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Miller v. Kiefer Specialty Flooring

November 13, 2000

JAY MILLER, PLAINTIFF-APPELLEE,
v.
KIEFER SPECIALTY FLOORING, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 97--AR--030 Honorable Richard J. Larson and Roger W. Eichmeier, Judges, Presiding.

The opinion of the court was delivered by: Justice Galasso

On January 9, 1997, plaintiff, Jay Miller, filed a complaint against defendant, Kiefer Specialty Flooring, Inc., seeking the payment of wages in the form of commissions and vacation pay alleged to be due and owing for services rendered to defendant in 1995 and 1996. Plaintiff claimed that defendant owed him over $24,000 in back wages. Following arbitration, the trial court entered a judgment on the award for plaintiff in the amount of $10,598.03 plus costs for the wage claim. The order was dated December 5, 1998, and file stamped December 8, 1998.

On March 11, 1999, plaintiff filed a motion for additional relief in the form of interest penalties pursuant to section 14(b) of the Illinois Wage Payment and Collection Act (Act) (820 ILCS 115/14(b) (West 1998)) for defendant's failure to pay the judgment promptly within 15 days after its entry. On September 28, 1999, the trial court ordered defendant to pay an additional $8,372.44 in interest penalties. Defendant timely appeals the penalty order, arguing that the court erred in awarding interest penalties under the provisions of the Act, because defendant did not wilfully refuse to pay the wages ordered to be paid by the trial court. We affirm.

There is no report of the proceedings, but since the essential facts are undisputed, the issue presented is one of law involving the construction and application of the relevant provisions of the Act. On February 13, 1997, defendant was initially defaulted for the failure to appear and answer the complaint. Defendant then filed its appearance and moved to vacate the default on March 17, 1997. The order of default was vacated and defendant moved to transfer venue. Plaintiff sought the production of relevant records from defendant and moved to strike the motion for change of venue. The court ordered defendant to comply with the production request. On September 4, 1997, defendant's motion to transfer venue was stricken for defendant's failure to comply with discovery.

Plaintiff again moved for a default order for defendant's failure to answer the complaint, and a second default order was entered on October 9, 1997. Defendant's second motion to vacate the default was granted on January 1, 1998. On February 5, 1998, plaintiff again successfully moved for a default order alleging that defendant had delayed in answering the complaint. Defendant filed another motion to vacate the default order on March 23, 1998, asserting that there had been an answer to the complaint but that the file did not contain a file-stamped copy of the answer. The default order was vacated. On April 4, 1998, the court accepted the answer claimed to have been filed on February 4, 1998.

On June 25, 1998, the court again ordered defendant to comply with outstanding discovery on or before July 3, 1998. On July 10, 1998, plaintiff moved for sanctions against defendant for the failure to comply with discovery. On July 30, the court again ordered defendant to comply with discovery and to reschedule depositions. On August 20, 1998, plaintiff again moved for sanctions for defendant's failure to comply with discovery. On September 3, plaintiff's motion was withdrawn apparently because defendant tendered certain answers in discovery.

On October 21, 1998, the arbitration panel awarded plaintiff $10,598.03 plus costs for the wage claim. The panel also made a finding that defendant failed to participate in the hearing in good faith and in a meaningful manner. Defendant filed a notice of rejection of the award. On December 3, 1998, plaintiff petitioned for sanctions for defendant's failure to participate in arbitration in good faith and prayed that defendant be debarred from rejecting the award. In orders file stamped December 8, 1998, the court found that defendant failed to participate in good faith and in a meaningful manner and that defendant failed to present sufficient evidence to rebut the finding of the arbitration panel. Plaintiff's motion was granted, and defendant was debarred from rejecting the award. The court then entered judgment on the arbitration award.

On January 7, 1999, plaintiff filed an affidavit for nonwage garnishment and filed a motion for a turnover order on February 4, 1999, and the court entered a turnover order on February 11, 1999. On March 11, 1999, plaintiff sought additional relief in the form of statutory interest penalties under section 14(b) of the Act. The record contains a letter dated December 9, 1998, notifying defendant's counsel of plaintiff's intent to seek penalties under the Act if the award was not paid within 15 days of the December 8 order. On March 3, 1999, the court denied defendant's January 7 motion to vacate the December 8 order. The court found that the rejection fee of $200 had been dishonored for insufficient funds and was therefore not timely paid within the requisite 30-day period. On May 27, 1999, the court entered an order that contained inter alia a stipulation that defendant did not wilfully refuse to pay the December 8, 1998, judgment. The matter was continued for briefing. On September 17, 1999, the court issued a written memorandum decision denying defendant's motion to reconsider (a motion presumably mailed on March 19 or filed on April 20, 1999; the motion is not found in the record). The court construed section 14(b) of the Act as providing for the payment to plaintiff of penalty interest of 1% per calender day for each calendar day of delay in paying the wages due because the defendant employer did not make payment within 15 days of the order of December 8, 1998. The court also construed section 14(b) as not requiring proof of defendant's willfulness in failing to pay the wages before the penalty could be imposed.

On September 28, 1999, the court entered an order for the payment of an interest penalty of $8,372.44 for the time period between December 8, 1998, and February 25, 1999, the date the original judgment was satisfied. In an agreed order, the enforcement of the penalty was stayed pending appeal.

The issues before this court are (1) whether the provisions of the Act provide a private, civil cause of action for an employee such as plaintiff to collect interest penalties upon the failure of the defendant employer to pay a judgment or order within 15 days of its entry; (2) whether plaintiff must prove that defendant's failure to pay the amount ordered was wilful and whether a correspondingly high standard of proof applies; and (3) whether any motion, objection, or request for reconsideration or for further relief from the order tolls the accrual of daily penalty interest.

In 1974, the Act became law and replaced several existing statutes whose provisions had each been enacted separately; although their subject matter was similar, each earlier provision carried its own administrative or penalty section. Stafford v. Bowling, 85 Ill. App. 3d 978, 979 (1980). The Act added several new provisions that gave the Department of Labor (Department) the authority to use a variety of approaches to enforce the Act and collect wages on behalf of employees. The Department may offer investigatory and conciliation services, may make findings of fact and order the employer to pay wages owed to an employee, may add liquidated penalty damages, and may provide assistance to employees who wish to prosecute their own claims against their employers. Stafford, 85 Ill. App. 3d at 980. Among other things, the Department was given the authority to initiate criminal misdemeanor actions for violations of the Act independently and in addition to the authority of the State's Attorneys of the various counties to prosecute criminal actions; and the Department has the discretion to pursue any particular remedy or penalty but is not mandated to do so. See 820 ILCS 115/6, 11 (West 1998); Stafford, 85 Ill. App. 3d at 980-81.

Section 11(c) provides: "Nothing herein shall be construed to prevent any employee from making complaint or prosecuting his or her own claim for wages." 820 ILCS 115/11(c) (West 1998). The purpose of the Act is to provide employees with a cause of action for the timely and complete payment of earned wages or final compensation without retaliation from employers; this cause of action arises out of the employment contract. See Doherty v. Kahn, 289 Ill. App. 3d 544, 557-58 (1997). It is clear that an aggrieved employee has a private, civil cause of action for the collection of wages that is entirely independent from the Department's enforcement powers, and a plaintiff is not required to obtain an order or initial determination of liability from the Department before proceeding in a circuit court. Kahn, 289 Ill. App. 3d at 558; Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516, 523-25 (1995) (employee not required to obtain Department's initial determination of liability or exhaust administrative remedies); Clark v. Western Union Telegraph Co., 141 Ill. App. 3d 174, 177 (1986).

Unlike criminal prosecutions for misdemeanor offenses, that is, for wilful violations of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 39m--14 (now 820 ILCS 115/14(a) (West 1998)), civil suits by aggrieved employees are governed by the rules of civil procedure. Clark, 141 Ill. App.3d at 177 (discussing statute of limitations for private civil suits under the Act). We observe that section 14 in the 1977 version of the Act consisted of two paragraphs and was entitled "Refusal to pay wages or final compensation--Punishment--Failure to obey order to pay wages--Penalty." Ill. Rev. Stat. 1977, ch. 48, par. 39m--14. The first paragraph dealt with wilful misdemeanor violations while the second paragraph dealt with the failure to pay following an order of the Department or a court. The textual arrangement of the two paragraphs strongly suggests in itself that criminal punishment for an offense was distinct from a (civil) penalty for the failure to pay following the entry of an order.

Section 14 was amended in 1983 (Pub. Act 83--202, ยง1, eff. January 1, 1984). In addition to creating three subsections, the 1983 amendment added criminal provisions for retaliatory discharge or discrimination by an employer against an employee who asserts rights under the Act or assists in the enforcement of ...


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