AUTHORITY: Implementing and authorized by Section 9 of the Illinois Wage Payment and Collection Act [820 ILCS 115].

SOURCE: Filed October 16, 1975, effective October 26, 1975; codified at 8 Ill. Reg. 18488; amended at 16 Ill. Reg. 13828, effective September 1, 1992; emergency amendment at 35 Ill. Reg. 3805, effective February 22, 2011, for a maximum of 150 days; amended at 35 Ill. Reg. 12933, effective July 20, 2011; amended at 38 Ill. Reg. 18517, effective August 22, 2014; amended at 47 Ill. Reg. 5406, effective March 31, 2023.

SUBPART A: GENERAL PROVISIONS

 

Section 300.440  Jurisdiction

 

The Department will review a claim for wages or final compensation and determine whether the Department can assert jurisdiction over the claim.

 

a)         The phrase "in this State" as used in the Act does not exclude entities physically situated outside the State of Illinois.  An employer or employee, to be "in this State", need not have residency in this State.  An officer or agent need not be physically present in order to be regarded as "in this State" for purposes of jurisdiction under the Act.

 

b)         The Department will assert jurisdiction over a claim when the work was performed in Illinois for an Illinois employer, regardless of where the employee resides.

 

c)         The Department will assert jurisdiction over a claim when the work was performed in Illinois for an employer that may have residency outside the State if the employer has sufficient contacts in the State, such as performing substantial business in the State, maintaining a principal place of business in the State, marketing its services in the State or maintaining a registered agent within the State.

 

d)         If the work is performed outside the State of Illinois, the employer must be located in Illinois in order for the Department to assert jurisdiction over the claim.

 

e)         The Department will exercise personal jurisdiction over a nonresident individual when the person is an officer, director or agent of a corporation organized under Illinois law having a principal place of business or presence in the State and when there are sufficient contacts within the State.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.450  Definitions

 

Except for the terms set forth in Section 2 of the Act, all other terms used in this Part shall have the meanings set forth in this Section.

 

"Act" means the Illinois Wage Payment and Collection Act [820 ILCS 115].

 

"Administrative Employee" means an employee as defined by 29 CFR 541 (March 30, 2003).

 

"Administrative Law Judge" or "ALJ" means an individual authorized by the Department to determine the merits of claims alleging violations of the Act.

 

"Aggrieved Employee" means an employee whom the Department has determined through investigation is owed wages or compensation from an employer or other respondent, regardless of whether the employee has filed a claim with the Department.

 

"Agreement" means the manifestation of mutual assent on the part of two or more persons.  An agreement is broader than a contract and an exchange of promises or an exchange is not required for an agreement to be in effect.  An agreement may be reached by the parties without the formalities and accompanying legal protections of a contract and may be manifested by words or by any other conduct, such as past practice.  Company policies and policies in a handbook create an agreement even when the handbook or policy contains a general disclaimer such as a provision disclaiming the handbook from being an employment contract, a guarantee of employment, or an enforceable contract.  While a disclaimer may preclude a contract from being in effect, it does not preclude an agreement by two or more persons regarding terms set forth in the handbook relating to compensation to which both have otherwise assented.  An agreement exists even if does not include a specific guarantee as to the duration of the agreement or even if one or either party reserves the right to change the terms of the agreement.

 

"Claim" means a signed application alleging a violation of the Act, accompanied by supporting documentation required by the Department.

 

"Claimant" means any person who submits a claim.

 

"Compensation" means remuneration or compensation an employee receives in return for services rendered to an employer.  The remuneration for services rendered includes hourly wages, overtime wages, commissions, piece rate work, salary, bonuses, expense reimbursements, or any other basis of calculation for services performed.  Compensation does not include future wages to be paid under to a terminated employment contract.

 

"Day" means a calendar day.

 

"Department" means the Illinois Department of Labor, its Director, and the Director's authorized representatives.

 

"Executive Employee" means an employee as defined by 29 CFR 541 (March 30, 2003).

 

"Location readily available" means a location within reasonable proximity to an employee's home or place of work that can be easily accessed.

 

"Other Representative" means any person with a direct relationship to the party, who is not an attorney or legal representative, who can address the substance of the claim, including a spouse, relative, or friend who can provide further clarification on the issues being considered or assist with translation for the party the person represents.

 

"Party" means a claimant and any respondent or other named entity whose payment of wages or final compensation is in question.

 

"Professional Employee" means an employee as defined by 29 CFR 541 (March 30, 2003).

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.460  Independent Contractor Exemption

 

a)         All three conditions enumerated in Section 2 of the Act must be satisfied for the independent contractor exemption to apply.  For purposes of Section 2 of the Act:

 

1)         "Control" means the existence of general control or right to general control, even though the details of work are left to an individual's judgment.

 

2)         "An independently established trade, occupation, profession or business" means the individual performing the services has a proprietary interest in such business, to the extent that he/she operates the business without hindrance from any other person and, as the enterprise's owner, may sell or otherwise transfer the business.

 

b)         An individual may be an employee without being entirely dependent upon his/her relationship with a specified employer for his/her livelihood.  A person engaged in other occupations may be an employee of a specified employer even though he/she only worked intermittently or part time.

 

c)         In determining whether this exemption applies, the Department shall consider the actual, rather than the alleged, relationship between an employer and a claimant; designations and terminology used by the parties are not controlling nor is the claimant's status for tax purposes controlling.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

SUBPART B: WAGES OR FINAL COMPENSATION

 

Section 300.500  Earned Bonuses

 

A bonus is compensation given in addition to the required compensation for services performed. The Department does not maintain jurisdiction over discretionary or gratuitous bonuses.  In order to receive compensation under the Act, the bonus must be earned.

 

a)         An employee has a right to an earned bonus when there is an unequivocal promise by the employer and the employee has performed the requirements set forth in the bonus agreement between the parties and all of the required conditions for receiving the bonus set forth in the bonus agreement have been met.  Unless one of the conditions for the bonus is that the employee be on the payroll at the time of the bonus payout, the bonus is due and owing to the employee at the time of separation.

 

b)         A former employee shall be entitled to a proportionate share of a bonus earned by length of service, regardless of any provision in the contract or agreement conditioning payment of the bonus upon employment on a particular date, when the employment relationship was terminated by mutual consent of the parties or by an act of the employer through no fault of the former employee.

 

c)         A gratuitous bonus does not obligate the employee to do or forgo something in return for the bonus and the employee has no right to make a demand for the bonus.

 

d)         A discretionary bonus is when the terms associated with the earning of the bonus are indefinite or uncertain, such as bonus being upon a positive evaluation of the "employee's performance" and not when the earning of a bonus is based on objective factors such as length of service, attendance or sign-on or relocation incentives.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.510  Earned Commissions

 

A commission is the compensation for services performed pursuant to an employment contract or agreement between the two parties.  In order to be entitled to receive compensation for a commission under the Act, the commission must be earned under the terms of the agreement or contract.

 

a)         A separated employee has a right to an earned commission when the conditions regarding entitlement to the commission have been satisfied , notwithstanding the fact that, due to the employee's separation from employment, the sale or other transaction was consummated by the principal personally or through another agent.

 

b)         When the employer and employee agree that the employee is to be paid a commission on the basis of a particular sale, and the sale is subsequently voided, the employer may deduct from the employee's wages or final compensation the amount of the commission previously paid on that particular sale.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.520  Earned Vacations

 

a)         Whenever an employment contract or an employment policy provides for paid vacation earned by length of service, vacation time is earned pro rata as the employee renders service to the employer.

 

b)         Oral promises, handbooks, memoranda, and uniform patterns of practice may create a duty to pay the monetary equivalent of earned vacation.

 

c)         Claims for vacation pay must be brought to the Department within 3 years from the date the vacation is earned.

 

d)         Nothing in this Section shall be construed to reduce or impair the right of the claimant to maintain a civil action to recover additional vacation pay found due by a court.

 

e)         An employment contract or an employer's policy may require an employee to take vacation by a certain date or lose the vacation, provided that the employee is given a reasonable opportunity to take the vacation.  The employer must demonstrate that the employee had notice of the contract or policy provision.

 

f)         The Department recognizes policies under which:

 

1)         no vacation is earned during a limited period at the commencement of employment.  The employer must demonstrate that the policy is not a subterfuge to avoid payment of vacation actually earned by length of service and, in fact, no vacation is implicitly earned or accrued during that period.

 

2)         vacation is earned and accrues at an accelerating rate during the year. The policy is acceptable when the acceleration period and the changes in accrual rates are reasonable, and the policy is uniformly applied.

 

3)         the employer does not have separate arrangements for vacation and sick leave.  Under the policy, employees earn a certain amount of "paid time off" that they can use for any purpose, including vacation and sick leave.  Because employees have an absolute right to take this time off (unlike traditional sick leave in which using sick leave is contingent upon illness), the Department will treat "paid time off" as earned vacation days.

 

g)         Any employer that provides paid vacation to its employees must maintain true and accurate records of the number of vacation days earned for each year and the dates on which vacation days were taken and paid.

 

h)         An employer cannot effectuate a forfeiture of earned vacation by a written employment policy or practice of the employer.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.530  Severance

 

Severance is a payment that an employee is entitled to be paid upon separation from employment pursuant to an agreement between the parties or established practice of the employer.

 

(Source:  Added at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.540  Reimbursement of Expenses

 

a)         Primary Benefit to the Employer

 

1)         When determining if an expense is to the primary benefit of the employer, the relevant factors are:

 

A)        Whether the employee has any expectation of reimbursement;

 

B)        Whether the expense is required or necessary to perform the employee’s job duties;

 

C)        Whether the employer is receiving a value that it would otherwise need to pay for;

 

D)        How long the employer is receiving the benefit; and

 

E)        Whether the expense is required of the job.

 

2)         No single factor is dispositive; instead, the analysis should focus on the extent to which the expense benefits the employer and its business and business model.

 

b)         Request for Reimbursement

 

1)         If an employer denies a request for reimbursement that should have been reimbursable according to subsection (a), the following shall apply:

 

A)        If an employer has informed an employee that they are not entitled to seek reimbursement, or has failed to respond to an employee’s request for reimbursement, that shall be considered a denial of reimbursement and the employee may file a claim against the employer with the Department seeking reimbursement for expenses as provided under subsection (a); and

 

B)        If an employee cannot recover expenses incurred related to services performed for the employer during the course of the employee's employment, these expenses shall be included in the final compensation owed to an employee at the end of the employee's employment, in accordance with the Act.

 

c)         Recordkeeping

An employer must maintain the following records pursuant to this Section for 3 years:

 

1)         All policies regarding reimbursement;

 

2)         All employee requests for reimbursement;

 

3)         Documentation showing approval or denial of reimbursement; and

 

4)         Documentation showing actual reimbursement and supporting documents.

 

d)         Employer Policies

If an employer’s written expense reimbursement policy establishes specifications or guidelines for necessary reimbursable expenditures, but the employer, whether through direct authorization or practice, allows for reimbursement of amounts that exceed those specified in its written policy, the employer shall be liable for full reimbursement of such expenses.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

SUBPART C: PAYMENT OF WAGES OR FINAL COMPENSATION

 

Section 300.600  Payment of Wages

 

a)         All wages owed to an employee shall be paid at the discretion of the employer, in lawful money of the United States, by a check redeemable only upon demand and without discount at a bank or other financial institution readily available to the employee, or at the discretion of the employee, by an employee's voluntary acceptance of direct deposit of funds in any bank or other financial institution designated by the employee, or by an employee's voluntary acceptance of a payroll card authorized by Section 14.5 of the Act and that meets the requirements of that Section.  An employer is not permitted to offer employees only the choice between two voluntary methods of payment.  Because payment by either payroll card or direct deposit must be voluntary, an employer offering either or both of these payment methods must also provide an additional choice of payment by cash or check, in accordance with Section 4 of the Act.  Notwithstanding the method of payment, the employer must provide  the employee with a written receipt that shows hours worked, rate of pay, overtime pay and overtime hours, gross wages, an itemization of all deductions, wages and deductions year to date. When an employer offers to any of its employees alternative options for receipt of payment of wages, all employees must be afforded the same options.  When an employer elects to pay employees in cash, the employer must obtain signed receipts from the employee indicating date of payment and amount received.

 

b)         An employer shall not require an employee to enroll in a direct deposit arrangement or make payment of wages or final compensation by direct deposit unless the employee voluntarily accepts this form of payment and voluntarily designates a bank or a financial institution, and an employer shall not require an employee to accept a payroll card as payment of wages, unless the employer obtains the employee's voluntary written or electronic consent to receive wages by payroll card.  It is not voluntary in fact if the employee is given to understand, or led to believe, that it is a condition for hire or maintenance of his or her present working conditions, or if continuance of his or her employment would be adversely affected by non-acceptance.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.610  Gratuitous Payments at Separation

 

The Department shall apply any gratuitous payments made by an employer to an employee upon separation against any final compensation which the employer is obligated to pay.  As used herein, a gratuitous payment is money given by an employer to an employee that does not arise out of a contract or agreement between the parties or an employment policy.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.620  Individual Liability of Officers, Agents, or Other Persons

 

a)         As a result of PA 96-1407, any person, including corporate officers, agents, or any person who acts directly or indirectly in the interest of an employer in relation to an employee is an employer under Section 2 of the Act and may be held individually liable for wages and final compensation.  For example, any person, including corporate officers and agents, acting directly or indirectly in the interest of an employer, includes, but is not limited to, actions such as being a signatory to an employment or union contract, or otherwise maintaining a decision-making role with regards to employment decisions or payment of employees.  In evaluating whether any person, including officers and agents, are individually liable under the Act, the "economic realities test" is the appropriate standard and, although no one factor is dispositive, the relevant inquiry is whether the person:

 

1)         held a significant ownership interest in the corporation or entity;

 

2)         exercised operational control over significant aspects of the corporation's or entity's day-to-day functions, including the compensation of employees, or had supervisory authority over employees and was responsible in whole or in part for the alleged violation; and

 

3)         was personally involved in the decision to continue operations despite financial adversity during the period of nonpayment.

 

b)         In addition to an individual who is deemed to be an employer under Section 2 of the Act, Section 13 of the Act allows for a separate and independent basis for liability for any agents of an employer who knowingly permit the employer to violate the provisions of the Act.  Such a person may be deemed to be an employer of the employees of the corporation and shall be individually liable for an aggrieved employee's wages or final compensation. For example, individual liability would attach when an individual exercises sufficient control to allocate to whom or what entity the funds would be paid and in what amount (i.e., no paychecks, full paychecks, or partial paychecks) during the relevant period.

 

c)         As used in subsection (b):

 

1)         "Knowingly" means knowledge of the existence of facts constituting the alleged violation, rather than a knowledge of the unlawfulness of the act or omission.

 

2)         "Permit" means to allow to happen or to fail to prevent, regardless of the corporation's ability to pay.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.630  Records and Notice Requirements

 

a)         Regardless of an employee's status as an exempt administrative employee, executive, or professional, every employer shall make and maintain for not less than 3 years the following true and accurate records for each employee: name and address, hours worked each day in each work week, the rate of pay, copies of all notices provided to the employee as required by subsection (d), amount paid each pay period, and all deductions made from wages or final compensation. Additionally, any employer that provides paid vacation to its employees must maintain, for a period of not less than 3 years, true and accurate records of the number of vacation days earned for each year and the dates on which vacation days were taken and paid.

 

b)         In the absence of employer records, an aggrieved employee may not be denied recovery of wages or final compensation on the basis that the employee is unable to prove the precise extent of uncompensated work or final compensation. An employee need only produce sufficient evidence to demonstrate the amount and extent of work or time earned as a just and reasonable inference. The employer must then produce evidence of the exact amount of work or time earned or produce evidence to negate the reasonable inferences drawn from the employee's evidence. The employer's failure to make and maintain records as required under subsection (a) shall not preclude a finding based on the information available that wages or final compensation are due, even though the award may be only approximate.

 

c)         Every employer shall furnish in writing to each employee an itemized statement of deductions made from wages for each pay period.

 

d)         An employer is required to notify an employee in writing, at the time of hiring, of the rate of pay.  An employee commencing work shall reflect mutual assent to the rate of pay.  An employer shall not change an agreement regarding the payment of wages and compensation without first notifying the employee before the effective date of the change.  The employer shall place the arrangement in writing at the time of the change and present the change to the employee unless impossible to do so.  Because of extraordinary circumstances, the immediate placement in writing may not be able to be accomplished, but this inability to do so must be immediately rectified.  An employer cannot rely upon an employee's continued employment as affirmation that the employee consented to an adverse modification of the employee's rate of compensation when the employee was not notified in writing of the modification before its effective date.  However, when the employee continues to work after being notified of a change in writing, the employee shall be presumed to have assented to the change, absent evidence to the contrary.  An employer may not retroactively adversely affect the wages earned by an employee.  In every employment relationship, it is presumed that the employer will pay for all hours worked, as defined in 56 Ill. Adm. Code 210.110.  An employee who has not been paid for all hours worked is not presumed because of the employee's continuing to work to have assented to work without compensation for the hours worked at the agreed rate of compensation or to have assented to the non-payment of required or promised overtime pay.

 

e)         The employer shall bear the burden of showing that it was not possible to notify the employee in writing, at the time of hiring, of the rate of pay and of the time and place of payment.  "Rate of pay" shall include a description of all wages or final compensation, as defined by Section 2 of the Act and this Part.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.640  Refusal to Pay Wages or Final Compensation

 

a)         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.

 

b)         An employer doing business at the time the duty to pay wages or final compensation arises is presumed to have the ability to pay.

 

c)         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.

 

(Source:  Amended at 35 Ill. Reg. 12933, effective July 20, 2011)

SUBPART D: DEDUCTION FROM WAGES OR FINAL COMPENSATION

 

Section 300.700  Scope of Subpart D

 

Nothing in this Subpart shall be construed to permit an employer to violate the provisions of the Minimum Wage Law [820 ILCS 105] or the Fair Labor Standards Act of 1938, as amended (29 USC 201 et seq.).

 

(Source:  Amended at 35 Ill. Reg. 12933, effective July 20, 2011)

 

Section 300.710  Burden of Proof

 

The employer shall bear the burden of establishing the applicability of any claimed exception to Section 9 of the Act.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.720  Written Agreement Authorizing Deductions

 

a)         Any written agreement between employer and employee permitting or authorizing deductions from wages or final compensation must be given freely at the time the deduction is made. In the case of cash advances, the agreement may be made either at the time of the deduction or at the time of the advance itself.

 

b)         When a deduction is to continue over a defined duration of time and the written agreement provides for that defined duration of time and provides for the same amount of deduction each pay period, the agreement shall be considered to be given freely at the time the deduction is made. No agreements for a defined duration of time shall last longer than six months.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.730  Cash or Inventory Shortages

 

An employer shall not deduct from an employee's pay or otherwise demand reimbursement from an employee for cash and/or inventory shortages unless the employee's express written consent is given freely at the time the deduction or demand for reimbursement is made.

 

(Source:  Amended at 35 Ill. Reg. 12933, effective July 20, 2011)

 

Section 300.740  Failure to Follow Credit Card, Check Cashing, or Accounts Receivable Procedures

 

This Part also will apply to shortages incurred as a result of a failure to follow proper credit card, check cashing or accounts receivable procedures.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.750  Cash Advance Repayment Agreement

 

If a cash advance is to be repaid through payroll deductions, both the employer and the employee must sign an agreement specifying the amount of the advance, the repayment schedule, and the method of repayment.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.760  Advanced Vacation Pay

 

If an employer permits an employee to take a vacation that has not yet been earned, and the employee resigns or is terminated, the employer may not deduct the unearned vacation pay from the employee's wages or final compensation without a written agreement as set forth in  Sections 300.720 and 300.750.

 

(Source:  Amended at 35 Ill. Reg. 12933, effective July 20, 2011)

 

Section 300.770  Tuition Reimbursement

 

If an employer advances payment to or on behalf of the employee for the cost of tuition, textbooks and other expenses of voluntary elective educational courses, the employer may not deduct such advances from the employee's wages or final compensation without a written agreement as set forth in the rules pertaining to cash advances (see Sections 300.720 and 300.750).

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.780  Training and Educational Expenses

 

An employer shall not deduct expenses for training or educational courses required by the employer, even though such training or educational courses are also required by State or federal government, unless the employee's express written consent is given freely at the time the deduction is made.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.790  Cash Advance Exception

 

The provisions of these rules pertaining to cash advances shall not apply to funds transmitted by wire to employees who are traveling, if a signed authorization is not practicable.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.800  Deduction Limit

 

No cash advance repayment agreement shall provide for a repayment schedule of more than 15% of an employee's gross wages or final compensation per paycheck.

 

(Source:  Amended at 35 Ill. Reg. 12933, effective July 20, 2011)

 

Section 300.810  Balance Due at Termination

 

If, upon termination, an employee owes an amount greater than 15% of gross wages or final compensation, that amount may be withheld from the employee's wages or final compensation, but only if such an arrangement was included in the agreement signed when the advance was made.

 

(Source:  Amended at 35 Ill. Reg. 12933, effective July 20, 2011)

 

Section 300.820  Damaged Property

 

A financial loss suffered by an employer due to damage to his/her property or to that of a customer or client shall not be deducted from an employee's pay unless the employee's expressed written consent is given freely at the time the deduction is made.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.830  Return of Employer's Property

 

In no case shall an employer withhold all or part of the final compensation due an employee while the employer awaits return of property in the possession of the employee unless the employee's express written consent is given freely at the time the deduction is made.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.840  Uniforms Required by an Employer

 

An employer shall not deduct the cost of purchasing and/or cleaning uniforms required by the employer from an employee's wages or final compensation, unless the employee's express written consent is given freely at the time the deduction is made.  Distinctive outfits or accessories, or both, intended to identify the employee with a specific employer shall be considered a uniform.  If an employer requires a general type of ordinary basic street clothing to be worn, but permits variations in the detail of dress, this shall not be considered a uniform.  However, when an employer requires that an employee purchase street clothes either from the employer or from a third party designated by the employer, the clothing shall be considered a uniform.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.850  Equipment Required by an Employer

 

An employer shall not deduct the cost of equipment required by the employer or by law from an employee's wages or final compensation unless the employee's express written consent is given freely at the time the deduction is made.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.860  Medical Examinations and Records

 

No employer shall require any employee or applicant for employment to pay the cost of medical examinations or the cost of furnishing any records of such examinations which are required by the employer as a condition of employment.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.870  Deposit

 

An employer may request that a deposit be paid on a particular piece of property, but such a deposit shall not be deducted from the employee's wages or final compensation unless the employee's express written consent is given freely at the time the deduction is made.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.880  Conditions of Return of Deposit

 

A deposit must be returned to the employee, along with any final compensation, provided the employee has returned the property on which the deposit was paid.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.890  Time for Return of Deposit

 

If property is returned after all other final compensation has been paid, the deposit on the property must be given to the employee immediately upon return of the property, if possible, but in no case later than the next payday.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.900  Overpayment

 

a)         When the employee agrees that an overpayment has been made, the entire sum of the overpayment may be deducted on the employee's first regular payday subsequent to the payday on which the overpayment occurred.  If an overpayment is not discovered until one or more paydays have  passed, the employer and employee shall agree on a repayment schedule.  If the employer and employee cannot agree on a repayment schedule, then the employer must comply with Section 9 of the Act and the rules herein (see all of Subpart D) and treat the overpayment as a cash advance.

 

b)         If the employee refuses to sign such an agreement or in any way disputes the amount of overpayment or the employer's right to recoupment, no deduction shall be made unless the employer complies with the notice requirements enumerated in Section 9 of the Act and the rules herein (see all of Subpart D).

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.910  Deductions From Bank Accounts

 

Under no circumstances may an employer or its agents deduct or cause to be deducted disputed amounts from any banking account of the employee.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.920  Acceptance of Disputed Paycheck

 

Acceptance by an employee of a disputed paycheck will not be evidence that the employee has released all claims.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.930  Notice of Disputed Deductions

 

a)         Notice by an employer of disputed deductions from wages under Section 9 of the Act shall be either typewritten or clearly handwritten and shall include:  the name and last known address of the employee from whose wages or final compensation the deduction is being made; the amount that is being withheld; the reason for which the deduction is being made; the date on which payment would have been made; the name, business address and telephone number of the employer and any officer or agent of the employer who will present the employer's position to the Department during its investigation of the deduction; and any supporting documentation.  The notice shall be prominently marked "NOTICE OF DISPUTED DEDUCTION" on both the letter and the envelope and shall be mailed or delivered to the Department's Chicago office at 160 N. LaSalle, C-1300, Chicago IL 60601 on or before the day the money is due to the employee.

 

b)         The Department will notify the employee of the proposed deduction and provide an opportunity for the employee to contest the deduction.  The employee's response shall be typewritten or clearly handwritten and shall state the reasons why the employee contests the deduction.  The response shall be prominently marked "DISPUTED DEDUCTION RESPONSE" on both the letter and the envelope and shall be mailed or delivered to the Department's Chicago office. If the employee does not respond within 10 days after receipt of the Department's notice, the deduction shall be permitted and the Department will take no further action.  Acceptance of late responses by the employee shall be at the sole discretion of the Department.

 

c)         The Department may permit a deduction when an employer can establish by clear and convincing evidence that:

 

1)         the employee is indebted to the employer in an amount equal to or greater than the amount sought to be withheld; and

 

2)         it would be inequitable to require the employer to make payment to the employee prior to the employee satisfying his or her obligation to the employer.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

SUBPART E: FILING OF A CLAIM FOR WAGES OR FINAL COMPENSATION

 

Section 300.940  Filing of a Claim and Service

 

a)         An employee or an employee's representative may file a complaint with the Department alleging violations of the Act by submitting a completed wage claim application on the form provided by the Department and by submitting all supporting documentation. All wage claims except those filed under Section 13.5 of the Act shall be filed within one year after the wages or final compensation were due. All wage claims filed under Section 13.5 of the Act shall be filed within three years after the wages or final compensation were due.

 

b)         Wage claim 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 before the date the complaint was filed.

 

c)         Service of any document upon any person may be made by personal delivery, certified mail with the return receipt signed by the person or its agent, US regular mail with postage prepaid, electronic mail (e-mail) when agreed to by the party, or any other verifiable means, such as private carrier, to the following:

 

1)         address on file with the Department;

 

2)         address on file with the Secretary of State;

 

3)         address on file with any other State agency with which the respondent shall maintain a current address; or

 

4)         any other address, including e-mail address, the Department reasonably calculates to be a true and current address for the respondent.

 

d)         The Department will notify the respondent of the existence of the claim.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.941  Response, Investigation, and Referral to Formal Administrative Hearing

 

a)         The respondent must, in response, remit payment of all undisputed amounts and submit a written explanation of all the amounts remaining in dispute within 20 days after the date of mailing or other service of the notice of claim under Section 300.940(c) and (d).

 

b)         The response shall include the reasons for non-payment and any business records and other documentation necessary for the Department's investigation of the claim.

 

c)         If a respondent fails to answer the claim as required in subsections (a) and (b) or fails to answer all material allegations contained in the claim, any unanswered allegations shall be deemed admitted to be true as of the 21^st day following the notice of claim.

 

d)         The Department will review the information provided by the parties to determine whether wages or final compensation may be due and shall decide whether there is sufficient evidence to proceed to a formal administrative hearing. If the review demonstrates there is insufficient evidence to proceed to a hearing, the claim will be dismissed.  If the review demonstrates sufficient evidence that the Act may have been violated, the matter will be set for a formal administrative hearing. The Department will notify all parties of its determination and may issue appropriate orders.

 

e)         The Department may consider untimely submissions by any party, upon written request by the party within a reasonable period of time, if there is a showing that the delay was occasioned by a 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.

 

f)         If the matter is set for a formal administrative hearing, any document in the files of the Department of Labor submitted to it by any of the parties, shall be a part of the record, and shall be competent evidence bearing upon the issues. The failure of a party to appear at a hearing will not preclude a decision in their favor if, based on all of the information contained in the record, they are entitled to that decision.

 

g)         Upon timely request to the Administrative Law Judge assigned to the case or the Administrative Law Judge's supervisor before the beginning of an in-person hearing, a party may inspect the case file during the Department's regular business hours at the office of the Administrative Law Judge assigned to the case.  The Department will maintain a written record of the date and name of any person inspecting the file. A party may also request electronic access to the records pertaining to their case.  In the case of a telephone hearing, a file may be inspected at the Springfield office or Chicago office, if the request is made at least 2 working days before the hearing.  When the request is timely made, the Department will give the party making the request an opportunity to inspect the file at least 24 hours before the hearing.

 

h)         For claims filed under Section 13.5, respondents shall comply with subsections (a) and (b) and be subject to the admissions described in subsection (c).

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.942  Withdrawal of a Claim

 

An employee may voluntarily withdraw his or her claim by submitting a written statement to the Department or making a verbal statement on the record during the hearing or at any time prior to the issuance of the ALJ's decision. The Department will provide written notice to all parties of the withdrawal of the claim.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

SUBPART F: INFORMAL INVESTIGATIVE HEARING

 

Section 300.950  Scheduling and Notice of Investigative Hearing (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.960  Continuances (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.970  Application of the Rules of Evidence, Pleadings and Procedures in an Investigative Hearing (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.980  Participants at Informal Investigative Hearings (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.990  Contumacious Conduct at Informal Investigative Hearings (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1000  Informal Telephone Hearings

 

a)         The Department does not routinely hold informal investigative hearings by telephone.  Written requests to participate by telephone must be received by the Department's Chicago office no later than 7 days prior to the hearing date.  The request shall be prominently marked "REQUEST FOR TELEPHONE HEARING" on both the letter and the envelope.  The request shall be in writing and contain a compelling reason why the party needs to participate by telephone and the name, address and telephone number of the person to be contacted.

 

b)         On its own initiative, the Department may also schedule a matter for telephone hearing without regard to the 7 day notice requirement.

 

c)         The Department may consider untimely requests for telephone hearings upon 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. 

 

d)         A party shall not consider its request granted unless the participant receives notice of the Department's approval prior to the hearing date by telephone or in writing.

 

(Source:  Amended at 35 Ill. Reg. 12933, effective July 20, 2011)

 

Section 300.1010  Issuance of Administrative Subpoena

 

The Department may issue an administrative subpoena to compel the attendance of a witness and/or the production of documents upon the Department's determination that the information to be produced by a subpoena is necessary and relevant to the Department's investigation, and that the Department cannot obtain the information by any other reasonable means.

 

(Source:  Added at 16 Ill. Reg. 13828, effective September 1, 1992)

 

Section 300.1020  Review of Hearing Officer Determination (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 18517, effective August 22, 2014)

SUBPART G: FORMAL HEARINGS

 

Section 300.1028  Applicability

 

Subpart G is effective for retaliation complaints as well as wage claim applications filed regardless of the amount of the claim.  This Subpart shall supersede the Department's Rules of Procedure in Administrative Hearings (56 Ill. Adm. Code 120) for formal hearings conducted under this Subpart.

 

(Source:  Added at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1030  Consolidation/Severance/Class Actions

 

a)         The Department may, on its own or at the request of a party, consolidate hearings if it believes a common question of law or fact is involved, consolidation will expedite the hearings, and no right of any party will be prejudiced.

 

b)         All parties will be given an opportunity to be heard on the issue of consolidation and may be severed from the proceeding if the factors in subsection (a) are not satisfied.

 

c)         The Department may assist a class of employees and process cases on those employees' behalf in a class action.  An action may be maintained as a class when:

 

1)         The number of parties is so numerous that joinder of all parties is impracticable;

 

2)         There are questions of fact or law common to the class that predominate over any questions affecting only individual members;

 

3)         The representative parties will fairly and adequately protect the interest of the class; and

 

4)         The class action is an appropriate method for the fair and efficient adjudication of the controversy.

 

(Source:  Added at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1040  Scheduling and Notice of a Formal Hearing

 

A written notice of the formal hearing shall be served on the parties not less than 21 days prior to the date of the hearing. The notice shall advise all parties that a failure to appear at the hearing may result in the entry of an enforceable judgment or dismissal against a party not appearing.  

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1050  Manner and Service of Notice

 

a)         Service of notice of a formal hearing shall be complete when the notice of hearing is:

 

1)         Personally served; or

 

2)         Sent not less than 21 days prior to the date designated for the hearing by:

 

A)        Regular US mail, postage prepaid, to the parties' addresses;

 

B)        Certified US mail, postage prepaid, to the parties' addresses;

 

C)        E-mail, if the employer or claimant has agreed to service by those means; or

 

D)        Other verifiable means, such as private carrier.

 

b)         For purposes of subsection (a), notice of a formal hearing shall be deemed properly served if sent to the parties at an address:

 

1)         On file with the Department;

 

2)         On file with the Illinois Secretary of State;

 

3)         On file with any other State agency with which the party has a duty to maintain a current address; or

 

4)         The Department reasonably calculates to be a true and current address for the party.

 

c)         The notice of a formal hearing under this Subpart G shall include:

 

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

 

2)         A copy of the claim;

 

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

 

 

4)         Instructions for all parties to bring all evidence and/or witnesses that support or dispute the employee claims;

 

5)         A description of the procedure to request a continuance or to appear at the hearing telephonically; and

 

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

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1060  Formal Hearing Continuances

 

Parties shall be prepared to proceed at the hearing. Absent an emergency, all requests for a continuance must be made in writing to the ALJ at least 10 days prior to the scheduled hearing and will be granted only upon a showing of good cause. Copies of all continuance requests shall be served on the other party. Examples of good cause include the non-receipt or delayed receipt of mail or the unavailability of a witness or a party due to accident, illness or other circumstances beyond the party's control. When a hearing has been scheduled and a subsequent conflict arises in a schedule of a party's attorney, such as an appointment with a client, court appearance or comparable matter scheduled for the same time, those factors shall not be considered good cause shown. The Department may also cancel and continue a hearing due to an emergency or the unavailability of an ALJ. If granted, the Department will provide the parties with notice of the continuance of the hearing.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1070  Application of the Rules of Evidence, Pleadings, and Procedures in a

Formal Hearing

 

a)         Technical rules of evidence do not apply in a hearing before an ALJ. The decision of the ALJ will be based upon the evidence and testimony. The ALJ may rely upon evidence of a type commonly relied upon by a reasonably prudent person in the conduct of such person's affairs. Absence of employer records required to be made and kept by an employer pursuant to Section 300.630 and Section 10 of the Act will not deny an aggrieved employee recovery of wages or final compensation on the basis that the aggrieved employee is unable to prove the precise extent of uncompensated work or final compensation. An aggrieved employee need only produce sufficient evidence to demonstrate the amount and extent of work or time earned as a just and reasonable inference. The employer must then produce evidence of the exact amount of work or time earned or produce evidence to negate the reasonable inferences drawn from the employee's evidence. The employer's failure to make and maintain records as required under Section 300.630 shall not preclude a finding based on the information available that wages or final compensation are due, even though the award may be only approximate.

 

b)         A complete record of all proceedings before the ALJ at the hearing shall be maintained. The record will consist of:  a verbatim record of the parties and witnesses; all pleadings, motions, rulings, evidence received, matters officially noticed, offers of proof, objections and rulings on objections; decision and findings of fact; and any ex parte communications.

 

c)         The testimony of a party or witness shall be sworn or affirmed. If a party or witness refuses to consent to the recording of the hearing by the ALJ or refuses to take the oath or affirmation when requested, the participation of that individual in the hearing shall be terminated, and the hearing shall be conducted as if the individual failed to appear.

 

d)         Any document a party intends to introduce into evidence should be served by the party on the other party at least five days before the hearing.  Documents previously submitted to the other party during the investigation need not be resubmitted.  If the ALJ finds any document was not served or received, the ALJ may proceed or not proceed with the hearing or take such other action as the ALJ deems appropriate. No other written or oral discovery shall be allowed, except in extraordinary circumstances to facilitate or expedite the proceedings, but shall be limited to the specific issue or amount of the claim, as the ALJ deems appropriate.

 

e)         The claimant has the burden of proving by a preponderance of the evidence the merits of the claim.

 

f)         Upon the ALJ's own motion or upon good cause shown by a party, the ALJ may direct the parties or their counsel to meet with the ALJ for a prehearing conference.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.1080  Participants at a Formal Hearing

 

a)         A party may be accompanied at a formal hearing by his or her attorney or other representative. The participation of the other representative in the hearing shall be limited to fact-finding and support functions. Other representatives shall not be permitted to engage in any conduct or function that constitutes or reasonably approximates the practice of law. Other representatives shall not: examine or cross-examine any party or witness; offer any documents or other exhibits into evidence; make evidentiary, procedural or other legal objections; cite, file or interpret case law, statutes, administrative rulings or other legal authority; make legal arguments or interpretations; or give legal advice or opinions to parties or witnesses. Other representatives must provide to the represented party for signature a written disclosure document that explicitly states that the representative is not an attorney and that the representative is not permitted to present legal arguments or otherwise engage in any function that reasonably approximates the practice of law as described in this subsection (a). The document shall be signed by both the representative and the represented party.

 

b)         The parties may bring witnesses to the hearing and the ALJ shall determine the order in which the witnesses are to be heard and shall limit testimony to that which is relevant, not cumulative in nature, not unduly repetitious and material to the claim. In deciding whether to permit a witness to testify, the ALJ may consider the relevance and materiality of the testimony. The ALJ may exclude witnesses when they are not giving testimony. The Department will provide translation services for the hearing as necessary.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1090  Conduct in a Formal Hearing

 

a)         The ALJ shall conduct and control the hearing, which will be confined to the factual and/or legal issues of the claim. The ALJ will ensure that all parties who have appeared have a reasonable opportunity to present all relevant evidence and testimony regarding the issues.

 

b)         Witnesses may be questioned and cross-examined by any party or that party's attorney, except the other representative, and further questioned by the ALJ, if necessary, to ensure clarity and completeness of the issues and of the record.

 

c)         If any person becomes abusive or disruptive so that a full and fair hearing cannot be conducted, the ALJ shall exclude that person from the hearing. The ALJ shall then move forward with the hearing without the participation of the excluded individual and will render a decision based on the evidence in the record.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1100  Telephone Hearing for a Formal Hearing

 

a)         Written requests to participate via telephone must be received by the Department's Chicago office, 160 N. LaSalle, C-1300, Chicago IL 60601, no later than seven days prior to the hearing date. The request shall be prominently marked "REQUEST FOR TELEPHONE HEARING" on both the letter and envelope. The request shall be in writing and contain a compelling reason why the party needs to participate by telephone and the name, address and telephone number of the person to be contacted.

 

b)         On its own initiative, the Department may also schedule a matter for telephone hearing without regard to the seven day notice requirement.

 

c)         The Department may consider untimely requests for telephone hearings by the party upon 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.

 

d)         A party shall not consider the request granted unless the participant receives notice of the Department's approval prior to the hearing date by telephone or in writing.

 

e)         A party appearing by telephone shall submit to the ALJ and the other party, no less than five days prior to the hearing, any documents the party intends to introduce at the hearing.  Any documents previously submitted to a party during the investigation need not be resubmitted.  If the ALJ finds that any document was not submitted or received, the ALJ may exercise discretion to proceed or not proceed with the hearing or take other action as the ALJ deems appropriate.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1110  Subpoenas for Investigation and Testimony at Hearing

 

a)         The Department may issue an administrative subpoena to compel the attendance of a witness and/or the production of documents upon the Department's determination that the information to be produced by a subpoena is necessary and relevant to the Department's adjudication of the claim and cannot be obtained by any other reasonable means. The parties may also request that subpoenas be issued for documents and testimony at hearing.

 

b)         Application by a party for a subpoena may be made ex parte and the party requesting the subpoena shall be responsible for service.  The subpoena shall on its face show the name and address of the party at whose request the subpoena was issued.  Service may be made by personal delivery, certified mail with return receipt signed by the person or its agent, U.S. regular mail, postage prepaid, or private carrier.

 

c)         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 on the subject matter encompassed by the subpoena, drawing an adverse inference against the party refusing to comply, or allowing the evidence required by the subpoena but not produced as establishing the truth of the position of the party who subpoenaed the documents. If a non-party fails to obey a subpoena, the party seeking enforcement shall be responsible for preparing an application for enforcement and filing in a court of appropriate jurisdiction.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1120  Ex Parte (One Party Only) Communications

 

a)         An ALJ may not engage in ex parte communications, directly or indirectly, in any matter in connection with any substantive issue, with any interested person or party. If the ALJ receives any ex parte communication, including any documents, the ALJ shall inform the parties of the substance of any such communication and provide copies of any written communication or documents. The other party shall be given an opportunity to review any ex parte communication.

 

b)         Nothing shall prevent the ALJ from communicating ex parte about routine matters, such as requests for continuances or opportunities to inspect the file, as long as the parties are informed of the substance of the ex parte communication. The date and type of communication, the persons involved and the results of those routine communications shall be part of the record.

 

c)         When a party fails to appear at the hearing, the other parties' participation at the hearing shall not be considered ex parte communication.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1130  Disqualification of an Administrative Law Judge

 

At any time prior to the issuance of a substantive ruling by an ALJ, a party may move to disqualify the ALJ 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 ALJ, setting forth the specific instances of bias or conflict of interest. The Director and/or her or his designee will assign the matter for a determination to an ALJ not challenged in the motion. An adverse decision or ruling, in and of itself, is not grounds for disqualification. The ALJ's employment or contract as an ALJ by the Department is not, in and of itself, a conflict of interest. The case shall be suspended until the neutral ALJ rules on the motion. The neutral ALJ may decline to disqualify the presiding ALJ or appoint another ALJ to hear the case.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1140  Consolidation/Severance  (Repealed)

 

(Source:  Repealed at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1150  Failure of a Party to Appear at a Formal Hearing

 

a)         Failure of a claimant to appear at a scheduled formal hearing may result in dismissal of the claim. If the hearing or any party's appearance is by telephone, failure of that party to inform the ALJ of the telephone number at which he or she can be reached, or failure to answer the telephone at the scheduled time, may result in dismissal of the claim.

 

b)         Failure of the employer to appear at a scheduled formal hearing shall cause the ALJ to issue a decision based on the evidence introduced and the evidence of record. If the hearing or the employer's appearance is by telephone, failure of the employer to inform the ALJ of the telephone number at which the employer can be reached, or failure to answer the telephone at the scheduled time, shall cause the ALJ to issue a decision based on the evidence introduced and the evidence of the record.

 

(Source:  Amended at 38 Ill. Reg. 18517, effective August 22, 2014)

 

Section 300.1160  Notice and Appeal of Department's Order

 

a)         Following the entry of a final order, the Department will send written notice of its order to the parties by regular U.S. mail, or via email to an email address previously designated by the party for purposes of receiving communications under this Act, setting forth the amount of the judgment, if any, including all damages, administrative fees, and penalties, as well as the parties' appeal rights. Service shall be presumed to be accomplished upon mailing or emailing.

 

b)         A party may file a motion to reconsider with the Department within 15 days after the Department's order and the motion will only be considered by the Department for procedural issues. A motion to reconsider should be sent to the Department's Chicago office, 160 N. LaSalle, C-1300, Chicago IL  60601. The Department will issue a written decision on any motions to reconsider and serve that decision on all parties via regular US mail or via email to an email address previously designated by the party for purposes of receiving communications under this Act. No further appeal process or administrative remedies may be sought at the Department level.

 

c)         Any party may appeal the Department's order or dismissal to the circuit court within 35 days under the provisions of the Administrative Review Law [735 ILCS 5/Art. III]. If a motion to reconsider is filed with the Department, the time period to appeal to the circuit court will begin when the Department issues its written decision on any motion to reconsider via regular US mail or via email to an email address previously designated by the party for purposes of receiving communications under this Act.

 

d)         If a party seeks judicial review of a Department order or dismissal, that party will pay the actual cost to the Department of preparing the administrative record and filing the record in court.  Payment must be made by certified check, cashier's check, or money order, made payable to the Illinois Department of Labor or using the State Treasurer's E-Pay program or any successor program.

 

e)         Actions for judicial review shall be filed where the hearing proceeding took place, which is either the circuit court of Cook County or Sangamon County.

 

f)         The order of the Department will become final and enforceable if no appeals are filed within 35 days after the Department's order or after all appeals are exhausted.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

SUBPART H: DAMAGES, PENALTIES AND FEES

 

Section 300.1180  Non-Waivable Administrative Fee to the Department

 

If the Department determines that a respondent owes wages or final compensation to the claimant and any other aggrieved employee, it shall assess the appropriate non-waivable administrative fee per employee as provided for by the Act payable to the Department and make the administrative fee against the respondent a part of the determination. The administrative fee shall be due to the Department within 15 days after the order becomes final.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.1190  Statutory Damages Due to the Employee

 

If the Department determines that a respondent owes wages or final compensation to the claimant, statutory damages shall be assessed at 5% of the amount owed, multiplied by the number of months that elapse between the time of initial underpayment and the time the order is paid. The total amount due to the claimant and any aggrieved employee, including the unpaid wages and final compensation plus statutory damages, will be due to the claimant and aggrieved employee within 15 days after the order becomes final.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.1200  Additional Penalties Due to the Department and Employee

 

If a respondent fails to comply with the order within 15 days after the order becomes final, the respondent shall also be liable to the Department for a statutory penalty of 20% of the amount owed and shall be additionally liable to the claimant and any other aggrieved employee for a statutory penalty in the amount of 1% per day of the amount owed for each day that payment is delayed.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

 

Section 300.1210  Payment of Wages or Compensation Owed, Penalties, and Fees

 

a)         A respondent shall pay wages, compensation, penalties, or fees owed in either of the following manners:

 

1)         Mail two separate certified checks, cashier's checks, or money orders to pay the amount of wages or compensation owed to the office location designated by the Department. One certified check, cashier's check, or money order shall be for the amount of any wages or final compensation, less all required deductions for federal and State taxes and social security plus statutory damages and statutory penalties owed to the employee, made payable to: “[INSERT EMPLOYEE NAME] or Illinois Department of Labor", inserting the employee's name accordingly.  The second certified check, cashier's check, or money order shall be for the amount of any penalties and fees owed to the Department made payable to the "Illinois Department of Labor".

 

2)         Make two separate payment transactions using an electronic payment system designated by the Department for such payments. One transaction shall be for the amount of any wages owed or final compensation, less all required deductions for federal and State taxes and social security; plus statutory damages and statutory penalties owed to the employee, designated with the employee’s name. The second transaction shall be for the amount of any penalties and fees owed to the Department, designated as "Fines/Fees to IDOL".

 

b)         The Department shall make a good faith effort to find any aggrieved employee owed wages or other compensation. To aid the Department in locating all aggrieved employees, the Department may seek the last known address of the aggrieved employee from the employer and may require the employer to provide the Department with known contact information for an aggrieved employee. If an aggrieved employee cannot be found after one year from the date the payment from the employer is received by the Department, the money owed to that aggrieved employee shall be transferred to the Office of the Treasurer as unclaimed property, under the Revised Uniform Unclaimed Property Act [765 ILCS 1026/15-201].

 

1)         For the purposes of this Section, "good faith effort" means that the Department took all necessary and reasonable steps to locate all aggrieved employees, including phone calls, electronic mail, and electronic searches for each aggrieved employee, even if those steps were not successful. "Good faith efforts" are those that one could reasonably expect from a person who is actively attempting to contact an aggrieved employee.

 

2)         Each respondent who provides wages, compensation, damages, penalties, or fees under this Section shall be assigned a vendor number by the Department.  The vendor number shall be communicated to the Illinois State Comptroller’s Office. When an aggrieved employee makes a valid request for payment to the Department, the Department shall use the vendor payment number to process payment on behalf of the aggrieved employee.  [820 ILCS 115/11.5(b)]

 

c)         When the Department can locate the claimant or other aggrieved employee, the Department shall remit payment of wages or other compensation owed within 120 days after the Department received such payment from the employer or located the claimant or other aggrieved employee.

 

(Source:  Amended at 47 Ill. Reg. 5406, effective March 31, 2023)

SUBPART I: COMPLAINTS FOR RETALIATION

 

Section 300.1220  Filing of a Complaint, Investigation and Service

 

a)         An employee or an employee's representative may file a complaint with the Department alleging unlawful retaliation by submitting a complaint on a form provided by the Department.  Complaints shall be filed within one year from the date of the alleged discriminatory action.

 

b)         The Department will notify the employer of the existence of the complaint and provide the employer an opportunity to submit a response to the complaint along with any documentation necessary for the Department's investigation of the complaint.

 

c)         If an employer fails to answer the complaint or fails to answer all material allegations contained in the complaint, any unanswered allegations shall be deemed admitted to be true.

 

d)         The Department will review the information provided by the parties in order to determine whether unlawful retaliation has occurred.  If the review demonstrates there is reason to believe the Act has not been violated, the complaint will be dismissed.  If the review demonstrates that there is reason to believe the Act has been violated, the matter will be set for a formal administrative hearing.  The Department will notify both parties of its determination and may issue appropriate orders.

 

e)         Service of any document under this Section shall be in accordance with Section 300.940(c).

 

f)         All hearings held under this Section shall be conducted pursuant to Subpart G.

 

(Source:  Added at 38 Ill. Reg. 18517, effective August 22, 2014)