Combatting Wage Theft in Illinois: Administering & Enforcing the IWPCA

II.  Pre-IWPCA Wage Theft Labor Standards

A.  The 1891 Wage Theft Laws

Illinois’ fight against wage theft began with the labor movement’s campaign to abolish the truck system in the state during the 1870s and 1880s.²² “Truck” means the “payment of wages in goods instead of cash.”²³ The truck system was a practice common in company towns (such as mining communities) during the late nineteenth century in which the employer owned a store (charging exorbitant prices) that (1) was the sole source for its workers to purchase food, clothing and supplies; and (2) the workers received their wages as credit (i.e., company scrip or chit) redeemable only at the company store.²⁴ The practice also affected “bakers, furniture makers and some laborers.”²⁵

In addition, Organized Labor campaigned during the late nineteenth century against infrequent and delayed paydays, arguing that the condition “provided what amounted to interest-free loans to employers.”²⁶ The marketplace’s feeble response to wage theft during this period was commercial wage collection agencies that attempted to collect a worker’s wages for a fee. “[E]mployees had little recourse in wage-collection cases. The small size of most claims, the cost and trouble of hiring a lawyer, and the likelihood of losing the case in a biased justice-of-the-peace court all promoted employer dishonesty.”²⁷

Organized Labor’s efforts to abolish the truck system and to prescribe the timely payment of wages in Illinois culminated in the 1891 passage of anti-truck legislation²⁸ and a law requiring the weekly payment of wages.²⁹ The anti-truck law further prohibited a covered employer from making wage deductions, except to recover pay advances and a sum the worker and employer mutually agreed to for a “hospital or relief fund for sick or injured” workers.³⁰

The two 1891 labor standards were enforceable as private rights of action.³¹ The Pullman Company (infamous for its company town — now a National Monument³² — that housed its workers and manufacturing facilities, and for the 1894 strike and national boycott Eugene V. Debs led against it) stopped deducting rent payments from its workers’ wages to comply with the anti-truck statute.³³

B.  Judicial Response to 1891 Wage Theft Labor Standards

Illinois’ 1891 wage theft labor standards fell subject to immediate and aggressive legal challenges.³⁴ The Illinois Supreme Court in Frorer v. People (1892),³⁵ and in Braceville Coal v. People (1893),³⁶ held that the anti-truck statute’s prohibition against truck stores, and the weekly wage payment legislation in total, respectively, were an unconstitutional depravation of the covered employers’ and employees’ liberty and property right to free contract.³⁷ The court applied the same logic in Kellyville Coal Co. v. Harrier (1904)³⁸ to invalidate the wage deduction pro- visions of the anti-truck law.³⁹

The Illinois Supreme Court’s response to the anti-truck and weekly pay labor standards was typical for that time period. The judiciary was “at odds with the Progressive era” (1890-1914) and the labor movement.⁴⁰ This conflict was exemplified by the United States Supreme Court’s 1905 decision, Lochner v. New York,⁴¹ invalidating a New York statute prohibiting employers from working bakers more than sixty hours per week.⁴² Writing for the majority of the Court, Justice Peckman opined:

There is no reasonable ground for interfering with the liberty of person or the right of contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state. . . . They are in no sense wards of the state.⁴³

In part, Justice Holmes wrote in dissent:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.⁴⁴

University of Chicago Professor Ernst Freund observed in his 1910 Illinois Law Review article, Constitutional Limitations and Labor Legislation,⁴⁵ that “[t]he novel doctrine of freedom of contract between capital and labor was inaugurated in 1886 by two decisions; one from Pennsylvania, and the other from Illinois.”⁴⁶ Applying the doctrine to wage payment labor standards, Professor Freund opined that it was

an obvious fallacy [for workers], unless the liberty to compete for employment upon unfavorable terms be regarded as a valuable right. . . . The only real right at issue in the wage payment acts is that of the employer, the right of the owner of a business to direct its internal arrangement according to his own discretion.⁴⁷

The doctrine of freedom of contract between capital and labor “haunts” our current jurisprudence.⁴⁸ Justice Holmes’ dissent in Lochner is canonical in United States constitutional law,⁴⁹ while Justice Pechman’s majority opinion in Lochner is among its anti-canon.⁵⁰

Nonetheless, provocateurs from America’s political right currently praise Lochner,⁵¹ arguing that the decision is “widely misunderstood and unfairly maligned.”⁵² For example, in his 2011 book, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, Professor David Bernstein argued that the Lochner Court correctly struck down the New York statute because it was improper class legislation passed to benefit a particular interest group (i.e., the Bakery and Confectionary Workers’ International Union sought to codify their gains in lowering working hours) rather than people more generally.⁵³

Professor Bernstein’s argument is betrayed by his antipathy towards Organized Labor and labor standards,⁵⁴ his historical revisionism,⁵⁵ and his quarrel with the post-Lochner era’s  

declared. . . . policy of the United States to . . . encourag[e] the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.⁵⁶

The United States Supreme Court never officially overruled Lochner.⁵⁷ It simply changed its “understanding of the facts.”⁵⁸ For example, the United States Supreme Court in Erie R.R. Co. v. Williams (1914)⁵⁹ upheld New York State’s 1907 labor standard prohibiting company stores and requiring semi-monthly wage payments in cash.⁶⁰ The Court subsequently upheld the Oregon ten-hour day law for women in Muller v. Oregon (1908),⁶¹ and a ten-hour day statue for male and female manufactory workers in Bunting v. Oregon (1917).⁶²

A changed understanding of the facts came later to the Illinois judiciary. Citing Frorer and Braceville Coal, the Illinois Supreme Court in Richie v. People (1895)⁶³ found that the 1893 statute limiting the hours a woman could work in a factory or workshop to eight hours per day violated a covered employer’s and employee’s liberty and property right to free contract.⁶⁴ After Muller, however, the court in Richie & Co. v. Wayman (1910)⁶⁵ upheld Illinois’ 1909 labor standard limiting the number of hours a woman could work in mechanical establishments, factories, or laundries to ten hours per day.⁶⁶

Wayman did not herald the Illinois Supreme Court’s abandonment of the doctrine of freedom of contract between capital and labor. For example, the court opined in Reid v. Smith (1940)⁶⁷ that the state’s 1939 enactment of the Prevailing Wage Act (a labor standard requiring contractors to pay prevailing wage rates on public works construction) violated a contractor’s freedom of contract.⁶⁸ Upon observing in 1953 that the United States Supreme Court had “steadily subordinated liberty of contract to protective legislation,”⁶⁹ the Illinois Supreme Court in Vissering Mercantile Co. v. Annunzio (1953) upheld the state’s Mini- mum Wage Act (a labor standard charging IDOL with setting minimum wage rates for women and minors) as a reasonable exercise of police powers.⁷⁰ It also upheld the constitutionality of Illinois’ 1940 enactment of the Prevailing Wage Act in Bradley v. Casey (1953).⁷¹

C.  The 1895–1955 Wage Theft Labor Standards

Illinois responded to the judicial invalidation of the two 1891 wage theft labor standards by passing a new anti-truck law in 1895.⁷² The statute provided an employee paid in “time check or store order” with the option of redeeming such company “scrip” with bankable currency.⁷³

Illinois repealed and replaced the 1895 labor standard in 1917.⁷⁴ The 1917 statute prohibited any “person, corporation or firm engaged in any business or enterprise within” Illinois from making wage payments in acknowledgments of indebtedness unless they were redeemable in United States currency upon demand at the employer’s business premise.⁷⁵

Illinois enacted a wage payment law in 1903⁷⁶ that required all corporations doing business in Illinois to pay their employees in full on their regular pay date.⁷⁷ It further declared any contracts or agreements to the contrary “illegal, against public policy and null and void.”⁷⁸ The statute provided an exception, whereby an employer could contract to retain a part of its employees’ wages “for the purpose of giving said . . . [employees] insurance hospital, sick or other similar relief.”⁷⁹ The law charged the state’s attorneys with the duty to enforce its terms in their respective counties.⁸⁰

Illinois enacted semi-monthly wage payment legislation in 1913.⁸¹ Organized Labor (particularly the railroad brotherhoods) demanded its passage.⁸² In pertinent part, the 1913 statute provided that every for-profit corporation engaged in any business or enterprise within Illinois shall “semi-monthly pay to every employee engaged in its business all wages or salaries earned by such employee to a day not more than eighteen (18) days prior to the date of such payment.”⁸³ It further prohibited a covered employer from securing an exemption from the law “by special contract with employees or by any other means.”⁸⁴

Illinois amended the 1913 statute in 1955.⁸⁵ The amendments changed the length of a pay period from eighteen to thirteen days,⁸⁶ excluded “earning on a commission basis” from the statute’s protection,⁸⁷ and charged IDOL with administrating and enforcing the act.⁸⁸

The Illinois Supreme Court in Pullman Co. v. Cummins (1957)⁸⁹ opined that the primary purpose of the 1913 statute was to protect employees who “require prompt wage payments for the necessities of life.”⁹⁰ At issue in Pullman was whether the compensation formula contained in the sleeping-car porters’ and conductors’ collective bargaining agreement with the employer was a special contract in violation of the Act.⁹¹ Reconciling the Railway Labor Act⁹² with the 1913 labor standard, the Pullman court held that special contracts prohibited by the statute were “individual contracts between the employer and individual employees,” not collective bargaining agreements.⁹³ The Court explained, “employers had an unfair economic advantage over individual wage earners because of their superior economic power, including the present control over the means of livelihood in an industrial system and took advantage of such wage earners’ absolute necessity to make a living on any terms available.”⁹⁴

Lastly, Illinois enacted legislation in 1937⁹⁵ empowering IDOL to investigate and mediate wage claims,⁹⁶ take wage claim assignments,⁹⁷ and prosecute an employer’s willful refusal to pay wages.⁹⁸ It expressly excluded government employees from its protection.⁹⁹ Limiting the protective scope of the act, the Illinois Supreme Court in Conlon-Moore Corp. v. Johnston (1961)¹⁰⁰ determined that vacation pay was not a wage:

[a]  reading of the statute as a whole . . . reveals that . . . it is dealing with wage payments that are due and payable at regular intervals, and its purpose is to insure that such payment are promptly made. But vacation pay, by its very nature, is not ordinarily intended to be paid at regular intervals. Instead, it is intended to be ac- cumulated until the vacation period arrives.¹⁰¹

The 1937 Wage Payment Act represented the Illinois General Assembly’s adoption of the National Conference on Labor Legislation’s model wage payment and collection act.¹⁰² The Conference was a series of annual meetings facilitated by the United States Department of Labor’s Bureau of Labor Standards between 1934 and 1954.¹⁰³ State labor commissioners and union leaders gathered at the meetings to discuss their experiences and to keep up-to-date on labor standards. The Bureau drafted labor legislation and provided research and advice to the states on safety codes and other matters pertaining to labor conditions.¹⁰⁴

III.  The Pre-2010 IWPCA and its Regulations

In his 1966 Illinois Bar Journal article, The Case for a Modern Illinois Labor Code,¹⁰⁵ Professor Alfred Kamin characterized the wage thefts labor standards Illinois enacted between 1895 and 1955 as “disconnected and inconsistent efforts to insure that employees will receive in full in cash and not in kind their earned wages on a regular pay day.”¹⁰⁶ He argued for legislation to “codify and update the disparate wage guarantee laws of Illinois. . . . The unorganized, the native migrant, the underpaid and the overworked — the inhabitants of The Other America urgently need the protection of a modern Illinois labor code.”¹⁰⁷

Major changes in the United States labor market became apparent during the 1970s.¹⁰⁸ This included a “notable retardation in real wages”¹⁰⁹ and a “declining proportion of workers in Trade Unions.”¹¹⁰ The recession of November 1973 to March 1975 (with slowed growth beginning in March 1973) was the most serious since 1937.¹¹¹

In this context, Illinois enacted the IWPCA in 1973.¹¹² Its primary purpose was to assist individuals who could not afford to collect their wages from unscrupulous employers.¹¹³ As the Illinois Appellate Court, First District observed in Stafford v. Bowling (1980),¹¹⁴ the IWPCA expressly replaced the 1903, 1913, and 1937 labor standards discussed in Part II.C,¹¹⁵ updating and consolidating many of their salient substantive provisions.¹¹⁶

The First District further observed in Metropolitan Distributors, Inc. v. Illinois Department of Labor (1983)¹¹⁷ that the IWPCA reflected the General Assembly’s acceptance of the 1971 Commission on Labor Laws’ recommendations.¹¹⁸ The Commission (comprised of legislators and representatives from labor, management, academia and IDOL) provided a detailed report and proposals to the governor and the General Assembly concerning legislative and administrative revisions to Illinois’ labor and employment laws.¹¹⁹

The Commission observed that “[t]he right to payment for work performed is probably the most basic right of labor.”¹²⁰ In furtherance of this axiom, the Commission recommended combining Illinois’ “wage payment and collection laws . . . into a single statute, administered and enforced by the Department of Labor.”¹²¹

This Part discusses key provisions of the 1973 IWPCA and its pre- 2010 amendments that enhanced IDOL’s role in enforcing the timely and complete payment of earned wages and final compensation with- out retaliation from employers. It also discusses key provisions of the pre-2010 IWPCA regulations that furthered this goal.

A.  IWPCA § 1

Section 1 of the 1973 IWPCA updated the coverage limitations of the 1913 and 1937 wage theft labor standards by covering all private employers, not just for-profit corporations.¹²² Illinois extended the protective scope of the IWPCA in 1985 by amending Section 1 to include “employees of local government and school districts, but exempting employees of the state or federal governments.”¹²³

State and federal employees may file actions under the Fair Labor Standards Act of 1938 (FLSA)¹²⁴ for minimum wage and overtime pay when their respective employer fails to timely pay their wages.¹²⁵ Given the difficulty the State of Illinois has in determining which of its employees are covered by (versus exempt from) the FLSA, such an action by state workers may lead to an order compelling the comptroller to pay their complete payroll (rather than minimum wage and overtime pay) on a timely basis.¹²⁶

B.  IWPCA § 2

The Commission considered the lack of a definition for the term “wages” to be an “example of inadequate coverage by the present law” (i.e., the pre-1973 wage theft labor standards).¹²⁷ As a result, the Commission recommended, and the General Assembly adopted as section 2 of the IWPCA in 1973:

For all employees, other than separated employees, “wages” shall be defined as compensation for labor or services rendered, whether the amount is determined on a time, task, piece, or any other basis of calculation. Payments to separated employees shall be termed “final compensation” and shall be defined as wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays.¹²⁸

Section 2 thus incorporated the Illinois Supreme Court’s construction of the term “wage” from the 1937 statute in Conlon-Moore Corp. v. Johnston (1961).¹²⁹ It also created a new term, “final compensation,” to cover earned commissions (expressly excluded from the 1937 statute) and other forms of remuneration that the court excluded in Conlon-Moore from the definition of “wage,” such as earned vacation.¹³⁰ Illinois amended (in pertinent part) section 2 in 1983 by:

1.    substituting in the definition of “wages,” “any compensation owed an employee by an employer pursuant to any employment contract or agreement between the 2 parties” for “compensation for labor or services rendered;” and

2.    inserting in the definition of “final compensation,” “and any other compensation owed the employee by the employer pursuant to an employment contract or agreement between the 2 parties.”¹³¹

The purpose of the 1983 amendment was to clarify that the IWPCA “appl[ied] to verbal agreements . . . as well as written employment contracts,” rather than to change the meaning of the terms, “wages” and “final compensation.”¹³² Illinois courts have construed the phrase, “contract or agreement,” to provide workers “with remedies more expansive than a common law breach of contract action,”¹³³ observing that:

[a]n ‘agreement’ is broader than a contract and requires only a manifestation of mutual assent    [P]arties may enter into an ‘agreement’ without the formalities and accompanying legal protections of a contract.......... [A] plaintiff seeking to recover under [the IWPCA] does not need to plead all contract elements if she can plead facts showing mutual assent to terms that support the recovery.¹³⁴

C.  IWPCA §§ 3 and 4

Addressing the historic need for frequent paydays (i.e., stopping what amounted to interest-free loans to employers as a result infrequent and delayed paydays),¹³⁵ the Commission recommended, and the General Assembly adopted as section 3 of the IWPCA in 1973, a semi-monthly pay period for all earned wages, except an employer may pay earned commissions and wages for employees covered by FLSA § 13 (a) (1) (white collar employees exempt from its minimum wage and overtime standards) on a monthly basis.¹³⁶ Consistent with, and updating the 1913 and 1937 statutes, section 4 of the 1973 enactment required the payment of all wages earned:

1.  semi-monthly or bi-weekly within thirteen days after the end of the pay period the worker earns them;

2.  weekly within seven days after the pay period the worker earns them;

3.  daily upon the day the workers earns them, and no later than 24 hours after said day; and

4.  by an employee covered by section 13 (a) (1) of the Fair Labor Standards Act of 1938 within 21 calendar days after the pay period.¹³⁷

Codifying the Illinois Supreme Court’s reconciliation of the 1913 labor standard with the Railway Labor Act in Pullman Co. v. Cummins (1957),¹³⁸ section 4 did not apply if a valid collective bargaining agreement provided for a different date or wage payment arrangement.¹³⁹ It is also consistent with current case law harmonizing the preemptive effect of collective bargaining agreements under section 301 of the Labor Management Relations Act (LMRA),¹⁴⁰ section 15 of the Illinois Public Labor Relations Act (IPLRA),¹⁴¹ and section 17 of the Illinois Educational Labor Relations Act (IELRA)¹⁴² on wage theft labor standards.¹⁴³

Furthermore, consistent with the 1891 and 1895 anti-truck statutes and their 1917 replacement, section 4 reflected the Commission’s recommendation to require an employer to pay all wages and final compensation in United States currency or by check redeemable in cash upon demand and without discount at a financial institution.¹⁴⁴ The legislature amended section 4 in 1977 to provide for the payment of wages and final compensation by direct deposit “designated by the employee.”¹⁴⁵

Illinois amended section 4 again in 1995 to prohibit an employer from designating “a particular financial institution, bank, savings bank, savings and loan, or currency exchange for the exclusive payment or deposit of a check for wages.”¹⁴⁶ The 1995 amendment further stated that no such institution was excused from honoring the instrument because it “is not the drawee or the maker of the check.”¹⁴⁷ As a result, section 4 requires an employer to pay each of its employees his/ her wages or final compensation in cash, or by check readily converted into cash without discount (or the need of a personal bank account), unless an employee volunteered to be paid by direct deposit in an account at an bank or financial institution of his/ her choice.¹⁴⁸

D.  IWPCA § 5

Updating the 1913 and 1937 statutes, section 5 of the 1973 enactment required that “[e]very employer shall pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case later than the next regularly scheduled payday for such employee.”¹⁴⁹ The Illinois General Assembly strengthened a separated employee’s claim to his/ her earned vacation in 1979 by adding a second paragraph to section 5:

Whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all of his earned vacation time, all earned vacation shall be paid to him as final compensation at his final rate of pay in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of earned vacation time upon separation.¹⁵⁰

Representative McPike explained the purpose of the provision at the close of its 1979 House debate:

an employee not only earns wages, but an employee earns vacations. You earn it as you work. You work a month and you earn 1 day of vacation. Now, if you are terminated from your job, if you’re laid off for some reason, or . . . even if you decide to quit on your own, whatever wages, whichever compensation are due to you at that point, the employer is required to pay that compensation. He’s required to pay the compensation to you if it’s hours work, or days work, or if its holiday vacation earned. It is not something that he is giving you, it is something they have earned.¹⁵¹

Senator Bruce explained the amendment during the bill’s third reading on the Senate floor as a provision preventing the employer practice of “I’m going to fire you and, by the way, the five vacation days you have coming, I’m not going to pay you for.”¹⁵²

The Illinois Appellate Court, First District in Golden Bear Family Restaurants, Inc. v. Murray (1986)¹⁵³ opined that section 5 of the IWPCA provides that (1) “an employee earns vacation pay pro rata” and (2) “expressly forbids an employment contract or employment policy to forfeit an employee’s earned vacation pay upon separation.”¹⁵⁴ A vacation plan violates section 5 of the IWPCA if it affects a forfeiture of earned vacation when a worker is not employed on a specific date.¹⁵⁵ 

The court buttressed its conclusion by referencing the California Supreme Court’s decision¹⁵⁶ in Suastez v. Plastic Dress-Up Co. (1982).¹⁵⁷ The Suastez court construed section 227.3 of the California Labor Code (a provision similar to section 5 of the IWPCA) as providing that

[t]he right to a paid vacation, when offered in an employer’s policy or contract of employment, constitutes deferred wages for services rendered. [O]nce it is acknowledged that vacation pay is not an inducement for future services, but is compensation for past services, the justification for demanding that employees remain for the entire year disappears. If some share of vacation pay is earned daily, it would be both inequitable to hold that employment on any arbitrary date is a condition precedent to the vesting of the right to such pay.¹⁵⁸

Illinois amended the second paragraph of section 5 in 1983:

Unless otherwise provided in a collective bargaining agreement, whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all vacation time earned in accordance with such contract of employment or employment policy, the monetary equivalent of all earned vacation shall be paid to him or her as part of his or her final compensation at his or her final rate of pay and no employment contract or employment policy shall provide for forfeiture of earned vacation time upon separation.¹⁵⁹

Representative Homer explained that the bill, “was recommended by the Department of Labor, and it simply is a clarification Bill. It clarifies. . . language that’s found in the Section dealing with terminal vacation pay. . . . Vacation “must be paid to the employee upon termination and cannot be suspended from [her] by law.”¹⁶⁰

The Illinois Appellate Court, Fourth District in Mueller Co. v. Department of Labor (1989)¹⁶¹ held that 1983 amendment to section 5 “did not alter the forfeiture clause.”¹⁶² Upon review of the amendment’s legislative history, the Mueller court concluded that:

[t]he primary objective of the Act is to ensure employees receive all earned benefits upon leaving their employer and the evil it seeks to remedy is the forfeiture of any of those benefits. To follow the interpretation urged by the plaintiff would allow any employer to negate the protection provided by the Act simply by varying the terms of its employment policy or contract. We note that such variations are permitted by the Act in context of collective bargaining but not in the situation presented to us here.¹⁶³

E.  IWPCA § 9

The Commission recommended, and the General Assembly adopted as section 9 of the IWPCA in 1973, a provision (consistent with the 1891 anti-truck law and the 1903 statute) that prohibited an employer from making unilateral deductions from an employee’s wages, except “for lawful purpose, or where they are to the benefit of the employee.”¹⁶⁴

In addition, section 9 created a process for an employer to withhold a disputed deduction.¹⁶⁵ The process began with the employer notifying IDOL in writing when the payment was due concerning the amount it withheld and why it withheld the funds.¹⁶⁶ This notification required IDOL to investigate the dispute and render a judgment within thirty days.¹⁶⁷ It further charged IDOL with promulgating regulations protecting employees and employers in disputed deduction cases.¹⁶⁸ IDOL issued rules implementing the section 9 disputed deduction provision in 1975.¹⁶⁹

Illinois expanded the scope of section 9 in 1979 to cover final compensation.¹⁷⁰ It also replaced the lawful deduction to the benefit proviso with a checklist, stating that the IWPCA prohibited deductions from wages or final compensation unless they were:

1.   “required by law;”

2.   “to the benefit of the employee;”

3.   “in response to a valid wage assignment or wage deduction order;” or

4.   “made with the express written consent of the employee, given freely at the time the deduction is made.”¹⁷¹

Reading the section 9 checklist in harmony with the provision’s disputed deduction language and evolving political history,¹⁷² section 9(1)–(3) permitted an employer to make deductions from an employee’s wages or final compensation only when it rendered the deductions as an agent passing the funds from the employee to a third party, such as taxes (required by law), health insurance, and union dues (to the employee’s benefit), or to a debtor (a wage assignment or deduction order), and did not benefit from the deductions itself, unless the employer was the debtor for the wage assignment or deduction order. Otherwise, the employer could not benefit from the deductions unless the worker gave his/ her express written consent for the deductions at the time the deductions were made per section 9(4), or IDOL issued a judgment permitting the disputed deductions.¹⁷³ Illinois further strengthened section 9 in 1981, requiring an employer to timely pay an employee all wages it conceded were due in a wage dispute.¹⁷⁴ Consistent with the 1903 and 1913 bar against special contracts, the amendment also prohibited an employer from requiring a restrictive endorsement on a disputed paycheck.¹⁷⁵

Starting in the 1990s, Illinois began permitting certain public employers the authority to effect wage deductions to their benefit within narrow parameters. Specifically, per the 1997 amendment to section 9, a municipality with a population over 500,000 (the City of Chicago), a community college district within that municipality, the Chicago Park District, the Metropolitan Transit Authority, and the Chicago School Reform Board of Trustees could deduct up to twenty-five percent of an employee’s net wage payment upon “certifying that the employee has been afforded an opportunity for a hearing to dispute the debt . . . owed to the municipality for city services, work, or goods.”¹⁷⁶ Representative Burke explained on the House floor:

This Bill . . . would permit the City of Chicago to deduct amounts owed to the city for water bills, city stickers, parking tickets, et cetera from paychecks of employees of the Chicago Park District, the CTA, the Chicago Public Schools and city colleges.¹⁷⁷

Senator Dudycz observed on the Senate floor, that there were approximately “fifteen thousand employees of these entities of owing almost seven million dollars to the City of Chicago.”¹⁷⁸

Illinois amended section 9 again in 2001 to include a county with a population over three million (Cook County), the Cook County Forest Preserve, the Metropolitan Water Reclamation District, and a housing authority within such a county, within the 1997 City of Chicago debt collection proviso.¹⁷⁹ It also made the provision reciprocal among the listed public employers.¹⁸⁰ A 2002 amendment clarified that the modified City of Chicago debt collection proviso included the Chicago Housing Authority — “a housing authority in a municipality with a population of 500,000 or more,”¹⁸¹

F. IWPCA §§ 6, 11, 12 and 14

Expanding upon the 1913 and 1937 statutes, sections 6, 11, 12, and 14 of the 1973 enactment charged IDOL with the duty to administer and enforce the act, by investigating, mediating, and collecting wage claims; taking assignment of wage claims and prosecuting employers that willfully underpay, or fail to pay, wages and/ or final compensation; and promulgating regulations in furtherance of its charge.¹⁸² The 1973 statute also reflected the Commission’s recommendations for section 14 to:

1.  make the willful underpayment or nonpayment of wages and final compensation a Class C misdemeanor;¹⁸³ and

2.  provide civil penalties of one percent per calendar day to the worker for each day an employer fails to pay an employee’s wages per an IDOL or court order, up to twice the sum of the unpaid wages and final compensation.¹⁸⁴

In addition, sections 11 and 14 create a private right of action for workers to prosecute wage and final compensation claims and penalty actions under the statute.¹⁸⁵ Illinois amended the IWPCA again in 1983, creating section 14(c).¹⁸⁶ The new provision made it a Class C misdemeanor for an employer to knowingly retaliate against a worker:

1.  for complaining to it or IDOL that the employer did not pay his/  her wages per the IWPCA,

2.  because the worker initiated or caused to be initiated a proceeding under or related to the IWPCA or

3.  testified or was about to testify in an investigation or proceeding under the statute.¹⁸⁷

The 1983 enactment did not provide workers with either an express or an implied private civil action to remedy such conduct.¹⁸⁸

G. 1992 Rulemaking

By the late 1970s, IDOL had developed the practice of convening informal hearings to investigate, conciliate, and issue demands for the payment of wages and final compensation as its method of administering and enforcing the IWPCA.¹⁸⁹ The Illinois Appellate Court, First District opined in Stafford v. Bowling (1980),¹⁹⁰ that IDOL was “not required to use the most formal and rigorous of procedures” to resolve disputes in its investigative hearings.¹⁹¹

The Illinois State Bar Association (ISBA) argued that IDOL’s informal investigative hearings under the IWPCA were chaotic, providing different procedures and evidentiary standards per hearing officer.¹⁹² As a result of the ISBA’s lobbying efforts,¹⁹³ the General Assembly amended section 12 of the IWPCA in 1991, giving IDOL one year to promulgate “regulations necessary to administer and enforce the provision of this Act including the procedures that shall be followed for hearings under section 6 of this Act.”¹⁹⁴

IDOL published regulations in 1992 that defined key terms, updated its rules proscribing deductions, and set forth its investigative procedures (including the convening of informal investigative conferences) concerning claims for wages and final compensation.¹⁹⁵ The rulemaking also clarified that an employer could not implement direct deposits per the 1977 amendment to section 4 of the IWPCA unless the subject employee volunteered to be paid in that manner via an account at a bank or financial institution of his/ her choice.¹⁹⁶

1.  KEY DEFINITIONS

To provide guidance regarding a worker’s right to final compensation, the rulemaking defined the section 2 terms, earned bonuses, commissions, and vacation. The following reviews this rulemaking.

a.  Earned Bonuses

The rulemaking contains a general definition for an earned bonus and the criteria for when a worker has a claim for a proportionate share of a bonus earned by length of service at separation:

(a) A claim for an earned bonus arises when an employee performs the requirements for a bonus set forth in a contract or an agreement between the parties.

(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 be an act of the employer through no fault of the former employee.¹⁹⁷

The regulation codified the prevailing case law in 1992 for the general definition.¹⁹⁸ IDOL explained in its Second Notice¹⁹⁹ for the rulemaking that it premised the criteria for a pro-rata bonus²⁰⁰ on Camillo v. Wal-Mart Stores, Inc. (1991)²⁰¹and Tidwell v. Toyota Auto Mart, Inc. (1978).²⁰²

b.  Earned Commissions

The definition of earned commissions in the rulemaking codified the “procuring cause rule,” from the prevailing case law in 1992. “Absent an express agreement to the contrary, an employee who is the procuring cause of a sale or other transaction is entitled to commission, not-withstanding the fact that the sale or other transaction was consummated by the principal personally or through another agent.”²⁰³

The procuring cause rule is a common law principle designed to protect an employee-at-will’s interest in a sales commission when s/he has done everything necessary to affect a sale, but whose employment has terminated before the transaction was fully consummated.²⁰⁴ To determine whether the employee has “done everything necessary,” Illinois courts look to the “compensation agreement and the practice of the parties.”²⁰⁵

c.  Earned Vacation

The rulemaking codified the holdings from Golden Bear Family Restaurants and Mueller Co. concerning a worker’s claim at separation for the proportionate share of vacation time s/he earned by length of service:

(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.²⁰⁶

Adopting the Golden Bear Family Restaurant court’s reference to California law,²⁰⁷ the rulemaking also incorporated language from a 1986 California bulletin interpreting section 227.3 of the California Labor Code.²⁰⁸ As a result, the IWPCA regulation treated “paid days off ” (better known as paid time off or PTO) that an employee can use for any purpose, including personal, vacation, or sick leave, as earned vacation for purposes of section 5 of the IWPCA.²⁰⁹

2.  DEDUCTIONS FROM WAGES OR FINAL COMPENSATION

The 1992 rulemaking repealed the section 9 disputed deduction regulations in the 1975 IWPCA.²¹⁰ In their place, the 1992 rulemaking provided:

1.    the burden of proof for establishing an exception to section 9 of the IWPCA;

2.    standards for the application for section 9(4) IWPCA written agreements authorizing deductions; and

3.    the procedure for IDOL to process disputed deductions. The following reviews this rulemaking.

a.  Burden of Proof

Except as provided by exceptions carved out in section 9, the IWPCA prohibits employers from making deductions from an employee’s wages or final compensation.²¹¹ The exceptions that section 9 provides to the general rule prohibiting deductions are contained in the check- list of permissible deductions (section 9(1) – (4)) and the disputed deduction procedure.²¹² The 1992 rulemaking codified the Northern District of Illinois’ opinion in Calderon v. Witvoet (1991)²¹³ that it is the employer’s burden of proof that section 9(1)-(4) or the disputed deduction procedure applies to a particular matter.²¹⁴

b.  Standards for Section 9(4) Written Agreements Authorizing Deductions

The 1992 rulemaking established a general rule and two exceptions for applying section 9(4) of the IWPCA. The general rule mirrored the section 9(4) text: an employee must enter into a written agreement authorizing a deduction freely and contemporaneous to the deduction.²¹⁵ The first exception concerned cash advances.²¹⁶ An employee may enter into a written agreement providing a repayment plan for a cash advance through wage deductions contemporaneous to the deduction or contemporaneous with the advance.²¹⁷

The rulemaking permitted an employer to apply the cash advance exception to advanced vacation pay²¹⁸ and tuition reimbursement.²¹⁹ Otherwise, for example, unless the employer followed the general rule or the procedure for disputed deductions,²²⁰ it could not make a deduction from an employee’s wages or final compensation to recover a cash or inventory shortage,²²¹ property damage,²²² or the employee’s failure to return the employer’s property.²²³

The second exception applied to overpayments.²²⁴ Upon an agreement (not necessarily in writing) from the subject employee, the rulemaking allowed an employer to deduct the complete amount of the overpayment on the employee’s first regular payday after the overpayment was made.²²⁵ The employer would have to follow the cash advance exception to recover its money if the overpayment was discovered after one or more pay periods had passed after the overpayment.²²⁶ In the absence of an unwritten or written repayment plan, an employer would have to follow the disputed deduction procedure to recover the overpayment.²²⁷

c.  Disputed Deduction Procedure

The 1992 rulemaking established a procedure for an employer to affect a disputed deduction under section 9 of the Act.²²⁸ Specifically, the employer must request permission from IDOL in writing prior to making a disputed deduction.²²⁹ The employer must establish in its written request that:

1.     “the employee is indebted to the employer in an amount equal to or greater than” the sum the employer seeks to withhold from the employee’s wages or final compensation;²³⁰ and

2.     it would be inequitable for the employer to pay the employee before the employee repays the debt to the employer.²³¹

IDOL will notify the employee of the proposed deduction and provide the worker with an opportunity to contest the deduction.²³²

3.   INVESTIGATIVE PROCESS

The 1992 rulemaking required a worker to file an IWPCA claim with IDOL within 180 days after the wages or final compensation were due.²³³ IDOL’s investigation was limited to three years prior to the date the claim was filed.

IDOL would notify²³⁴the employer by mail of the claim, and furnish the employer with a copy of the claim to enable a reasonable response.²³⁵ In addition, IDOL would inform the employer that it must pay all undisputed wages or final compensation.²³⁶ It would also ask the employer to explain with what it agreed and disagreed about the claim and to attach all documents supporting its position.²³⁷ IDOL would forward the employer’s response disputing the claim to the worker.²³⁸ IDOL would then ask the worker to complete a form stating with what s/he agreed and disagreed concerning the employer’s response, and to attach all documents supporting her position.²³⁹

IDOL did not schedule all pending claims for informal investigative hearings.²⁴⁰ IDOL convened an informal investigative hearing on a claim to gather additional information, to facilitate settlement of the claim, and to ascertain whether there was sufficient evidence to recommend prosecution.²⁴¹ Otherwise, IDOL would issue a wage payment demand or a dismissal notice on the claim, based upon a review of the information submitted by the parties during its investigation.²⁴²

Informal investigative hearings were not judicial in nature and did not result in a final administrative decision.²⁴³ The rules of evidence, pleading, and procedure did not apply.²⁴⁴ If an employer refused to comply with a wage payment demand, IDOL (represented by the Illinois Attorney General) would bring an action in circuit court in a trial de novo on the employer’s alleged violations of the IWPCA.²⁴⁵

IV.  The Post-2010 IWPCA and its Regulations

A. The 2010 Amendment to the IWPCA

Illinois retooled the IWPCA in 2010,²⁴⁶ making the labor standard among the strongest wage theft statutes in the country.²⁴⁷ The amendment reflected a compromise reached between worker advocates, the Illinois Attorney General’s Office, IDOL, and the Illinois Manufacturers’ Association.²⁴⁸

The retooled IWPCA came upon the heels of the “Great Recession” of December 2007 – June 2009, the longest and deepest recession since the Great Depression of the 1930s.²⁴⁹ Approximately sixteen percent of people between the ages of twenty and sixty-four lost a job during the recession.²⁵⁰ African American and Latino workers, men, youth, and low-education workers felt the greatest impact of the labor market decline.²⁵¹ Post-recession job openings and hiring were far below their pre-recession levels.²⁵² “De-unionization” (i.e., the sharp decrease in “the role of collective bargaining in wage setting”)²⁵³ accounting for, in substantial part, the dramatic growth in “top-end wage inequality,”²⁵⁴ and the concomitant hollowing of the middle class (who have seen their income, wealth, and numbers shrink for the first time since World War II) added to the economic gloom.²⁵⁵ Given the “faltering economy,” Organized Labor backed the 2010 retooled IWPCA because “workers need[ed] each paycheck more than ever.”²⁵⁶

The following discusses three tools that the 2010 amendment added to the IWPCA which enhanced IDOL’s role in enforcing the timely and complete payment of earned wages and final compensation without retaliation from employers: formal administrative hearings to adjudicate wage theft claims, class actions and increased civil and criminal penal- ties, and civil or administrative actions to redress employer retaliation.²⁵⁷

1.   FORMAL ADMINISTRATIVE HEARINGS

The 2010 amendment to the IWPCA empowered IDOL (“subject to appropriations”) under section 11(d) of the statute to convene formal hearings and render final administrative decisions subject to the Administrative Review Law²⁵⁸ on “claims or specific categories of claims . . . for $3,000 or less per individual employee . . . including instances where an employer fails to timely respond to a notice of claim issued by the Department.”²⁵⁹

The $3000 ceiling was rational, given that little had changed in the size and nature of wage theft cases since the late nineteenth century.²⁶⁰ IDOL received 5300 wage theft claims in 2010, totaling approximately $1.6 million in unpaid earnings.²⁶¹ Similar to wage claims in the late nineteenth century,²⁶² wage theft cases in 2010 were small. According to the Just Pay For All Coalition ( JPFAC,²⁶³ the primary advocate for the 2010 amendment),²⁶⁴ seventy-five percent of the claims were “for $3,000 or less.”²⁶⁵ Further, like the late nineteenth century,²⁶⁶ the chances an aggrieved worker would collect his/her back pay was low prior to the 2010 amendment. According to the JPFAC, “[i]n approximately 60% of those cases, employers simply ignored IDOL knowing the agency has had no actual enforcement power.”²⁶⁷

2.  CLASS ACTIONS AND INCREASED CIVIL AND CRIMINAL PENALTIES

The 2010 amendment to the IWPCA enabled an aggrieved worker, or a class of aggrieved employees, under section 14(a) of the statute to file a civil action in circuit court, or an administrative action at IDOL.²⁶⁸ Workers who prevailed in civil or administrative wage theft actions were entitled to recover the underpayment in wages or final compensation, and damages equal to two percent of the underpayment for each month after payment that such underpayment remained unpaid.²⁶⁹ Employees who prevailed in civil actions could also recover costs and attorneys’ fees.²⁷⁰

The 2010 amendment also created new penalties for IDOL to collect under section 14(b) of the statute. Specifically, an employer ordered by IDOL or a court to pay wages or final compensation must pay a non- waivable $250 administrative fee to IDOL.²⁷¹ An employer subject to such an administrative or judicial order that does not comply within fifteen days of the order or appeal from it within thirty-five days is liable to IDOL for a penalty totaling twenty percent of the amount due.²⁷² The employer is also liable to the employee for a one percent penalty for each calendar day it delays in paying the wages or final compensation.²⁷³

In addition to civil penalties, the amendment at section 14(a-5) increased criminal penalties under the IWPCA from a Class C misdemeanor²⁷⁴ with a $1500 fine and up to thirty days in jail for the nonpayment of wages or final compensation, to a:

1.  Class B misdemeanor²⁷⁵ with a $1500 fine and/or not more than six months in jail for the nonpayment of $5000 or less in wages or final compensation;²⁷⁶

2.  Class A misdemeanor²⁷⁷ with a $2500 fine and/ or jail time of over six months, but less than one year, for the nonpayment of more than $5000 or more in wages or final compensation;²⁷⁸ and

3.  Class 4 felony²⁷⁹ with one to three years of jail time and/ or a fine up to $25,000 for a second criminal violation of the IWPCA within two years of a prior criminal conviction under the statute.²⁸⁰

The amendment requires IDOL under section 15(b-5) of the IWPCA to deposit all fees and penalties it recovers into the Wage Theft Enforcement Fund, a new special fund within the state treasury to help finance the statute’s enforcement.²⁸¹

3.  CIVIL AND ADMINISTRATIVE ACTIONS TO REDRESS EMPLOYER RETALIATION

Prior to the 2010 amendment to the IWPCA, it was a Class C misdemeanor under section 14(c) of the statute for an employer to knowingly retaliate against a worker.²⁸² Case law held that this language did not provide an implied private civil action to remedy such conduct.²⁸³ The 2010 amendment addressed the case law by expressly providing a state and private administrative or civil action against the IWPCA’s list of prohibited employer retaliation.²⁸⁴ It also deleted the requirement that employer’s conduct must be “knowing.”²⁸⁵ In addition, the legislation expanded the list of employee actions protected from employer retaliation to include making a complaint “in a public hearing, or to a community organization” that the employer did not pay his/her wages per the act.²⁸⁶

B.  2011 Rulemaking

IDOL did not receive appropriations to implement the 2010 IWPCA amendment.²⁸⁷ The Department nonetheless promulgated regulations in 2011 to implement its provisions.²⁸⁸

The 2011 rulemaking explained the damages, penalties, and fees the 2010 amendment created.²⁸⁹ It also updated and cleaned up IDOL’s 1992 IWPCA regulations.²⁹⁰ This included the Department’s procedures for filing claims²⁹¹ and conducting informal investigative hearings.²⁹² More importantly, the rulemaking amended the IWPCA regulations by, (1) creating a process for IDOL to convene section 11(d) of the IWPCA formal default hearings when employers fail to respond to claims;²⁹³ and (2) fully implementing the scope of an employee’s protections against deductions from wages or final compensation under section 9 of the IWPCA.²⁹⁴

The following reviews the provisions of the 2011 rulemaking that addressed sections 11(d) and 9 of the statute.

1.   IWPCA § 11(D) FORMAL DEFAULT HEARINGS PROCESS

Citing the April 2010 UIC wage theft study,²⁹⁵ and at the urging of the sponsors and advocates (namely, the Just Pay For All Coalition) for the 2010 amendment,²⁹⁶ IDOL published emergency regulations creating a formal default hearing process under section 11(d) of the IWPCA.²⁹⁷ IDOL explained that

due to wage theft being a prevalent issue among low wage workers, the Department promulgated emergency rules to implement a subset of claims and “pilot” a program in which three factors need to be met: the clam is $3000 or less, the employer’s address listed on the claim form can be verified . . . and the employer does not respond to any of the Department’s notices.²⁹⁸

IDOL further explained in its Second Notice for the final rulemaking that the hearing procedure would also apply to the new anti-retaliation administrative action created by the 2010 amendment at section 14(c) of the IWPCA:

The same set of rules will apply for all wage claim cases whether it’s for back wages or for retaliation. The Department believes it will be confusing for the regulated community to have two sets of rules especially when most of the claimants are low wage workers who are unable to obtain legal counsel for representation.²⁹⁹

2.   FULLY IMPLEMENTING IWPCA § 9

With few exceptions, section 9 of the IWPCA prohibits an employer from making unilateral deductions from an employee’s wages or final compensation.³⁰⁰ The 2011 rulemaking amended the 1992 regulations to clarify that section 9 of the IWPCA protects both wages and final compensation regarding written agreements authorizing deductions,³⁰¹ advanced vacation pay,³⁰² deduction limits per paycheck,³⁰³ and the balance due at termination.³⁰⁴ It further prohibited employers from deducting from a worker’s pay, or demanding cash reimbursement from the employee, when s/he has a cash or inventory shortage, “unless the employee’s express written consent is given freely at the time the deduction or demand for reimbursement is made.”³⁰⁵

C.  The 2011 Amendment to the IWPCA

Without fanfare, Illinois enacted legislation in 2011 (negotiated by the Illinois Municipal League and the Laborers International Union) that eroded workers’ rights under section 9 of the IWPCA.³⁰⁶ Specifically, the legislation permitted a municipality with a population under 500,000 to recover overpayments in wages from an employee as a “result of . . . but not limited to, a typographical or mathematical error made by [the] municipality.”³⁰⁷ The wage deduction cannot exceed fifteen percent of the worker’s net wage payment.³⁰⁸ Additionally, the municipality must certify that the employee had an opportunity for a hearing to dispute the debt.³⁰⁹

D.  The 2013 Amendment to the IWPCA

The labor market had not fully recovered in 2013 from the Great Recession of December 2007 – June 2009.³¹⁰ Individuals who lost their jobs during “the Great Recession and its aftermath . . . [were] less successful at finding new jobs (particularly full-time jobs) than in earlier periods.”³¹¹ In this context, Illinois amended the IWPCA again in 2013 to further strengthen the labor standard as a tool to combat wage theft.

Specifically, the 2013 amendment to the IWPCA:

1.     removed the $3000 ceiling on formal administrative hearings under section 11 (d) of the Act;³¹² and

2.     replaced the $250 non-waivable administrative fee under section 14(b) of the Act with a sliding fee ranging from $250 to $1000, depending on the amount wages the employer owes.³¹³

The General Assembly removed the $3000 ceiling on section 11(d) of the IWPCA hearings because the adjudication process “proved ineffective” with such limitations.³¹⁴ IDOL initiated the legislation to increase the administrative fee.³¹⁵ The amendment provided a $250 non- waivable fee when IDOL ordered an employer to pay wages up to $3000, a $500 fee if the wages owed were more than $3000 but less than $10,000, and $1000 when the employer owed more than $10,000.³¹⁶

E.  The 2014 Amendment to the IWPCA

Illinois amended the IWPCA in 2014, making it one of the nation’s strictest wage theft labor standards that permitted employers to pay their employees with payroll cards.³¹⁷ This Part discusses the political history of the amendment and its text.

1.   THE POLITICAL HISTORY OF THE 2014 AMENDMENT

The following analyzes payroll cards as a new method of wage theft, the federal government’s regulation of payroll cards, and Illinois’ acquiescence to payroll card practices.

a.   Payroll Cards as a New Method of Wage Theft

The New York Times observed in 2013 that “$34 billion was loaded onto 4.6 million active payroll cards” nationwide during 2012.³¹⁸

Those figures should “reach $60.9 billion and 10.8 million cards by 2017.”³¹⁹ The Chicago Tribune reported in 2014 that the conversation from paychecks to payroll cards took place particularly “in low-wage industries.”³²⁰

According to the National Association of Attorneys General (NAAG), payroll cards functioned similarly to debit cards:

Instead of issuing checks or directly depositing wages into an employee’s bank account, the employer deposits wages into a payroll card account. Employees can then use these payroll cards to withdraw their wages from an ATM, make point-of-sale purchases, and receive cash back at stores, much like consumers do with regular debit cards. Payroll card accounts are generally provided by banks or FDIC-insured non-bank vendors, while the cards have — since 2001 — typically carried Visa or MasterCard branding.³²¹

Why did payroll card practices become a widespread national trend? Employers benefited from the practice by “sav[ing] $2.75 each time they electronically load the card instead of cutting a check,”³²² reducing “costs associated with printing paychecks, replacing lost or stolen paychecks, and bank-charged check processing fees.”³²³ Financial institutions benefited from the cards by gaining access to the “unbanked,” i.e., low-wage workers “who do not have traditional bank accounts.”³²⁴ Approximately ten million households in the United States did not use banks in 2013, up from nine million at the end of the Great Recession in 2009.³²⁵ Workers who did not use banks benefited from the payroll cards by accessing their wages without “frequent[ing] check cashing establishments where they . . . must pay substantial fees.”³²⁶

Payroll cards had a dark side. Similar to the truck system of the late nineteenth century,³²⁷ employer payroll card practices in the early twenty-first century remunerated workers with non-lawful money, restricted worker access to such funds, and added costs to using the wages or final compensation.³²⁸

For example, the NAAG observed in 2014 that employers paid wages with payroll cards (when their workers desired payment by cash, check or direct deposit) that “charged a substantial array of fees for essential services . . . [with] overly limited ATM networks . . . that made accessing pay onerous.”³²⁹ The New York Times reported in 2014 about a McDonald’s employee in central Illinois who received her wages via a payroll card: “[She] was told to drive about 30 miles to a local Walmart where she’d be able to withdraw funds with each purchase. The woman was told to continue making purchases until she could withdraw enough money to pay her rent.”³³⁰

In 2014, the Illinois Attorney General’s Office announced the findings of its investigation of the payroll card practice in Illinois.³³¹ The investigation disclosed workers subject to numerous and “unreasonable fees,”³³² ranging from fifty cents to five dollars.³³³ An assistant attorney general observed, “[w]e don’t want people to have to pay to get their pay.”³³⁴ The Illinois Attorney General’s investigation corresponded with a 2014 report by the Chicago Tribune that “workers say using the cards means getting socked with fees, including some that aren’t disclosed, for everything from accessing their money to checking balances. Some workers have quickly run up fees of several hundred dollars over a year’s time.”³³⁵

The Illinois Attorney General’s and the Chicago Tribune’s findings concerning payroll card practices were consistent with the New York Attorney General’s Labor Office’s 2014 investigative report on the subject.³³⁶ In part, the New York Attorney General’s report observed that, “[w]hile many of the fees may appear modest, they add up quickly.”³³⁷ The American Bar Association’s 2014/ 2015 Business Law survey on cyber law observed that such cumulative fees may drop an employee’s remuneration below the statutory minimum wage, subjecting the employer to liability under state and federal wage and hour laws.³³⁸

b.  The Federal Government’s Regulation of Payroll Cards

Payroll cards were less subject to federal regulation than similar financial products. For example, the Federal Reserve banned inactivity fees that penalize customers for infrequent use of their credit and debit cards.³³⁹ Such protection does not exist for prepaid cards.³⁴⁰ While the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010³⁴¹ prohibited banks with more than $10 billion in assets from levying overdraft fees on checking accounts, it does not prohibit such institutions from assessing a twenty-five dollar “balance protection fees” on a low wage worker for over-drawing on his/ her payroll card.³⁴²

The Consumer Financial Protection Bureau (CFPB) confirmed in a 2013 bulletin that the Electronic Fund Transfer Act of 1978 (EFTA)³⁴³ covers payroll cards.³⁴⁴ Financial institutions must therefore provide employees receiving wages via payroll cards with periodic account statements and a disclosure of all fees for electronic transfer of funds, such as point-of-sale transactions, ATM transfers, direct deposits, and withdrawal of funds.³⁴⁵ In addition, employers could not require employees to receive their wages from a particular payroll card company.³⁴⁶

The EFTA did not exclusively occupy the legislative field concerning electronic fund transfers.³⁴⁷ Rather, the statue created a “minimum baseline of protection for consumers,” permitting the states to enact laws that afford consumers with greater protection than it does.³⁴⁸ Applying this rubric to payroll cards, the NAAG opined in 2014 that the states may impose regulations on payroll card practices under their wage theft labor standards that are stricter than the EFTA, as long as the standards are not inconsistent with the federal statute’s protective baseline.³⁴⁹

c.  Illinois’ Acquiescence to Payroll Card Practices

IDOL issued a notice to employers on its website in 2013, stating (in essence) that payroll card practices comply with the IWPCA when they followed two simple rules: (1) the practice must comply with the EFTA, as set forth in the CFPB’s 2013 bulletin and (2) the practice must permit employees to deposit or obtain the full monetary value of their wages or final compensation without discount.³⁵⁰

IDOL did not explain, however, whether it considered a payroll card practice requiring employs to pay a fee to receive their full remuneration was the equivalent of discounted wages or final compensation.³⁵¹ Alternatively, Illinois Attorney General Lisa Madigan argued that the IWPCA did not address payroll cards.³⁵² She drafted the 2014 amendment to the IWPCA to permit and regulate the practice.³⁵³

While not legally binding, well-reasoned interpretations of an ambiguous statute by the agency charged with its administration and enforcement, and by the Illinois Attorney General, are due substantial weight and deference.³⁵⁴ Respectfully, however, IDOL’s and the Illinois Attorney General’s opinions concerning the IWPCA’s pre- 2014 coverage of payroll card practices were not reasonable.

An employer was engaged in wage theft if it paid workers with payroll cards before the 2014 amendment. To begin, payroll cards were not lawful money per the pre-2014 IWCPA. The plain language of the pre-2014 section 4, supported by its evolving political history, prohibited employers from paying workers their wages and final compensation in any manner other than in cash, or by check readily converted into cash without discount (or the need of a personal bank account), unless the workers volunteered to be paid by direct deposit in an account at a bank or financial institution of their individual choice.³⁵⁵ Furthermore, the plain language of section 9 of the IWPCA, supported by its evolving political history and regulations thereunder, prohibited a practice’s collection of cumulative fees workers had to pay to obtain their remuneration (i.e., the practice effected deductions from wages or final compensation that did not comply within section 9).³⁵⁶

An alternative reading of the IWPCA would be irreconcilable with the IWPCA’s (and particularly, sections 4’s and 9’s) anti-truck, wage theft fighting, historic roots, and purpose.³⁵⁷ Note this construction of the pre-2014 IWPCA did not conflict with the EFTA. The federal statute did not dictate the existence of payroll card practices, but rather provided minimum worker protections under such practices if they existed.³⁵⁸

Ultimately, by not prohibiting the payroll card practices under the pre-2014 IWPCA, IDOL and the Illinois Attorney General’s office (the two state institutions charged with enforcing the IWPCA) provided employers and financial institutions with the opportunity to create a supply and demand for payroll cards in Illinois before the practices were legal in the state, establishing a foundation for them to successfully lobby for the inclusion of their “best practices” in the 2014 amendment to the IWPCA legalizing and regulating payroll cards.³⁵⁹

2.  THE 2014 AMENDMENT

Applauding Governor Patrick Quinn for signing the 2014 amendment to the IWPCA, Illinois Attorney General Lisa Madigan declared the IWPCA’s new criteria permitting employers to pay workers with payroll cards “the strongest of its kind in the country.”³⁶⁰ The American Payroll Association declared the law “a step in the right direction.”³⁶¹ The amendment became effective January 1, 2015.³⁶²

In pertinent part, section 4 of the IWPCA now includes payroll cards within it enumeration of lawful money that an employer may pay an employee’s wages or final compensation:

All wages and final compensation shall be paid in lawful money of the United States, by check, redeemable under demand and without discount at a bank or other financial institution readily available to the employee, or by deposit of funds in an account in a bank or other financial institution designated by the employee, or by a payroll card that meets the requirements of Section 14.5.³⁶³

The 2014 amendment to the IWPCA also enacted section 14.5, a new provision stating the terms and conditions under which an employer may pay it workers with payroll cards.³⁶⁴ Addressing historic labor standard concerns, section 14.5 allows a payroll card practice when it offers employees alternative methods to obtain their remuneration, provides full and advanced disclosure of the terms and conditions of the practice, allows workers to withdraw their full wages at least once a pay period without cost, provides unlimited free access to balance information by telephone, and does not charge an inactivity fee until after one full year of inactivity.³⁶⁵ It also requires the practice to provide two free declined point of sale transactions per month, and caps subsequent charges for declined transactions to “[c]ommercially reasonable fees, limited to cover the costs to process” the transactions.³⁶⁶

In total, section 14.5 states:

An employer using a payroll card to pay an employee’s wages shall meet the following requirements:

(1)    The employer shall not make receipt of wages by payroll card a condition of employment or a condition for the receipt of any benefit or other form of remuneration for any employee.

(2)    The employer shall not initiate payment of wages to the employee by electronic fund transfer to a payroll card account unless:

(A)    the employer provides the employee with a clear and conspicuous written disclosure notifying the employee that payment by payroll card is voluntary, listing the other method or methods of payment offered by the employer in accordance with Section 4, and explaining the terms and conditions of the payroll card account option, including:
(i)  an itemized list of all fees that may be deducted from the employee’s payroll card account by the employer or payroll card issuer;
(ii)  a notice that third parties may assess transaction fees in addition to the fees assessed by the employee’s payroll card issuer; and
(iii)   an explanation of how the employee may obtain, at no cost, the employee’s net wages, check the account balance, and request to receive paper or electronic transaction histories, as provided in item (3);

(B)    the employer also offers the employee another method or methods of payment in compliance with Section 4; and

(C)    the employer obtains the employee’s voluntary written or electronic consent to receive the wages by payroll card.

(3)    A payroll card program offered by the employer shall provide the employee with:

(A)    at least one method of withdrawing the employee’s full net wages from the payroll card once per pay period, but not less than twice per month, at no cost to the employee, at a location readily available to the employee;

(B)    at the employee’s request, one transaction history, which the employee may request to receive in paper or electronic form, each month that includes all deposits, withdrawals, deductions, or charges by any entity from or to the employee’s payroll card account at no cost to the employee; and

(C)    unlimited telephone access to obtain the payroll card account balance on the payroll card at any time without incurring a fee.

(4)    An employer may not use a payroll card program that charges fees for point of sale transactions, the application, initiation, loading of wages by the employer, or participation in the payroll card program. Fees for account inactivity may be assessed following one year of inactivity. The payroll card program must offer the employee a declined transaction, at no cost to the employee, twice per month. Commercially reasonable fees, limited to cover the costs to process declined transactions, may be assessed on subsequent declined transactions within that particular month.

(5)    The payroll card or payroll card account may not be linked to any form of credit including, but not limited to, overdraft fees or overdraft service fees, a loan against future pay, or a cash advance on future pay or work not yet performed.

(6)    An employee paid wages by payroll card may request to be paid wages by another method of payment provided by the employer in accordance with Section 4. Following the request, the employer shall, within 2 pay periods, begin payment to the employee by the allowable method requested by the employee.

(7)    A payroll card program offered by an employer shall provide the employee with protections from unauthorized use of the payroll card in accordance with State and federal law concerning electronic fund transfers.

(8)    The employer’s obligations under this Section shall cease 60 days after the employer-employee relationship has ended and the employee has been paid the employee’s full and final wages.

(9)    Within 30 days of the termination of the employer-employee relationship, the employer shall notify the employee that the terms and conditions of the account may change if the employee chooses to continue a relationship with the payroll card issuer.³⁶⁷

F.  2014 Rulemaking

IDOL updated its regulations under the IWPCA, effective August 22, 2014.³⁶⁸ The primary purpose of the rulemaking was to implement the 2013 amendment to the IWPCA, removing the $3000 ceiling on formal administrative hearings under section 11(d) of the Act.³⁶⁹ IDOL accomplished this task by eliminating its informal investigative hearing process³⁷⁰ and replacing its formal default hearing process with a formal hearing process³⁷¹ that expressly covered retaliation complaints and wage claims.³⁷²

What remained of IDOL’s investigative process was its collection of an employer’s answer to a wage claim and review of the information the parties provided.³⁷³ The 2014 regulations deemed any unanswered allegation to be true “as of the 21st day following the notice of claim.”³⁷⁴ Per the amended rules, IDOL will set the matter for a formal administrative hearing “if the review demonstrates sufficient evident the Act may have been violated.”³⁷⁵ It will dismiss the claim “if there is insufficient evidence to proceed to hearing.”³⁷⁶

IDOL also took the opportunity in 2014 to update its IWPCA regulations defining earned bonuses, commissions and vacation, and to address the use of payroll cards.³⁷⁷ The following discusses these amendments.

1.   EARNED BONUSES

The 2014 rulemaking amended IDOL’s 1992 regulation defining the term, “earned bonuses.”³⁷⁸ The amendment expanded the regulation’s explanation of the term, and distinguished earned bonuses covered by the IWPCA from discretionary or gratuitous bonuses that were not:

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. A claim for an earned bonus arises when an employee performs the requirements for a bonus set for in a contract or an agreement between the parties.

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.³⁷⁹

A review of the amendment demonstrates that it expands upon the case law that IDOL relied upon for the 1992 rulemaking,³⁸⁰ and codified case law that applied the 1992 regulation.³⁸¹ As a result, the rulemaking provides additional guidance for practitioners.³⁸²

2.   EARNED COMMISSIONS

The 2014 rulemaking amended IDOL’s 1992 regulation defining the term, “earned commissions.”³⁸³ The amendment clarified the regulation’s explanation of the term by replacing the phrase “procuring cause” with the definition of the procuring cause rule:

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 Absent an express agreement to the contrary an employee who is the procuring cause of a sale or other transaction is entitled to commission, 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 advanced a commission on the basis in anticipation of a particular sale, and the sale is subsequently voided, the employer may not deduct from the employee’s wages or final compensation any amount greater than the amount of the commission previously paid advanced on that particular sale.³⁸⁴

A review of the amendment demonstrates that it expands upon the case law that IDOL relied upon for the 1992 rulemaking.³⁸⁵ It also codified subsequent IWPCA commission case law.³⁸⁶

3.  EARNED VACATION

The 2014 rulemaking made a minor amendment to IDOL’s 1992 regulation defining the term, “earned vacation”:

 h) An employer cannot effectuate a forfeiture of earned vacation by a written em ployment policy or practice of the employer.³⁸⁷

A review of the regulation demonstrates that the rulemaking codified the Illinois Appellate Court, Fourth District’s opinion in Mueller Co. v. Department of Labor (1989),³⁸⁸ that section 5 of the IWPCA nullifies an employer policy or practice that would otherwise effect a forfeiture of a separated employee’s vacation accrual.³⁸⁹

4.  THE USE OF PAYROLL CARDS

The 2014 rulemaking amended IDOL’s 1992 regulation concerning direct deposits to address the payment of wages under the IWPCA in general:

 300.600 Payment of Wages Direct Deposit

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.³⁹⁰

A review of the rulemaking demonstrates that its text harmonizes sections 4 and 14.5 of the IWPCA.³⁹¹

V.  Conclusion

The Illinois Supreme Court’s opinion in Pullman Co. v. Cummins (1957)³⁹² is as pertinent today as it was fifty-eight years ago: “Delay of payment or loss of wages results in deprivation of the necessaries of life, suffering, inability to meet just obligations to others, and in many cases, may make the wage-earner a charge upon the public.”³⁹³

Illinois needs a strong wage theft labor standard with vigilant state enforcement. Wage theft is a persistent problem.³⁹⁴ Workers need each paycheck now more than ever, given the faltering economy since the Great Recession of December 2007 – June 2009.³⁹⁵ The New York Times observed in 2015 that, “despite the steady addition of more than 200,000 jobs a month and a decline in the official jobless rate to a post-recession low of 5.3 percent, most American workers, including many college graduates, still face lukewarm wage growth at best and very limited bargaining power with bosses.”³⁹⁶

The IWPCA is one of the strongest wage theft statutes in the nation.³⁹⁷ At issue is IDOL’s administration and enforcement of the labor standard. The 2014 IWPCA rulemaking limits IDOL’s role in wage and retaliation claims to collecting information and convening formal administrative hearings.³⁹⁸ Sections 6, 11, 12 and 14 of the IWPCA, however, charge IDOL with investigating, mediating and collecting wage claims, taking assignment of wage claims and prosecuting employers that willfully underpay, or fail to pay, wages and/ or final compensation, and retaliate against workers.³⁹⁹

Given the persistence of wage theft, and the perpetual slump in the labor market, it is incumbent upon IDOL to take a more vigilant role in administrating and enforcing the IWPCA than stated in its 2014 rulemaking. This would include investigating employer payroll card practices for strict compliance with the new section 14.5 of the IWPCA.⁴⁰⁰ It would also require IDOL to administer and enforce the IWPCA consistent with its plain language and evolving political history (i.e., its anti-truck, wage theft fighting, historic roots and purpose) by initiating enforcement actions to eliminate persistent wage theft issues and to eradicate new forms of wage theft.

1. See infra Part II.A.
2. WAGE THEFT ONLINE RESOURCE CENTER, http://www.wagetheft.org/index.html (last visited Sept. 21, 2015) (providing a national survey concerning wage theft and legislation combat it); see also UNITED STATES DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, ADMINISTRATOR’S INTERPRETATION NO. 2015-1 (2015), available at http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.htm; Marc R. Poulos, et al., Employees or Independent Contractors? A New Test for the Construction Industry, 96 ILL. B.J. 206, 207 (2008) (discussing Illinois’ Employee Classification Act). The definition of wage theft also includes the nonpayment of minimum wage and overtime pay, and the misclassification of employees as independent contractors to evade labor standards that protect employees. See id.
3. Keith N. Hylton, Labor and the Supreme Court: Review of the 1996-1997 Term, 13 LAB. LAW. 263, 269 (1997). Labor standards are

   “minimum term” laws: laws which attempt to force employers to meet some external (as opposed to contractual) standard on wages, hours or other conditions of employment . . . . [Such laws] impose[] liability standards that differed from the common law, which supplied the background rules for the employment relationship, when it was enacted.

4. See infra Part II.A.
5. See infra Part II.C
6. See infra notes 101-110 and accompanying text.
7. Public Act 78-914, 1973 Ill. Laws 2889-94 (codified as amended at 820 ILL. COMP. STAT. 115/1-16 (2015)); see also infra Part III.A-F.
8. Byung Moo Soh v. Target Marketing Systems, Inc., 817 N.E.2d 1105, 1107 (Ill. App. Ct. 2004) (quoting Scott D. Miller, Minimum Guaranteed Rights under the Illinois Wage Payment and Collection Act, 81 Ill. B.J. 194, 195 (1993)).
9. 820 ILL. COMP. STAT. 115/6, 11, 12.
10. See infra Part IV.E.1.a (reviewing 2013-2014 information concerning payroll cards as a new method of wage theft); see also Brady Meixell & Ross Eisenbrey, An Epidemic of Wage Theft is Costing Workers Hundreds of Millions of Dollars a Year, ECON. POL’Y INST. (Sept. 11, 2014), http://epi.org/publication/epidemic-wage-theft-costing-workers-hundreds/ (surveying 2012 wage theft prosecutions and settlements of the United States Department of Labor, and state labor departments and attorneys general). See generally KIM BOBO, WAGE THEFT IN AMERICA: WHY MILLIONS OF WORKING AMERICANS ARE NOT GETTING PAID—AND WHAT WE CAN DO ABOUT IT (2011) (documenting wage theft and proposing solutions).
11. Nick Theodore, et al., Unregulated Work in Chicago: The Breakdown of Workplace Protections in the Law-Wage Labor Market, CENTER FOR URBAN ECONOMIC DEVELOPMENT (Apr. 2010), http://www.uic.edu/cuppa/cued/Unregulated%20Work%20in%20Chicago%204_7_2010%20FINAL%20REPORT_0.pdf.
12. Id. at v.
13. Id. at ii.
14. Id.
15. See Press Release, Illinois Governor’s Office Governor Quinn Signs Bill to Increase Wage Protections for Thousands of Illinois Workers (July 30, 2010), http://www3.illinois.gov/pressreleases/ShowPressRelease.cfm?SubjectID=3&RecNum=8697; see also infra Part IV.A.
16. 820 ILL. COMP. STAT. 115/9 (2015); see also infra Part IV.C.
17. 820 ILL. COMP. STAT. 115/11 (2015); see also infra Part IV.D.
18. 820 ILL. COMP. STAT. 115/14 (2015).
19. 820 ILL. COMP. STAT. 115/2, 4, 14.5(2015); see also infra Part IV.E.
20. These provisions include the IWPCA’s recordkeeping and notice requirements, an officer’s or agent’s personal liability under the statute, and the broad definition of an employee covered by the statute, versus IWPCA’s narrow definition of an independent contract exempt therefrom. See 820 ILL. COMP. STAT. 115/10 (2015) (requiring notification of wage rate, time, and place of payment, and any changes thereof, itemization of deductions, payroll record keeping, and posting IDOL’s summary of the IWPCA); 820 ILL. COMP. STAT. 115/2, 13 (defining “employer,” and “officers and agents deemed to be employers,” respectively); 820 ILL. COMP. STAT. 115/2 (defining an “employee,” and providing a three-part test for determining whether an individual is an independent contract, rather than an employee). The sponsors of the IWPCA section 2 employee/independent contractor test intentionally patterned it on the definition of the terms found in section 212 of the Unemployment Insurance Act (UIA). Compare 820 ILL. COMP. STAT.115/2 (2015), with 820 ILL. COMP. STAT. 405/212 (2015). See also H.R., 83rd Legislative Day, Transcription Debate, 83rd Gen. Assemb., Reg. Sess. 204-05 (Ill. 1983), avaiable at http://www.ilga.gov/house/transcripts/htrans83/HT102083.pdf. IDOL’s regulation concerning the IWPCA’s independent contractor exemption codified Illinois case law applying section 212 of the UIA. Compare ILL. ADMIN. CODE tit. 56, § 300.460 (2015), with Jack Bradley, Inc. v. Dep’t of Emp’y Sec., 585 N.E.2d 123, 129-33 (Ill. 1991) (finding food demonstrators were employees of a “demo” company, not independent contractors), and Grifitts Constr. Co. v. Dep’t of Labor, 390 N.E.2d 333, 335-37 (Ill. 1979) (finding that salespersons and canvassers were employees, not independent contractors, of a home improvement business), and Farmers Ins. Exch. v. Dep’t of Labor, 542 N.E.2d 538, 540-43 (Ill. App. Ct. 1989) (finding that part-time licensed insurance agents were employees, not independent contractors), and Novakovic v. Samutin, 820 N.E.2d 967, 973 (Ill. App. Ct. 2004) (comparing section 2 of the IWPCA with section 212 of the UIA, and their respective regulations).
21. This article thus employs traditional standards for statutory construction. The starting point for ascertaining a statute’s legislative intent is the plain language of the act. See Bernardi v. Illini Community Hospital, 516 N.E.2d 1320, 1321 (Ill. App. Ct. 1987) (analyzing the Prevailing Wage Act, a statute IDOL administers and enforces). Pursuant to the Statute on Statutes, “[a]ll general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out.” 5 ILL. COMP. STAT. 70/1.01 (2015). Illinois courts examine an act as a whole, reading each provision in harmony with every other provision. See Waterford Executive Group, Ltd. v. Clarke/Bardes, Inc., 633 N.E.2d 1003, 1009 (Ill. App. Ct. 1994) (analyzing the Private Employment Agency Act, a statute IDOL administers and enforces). They also read the act and the regulations promulgated thereunder as a whole. See Kankakee County Action Program v. Ill. Dep’t of Comm. & Cmty. Affairs, 557 N.E.2d 277, 281 (Ill. App. Ct. 1990). Administrative rules “have the force and effect of law, and must be construed under the same standards which govern the construction of statutes.” N. Ill. Auto. Wreckers & Rebuilders Assoc. v. Dixon, 387 N.E.2d 321, 323 (Ill. App. Ct. 1979); see also Granite City v. Ill. Pollution Control Bd., 613 N.E.2d 719, 724 (Ill. App. Ct. 1993). When the plain language of a statute is susceptible to different interpretations, it is proper to consider the legislative history of the act to determine its legislative intent. See Balmoral Racing Club, Inc. v. Ill. Racing Bd., 603 N.E.2d 489, 498 (Ill. App. Ct. 1992) (relying on floor debate).
22. EARL BECKNER, A HISTORY OF LABOR LEGISLATION IN ILLINOIS 124 (1929). It was also a reason for the formation of the Illinois State Federation of Labor. Id.
23. WEBSTER’S NEW COLLEGIATE DICTIONARY 1254 (1973). The origins of the term are Middle English—trukken—and French—troquer, “to exchange.” Id.
24. BECKNER, supra note 22, at 123–24.
25. Id. at 123 n.5 (citing ILL. BUREAU OF LAB. STAT., FOURTH BIENNIAL REP. 327 (1886)).
26. PERRY R. DUIS, CHALLENGING CHICAGO: COPING WITH EVERYDAY LIFE, 1837-1920 302 (1998).
27. Id. at 301.
28. See 1891 Ill. Laws 212 (passing the Payment in Money and to Prohibit the Truck System Act); BECKNER, supra note 22, at 124-25.
29. See 1891 Ill. Laws 213 (passing the Weekly Payment by Corporations Act).
30. Payment in Money and to prohibit the Truck System Act § 3.
31. See id. § 4; Weekly Payment by Corporations Act § 3.
32. Press Release, The White House, FACT SHEET: Launching the Every Kid in a Park Initiative and Designating New National Monuments (Feb. 19, 2015), http://www.whitehouse.gov/the-press-office/2015/02/19/fact-sheet-launching-every-kid-park-initiative-and-designating-new-natio.
33. See THOMAS G. MANNING, THE CHICAGO STRIKE OF 1894: INDUSTRIAL LABOR IN THE LATE NINETEENTH CENTURY 20-21 (1960) (discussing the impact of the anti-truck statute on rent collection in Pullman, Illinois); see also ALMONT LINDSEY, THE PULLMAN STRIKE: THE STORY OF A UNIQUE EXPERIMENT AND THE GREAT LABOR UPHEAVAL 71 (1941) (same). See generally WILLIAM H. CARWARDINE, THE PULLMAN STRIKE (1894 & photo reprint 1969) (the Pastor of the First M.E. Church, Pullman, Illinois, discussing the living and working conditions at Pullman leading up to the 1894 strike).
34. See BECKNER, supra note 22, at 125-27, 129-30. For an account of the economic and political background of this era, see WALDO R. BROWN, ALTGELD OF ILLINOIS: A RECORD OF HIS LIFE AND WORK (1924), for a discussion of the public career and accomplishments of John P. Altgeld, the Governor of Illinois from 1893 to 1897).
35. 31 N.E. 395 (Ill. 1892).
36. 35 N.E. 62 (Ill. 1893).
37. See Frorer, 31 N.E. at 178-88; Braceville, 35 N.E. at 73-75.
38. 69 N.E. 927 (Ill. 1904).
39. Id. at 928 (invalidating 1891 Ill. Law 212, §§ 3 and 4).
40. J. ANTHONY LUKAS, BIG TROUBLE: A MURDER IN A SMALLWESTERN TOWN SETS OFF A STRUGGLE FOR THE SOUL OF AMERICA 280 (1997) (discussing the Supreme Court’s decisions breaking the Pullman Strike, and invalidating federal income tax measures, maximum hours legislation and statutes protecting union activities, and blocking laws governing railroad rates); see also Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lessons of Lochner, 76 N.Y.U. L. REV. 1383, 1391-92 (2001) (discussing the time period that the courts “were under siege” because they “constantly ran afoul of the two great political movements of the time: Populism and Progressivism”). See generally DAVID RAY PAPKE, THE PULLMAN CASE: THE CLASH OF LABOR AND CAPITAL IN INDUSTRIAL AMERICA (1999) (analyzing the Pullman Strike, boycott and resulting injunctive action “as a window on law’s interaction with capital and labor in industrializing America.” Id. at xiii.); FELIX FRANKFURTER & NATHAN GREENE, THE LABOR INJUNCTION (1930, reprinted 1963) (discussing the use and abuse of labor injunctions, and proposed corrective legislation). For further discussion on the interplay between the Lochner-era judiciary, Progressive era politics, and labor standards, see Scott D. Miller, Revitalizing the FLSA, 19 HOFSTRA LAB. & EMP. L.J. 1, 21-22 (2001).
41. 198 U.S. 45 (1905).
42. See id. at 64-65.
43. Id. at 57 (emphasis added).
44. Id. at 75.
45. Ernst Freund, Constitutional Limitations & Labor Legislation, 4 ILL. L. REV. 609, 610 (1910).
46. Id. (identifying Godcharles v. Wigeman, 6 A. 354 (Pa. 1886) and Millett v. People, 7 N.E. 631 (Ill. 1886), as the origins of the freedom of contract doctrine).
47. Id. at 615-16.
48. See Akhil Reed Amar, The Supreme Court 1999 Term—Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 123 (2000) (“[T]he origins of substantive due process doctrine are not particularly admirable—Dred Scott and Lochner haunt this swamp.”).
49. Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243, 245-46 (1998).
50. Jamal Green, The Anticanon, 125 HARV. L. REV.380, 417-22, 446-56 (2011) (analyzing Lochner as a case within the American anticanon). Under the canon/anti-canon paradigm, United States constitutional law has a canon: “a set of greatly authoritative texts that above all others shape the nature and development of constitutional law.” Primus, supra note 49, at 243. It includes Marbury v. Madison, 5 U.S. 137 (1803); McCulloch v. Maryland, 17 U.S. 316 (1819); and Brown v. Bd. of Educ., 349 U.S. 294 (1955). Akhil Reed Amar, Plessy v. Ferguson and the Anti-Canon, 39 PEPP. L. REV. 75, 76 (2013). The construction of a “canon is accompanied by the formation of an ‘anti-canon’ of cases that any theory worth its salt must show are wrongly decided.” J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 1017 (1998). The anti-canon cases “map out the land mines of the American constitutional order, and thereby help to constitute that order: we are what we are not.” Green, supra note 50, at 380-81 (including Dred Scott v. Sanford, 60 U.S. 393 (1856); Plessey v. Ferguson, 163 U.S. 537 (1986); Lochner, 198 U.S. 45; and Korematsu v. U.S., 323 U.S. 214 (1944)).
51. See, e.g., Orin Kerr, Rand Paul: “I’m a Judicial Activist.” WASH. POST ( Jan. 15, 2015), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/15/rand-paul-im-a-judicial-activist/ (discussing Sen. Rand Paul’s January 13, 2015, speech at the Heritage Foundation); see also Josh Blackman, Transcript of Senator Rand Paul’s Comments on Judicial Restraint and Activism at Heritage Action Conservative Policy Summit, JOSH BLACKMAN’S BLOG ( Jan. 16, 2015), http://joshblackman.com/blog/2015/01/16/transcript-of-senator-rand-pauls-comments-on-judicial-restraint-and-activism-at-heritage-action-conservative-policy-summit/ (not an official transcript of Sen. Rand’s comments).
52. Cato Institute Book Forum Discussion, David E. Bernstein Discussion of His Book: Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (May 2, 2011), http://www.cato.org/events/rehabilitating-lochner-defending-individual-rights-against-progressive-reform.
53. DAVID E. BERNSTEIN, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM 23, 38-39 (2011).
54. See David E. Bernstein, Roots of the “Underclass”: The Decline of Laissez-Faire Jurisprudence and the Rise of Racist Labor Legislation, 43 AM. U. L. REV. 85, 87 (1993) (arguing that the post-Lochner era labor laws, including the NRLA and the FLSA, were racist legislation, creating “persistently high rates of black unemployment and the emergence of a marginalized ‘underclass’ ”). But see Marion Crain, An Imminent Hanging, 26 A.B.A. J. LAB. & EMP. L. 151 (2011) (providing a scholarly review of the purpose, history, current status and future of the NLRA and Organized Labor); Scott D. Miller, Atrophied Rights: Maximum Hours Labor Standards under the FLSA and Illinois Law, 28 N. ILL. U. L. REV. 261, 268-77 (2008) [hereinafter Atrophied Rights] (observing that the marketplace absorbs minimum wage increases, and that low wage jobs harbor hidden public costs—public aid—creating an underclass).
55. See Friedman, supra note 40, at 1402-47 (discussing the failure of the revisionists’ endeavors); see also Freund, supra note 45, at 615 (opining in his 1910 law review article that “freedom of contract” was a novel doctrine that effected an “obvious fallacy” when applied to wage payment statutes); BECKNER, supra note 22, at 190 (observing in his 1929 book that the public viewed the Lochner-era Court’s reasoning as evidence of its “general lack of interest and sufficiency of knowledge upon the subject of the effect of long hour of employment”).
56. National Labor Relations Act, ch. 372, § 1, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. § 151 (2015)). Compare Bernstein, supra note 54, at 87, with Cynthia L. Estlund, Economic Rationality and Union Avoidance: Misunderstanding the National Labor Relations Act, 71 TEX. L. REV. 921, 992 (1993) (calling for a “national recommitment to the values served by unionization and collective bargaining”).
57. See Jack M. Balkin, “Wrong the Day It Was Decided”: Lochner and Constitutional Historicism, 85 B.U. L. REV. 677, 697 (2005); see also Adkins v. Children’s Hospital, 261 U.S. 525, 561 (1923). (Taft, C.J., dissenting) (“It is impossible for me to reconcile the Bunting Case and the Lochner Case, and I have always supposed that the Lochner Case was thus overruled sub silentio.”).
58. Planned Parenthood v. Casey, 505 U.S. 833, 861-63 (1992) (explaining the factual assumptions made by the Lochner Court); see also Morton J. Horwitz, The Supreme Court 1992 Term Forward—The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 52-57 (1993) (discussing Professors Pounds’, Brandeis’ and Cardozo’s post-Lochner efforts to develop a theory of a historically changing constitution); Cass R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873, 878 (1987) (describing the Lochner Court’s approach to reviewing economic legislation); Seth D. Harris, Concepts of Fairness and the Fair Labor Standards Act, 18 HOFSTRA LAB. & EMP. L.J. 19, 76 (2000) (describing the Lochner Court’s concept of “fairness” as “Darwinistic,” in which “[t]he economic hierarchy was not only immutable, but fair, appropriate, and optimal. Government could intervene if, and only if, the externalities caused by the hierarchy’s operation created a nuisance for society” (internal citations and quotations omitted)).
59. 233 U.S. 685 (1914).
60. Id. at 704-05. To review additional Lochner-era cases discussing the validity of wage payment labor standards, see generally G.J.C., Annotation, Constitutionality of Statute Regulating the Time of Payment of Wages, 12 A.L.R. 621 (1921) (discussing Lochner-era cases that address the validity of wage payment labor standards; B.B.B., Annotation, Constitutionality of Statute for Cumulative Penalty for Delay of Paying Claim, 26 A.L.R. 1200 (1923) (also discussing Lochner-era cases addressing validity of wage payment labor standards).
61. 208 U.S. 412, 423 (1908).
62. 243 U.S. 426, 438 (1917).
63. 40 N.E. 454 (Ill. 1895).
64. Id. at 457.
65. 91 N.E. 695 (Ill. 1910).
66. Id. at 697-98. For more information concerning the 1893 and 1909 labor standards, see Atrophied Rights, supra note 54, at 337-38.
67. 30 N.E.2d 908 (Ill. 1940).
68. Id. at 911-12.
69. Vissering Mercantile Co. v. Annunzio, 115 N.E.2d 306, 310 (Ill. 1953).
70. Id. at 311.
71. 114 N.E.2d 681, 683 (Ill. 1953).
72. 1895 Ill. Laws 263 (passing the Redemption of the Time Check or Store Order Act).
73. Id.
74. 1917 Ill. Laws 363-64, § 3 (codified as amended at Ill. Rev. Stat. ch. 48, paras. 38-39 (1981)).
75. Id. at 363, § 1.
76. 1903 Ill. Laws 198-99, §§ 1-4 (codified as amended at Ill. Rev. Stat. ch. 48, paras. 32-35 (1981); partially codified as 820 ILL. COMP. STAT. 150/1-3 (2015)). The Illinois General Assembly amended the statute twice, once in 1965 to increase the penalties for violating the Act. 1965 Ill. Laws 3320; and again in 1969 to delete obsolete terms. Public Act 76-840.
77. 1903 Ill. Laws 198-99, § 1.
78. Id. at 199, § 2.
79. Id. at 199, § 1.
80. Id. at 199, § 4.
81. 1913 Ill. Laws 358 (passing the Wage and Salaries—Semi-Monthly Payment by Corporations for Pecuniary Profit Act) (codified as amended at Ill. Rev. Stat. ch. 48, paras. 36-37a (1981)).
82. See BECKNER, supra note 22, at 129.
83. 1913 Ill. Laws 358, § 1.
84. Id.
85. See 1955 Ill. Laws 316 (amending the Payment of Wages by Corporations Act).
86. Id. at 316, § 1 (codified as amended at Ill. Rev. Stat. ch. 48, para. 36 (1981)).
87. Id.
88. Id. at 316, § 3 (codified as amended at Ill. Rev. Stat. ch. 48, para. 37a (1981)).
89. 140 N.E.2d 713 (Ill. 1957).
90. Id. at 719 (quoting Int’l Text-Book Co. v. Weissinger, 65 N.E. 521 (Ind. 1902)).
91. Id. at 714-15.
92. Railway Labor Act, 45 U.S.C. §§ 151-165 (2015).
93. Pullman, 140 N.E.2d at 721.
94. Id.
95. 1937 Ill. Laws 596 (passing the Wages Due Employees Act) (codified as amended at Ill. Rev. Stat. ch. 48, paras. 39g-39m).
96. Id. at 598, § 6(a).
97. Id. at 598-99, § 6(b).
98. Id. at 599 § 6(c).
99. Id. at 596, § 1.
100. 178 N.E.2d 336 (Ill. 1961).
101. Id. at 337-38.
102. Compare 1937 Ill. Laws 596, with UNITED STATES DEP’T OF LABOR, DIV. OF LABOR STANDARDS, PROCEEDINGS OF THE SECOND NATIONAL CONFERENCE ON LABOR LEGISLATION (1935), reprinted in PROCEEDINGS OF THE NATIONAL CONFERENCES ON LABOR LEGISLATION: 1934 TO 1955 51-113 (1992) (providing the committee report on wage payment and wage collection laws (as adopted) requiring the timely payment of wages earned semi-monthly), and UNITED STATES DEP’T OF LABOR, DIV. OF LABOR STANDARDS, PROCEEDINGS OF THE THIRD NATIONAL CONFERENCE ON LABOR LEGISLATION (1936), reprinted in PROCEEDINGS OF THE NATIONAL CONFERENCES ON LABOR LEGISLATION: 1934 TO 1955 117-187 (1992) (reporting and summarizing bills and recommendations, includes statements by IDOL personnel).
103. See generally PROCEEDINGS OF THE NATIONAL CONFERENCE OF LABOR LEGISLATION: 1934 TO 1955 (1992).
104. See UNITED STATES BUREAU OF LABOR STANDARDS, 30TH ANNIVERSARY OF BUREAU OF LABOR STANDARDS: BULLETIN NO. 272 81-90 (1964).
105. Alfred Kamin, The Case for a Modern Illinois Labor Code, 55 ILL. B.J. 104 (1966).
106. Id. at 114.
107. Id. at 114–15 (making an apparent reference to MICHAEL HARRINGTON, THE OTHER AMERICA: POVERTY IN THE UNITED STATES (1962)).
108. See generally Richard B. Freeman, et al., The Evolution of the American Labor Market 1944-80, in THE AMERICAN ECONOMY IN TRANSITION 349-414 (Mark Feldstein ed., 1980), available at http://www.nber.org/chapters/c11299 (discussing the major changes since World War II).
109. Id. at 352; see also id. at 352-56.
110. Id. at 315; see also id. at 367-74.
111. See generally Victor Zarnowitz & Geoffrey H. Moore, Recession and Recovery 1973–1976, in 5 EXPLORATION IN ECONOMIC RESEARCH NO. 4 1-87 (Victor Zarnowitz & Geoffrey H. Moore eds., 1977), available at http://www.nber.org/chapters/c9101.pdf (discussing how the recession of the 1970s was the most serious since 1937).
112. Illinois Wage Payment and Collection Act, Public Act 78-914, 1973 Ill. Laws 2889-94 (codified as amended at 820 ILL. COMP. STAT. 115/1–16 (2015)).
113. See H.R., 70th Legislative Day, House Transcripts, 78th Gen. Assemb., Reg. Sess., 53-54 (Ill. 1973), available at http://www.ilga.gov/house/transcripts/htrans78/HT060573.pdf.
114. 407 N.E.2d 771 (Ill. App. Ct. 1980).
115. Id. at 773.
116. Id.
117. 449 N.E.2d 1000 (Ill. App. Ct. 1983).
118. Id. at 1093. It is proper to “consider the notes and reports of the commission pursuant to which a statutory provision was adopted.” People v. Easley, 519 N.E.2d 914, 916 (Ill. 1988); see also 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 48.09 (5th ed., 1992) (It “[i]s a well settled rule that the report of a commission on a revision of statutory law provides evidence of legislative intent.”).
119. ILL. COMMISSION ON LABOR LAWS, REPORT & RECOMMENDATIONS TO THE GOVERNOR & GENERAL ASSEMBLY (April 1971) [hereinafter COMMISSION ON LABOR LAWS].
120. Id. at 67.
121. Id.
122. Compare Public Act 78-914, § 1, 1973 Ill. Laws 2889, with supra notes 81–104 and accompanying text.
123. Public Act 84-883, 1985 Ill. Laws 5606–07; see also H.R., 46th Legislative Day, Transcription Debate, 84th Gen. Assemb., Reg. Sess., 62 (Ill. 1985), available at http://www.ilga.gov/house/transcripts/htrans84/HT052385.pdf (Rep. Breslin: “[The bill] affords to public employees in Illinois the same rights as people have in the private sector to gain their . . . wage payments.”); S., Senate Transcripts, 84th Gen. Assemb., Reg. Sess. 264 (Ill. 1985), available at http://www.ilga.gov/senate/transcripts/strans84/ST062685.pdf (Sen. Welch: “The basic idea is to ensure that those benefits available to nonpublic employees are available to public employees at the local level.”).
124. Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-19 (2015)).
125. See generally AFSCME Council 31 v. State, Case No. 07 MR 52 (4th Jud. Cir. 2007) (addressing Illinois’ failure to pay its employees’ wages on their regular pay day because it did not adopt a budget and appropriate funds to compensate them) (trial court documents on file with author); AFSCME Council 31 v. State, Case No. 09-CH-654 (20th Jud. Cir. 2009) (also addressing Illinois’ failure to pay its employees’ wages on their regular pay day because it did not adopt a budget and appropriate funds to compensate them) (trial court documents on file with author); Martin v. United States, No. 13-cv-00834-PEC (Fed. Cl. 2014) (addressing the federal government’s failure to timely pay employees who worked through the sixteen-day shutdown during October 2013). For examples of successful FLSA cases when public employers fail to timely pay their employees’ wages, see AFSCME Council 31 v. State, No. 5-15-0277, 2015 WL 4512079 (Ill. App. Ct. July 24, 2015) (compelling Illinois to issue paychecks in the absence of appropriations); Rogers v. City of Troy, 148 F.3d 52 (2d Cir. 1998) (finding an FLSA violation when the City of Troy, New York, implemented a lagging pay period); Briggs v. Wilson, 1 F.3d 1537 (9th Cir. 1993) (finding a FLSA violation when the State of California did not timely pay its workers because it failed to adopt a budget).
126. A court order compelling the comptroller to issue regular paychecks without appropriations may conflict with article VIII, section 2(b) of the Illinois Constitution. Article VIII, section 2(b) states: “The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.” ILL. CONST. art. VIII, § 2(b).
     The Illinois Appellate Court, Fourth District, in AFSCME v. Netsch, denied the Union’s writ of mandamus to compel the state to pay workers in the absence of an appropriation. 575 N.E.2d 945, 947 (Ill. App. Ct. 1991). The Court observed, however, that it was “not saying that the courts are barred from intervening in the event that the legislative or executive branches fail to perform their constitutional functions.” Id. Subsequently, the IIlinois Appellate Court, First District in State v. AFSCME, ordered the state to pay its employees’ wage increases per the collective bargaining agreement between Illinois and the union in the absence of an appropriation. 19 N.E.3d 1127, 1135-37 (Ill. App. Ct. 2014). Citing Netsch (1991) and State v. AFSCME (2014), the Illinois Appellate Court, Fifth District, in AFSCME Council 31 v. State (2015), upheld a TRO for the state to issue paychecks in the absence of appropriations when the General Assembly and the Governor could not agree on a budget by mid-June 2015. AFSCME Council 31, 2105 WL 4512079, at *1; see also People v. Munger, No. 1-15-1877, 2015 IL App (1st) 1877 (setting aside a TRO blocking the state from issuing paychecks and ordering the preservation of the status quo); Order Denying Motion for Direct Appeal, People v. Munger, No. 119525 ( July 17, 2015), available at http://www.illinoiscourts.gov/SupremeCourt/SpecialMatters/2015/071715_119525_ORDER.pdf (denying the People’s motion for a direct appeal to the Illinois Supreme Court).
127. 1971 COMMISSION ON LABOR LAWS, supra note 119, at 67.
128. Public Act 78-914, § 2, 1973 Ill. Laws 2890-91. But see 1971 COMMISSION ON LABOR LAWS, supra note 119, at 68.
129. Compare Public Act 78-914, § 2, 1973 Ill. Laws 2890, with Conlon-Moore, 178 N.E.2d at 337-38.
130. Public Act 78-914, § 2, 1973 Ill. Laws 2890.
131. Public Act 83-198, § 2, 1983 Ill. Laws 1759-60 (codified as amended at 820 ILL. COMP. STAT. 115/2 (2015)) (defining “employee” and “wages” in the context of the Wage Payment and Collection Act).
132. See H.R., 34th Legislative Day, Transcription Debate, 83d Ill. Gen. Assemb., Reg. Sess. 43 (3d reading, Rep. Ronan speaking: “This Bill [wa]s recommended by the Department of Labor, their wage payment section.”).
133. Catania v. Local 4250/5050, 834 N.E.2d 966, 972 (Ill. App. Ct. 2005) (quoting Zabinsky v. Gelber Group, Inc., 807 N.E.2d 666, 671 (Ill. App. Ct. 2004)).
134. Id. (alteration in original) (quoting Landers-Scelfo v. Corporate Office Systems, Inc., 827 N.E.2d 1051 (Ill. App. Ct. 2005)).
135. See supra notes 26, 29 and accompanying text.
136. 820 ILL. COMP. STAT. 115 (2015). Compare Public Act 78-914, § 3, 1973 Ill. Laws 2890, with 1971 COMMISSION ON LABOR LAWS, supra note 120, at 68.
137. Compare Public Act 78-914, § 4, 1973 Ill. Laws 2890-91 with supra notes 81-104 and accompanying text.
138. 140 N.E.2d 713 (1957); see supra notes 92-104 and accompanying text (discussing Pullman Co.).
139. See Public Act 78-914, § 4, 1973 Ill. Laws 2890-91.
140. 29 U.S.C. § 185(a) (2015).
141. 5 ILL. COMP. STAT. 315/15 (2015).
142. 115 ILL. COMP. STAT. 5/17 (2015).
143. See Livadas v. Bradshaw, 512 U.S. 107, 126-34 (1994) (reconciling section 301 of the LMRA with the wage payment and collection provisions of the California Labor Code); Baker v. Kingsley, 387 F.3d 649, 657-59 (7th Cir. 2004) (applying Livadas to the IWPCA); Daniels v. Bd. of Ed., 661 N.E.2d 468, 470-72 (Ill. App. Ct. 1996) (applying the IWPCA to a contract under the IELRA). See generally Scott D. Miller, Minimum Guaranteed Rights under the Illinois Wage Payment & Collection Act, 81 ILL. B.J. 194 (1993) (reconciling the IWPCA with the IPLRA).
144. Compare Public Act 78-914, § 4, 1973 Ill. Laws 2890-91, with 1971 COMMISSION ON LABOR LAWS, supra note 119, at 68, and supra notes 20, 29, 72-75 and accompanying text.
145. Public Act 80-750, 1978 Ill. Laws (codified as amended at 820 ILL. COMP. STAT. 115/4).
146. Public Act 89-0364, 1995 Ill. Laws (codified as amended at 820 ILL. COMP. STAT. 115/4).
147. Id.
148. See S., Senate Transcripts, 83rd Gen. Assemb., Reg. Sess. 188 (Ill. 1977), available at http://www.ilga.gov/senate/transcripts/strans80/ST062377.pdf (Sen. Wooten during the 3d reading: “House Bill 1019 provides for an alternative in making payments to workers . . . in addition to paying in cash or by check . . . you may deposit an amount directly in an employee’s bank account if the employee so designates.” (emphasis added)).
149. Compare Public Act 78-914, § 5, 1973 Ill. Laws 1891, with supra notes 81-104 and accompanying text.
150. Public Act 81-593, § 1, 1979 Ill. Laws (eff. Jan. 1, 1980) (codified as amended at 820 ILL. COMP. STAT. 115/5).
151. S., House Transcripts, 81st Gen. Assemb., Reg. Sess. 81 (Ill. 1977) available at http://www.ilga.gov/house/transcripts/htrans81/HT061579.pdf.
152. S., Senate Transcripts, 81st Gen. Assemb., Reg. Sess. 46 (Ill. 1977), available at http://www.ilga.gov/house/transcripts/htrans81/HT061579.pdf.
153. 494 N.E.2d 581 (Ill. App. Ct. 1986).
154. Id. at 587-88.
155. Id.
156. See id. at 589.
157. 647 P.2d 122 (Cal. 1982).
158. Id. at 127-28.
159. Mueller Co. v. Dep’t of Labor, 543 N.E.2d 518, 520 (Ill. App. Ct. 1989) (noting the 1983 amendments to this section in italics); see also Public Act 83-199, § 1, 1983 Ill. Laws (eff. Jan. 1, 1984) (codified as amended at 820 ILL. COMP. STAT. 115/5).
160. H.R., 34th Legislative Day, House Transcripts, 83rd Gen. Assemb., Reg. Sess., 43-44 (Ill. 1983).
161. 543 N.E.2d 518 (Ill. App. Ct. 1989).
162. Id. at 520.
163. Id. at 521.
164. Public Act 78-914, § 9, 1973 Ill. Laws 1891-92. Compare id., with 1971 COMMISSION ON LABOR LAWS, supra note 119, at 63, and supra notes 30, 79 and accompanying text.
165. Public Act 78-914, § 9, 1973 Ill. Laws 1891-92.
166. Id.
167. Id.
168. Id.
169. See 8 Ill. Reg. 18488 (Oct. 26, 1975) (codified at ILL. ADMIN. CODE tit. 56, §§ 300.100–300.430 (2015)).
170. Public Act 81-593, § 1, 1979 Ill. Laws (codified as amended at 820 ILL. COMP. STAT. 115/9).
171. Id. The bill on its third reading “remove[d] any objection that the Illinois Manufacturers’ Association, [and] the Retail Merchants have.” S., Senate Transcripts, 81st Gen. Assemb., Reg. Ses. 227 (Ill. 1979) (Sen. Lemke).
172. See supra notes 29-30 and accompanying text.
173. Id.
174. Public Act 82-250, § 1, 1981 Ill. Laws (effective January 1, 1982) (codified as amended at 820 Ill. C 115/9).
175. Id.; c.f. supra notes 78, 91-94 and accompanying text.
176. Public Act 90-0022, § 25 (codified as amended at 820 ILL. COMP. STAT. 115/9).
177. H.R., 50th Legislative Day, Transcription Debate, 90th Ill. Gen. Assemb., Reg. Sess. 134 (Ill.1997) (Rep. Burke on 3d reading of H.B. 1916).
178. S., 45th Legislative Day, Transcription Debat, 90th Ill. Gen. Assemb., Reg Sess. 103 (Ill. 1997) (Sen. Dudycz on 3d reading of H.B. 1916).
179. Public Act 92-0109, § 30 1997 Ill. Laws (effective June 20, 1997) (codified as amended at 820 ILL. COMP. STAT. 115/9 (2015)).
180. Id.; see also S., 35th Legislative Day, Senate Transcript, 1992 Ill. Gen. Assemb., Reg. Sess. 86 (Ill. 2001) (Sen. Donahue explaining the bill on 3d reading of H.B. 3069).
181. Public Act 91-0443, § 5, 1997 Ill. Laws (effective June 20, 1997) (codified as amended at 820 ILL. COMP. STAT. 115/9 (2015)).
182. Compare Public Act 78-914, §§ 6, 11, 12, 14, and 1973 Ill. Laws 2891-94 (codified as amended at 820 ILL. COMP. STAT. 115/6, 11, 12, 14 (2015)), with supra notes 81-104 and accompanying text.
183. Compare Pubic Act 78-914, § 14 (codified as amended at 820 ILL. COMP. STAT. 115/14 (2015)), with 1971 COMMISSION ON LABOR LAWS, supra note 119, at 69.
184. See Public Act 78-914, § 14 (codified as amended at 820 ILL. COMP. STAT. 115/14 (2015).
185. See Rekhi v. Wildwood Indus., Inc., 816 F. Supp. 1308, 1311 (C.D. Ill. 1992) (finding that section 11(c) provides a private right to prosecute wages and final compensation claims and penalty actions under the Act); In re Faber, 52 B.R. 563, 565 (Bankr. N.D. Ill. 1985) (reading sections 11 and 14 in conjunction to find an implied private cause of action for wages); Aponte v. Nat’l Steel Serv. Ctr., 500 F. Supp. 198, 203-04 (N.D. Ill. 1980) (determining that section 11(c) impliedly provides former employees with a private right of action for “final compensation” after separation).
186. See Public Act 83-202, § 1, 1993 Ill. Laws (effective Jan. 1, 1984) (codified as amended at 820 ILL. COMP. STAT. 115/14 (c) (2015)).
187. Id.
188. See McGrath v. CCC Information Servs., Inc., 731 N.E.2d 384, 393 (Ill. App. Ct. 2000).
189. See Stafford v. Bowling, 407 N.E.2d 771, 773 (Ill. App. Ct. 1980) (addressing a 1978 vacation claim).
190. Id. at 774.
191. Id.
192. See H.R., 23rd Legislative Day, Debating H.B. 325, 87th Gen. Assemb., Reg. Sess. 19 (Ill. 1991).
193. Id. at 20.
194. Public Act 87-349, 1991 Ill. Laws (effective January 1, 1992) (codified at 820 ILL. COMP. STAT. 115/12).
195. See Notice of Adopted Amendments: Payment and Collection of Wages or Final Compensation, 16 Ill. Reg. 13828 (Sept. 1, 1992) [hereinafter 1992 Notice of Adopted Amendments] (codified as amended at ILL. ADMIN. CODE tit. 56, §§ 300.440-300.1020 (2015)).
196. Id. § 300.600.
197. Id. § 300.500.
198. Id.
199. See Second Notice: Part 300 Payment and Collection of Wages or Final Compensation ¶ (9) (B) ( July 14, 1992) (codified at ILL. ADMIN. CODE tit. 56, § 300 (2015)). See Illinois Administrative Procedure Act, 5 ILL. COMP. STAT. 100/5-40 (2015) (general rulemaking); ILL. ADMIN. CODE tit. 1, § 100.400 (2015) (required notice periods) (explaining Illinois rulemaking periods and their notices).
200. See Illinois Administrative Procedure Act, 5 ILL. COMP. STAT. 100/5-40 (2015) (general rulemaking); ILL. ADMIN. CODE tit. 1, § 100.400 (2015) (required notice periods) (explaining Illinois rulemaking periods and their notices).
201. 582 N.E.2d 729 (Ill. App. Ct. 1991).
202. 375 N.E.2d 540 (Ill. App. Ct. 1978).
203. 1992 Notice of Adopted Amendments, supra note 195, § 300.510. Compare ILL. ADMIN. CODE tit. 56, § 300.510(a) (2015), with Heuvelman v. Tripplett Electrical Instrument Co., 161 N.E.2d 875, 878 (Ill. App. Ct. 1959), and Scheduling Corp. of America v. Massello, 503 N.E.2d 806, 809-11 (Ill. App. Ct. 1987).
204. See Heuvelman, 161 N.E.2d at 878; Massello, 503 N.E.2d at 810.
205. Massello, 503 N.E.2d at 811.
206. 1992 Notice of Adopted Amendments, supra note 195, § 300.520(a)-(b).
207. Golden Bear Family Restaurant, 494 N.E.2d at 589.
208. See 1992 Notice of Adopted Amendments, supra note 195, § 300.520(f ). Compare ILL. ADMIN. CODE tit. 56, § 300.520 (f ) (2015), with CALIFORNIA STATE COMMISSIONER OF LABOR STANDARDS INTERPRETIVE BULLETIN No. 86-3 (Sept. 30, 1986).
209. See 1992 Notice of Adopted Amendments, supra note 195, § 300.520(f ).
210. See generally 1992 Notice of Adopted Amendments, supra note 195 (listing all repealed amendments).
211. 820 ILL. COMP. STAT. 115/9 (2015).
212. Id. at 115/9(1)-(7).
213. 764 F. Supp. 536, 541-42 (C.D. Ill. 1991), rev’d on other grounds, 999 F.2d 1101, 1109 (7th Cir. 1993).
214. See 1992 Notice of Adopted Amendments, supra note 195, § 300.710. Compare ILL. ADMIN. CODE tit. 56, § 300.710 (2015), with Calderon, 764 F. Supp. at 542 (finding that the defendants did not produce “undisputed evidence that the with[olding of] money benefited the workers”), rev’d on other grounds, 999 F.2d 1101 (7th Cir. 1993) (observing that the defendant-Appellants did not challenge the judgment pertaining to the IWPCA).
215. See 1992 Notice of Adopted Amendments, supra note 195, § 300.720.
216. Id. § 300.750.
217. Id.
218. Id. § 300.760.
219. Id. § 300.770.
220. Id. § 300.930.
221. Id. § 300.730.
222. Id. § 300.820.
223. Id. § 300.830.
224. Id. § 300.900.
225. Id. § 300.900(a).
226. Id.
227. Id. § 300.900(b).
228. Id. § 300.930.
229. See id. § 300.930(a).
230. Id. § 300.930(c)(1).
231. Id. § 300.930(c)(2).
232. Id. § 300.930(b).
233. See id. § 300.940(a).
234. See id. §§ 300.520(c)-(d), 300.940(b) (addressing vacation claims, and claims in general, respectively).
235. Id. § 300.940(c).
236. Id. § 300.940(d).
237. Id.
238. Id. § 300.940(f ).
239. Id. § 300.940(g).
240. Id. § 300.950(a).
241. Id.
242. Id.
243. See Walters v. Dep’t of Labor, 826 N.E.2d 979, 983-94 (Ill. App. Ct. 2005) (applying prior cases and section 300.950 of the 1992 regulation); Zabel v. Cohn, 670 N.E.2d 877, 882-83 (Ill. App. Ct. 1996) (observing that “[a]ctual liability, if contested, must be determined by the trial court on a de novo basis”); Nagel v. Gerald Dennen & Co., 650 N.E.2d 547, 552 (Ill. App. Ct. 1995); see also Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1319-20 (7th Cir. 1995); Miller v. J.M. Jones Co., 555 N.E.2d 820, 822-23 (Ill. App. Ct. 1990) (agency action is an initial determination); Stafford v. Bowling, 407 N.E.2d 771, 774 (Ill. App. Ct. 1980) (IDOL is “not required to use the most formal and rigorous of procedures” to resolve disputes).
244. See 1992 Notice of Adopted Amendments, supra note 195, § 300.970.
245. See supra note 242 and accompanying text; see also Howard L. Mocerf, Tough New Amendments to the Illinois Wage Payment and Collection Act, 99 ILL. B. J. 202, 203 (2011).
246. See Andy Brownfield, New Law Targets Wage Theft in Illinois, ST. J.-REG. (Jan. 19, 2011), http://www.sj-r.com/article/20110119/News/301199968.
247. See Sophia Tareen, Quinn Signs Wage-theft Law, ST. J.-REG. ( July 31, 2010), http://www.sj-r.com/article/20100731/News/307319950.
248. See Delgado Staff,New Law Passed by Senator Delgado Targets Wage Theft in Illinois, STS. NEWS SERVICE, Jan. 20, 2011.
249. Hilary W. Hoynes, Douglas L. Miller & Jessamyn Schaller, Who Suffers During Recessions? 20 (Nat’l Bureau of Econ. Research, Working Paper No. 17951, 2012), available at http://www.nber.org/papers/w17951 (analyzing Current Population Survey data); Jesse Bricker, et al., Changes in U.S. Family Finances from 2007 to 2010: Evidence from the Survey of Consumer Finances, 98 FED. RES. BULL. 1, 4 (2012), available at http://www.federalreserve.gov/econresdata/scf/scf_2010.htm (analyzing the Board’s Survey of Consumer Finances for 2010).
250. Henry S. Farber, Job Loss in the Great Recession: Historical Perspective from the Displaced Workers Survey, 1984-2010 28 (Nat’l Bureau of Econ. Research, Working Paper No. 17040, 2011), available at http://www.nber.org/papers/w17040 (analyzing Displaced Workers Survey data).
251. See Hoynes, et al., supra note 249, at 20.
252. Id. at 20-22. See generally Katherine Klemmer & Robert Lazaneo, Job Openings and Hires Show Little Postrecession Improvement, MONTHLY LAB. REV., Aug. 2010, at 3, 3, available at http://www.bls.gov/opub/mlr/2011/08/art1full.pdf (analyzing Job Openings and Labor Turnover Survey data for 2009 and 2010); Regis Barnichon et al., Which Industries are Shifting the Beveridge Curve?, MONTHLY L. REV., June 2012, at 25, 25-26, available at http://www.bls.gov/opub/mlr/2012/06/mlr201206.pdf (analyzing Job Openings and Labor Turnover Survey data from 2009 to 2012, observing that the unemployment rate was 2.8 percentage points above the level suggested by the “Beveridge curve”—the “negative relationship between the unemployment rate and the job openings rate”).
253. See Thomas Lemieuz, The Changing Nature of Wage Inequality 15 (Nat’l Bureau of Econ. Research, Working Paper No. 13523, 2007), available at http://www.nber.org/papers/w13523 (finding possible institutional and demand-side explanations for top-end wage inequality).
254. Id. at 14-15, 17-18.
255. See generally PEW RESEARCH CENTER: SOCIAL AND DEMOGRAPHIC TRENDS, THE LOST DECADE OF THE MIDDLE CLASS: FEWER, POORER, GLOOMIER (2012), available at http://www.pewsocialtrends.org/files/2012/08/pew-social-trends-lost-decade-of-the-middle-class.pdf (observing that the middle-income tier’s income fell five percent, and its wealth decreased by twenty-nine percent, between 2001 and 2010, while its size shrunk ten percent between 1971 and 2011, as the upper tier rose six percent, and the lower tier increased by four percent, during the same period). See also Clarence N. Wood & Bruce Hatton Boyer, Getting Real: Post-World War II Vision of the American Dream—It’s over, CHI. TRIB., Apr. 24, 2011, at 16 (observing that the “Post-World War II vision of the American Dream,” including a “house in the suburbs, college for the children and ever-increasing affluence” is no longer attainable). Projections of dismal economic growth suggest that this may be the new paradigm. See generally, Robert J. Gordon, Is U.S. Economic Growth Over? Faltering Innovations Confront the Six Headwinds (Nat’l Bureau of Econ. Research, Working Paper No. 18315, 2012), available at http://www.nber.org/papers/w18315.
256. Oscar Avila, ‘Wage theft’ Bill Gains Traction, CHI. TRIB., Apr. 25, 2010, available at http://articles.chicagotribune.com/2010-04-25/classified/ct-met-wage-theft-20100425_1_wage-theft-labor-groups-workers.
257. See Public Act 96-1407, §§ 2, 10, 2011 Ill. Laws 6313-14 (section 2 codified as amended at 725 ILL. COMP. STAT. 5/11-4 (2015), and section 10 codified as amended at 820 ILL. COMP. STAT. 115/11, 13, 14 (2015)). For summaries of the enactment, see John J. Fitzpatrick, et al., State Labor Legislation Enacted in 2010, MONTHLY LAB. REV., Jan. 2011, at 3, 15, available at http://www.bls.gov/opub/mlr/2011/01/mlr201101.pdf; Irving M. Geslewitz, Illinois Employer Get Ready: New “Wage Theft” Law Arms Employees with New Weapons in Wage Disputes, NAT’L L. REV. (Sept. 17, 2010), http://www.natlawreview.com/article/illinois-employers-get-ready-new-wage-theft-law-arms-employees-new-weapons-wage-disputes; JUST PAY FOR ALL COALITION, SUMMARY OF 2011 LEGISLATIVE CHANGES TO ILLINOIS’ WAGE THEFT STATUTE [hereinafter JPFAC 2011 STATUTORY SUMMARY], available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB4QFjAAahUKEwjDpsaYtaDIAhUGlA0KHSkWAHQ&url=http%3A%2F%2Fwww.illinoislegaladvocate.org%2FcalendarUploads%2FSummary%2520of%25202011%2520Amendments%2520to%2520IL%2520Wage%2520Theft%2520Statute%2520doc.docx&usg=AFQjCNF2lmvAmfvwqBdCKjdW4upKdh5iA&sig2=zQuGeFBpxVzgdUinvgYQiA.
258. See 735 ILL. COMP. STAT. 5/3-101-111 (2015).
259. Public Act 96-1407, § 10, 2011 Ill. Laws 6314 (codified as amended at 820 ILL. COMP. STAT. 115/11(d)).
260. See DUIS, supra notes 26-27 and accompanying text.
261. See Brownfield, supra note 246.
262. See DUIS, supra notes 26-27 and accompanying text.
263. Just Pay For All Coalition is comprised of the Chicago Workers’ Collaborative, Latino Union of Chicago, Centro de Trabajadores Unidos and the Working Hands Legal Clinic. Just Pay for All Brochure, Who is Just Pay?, http://www.gistfunders.org/documents/JustPayforAllBrochure.pdf.
264. See Delgado Staff, Delgado Sponsors Illinois Wage Payment and Collection Act, STS. NEWS SERVICE, Mar. 8, 2010 (“This legislation was brought to me by the Chicago Workers’ Collaborate and Working Hands Legal Clinic.”).
265. JPFAC 2011 STATUTORY SUMMARY, supra note 257.
266. See DUIS, supra notes 26-27 and accompanying text.
267. See JPFAC 2011 STATUTORY SUMMARY, supra note 257; see also supra Part III. G.3 (discussing the investigative process under the 1992 rulemaking).
268. See Public Act 96-1407, § 10, 2011 Ill. Laws 6314 (codified as amended at 820 ILL. COMP. STAT. 115/11(d) (2015)).
269. Id. (codified as amended at 820 ILL. COMP. STAT. 115/14(a)).
270. Id.
271. Id. (codified as amended at 820 ILL. COMP. STAT. 115/14(b) (2015)).
272. Id.
273. Id.
274. See Unified Code of Corrections, 730 ILL. COMP. STAT. 5/5-4.5-65(a), (e) (2015).
275. Id. at 5/5-4.5-60(a), (e).
276. See Public Act 96-1407, § 10, 2011 Ill. Laws 6314 (codified as amended at 820 ILL. COMP. STAT. 115/14(a-5)(1) (2015)).
277. See 730 ILL. COMP. STAT. 5/5-4.5-55 (2015).
278. See Public Act 96-1407, § 10, 2011 Ill. Laws 6314 (codified as amended at 820 ILL. COMP. STAT. 115/14(a-5)(2) (2015)).
279. See 730 ILL. COMP. STAT.5/5-4.5-45(a), (e) (2015).
280. See Public Act 96-1407, § 10, 2011 Ill. Laws 6314 (codified as amended at 820 ILL. COMP. STAT.115/14 (a-5)(2) (2015)).
281. Id. §§ 2, 10, 2011 Ill. Laws 6313-14 (codified as amended at 30 ILL. COMP. STAT.105/5.755 (2015) and 820 ILL. COMP. STAT.115/14(a-5)(2) (2015)) (creating the Wage Theft Enforcement Fund, and prescribing the deposit and the use of its fund).
282. See supra note 186 and accompanying text.
283. See supra note 187 and accompanying text.
284. See Public Act 96-1407, 2011 Ill. Laws 6313-18 (codified as amended at 820 ILL. COMP. STAT. 115/14(b-5) (2015)).
285. See id.
286. Id. (codified as amended at 820 ILL. COMP. STAT. 115/14(c) (2015).
287. See E-mail from Carmela Gonzalez, Ill. Dep’t of Labor, to Matthew Rice, Joint Committee on Adm. Rules (Mar. 15, 2011) (on file with author).
288. See Notice of Adopted Amendments: Payment and Collection of Wages or Final Compensation, ILL. ADMIN. CODE tit. 56, § 300, 35 ILL. REG. 12933 (Aug. 5, 2011) [hereinafter 2011 Notice of Adopted Amendments].
289. Id. at 12960-61 (codified as amended at ILL. ADMIN. CODE tit. 56, §§ 300.1180–300.1210 (2015)).
290. See generally 2011 Notice of Adopted Amendments, supra note 288.
291. See id. §§ 300.940–300.942.
292. See id. §§ 300.950–300.1020.
293. Id. §§ 300.1040–300.1160.
294. Id. at 12944-46, §§ 300.700–300.930.
295. See Notice of Emergency Amendments: Payment and Collection of Wages or Final Compensation, 35 ILL. REG. 3805, 3806-07 (March 4, 2011).
296. Id. at 3807.
297. Id.
298. E-mail from Carmela Gonzalez, supra note 287 (IDOL’s response to an inquiry from the Joint Committee on Administrative Rules’ (JCAR) during the rulemaking process).
299. Id. (referring generally to Second Notice of Proposed Amendments: Payment and Collection of Wages or Final Compensation 35 Ill. Reg. 3654, 3663 (June 13, 2011).
300. See generally supra Part III.E (discussing the evolving political history of section 9 of the IWPCA).
301. See 2011 Notice of Adopted Amendments, supra note 288, at 12944, § 300.720.
302. Id. at 12945, § 300.760.
303. Id. at 12945, § 300.800.
304. Id. at 12945, § 300.810.
305. Id. at 12944, § 300.730.
306. H.R., 37th Legislative Day, Transcription Debate, 97th Gen. Assemb., Reg. Sess. 19 (Ill. 2011) (Rep. Dugan on 3d reading of H.B. 1315); S., 45th Legislative Day, Senate Transcript, 97th Gen Assemb., Reg. Sess. 111 (Ill. 2011) (Sen. Holmes on 3d reading of H.B. 1315).
307. Public Act 97-0120, § 5, 2011 Ill. Laws 6437-39 (amending section 9 of the IWPCA) (codified as amended at 820 ILL. COMP. STAT. 115/9 (2015)).
308. Id.
309. Id.
310. See Henry S. Farber, Job Loss in the Great Recession and its Aftermath: U.S. Evidence from the Displaced Workers Survey 2-5 (Nat’l Bureau of Econ. Research, Working Paper No. 21216, 2015), available at http://www.nber.org/papers/w21216.
311. Id. at 34; see also Menzie D. Chinn, et al., Post-Recession US Employment Through the Lens of a Non-Linear Okun’s Law 3 (Nat’l Bureau of Econ Research, Working Paper No. 19047, 2013), available at http://www.nber.org/papers/w19047 (finding that employment in the United States is 1.17 jobs million below what “would have been predicted on the basis of the historical co-movement of employment and GNP” after the Great Recession).
312. See Public Act 98-0527, § 5, 2013 Ill. Laws 6636-30 (amending sections 11 and 14 of the IWPCA) (codified as amended at 820 ILL. COMP. STAT. 115/11 (d) (2015)).
313. Id. (codified as amended at 820 ILL. COMP. STAT. 15/14(b) (2015)).
314. H.R., 63rd Legislative Day, Transcription Debate, 98th Gen. Assemb., Reg. Sess. 20 (Ill. 2013) (Rep. Hoffman on 3d reading of S.B. 1568).
315. See S., 39th Legislative Day, Transcription Debate, 98th Gen. Assemb., Reg. Sess. 42 (Ill. 2013) (Sen. Delgado on 3d reading of S.B. 1568).
316. See Public Act 98-0527, § 5, 2013 Ill. Laws 6636-30 (codified as amended at 820 ILL. COMP. STAT. 115/14(b) (2015)).
317. See Sara Jane Hughes & Stephen T. Middlebrook, Survey—Cyberspace Law: Are These Game Changers? Developments in the Law Affecting Virtual Currencies, Prepaid Payroll Cards, Online Tribal Lending, and Payday Lenders, 70 BUS. LAW 261, 265–66 (2014).
318. Jessica Silver-Greenberg & Stephanie Clifford, Paid Via Card, Workers Feel Sting of Fees, N.Y. TIMES, June 30, 2013, http://www.nytimes.com/2013/07/01/business/as-pay-cards-replace-paychecks-bank-fees-hurt-workers.html?_r=0.
319. Id.
320. Alejandra Cancino, Illinois AG Pushes for Payroll Card Regulations, CHI. TRIB. (Apr. 13, 2014), http://articles.chicagotribune.com/2014-04-13/business/ct-payroll-cards-illinois-0413-biz-20140413_1_inactivity-fees-illinois-ag-cards.
321. National Association of Attorneys General, Payroll Cards and the States: Benefits, Challenges, and Action, 8 NAAGAZETTE No. 9 [hereinafter NAAG], available at http://www.naag.org/publications/naagazette/volume-8-number-9/payroll-cards-and-the-states-benefits-challenges-and-action.php.
322. Cancino, supra note 320.
323. NAAG, supra note 321.
324. Christine Daleiden, Electronic Cash: Payroll Cards Replace the Paycheck, 9 HAW. B. J. 24, 25 (2005); see also Mark E. Budnitz, Consumer Payment Products and Systems: The Need for Uniformity and the Risk of Political Defeat, 24 ANN. REV. BANKING & FIN. L. 247, 265–70 (2005).
325. See Silver-Greenberg & Clifford, supra note 318.
326. NAAG, supra note 321.
327. See supra Part II.A (discussing the 1891 wage theft labor standards).
328. See Silver-Greenberg & Clifford, supra note 318.
329. NAAG, supra note 321.
330. Rachel Abrams, New York Attorney General Supports a Bill Regulating Payroll Cards, N.Y. TIMES DEALBOOK, June 12, 2014, http://dealbook.nytimes.com/2014/06/12/eric-schneiderman-favors-state-curbs-on-payroll-cards/?_r=0.
331. See 119th Legislative Day, House Debates, 98th Ill. Gen. Assemb., Reg. Sess. (Ill. 2014) (Rep. Turner on 3d reading of H.B. 5622).
332. Id.
333. Cancino, supra note 320.
334. Id.
335. Id.
336. See generally OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL: THE LABOR BUREAU, PINCHED BY PLASTIC: THE IMPACT OF PAYROLL CARDS ON LOW-WAGE WORKERS ( June 12, 2014), available at http://www.ag.ny.gov/pdfs/Pinched%20by%20Plastic.pdf (studying the issue and proposing legislation).
337. Id. at 9.
338. See Hughes & Middlebrook, supra note 317, at 264-66 (discussing a Senate inquiry concerning possible payroll card practice violations of the FLSA and California wage and hour litigation); see also Silver-Greenberg & Clifford, supra note 318; Suzanne Martindale & Christina Tetreault, Pay Me How? What You Should Know About Payroll Cards, 48 CLEARINGHOUSE REV. J. POVERTY LAW & POL’Y, 69, 70 (2014), available at https://consumersunion.org/wp-content/uploads/2014/08/Pay_me_how.pdf.
339. See Silver-Greenberg & Clifford, supra note 318.
340. Id.
341. Pub. L. No. 111-203 (2010). For a list of all codified sections of the Act, see UNITED STATES GOVERNMENT PUBLISHING OFFICE, http://www.gpo.gov/fdsys/pkg/PLAW-111publ203/content-detail.html (last visited Oct. 8, 2015).
342. See Silver-Greenberg & Clifford, supra note 318.
343. 15 U.S.C. §§ 1693-1693r (2015).
344. See Consumer Financial Protection Bureau Bulletin No. 2013-10, Payroll Card Accounts (Regulation E) (Sept. 12, 2013), http://files.consumerfinance.gov/f/201309_cfpb_payroll-card-bulletin.pdf.
345. Id.
346. Id.
347. See Stegall v. Peoples Bank of Cuba, 270 S.W.3d 500, 503 (Mo. Ct. App. 2008) (finding that EFTA did not preempt a common law breach of contract action).
348. Id. at 503-04.
349. See NAAG, supra note 321.
350. See Illinois Department of Labor, Public Advisory to All Employers and Employees in Illinois Regarding use of Electronic Payroll Debit/Credit Cards for the Payment of Wages (2013), https://web.archive.org/web/20131114083340/http:/www.illinois.gov/idol/Laws-Rules/FLS/Pages/debit-credit-cards.aspx.
351. See Martindale & Tetreault, supra note 338, at 71.
352. See Press Release, Illinois Attorney General Lisa Madigan, Attorney General Madigan Applauds Governor’s Action to Increase Protections for Low Wage Workers (Aug. 6, 2014), http://www.illinoisattorneygeneral.gov/pressroom/2014_08/20140806.html; Cancino, supra note 320.
353. See Press Release, supra note 352.
354. See, e.g., Golden Bear Family Restaurants, 494 N.E.2d at 588 (adopting IDOL’s uncodified construction of section 5 of the IWPCA). But cf. Sparks & Wiewel Constr. Co. v. Martin, 620 N.E.2d 533, 541 (Ill. App. Ct. 1993) (disagreeing with an Attorney General’s opinion construing the Prevailing Wage Act); Zickuhr v. Bowling, 423 N.E.2d 257, 260-61 (Ill. 1981) (disagreeing with an Attorney General opinion construing the Prevailing Wage Act).
355. See supra Part III.C (discussing the evolving political history of section 4 of the IWPCA).
356. See supra Parts III.E, III.G.4 (discussing the evolving political history of section 9 of the IWPCA, and the 1992 rulemaking thereunder, respectively). The 2011 amendment to the regulations and to section 9 of the IWPCA does not change this analysis. See supra Parts IV.B.2, IV.C.
357. See supra Parts II.A, III.C, III.E and III.G.4 (discussing Illinois’ 1891 wage theft labor standards, and sections 4 and 9 of the IWPCA).
358. James Lockhart, Validity, Construction, and Application of Electronic Fund Transfer Act (EFTA), and Regulations Promulgated Thereunder, 15 U.S.C.A. §§ 1693 et seq, 46 A.L.R. FED. 2d 473, §§ 6, 7 (2010) (analyzing EFTA preemption of state statutes and common law).
359. See S., 131st Legislative Day, Senate Transcript, 98th Gen. Assemb., Reg. Sess. 114-15 (Sen. Raoul on 3d reading of H.B. 5622).
360. Press Release, supra note 352.
361. Bill Dunn, Illinois Law a Step in the Right Direction for Payroll Card Legislation, AM. PAYROLL ASS’N, Sept. 16, 2014, http://now.americanpayroll.org/article/illinois-law-step-right-direction-payroll-card-legislation.
362. See Public Act 98-0862, § 99, 2014 Ill. Laws (codified as amended at 820 Ill. Comp. Stat. 115/2, 4, 14.5 (2015)).
363. Id. § 5 (codified as amended at 820 ILL. COMP. STAT. 115/4 (2015)) (emphasis noting amendment).
364. Id. (codified as amended at 820 ILL. COMP. STAT. 115/14.5 (2015)).
365. Id. (codified as amended at 820 ILL. COMP. STAT. 115/14.5(1)–(3) (2015)).
366. Id. (codified as amended at 820 ILL. COMP. STAT. 115/14.5(4) (2015)).
367. Id. (codified as amended at 820 ILL. COMP. STAT. 115/14.5(1)–(9) (2015)).
368. See Notice of Adopted Amendments: Payment and Collection of Wages or Final Compensation, 38 ILL. REG. 18517, 18518 (Sept. 5, 2015) [hereinafter, 2014 Notice of Adopted Amendments].
369. Id. at 18520.
370. Id. at 18539-41 (codified as amended at ILL. ADMIN. CODE tit. 56, §§ 300.950-300.1020 (2015)).
371. Id. at 18541-52 (codified as amended at ILL. ADMIN. CODE tit. 56, §§ 300.1028-300.1160 (2015)).
372. Id. at 18541-43 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.1028 (2015)).
373. Id. at 18537-38 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.941 (2015)).
374. Id. at 18538 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.941(c) (2015)).
375. Id. (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.941(d) (2015)).
376. Id.
377. Id. at 18520.
378. Id. at 18528-18529 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.500 (2015)).
379. Id. (underlined text was added to the statute during the amendment process, and the stricken portions were removed).
380. Compare id.. with Part II.G.1.b (discussing section 300.500 of the 1992 rulemaking).
381. See McLaughlin v. Sternberg Lanterns, Inc., 917 N.E.2d 1065, 1070-72 (Ill. App. Ct. 2009) (applying section 300.500 of the 1992 rulemaking, and state and federal IWPCA bonus cases).
382. See Hess v. Bresney, 784 F.3d 1154, 1162 (7th Cir. 2015) (applying prior IWPCA bonus cases and the 2014 rulemaking).
383. See 2014 Notice of Adopted Amendments, supra note 368, at 18529 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.510 (2015)).
384. Id. (underlined text was added to the statute during the amendment process, and the stricken portions were removed).
385. Compare id., with Part III.G.1.c (discussing section 300.510 of the 1992 rulemaking).
386. See generally Ashley and Waple v. IM Steel, Inc., 939 N.E.2d 22 (Ill. App. Ct. 2010) (applying the procuring cause rule in an IWPCA commission case).
387. See 2014 Notice of Adopted Amendments, supra note 368, at 18531 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.520 (2015)) (underlined text was added to the statute during the amendment process).
388. 543 N.E.2d 520 (Ill. App. Ct. 1989).
389. Compare id., with 2014 Notice of Adopted Amendments, supra note 368, at 18531 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.520 (2015)); see also supra Part III.D (discussing the political history of section 5 of the IWPCA).
390. See 2014 NOTICE OF ADOPTED AMENDMENTS, supra note 368, at 18531-32 (codified as amended at ILL. ADMIN. CODE tit. 56, § 300.600 (2015)) (underlined text was added to the statute during the amendment process, and the stricken portions were removed).
391. Compare ILL. ADMIN. CODE tit. 56, § 300.600 (2015), with Part III.C (discussing the political history of section 4 of the IWPCA), and Part IV.E (discussing the 2014 amendment of the IWPCA).
392. 140 N.E.2d 713 (Ill. 1957); see also supra notes 89-104 and accompanying text (discussing Pullman).
393. Id. at 719.
394. See supra note 10 and accompanying text.
395. Farber Working Paper No. 21216, supra note 310 and accompanying text (examining the 2010, 2012 and 2014 the Displaced Workers Surveys).
396. Nelson D. Schwartz, Gap Widening as Top Workers Reap the Raises, N.Y. TIMES, July 24, 2015, http://nytimes.com/2015/07/25/business/economy/salary-gap-widens-as-top-workers-in-specialized-fields-reap-rewards.html?emc=edit_th_20150725&nl=todaysheadlines&nlid=40533345&_r=0&referrer (reviewing recent statistics); see also Noam Scheiber, Growth in the “Gig Economy” Fuels Work Force Anxieties, N.Y. TIMES, July 12, 2015, http://www.nytimes.com/2015/07/13/business/rising-economic-insecurity-tied-to-decades-long-trend-in-employmentpractices.html?smid=li-share; Patricia Cohen, Middle Class, but Feeling Economically Insecure, NY TIMES, Apr. 10, 2015, http://www.nytimes.com/2015/04/11/business/economy/middle-class-but-feeling-economically-insecure.html (reviewing recent research from the Pew Research Center, the Brookings Institute, and the Federal Reserve Bank of St. Louis).
397. See supra notes 246, 311-12, 316, 360 and accompanying text.
398. See supra notes 369, 372-75 and accompanying text.
399. See supra Parts III.F, IV.A, IV.D, IV.E.2.
400. See supra Part IV.E.2.