November 25, 2015 Urban Lawyer

Combatting Wage Theft in Illinois: Administering & Enforcing the IWPCA

by Scott D. Miller

Scott D. Miller is a Staff counsel, American Federation of State, County and Municipal Employees (AFSCME Council 31); former Chief Legal Counsel, Illinois Department of Labor (IDOL). The author helped draft the 1992 regulations for the IWPCA during his employment at IDOL. The views expressed in this article are solely the author’s.

I.   Introduction

Illinois has a long history of combatting wage theft. It began with the labor movement’s campaign to end the employment practice during the 1870s and 1880s.1 “Wage theft” includes an employer’s underpayment, late payment, and nonpayment of wages, and the payment of wages with other than lawful money.2

Organized Labor’s efforts in Illinois during the late nineteenth century to eliminate wage theft culminated in the 1891 passage of legislation (labor standards)3 prohibiting some of the most egregious forms of the practice.4 Illinois subsequently enacted various union-supported wage payment and collection labor standards between 1895 and 1955,5 such as the 1937 law empowering the Illinois Department of Labor (IDOL) to investigate and mediate wage claims, take wage claim assignments, and prosecute an employer’s willful refusal to pay wages.6

Consolidating, strengthening, and replacing Illinois’ disparate wage payment and collection labor standards, the state enacted the Illinois Wage Payment and Collection Act (IWPCA) in 1973.7 It provides Illinois workers with a state and private “cause of action for the timely and complete payment of earned wages and final compensation without retaliation from employers.”8 IDOL is charged with its administration and enforcement.9

Wage theft persists today.10 In the 2010 study, Unregulated Work in Chicago,11 University of Illinois — Chicago (UIC) researchers estimated that “front-line workers in low-wage industries lose more than $7.3 million per week” to wage theft in Chicago and suburban Cook County, Illinois.12 Twenty-six percent of the workers surveyed in the study complained to their employers or attempted to form unions.13 Thirty-five percent of the complaining workers suffered from employer retaliation, including losing their jobs, threats of calls to immigration authorities, or the reduction in their work hours or wages.14

Citing the UIC study, Governor Patrick Quinn signed the 2010 amendment to the IWPCA empowering IDOL (in pertinent part) with the authority to convene formal administrative hearings on clams for $3000 or less.15 Illinois amended the IWPCA without fanfare in 2011, making it easier for municipalities with populations under 500,000 to recover overpayments in wages from their employees.16

Illinois amended the IWPCA again in 2013, charging IDOL with the authority to convene formal administrative hearings on claims of any amount (removing the $3000 ceiling)17 and increasing fees payable under the statute.18 It then amended the IWPCA in 2014 to permit employers to pay workers with payroll cards.19

This article examines the IWPCA as a tool to combat wage theft in Illinois. While the IWPCA contains numerous provisions that make the labor standard an excellent tool for the task,20 this article will focus on key statutory provisions addressing IDOL’s role in enforcing the timely and complete payment of earned wages and final compensation without retaliation from employers. To accomplish this job, the article will study, articulate, and apply the plain meaning, historical origins, and evolving political history of pertinent IWPCA provisions, regulations, and case law.21 Specifically, Part II surveys Illinois’ pre-IWPCA wage theft labor standards. Part III reviews the pre-2010 IWPCA and its regulations. Part IV reviews the amendments to the IWPCA and its regulations between 2010 and 2014.

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