AUTHORITY: Implementing and authorized by Article 10 of the Illinois Administrative Procedure Act [5 ILCS 100/Art. 10].

SOURCE: Adopted at 25 Ill. Reg. 899, effective January 5, 2001; amended at 30 Ill. Reg. 10424, effective May 24, 2006; amended at 35 Ill. Reg. 10134, effective June 7, 2011; amended at 38 Ill. Reg. 17631, effective August 15, 2014.

SUBPART A: GENERAL PROVISIONS

 

Section 120.100  Applicability

 

This Part shall apply to all administrative hearings concerning contested cases conducted under the jurisdiction of the Director of Labor and/or the Department of Labor, except for formal hearings conducted  under the Wage Payment and Collection Act [820 ILCS 115].  This Part shall apply to all formal hearings before the Department, unless the application of this Part would cause delay or otherwise affect the rights of the parties.  The review procedures in Sections 120.640 and 120.650 are effective for any case pending on August 15, 2014 in which testimony was heard and evidence was received into the record, but for which a decision had not been issued from the ALJ, on that date.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.110  Definitions

 

            "Administrative Law Judge" or "ALJ" means an attorney, licensed to practice law in the State of Illinois, presiding over an administrative hearing convened under this Part.

 

            "Contested case" means an adjudicatory proceeding (not including ratemaking, rulemaking, or quasi-legislative, informational, or similar proceedings) in which the individual legal rights, duties, or privileges of a party are required by law to be determined by an agency only after an opportunity for a hearing. [5 ILCS 100/1-30]

 

            "Day" means a calendar day.

 

            "Department" means the Department of Labor.

 

            "Director" means the Director of the Department of Labor or the Director's designee.

 

            "Document" means pleading, notice, motion, affidavit, memorandum, brief, petition, or other paper or combination of papers required or permitted to be filed.

 

            "Evidence" means those matters considered evidence under the Illinois Rules of Evidence [735 ILCS 5/Art. VIII].

 

            "IAPA" means the Illinois Administrative Procedure Act [5 ILCS 100].

 

            "Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party. [5 ILCS 100/1-55]

 

            "Person" means any individual, partnership, corporation, limited liability company, association, governmental subdivision, or public or private organization of any character other than an agency of State government.

 

"Statement" means a written statement made by a witness and signed or otherwise adopted or approved by the witness, or a stenographic, mechanical, electrical or other recording, or a transcription of the recording that is a substantially verbatim recital of an oral statement made by the witness to an agent of the person obliged to produce the statement and recorded contemporaneously with the making of this oral statement.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.115  Non-Applicability of the Rules (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.120  Burden and Standard of Proof

 

The party applicant or complainant shall have the burden of proof. The standard of proof for any hearing conducted under this Part shall be the preponderance of the evidence.

 

Section 120.130  Filing and Service

 

a)         Documents and requests permitted or required to be filed with the Director or the Department in connection with a hearing shall be addressed and mailed or delivered to the Department's Chicago office, 160 N. LaSalle, C-1300, Chicago IL 60601. The Department's Chicago office is open from 8:30 a.m. to 5:00 p.m. Monday through Friday, except for national and State legal holidays. When the Act or this Part requires the filing of a motion, brief, exception or other paper in any proceeding, the document must be received by the Department or the officer or agent designated to receive that matter before the official closing time of the receiving office on the last day of the time limit, if any, for the filing or extension of time that may have been granted.  Filings received after 5:00 p.m. will be considered filed on the following business day..

 

b)         In computing any period of time prescribed or allowed by this Part, the day of the act, event or default after which the designated period of time begins to run is not to be included. The period of time shall run until the end of the last day, or the next following business day if the last day is a Saturday, Sunday or legal holiday.  A request for an extension of time to file a document shall be filed no later than 5:00 p.m. at the Chicago Office on the date on which the document is due. Requests for extensions of time filed within three days after the due date must be grounded upon circumstances not reasonably foreseeable in advance.

 

c)         Documents may be filed with the Department by certified or First Class mail, by messenger service, private delivery service, or personally at the Department's Chicago office. Filing by electronic transmission, such as telefax machine or electronic mail (e-mail), will not be accepted, except when specifically requested or ordered by the ALJ.

 

d)         The date of service shall be the day when the matter served is deposited in the United States mail, or is deposited with a private delivery service that will provide a record showing the date the document was tendered to the delivery service, or is delivered in person. When service is made by facsimile transmission or e-mail, the date of service shall be the date on which transmission is sent. The date of filing shall be the day when the matter is received by the Department as provided by subsection (b). Service of documents by a party on other parties may be made personally, by certified mail, regular mail, e-mail (if the document was filed electronically) or private delivery service.  Unless otherwise specified in this Part, service on all parties shall be made in the same manner as that utilized in filing the document with the Department, or in a more expeditious manner; however, when filing with the Department is done by hand, the other parties shall be promptly notified of that action by telephone or electronic mail, followed by service of a copy in a manner designed to insure receipt by the close of the next business day following the filing with the Department.

 

e)         When service is made by certified mail, the return post office receipt shall be proof of service. When service is made by a private delivery service, the receipt from that service showing delivery shall be proof of service. However, these methods of proof of service are not exclusive. Any sufficient proof may be relied upon to establish service.

 

f)         Failure to comply with the requirements of this Section relating to timeliness of service on other parties shall be a basis for either:

 

1)         rejection of the document; or

 

2)         withholding or reconsidering any ruling on the subject matter raised by the document until after service has been made and the served party has had reasonable opportunity to respond.

 

g)         The person or party serving the papers or process on other parties shall submit to the Department a written statement of service stating the names of the persons served and the date and manner of service. Proof of service shall be required by the Department only if, subsequent to the receipt of the statement of service, a question is raised with respect to proper service.

 

h)         Whenever this Part requires or permits the service of pleadings or other papers upon a party, service shall be deemed satisfied by service on the attorney or other representative of the party who has entered a written appearance in the proceeding on behalf of the party. If a party is represented by more than one attorney or representative, service upon any one of those persons, in addition to the party, shall satisfy this requirement. Service by the Department or its agents of any documents upon any attorney or other representative may be accomplished by any means of service permitted by this Section, including regular mail.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.140  Form of Papers Filed

 

a)         A document shall clearly show the title of the subject proceedings, nature of the document (i.e., motion, petition), the relevant statute that relates to the proceeding, the case number and the ALJ who is hearing the matter;

 

b)         Documents shall be typewritten or reproduced from typewritten copy on 8½ by 11-inch plain white paper, shall have margins no less than one inch on each side, shall be in a typeface no smaller than 12 point type, and shall be double spaced (except that quotations and footnotes may be single spaced). Carbon copies shall not be filed and will not be accepted. Nonconforming papers may, at the Director's or ALJ's discretion, be rejected;

 

c)         Exhibits, when possible, shall be reduced or enlarged to conform to the size requirements of subsection (b).  A party is not prohibited from enlarging an exhibit at hearing for demonstrative purposes as long as the exhibit is reduced to the size requirement in this subsection (c) for the record; and

 

d)         One copy of each document filed shall be signed by the party or by its authorized representative or attorney. All documents shall bear the business address, e-mail address, fax number, if any, and telephone number of the attorney filing the document, or of the party who appears on his or her own behalf.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.150  Computation of Time (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.160  Referral to Illinois Supreme Court Rules and Code of Civil Procedure (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 17631, effective August 15, 2014)

SUBPART B: NOTICE OF HEARING, SERVICE AND APPEARANCE

 

Section 120.200  Notice of Hearing

 

a)         All hearings shall be initiated by the Director's issuance of a written Notice of Hearing, which shall be served upon all known parties to the hearing.  Hearings under the Child Labor Law [820 ILCS 205] shall take priority over all other hearings.

 

b)         Service shall be complete when the Notice of Hearing is served:

 

1)         in accordance with how a summons is served on a person under Part 2 of the Civil Practice Law [735 ILCS 5/Art. II, Part 2];

 

2)         by certified U.S. Mail, postage prepaid, addressed to the last known address of the person involved not less than 15 days before the day designated for the hearing; or

 

3)         by U.S. mail, postage prepaid, to the address on file with the Department.

 

c)         A Notice of Hearing served under this Part shall include:

 

1)         The time, place and nature of the hearing;

 

2)         The legal authority and jurisdiction under which the hearing is to be held;

 

3)         A reference to the particular Section of the statutes and rules involved;

 

4)         A short and plain statement of the matters asserted, except when a more detailed statement is otherwise provided for by law; and

 

5)         A designation of an ALJ to preside over the hearing and the address of the ALJ.

 

d)         A copy of a Notice of Hearing served pursuant to this Part shall be referred to the ALJ designated in the Notice, together with the original complaint, application or report and any written request for a hearing filed pursuant to this Part.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.210  Manner of Service (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.220  Appearance

 

a)         Any person entitled to participate in proceedings may appear as follows:

 

1)         A natural person may appear on his or her own behalf or by an attorney at law licensed and registered to practice in the State of Illinois.

 

2)         A corporation may appear through any officer designated or authorized to act on behalf of the corporation, employee, or representative, or by an attorney at law licensed and registered to practice in the State of Illinois.

 

3)         Any other person, including the State of Illinois, its agencies and all political subdivisions, may appear through any officer, employee, or representative, or by an attorney licensed and registered to practice in the State of Illinois.

 

b)         Attorneys not licensed and registered to practice in the State of Illinois may request to appear on a particular matter by filing a motion pro hac vice with the Administrative Law Judge.

 

c)         An attorney appearing in a representative capacity shall file a separate written notice of appearance with the Administrative Law Judge, together with proof of service and notice of filing on all parties.  The appearance shall contain the name of the party or parties, the attorney representatives, the attorney's business address, telephone number, fax number and ARDC number if licensed in the State of Illinois.

 

d)         An attorney who has appeared in a representative capacity and who wishes to withdraw from that representation shall file a notice of withdrawal with the Administrative Law Judge, together with proof of service and notice of filing on all parties.

 

(Source:  Amended at 30 Ill. Reg. 10424, effective May 24, 2006)

SUBPART C: ANSWER, MOTION, JOINDER AND INTERVENTION

 

Section 120.300  Answer

 

a)         Any party receiving a complaint and Notice of Hearing shall file a written answer to the complaint not later than 15 days after receiving the complaint and Notice of Hearing.  The respondent shall specifically admit, deny or explain each of the facts alleged in the complaint. However, if the respondent is without knowledge, the respondent shall so state and that statement operates as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the answer states that the respondent is without knowledge, shall be deemed to be admitted to be true and shall be so found by the ALJ, unless good cause to the contrary is shown.

 

b)         When a hearing is scheduled in a matter in which a complaint is not issued, an answer shall not be required and the matter shall proceed under this Part.

 

c)         An original and one copy of the answer shall be filed with the ALJ.  Immediately upon the filing of the answer, the respondent shall serve a copy on the Director and other parties. An answer of a party represented by counsel or non-attorney representative shall be signed by at least one attorney or non-attorney representative of record in his or her individual name, whose address shall be stated. A party who is not represented by an attorney or non-attorney representative shall sign his or her answer and state his or her address. Except when otherwise specifically provided by rule or statute, an answer need not be verified or accompanied by affidavit. The signature of the attorney or non-attorney party representative constitutes a certificate by him or her that he or she has read the answer; that, to the best of his or her knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay. If an answer is not signed or is signed with intent to defeat the purpose of this Section, it may be stricken as a sham and false and the action may proceed as though the answer had not been served. For a willful violation of this Section an attorney or non-attorney party representative may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.

 

d)         The ALJ before whom the hearing is scheduled may by written order extend the time within which the answer shall be filed.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.301  Motions

 

a)         All motions made before or during a hearing shall be made to the ALJ and, unless made orally on the record during a hearing or unless the ALJ directs otherwise, a motion shall be in writing and shall be accompanied by any affidavits or other evidence relied upon and, when appropriate, by a proposed order.  Two copies of all motions shall be filed with the ALJ, and at least one copy shall be served on each additional party, if any, to the hearing.

 

b)         Within 7 days after service of a written motion or other document, or other period as the ALJ may allow, a party may file a response in support of or in opposition to the motion and, if necessary, accompanied by affidavits or other evidence.  A party filing a motion has the right to request from the ALJ leave to file a reply to a response.

 

c)         No oral argument will be heard on a motion unless the ALJ directs otherwise.  A written brief may be filed with a motion or an answer to a motion stating the arguments and authorities relied upon.  The brief will be no longer than 15 pages in length unless, prior to the filing date, leave is granted to file a brief greater than 15 pages.

 

d)         A written motion filed prior to a hearing will be disposed of by written order and on notice of all parties, except for motions made at or after the opening of a hearing, in which case the ALJ shall announce his or her ruling orally on the record at the hearing.  All motions, rulings and orders shall become a part of the record, except that rulings on motions to revoke subpoenas shall become a part of the record only upon the request of the party aggrieved.  Except as provided in subsection (i), rulings by the ALJ on motions and/or objections, and orders in connection with those motions and/or objections, shall not be appealed directly to the Director but shall be considered by the Director in reviewing the record if exception to the ruling or order is included in the statement of exceptions filed with the Director pursuant to Sections 120.640 and 120.650.

 

e)         The ALJ shall rule upon all motions, except that the ALJ shall have no authority to dismiss or decide a hearing on the merits without granting all parties to the proceeding a right to be heard in accordance with the procedures for motions in this Section, which shall constitute the record.

 

f)         Unless otherwise ordered, the filing of an answer or motion shall not stay the proceeding or extend the time for the performance of any act.

 

g)         A party may participate in the proceeding without forfeiting any jurisdictional objection, if the objection is made within 10 days after the receipt of notice of hearing.  Any party may file a response to the objection within 10 days after service. The right to make motions or to object to rulings upon motions shall not be deemed waived by the filing of an answer or by other participation in the proceedings before the ALJ.

 

h)         A party has a right to file an emergency motion setting forth why an emergency exists and the ALJ can deny the emergency motion solely on the basis that the motion did not demonstrate that an emergency exists.

 

i)          If any motion in the nature of a motion to dismiss or for summary judgment is granted by the ALJ before filing his or her final decision in a matter scheduled for hearing, any party may obtain a review of the granting of the motion by filing a request with the Director stating the grounds for review and, immediately upon filing, shall serve a copy of the request on the other parties. Unless the request for review is filed within 15 days from the date of the order of dismissal or granting of summary judgment, the decision of the ALJ shall become final.

 

j)          A party has the right to appeal any order issued by an ALJ during the pendency of a proceeding.

 

(Source:  Added at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.310  Consolidation and Severance of Matters

 

In the interest of convenient, expeditious and complete determination of matters, the Administrative Law Judge may consolidate or sever hearing proceedings involving any number or parties or issues, and may join or sever parties for the complete administration of justice.

 

(Source:  Amended at 30 Ill. Reg. 10424, effective May 24, 2006)

 

Section 120.320  Intervention

 

a)         Permission to Intervene

 

1)         Upon timely written application, the ALJ may, in his or her discretion, permit any party to intervene in a hearing proceeding, subject to the necessity for conducting an orderly and expeditious hearing, when:

 

A)        The party is so situated that he or she may be adversely affected by a final order arising from the hearing;

 

B)        The party requesting intervention is a necessary party to the hearing proceeding; or

 

C)        A party's claim or defense and the main action have a question of law or fact in common.

 

2)         In exercising discretion under this subsection (a), the ALJ shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

 

b)         Two copies of a petition for intervention shall be filed with the ALJ, and one copy shall be served on each party.

 

c)         An intervenor shall have all the rights of an original party subject to the order of the ALJ, except that the ALJ may, in his or her order allowing intervention, provide that the party shall not raise issues that might more properly have been raised at an earlier stage of the proceeding, that the party shall not raise new issues or add new parties, or that in other respects the party shall not interfere with the conduct of the hearing, as justice and the avoidance of undue delay may require.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.330  Postponement or Continuance of Hearing

 

A hearing may be postponed or continued for due cause by the Administrative Law Judge upon his or her own motion or upon the motion of a party to the hearing. A motion by a party shall set forth facts demonstrating that the request for continuance is not for the purposes of delay. Examples of due cause include the unavailability of the Administrative Law Judge, a witness or a party due to an accident, illness or other circumstances beyond the person's control. Notice of any postponement or continuance shall be given in writing to all parties to the hearing within a reasonable time in advance of the previously scheduled hearing date. All parties involved in a hearing shall attempt to avoid undue delay caused by repetitive postponements or continuances so that the subject matter of the hearing may be resolved expeditiously.

 

(Source:  Amended at 30 Ill. Reg. 10424, effective May 24, 2006)

SUBPART D: PREHEARING CONFERENCES, DISCOVERY AND SUBPOENAS

 

Section 120.400  Prehearing Conferences

 

a)         Upon the ALJ's own motion or the motion of a party, the ALJ may direct the parties or their counsel to meet with the ALJ for a conference to consider:

 

1)         Simplification of the issues;

 

2)         Necessity or desirability of amending documents for purposes of clarification, simplification or limitation;

 

3)         Stipulations and admissions of fact and of contents and authenticity of documents;

 

4)         Limitation of the number of witnesses;

 

5)         Propriety of prior mutual exchange between and among the parties who have prepared testimony or exhibits;

 

6)         Rulings on pre-hearing motions; and

 

7)         Taking such other action and addressing such other matters as may tend to expedite the disposition of the proceedings and to assure a just conclusion.

 

b)         The ALJ shall make an order that recites the action taken at the conference, the amendments allowed to any pleadings that have been filed, and the agreements made between the parties as to any of the matters considered and that limits the issues for hearings to those not disposed of by admissions or agreements.  The order, when entered, controls the subsequent course of the hearing unless modified at the hearing to prevent manifest injustice.  A party may file any objections to a prehearing order to preserve its position for the record.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.410  Discovery

 

a)         General discovery (e.g., deposition, interrogatories or request to produce or admit) shall not be permitted.

 

b)         Disclosure of the following shall be required in accordance with the time periods set forth in this subsection (b) unless otherwise modified by the ALJ in the order issued pursuant to the pre-hearing conference:

 

1)         Unless otherwise ordered by the ALJ at least 21 days prior to the commencement of the hearing, each party shall provide all parties with a copy of any document that it may offer into evidence.  This subsection (b)(1) shall not require any party to provide copies of documents already provided.  Each party shall provide newly discovered documents, except for witness statements, as they become known to the party intending to introduce the document.

 

2)         Unless otherwise ordered by the ALJ at least 21 days prior to the commencement of the hearing, each party shall provide all parties with a list containing the name and address of any witness who may be called to testify. Each party shall provide newly discovered witnesses as they become known to the party intending to call the witness.

 

3)         Unless otherwise ordered by the ALJ, after a witness called by the Department or a party has testified in a hearing, the ALJ shall, upon motion of a party, order the production of any statement, as defined in Section 120.110, of the witness in the possession of the Department, which relates to the subject matter to which the witness has testified.  If the entire contents of any statement relate to the subject matter of the testimony of the witness, the ALJ shall order it to be delivered directly to the requesting party for examination and use for the purpose of cross-examination.  If the Department claims that any statement ordered to be produced under this subsection (b)(3) contains matter that does not relate to the subject matter of the testimony of the witness, the ALJ shall order the Department to deliver the statement for the inspection of the ALJ in camera.  Upon delivery, the ALJ shall excise the portions of the statement that do not relate to the subject matter of the testimony of the witness, except that the ALJ may, in the ALJ's discretion, decline to excise portions that, although not relating to the subject matter of the testimony of the witness, do relate to other matters raised by the pleadings.  With the material excised, the ALJ shall then direct delivery of the statement to the requesting party for use on cross-examination.   If, pursuant to this procedure, any portion of the statement is withheld and the requesting party objects to the withholding, the entire text of the statement shall be preserved by the Department and, in the event the requesting party files exceptions with the Director based upon the withholding, shall be made available to the Director for the purpose of determining the correctness of the ruling of the ALJ.  If the Department elects not to comply with the order of the ALJ directing delivery of any statement, or portion of a statement as the ALJ may direct, the ALJ shall strike from the record the testimony of the witness.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.420  Subpoenas

 

a)         The ALJ shall, on the written application of any party, issue subpoenas to a party allowing that party to require the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence or documents. The Director shall have the authority to sign and issue subpoenas on behalf of the Department. Applications for subpoenas made before or during the hearing shall be filed with the ALJ.  Applications for subpoenas may be made ex parte. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.

 

b)         Subpoenas may be served by personal delivery, by certified mail with return receipt signed by private delivery service, or by U.S. regular mail, postage prepaid.  Any person served with a subpoena, whether ad testificandum (for witness testimony) or duces tecum (for document production), who does not intend to comply with the subpoena, shall, within 5 days after the date of service of the subpoena, petition in writing to revoke the subpoena. The date of service for purposes of computing the time for filing a petition to revoke shall be the date the subpoena is received. All petitions to revoke subpoenas shall be served on the party at whose request the subpoena was issued. The petition to revoke, if made prior to or during the hearing shall be filed with the ALJ.

 

c)         The ALJ, upon motion made promptly and, in any event, at or before the time specified in the subpoena for compliance, may quash or modify the subpoena if it is unreasonable, is oppressive or requests material that is irrelevant. The ALJ will rule upon motions to quash or modify material requested in the subpoena. The ALJ may deny, limit or condition the production of information when necessary to prevent undue delay, undue expense, harassment or oppression. The ALJ can take these actions if the subpoena does not describe with sufficient particularity the evidence whose production is required, or if, for any other reason sufficient in law, the subpoena is otherwise invalid. The ALJ can also take these actions to protect materials from disclosure consistent with a protective order issued by the ALJ. If the Request for Subpoena is denied or modified, the ALJ shall proceed to conduct the hearing, and the specific reasons for denying or modifying the request shall be made part of the record.

 

d)         If a party or organization within control of a party fails to obey a subpoena, and the ALJ finds the subpoena to have been validly served and the material requested to be relevant and material, the ALJ may impose such sanctions as are appropriate, including but not limited to: prohibiting testimony by the party who has refused to comply with the subpoena; drawing an adverse inference against the party required to comply; or recognizing the evidence required by the subpoena but not produced as establishing the truth of the position of the party who subpoenaed the document.  If a nonparty fails to obey a subpoena, the party seeking enforcement shall be responsible for preparing an application for enforcement and shall file it in a court of appropriate jurisdiction.

 

e)         Witnesses summoned before the ALJ, other than those summoned by the Department, shall be paid the same fees and mileage that are paid witnesses in the court of the county where the hearing is being held.  Witness fees and mileage shall be paid by the party at whose instance the witnesses appear.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

SUBPART E: CONDUCT OF HEARINGS AND RULES OF EVIDENCE

 

Section 120.500  Authority of Administrative Law Judge

 

An ALJ presiding over a hearing shall have all powers necessary and appropriate to conduct a full, fair and impartial hearing, including the following:

 

a)         To administer oaths and affirmations;

 

b)         To rule upon offers of proof and receive relevant evidence;

 

c)         To issue subpoenas as provided in Section 120.420;

 

d)         To rule on issues relating to document exchange;

 

e)         To regulate the course of the hearing and the conduct of the parties and their counsel;

 

f)         To consider and rule upon procedural requests;

 

g)         To hold conferences for the settlement or simplification of the issues;

 

h)         To examine witnesses and direct witnesses to testify, limit the number of times any witness may testify, limit repetition or cumulative testimony, and set reasonable limits on the amount of time each witness may testify;

 

i)          To make or to cause to be made an inspection of the employment or place of employment involved; and

 

j)          To make decisions in accordance with the appropriate Act and rules, this Part and the IAPA.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.510  Ex Parte Communications

 

a)         No party may engage in any ex parte communication with an Administrative Law Judge or with any member of the Department regarding matters pending before an Administrative Law Judge.  However, when the Department is a party to the proceeding, Department representatives (excluding the Administrative Law Judge) may engage in communications with the other party outside the presence of the Administrative Law Judge.

 

b)         The Administrative Law Judge shall not initiate ex parte communications, directly or indirectly, in any matter in connection with any substantive issue, with any interested person or party. If the Administrative Law Judge receives any such ex parte communication, including any documents, he or she shall inform the other parties of the substance of any such oral communication or documents. The other parties shall be given an opportunity to review any such ex parte communication.

 

c)         Nothing shall prevent the Administrative Law Judge from communicating ex parte about routine matters such as requests for continuances or opportunities to inspect the file, as long as all parties are informed of the substance of the ex parte communication. The date and type of communication, the persons involved and the results of such routine communications shall be part of the record. A member of the Department may communicate with other members of the Department and a Department member or Administrative Law Judge may have the aid and advice of one or more personal assistants.

 

(Source:  Amended at 35 Ill. Reg. 10134, effective June 7, 2011)

 

Section 120.520  Disqualification of Administrative Law Judge

 

At any time prior to the issuance of the Administrative Law Judge's decision or recommendations, a party may move to disqualify the Administrative Law Judge on the grounds of bias or conflict of interest. The motion shall be made in writing to the General Counsel, with a copy to the Director and the Administrative Law Judge, setting out the specific instances of bias or conflict of interest.  The General Counsel will assign the matter for a determination to an Administrative Law Judge not challenged in the motion.  An adverse decision or ruling, in and of itself, is not  grounds for disqualification. The Administrative Law Judge's employment or contract as an Administrative Law Judge by the Department is not, in and of itself, a conflict of interest. The case shall be suspended until the neutral Administrative Law Judge rules on the motion.  The neutral Administrative Law Judge may decline to disqualify the presiding Administrative Law Judge or appoint another Administrative Law Judge to hear the case.

 

(Source:  Amended at 30 Ill. Reg. 10424, effective May 24, 2006)

 

Section 120.530  Contumacious Conduct

 

a)         Contumacious conduct at any hearing before the ALJ shall be grounds for exclusion from the hearing.

 

b)         If a witness or a party refuses to answer a question after being directed to do so or refuses to obey an order to provide documents, the ALJ may make those orders with regard to the refusal as are just and appropriate, including, but not limited to, excluding the testimony of witnesses, entering an order of default, entering an order that certain facts are deemed admitted for purpose of the proceeding, or entering an order denying the application or complaint of a party.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.540  Consent Decree

 

            If the parties to the proceeding resolve, settle or compromise their dispute and as part of the settlement agreement and the parties desire the Administrative Law Judge to enter a consent decree in order to resolve the matter, the Administrative Law Judge shall enter the Consent Decree as long as the proposed Consent Decree does not violate the Act under which the contested case was brought and rules adopted under that Act.

 

(Source:  Amended at 30 Ill. Reg. 10424, effective May 24, 2006)

 

Section 120.545  Settlement Agreements

 

The Administrative Law Judge has no authority to change, amend or modify the Settlement Agreement of the parties to the proceeding.

 

(Source:  Added at 30 Ill. Reg. 10424, effective May 24, 2006)

 

Section 120.550  Conduct of Hearings

 

a)         All hearings shall be public unless required by statute to be otherwise.

 

b)         The following shall be the order of proceeding of all hearings, subject to modification by the presiding Administrative Law Judge for good cause:

 

1)         Presentation, argument and disposition of motions preliminary to a hearing on the merits of the matters raised in the notice or answer;

 

2)         Presentation of applicant's or complainant's opening statement;

 

3)         Presentation of objector's or respondent's opening statement;

 

4)         Applicant's or complainant's case;

 

5)         Objector's or respondent's case;

 

6)         Applicant's or complainant's case in rebuttal;

 

7)         Objector's or complainant's closing statement;

 

8)         Applicant's or respondent's closing statement;

 

9)         Set dates for any and all motions, written briefs, findings of fact and conclusions of law;

 

10)         Presentation of written brief or proposed findings of fact, conclusions of law and order; and

 

11)       The filing of the decision of the Administrative Law Judge.

 

(Source:  Amended at 30 Ill. Reg. 10424, effective May 24, 2006)

 

Section 120.560  Rules of Evidence

 

The Illinois Rules of Evidence shall apply to the extent practicable unless, by such application, the ALJ determines that application of the rule would be an injustice or preclude the introduction of evidence of the type commonly relied upon by a reasonably prudent person in the conduct of his or her affairs.  The ALJ must state on the record his or her reasons for that determination.  Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally, accompanied by a short statement of the grounds for the objection, and included in the record. No objection shall be deemed waived by further participation in the hearing.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.570  Official Notice

 

Official notice may be taken of any material fact not appearing in evidence in the record if the Circuit Courts of this State could take judicial notice of the fact.  In addition, notice may be taken of generally recognized technical or scientific facts within the Department's specialized knowledge.  Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the facts noticed. The Department's expertise, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.

 

Section 120.580  Hostile or Adverse Witnesses

 

a)         If the Administrative Law Judge determines that a witness is hostile or unwilling or adverse, he or she may be examined by the party calling him  or her as if under cross-examination.

 

b)         The party calling an occurrence witness, upon the showing that he or she called the witness in good faith and is surprised by his or her testimony, may impeach the witness by proof of prior inconsistent statements.

SUBPART F: POST-HEARING PROCEDURES

 

Section 120.600  Default

 

Failure of a party to appear at the hearing or failure to proceed as ordered by the Administrative Law Judge shall constitute a default.  The Administrative Law Judge shall enter the appropriate default order.

 

(Source:  Amended at 30 Ill. Reg. 10424, effective May 24, 2006)

 

Section 120.610  Record in Contested Cases

 

a)         A full and complete record shall be kept of all proceedings. The record shall consist of the following:

 

1)         All pleadings, including all notices and responses to those pleadings;

 

2)         A transcript of the hearing, if any, and all evidence received;

 

3)         A statement of matters officially noticed;

 

4)         Any offers of proof, objections to that proof, and rulings on that proof;

 

5)         Any proposed findings and acceptance;

 

6)         Any decision, opinion or report by the ALJ;

 

7)         All staff memoranda or data submitted to the ALJ or employees of the Department in connection with their consideration of the case; and

 

8)         Any ex parte communication prohibited by Section 10-60 of the IAPA, but those communications shall not form the basis for any finding of fact.

 

b)         The record shall also contain the following:

 

1)         Subpoenas;

 

2)         Requests for Subpoenas;

 

3)         Cover letters;

 

4)         Notices of Filing; and

 

5)         Certificates of mailing for regular mail and return receipts for certified mail.

 

c)         The Department shall be the official custodian of the records of administrative hearings held by the Department.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.620  Briefs

 

The ALJ may require or allow parties to submit written briefs to the ALJ within 10 days after the close of the hearing or other reasonable time as the ALJ shall determine, consistent with the Director's responsibility for an expeditious decision.  Briefs shall be limited to 25 pages, unless permission is granted by the ALJ.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.630  Administrative Law Judge's Findings and Opinions (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 10424, effective May 24, 2006)

 

Section 120.640  Administrative Law Judge's Decision and Order

 

a)         The ALJ's decision shall be in writing and, when necessary, include findings of fact and conclusions of law and opinions.  The findings of fact shall be based exclusively on the evidence presented at hearing or known to all parties, including matters officially noticed.  The ALJ shall, in addition to the decision, issue an appropriate order. The decision in the case shall become effective immediately upon the execution of the order by the ALJ or as otherwise specified within the order or an applicable statute. A copy of the order shall be delivered or mailed to each party of record and to each attorney of record.  This Section applies to all formal hearings held pursuant to the Child Labor Law [820 ILCS 205], Day and Temporary Labor Services Act [820 ILCS 175], Nurse Agency Licensing Act [225 ILCS 510], Prevailing Wage Act [820 ILCS 130/9 and 11a], Health and Safety Act [820 ILCS 225], Safety Inspection and Education Act [820 ILCS 220], Illinois Worker Adjustment and Retraining Notification Act [820 ILCS 65], Employee Classification Act [820 ILCS 185/25], Private Employment Agency Act [225 ILCS 515/12], One Day Rest in Seven Act [820 ILCS 140/6] and Carnival and Amusement Rides Safety Act [430 ILCS 85/2-8.1, 2-12 and 2-15].

 

b)         The ALJ shall forward a copy of his or her decision, including findings of fact, opinions, recommendations and order, to each party of record.  Each party of record shall be allowed 10 days in which to submit exceptions to the findings, opinions, recommendations and order of the ALJ and to present a brief  in support of those exceptions.  In the event no timely or proper exceptions are filed, the findings, conclusions, recommendations and order shall automatically become the decision and order of the Director. All objections and exceptions to the Director's decision and order shall be deemed waived for all purposes.  Service of the ALJ's decision and of the order transferring the case to the Director shall be complete upon mailing.

 

c)         Exceptions

 

1)         Each exception shall:

 

A)        set forth specifically the questions of procedure, fact, law or policy to which exception is taken;

 

B)        identify that part of the ALJ's decision to which objection is made;

 

C)        designate by precise citation of page the portions of the record relied on; and

 

D)        concisely state the grounds for the exception.

 

2)         If a supporting brief is filed, the exceptions document shall not contain any argument or citation of authority in support of the exceptions. Those matters shall be set forth only in the brief. If no supporting brief is filed, the exceptions document shall also include the citation of authorities and argument in support of the exceptions, in which event the exceptions document shall be subject to a 25 page limit.  If a supporting brief is filed, it shall be subject to a 20 page limit.

 

d)         Any exception to a ruling, finding, conclusion or recommendation that is not specifically stated shall be deemed to have been waived. Any exception that fails to comply with subsection (c) may be disregarded. Any brief in support of exceptions shall not refer to any matter not included within the scope of the exceptions and shall contain, in the order indicated, the following:

 

1)         A clear and concise statement of the case, containing all that is material to the consideration of the questions presented.

 

2)         A specification of the questions involved and to be argued, together with a reference to the specific exceptions to which they relate.

 

3)         The argument, presenting clearly the points of fact and law relied on in support of the position taken on each question, with specific page reference to the record and the legal or other material relied on.

 

e)        Within 10 days, or such further period as the Director may allow, from the last date on which exceptions and any supporting brief may be filed, a party opposing the exceptions may file an answering brief to the exceptions, in accordance with this subsection.  The answering brief to the exceptions shall be limited to the questions raised in the exceptions and in the brief in support of the exceptions. It shall present clearly the points of fact and law relied on in support of the position taken on each question. When exception has been taken to a factual finding of the ALJ and the exception is proposed to support that finding, the answering brief should specify those pages of the record that, in the view of the party filing the brief, support the ALJ's finding. The answering brief shall be limited to 20 pages.

 

f)        Requests for extension of time to file an answering brief to the exceptions shall be in writing and copies shall be served promptly on the other parties.  

 

g)       Any matter not included in the exceptions may not thereafter be raised to the Director or in any further proceeding and is deemed waived for all purposes.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.650  Administrative Law Judge's Recommendations

 

a)         When the Director is required by law to be the sole, personal acting officer, the ALJ shall, in lieu of decision and order under Section 120.640, make recommendations by way of proposal for decision. The recommendations shall be made upon consideration of the record as a whole or portion of the record as may be supported by competent, material and substantial evidence.

 

b)         The ALJ shall forward a copy of his or her proposed findings of fact, opinions and recommendations to each party of record and each party of record shall be allowed 10 days in which to submit exceptions to the findings, opinions and recommendations of the ALJ and to present a brief in support of those exceptions. In the event no timely or proper exceptions are filed, all objections and exceptions to the ALJ's recommendation shall be deemed waived for all purposes. The Director shall review the record and issue a final Decision and Order.

 

c)         Exceptions and briefs in support of exceptions or in answer to exceptions shall comply with Section 120.640(c) through (f).

 

d)         Any matter not included in the exceptions may not thereafter be raised to the Director or in any further proceeding and is deemed waived for all purposes.

 

           

e)         This Section applies to formal hearings held pursuant to the Environmental Protection Act [415 ILCS 5/52(c)], Private Employment Agency Act [225 ILCS 515], Prevailing Wage Act [820 ILCS 130/11b] and Victims' Economic Security and Safety Act [820 ILCS 180].

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.660  Order of the Director

 

Upon receipt of an ALJ's recommendation by way of Recommended Decision or an ALJ Decision and Order, to which exceptions have been filed, the Director shall review the record and the ALJ's findings, opinions and recommendations, together with exceptions and briefs, and shall issue an order as set forth by applicable statutes within a reasonable time.  The decision in the case will become effective immediately upon the execution of the order or as otherwise specified within the order or an applicable statute.  A copy of the order shall be delivered or mailed to each party and to each attorney of record.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)

 

Section 120.670  Judicial Review

 

a)         If a party seeks judicial review of an Administrative Law Judge's Decision and Order or a Decision and Order of the Director, that party will pay the actual cost to the Department of preparing the administrative record and filing it in court.  Payment shall be by certified check made payable to the Illinois Department of Labor.

 

b)         Actions for judicial review under this Section shall be filed where the hearing proceedings took place, which is in the circuit court of either Cook County or Sangamon County.

 

(Source:  Amended at 38 Ill. Reg. 17631, effective August 15, 2014)