Illinois § 12

§ 12.

(a) If any employee is paid by his or her employer less than the wage to which he or she is entitled under the provisions of this Act, the employee may recover in a civil action treble the amount of any such underpayments together with costs and such reasonable attorney's fees as may be allowed by the Court, and damages of 5% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid. Any agreement between the employee and the employer to work for less than such wage is no defense to such action. At the request of the employee or on motion of the Director of Labor, the Department of Labor may make an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs incurred in collecting such claim. Every such action shall be brought within 3 years from the date of the underpayment. Such employer shall be liable to the Department of Labor for a penalty in an amount of up to 20% of the total employer's underpayment where the employer's conduct is proven by a preponderance of the evidence to be willful, repeated, or with reckless disregard of this Act or any rule adopted under this Act. Such employer shall be liable to the Department for an additional penalty of $1,500. All administrative penalties ordered under this Act shall be paid by certified check, money order, or an electronic payment system designated by the Department for such purposes and shall be made payable to or deposited into the Department's Wage Theft Enforcement Fund. Such employer shall be additionally liable to the employee for damages in the amount of 5% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid. These penalties and damages may be recovered in a civil action brought by the Director of Labor in any circuit court. In any such action, the Director of Labor shall be represented by the Attorney General. If an employee collects damages of 5% of the amount of underpayments as a result of an action brought by the Director of Labor, the employee may not also collect those damages in a private action brought by the employee for the same violation. If an employee collects damages of 5% of the amount of underpayments in a private action brought by the employee, the employee may not also collect those damages as a result of an action brought by the Director of Labor for the same violation. (b) If an employee has not collected damages under subsection (a) for the same violation, the Director is authorized to supervise the payment of the unpaid minimum wages and the unpaid overtime compensation owing to any employee or employees under Sections 4 and 4a of this Act and may bring any legal action necessary to recover the amount of the unpaid minimum wages and unpaid overtime compensation and an equal additional amount as damages, and the employer shall be required to pay the costs incurred in collecting such claim. Such employer shall be additionally liable to the Department of Labor for up to 20% of the total employer's underpayment where the employer's conduct is proven by a preponderance of the evidence to be willful, repeated, or with reckless disregard of this Act or any rule adopted under this Act. Such employer shall be liable to the Department of Labor for an additional penalty of $1,500, payable to the Department's Wage Theft Enforcement Fund. The action shall be brought within 5 years from the date of the failure to pay the wages or compensation. Any sums thus recovered by the Director on behalf of an employee pursuant to this subsection shall be deposited into the Department of Labor Special State Trust Fund, from which the Department shall disburse the sums owed to the employee or employees. The Department shall conduct a good faith search to find all employees for whom it has recovered unpaid minimum wages or unpaid overtime compensation. All disbursements authorized under this Section shall be made by certified check, money order, or an electronic payment system designated by the Department. (c) The Department shall hold any moneys due to employees that it is unable to locate in the Department of Labor Special State Trust Fund for no less than 3 years after the moneys were collected. Beginning November 1, 2023, or as soon as is practical, and each November 1 thereafter, the Department shall report any moneys due to employees who cannot be located and that have been held by the Department in the Department of Labor Special State Trust Fund for 3 or more years and moneys due to employees who are deceased to the State Treasurer as required by the Revised Uniform Unclaimed Property Act. The Department shall not be required to provide the notice required under Section 15-501 of the Revised Uniform Unclaimed Property Act. Beginning July 1, 2023, or as soon as is practical, and each July 1 thereafter, the Department shall direct the State Comptroller and State Treasurer to transfer from the Department of Labor Special State Trust Fund the balance of the moneys due to employees who cannot be located and that have been held by the Department in the Department of Labor Special State Trust Fund for 3 or more years and moneys due to employees who are deceased as follows: (i) 15% to the Wage Theft Enforcement Fund and (ii) 85% to the Unclaimed Property Trust Fund. The Department may use moneys in the Wage Theft Enforcement Fund for the purposes described in Section 14 of the Illinois Wage Payment and Collection Act. (d) The Department may adopt rules to implement and administer this Section. (Source: P.A. 103-182, eff. 6-30-23; 103-201, eff. 1-1-24; 103-605, eff. 7-1-24.)