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1 | | (3) who is in an independently established trade, |
2 | | occupation, profession, or business.
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3 | | "Employer" includes any individual, partnership, |
4 | | association, corporation, limited liability company, business |
5 | | trust, and employment and labor placement agency where wage |
6 | | payments are made directly or indirectly by the agency or |
7 | | business for work undertaken by employees under hire to a third |
8 | | party, or any person or group of persons acting directly or |
9 | | indirectly in the interest of an employer in relation to an |
10 | | employee, for which one or more persons is gainfully employed. |
11 | | "Employer payments" means all earned wages by direct |
12 | | employees or employees working under hire of a third party |
13 | | working for the employer.
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14 | | "Wage claim" means an employee's claim with the Illinois |
15 | | Department of Labor against an employer for wages, penalties, |
16 | | or damages provided by law to employees with a claim for unpaid |
17 | | wages. |
18 | | "Wages" means any compensation owed an employee by an |
19 | | employer for: |
20 | | (I) labor and services rendered by an employee; and |
21 | | (II) vacation pay, holiday pay, sick leave pay, |
22 | | parental leave pay, or severance pay pursuant to an |
23 | | employment contract or agreement.
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24 | | Section 10. Wage lien. |
25 | | (a) An employee has a lien on all property of the employer |
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1 | | in this State, including after-acquired property, for the full |
2 | | amount of any wages, penalties, and interest owed to the |
3 | | employee.
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4 | | (b) If the employer is a natural person, a lien under this |
5 | | Section applies to the employer's principal residence. |
6 | | (c) The amount of the lien under this Section includes |
7 | | unpaid wages and other compensation required by law, penalties |
8 | | available under law, including liquidated damages, interest at |
9 | | the same rate as for prejudgment interest in this State, and |
10 | | the costs of filing and service of the lien. The amount of |
11 | | compensation that may be claimed as a lien under this Section |
12 | | includes all wages due to the employee either by agreement or |
13 | | as required by law, including wages and compensation required |
14 | | to be paid by an employer to third persons or entities that |
15 | | would qualify as employer payments. |
16 | | (d) An employee's lien upon personal property is limited to |
17 | | property subject to a security interest under the Uniform |
18 | | Commercial Code pursuant to the filing of a financing statement |
19 | | with the Secretary of State. |
20 | | (e) Any action authorized or required by this Act with |
21 | | regard to an employee may also be undertaken by any person or |
22 | | entity, including any governmental agency, to which a portion |
23 | | of an employer's compensation is payable, that has standing |
24 | | under applicable law to maintain a direct legal action on |
25 | | behalf of the employee to collect any portion of compensation |
26 | | owed to the employee, or that is authorized by the employee to |
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1 | | act on the employee's behalf. |
2 | | (f) No lien described in this Section is defeated because |
3 | | of an error or overcharging on the part of any person claiming |
4 | | a lien under this Act. |
5 | | (g) A lien pursuant to this Section is in addition to any |
6 | | other lien rights held by the employee and shall not be |
7 | | construed to limit those rights. |
8 | | Section 15. Surety. The lien described in this Act shall |
9 | | not attach if the employer has obtained a surety bond or |
10 | | insurance that provides for payment of the wages and other |
11 | | compensation, penalties, and interest claimed by the employee |
12 | | and is in an amount that is adequate to fully satisfy the |
13 | | employee's claim. If the surety bond or insurance contract is |
14 | | inadequate to cover the entire amount of the employee's claim, |
15 | | the lien is limited to the amount of the claim that exceeds the |
16 | | bond or insurance coverage. Within 30 days of being provided |
17 | | with proof of a valid surety bond or insurance contract that |
18 | | applies to the claim, the employee shall file a release of any |
19 | | lien recorded or a notice reducing the lien to the amount that |
20 | | exceeds the bond or insurance coverage. |
21 | | Section 20. Notice. |
22 | | (a) At least 5 days prior to recording a notice of lien |
23 | | with a county recorder pursuant to Section 30 or filing a |
24 | | notice of lien with the Secretary of State pursuant to Section |
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1 | | 35, the employee shall provide the owner or reputed owner of |
2 | | the property against which the lien is to be recorded |
3 | | preliminary written notice of the intent to record a notice of |
4 | | lien. |
5 | | (b) Notice under this Section includes the following: |
6 | | (1) All of the information required by subsection (b) |
7 | | of Section 30 in the case of a lien on real property or |
8 | | subsection (b) of Section 35 in the case of a lien on |
9 | | personal property, to the extent known to the person giving |
10 | | notice. |
11 | | (2) The following statement in boldface type: "NOTICE |
12 | | TO THE EMPLOYER. If the claimant is not paid in full for |
13 | | work performed in your employ, a lien may be placed on your |
14 | | property after a period of 5 calendar days after this |
15 | | notice was served. Foreclosure of the lien may lead to loss |
16 | | of all or part of your property. You may wish to protect |
17 | | yourself against this loss by either: (i) ensuring that the |
18 | | claimant is paid in full for work performed in your employ; |
19 | | or (ii) taking any other appropriate actions to resolve the |
20 | | matter under the circumstances. This notice is required by |
21 | | law to be served by the undersigned as a statement of your |
22 | | legal rights." |
23 | | (c) Notice is not invalid by reason of any variance from |
24 | | the requirements of this Section if the notice is sufficient to |
25 | | substantially inform the person given notice of the information |
26 | | required by this Section and other information required in the |
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1 | | notice. |
2 | | (d) Service of the notice required by this Section shall be |
3 | | by the means described in subsection (c) of Section 30 in the |
4 | | case of a lien on real property or subsection (c) of Section 35 |
5 | | in the case of a lien on personal property and shall be deemed |
6 | | to have been given 3 business days after the mailing of the |
7 | | notice. |
8 | | Section 25. Limitations. |
9 | | (a) A lien described in this Act shall be permanently |
10 | | extinguished unless a notice of lien in accordance with Section |
11 | | 30 or 35 is recorded or filed and is served upon the employer |
12 | | within 3 years of the date that the employee ceased working for |
13 | | the employer or the violation occurred. A lien described in |
14 | | this Act shall also be permanently extinguished as to property |
15 | | that is transferred or sold by the employer, unless a notice of |
16 | | lien was recorded or filed before the transfer or sale in |
17 | | accordance with Section 30 or 35.
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18 | | (b) The employee shall commence an action to enforce the |
19 | | lien and prove the amount owed within 180 days of the date of |
20 | | filing or recording of the notice of lien. If the employee does |
21 | | not commence an action to enforce the lien within that time, |
22 | | the lien shall be permanently extinguished and is |
23 | | unenforceable. The employee and the owner of the property |
24 | | subject to the lien may agree to extend the time for enforcing |
25 | | the lien in writing. An extension and its terms must be |
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1 | | recorded prior to the expiration of the time for commencing an |
2 | | action to enforce the lien. If the employee does not commence |
3 | | an action to enforce the lien within the extended time period, |
4 | | the lien shall be permanently extinguished and is |
5 | | unenforceable.
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6 | | (c) If the lien has been extinguished pursuant to |
7 | | subsection (a) or (b), upon demand and 15 days' notice by the |
8 | | employer or any affected party, the employee shall record or |
9 | | file a release of the lien. If an employee fails to file a |
10 | | release of the lien after the proper notice has been mailed to |
11 | | the employee's address as indicated on the notice of the lien, |
12 | | the employer or affected party may petition the court for an |
13 | | order releasing the lien.
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14 | | Section 30. Real property. |
15 | | (a) With regard to a lien on real property under this Act, |
16 | | the employee or the Department shall record a notice of lien |
17 | | with the county recorder in the county where the real property |
18 | | is located. The employee or the Department is responsible for |
19 | | paying any fees associated with the recording of a notice of |
20 | | lien. The cost of recording a notice of lien shall be added to |
21 | | the amount of the lien.
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22 | | (b) The notice of lien shall be certified as provided in |
23 | | Section 1-109 of the Code of Civil Procedure and include all of |
24 | | the following:
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25 | | (1) A statement of the employee's demand for payment of |
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1 | | the wages and other compensation, penalties, and interest. |
2 | | The statement shall specify the amount owed to the |
3 | | employee, and if the amount is estimated, shall provide an |
4 | | explanation for the basis of the estimate.
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5 | | (2) A general statement of the kind of work furnished |
6 | | by the employee and the dates of employment.
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7 | | (3) The name of the person or entity by whom the |
8 | | employee was employed.
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9 | | (4) The employee's mailing address.
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10 | | (c) The employee or Department shall serve the notice of |
11 | | lien on the employer owner of the real property subject to the |
12 | | lien by registered mail, certified mail, or first-class mail, |
13 | | evidenced by a certificate of mailing, postage prepaid, |
14 | | addressed to the employer at the employer's residence or place |
15 | | of business. |
16 | | (d) The lien attaches to all real property owned by the |
17 | | employer at the time of the filing of the notice of lien, or |
18 | | that is subsequently acquired by the employer, that is located |
19 | | in any county in which the notice is recorded, regardless of |
20 | | whether the property is identified in the notice of lien. |
21 | | Section 35. Personal property. |
22 | | (a) With regard to a lien on personal property under this |
23 | | Act, the employee or the Department shall file a notice of lien |
24 | | with the Secretary of State. Except as otherwise provided in |
25 | | this Act, the manner, form, and place of filing shall be as |
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1 | | described in the Uniform Commercial Code. The notice of the |
2 | | lien shall be placed in the same file as financing statements |
3 | | pursuant to Section 9-522 of the Uniform Commercial Code. The |
4 | | employee or the Department is responsible for paying any fees |
5 | | associated with the recording of a notice of lien. The cost of |
6 | | recording a notice of lien shall be added to the amount of the |
7 | | lien. |
8 | | (b) This notice shall be certified as provided in Section |
9 | | 1-109 of the Code of Civil Procedure and shall state the |
10 | | following: |
11 | | (1) A statement of the employee's demand for payment of |
12 | | the wages and other compensation, penalties, and interest. |
13 | | The statement shall specify the amount owed to the |
14 | | employee, and if the amount is estimated, shall provide an |
15 | | explanation for the basis of the estimate. |
16 | | (2) A general statement of the kind of work furnished |
17 | | by the employee and the dates of employment. |
18 | | (3) The name of the person by whom the employee was |
19 | | employed. |
20 | | (4) The employee's mailing address. |
21 | | (5) To the extent known, a description of the property |
22 | | on which the lien exists. |
23 | | (c) The employee or Department shall serve the notice of |
24 | | lien on the employer of the property subject to the lien by |
25 | | registered mail, certified mail or first-class mail, as |
26 | | evidenced by a certificate of mailing, postage prepaid, |
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1 | | addressed to the employer at the employer's residence or place |
2 | | of business. |
3 | | (d) Regardless of whether the property is specifically |
4 | | described in the notice, the lien attaches to all personal |
5 | | property that is owned by the employer at the time of the |
6 | | filing of the notice of lien, or that is subsequently acquired |
7 | | by the employer, that can be made subject to a security |
8 | | interest under the Uniform Commercial Code. |
9 | | Section 40. Enforcement of lien. |
10 | | (a) In order to enforce a lien under this Act, the employee |
11 | | shall demonstrate in a civil action, in an administrative |
12 | | proceeding under Section 12 of the Minimum Wage Law, Section 11 |
13 | | of the Illinois Wage Payment and Collection Act, Section 11 of |
14 | | the Prevailing Wage Act, Section 55 of the Day and Temporary |
15 | | Labor Services Act, or Section 25 of the Employee |
16 | | Classification Act, or as otherwise provided by law, that he or |
17 | | she is owed wages or other compensation and any related |
18 | | penalties and interest. |
19 | | (b) If the employee chooses to pursue the wage claim in a |
20 | | civil action, if a notice of lien is recorded or filed under |
21 | | Section 30 or 35 prior to an administrative hearing, the action |
22 | | shall also be deemed an action to enforce the lien and |
23 | | foreclose upon any property subject to the recorded lien. The |
24 | | employee is entitled to court costs and reasonable attorney's |
25 | | fees for filing a successful action to enforce a lien pursuant |
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1 | | to this Section. In the judgment resulting from the action, the |
2 | | court may order the sale at a sheriff's auction or the transfer |
3 | | to the plaintiff of title or possession of any property subject |
4 | | to the lien. Regardless of whether the court makes an order as |
5 | | part of the judgment, any property subject to the lien may be |
6 | | foreclosed upon at any point after a judgment for wages is |
7 | | issued. |
8 | | (c) If the employee chooses to pursue the wage claim in an |
9 | | administrative proceeding before the Department of Labor |
10 | | pursuant to Section 12 of the Minimum Wage Law, Section 11 of |
11 | | the Illinois Wage Payment and Collection Act, Section 11 of the |
12 | | Prevailing Wage Act, Section 55 of the Day and Temporary Labor |
13 | | Services Act, or Section 25 of the Employee Classification Act, |
14 | | if no lien has been recorded at the time the administrative |
15 | | claim is filed, the Director may provide the notice and record |
16 | | the lien on behalf of the employee. If a notice of lien is |
17 | | recorded or filed under Section 30 or 35 prior to an |
18 | | administrative hearing, the action shall also be deemed an |
19 | | action to enforce the lien. |
20 | | (d) An administrative decision under Section 12 of the |
21 | | Minimum Wage Law, Section 11 of the Illinois Wage Payment and |
22 | | Collection Act, Section 11 of the Prevailing Wage Act, Section |
23 | | 55 of the Day and Temporary Labor Services Act, or Section 25 |
24 | | of the Employee Classification Act is a binding and final |
25 | | decision as to the underlying wage claim. The decision is also |
26 | | binding and final as to the enforcement of the lien and any |
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1 | | property subject to the lien may be foreclosed upon in court, |
2 | | either by the employee or the Director, at any point after an |
3 | | administrative decision for wages is issued. |
4 | | (e) If judgment is entered against the employee in the |
5 | | action to enforce the lien or if the case is dismissed with |
6 | | prejudice, the lien shall be extinguished. The judgment shall |
7 | | include the date the notice of lien was recorded and, to the |
8 | | extent applicable, the county in which it was recorded, the |
9 | | book and page or series number of the place in the legal |
10 | | records in which the lien was recorded, and a legal description |
11 | | of the property to which the lien is attached. The judgment may |
12 | | be appealed by filing a notice of appeal on or before 30 days |
13 | | after the entry of judgment. If an appeal is filed, the lien |
14 | | shall continue in force until all issues on the appeal have |
15 | | been decided. If the period for appeal runs without an appeal |
16 | | having being filed, or if the appeal fails, the judgment |
17 | | entered under this Section shall be equivalent to cancellation |
18 | | of the lien and its removal from the record. A judgment entered |
19 | | pursuant to this subsection is a recordable instrument. Upon |
20 | | recordation of a certified copy of the judgment, the property |
21 | | described in the judgment is released from the lien. |
22 | | Alternatively, if the lien is extinguished, upon demand and 15 |
23 | | days' notice by the property owner, the employee shall file a |
24 | | release of the lien. If an employee refuses to file a release |
25 | | of the lien after proper notice, an employer or property owner |
26 | | may petition the court for an order to file a release of the |
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1 | | lien. |
2 | | (g) Any number of claims to enforce employee liens against |
3 | | the same employer may be joined in a single proceeding. If the |
4 | | proceeds of the sale of the property subject to the lien are |
5 | | insufficient to pay all the claimants, regardless of whether |
6 | | the claims have been joined together, the court shall order the |
7 | | claimants to be paid in proportion to the amount due each |
8 | | claimant.
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9 | | Section 45. Other claims; exceptions. |
10 | | (a) After an employee has filed a civil action, the |
11 | | employee shall have a lien upon all property of the employer, |
12 | | real or personal, including after-acquired property, located |
13 | | in this State for the full amount of any wage claim. The |
14 | | employee also has a lien upon the real property of the |
15 | | individual employer or employers. |
16 | | (b) After an employee has filed a wage claim with the |
17 | | Department, the employee or the Department shall have a lien |
18 | | upon all property of the employer, real or personal, including |
19 | | after-acquired property, located in this State for the full |
20 | | amount of any wage claim. The employee or the Department shall |
21 | | also have a lien upon the real property of the individual |
22 | | employer. |
23 | | Section 50. Other claims. A lien under this Act takes |
24 | | precedence over all other debts, judgments, decrees, liens, or |
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1 | | mortgages against the employer, regardless of whether those |
2 | | other debts, judgments, decrees, liens, or mortgages originate |
3 | | before or after the lien under takes effect. |
4 | | Section 55. Successor obligations. Whenever any employer |
5 | | quits, sells, exchanges, or otherwise disposes of the |
6 | | employer's business or stock of goods, any person who becomes a |
7 | | successor to the business becomes liable for the full amount of |
8 | | any of any recorded or filed notice of lien under this Act if, |
9 | | at the time of the conveyance of the business, the successor |
10 | | has: (1) actual knowledge of the fact and amount of the |
11 | | recorded or filed notice of lien, or (2) a prompt, reasonable, |
12 | | and effective means of accessing and verifying the fact and |
13 | | amount of the recorded or filed notice of lien. If the amount |
14 | | of the recorded or filed notice of lien is not paid in full by |
15 | | the employer within 10 days of the date of the sale, exchange, |
16 | | or disposal, the successor is liable for the payment of the |
17 | | full amount of the lien. |
18 | | Section 60. Construction. This Act is and shall be |
19 | | liberally construed as a remedial Act.
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