Wages & Overtime

In Illinois, all non-exempt hourly employees must earn at least the minimum wage, and must be paid time and a half (“overtime”) for all hours in excess of forty per work week. Minimum wage and overtime are governed by a number of state and federal statutes, including the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115/1-16 (“IWPCA”), Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1-15 (“IMWL”), and Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).

The IWPCA mandates that employers in Illinois must pay each employee for all time that the employee worked, including any “final compensation” (such as accrued vacation pay), within two weeks of the end of the period in which the wages were earned. The IWPCA further regulates final compensation upon the end of employment, and makes it unlawful for any employer to deduct wages from an employee’s paycheck without the written consent of the employee. An employer acting in violation of the IWPCA may have to pay the employee up to twice the sum of the unpaid wages, plus a statutory penalty of two percent for each day that the payment is past due. Common IWPCA violations include failing to pay earned commissions, and failing to pay other earned but unused time such as vacation and final paychecks.

The FLSA contains provisions setting the federal minimum wage. Currently, the federal minimum wage is $7.25 per hour. The IMWL contains provisions setting the state minimum wage for Illinois, currently at $8.25 per hour ($4.95 per hour for tipped employees). If both the FLSA and the IMWL apply to an employee, the employee is entitled to earn the higher of the minimum wages set forth in the statutes.

The FLSA and IMWL each contain overtime provisions which mandate that non-exempt hourly employees must be paid time and a half for all hours worked in excess of forty hours in one work week. An employee cannot waive his or her right to overtime compensation, and must be compensated for all time worked. However, certain workers, particularly salaried employees, may be exempt from the overtime provisions.

The FLSA and IMWL apply to any employer of at least one employee, and may apply to employees who have not been paid minimum wage, or who have not been paid for overtime work, time spent donning and/or doffing, meal time, travel time, or “off-the-clock” time worked. Employers who “round” their employees’ clocked time may also face penalties under the FLSA and IMWL.

If an employer has violated the FLSA or IMWL, the employer may be subject to either an individual or class civil action in federal court. Under the FLSA and IMWL, an employee can collect unpaid wages for the period of two years preceding the filing of a complaint. If the employer knew of the violation and committed the violation willfully, the employer can recover one additional year of unpaid wages. Further, an employee is entitled to recover an amount equal to the unpaid wages in liquidated damages, as well as reasonable attorneys’ fees and costs.

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