ILLINOIS DEPARTMENT OF LABOR

NOTICE OF PROPOSED AMENDMENTS

1) Heading of the Part: Payment And Collection Of Wages Or Final Compensation

2) Code Citation: 56 Ill. Adm. Code 300

3)

Section Numbers:

Proposed Actions:

 

300.450

Amendment

 

300.540

Amendment

 

300.620

Amendment

 

300.630

Amendment

 

300.720

Amendment

 

300.940

Amendment

 

300.941

Amendment

 

300.1070

Amendment

 

300.1160

Amendment

 

300.1180

Amendment

 

300.1190

Amendment

 

300.1200

Amendment

 

300.1210

Amendment

4) Statutory Authority: Illinois Wage Payment and Collection Act [820 ILCS 115]

5) Complete Description of the Subjects and Issues Involved: This Rulemaking implements Public Act 102-50 by changing the allowable penalty assessment amount from 2% of amount owed to 5% of amount owed. This Rulemaking implements P.A. 102-1065 and P.A. 102-1076 by establishing the process by which a general construction contractor may be liable for unpaid wages owed by their subcontractor. This Rulemaking also further clarifies when an employee may be entitled to reimbursement for necessary employment-related expenditures pursuant to Section 9.5 of the Act; and when an employer may deduct from an employee's wages. This Rulemaking clarifies the process by which proceedings under the Act will be heard by an Administrative Law Judge. This Rulemaking authorizes the Department and parties to choose to communicate electronically and authorizes the electronic payment of fines and fees. This Rulemaking establishes the process by which, if an employee who is owed wages cannot be located, the wages shall be transferred to the Office of the Treasurer as unclaimed property. This Rulemaking also establishes the process by which compensation recovered by the Department is disbursed to the aggrieved employee(s).

6) Published studies and reports, and sources of underlying data, used to compose this rulemaking: None

7) Will this rulemaking replace an emergency rule currently in effect? No

8) Does this rulemaking contain an automatic repeal date? No

9) Does this rulemaking contain incorporations by reference? No

10) Are there any other rulemakings pending on this Part? No

11) Statement of Statewide Policy Objective: This Rulemaking does not create or enlarge a State mandate as described in Section 3(b) of the State Mandates Act.

12) Time, Place, and Manner in which interested persons may comment on this proposed rulemaking: Comments on this proposed rulemaking may be submitted in writing for a period of 45 days following publication of this Notice. Comments should be submitted to:

Anna Koeppel
Illinois Department of Labor
Lincoln Tower Plaza
524 S. 2nd Street
Suite 400
Springfield, IL 62701

(217) 558-1270
Anna.Koeppel@illinois.gov

13) Initial Regulatory Flexibility Analysis:

A) Types of small businesses, small municipalities and not for profit corporations affected: This Rulemaking applies to employers of all sizes, except the State and Federal governments.

B) Reporting, bookkeeping or other procedures required for compliance: Employers must maintain payroll records for employees.

C) Types of professional skills necessary for compliance: None

14) Small Business Impact Analysis:

A) Types of businesses subject to the proposed rule:

11

Agriculture, Forestry, Fishing and Hunting

21

Mining

22

Utilities

23

Construction

31-33

Manufacturing

42

Wholesale Trade

44-45

Retail Trade

48-49

Transportation and Warehousing

51

Information

52

Finance and Insurance

53

Real Estate Rental and Leasing

54

Professional, Scientific, and Technical Services

55

Management of Companies and Enterprises

56

Administrative and Support and Waste Management and Remediation Services

61

Educational Services

62

Health Care and Social Assistance

71

Arts, Entertainment, and Recreation

72

Accommodation and Food Services

81

Other Services (except Public Administration)

92

Public Administration

B) Categories that the agency reasonably believes the rulemaking will impact including:

viii.

record keeping

x.

other potential impacted categories

15) Regulatory Agenda on which this rulemaking was summarized: This rulemaking was summarized on the Department's January 2022 Regulatory Agenda.

The full text of the Proposed Amendments begins on the next page:

TITLE 56: LABOR AND EMPLOYMENT

CHAPTER I: DEPARTMENT OF LABOR

SUBCHAPTER b: REGULATION OF WORKING CONDITIONS

PART 300

PAYMENT AND COLLECTION OF WAGES OR FINAL COMPENSATION

Section

 

300.100

Cash or Inventory Shortages (Repealed)

300.110

Failure to Follow Credit Card, Check-Cashing, Accounts Receivable Procedures (Repealed)

300.120

Acceptance of Disputed Paycheck (Repealed)

300.200

Cash Advance Repayment Agreement (Repealed)

300.210

Deduction Limit (Repealed)

300.220

Balance Due at Termination (Repealed)

300.230

Acceptance of Disputed Paycheck (Repealed)

300.300

Damaged Property (Repealed)

300.310

Acceptance of Disputed Paycheck (Repealed)

300.400

Return of Employer's Property (Repealed)

300.410

Deposit (Repealed)

300.420

Conditions of Return of Deposit (Repealed)

300.430

Time for Return of Deposit (Repealed)

SUBPART A: GENERAL PROVISIONS

Section

 

300.440

Jurisdiction

300.450

Definitions

300.460

Independent Contractor Exemption

SUBPART B: WAGES OR FINAL COMPENSATION

Section

 

300.500

Earned Bonuses

300.510

Earned Commissions

300.520

Earned Vacations

300.530

Severance

300.540

Reimbursement of Expenses

SUBPART C: PAYMENT OF WAGES OR FINAL COMPENSATION

Section

 

300.600

Payment of Wages

300.610

Gratuitous Payments at Separation

300.620

Individual Liability of Officers, Agents or Other Persons

300.630

Records and Notice Requirements

300.640

Refusal to Pay Wages or Final Compensation

SUBPART D: DEDUCTION FROM WAGES OR FINAL COMPENSATION

Section

 

300.700

Scope of Subpart D

300.710

Burden of Proof

300.720

Written Agreement Authorizing Deductions

300.730

Cash or Inventory Shortages

300.740

Failure to Follow Credit Card, Cash Checking, or Accounts Receivable Procedures

300.750

Cash Advance Repayment Agreement

300.760

Advanced Vacation Pay

300.770

Tuition Reimbursement

300.780

Training and Educational Expenses

300.790

Cash Advance Exception

300.800

Deduction Limit

300.810

Balance Due at Termination

300.820

Damaged Property

300.830

Return of Employer's Property

300.840

Uniforms Required by an Employer

300.850

Equipment Required by an Employer

300.860

Medical Examinations and Records

300.870

Deposit

300.880

Conditions of Return of Deposit

300.890

Time for Return of Deposit

300.900

Overpayment

300.910

Deductions From Bank Accounts

300.920

Acceptance of Disputed Paycheck

300.930

Notice of Disputed Deductions

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

Section

 

300.940

Filing of a Claim and Service

300.941

Employer Response, and Investigation, and Referral to Formal Administrative Hearing

300.942

Withdrawal of a Claim

SUBPART F: INFORMAL INVESTIGATIVE HEARING

Section

 

300.950

Scheduling and Notice of an Informal Investigative Hearing (Repealed)

300.960

Continuances (Repealed)

300.970

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

300.980

Participants at Informal Investigative Hearings (Repealed)

300.990

Contumacious Conduct at Informal Investigative Hearings (Repealed)

300.1000

Informal Telephone Hearings

300.1010

Issuance of Administrative Subpoena

300.1020

Review of Hearing Officer Determination (Repealed)

SUBPART G: FORMAL HEARINGS

Section

 

300.1028

Applicability

300.1030

Consolidation/Severance/Class Actions

300.1040

Scheduling and Notice of a Formal Hearing

300.1050

Manner and Service of Notice

300.1060

Formal Hearing Continuances

300.1070

Application of the Rules of Evidence, Pleadings and Procedures in a Formal Hearing

300.1080

Participants at a Formal Hearing

300.1090

Conduct in a Formal Hearing

300.1100

Telephone Hearing for a Formal Hearing

300.1110

Subpoenas for Investigation and Testimony at Hearing

300.1120

Ex Parte (One Party Only) Communications

300.1130

Disqualification of an Administrative Law Judge

300.1140

Consolidation/Severance (Repealed)

300.1150

Failure of a Party to Appear at a Formal Hearing

300.1160

Notice and Appeal of Department's Order

SUBPART H: DAMAGES, PENALTIES AND FEES

Section

 

300.1180

Non-Waivable Administrative Fee to the Department

300.1190

Statutory Damages Due to the Employee

300.1200

Additional Penalties Due to the Department and Employee

300.1210

Payment of Wages or Compensation Owed, Final Orders; Penalties, and Fees

SUBPART I: COMPLAINTS FOR RETALIATION

Section

 

300.1220

Filing of a Complaint, Investigation and Service

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. _____, effective _____.

SUBPART A: GENERAL PROVISIONS

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 any 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 pursuant to a terminated employment contract.

"Day" means a calendar day.

"Department" means the Illinois Department of Labor, its Director, and his or her 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 he or she represents.

"Party" means a claimant and any respondent or other named entity employer 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. _____, effective _____)

SUBPART B: WAGES OR FINAL COMPENSATION

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 have to pay for;

D) The length and duration to which the employer is receiving the benefit; and

E) Whether the expense or loss 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 a 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 is unable to recover expenses incurred related to services performed for the employer during the course of their employment, these expenses must be included in the final compensation owed to an employee at the end of their employment, in accordance with the Act.

c) Recordkeeping

An employer must maintain the following records pursuant to this Section for a period of 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

1) 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 in excess of those specified in its written policy, the employer shall be liable for full reimbursement of such expenses; and

2) A reimbursement shall be considered de minimis if it does not equal the fair market value of the expense.

Expenses incurred related to services performed for the employer are included in final compensation owed to an employee.

(Source: Amended at 47 Ill. Reg. _____, effective _____)

SUBPART C: PAYMENT OF WAGES OR FINAL COMPENSATION

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 and/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 significant ownership interest in the corporation or entity;

2) exercised operational control over significant aspects of the corporation's and/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 pursuant to 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 a claimant'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 time 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. _____, effective _____)

Section 300.630 Records and Notice Requirements

a) Regardless of an employee's status as either an exempt administrative employee, executive or professional, every employer shall make and maintain, for a period of not less than 3 years, the following true and accurate records for each employee: the name and address, the 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), the 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 a claimant 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 prior to 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 prior to 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 by reason 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. _____, effective _____)

SUBPART D: DEDUCTION FROM WAGES OR FINAL COMPENSATION

Section 300.720 Written Agreement Authorizing Deductions

a) Any written agreement between employer and employee claimant 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 period of time and the written agreement provides for that defined duration period of time, and provides for the same amount of deduction each pay period and allows for voluntary withdrawal for the deduction, 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. _____, effective _____)

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 Complaints 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 Applications shall be reviewed by the Department to determine whether there is cause for investigation. The Department will limit its investigation to reviewing the 3 years prior to the date the complaint was filed.

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 employer or claimant, 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 employer has the duty to 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 employer.

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

(Source: Amended at 47 Ill. Reg. _____, effective _____)

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

a) The respondent employer 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 employer's 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 an employer 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 21st day following the notice of claim.

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

e) The Department may consider untimely submissions by any either party, upon written request by the party within a reasonable period of time, if there is a showing that the delay was occasioned by good cause beyond the party's control. Examples of good cause include the non-receipt or delayed receipt of mail, accident, illness or other circumstances beyond the party's control.

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 the claimant or other party to appear at a hearing, shall not preclude a decision in their favor if, based upon all of the information contained in the record, they are entitled to such decision.

g) Upon timely request to the Administrative Law Judge assigned to the case, or their supervisor, prior to the beginning of an in-person hearing, a party may inspect the 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 prior to the hearing; when the request is timely made, the Department will provide the party making the request with an opportunity to inspect the file at least 24 hours prior to 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. _____, effective _____)

SUBPART G: FORMAL HEARINGS

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 his or her 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 shall not deny an aggrieved employee a claimant 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 prior to 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. _____, effective _____)

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 in accordance with 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 shall 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 shall be by certified check, cashier's check, or money order, made payable to the Illinois Department of Labor, or shall be made using an electronic payment system designated by the Department for such payments.

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. _____, effective _____)

SUBPART H: DAMAGES, PENALTIES AND FEES

Section 300.1180 Non-Waivable Administrative Fee to the Department

If the Department determines that a respondent an employer 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 employer 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. _____, effective _____)

Section 300.1190 Statutory Damages Due to the Employee

If the Department determines that a respondent an employer owes wages or final compensation to the claimant, statutory damages shall be assessed at 5%2% 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/or final compensation plus statutory damages, shall be due to the claimant and aggrieved employee within 15 days after the order becomes final.

(Source: Amended at 47 Ill. Reg. _____, effective _____)

Section 300.1200 Additional Penalties Due to the Department and Employee

If a respondent an employer fails to comply with the order within 15 days after the order becomes final, the respondent employer shall also be liable to the Department for a statutory penalty in the amount of 20% of the amount owed and shall be additionally liable to the claimant 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. _____, effective _____)

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

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

1) Mail two mail 2 separate certified checks, cashier's checks, or money orders to pay the amount of wages or compensation owed a final order 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] the "(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, pursuant to 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.

c) When the Department is able to locate the claimant or other aggrieved employee, the Department shall remit payment of wages or other compensation owed within 120 days of the Department having received such payment from the employer or of locating the claimant or other aggrieved employee.

(Source: Amended at 47 Ill. Reg. _____, effective _____)