Section 210.100  Application of the Act

 

All functions and powers of the Department of Labor and the Director under the Minimum Wage Law shall be exercised in cooperation with the functions and powers of the U.S. Department of Labor under the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.). In areas where the State and federal governments have concurrent powers under their respective statutes, the stricter of the two laws shall prevail.

 

Section 210.110  Definitions

 

"Act" means Minimum Wage Law [820 ILCS 105].

 

"Agriculture" means farming in all of its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in Section 15(g) of the Agricultural Marketing Act, as amended (12 U.S.C. 1141 et seq.)), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market, but not the operation of processing such commodities and any activities subsequent to such operation. Agriculture shall not include the cultivation, growing, harvesting, or preparation for the storage or marketing of Christmas trees, as defined in the regulations promulgated under the Fair Labor Standards Act of 1938, at 29 C.F.R. 780.200 - 780.209 (1994, no subsequent dates or editions), as amended at 36 FR 12084. The phrase "incident to or in conjunction with" shall not include construction by a private contractor of farm buildings on a farm.

 

"Aquaculture" means the controlled propagation, growth and harvest of aquatic organisms, including but not limited to fish, shellfish, mollusks, crustaceans, algae, and other aquatic plants, as defined in the Aquaculture Development Act [20 ILCS 215].

 

"Compliance Officer" means an authorized representative of the Director who is charged with the duty to:

 

investigate and gather data regarding the wages, hours and other conditions and practices of employment in any industry subject to this Act; and

 

investigate such facts, conditions, practices or matters as the officer may deem necessary or appropriate to determine whether any person has violated any provision of this Act, or which may aid in the enforcement of this Act.

 

"Department" means the Illinois Department of Labor.

 

"Director" means the Director of the Department or a duly authorized representative.

 

"Domestic worker" has the definition ascribed to it in the Domestic Workers' Bill of Rights Act [820 ILCS 182].

 

"Employee" means any individual permitted or suffered to work by an employer.

 

The Director will consider the following factors as significant when determining whether an individual is an employee or an independent contractor:

 

the degree of control the alleged employer exercised over the individual;

 

the extent to which the services rendered by the individual are an integral part of the alleged employer's business;

 

the extent of the relative investments of the individual and alleged employer;

 

the degree to which the individual's opportunity for profit and loss is determined by the alleged employer;

 

the permanency of the relationship;

 

the skill required in the claimed independent operation.

 

The common law standards relating to master and servant, the parties' designations and terminology, and the individual's status for tax purposes, are not dispositive. Rather, it is the total activity or situation that is controlling. In the case of an individual employed by a public agency, such term means any individual employed by the State of Illinois or any of its political subdivisions except for an individual who is a bona fide elective or appointed official.

 

"Governmental body" means the State and its agencies, municipalities and units of local government, and school districts.

 

"Hours worked" means all the time an employee is required to be on duty, or on the employer's premises, or at other prescribed places of work, and any additional time the employee is required or permitted to work for the employer. In the context of domestic work, "hours worked" includes all time during which a domestic worker is not completely relieved of all work-related duties, regardless of the location where the domestic work is performed.

 

An employee's meal periods and time spent on-call away from the employer's premise are compensable hours worked when such time is spent predominantly for the benefit of the employer, rather than for the employee.

 

An employee's travel, performed for the employer's benefit (for example, in response to an emergency call back to work outside the employee's normal work hours, or at the employer's special request to perform a particular and unusual assignment, or as a part of the employee's primary duty, or in substitution of the employee's ordinary duties during normal hours) is compensable work time as defined in 29 CFR 785.33 – 785.41 (1994, no subsequent dates or editions), as amended at 26 FR 190.

 

"Immediate family", as used in Section 3(d)(1) of the Act, means a person related to a subject employer either by blood, marriage or adoption and living as part of the same household. An employer who employs fewer than four employees exclusive of the employer's parent, spouse or child or other immediate family member is not subject to the provisions of the Act or this Part unless the employee is a domestic worker as defined in 820 ILCS 182/10.  The definition of "immediate family" contained in 820 ILCS 182/10 shall apply to such domestic workers.

 

"Including any radio or television announcer, news editor, or chief engineer, as defined by or covered by the Federal Fair Labor Standards Act of 1938", as used in Section 4a(2)(E) of the Act, means any employee employed as an announcer, news editor, or chief engineer by a radio or television station the major studio of which is located:

 

in a city or town of one hundred thousand population or less, according to the latest available decennial census figures as compiled by the Bureau of the Census, except where such city or town is part of a standard metropolitan statistical area, as defined and designated by the Bureau of the Budget, which has a total population in excess of 100,000; or

 

in a city or town of 25,000 population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area, as defined in the Fair Labor Standards Act of 1938 (29 U.S.C. 213(b)(9)) and the regulations promulgated thereunder at 29 C.F.R. Part 793 (1995, no subsequent dates or editions), as amended at 26 FR 10275.

 

"Individuals whose capacity is impaired by age or physical or mental deficiency", as used in Section 5 of the Act and in Subpart E of this Part, means individuals whose earning or productive capacity are impaired by a physical or mental disability, including those relating to age or injury, for the work to be performed. Disabilities which may affect earning or productive capacity include blindness, mental illness, intellectual or developmental disability, cerebral palsy, alcoholism, and drug addiction. The following, taken by themselves, are not considered disabilities for the purposes of Section 5 of the Act and Subpart E of this Part: vocational, social, cultural, educational disabilities; chronic unemployment; receipt of welfare benefits; nonattendance at school; juvenile delinquency; and correctional parole or probation.  Further, a disability which may affect earning or productive capacity for one type of work may not affect such capacity for another.

 

"Learners", as used in Section 6 of the Act and Subpart F of this Part, means individuals who are participating in a training program for an occupation in which they are employed. Such a training program must involve either formal instruction or on-the-job training during a period when the learners are entrusted with limited responsibility and are under supervision or guidance.

 

"Man-day" means any day during which an employee performs any agricultural labor for not less than one hour.

 

"A member of a religious corporation or organization" means an individual whose functions are spiritual or religious, such as a priest, rabbi, minister, nun, reverend or other such individuals who perform similar functions as their primary duties.

 

"Student learner", as used in Section 6 of the Act and Subpart F of this Part, means a student who receives course credit for participating in school-approved work-study programs.

 

"Tipped employee" means an employee engaged in an occupation in which gratuities are customarily recognized as part of the remuneration of such employee as referred to in Section 4(c) of the Act; an employee cannot be deemed a tipped employee unless the employee received $20 or more per month in gratuities.

 

"Volunteer" means a person who works for an employer under no contract of hire, expressed or implied, and with no promise of compensation, other than reimbursement for expenses as part of the conditions for work.  A volunteer is not an employee for the purposes of this Act.

 

"Wages" means compensation due to an employee by reason of the employment including allowances determined by the Director in accordance with the provisions of this Act.  These allowances shall include gratuities and, when customarily furnished by a group of employers to their employees, meals, lodging and other facilities.  When the reasonable cost of these allowances is not recorded by the employer, the Director will determine the fair value of such meals, lodging or other facilities for defined classes of employees based on the average cost to the employer or groups of employers, or other appropriate measures of fair value.  Such evaluations, when applicable and pertinent, shall be used in lieu of the actual measure of cost in determining the wage paid to any employee.  In the context of domestic workers, the cost of lodging and meal credits are governed by the standards in Section 210.125(d).

 

(Source:  Amended at 46 Ill. Reg. 14051, effective July 19, 2022)

 

Section 210.115  Joint Employers

 

a)         Two or more employers may be associated with each other in relation to an individual employee in such a way that they jointly employ that individual under the Illinois Minimum Wage Law (the "Act").  If the facts establish that the worker is employed jointly by two or more employers, all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the Act.  In this event, all joint employers shall be jointly and severally liable for any violation of the Act. 

 

b)         The following factors provide guidance on whether a joint employment relationship exists in a particular case:

 

1)         The employee's work is to the benefit of the alleged joint employer;

 

2)         The work performed by the employee is an integral part of the alleged joint employer's business or businesses;

 

3)         The alleged joint employer has direct or indirect control or influence over the employee's terms or conditions of employment, including the employee's schedule and the quality of the employee's work;

 

4)         The alleged joint employer owns or leases the premises where the work is performed or provides tools or materials used by employees to perform the work;

 

5)         The alleged joint employer has direct or indirect control over the other joint employer's or employers' operations through contractual obligations, shared joint management, direct or indirect ownership interest, or economic dependence.

 

c)         Whether a joint employment relationship exists depends on all the facts of the particular case.  The inquiry should consist of looking at the actual relationship between the employee and the employers, including the employers' ability to exercise control over the employee either directly or indirectly.  No one factor is dispositive in the determination of joint employment.  For example, a joint employment relationship may still exist when only two of the five factors in subsection (b) indicate the existence of a joint employment relationship.

 

d)         If all the relevant facts based on the five factors establish that two or more employers are acting in a manner that is substantially independent of each other, and are completely disassociated with respect to the employment of a particular employee who, during the same workweek, performs work for more than one employer, each employer may disregard all work performed by the employee for the other employer or employers in determining its own responsibilities under the Act.

 

e)         Examples

 

1)         Example 1

 

A)        Trucking Company enters into a written agreement with Supplier to make deliveries to the Supplier's clients.  Trucking Company is not a party to the Supplier's agreements with its clients; it only provides trucks and drivers.  Supplier requests the number of trucks to fulfill its orders on a weekly basis and the number varies depending upon the orders.  Trucking Company hires, disciplines, and dismisses drivers.  Trucking Company assigns drivers to Supplier and its other clients on a rotating basis.  Drivers establish the routes used to make the deliveries and are responsible for making deliveries in a timely fashion.  Trucking Company has other clients. 

 

B)        Application

In this example, a joint employer relationship is not formed.  Trucking Company hires, assigns, disciplines, and dismisses drivers.  Supplier and Trucking Company are independent business entities that do not have any common ownership or shared management.  The drivers provide work that is a benefit to the Supplier, but it is not an integral part of its business.  Supplier has no direct or indirect control over the terms and conditions of the driver's work, in that it does not dictate the driver's routes or daily schedules. 

 

2)         Example 2

 

A)        Company A owns a warehouse.  Logistics are an integral part of Company A's business.  Company A contracts with Company B, a logistics supplier, to provide logistics labor to the warehouse.  To perform this contract, Company B relies on several staffing agencies including Staffing Agency.  Workers are employed by Staffing Agency and perform work at the warehouse.  Staffing Agency hires and pays the workers.  Company A provides on-the-job training, necessary equipment and materials, provides assignments on site, and reserves the right to remove the workers from the work site.  Both Company A and Company B supervise the workers' daily tasks and exert control over workers' schedules.  The workers have been continuously working at Company A's warehouse, whether through Company B, Staffing Agency or another intermediary, for over a year. 

 

B)        Application

In this example, a joint employer relationship is formed between all the parties.  While Staffing Agency hires and pays the workers, Company A exerts substantial control over the workers, provides training, equipment, and materials, can remove the workers from the work site, and exerts control over worker schedules and provides assignments.  Company A and B supervise the workers.  The workers have been continuously employed at Company A's warehouse regardless of the intermediaries.  The work performed by the workers is for the benefit of Company A. 

 

3)         Example 3

 

A)        An employee works as a laborer for landscaping Company A and also performs the same type of work for landscaping Company B.  The two landscaping companies' managers coordinate the employee's schedule, assign the employee to various job sites, and generally determine which workers will be on the crews on a given week.  Company A and Company B issue separate payroll checks to the employee from separate accounts.  The two companies are independently incorporated, however, both companies share the same majority owner.  At times, the two companies share tools and equipment used by the workers.

 

B)        Application

In this example, a joint employer relationship is formed. The facts that Company A is incorporated separately from Company B and that each company pays the workers from separate accounts do not insulate them from the joint employer relationship.  Here, Company A and Company B share common ownership.  The companies share workers, share equipment, coordinate employee schedules, assignments, and determine what crew workers will be on.  Functionally, they operate as joint employers.

 

4)         Example 4

 

The General Contractor for a large building construction project has engaged various subcontractors to complete certain aspects of the job.

 

A)        Example 4A

 

i)          General Contractor enters into a verbal agreement with Subcontractor A to provide general workers for the project.  The scope of the work is not defined and changes on a daily basis depending on the General Contractor's needs at the time.  The workers report to the job site every day for the duration of the project, and will work on this project until substantial completion.  General Contractor provides the tools and materials the workers use and directs the daily tasks and schedules for the workers.  Both General Contractor and Subcontractor A supervise the employees' quality of work.  General Contractor reserves the right to remove any of Subcontractor A's workers from the project but does not have authority to terminate workers.  General Contractor has the right to enforce all reasonable workplace rules, regulations, and address safety issues on the job site.

 

ii)         Application

In this example, a joint employer relationship is formed.  The workers perform work solely on the General Contractor's job site and for the General Contractor's benefit.  While both the General Contractor and Subcontractor A control the supervision and quality of work, General Contractor maintains all other authority over the project.  General Contractor has assumed direct control of the assigning workers to the job site.  General Contractor makes the daily work schedule, directs the workers as to the work they are to complete, and the workers are assigned to this project for the duration of the project, making them an integral part of the job.  The General Contractor can take disciplinary action by removing workers from the worksite.

 

B)        Example 4B

 

i)          General Contractor has a written agreement with Subcontractor B to perform electrical work on the project.  The agreement outlines the scope of work and requires that Subcontractor B maintain certain delineated safety standards.  Per the agreement, General Contractor also has the right to address safety issues on the job site.  The work requires specialized training, which Subcontractor B has ensured its employees are fully qualified to perform.  Electricians employed by Subcontractor B report daily to the project for a discrete period.  The electricians may be scheduled by Subcontractor B to be on other project sites during the same day as being on Contractor's project.  Subcontractor B coordinates the order and timing of their work with the General Contractor and, although it is not always on the job site, ensures the quality of the work.  Subcontractor B provides the electricians with the tools and materials they bring to the job site.  The electricians are provided safety requirements by Subcontractor B as outlined in the contract, Subcontractor B monitors for infractions and when infractions occur, Subcontractor B raises those issues with the electricians.

 

ii)         Application

In this example, a joint employer relationship is not formed.  While the electrical work performed benefits the General Contractor, it also benefits Subcontractor B's electrical business.  Subcontractor B and the General Contractor are separate business entities.  Subcontractor B hires, directs, assigns, and supervises the work of the electricians.  General Contractor has no responsibility for the assignment or supervision of the work.  General Contractor and Subcontractor B coordinate general scheduling to accommodate the flow of work being done, but the electricians are directed, assigned and scheduled to the project by Subcontractor B.  Subcontractor B supplies the equipment, tools, and materials for the job, and is responsible for the quality of the electricians' work.  Additionally, Subcontractor B is not economically dependent on the General Contractor, as the electricians are sent to other job sites indicating this project is only one of many for Subcontractor B.

 

5)         Example 5

 

A)        Hospital contracts with Security Company to provide armed and unarmed security guards 24 hours per day, 7 days per week.  Security Company hires, trains, and supplies uniforms and equipment for the guards.  While this is not the Security Company's only client, it is the largest and accounts for a majority of its annual revenues.  Hospital employs a Chief of Security who is responsible for communicating the Hospital's needs to the Security Company.  The Hospital Chief of Security holds weekly meetings with the Security Company to approve the guard assignments, staffing levels, individual guard job performance and evaluations, discipline of guards who violate the Hospital's policies, and suggest termination when in the Hospital's best interest.  Security Company assigns an area supervisor who checks on the guards once per shift, but the Hospital Chief of Security oversees the guards' work when he is present.  He has also given them direction and assigned specific tasks to the guards that are beyond the Security Company contract.

 

B)        Application

In this example, a joint employer relationship is formed.  Security Company and Hospital share direct control over the guards.  The Hospital's Chief of Security has significant control and oversight in assignment, supervision, and performance issues, including discipline and termination.  Additionally, there is an element of economic dependence as Hospital is Security Company's biggest client, which suggests additional control by the Hospital of the Security Company.

 

6)         Example 6

 

A)        Customer contacted Home Care Agency about receiving home care services.  Home Care Agency met with Customer and determined what services were needed to meet Customer's needs.  Home Care Agency, along with Customer, determined the tasks to be performed for Customer and the hours per week required to perform those tasks.  Home Care Agency set qualifications, recruited, and hired Home Care Worker.  Customer and Customer's wife supervise Home Care Worker on a day-to-day basis, can modify the tasks that Home Care Worker performs, and can modify Home Care Worker's work schedule. Customer or family members of Customer can report issues to Home Care Agency and Home Care Agency intervenes if a problem arises, such as arranging for another home care worker should Home Care Worker become unavailable.  Home Care Agency pays the home care worker directly, keeps records of hours worked, and determines the hourly rate of pay for the Home Care Worker.  Customer is invoiced by Home Care Agency for the services rendered.

 

B)        Application

 

            In this example, a joint employer relationship is formed between Home Care Agency, Customer, and Customer's wife.  Here, Home Care Worker's wages are paid by Home Care Agency and Home Care Agency controls the rate of pay and the method of payment.  Customer is invoiced by Home Care Agency.  Home Care Agency, Customer, and Customer's wife exercise considerable control over the structure and conditions of Home Care Worker's employment by determining the hours of work and what tasks are to be performed.  Customer's wife can raise issues with Home Care Worker's performance with Home Care Agency.  Home Care Agency intervenes in issues between Home Care Worker and Customer and/or Customer's wife.

 

(Source:  Added at 46 Ill. Reg. 2144, effective January 21, 2022)

 

Section 210.120  The Use of Federal Definitions of Various Terms

 

For guidance in the interpretation of the Act and this Part, the Director may refer to the Regulations and Interpretations of the Administrator, Wage and Hour Division, U.S. Department of Labor, administering the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.).

 

Section 210.125  Domestic Workers

 

a)         Definitions.  The following definitions shall apply for Section 125 only:

 

1)         "Bona fide meal break" means a period in which a domestic worker is completely relieved from duty for the purposes of eating regular meals. Ordinarily 20 minutes or more is long enough for a bona fide meal break. A domestic worker is not completely relieved from duty if the domestic worker is required to perform any duties, whether active or inactive, while eating.

 

2)         "Rest Period" means a period of time in which a domestic worker has complete freedom from all work-related duties and during which a domestic worker may either leave the location where the domestic work is performed without an obligation to be on call or remain at the location the domestic work is being performed for purely personal pursuits.  Rest periods of less than 20 minutes must be counted as "hours worked"

 

3)         "Shared Services" means services provided by a domestic worker to more than one employer that are intentionally coordinated by the employers. For example, in the context of childcare services, shared services are commonly referred to as a "nanny share".

 

4)         "Sleep Period" means a regularly scheduled, uninterrupted sleeping time of not more than eight hours, during which the employer provides sleeping quarters that comply with 56 Ill. Adm. Code 210.125(d)(1)(B) and a domestic worker can sleep, uninterrupted by work-related duties.  Any period of interrupted sleep to perform work-related duties must be compensated.  If a domestic worker cannot get at least 5 hours of uninterrupted sleep, completely relieved of work-related duties, that time period shall not be considered a sleep period and must be compensated as working time.

 

b)         Hours Worked. A domestic worker must be paid for all hours worked, excluding bona fide meal breaks, rest periods, and sleep periods.

 

1)         Example:  A caregiver making a personal call while watching over a client who is bedridden and requires constant supervision is not completely relieved of all work-related duties and must be compensated for this time.

 

2)         Example:  A nanny who is taking her lunch break, is able to leave the employer's premises at her discretion, and is relieved of her duties of childcare by a parent, is completely relieved of all work-related duties.

 

3)         Example:  a caregiver lives at his employer's home.  As his sleep period, the caregiver is relieved of his duties at 9 pm and is to resume work at 5 am the following day.  However, during one particular sleep period, he is interrupted 3 times between 11 pm and 4 am.  Here, the caregiver is not allowed a period of at least 5 hours of uninterrupted sleep, the 5-hour period of 11 pm to 4 am is not considered a sleep period, and the time is compensable as working time.

 

c)         Recordkeeping. An employer shall maintain pay and time records for domestic workers in accordance with Section 210.700.

 

1)         Time records shall include records indicating each bona fide meal break, rest period, and sleep period taken in a workweek.

 

2)         In the absence of accurate employer time records, a domestic worker need only produce sufficient evidence to demonstrate the amount and extent of compensable time worked as a just and reasonable inference. Credible testimony by the employee is sufficient evidence. The employer must then produce evidence of the exact amount of work or time earned or produce evidence to negate the reasonable inferences drawn from the employee's evidence. The employer's failure to make and maintain records as required under subsection (b)(1) shall not preclude a finding based on the information available that compensable time is due, even though the award may be only approximate.

 

d)         Overtime. A domestic worker must be compensated at the overtime rate for all hours worked in excess of 40 in a workweek, regardless of the nature of the services provided. Overtime base rates must be calculated by including all credits taken by the employer for lodging and meals in a workweek as well as any deductions taken by the employer.  Where two or more employers share services, the hours worked by the domestic worker for each employer must be included in calculating total hours worked in the workweek for overtime purposes.

 

1)         Example: A worker is hired jointly by two families with an agreement to provide nanny services for two separate households.  The worker provides services for a combined 50 hours during the week:  30 hours for Family A and 20 Hours for family B.  The worker is entitled to 10 hours of pay at overtime rates for time worked over 40 hours.  

 

2)         Example: A cashier at a family-owned restaurant is asked by the restaurant owner to take care of the owner's children a couple of days a week. The worker works a combined 60 hours during the week:  40 hours as a cashier at the restaurant and 20 hours taking care of the owner's children.  The worker is entitled to 20 hours of pay at overtime rates. 

 

e)         Lodging or Meal Credit

 

1)         An employer may take a credit from a domestic worker's wages for meals or lodging actually provided to the domestic worker, if the following conditions are met:

 

A)        the domestic worker voluntarily and freely chooses the lodging or meals;

 

B)        the lodging is private, safe, and sanitary and otherwise complies with federal, State and local laws, ordinances or prohibitions including but not limited to:

 

i)          a room with a door with a lock;

 

ii)         at least a twin-sized bed, or larger, and other basic accommodations; and

 

iii)        unrestricted access to the kitchen, laundry, bathroom and potable water.

 

C)        the employer maintains accurate records on a workweek basis of any lodging and meal credit taken for that workweek, including records demonstrating:

 

i)          the costs incurred including itemized accounts of the nature and amounts of the expenditures; and

 

ii)         any deductions from wages, including overtime wages; 

 

D)        the resulting credit for lodging is the lesser of the fair market value of the accommodations provided or seven and one-half times the statutory minimum hourly wage for each week lodging is furnished (minimum wage X 7.5); and

 

E)        the employer takes a credit based on the reasonable cost of the meals and the resulting credit for meals is the lessor of $2 for breakfast, $3 for lunch, and $3 for dinner or the actual cost.

 

2)         An employer shall not take lodging or meal credits from the wages of a domestic worker if the employer requires that a domestic worker reside on the employer's premises or in a particular location or if the domestic worker maintains a separate place of residence and sleeps at the employers' premises for the benefit of the employer and for purposes of performing job duties.

 

(Source:  Added at 46 Ill. Reg. 14051, effective July 19, 2022)

 

Section 210.130  Length of Coverage for an Employer

 

An employer remains subject to the Act for the rest of a quarter in which it employed a fourth employee, or for the entire pay period in which it employed a fourth employee, whichever period is longer.

 

Section 210.140  Uniforms

 

No allowances for supply, maintenance or laundering of required uniforms shall be permitted as part of the minimum wage.

 

Section 210.150  Forbidden Activity Covered by Other Laws

 

Nothing in the Act or this Part is designed or intended to enable a person or employer to perform any act or activity forbidden by the laws of this State or of the United States.

 

Section 210.160  Communication with the Department and the Director

 

All employers subject to the provisions of the Act and all persons aggrieved by reason of an alleged violation of the Act shall address all communications, complaints, applications and correspondence to the Department's Chicago office.

SUBPART B: ESTABLISHMENT OF MINIMUM WAGE ALLOWANCE FOR GRATUITIES

 

Section 210.200  Meals and Lodging

 

a)         The reasonable cost of meals and lodging furnished by the employer and actually used by the employee may be considered as part of the wage paid an employee only where customarily furnished to the employee.  The employee must receive the meals and/or lodgings for which he or she is charged, and it is also essential that his/her acceptance thereof be voluntary and uncoerced. It is not sufficient that the meals and/or lodgings be furnished by an employer to justify the charge.  It is necessary that the meals and/or lodgings are furnished regularly by the employer to his employees in the same or similar trade, business or enterprise in the same or similar communities.

 

b)         The employer may charge the employee the reasonable cost to the employer of furnishing meals and/or lodgings which cost does not include profit to the employer and/or any affiliated person.

SUBPART C: SEX DISCRIMINATION

 

Section 210.300  Sex Discrimination

 

The Act forbids wage discrimination between employees on the basis of sex.  The Illinois Department of Human Rights has the responsibility of enforcement of the Illinois Human Rights Act [775 ILCS 5] which also prohibits discrimination in employment based on sex.  The Illinois Department of Labor will cooperate with the Department of Human Rights in enforcing the similar sex discrimination provisions in their respective Acts as they relate to wages.

SUBPART D: OVERTIME

 

Section 210.400  Determining Workweek for Overtime

 

a)         An employee's workweek is a fixed and regularly recurring period of 168 hours - seven consecutive 24-hour periods. It need not coincide with the calendar week, but it may begin on any calendar day and at any hour of the day.

 

b)         Once the beginning time of a workweek is established, it remains fixed regardless of the schedule of hours worked by the employee.  The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of this Act.

 

c)         In the event an employer fails to establish a fixed and regular work week, the Director shall consider a calendar week as the applicable work week. "Calendar week" means that seven consecutive day period beginning at 12:01 a.m. Sunday morning and ending on the following Saturday night at midnight.

 

Section 210.410  Exclusions from the Regular Rate

 

The "regular rate" shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not include:

 

a)         Sums paid as gifts such as those made at holidays or other amounts that are not measured by or dependent on hours worked; and

 

b)         Payments made for occasional periods when no work is performed due to a vacation, holiday, illness, failure of employer to provide sufficient work, or other similar cause; and

 

c)         Sums paid in recognition of services performed which are:

 

1)         determined at the sole discretion of the employer, or

 

2)         made pursuant to a bona fide thrift or savings plan, or

 

3)         in recognition of a special talent; and

 

d)         Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old age, retirement, life, accident, or health insurance or similar benefits for employees; and

 

e)         Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight a day where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in non-overtime hours on other days; and

 

f)         Extra compensation provided by a premium rate paid to employees on Saturdays, Sundays, holidays or regular days of rest where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in non-overtime hours on other days; and

 

g)         Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic workday where such premium rate is not less than one and one-half times the rates established in good faith by the contract or agreement for like work performed during such workday or workweek.

 

Section 210.420  Regular Rate of Pay for Determination of Overtime

 

a)         Section 4a of the Act requires that overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed.  The regular rate of pay at which the employee is employed shall in no event be less than the statutory minimum.  If the employee's regular rate of pay is higher than the statutory minimum, his overtime compensation must be computed at a rate not less than one and one-half times such higher rate.

 

b)         The regular rate is a rate per hour.  The Act does not require employers to pay employees on an hourly rate basis.  Their earnings may be determined on a piece-rate, salary, commission, or some other basis, but in such case the overtime pay due must be computed on a basis of the hourly rate derived from such earnings.

 

Section 210.430  Methods of Computing Overtime

 

a)         Hourly Rate Employees:  If an employee is employed solely on the basis of a single hourly rate, the hourly rate is the "regular rate".  For overtime hours, the employees must be paid, in addition to the straight time hourly earning, a sum determined by multiplying one-half the hourly rate by the number of hours worked over the maximum set by statute.

 

b)         Pieceworker:  When an employee is employed on a piece-rate basis (so much per piece, dozen, gross, etc.) the regular rate of pay is computed by adding together the total earnings for the workweek from piece rates and all other earnings (such as bonuses) and any sums paid for waiting time or other hours worked.  This sum is then divided by the number of hours worked in that week to yield the piece worker's "regular rate" for that week. For the overtime work the piece worker is entitled to be paid, in addition to the total straight time weekly earnings, one-half this regular rate for each hour over the maximum set by statute.

 

c)         Day Rates and Job Rates:  An employee may be paid a flat sum for a day's work or for doing a particular job, without regard to the number of hours worked in the day or at the job, and receive no other form of compensation. In such a case, the employee's regular rate is found by totalling all sums received at such day rates or job rates in the workweek and dividing by the total hours actually worked.  The employee is then entitled to extra half-time  pay at this rate for all hours worked over the maximum set by statute.

 

d)         Employee Paid on a Salary Basis:  If an employee is employed solely on a weekly salary basis, the regular hourly rate of pay is computed by dividing the salary by the number of hours which the salary is intended to compensate.

 

e)         Salary for Periods Other Than a Workweek:  Where the salary covers a period longer than a workweek, such as a month, it must be reduced to its workweek equivalent.  A monthly salary can be converted to its equivalent weekly wage by multiplying by 12 (the number of months) and dividing by 52 (the number of weeks).  A semi-monthly salary is converted to its equivalent weekly wage by multiplying by 24 and dividing by 52.

 

f)         Fixed Salary for Fluctuating Hours:  The regular rate of an employee whose hours of work fluctuate from week to week, who is paid a stipulated salary with the clear understanding that it constitutes straight time pay for all hours worked, whatever their number and whether few or many, will vary from week to week.  The regular rate is obtained for each week by dividing the salary by the number of hours worked in the week.  It cannot be less than the applicable minimum wage in any week.  Since straight time compensation has already been paid, the employee must receive additional overtime pay for each overtime hour worked in the week at not less than one-half this regular rate.

 

g)         Employees Working at Two or More Rates:  Where an employee in a single workweek works at two or more different types of work for which different straight time rates have been established, the regular rate for that week is the weighted average of such rates.  That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs.

 

h)         Payments Other Than Cash:  Where payments are made to employees in the form of goods or facilities which are regarded as part of wages, the reasonable cost to the employer or the fair value of such goods must be included in the regular rate (for example, lodging would be one such facility).

 

i)          Commission Payments:  Commissions (whether based on a percentage of total sales or of sales in excess of a specified amount or on some other formula) are payments for hours worked and must be included in the regular rate.  This is so regardless of whether the commission is the sole source of the employee's compensation or is paid in addition to a salary or hourly rate.  It does not matter whether the commission earnings are computed daily, weekly, monthly or at some other interval.

 

j)          Commission Paid on a Workweek Basis:  When a commission is paid on a workweek basis, it is added to the employee's other earnings for that workweek, and the total is divided by the total number of hours worked in the workweek to obtain the employee's regular rate for the particular workweek.  The employee must be paid extra compensation at one-half of that rate for each overtime hour worked.

 

k)         Deferred Commission Payments:  If the calculation and payment of the commission cannot be completed until some time after the regular pay day for the workweek, the employer may disregard it until the amount of commission can be determined.  When the commission can be computed and paid, the additional overtime compensation will be paid.

 

l)          To compute this additional overtime compensation, the commission is apportioned back over the workweeks of the period during which it was earned.  The employee must then receive additional overtime pay for each week during the period in which overtime was worked.  If it is not possible or practicable to allocate the commission on the basis of the amount of commission actually earned each week some other reasonable equitable method must be adopted.  One such method is to allocate an equal amount of commission earnings to each workweek in the period in which the commission was earned.  Another is to allocate equal amounts to each hour worked in that period.

 

m)        Nothing in this Section limits the Department of Labor from authorizing the use of legal methods of computation for the purpose of computing overtime.

 

Section 210.440  Overtime – General

 

a)         The Act does not require that an employee be paid overtime compensation for hours in excess of eight per day, or for work on Saturdays, Sundays, holidays or regular days of rest, unless hours worked exceed forty per week.

 

b)         The Act does not require holiday, vacation, sick pay or other similar causes be included in the regular rate of the employee. Hours that are paid for, but not worked, will not increase the regular rate.

 

c)         Sums paid as gifts such as those made at holidays or other amounts that are not measured by or dependent on hours worked may not be credited towards, or used to offset from, overtime compensation due under the Act.

SUBPART E: EMPLOYMENT OF AN INDIVIDUAL WITH A DISABILITY AT A WAGE LESS THAN THE MINIMUM WAGE RATE

 

Section 210.500  Application for a License to Employ an Individual with a Disability at a Wage Less than the Minimum Wage Rate

 

a)         No employer subject to the provisions of the Act may employ an individual with a disability at less than the minimum wage rate pursuant to Section 4 of the Act without first obtaining a license from the Director.

 

b)         An official application form for a license to employ an individual with a disability at a wage less than the minimum wage rate shall be provided by the Director. The employer shall answer all questions contained on the form. The application shall be signed jointly by the employer and the individual with a disability.

 

c)         The license shall be effective for a period not to exceed one year.  The individual may be paid the sub-minimum wage permitted under the license only during the effective period of the license.  The wage rate set in the license shall be fixed at a figure designed to reflect adequately the individual worker's earning or productive capacity.

 

d)         Upon the expiration of said license, an employer of an individual with a disability may submit an application for renewal, subject however to the same or similar terms and conditions as required for an original application. If an application for renewal has been properly and timely filed prior to the expiration date of a license, the license shall remain in effect until the application for renewal has been granted or denied.

 

Section 210.510  Criteria Used to Establish the Necessity of a Sub-Minimum Wage

 

a)         In order to determine that a wage lower than the minimum wage rate provided in Section 4 of the Act is appropriate, the following criteria will be considered:

 

1)         the specific nature and extent of an employed individual's disability and the direct correlation between the individual's disability and his/her productivity on the job;

 

2)         a comparison of the wages paid generally to experienced employees not disabled in the locality in which the work is being performed to an individual with a disability engaged in work of a similar character at a sub-minimum wage rate;

 

3)         the productivity of an individual with a disability compared to the norm established for nondisabled workers through the use of a verifiable work measurement method (as outlined in the regulations promulgated under the Fair Labor Standards Act of 1938, at 29 C.F.R. 525.12 (h) (1994, no subsequent dates or editions), as amended at 54 FR 32928 or the productivity of experienced nondisabled workers employed in the locality engaged in work of a similar character; and

 

4)         the wage rate to be paid to an individual with a disability for work of similar character performed by experienced nondisabled workers.

 

            The Director may as a prerequisite require the submission of additional information including medical or psychological examination report or an equivalent statement from a qualified federal or State agency.

 

b)         The Director shall not issue a license to an employer to pay a lower, disability-based wage to an individual with a disability if the employer: eliminated essential functions that the individual could perform, lowered production standards that the individual could meet, or lowered the wages of the individual because it provided the individual with a reasonable accommodation. The Director will use the Americans with Disabilities Act of 1990, as amended (29 U.C.S. 12111 et seq.) as a guide in this area.

 

c)         A claim or representation by an employer that the average cost of employing older workers as a group is higher than the average cost of employing younger workers as a group is not an acceptable differentiation to justify a sub-minimum wage to older workers.  An older worker's production level must be measured on an individual basis against the production level required of other employees to justify a sub-minimum wage to older workers.  The Director will use the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 621 et seq.) as a guide in this area.

SUBPART F: EMPLOYMENT OF LEARNERS AT A WAGE LESS THAN THE MINIMUM WAGE RATE

 

Section 210.600  General Provisions

 

a)         No employer subject to the provisions of the Act shall employ a learner at less than the minimum wage pursuant to Section 4 of the Act without first obtaining a license from the Director.  An employer may at no time pay a learner less than the minimum rate provided by Section 6 of the Act.

 

b)         No person shall be deemed a learner at an establishment in an occupation for which he has completed the required training.  A learner, having completed his/her required training, must thereupon be paid at wages not less than the minimum wage required by Section 4 of the Act.

 

c)         The period of learning may not exceed six months, except where the Director determines, following investigation, that the occupation for which the learner is to be trained requires in excess of six months of such training to attain a level of minimum proficiency.  A special request must be made by any employer seeking to extend the training period, upon forms provided by the Department.

 

d)         The employer has the burden of establishing that, for the occupation for which the learner is to be trained, there is a bona fide training program for the occupation, and the length of the training period is reasonable in light of the skills required to attain a level of minimum proficiency.

 

Section 210.610  Application to Employ a Learner

 

An official application form for a license to employ learners at a wage less than the minimum wage rate shall be provided by the Director. The employer shall provide all the information required by the form, including but not limited to a statement clearly outlining the training program and the process in which the learner will be engaged while in training.  The information shall further specify the total number of workers employed in the establishment, the number and hourly wage rate of experienced workers employed in the occupation in which the learner is to be trained, the hourly wage rate or progressive rate schedule which the employer proposes to pay to the learner, data regarding the age of the learner, the period of employment training at sub-minimum wages, the number of hours of employment training a week and the number of learners sought to be employed.

 

Section 210.620  Employing More Than One Learner

 

A license may be issued for the purpose of employing more than one learner in the same capacity.  A special form, to be provided by the Director, is to be completed and forwarded to the Director for each learner hired pursuant to a license which permits employment of more than one learner in the same capacity.

 

Section 210.630  Basic Learner Training Requirements

 

The occupation for which the learner is receiving training must require a sufficient degree of skill to necessitate a learning period.  The training must not be for the purpose of acquiring manual dexterity and high production speed in repetitive operations, nor may the employment of a learner displace any other worker employed in the establishment or tend to impair or depress the wage rates or working standards established for experienced workers for like work of comparable character.

 

Section 210.640  Student Learners in Work Study Programs

 

a)         A student learner may be paid at a sub-minimum wage rate in accordance with Section 6 of the Act for the length of the course or for the time in which he or she receives course credit, whichever is shorter.

 

b)         The employer or school must apply for a license to employ a student learner at a sub-minimum wage rate on official forms furnished by the Director.  A license may be issued for the purpose of employing more than one student learner in the same capacity.

SUBPART G: RECORDS, POSTING AND NOTICE REQUIREMENTS

 

Section 210.700  Contents of Records

 

The following basic information must be contained in the records of the employers:

 

a)         Name of each employee;

 

b)         Address of each employee;

 

c)         Birthdate of each employee eighteen years of age or under;

 

d)         Social Security Number;

 

e)         Sex and occupation in which employed;

 

f)         Hours worked each day and hours worked each workweek;

 

g)         Time of day and day of week when employee's workweek begins;

 

h)         Basis on which wages are paid;

 

i)          Additions and deductions from employee's wages for each pay period and an explanation of additions and deductions;

 

j)          Type of payment (hourly rate, salary, commission, etc.), straight time and overtime pay and total wages paid each pay period; and

 

k)         Dates of payment of each pay period covered by the payment.

 

Section 210.710  Identification of Learner or Individual with a Disability

 

a)         Individuals employed as a learner, or individuals with disabilities employed at a sub-minimum wage, shall be identified on the payroll as learners or individuals with disabilities, together with their rate of pay and occupation.

 

b)         Whenever possible, records of learners and individuals with disabilities are to be maintained in a separate file or folder for ready accessibility.

 

Section 210.720  Minimum Records of Gratuities

 

With respect to employees whose compensation is derived in part from 'gratuities', every such employer shall, in addition to the foregoing required information, also maintain and preserve records containing the following information and data with respect to each such employee:

 

a)         An identifying symbol, letter or number on the payroll record indicating such employee is a person whose wage is determined in part by gratuities.

 

b)         The report received from the employee setting forth gratuities received during each workday.  Such reports submitted by the employee shall be signed and include his or her Social Security Number.

 

c)         The amount by which the wage of each such employee has been deemed to be increased by gratuities as determined by the employer (not in excess of 40% of the applicable statutory minimum wage).  The amount per hour which the employer takes as a gratuity credit shall be reported to the employee in writing each time it is changed from the amount per hour taken in the preceding pay period.

 

d)         Hours worked each workday in any occupation in which the employee does not receive gratuities and the total daily or weekly straight time payment made by the employer for such hours.

 

e)         Hours worked each workday in an occupation in which the employee received tips or gratuities, and total daily or weekly straight time earnings for such hours.

 

Section 210.730  Records Kept Outside of the Business Premises

 

Should any part of the records or documents be located in a place other than the business premises of the employer, they shall be made available to the duly authorized representatives of the Director for examination.  Should any part thereof be located outside of the geographic boundaries of the State of Illinois, the employer must pay all expenses of examination by the Director's representatives, including travel, travel time, meal and lodging for each representative of the Director conducting said examination or investigation.

 

Section 210.740  Notice to Employers − Copies of the Act and Rules and Regulations

 

a)         It is the responsibility of each employer to become informed concerning the application of the Act to his/her business, establishment or enterprise.

 

b)         The Director shall, on request, provide every employer subject to any provisions of the Minimum Wage Law a copy of the Summary of the Act and the Rules and Regulations promulgated pursuant to the Act.  Said employer shall have on file, accessible for ready reference by himself/herself or his/her covered employees, a current copy of the Summary of the Act and the Rules and Regulations pertaining thereto, together with all special interpretations issued by the Director as applied in the Act and the Rules and Regulations.

 

Section 210.750  Posting Requirements

 

Every employer employing "employees" as defined by this Act shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Director in various languages, summarizing the requirements of the Act and information pertaining to the filing of a complaint.

 

(Source:  Added at 46 Ill. Reg. 14051, effective July 19, 2022)

SUBPART H: INSPECTION PROCEDURE

 

Section 210.800  Investigations

 

a)         Investigations under the Act may be generated by employee complaints and regular inspections (including target and re-inspections).

 

b)         Employees, or former employees, who wish to file a complaint must complete and submit an official application form provided by the Director. Complainants shall answer all questions contained on the form, including, but not limited to: the complainant's name, address, telephone number, social security number, and if 18 years of age or younger, his/her birthdate; the name, address and telephone number of the employer; the type and amount of back wages claimed; the hours worked, wages per hour, and gratuities received; and the signature of the complaining party.

 

c)         Any complaint which fails to meet all the requirements set forth in subsection (b) of this Section may be accepted by the Director if it otherwise contains the information determined by the Director to be necessary for a proper investigation and review of the alleged violation therein contained.

 

d)         Complaints must be filed within 1 year from the date of separation of employment or within 1 year after the alleged underpayment, whichever occurred later.  The Director may investigate payments made to all employees for up to 3 years prior to the date the complaint was filed.

 

Section 210.810  Investigation Procedures

 

a)         A Compliance Officer will make an initial determination with respect to whether the employer, employees, and/or former employees are covered under the Minimum Wage Law.

 

b)         A Compliance Officer may interview the employer, employees, and/or former employees to gather information on such subjects as hours worked, rate and type of pay, meals, lodging, gratuities, age and other such conditions and practices of employment.

 

c)         A Compliance Officer will review the time and payroll records for each employee, and/or former employee, and do a complete dollar audit for a period not to exceed three years for those employees to whom back wages are owed.

 

d)         A Compliance Officer will notify the employer or his/her agent of the results of the investigation, including the amount of back wages due, if any.

 

e)         The Director will issue a written notice of noncompliance with the Minimum Wage Law to the employer or his/her agent when a Compliance Officer finds that back wages are due.

 

f)         The Director may provide the employer, employees, and/or former employees with an opportunity to present further evidence and identify any issues in dispute at an informal investigatory conference pursuant to Subpart I of this Part.

 

Section 210.820  Enforcement Procedures

 

a)         The Director will seek voluntary compliance by the employer.  The payment of back wages due the employees and/or former employees (plus any penalties and punitive damages assessed pursuant to Section 12 (a) of the Act and Subpart J of these Rules and Regulations) will be evidence of substantial compliance with the provisions of the Act. Payment shall be supervised, when possible, by the Director.

 

b)         The Director may require proof that the employees, and/or former employees, received all the back wages due them (plus any assessed punitive damages), and the Director may require the employer to send certified checks, cashier's checks or money orders, made payable to the individual employees or the Department of Labor, to the Department for disbursement.

 

c)         If the employer does not voluntarily comply within a reasonable amount of time, the Director may bring either a civil or criminal action against the employer as provided for in Sections 11 and 12 of the Act, and may conduct an administrative hearing for a final determination of penalties and punitive damages pursuant to Section 12 of the Act and Subpart J of these Rules and Regulations.

SUBPART I: INFORMAL INVESTIGATIVE CONFERENCE ON INSPECTION RESULTS

 

Section 210.900  Request for Review by Employer Subject to an Inspection

 

a)         Any employer contesting the findings of a Compliance Officer shall file a written request for an informal investigative conference within 15 days after receipt of the Director's written notice of noncompliance with the Minimum Wage Law.

 

b)         Such request shall be prominently marked "Request for Review of Inspection Results" on both the letter and the envelope and shall be mailed or delivered to the Department's Chicago office.  The request must set forth the reasons why the employer believes the Compliance Officer's findings are incorrect as a matter of law or fact, or, if applicable, any newly discovered evidence the employer could not have discovered during the course of the inspection.  Late submissions need not be considered by the Director.

 

Section 210.910  Petition to Intervene by Employee or Former Employee Covered by an Inspection

 

a)         The Director may provide an employee or former employee covered by a Compliance Officer's completed inspection the opportunity to present further evidence at an informal investigative conference to be held before a duly authorized representative of the Director.  Petitions to Intervene must be made in writing within 15 days after the date the employee or former employee receives notification of back wages or that the claim is dismissed.

 

b)         Such a petition shall be prominently marked "Petition to Intervene in Minimum Wage Law Investigation" on both the letter and the envelope and shall be mailed or delivered to the Department's Chicago office.  The petition must set forth the reasons why the employee or former employee believes the Compliance Officer's findings are incorrect as a matter of law or fact, and that the Director's enforcement of the inspection results as a practical matter may impair or impede his/her ability to protect his/her rights under the Act.

 

(Source:  Amended at 29 Ill. Reg. 4734, effective March 21, 2005)

 

Section 210.920  Convening an Informal Investigative Conference

 

a)         The Director shall make an initial determination with respect to the legal and factual merits of a "Request for Review of Inspection Results" or a "Petition to Intervene in Minimum Wage Law Investigation". If the request or petition presents a reasonable issue of law or fact, a duly authorized representative of the Director may convene an informal investigative conference for purposes of obtaining evidence and identifying the issues in dispute.

 

b)         A written notice of an informal investigative conference shall be sent, not less than 10 days prior to the date of the conference, to the employer and a petitioning employee or former employee, and may also be sent to those employees or former employees covered by the inspection at issue who are the subject of a "Request for Review of Inspection Results" or a "Petition to Intervene in Minimum Wage Law Investigation." Each notice shall identify the individual requested to attend, along with any books, records or documents the party must produce at the conference.

 

c)         If a request or petition is denied, the Director will notify the party who filed the request or petition of his/her determination in writing.

 

Section 210.925  Continuances of Informal Investigative Conference

 

Parties shall be prepared to proceed at the informal investigative conference, presenting all testimonial and/or documentary evidence necessary to support their positions.  A request by one party for a continuance will be granted prior to the conference only if the other party agrees and the Director's representative in charge of the conference grants permission.  A request for a continuance must be made in person to the Director's representative at the time of the conference and will be granted only upon a showing of good cause.

 

(Source:  Added at 20 Ill. Reg. 15312, effective November 15, 1996)

 

Section 210.930  Application of the Rules of Evidence –Pleadings and Procedures in an Investigative Conference

 

When a duly authorized representative of the Director conducts an informal investigative conference, she/he is not bound by the rules of evidence or by any technical or formal rules of pleading or procedure.

 

Section 210.940  Attorney and Witnesses in Investigative Conference

 

A party to an informal investigative conference may be accompanied at the conference by his/her attorney and by a translator, if necessary. The parties may bring witnesses to the conference, but the Director's representative in charge of the conference shall decide which witnesses, if any, shall be heard, and the order in which they shall be heard.  The Director's representative may exclude witnesses and other persons from the conference when they are not giving testimony. The Director's representative shall conduct and control the proceedings. No tape recordings, stenographic report or other verbatim record of the conference shall be made.

 

Section 210.950  Contumacious Conduct in Investigative Conference

 

If any individual becomes disruptive or abusive, the Director's representative conducting the investigative conference may exclude the person from the proceeding. The Director's representative, in his/her discretion, may take any of the following actions: continue the conference without the participation of the excluded individual, render a decision based upon the evidence previously presented, dismiss the employee's claim, or strike the subject individual's response.

 

Section 210.960  Telephone Conference

 

a)         The Director does not routinely hold investigative conferences by telephone.  Written requests to participate by telephone must be received by the Department's Chicago office no later than 7 days prior to the hearing date.  The request shall be prominently marked "Request for Telephone Hearing" on both the letter and the envelope. Such request shall be typewritten or clearly written and shall contain a compelling reason why the party needs to participate by telephone and the name, address and telephone number of the person to be contacted.

 

b)         A party shall not consider its request granted unless the participant receives notice by telephone or letter of the Director's approval prior to the conference date.

 

Section 210.970  Request for Review

 

Requests for review of a determination from an informal investigative conference must be made in writing to the Department's Chicago office, within 15 days after the decision. The request shall be prominently marked "Request for Review" on both the letter and the envelope. The request must set forth the reasons why the party believes the Director's duly authorized representative misconstrued the evidence or misapplied the law to the facts. Late submissions need not be considered by the Director.

SUBPART J: ASSESSMENT OF PENALTIES AND PUNITIVE DAMAGES

 

Section 210.1000  Assessment and Notice of Underpayment, Penalties, and Punitive Damages

 

a)         The Director may conduct investigations, conferences, or hearings to determine whether an employer's conduct is wilful for purposes of assessing penalties and punitive damages as provided under Section 12(a) of the Act.

 

b)         An employer that wilfully underpaid its employees shall be liable to the Director for penalties equal to 20% of its total underpayment and shall be additionally liable to each underpaid employee for punitive damages equal to 2% of any such underpayment for each month following the date of payment during which such underpayment remained unpaid. The amount of the underpayment will be based on the findings of the Compliance Officer. The Director will assess the penalties and punitive damages, and remit a written "Notice of Underpayment, Penalties, and Punitive Damages" to the employer for the underpayment, plus a 20% penalty and 2% punitive damages assessment.

 

Section 210.1010  Employer Conduct Deemed Willful

 

An employer's conduct shall be deemed willful when the employer knew its underpayment of wages was prohibited by the Act or showed reckless disregard of the wage payment requirements under the Act. All of the facts and circumstances surrounding the violations shall be taken into account in determining whether, by a preponderance of the evidence, an employer's conduct was willful.

 

a)         An employer's conduct shall be deemed knowing, among other situations, if the employer received advice from a responsible, duly authorized representative of the Director to the effect that the conduct in question is not lawful; if the employer has previously received notice, through a responsible, duly authorized representative of the Director, that the employer allegedly was in violation of the Act; if a court or other tribunal has made a finding that the employer has previously violated the Act for underpaying its employees.

 

b)         An employer's conduct shall be deemed reckless, among other situations, if, as a result of previous advice of the Director, the employer was on notice that it should have inquired further into whether its conduct was in compliance with the Act and failed to make adequate further inquiries.

 

(Source:  Amended at 46 Ill. Reg. 14051, effective July 19, 2022)

 

Section 210.1020  Uncontested Payment of Underpayments, Penalties, and Punitive Damages

 

a)         An employer shall pay the penalties stated in the "Notice of Underpayment, Penalties, and Punitive Damages" by certified check made to the order of the Illinois Department of Labor. The employer shall pay the punitive damages by issuing separate certified checks made to the order of each underpaid employee covered by the inspection or the Illinois Department of Labor. The employer shall tender its penalty and punitive damages payments to the Department's Chicago office.

 

b)         If the employer remits complete payment of back wages and assessed penalties and punitive damages pursuant to the "Notice of Underpayment, Penalties, and Punitive Damages", the Director may not take additional administrative or judicial action under the Act against the employer solely related to the particular Minimum Wage Law investigation at issue.

 

Section 210.1030  Exception to Notice of Underpayments, Penalties, and Punitive Damages

 

If the employer contests the "Notice of Underpayment, Penalties, and Punitive Damages", the employer shall file a written request for reconsideration. The request shall be prominently marked "Exception to Underpayment, Penalties, and Punitive Damages" on both the letter and the envelope, and shall be mailed via certified or registered mail to the Department's Chicago office, within 15 days after receipt of the Director's "Notice of Underpayment, Penalties, and Punitive Damages". The exception must set forth the reasons why the employer believes the Director erred in arriving at the amount of underpayment and/or the calculation of penalties and punitive damages, and/or erred in his/her determination that the employer wilfully underpaid its employees. Late submissions need not be considered by the Director.

 

Section 210.1040  Informal Investigative Conference on the Assessment of Underpayments, Penalties, and Punitive Damages

 

a)         The Director shall make an initial determination with respect to the legal and factual merits of an "Exception to Underpayment, Penalties, and Punitive Damages". If the exception presents a reasonable issue of law or fact, a duly authorized representative of the Director may convene an informal investigative conference for purposes of obtaining evidence and identifying the issues in dispute, pursuant to the procedures set forth in Subpart I, Sections 210.910 through 210.950 of this Part.

 

b)         As a result of an informal investigative conference, the Director may reevaluate the Compliance Officer's findings and modify the underpayment, penalties, and punitive damages assessment accordingly.

 

c)         If the employer remits payment of the modified assessment of the underpayment, penalties, and punitive damages, pursuant to the procedures set forth in Section 210.1030(a) of this Subpart, if any is due, the Director will not take additional administrative or judicial action under the Act against the employer solely related to the particular Minimum Wage Law investigation at issue.

 

d)         If the exception is denied, the Director will notify the party who filed the request of his/her findings in writing.

 

Section 210.1050  Final Determination of Penalties and Punitive Damages

 

If the Director finds no merit to a properly filed "Exception of Underpayment, Penalties, and Punitive Damages", or if no payment is forthcoming on either an uncontested or modified finding of underpayment, penalties, and punitive damages, a final determination on the amount of penalties and punitive damages shall be made in an administrative hearing  pursuant to the provisions of the Illinois Administrative Procedure Act [5 ILCS 100] and 56 Ill. Adm. Code 120.

 

(Source:  Amended at 25 Ill. Reg. 869, effective January 1, 2001)