Merry Christmas! Thanks to a client who informed me of a new requirement she was made aware of at an Employment Law update training event last month, I recently research said notification and unbeknownst to me, it was true. I was shocked because in my humble opinion it conflicts with the Federal Fair Labor Standards Act. However, we do things a bit different here in the Land of Lincoln. So keep reading this "Just in Time" notification that will give owners, executives, HR professionals, managers, and supervisors a holiday treat to add to your daily to do list at work!
Surprise, surprise, surprise there’s another new law to follow! Unfortunately, one that has been in affect for some time now but has not received much notice and was slid in right under our HR noses! Not once but TWICE!
The Illinois Department of Labor established new regulations, “Payment and Collection of Wages or Final Compensation – Records and Notice of Requirements” in August of 2014 that require employers to document time worked for each employee regardless of their status as either an exempt administrative employee, executive or professional. These regulations were reinforced in the 2019 amendment to the Illinois Minimum Wage Law (820 ILCS 105/8).
The specific requirements are: Employers must make and maintain records for three years which contain:
ü the name, address and occupation of the employee
ü hours worked each day in the work week
ü the rate of pay
ü copies of the notice given to the employee at the time of hiring reflecting their rate of pay
ü the amount paid each pay period and all deductions made from wages or final pay
ü Any employer that provides paid vacation to its employees must maintain records showing the number of days earned for the year and the dates on which the days were taken and paid.
Failure to maintain these records may impede an employer’s ability to defend wage and hour claims. If an employee files a wage claims with the Department of Labor, they may not be denied recovery of wages or final compensation on the basis that they are not able to prove the exact extent of uncompensated work or final compensation. The employee must only produce sufficient evidence to demonstrate the amount and extent of work or time earned as a just and reasonable inference.
In addition to losing a wage claim, any employer who fails to keep records as required under the Illinois Minimum Wage Act or to furnish them to the Illinois Department of Labor when requested is guilty of a Class B misdemeanor (820 ILCS 105/11). The penalty for a Class B misdemeanor is up to 180 days in jail and/or a fine of up to $1,500.
Because these new regulations were adopted without fanfare, many employers may be in non-compliance. Due to the repercussions of not following these regulations, employers should take immediate steps to ensure that they are tracking the hours worked by all of their employees, no matter what position they hold. This can be accomplished by any means the employer finds most convenient, whether electronic or paper.
The one big concern I find with this is that neither law outlines what they mean by “three years”. Do they mean for the last three years and you can shred previous years? Similar to the One- or Two-year hiring document retention requirement depending on federal contract compliance status? Does it mean forever and three years post termination like the I-9s? Whichever way you interpret it, my recommendation would be at least the last three years since the current time frame for employees to file complaints against a company in Illinois is 300 days unless there are other circumstances that expand the statute of limitations such as incidents that fall under Equal Pay Act or Lilly Ledbetter Pay Act, etc.