Recently, Illinois revised its wage assignment law. This development is important for multistate employers because Illinois is the only state with a statute that clearly and unequivocally provides that employers must honor contracts employees make with third parties to assign wages. Under the Illinois Wage Assignment Act, 740 ILCS §§170/.01 et seq., there are detailed steps that a creditor must take with an employee for an assignment to be legal and then again with the employer for the assignment to be enforceable against the employer. A highlight of three key changes to the law follows:
- The revised statute eliminated the provision providing that the duration of deductions was only an 84-day period. After this period, the creditor had to restart the “Notice and Demand” process from the beginning in order for the employer to restart wage deductions. Now, under the revised statute, a valid wage assignment lasts until paid, but no longer than three years if the current employer is named on the assignment or two years if the current employer is not the one named on the assignment.
- The revised statute added recognition of Federal Trade Commission (FTC) regulations that require wage assignments derived from credit transactions regulated by the FTC to be revocable at the will of the debtor. Since state laws cannot contradict federal law, this change is academic, but it does provide clarity to all involved parties.
- The revised statute changed some of the statutory verbiage on the required Notice and Demand, including adding an entirely new document called “Understanding Your Choices Under the Illinois Wage Assignment Act.”
Martin C. Brook, a shareholder in the Detroit (Metro) office of Ogletree Deakins, is the author of O-D Comply: Garnishments, a comprehensive subscription-based product compiling state law garnishment requirements in concise, user-friendly formats with links to state garnishment forms. O-D Comply: Garnishments is updated and provided to O-D Comply subscribers as the law changes.
For further information on garnishment issues and best practices, join Martin for “Garnishments and Other Wage Attachments: Answering, Administering, and Troubleshooting,” a full-day seminar that will take place on April 11, 2017, in Phoenix, Arizona. Register here.
Martin C. Brook (Detroit Metro)
2014 Illinois Compiled Statutes
Chapter 740 - CIVIL LIABILITIES
740 ILCS 170/ - Illinois Wage Assignment Act.
(740 ILCS 170/.01) (from Ch. 48, par. 39.01)
Sec. .01. Short Title. This Act shall be known and may be cited as the Illinois Wage Assignment Act.
(Source: P.A. 83-867.)
(740 ILCS 170/1) (from Ch. 48, par. 39.1)
Sec. 1. No assignment of wages earned or to be earned is valid unless
(1) Made in a written instrument (a) signed by the wage-earner in person and (b) bearing the date of its execution, the social security number of the wage-earner, the name of the employer of the wage-earner at the time of its execution, the amount of the money loaned or the price of the articles sold or other consideration given, the rate of interest or time-price differential, if any, to be paid, and the date when such payments are due;
(2) Given to secure an existing debt of the wage-earner or one contracted by the wage-earner simultaneously with its execution;
(3) An exact copy thereof is furnished to the wage-earner at the time the assignment is executed;
(4) The words "Wage Assignment" are printed or written in bold face letters of not less than 1/4 inch in height at the head of the wage assignment and also one inch above or below the line where the wage-earner signs that assignment;
(5) Written as a separate instrument complete in itself and not a part of any conditional sales contract or any other instrument.
The requirement of the social security number of the wage-earner imposed by this Act applies only as to wage assignments made after January 1, 1966.
(Source: Laws 1967, p. 2049.)
(740 ILCS 170/2) (from Ch. 48, par. 39.2)
Sec. 2. Demand on an employer for the wages of wage-earner by virtue of a wage assignment may not be served on the employer unless:
(1) There has been a default of more than 40 days in
payment of the indebtedness secured by the assignment and the default has continued to the date of the demand;
(2) The demand contains a correct statement as to the
amount the wage-earner is in default and the original or a photostatic copy of the assignment is exhibited to the employer; and
(3) Not less than 20 days before serving the demand,
a notice of intention to make the demand has been served upon the employee, and an advice copy sent to the employer, by registered or certified mail.
Service of any demand without complying with this Section has no legal effect.
A demand under this Section applies only to wages due at the time of service of the demand and upon subsequent wages until the total amount due under the assignment is paid or until the expiration of the employer's payroll period ending immediately prior to 84 days after service of such demand, whichever first occurs.
(Source: P.A. 88-395.)
(740 ILCS 170/2.1) (from Ch. 48, par. 39.2a)
Sec. 2.1. A demand shall be in the following form:
"Demand is hereby made upon an assignment of salary, wages, commissions or other compensation for services, executed by .... and delivered to .... on (insert date), to secure a debt contracted on (insert date).
The total amount of the debt is $..... Payments in the amount of $.... have been made. The duration of the contract is .... months. There is now due and owing without acceleration the sum of $...., the last payment having been made on (insert date).
The employee herein named has been in default in his payments in the amount of $...., of which $.... has been due and owing for more than 40 days.
Unless you have received within the past 20 days, or do receive within 5 days after the service hereof, a notice of defense from the employee herein named, you are required by law to make payment in accordance with such assignment. ...., first being duly sworn, deposes and says that the facts stated in the demand above are true and correct; and further deposes and says that he (or his principal, if he is an agent for the assignee) has no notice of any defenses of the debtor. ........................... Subscribed and sworn to before me on (insert date). ........................... Notary Public". (Source: P.A. 91-357, eff. 7-29-99.)
(740 ILCS 170/2.2) (from Ch. 48, par. 39.2b)
Sec. 2.2. The notice to an employee required by Section 2 shall be in the following form:
The creditor's name and address are:
(740 ILCS 170/3) (from Ch. 48, par. 39.3)
Sec. 3. No assignment of wages shall become invalid by reason of cessation of employment but shall be valid and collectible against any future employer of the wage-earner within a period of 2 years from the date of its execution.
(Source: Laws 1961, p. 1891.)
(740 ILCS 170/4) (from Ch. 48, par. 39.4)
Sec. 4. The maximum wages, salary, commissions, and bonuses that may be collected by an assignee for any work week shall not exceed the lesser of (1) 15% of such gross amount paid for that week or (2) the amount by which disposable earnings for a week exceed 45 times the Federal Minimum Hourly Wage prescribed by Section 206(a)(1) of Title 29, U.S.C., as amended, or the minimum hourly wage prescribed by Section 4 of the Minimum Wage Law, whichever is greater, in effect at the time the amounts are payable. This provision (and no other) applies irrespective of the place where the compensation was earned or payable and the State where the employee resides. No amounts required by law to be withheld may be taken from the amount collected by the creditor. The term "disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld. If there is more than one assignment demand received by the employer, the assignees shall collect in the order or priority of service of the demand upon the employer, but the total of all collections shall not exceed the amount that could have been collected if there had been one assignment demand.
Benefits and refunds payable by pension or retirement funds or systems, any assets of employees held by those funds or systems, and any moneys an employee is required to contribute to those funds or systems are exempt and are not subject to a wage assignment under this Act.
A fee of $12 for each wage assignment shall be collected by and paid to the employer and the amount so paid shall be credited against the amount of the wage-earner's outstanding debt.
(Source: P.A. 94-305, eff. 7-21-05.)
(740 ILCS 170/4.1) (from Ch. 48, par. 39.4a)
Sec. 4.1. Within 20 days after receiving the notice required by Section 2 or within 5 days after service of the demand, the employee may notify his employer, in writing, of any defense he may have to the wage assignment. A copy of such notice shall be served upon the creditor by registered or certified mail. If served upon the creditor prior to the creditor's service of demand upon the employer, such demand shall not be served by the creditor. The notice shall be by affidavit and shall be in substantially the following form:
"I, ...., hereby (swear) (affirm) that I have a bona fide defense to the claim of ...., which claim is based on a debt contracted on (insert date), and for security on which debt a wage assignment was executed. .............................. Address for service of summons .............................. Employee Subscribed and sworn to before me on (insert date). ............................." Notary Public (Source: P.A. 91-357, eff. 7-29-99.)
(740 ILCS 170/4.2) (from Ch. 48, par. 39.4b)
If the employee has not given notice of defense as provided in this Act within 20 days after receiving the notice of intention to make a demand, the creditor may proceed with his demand, and the employer shall commence payment to the creditor not sooner than 5 business days after service of such demand, unless a notice of defense is received within that 5 day period. If the employee cures the default stated in the demand, the creditor shall notify the employer and release the demand. No employer shall be liable for payments made in compliance with this Section.
If a notice of defense is received by an employer within the period specified in Section 4.1, no wages are subject to a demand served by the creditor described in that notice of defense; unless the employer receives a copy of a subsequent written agreement between the creditor and employee authorizing such payments. If such an agreement is not reached, the creditor may not institute further proceedings on the wage assignment. If a notice of defense has been given, service of summons in any subsequent proceeding on the debt for which the wage assignment was given as security may be made by registered or certified mail.
(Source: Laws 1967, p. 2049.)
(740 ILCS 170/4.3) (from Ch. 48, par. 39.4c)
Sec. 4.3. If any person wrongfully: (1) serves a notice on an employee or serves a notice which does not conform with the requirements of Section 2.2, (2) causes a demand to be served for the wages of an employee, or (3) fails to release a demand, he shall be liable to the employee and the employer for statutory damages in the sum of $500 and all actual damages occasioned by such action including reasonable attorney's fees.
(Source: P.A. 83-867.)
(740 ILCS 170/5) (from Ch. 48, par. 39.5)
Sec. 5. A discharge in bankruptcy shall be a valid defense to any suit brought upon a wage assignment executed by the bankrupt prior to the adjudication in bankruptcy; no assignment of wages shall be valid after three years from the date of its execution and shall be void after such period of three years.
(Source: Laws 1935, p. 208.)
(740 ILCS 170/6) (from Ch. 48, par. 39.6)
Sec. 6. Any person who wilfully and wrongfully serves a demand as assignee for wages when no assignment has been made to him or under an assignment which is invalid as provided by this Act knowing such assignment to be invalid with intent to obtain for himself or any other person the wages of an employee, is guilty of a petty offense.
(Source: P.A. 77-2422.)
(740 ILCS 170/7) (from Ch. 48, par. 39.7)
Sec. 7. If any of the provisions of this Act are unconstitutional it is the intent of the General Assembly that so far as possible the remaining provisions of the Act be given effect.
(Source: Laws 1935, p. 208.)
(740 ILCS 170/8) (from Ch. 48, par. 39.8)
Sec. 8. Nothing herein contained shall be construed as making invalid any assignment of wages executed prior to July 1, 1935.
(Source: Laws 1935, p. 208.)
(740 ILCS 170/9) (from Ch. 48, par. 39.10)
Sec. 9. All wages, salary amounts or other compensation paid by the State, any unit of local government or school district to any of its employees are exempt and not subject to collection under a wage assignment.
(Source: P.A. 79-502.)
(740 ILCS 170/10) (from Ch. 48, par. 39.11)
Sec. 10. No employer may discharge or suspend any employee by reason of the fact that his earnings have been subjected to wage demands on his employer for any indebtedness. Any person violating this Section shall be guilty of a Class A misdemeanor.
(Source: P.A. 79-502.)
(740 ILCS 170/11) (from Ch. 48, par. 39.12)
Sec. 11. The provisions of this Act do not apply to orders for withholding of income entered by the court under provisions of The Illinois Public Aid Code, the Illinois Marriage and Dissolution of Marriage Act, the Non-Support of Spouse and Children Act, the Non-Support Punishment Act, the Revised Uniform Reciprocal Enforcement of Support Act and the Paternity Act for support of a child or maintenance of a spouse.
(Source: P.A. 91-613, eff. 10-1-99.)
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