The Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq.

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1 The Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. Seminar Topic: This program defines the Wage Payment Act and describes, in detail, how it requires every employer to pay full and final compensation to separated employees no later than the next regularly scheduled payday. The program examines the employer and employee relationship and also looks at the two types of employers as defined in Section 5 and Section 13 of the Act. Attention is also given to the process of bringing claims A primary focus of the program is Title 56: Labor and Employment. Chapter 1 of the Title is discussed, specifically Subchapter b which goes over regulations of working conditions. This program provides a broad definition for final compensation and also highlights specific important sections providing the necessary knowledge to make and defend unpaid wages under the Illinois Wage Payment and Collection Act. Page 1

2 Copyright 2015 Printed in the United States of America. All rights reserved. No part of this monograph may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, except for citation within legal documents filed with a tribunal, without permission in writing from the publisher. Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation. The Apex Jurist, is Published by ApexCLE, Inc South Emerson St., Suite 248 Mount Prospect, Illinois Toll Free South Spring Street Springfield, Illinois Toll Free Ordering Information: Copies of this monograph may be ordered direct from the publisher for $24.95 plus $4.25 shipping and handling. Please enclose your check or money order and shipping information. For educational, government or multiple copy pricing, please contact the publisher. Library of Congress Cataloging-in-Publication Data ApexCLE, Inc. 1. ApexCLE, Inc. 2. Law-United States Guide-books. 3. Legal Guide 4. Legal Education. Page 2

3 About The Author Frederic ("Ric") Goodwill is a solo practitioner and a trial, appellate and transactional attorney with twenty-five years of experience in courtrooms and boardrooms across the country. His clients include businesses and individuals with Labor, Employment, Real Estate, Foreclosure, Elder Law and Commercial claims and disputes. Mr. Goodwill obtained a B.A. in Political Science from the University of Massachusetts, Amherst, a J.D. from New England Law School, and a Master s Degree in Environmental Law, cum laude, from Vermont Law School. Mr. Goodwill is licensed to practice in Illinois (1993) and Massachusetts (1992) and is admitted to practice before the Northern and Central Districts of Illinois, and in the U.S. Court of Appeals for the 7th Circuit, the Eastern District of Wisconsin, and the U.S. District Courts for the Eastern, Western and Northern Districts of Texas. He has been admitted to practice pro hac vice in state courts around the country. Mr. Goodwill is a member of the Chicago Bar Association and American Bar Association. Mr. Goodwill is married, the father of three children, an AYSO certified soccer coach, an Archdiocese of Chicago certified volunteer and a volunteer baseball coach with the Evanston Baseball & Softball Association. Author s Address: Author s Website: Author s Mailing Address: Author s Phone Number: fgoodwill@fcg2law.com P.O. Box 6310 Evanston, IL (312) (847) Page 3

4 Full and Final Compensation The Wage Payment Act requires every employer to pay full and final compensation to separated employees no later than the next regularly scheduled payday. 820 ILCS 115/5. Elements of the Claim To establish a Wage Payment Act claim, a plaintiff must show (1) that the defendant was an employer under the Act; (2) the parties entered into an employment contract or agreement ; and (3) the plaintiff was due final compensation. Catania v. Local 4250/5050 of the Communications Workers of America, 359 Ill.App.3d 718 (1st Dist. 2005). Employer/Employee Relationship Employer includes any person or business entity, including employment placement agencies. 820 ILCS 115/2. Employee expansively includes an individual permitted to work by an employer in an occupation. Id. Caselaw extends the Act s coverage to executives and corporate management personnel. Anderson v First American Group of Companies, Inc, 353 Ill App 3d 403, 411 (1st D 2004). Page 4

5 Independent Contractors 820 ILCS 115/2 - "employee" shall not include any individual: 1. who has been and will continue to be free from control and direction over the performance of his work, both under his contract of service with his employer and in fact; and 2. who performs work which is either outside the usual course of business or is performed outside all of the places of business of the employer unless the employer is in the business of contracting with third parties for the placement of employees; and 3. who is in an independently established trade, occupation, profession or business. Misclassification of employees as independent contractors State task forces have been formed to crack down on businesses; Class action lawyers targeting companies, seeking unpaid employee benefits and overtime for workers who are not treated as employees. Final Compensation Final compensation broadly includes wages, salaries, earned commissions and bonuses and An employee is not entitled to severance pay, sick pay or holiday pay upon separation, unless the employer has promised the pay in an employment contract or other agreement. 820 ILCS 115/2. See also, Catania v. Local 4250/5050 of the Communications Workers of America, 359 Ill.App.3d 718 (1st Dist 2005). Page 5

6 Personal Liability of Officers/Directors Corporate officers or agents who knowingly permit a violation of the Act, are subject to personal liability (820 ILCS 115/13). Two Kinds of Employers The Wage Act distinguishes two kinds of employers : 1) those who are employers by virtue of section 5 of the Wage Act because, by contract or agreement, they owe the employee compensation; and 2) those who are employers by virtue of section 13 of the Wage Act because they are officers or agents who knowingly permit the contractually obligated section 5 employer to withhold the compensation. See Andrews v. Kowa Printing Corp., 217 Ill. 2d 101, (Ill. 2005). Section 5 Employers Where a section 5 employer lacks the ability to pay the compensation, its officers and agents cannot be said to have knowingly permit[ted] the Wage Act violation. See, Elsener v. Brown, 2013 IL App (2d) , 996 N.E.2d 84, 2013 Ill. App. LEXIS 607, 2013 WL (2d Dist. 2013). Section 13 Employers Permission under section 13 implies ability to arrange payment by the section 5 employer; hence, where payment is impossible, permission is impossible. Id IL App (2d) at p. 66. See also, Ashley v. IM Steel, Inc., 406 Ill. App. 3d 222, 242, (3d Dist. 2010) ( a corporation's inability to pay employees eliminates any possibility that the [section 13] employer acted wilfully when failing to compensate employees, thereby negating liability under the [Wage Act]"). Page 6

7 Title 56: Labor and Employment Chapter 1: Department of Labor Subchapter b: Regulation of Working Conditions Part 300 Payment and Collection of Wages or Final Compensation Authority: Implementing and authorized by Section 9 of the Illinois Wage Payment and Collection Act [820 ILCS 115/9] Bringing a Claim Administrative Action Before the Illinois Dept. of Labor. 820 ILCS 115/11. The claimant must file within one year after the wages or final compensation are due. Id. This does not preclude the employee from later pursuing a civil action. Burden Of Proof The Act s Administrative regulation found at 56 ILL. ADMIN CODE (e) provides: The claimant has the burden of proving by a preponderance of the evidence the merits of the claim. Section Personal Liability of Officers and Agents In addition to an individual who is deemed to be an employer pursuant to Section 2 of the Act, any officers of a corporation or agents of an employer who knowingly permit the employer to violate the provisions of the Act shall be deemed to be employers of the employees of the corporation and shall be personally liable for a claimant's wages or final compensation under Section 13 of the Act. As used in Subpart A of this part: Page 7

8 Knowingly means knowledge of the existence of facts constituting the alleged violation, rather than a knowledge of the unlawfulness of the act or omission. Permit means to allow to happen or to fail to prevent. Section Refusal to Pay Wages or Final Compensation The duty to pay wages or final compensation arises out of a contract of employment, an employment policy, or an agreement between the parties. The Department will make a determination in accordance with Subpart F or G as to whether the duty to pay exists. An employer doing business at the time the duty to pay wages or final compensation arises is presumed to have the ability to pay. A willful refusal to pay is a voluntary, conscious and intentional act. An employer who subordinates the wage claims of employees to the claims of other creditors has willfully refused to pay wages or final compensation, in violation of the Act. Section Application The Department will assist an individual in his/her claim for wages or final compensation when: The claim concerns work performed within the State of Illinois, but not when the claim concerns sporadic work performed in Illinois for an employer located outside of Illinois. The claim concerns work performed outside the State of Illinois if the specified employer is located within Illinois or the contract for hire was entered into in this state, but not when the claim is filed by an employee whose permanent work station was outside the State of Illinois and who performed a substantial portion of his/her duties outside Illinois. The claim is filed by an employee whose permanent work station and employer is outside the State of Illinois and who performed a substantial portion of his/her duties outside of Illinois when the Page 8

9 claim is within the jurisdiction of a state that has a reciprocal agreement with the Department in accordance with Section 7 of the Act. Section Filing of a Claim An employee may file a complaint with the Department alleging violations of the Act by submitting 2 signed copies of a completed wage claim application on the form provided by the Department and by submitting 2 copies of all supporting documentation. Complaints shall be filed within one year after the wages or final compensation were due. Applications shall be reviewed by the Department to determine whether there is cause for investigation. The Department will limit its investigation to reviewing the 3 years prior to the date the complaint was filed. The Department will seek to verify the accuracy of the employer's address, as provided by the claimant, using one or more of the following: o Address on file with the Department o Address on file with the Secretary of State o Address on file with any other State agency with which the employer has the duty to maintain a current address; or o Any other address the Department reasonably calculates to be a true and current address for the employer. The Department will notify the employer of the existence of the claim. Page 9

10 Section Application of the Rules of Evidence, Pleadings and Procedures in an Informal Investigative Hearing When a Hearing Officer makes an investigation or conducts a hearing, the Hearing Officer is not bound either by the rules of evidence or by any technical or formal rules of pleading or procedure. Section Review of Hearing Officer Determination Requests for review of a Hearing Officer's determination must be made in writing to the Department's Chicago office, within 15 days after the date of the Department's determination. The request shall be prominently marked "REQUEST FOR REVIEW" on both the letter and the envelope. The request must set forth the reasons why the party believes the Hearing Officer misconstrued the evidence or misapplied the law to the facts, and any newly discovered evidence the party could not have discovered by the hearing date or, if applicable, why the party failed to attend the informal hearing. The Department may consider untimely submissions by either party upon written request by the party, made within a reasonable period of time, if there is a showing that the delay was occasioned by good cause beyond the party's control. Examples of good cause include the non-receipt or delayed receipt of mail, accident, illness or other circumstances beyond the party's control. Page 10

11 Damages/Attorneys Fees Employee damages include unpaid compensation plus 2% of unpaid amount per month and attorneys fees. 820 ILCS 115/14. Section Statutory Damages Due to the Employee: If the Department determines that an employer owes wages or final compensation to the claimant, statutory damages shall be assessed at 2% of the amount owed, multiplied by the number of months that elapse between the time of initial underpayment and the time the demand or order is paid. The total amount due to the employee, including the unpaid wages and/or final compensation plus statutory damages, shall be due to the employee within 15 days after the demand or order becomes final. Section Non-Waivable Administrative Fee to the Department If the Department determines that an employer owes wages or final compensation to the claimant, it shall assess: A $250 non-waivable administrative fee payable to the Department and make the administrative fee against the employer a part of the determination. The administrative fee shall be due to the Department within 15 days after the demand or order becomes final. Page 11

12 Section Additional Penalties Due to the Department and Employee If an employer fails to comply with the demand or order within 15 days after the demand or order becomes final: The employer shall also be liable to the Department for a statutory penalty in the amount of 20% of the amount owed and Shall be additionally liable to the claimant for a statutory penalty in the amount of 1% per day of the amount owed. The Department may periodically seek to amend the demand or final order to incorporate these penalties. Bringing a Claim Civil Suit- in the Circuit Court in the County where the Act violation occurred. 820 ILCS 115/4 and 820 ILCS 115/ year limitations period for claims based on the Act. 735 ILCS 5/ Rules of evidence, pleading and procedure apply. Election of Remedies Section 5/2-619(a)(3)provides that a defendant may file a motion for dismissal of an action on the ground that there is another action pending between the same parties for the same cause. Skipper Marine Elecs., Inc.v. Cybernet Marine Products, 200 Ill. App. 3d 692, 694, 558 N.E.2d 324,325 (1990). Page 12