Wage Payment and Collection Act Amendments Allowing for Attorneys’ Fees and 2% Interest – One Applies Retroactively, the Other Doesn’t – IL 1st Dist

Aside from its application of the apparent agency doctrine to a dispute over commissions, Thomas v. Weatherguard Construction Company, 2015 IL App (1st) 142785 also provides an interesting analysis of when attorneys’ fees and statutory interest can be tacked on to a successful Illinois Wage Payment and Collection Act (“Wage Act”) plaintiff’s suit for unpaid wages against an employer.

The Wage Act was amended in 2011 to allow a winning plaintiff to add to his unpaid damage award (a) attorneys’ fees and costs, plus (b) 2% monthly interest on unpaid amounts. 820 ILCS 115/14(a).

Before this change, a Wage Act plaintiff could still recover fees but he had to do so under the Attorneys Fees in Wage Actions Act, 705 ILCS 225/1.  Since the plaintiff in this case filed suit in 2007 (before the amendment), the question was whether Section 14(a) (the section with the attorneys’ fees provision) applied retroactively.  The defendant argued that the amended Wage Act could not apply retroactively since it fastened two new liabilities – an attorneys’ fees provision and a 2% interest term – on Wage Act defendants.

Generally, procedural changes in a statute apply retroactively while substantive changes don’t.  But the line separating procedure from substance can be blurry.

‘Procedure is the machinery for carrying on the suit, including pleading, process, evidence and practice, whether in the trial court, or in the processes by which causes are carried to the appellate courts for review, or laying the foundation for such review.’ By contrast, a substantive change in the law establishes, creates or defines rights. (¶ 66)

A procedural statutory amendment will not be applied retroactively if the statute would have a “retroactive impact” – meaning the amended statute would (i) impair rights a party possessed when he acted, (ii) increase a party’s liability for past conduct, or (iii) impose new duties with respect to transactions already completed.

Here, the amended Section 14(a) of the Wage Act was not a substantive change since it did not create a new attorneys’ fees remedy.  At the time plaintiff filed suit (2007), a Wage Act plaintiff could recover fees under the Attorneys Fees in Wage Actions Act cited above. 

In addition, the amended law didn’t have retroactive effect on the defendant.  The amended statute didn’t impair any of the defendant’s pre-existing rights, increase the defendant’s liability for past conduct or impose new obligations on it.  Again, a prevailing Wage Act plaintiff could recover attorneys’ fees under the prior, existing version of statute when plaintiff filed suit. (¶¶ 66-74)

The court reached the opposite conclusion on the 2% monthly interest provision, though.  Where a statutory amendment creates a new liability that didn’t exist under a prior version of a law, it’s considered a  substantive change.  Since the 2% monthly interest provision didn’t exist in the earlier version of the Wage Act, its presence in the current statute was a substantive change that could not be applied retroactively.

The end result was that the court remanded the case so that the trial court could assess plaintiff’s attorneys’ fees incurred in his partially successful Wage Act claim.


This is a pro-claimant case as it gives added strength to a Wage Act remedy.  By raising the specter of prevailing plaintiff attorneys’ fees on top of the unpaid wages amount, the amended Wage Act may level the playing field between former employees who might normally lack the resources to fund litigation against deeper-pocketed ex-employers.  By allowing for fees and interest, the Wage Act provides an incentive for aggrieved employees to sue under the statute.


Apparent Agency Binds Roofing Company to Acts of Third-Party Marketing Firm; Liable Under Illinois Wage Act – IL Court

In Thomas v. Weatherguard Construction Company, 2015 IL App (1st) 142785, the First District provides a thorough analysis of Illinois agency law as it applies to breach of contract claims for unpaid commissions. The court also discusses the parameters of the Illinois Wage Payment and Collection Act (“Wage Act”) and the universe of damages available under it.

The Plaintiff sued to recover about $50K in commissions from a company that repairs weather-damaged homes for customers signed up by the plaintiff.

The arrangement involved plaintiff soliciting business for the defendant by targeting homeowners who suffered weather damage to their homes. Once the homeowner’s insurer approved the repair work, defendant would do the repairs and get paid by the homeowner’s insurer.  The defendant would then pay plaintiff a 20% commission based on the total repair contract price on all deals originated by the plaintiff.

At trial, the defendant argued that plaintiff wasn’t its employee.  It claimed the plaintiff was employed by a third-party marketing company whom defendant contracted with to solicit repair orders for the defendant.

The trial court entered a money judgment for the plaintiff for less than $10,000 and denied plaintiff’s claims for attorneys’ fees under the Wage Act.  Both sides appealed.

Affirming, the appeals court discussed agency law, the elements of an enforceable oral contract, and recoverable damages under the Wage Act.

Agency Law Analysis

Under the apparent agency rule, a principal (here, the defendant) is bound by the authority it appears to give an agent.   Once a principal creates an appearance of authority, he cannot later deny that authority to an innocent third party who relies on the appearance of authority.

The apparent agency claimant must show (1) the principal acted in a manner that would lead a reasonable person to believe the individual at fault was an employee or agent of the principal; (2) the principal had knowledge of or acquiesced in the agent’s acts; (3) the injured party (here, the plaintiff) acted in reliance on the principal’s conduct.  But, someone dealing with an agent has to exercise reasonable diligence and prudence in determining the reach of an agent’s authority.  (¶¶ 48-49, 51)

Here, there were multiple earmarks of authority flowing from the defendant to the marketing company who hired the plaintiff.  The marketing firm used the defendant’s uniforms, logo, business cards, and shared defendant’s office space and staff.  Viewing these factors holistically, the First District agreed with the trial court that it was reasonable for the plaintiff to assume the marketing firm was affiliated with defendant and was authorized to hire the plaintiff on defendant’s behalf.  (¶ 50)

Breach of Oral Contract

Rejecting the defendant’s claim that the plaintiff’s commission contract was too uncertain, the court found there was an enforceable oral contract even though certain price terms were unclear.  An oral contract’s existence and terms are questions of fact and a trial court’s determination that an oral contract does or doesn’t exist is entitled to deference by the appeals court.  In addition, damages are an essential element of a breach of contract claim the failure to prove damages spells defeat for the breach of contract plaintiff.

The Court agreed with the trial court that plaintiff sufficiently established an oral contract for defendant to pay plaintiff a 20% commission on the net proceeds (not gross) earned by the defendant on a given home repair job. (¶¶ 55-59)

The Wage Act

Part II of this post examines the court’s analysis of whether the Wage Act’s 2011 amendments that provide for attorneys’ fees and interest provisions apply retroactively (plaintiff filed suit in 2007).


Agency law issues come up all the time in my practice.  In the breach of contract setting, the key question usually is whether an individual or entity has actual or apparent authority to act on behalf of a solvent or “deeper pocketed” defendant (usually a corporation or LLC).  Cases like Thomas show how risky it is for defendants to allow unrelated third parties to use a corporate defendant’s trade dress (logo, e.g.), facilities, staff or name on marketing materials.

A clear lesson from the case is that if a company does let an intermediary use the company’s brand and brand trappings, the company should at least have indemnification and hold-harmless agreements in place so the company has some recourse against the middleman if a plaintiff sues the company for the middleman’s conduct.


Fraudulent Concealment In Illinois – Podiatry School Might Be On Hook for Omissions in School Catalog

A podiatry school alum may have a viable fraudulent concealment claim against the school for failing to warn him of evaporating job prospects in the foot doctor field.

That’s the key take-away from the Second District’s recent opinion in Abazari v. Rosalind Franklin University of Medicine and Science, 2015 IL App (2d) 140952, a case that considers what lengths an educational institution must go to in disclosing job placement rates and whether it can be held liable for failing to provide accurate data.

The plaintiff alleged he enrolled in the defendant’s podiatry program based on written representations contained in school brochures as well as oral statements made by high-ranking school officials.  Plaintiff claimed that the school failed to mention in its course catalog that there were too many students for available residency openings.  He also alleged that a school admissions officer misrepresented the school’s graduates’ loan default rates.  Plaintiff claimed both statements played a pivotal role in inducing plaintiff to enroll in the school.

Plaintiff’s fraud, negligent misrepresentation and fraudulent concealment claims were all dismissed with prejudice by the trial court.  Plaintiff appealed.

Partially reversing the dismissal of the fraudulent concealment claim, the Court stated the governing Illinois fraud rules that attach to student suits against higher education providers. These include:

To claim fraudulent concealment, a plaintiff must show (1) defendant concealed a material fact under circumstances that created a duty to speak, (2) defendant intended to induce a false belief, (3) the plaintiff could not have discovered the truth through reasonable inquiry or inspection, or was prevented from making a reasonable inquiry, (4) plaintiff was justified in relying on defendant’s silence as a representation that a fact did not exist; (5) the concealed information was such that the plaintiff would have acted differently had he been aware of it; and (6) the plaintiff’s reliance resulted in damages.

Like a fraud claim, fraudulent concealment must involve an existing or past state of affairs; projections of future events will not support a fraud claim.  In addition, a party cannot fraudulently conceal something it doesn’t know.

A statement that is partially or “technically” true (a half-truth) can be fraudulent where it omits qualifying information – like the fact that successful completion of the podiatry program was no guarantee of a post-graduate residency. 

While a person may not enter into a transaction “with eyes closed” to available information, a failure to investigate is excused where his inquiries are impeded by someone creating a false sense of security as to a statement’s validity.

A duty to speak arises where the parties are in a fiduciary relationship or where one party occupies a position of superiority or influence over the other.  (¶¶ 27-30, 33, 37)

The Illinois Administrative Code played an important part in the court’s decision.  Under the Code, postsecondary institutions liked the defendant must accurately describe degree programs, tuition, fees, refund policies and “such other material facts concerning the institution and the program or course of instruction as are likely to affect the decision of the student to enroll.”  23 Ill. Adm. Code S. 1030.60(a)(7).

The Court held that since the school voluntarily mentioned how crucial it was for graduates to secure podiatric residency positions.  A shortage of residencies could be material to a prospective student’s enrollment decision.  As a result, the court found that plaintiff could possibly state a fraudulent concealment claim based on the school’s failure to disclose the existing shortfall in available residencies.  The court held that the plaintiff should be able to amend his fraudulent concealment claim to supply additional facts.  (¶¶ 37-38).


The plaintiff’s claim is alive but it’s on life support.  The court did not decide that the plaintiff’s fraud claim had merit.  It instead found that the plaintiff could maybe make out a fraudulent concealment case if he can show the defendant college failed to disclose key jobs or residency data.

Still, this case should give pause not just to podiatric purveyors but to higher educational institutions across the board since it shows a court’s willingness to scrutinize the content of schools’ recruitment materials.  The case’s lesson is that if post-graduate job placement is a material concern (which it doubtlessly is), and if a school is able to keep student’s in the dark about future job prospects, then a student might have grounds for a fraud suit against his alma mater where it hides bleak post-graduate jobs stats from him.