provide that the State may not “depr ive any person of life, l iberty
, or property , without due p ro ce s s o f law.” U.S. Const., amend. XIV; I ll. Const. 1970, art. I
, § 2. The guara ntee of due proce ss normally compels the
g overnme nt to provide notice and an opportunity to be heard befor e a person is deprive d of
proper ty

. United States v. J

ames Danie l Good Real Property , 510 U.S. 43, 47 (1993). ¶ 39 “Proce dural due proce ss claims conce rn the constitutionalit y of the specific proce dures employ ed to deny a person’ s life, liberty or proper ty .” Segers v. Industrial Comm’n
, 191 I ll. 2d 421, 434, 732 N.E.2d 488, 496 (2000). Procedur al due proce ss is meant to protec t people from the mistaken or unjustified deprivation of life, liberty
, or proper ty , not from the deprivation itself. Id

. “To survive a fac ial challeng e, the proce dures a s t at u t e incorporates must at least be adequa

te to authoriz e t h e d ep ri vation with respe ct to some of the persons subject to it.” In r e Marr iage of Bey er , 324 I ll. App. 3d 305, 318, 753 N.E.2d 1032, 1043 (2001). “At a minimum
, due proce ss require s that a depr i v at i o n o f proper ty cannot occur without providing notice and an opportunity for a hearing appropr iate to the nature of the

case .” Id

. ¶ 40 “Due proce ss of law is serve d wher e there is a rig ht to prese nt evidenc e and argument in one’s own b eh alf, a rig ht to cross-e x amine adver se witnesses, and impartiality in ruling s upon the evidenc e which is offe red.” Piotrowski v. State Police Merit Board
, 85 I ll. App. 3d 369, 373, 406 N.E.2d 863, 866 (1980). “B efor e a person is deprive d of a protec ted interest, he must be aff

orded opportunity for some kind of a hearing, ‘ex ce p t fo r extraordinary situations where s o m e valid g overnme ntal interest is at stake that justifies postponing the hear ing until afte r the event.’ ” Board of Rege nts of

State Colleges v. Roth
, 408 U.S. 564, 570 n.7 (1972) (quoting Boddie v. Conne ct i cu t , 401 U.S. 371, 379 (1971))

. A fundame ntal require men t o f due proce ss is the opportunity to be hear d “at a meaning ful time and in a meaning ful manner .” Armstrong v. Manzo , 380 U.S. 545, 552 (1965). ¶ 41 In evaluating proce dural due proce ss claims, the court uses a three -par t test, under which the court (1) asks the threshold question whether there exis ts a liberty or p ro p er t y i ntere st which has been interfe red with by the State, (2) examines the risk of an err oneous deprivation of such an int ere st through the procedure s alre ady in place
, while consi d ering the value of additional safe guards, and (3) addre sses the eff ect the administrative burden would have on the State’s in t er es t

. Segers
, 191 I ll. 2d at 434, 732 N.E.2d at 496. Howeve r, as the Depa rtment notes, these proce dural safe guards are not trig g ere d unless and until an ag ency is adjudicating leg al rig hts. Securities & Exc hange Comm’n v. Jerry T. O’Brien, Inc.
, 467

-8-U.S. 735, 742 (1984) (the due proce ss clause is not implicated whe n an administrative

ag ency , without notify i n g a person under investigation, uses its subpoena power to g ather evidenc e; the due proce ss cl au s e is not implicated under such circ umstances beca use an administrative investig ation adjudicate s no leg al rights). ¶ 42 In response to the plaintiffs’ proce dural due proce ss argument, the Depa rtment maintains that its role under the Act is limited to a n investigatory function and that it has no power to adjudicate any claim that a contra ctor has misclassified an employ ee. The Depa rtment notes that it is not authorized to issue a final administrative deter mination that is subject to judicial revie w under the Administrative Review L aw (735 I L CS 5/3-101 to 3-113 (W es t 2010)). Instead, the Depa

rtment argues that if its inves t i gation leads it to a finding that there is a violation of the Act, it may take rea sonable action to eliminate or reme dy the violation by seeki n g, among other thi ng s, a volunt ary settlement, issue a cease -and- desist order
, assess civil penalties, or collect the employ ee’ s lost wag es or benef its. 820 I L CS 185/25(b) (West 2010). It arg

ues that these power s are not adjudicator y power s. The Depa

rtment cites W

orld Painting Co. v. Costigan
, 2012 I L App (4t h) 110869, 967 N.E.2d 485, in support of its
argument that it has no adjudicatory power s, only

investigative power s, under the A ct. ¶ 43 In W

orld Painting Co.
, the t rial court enjoined t h e Depa rtment from enforcing the Act
ag ainst the plaintiffs based on our decision in Bartlow v. Shannon
, 399 I ll. App. 3d 560, 927 N.E.2d 88 (2010). On appea l, the W orld Painting Co. court noted that the require ments of notice and the opportunity to be hear d are not implicated by executive action that cannot

re s u l t i n an administrative adjudication of rig hts. W orld Painting Co.
, 2012 I L App (4t h ) 110869, ¶ 15, 967 N.E.2d 485. In that case , the Depa rtment enter ed into an agree ment with the plaintiff that, under the Act, it could “only conduct a no-conse quence s investigation.” Id

. ¶ 22, 967 N.E.2d 485. The court descr i b ed the parties’ agree d interpre tation of the Act as follows:
“De fenda nts liken the Depa

rtment’s role to that of the police in a criminal investigation. The Depa rtment, acc ording to defe ndants, may subpoena witnesses and documents and inspect businesses toward deter mining whether to rec ommend the commence ment of an action for civil or criminal penalties in the trial court. I f the Depa rtment found a violation, defe ndants’ interpr etation would allow the Depa rtment to conduct informal
neg otiations with a firm toward settling on a penalty

. Howeve r, if the firm wer e unwilling
to neg otiate, the Depa

rtment’s sole rec ourse would be in ‘ de novo ’ court proce eding s in which the Depa

rtment’s finding s would be i n admissible. Def endants argue the Depa rtment’s investigation under the Act does not require due-pr ocess protec tions such

as notice and an opportunity to be hear d beca use the Depa

rtment itself cannot adjudicate a firm’ s rig hts or liabiliti es.” Id. ¶ 22, 967 N.E.2d 485. ¶ 44 The W

orld Painting Co. court reve rsed the trial court’s injunction beca use “[t] he par

ties have agree d to a constitutional plan for conducting t h ei r i ntera ction as the Depa rtment investigates plaintiff’s possible violations of the Act.” Id

. ¶ 24, 967 N.E.2d 485. Under the parties’ agree ment, “the Depa rtment is forbidden from making any adjudicator y finding s of plaintiff’s liability .” Id

. Acc ording ly
, the court conclude d that “due proce ss is not implicated by the Depa rtment’s investig ation in this case.” Id

.

-9-¶ 45 When the prese nt case came befor e this court in Bartlow
, the Depa rtment argued that the Act met the require ments of proce dural due proce ss beca use any party can reque st an “informa l confe renc e” afte r the Depa rtment issues its final deter mination, and the contra ctor may prese nt written or oral information and arguments at this informal confe renc e. Bartlow
, 399 I ll. App. 3d at 572, 927 N.E.2d at 99. We conclude d that this proce dure appea red to be inadequate beca

use the Act authorized the Depa rtm ent, upon its finding of a violation, to issue cea se-a

nd-desist order s, assess civil penalties, and levy other sa n c ti o n s , b ut th e in f

ormal confe renc e did not provide the contra ctor with an opportunity to confr ont acc users, examine witnesses, or inspec t the evidenc e off ere d ag ainst it. Id. ¶ 46 In the prese nt appea l, the Depa rtment advanc es an interpre tation of the Act that is similar
to the parties’ agree d interpre tation i n W o r l d Painting Co. The Department maintains that it has no adjudicator

y power ; it investigates but has no authority outside of court to enfor ce any finding that there h as been a violation of the Act. In addition, any circ uit court proce edi n g t o en forc e the Act is a de novo proce eding in which the Depa rtment has the burden of proving a viol ation of t he Ac t. Also, the Department m aintains that, pursuant to section 80 of the Act (820 I L CS 18 5 / 8 0 (W est 2010)), its finding that there has been a violation of the Act is not admissible in a court proce eding seeking sanctions for a violation of the Act. The Depa

rtment describes its investigative power as a “no conseque nces power ,” meaning that there are no conseque nces as a res u l t o f i t s investigation and no chang e in
status. The Depa

rtment’s power t o as s ess fines under the Act, the Depa rtment argues, is

mere ly the power to ask the contra ctor to settle the matter outside of court. Its assessment of fines c an b e ignor ed by the contractor with no conseque nces. Once the Depa rtment bring s

an action in the circ uit c ourt and proves that a violation of the Act ha s occur red, the circ uit
court will decide whether any fines or sanctions should be as s es s ed an d
, if so, what they should be. ¶ 47 The c ircuit court disag ree d with the Depa rtment’s interpre tation of the statute bec ause, under its rea ding of the Act, it g rants the Dep ar t m en t t h e power to assess penalties and sanctions. Nonethele ss, the circ uit court cited East St. Louis Fede ration of Teachers, Local 1220 v. East St. Louis School Distr ict No. 189 Financial Ove rsight Panel
, 178 I ll. 2d 399, 687 N.E.2d 1050 (19 97), and held that the Act was not fac ially unconstitutional beca use “[t] he Depa

rtment is not prec luded from g iving Pl ai n t i ff s notice and a hearing if it so chooses.” ¶ 48 In East St. Louis
, the supreme court addre ssed a statute that g ave an oversight panel the authority to rem o v e s ch ool board members from their office for failure to follow a valid order of the panel. Id. at 405-06, 687 N.E.2d at 1055-56. The supreme court held that when the oversight panel exercised its power to terminate the term of a school b o ar d member’ s term of office
, it must aff

ord the office holder due proce ss. Id. at 418-19, 687 N.E.2d at 1061. Howeve r, the court noted that the statute did n ot provide any notice and proce dure require ments, which cre ated a g reat risk of err oneous deprivation of a school b o a r d me mbe r’s righ t s

. Id

. at 419, 687 N.E.2d at 1062. The court held that the school board member was entitled to notice of the panel’ s pending decision to remove him or her from office and was entitled to proce dural saf

eguards. Id. at 420, 687 N.E.2d at 1062. ¶ 49 Nonethele ss, the supreme court held that the statute was not unconstitutional on its face

-10-beca use nothing in the statute preve nted the panel from g iving the school board member notice and a hear ing befor e removing him f rom office

. Id. at 421, 687 N.E.2d at 1063. The
court stated
, “G i v en t h at the Panel was fre e to g ive notice or hearing if it so chose, [t he statute] is not fac ially

unconstitutional.” Id

. ¶ 50 In the prese nt case , the Depa rtment agree s that i f t h e Ac t au t h o ri z ed it to adjudicate liability
, proce dural safe guards would be nece ssary

. We share the circ uit court’s conce rn that the languag e of the statute g rants the Depa rtment more than investigatory power s. Howeve r,

as the supreme court emphasized in East St. Louis
, we must interpre t statutes as constitutional if we can reasonably do so. Id. There fore
, we adopt the i nterpret at ion of t he Act offe red by the Depa

rtment and hold that the statute is not fac ially unconstitutional under the due pr ocess c lause. ¶ 51 Un d er the Depa rtment’s interpre tation of the Act, it functions only in an investig ative role. I f it finds that a violation of the Act has occur red, it has no power to assess any fines or impose any sanctions, but can only seek a voluntary settlement with and compliance by the
contra ctor. I f the Depa

rtment cannot rea ch an agree ment with the contra ctor, it must seek any penalties, sanctions
, or other reme dies by bring ing an action in the circ uit court. The Depa rtment has the burden of proving a violation of the Act, and the circ uit court decide s if
p e n a ltie s or sanctions are justified and what penalties, sanctions, or other reme dies to impose. ¶ 52 Section 80 of the Act states that the Depa rtment’s “finding made pursuant to this Act is for the pur

pose of enfor cing this Act and may not be admissi ble or binding ag ainst a party in any other proce eding

. ” (Emphasis added.) 820 I L CS 185/80 (West 2010). The Depa rtment int er p re t s section 80 of the Act to mean that its finding s are not admissible in any court proce eding
, including an acti o n b r o u g ht b y th e D ep a

rtment pursuant to the authority provided in section 25 of the Act. In addition, althoug h the Act authorizes the Depa rtment to serve “an order to cea se and desist from further violat i o n o f t he Act,” under the Depa rtment’s interpre tation of the Act, this is a no-conse quence s order that does not c hang e the status of the par ties. ¶ 53 The Depa

rtment’s interpre tation of the Act clea rly meets due proc es s re qu i re m ents beca use a contra ctor acc used of viola t i n g t h e Act is aff orded all of the due proce ss protec tions contained in the Code of C i v i l P ro cedure (735 I L CS 5/1-101 to 22-105 (West 2010)) and the Code of Criminal Procedur e of 1963 (725 I L CS 5/1 0 0 -1 t o 1 2 6 -1 (West 2010)) befor e he or she can be deprive d of life, liberty
, or proper ty

. Acc ording ly
, we aff

irm the circ uit court’s decision, holding that the Act is not fac ially unconstitutional under the due
proce ss clauses of

the United States and I llinois Constitutions.

¶ 54 I I I

. ¶ 55 Vagueness/Unlaw ful Dele g ation of L eg islative Power ¶ 56 The nex t argument the pl aintiffs raise is that the Act is uncons t i tutionally vague under the due proce ss clause s of the United States and I llinois Constitutions. U.S. Const., amend. XIV; I ll. Const. 1970, art. I
, § 2. The plaintiffs also argue t h at t h e s t atut e’s criteria for nonemploy ees are so vague, indefinite, and uncer tain that they impermissibly deleg ate leg islative power to the Depa rtment

. S ee I ll. Const. 1970, art. I I
, § 1 (“N o branc h shall

-11-exercise power s proper ly belong ing to another .”). We disag ree with the plaintiffs’ asser tions. ¶ 57 T h e i s s ue of vagueness as it relates to due proce ss and th e qu es t i o n o f u n l aw fu l deleg ation of leg islative authority are issues that are intertwined. People v. Gurell
, 98 I ll. 2d 194, 210, 456 N.E.2d 18, 25 (1983). A s t atut e is unconstitutionally vague if it does not provide sufficie nt standards to guide the administrative body in the exercise of its functions. Id

. A statute must be sufficie ntly clea r to (1) provide people of ordinary intelligenc e with

rea sonable opportunity to under s t and what conduct it prohibits so that one may act

acc ording ly and (2) provide rea sonable standards to r estrict the discretion of g overnme ntal authorities who apply the law. Owens v. Departme nt of Human Rights
, 403 I ll. App. 3d 899, 928, 936 N.E.2d 623, 647 (2010)

. ¶ 58 W i t h re s p ec t to unlawful deleg ation of leg islative power , the statute in question mus t identify three fac tors: (1) the persons or activities potent i all y subject to reg ulation, (2) the harm soug ht to be preve nted, and (3) the g ener al means available t o t h e administrator to preve nt the identified harm. Gurell
, 98 I ll. 2 d at 210-11, 456 N.E.2d at 25. “While the leg islature cannot deleg ate its leg islative power to deter mine what the law should be, it may deleg ate the a

uthority to execute the law.” East St. Louis , 178 I ll. 2d at 423, 687 N.E.2d at 1063. ¶ 59 In the prese nt case , the Act is neither unconstitutionally vague nor an unlawful de leg ation of leg islative po we r. T h e statute clea rly define s the persons subject to its regulation. 820 I L CS 185/5 (West 2010). It contains d et ailed standards to guide the Depa rtment and the circ uit court in deter

mining wh ether a contra ctor has misidentified an employ ee as an independe nt contra ctor. 820 I L CS 185/10 (West 2010). The languag e of the Act provides a contra ctor of rea sonable intelligenc e the opportunity to understand what conduct it prohibits and is specific enough to restrict arbitra ry and discriminatory enfor ceme nt by the Depa rtment. 820 I L CS 185/20 (West 2010). The harm soug ht to be preve nted by the Act is clea rly define d (820 I L CS 185/ 3 (West 2010)) and is a lso evident from its provisions. ¶ 60 As noted above, the Depa rtment’s role under the Act is limit ed to an investigative role. Its enfor ceme nt power s are limit ed to either a settlement with the contra ctor or the filing of

a de novo court proce eding in which it has the burden of proving a violation of the Act. I f the Depa rtment proves a violation, the fines, sanc tions, and remedie s that the circ uit court ca n order are spelled out in section 25 of the Act. 820 I L CS 185/25 (West 2010). This leg islative scheme sets out sufficie nt standards and is not an improper deleg ation of leg islative authority or unconstitutionally

vague. ¶ 61 Section 10(a) of t he Act states t hat “an individual per fo rm ing service s for a contra ctor is de emed to be an employ ee of the employ er except as provided in subse ctions (b) and (c) of this Section.” 820 I L CS 185/ 10(a) (West 2010). Subsection (b) pr ovides that an
“indi v i du al perf

orming service s for a contra ctor is deeme d to be an employ ee of the
contra ctor unless it is shown that: (1) the individual has been and will continue to be fre e from control or direc tion

over the perf

ormanc e o f the service for the contra ctor, both under the individual’s
contra ct of ser

vice a nd in fac t; (2) the service perf

ormed by the individual is outside the usual course of service s

-12-perf ormed by the contra ctor; and (3) the individual is enga g ed in an independe ntly established trade
, occupation, profe ssion or business; or (4) the individual is deeme d a leg itimate sole proprietor o r partne rship under subsection (c ) of this Section.” 820 I L CS 185/ 10(b) ( West 2010). ¶ 62 Subsection (c) provides that the

“sole proprietor or partne rship perf orming service s for a contra ctor as a subcontrac tor is deeme d leg itimate if it is s hown that: (1) the sole prop ri et o r o r partne rship is perf orming the service fre e from the direc tion or control over the means and manner of providing the service
, subject only
to the rig ht of the contra ctor for whom the service is provided to specify the desired result; (2) the sole proprietor or partne rship is not subject to canc ellation or destruction
upon sever ance of the re lationship with t he contr actor ; (3) the sole proprietor or partne rship has a substantial investment of capital in the sole proprietor ship or partners h i p beyond ordinary tools and equipment and a persona l vehicle; (4) the sole proprietor or partne rship owns the capital g oods and g ains the profits and bea rs the losses of the sole proprietor ship or partne rship; (5) the sole proprietor or partne rship makes its service s available to the g ener al public or the business community on a continuingbasis; (6) the sole proprietor or part nership includes service s rende red on a Fe dera l Income Tax Schedule a s an indepe ndent business or prof ession; (7) the sole proprietor

or par tnership per forms ser

vices for the contra ctor under the sole propr ietorship’s or pa rtnership’s na

me; (8) when the s er vices being provided require a license or permit, the sole proprietor or partne rship obtains and pay s for the license or permit in the sole proprietor ship’s or par

tnership’s name ; (9) the sole proprietor or partne rship furnishes the tools and equipment nece ssary to provide the ser

vice; (10) i f n ec essary , the sole proprietor or partne rship hires its own employ ees without contra ctor approva l, pay s t h e empl oy ees without reimburse ment from the
contra ctor a

nd repor ts the employ ees’ income to the Interna l Revenue Ser vice; (11) the contra ctor does not repr esent the sole proprietor ship or partne rship as an employ ee of

the contra ctor to its customers; and (12) the sole proprietor or partne rship has the rig ht to perf orm simil ar service s for others on whateve r basis and whene ver it chooses.” 820 I L CS 185/10(c) (West 2010). ¶ 63 The languag e of section 10 provides contra ctors with sufficie nt guidance to allow them
to meet the require ments of the Act. A person working for a contra ctor can qualify as an

-13-independe nt contra ctor under subsection (b) or subsection (c)

. The contra ctor can deter mine, prior to enter ing into a subcontrac t, whether a person perf orming work qualifies as an i n depende nt contra ctor under either section. I f not, then the person has to be treat ed as an employ ee. Although some of the information in subsection (c) is solely within the control of the potential subcont ra ct or at the time the contra cts are enter ed into, the plaintiffs do not explain why a contra ctor cannot require the subcontrac tor to furnish the information befor e enter ing into the subcontrac t to ensure that he or she is proper ly classified as either an independe nt contrac tor or an e mploy ee. ¶ 64 Acc ording ly
, the Act provides contra ctors of ordinary i n t el l i gen ce with a re asonable opportunity to understand what conduct i t p ro h i b i ts and provides rea sonable standards to restric t the discretion of g overnme ntal authorities who apply the law. Be cause the languag e of the statute de fines the individuals who are potentially subject to its regulation, the harm it seeks to preve nt, and the g ener al means available to the De p ar t m ent to preve nt the identified harm, it does not improperly deleg ate leg islative authority and i s not unconstitutionally

vague.

¶ 65 IV. ¶ 66 Equal Protection/Special L eg islation ¶ 67 The plaintiffs’ final arguments are that the Act violates the specia l le g islation c lause of
t h e I llinois Constitution and the equal protec tion clause s of the United States and I llino i s Constitutions. ¶ 68 “The specia l le g islation c lause [(I ll. Const. 1970, art. IV, § 13)] expressly prohibits the Gene ral Assembly from confe rring a specia l benef it or exclusive privileg e on a person or a g roup of perso n s t o t h e exclusion of others simil arly situated.” Best v. Taylor Machine W orks
, 179 I ll. 2d 367, 390-91, 689 N.E.2d 1057, 1069 (1997). The specia l leg islation clause is desig ned to preve nt arbitra ry classifications by the leg islature that discriminate in favor of

a selec t g roup without a sound, rea sonable basis. Id

. at 391, 689 N.E.2d at 1069-70. A specia l leg islation challeng e and an equal protec tion challeng e are g ener ally judge d under the same standards. Id. at 393, 689 N.E.2d at 1070. ¶ 69 The equal protec tion clause s in the fede ral and I llinois constitutions (U.S. Const., ame nd. XIV; I ll. Const. 1970, art. I
, § 2) require the g overnme nt to trea t simil arly situated individuals in a simil ar manner

. Byrd v. Hamer
, 408 I ll. App. 3d 467, 490, 943 N.E.2d 115, 136 (2011). The analy sis is the same under both the United States and I llinois Constitutions. Jacobson

v. Departme nt of Public A i d
, 1 7 1 I ll. 2d 314, 322, 664 N.E.2d 1024, 1028 (1996). The
guara ntee of equal protec tion “does not prec lude the State from enac ting legi s l at i o n that draw s distinctions betwee n differ ent cate g ories of people, but it d o e s p r o h ib it the g overnme nt from acc ording differ ent treatment to person s wh o h av e been place d by a statute into differ ent classes on the basis of cr iteria wholly unrelated to the purpose of the leg islation.” Id

. ¶ 70 T h e p ar t i es agre e that the court is to employ a rational basis revie w in revie win g t h e plaintiffs’ equal protec tion challeng e. See Clark v. Jete r , 486 U.S. 456, 461 (1 9 8 8). To withstand rational basis scr utiny , the statutory

classification mustbe rationally rela ted t o a

-14-leg itimate g overnme nt pur pose. Id

. Under the rational basis test, we g ive high defe renc e to the judgme nts made by the leg islature. Village of Lake Villa v. Stokovich
, 2 1 1 I l l. 2d 106, 125, 810 N.E.2d 13, 26 (2004). “So long as there is a conce ivable basis for finding the statute rationally rela

ted to a leg itimate state interest, the law must be upheld.” Id. at 126, 810 N.E.2d at 26. The “standa rds used to deter

mine an equal protec tion claim are also applicable wh en ev al u ati ng a claim that the statute constitutes specia l leg islation under our I llinois constitution.” American National Bank & Trust Co. of Chicago v. Anchor Organization for Health Maintenanc e , 210 I ll. App. 3d 418, 425, 569 N.E.2d 128, 133-34 (1991)

. ¶ 71 The plaintiffs argue that t h e Ac t i s u n co n s t i tutional beca use it cre ates diff

ere ntial
treatment of labore rs in the construction industry as opposed to labore rs in other fields, and this differ ential treatment is not rationally related to the g oals of the leg islation. We disag ree and believe that the statute passes c onstitut ional muster under equal pr otection and specia l leg islation standards. ¶ 72 As noted above, the Act was e n a c ted “to addre ss the prac tice of misclassifying e mploy ees

as independe nt contra ctors.” 820 I L CS 185/3 (West 2008). The State has a leg itimate interest in preve n t i n g employ ee misclassification beca use employees who are misclassified as independe nt contra ctors lose the benef it of wo rk er protec tion laws, including minimum
wag e, discrimination, a

nd occupa

tional sa fety laws. In addition, the State has an interest in the reve nue it loses from the misclassif i ca t i o n, including unemploy ment insurance contributions and pay

roll taxes. The State also has an interest in seeing that contra ctors who
proper ly classify employ ees are not at a competitive d i s ad vantag e to contra ctors who misclassify employ ees. Th e p rovi sions of the Act are rationally rela ted to these leg itimate interests. ¶ 73 The Act cre ates an incentive f o r c o ntra c to r s to proper ly classify individuals as employees. Although the statute is limit ed to the construction industry
, this limit ation does not establish

an equal protec tion or specia l leg islation violation. The leg islature was no t re qu i red to addre ss misclassification acr oss all industries befor e it could addre ss misclassification in any industry

. Equal protec tion does not require “the leg islature to addre ss all are as of a problem that it seeks to ref

orm.” In re Petition to Adopt O.J.M

. , 293 I ll. App. 3d 49, 64, 687 N.E.2d 113, 123 (1997). The leg islature is entitled to implement refor m one step at a

time. Harris

v. Manor Healthcare Co r p

. , 1 1 1 I ll. 2d 350, 372-73, 489 N.E.2d 1374, 1384 (1986). The Gene ral Assembly co u l d rationally believe that statutory intervention was more urg ently neede d for e mploy ees in the c onstruction industry

. Id. at 372, 489 N.E.2d at 1384. ¶ 74 Whether the issue of misclassification i s most preva lent in the construction industry is a poli cy decision t hat we must defe r t o the l eg islature because “we arenot conce rned w ith the wisdom of the statu t e o r even if it is the best means to achie ve the g oal, but only with whether there i s an y s o rt o f conceivable basis for finding the statute rationally rela ted t o a leg itimate state interest. ” People v. Gale
, 376 I ll. App. 3d 344, 359, 876 N.E.2d 171, 186 (2007). In addition, the leg islature “ ‘may confine its restrict i ons to those classes of case s where the need is deeme d to be the clea rest.’ ” Chicago Real Estate Board v. C i t y o f Chicago
, 36 I ll. 2d 530, 545, 224 N.E.2d 793, 803 (1967) (quoting Gadlin v. Auditor of Public Acc ounts , 414 I ll. 89, 98, 110 N.E.2d 234, 238 (1953) ). Ac cording ly , in the prese nt

case , the leg islature was fre e to limit the application of the Act to the construction industry

-15-without offe nding the equal protec tion clause s o r v iolating the prohibition ag ainst specia l

leg islation. W

illiamson v. L ee Optical of Okl a h oma, Inc.
, 348 U.S. 483, 489 (1955) (“The leg islature may selec t on e p h as e o f o ne field and apply a reme dy there
, neg lecting the others.”)

.

¶ 75 CONCLUSI ON ¶ 76 For the fore g oing rea sons, we aff i rm t he circ uit court’s judgme nt g ranting a summary judgme nt in favor of

the Depa rtment.

¶ 77 Affir

med.

-16-