Petition for Leave to Appeal From the Appellate Court of Illinois
Voelker Litigation Group Attorneys Daniel J. Voelker and Alexander Loftus filed this Petition for Leave to Appeal to the Illinois Supreme Court in order to preserve the rights of unpaid employees.
The petition alleges If the Appellate Court’s decision is not corrected, employers will be able to avoid application of the Illinois Wage Payment and Collection Act (“IWPCA”) by compelling employees to agree to choice of forum provisions allowing suit to be brought only in far off jurisdictions thus gutting the IWPCA.
The Petition made the following argument:
“The IWPCA expressly allows employees to file suit to recover unpaid wages here in Illinois. This is one of the rights guaranteed by the IWPCA and the right the agreement deprived Fabian of. This provision is absolutely necessary for every Illinois employee to preserve her rights. If this Court denies the Petition, employers could rely on choice of forum provisions in employment agreements to require employees to pursue them in other states to secure payment.
If the Petition is denied, an employer of low wage workers could require each employee to sign an employment agreement including a forum selection clause designating any state, such as Alaska or Hawaii, as the only forum for suit. Then the employer could stop paying wages in violation of the Act and the employee could not sue for back wages because the cost of proceeding in Alaska or Hawaii would outweigh the wages owed. If the Petition is denied, average Illinois employees may be, in some cases, be unable to pursue claims for lost wages. The IWPCA will rarely be enforced if it can be circumvented using a choice of forum provision in an employment agreement.
The legislature likely foresaw the potential problem of forcing Illinois workers to travel cross-country (or even cross-state) to pursue lost wage claims and enacted the instant statute expressly allowing employees to file suit in a convenient forum. The IWPCA will quickly be rendered ineffective if the Petition is denied and employers are allowed to rely on forum-selection clauses to prevent unpaid employees from exercising their rights under the Act. This Court should grant the Petition and uphold Illinois employee rights.
The issue for review here is not what is convenient for Fabian; rather, it is a question of whether this Court values Illinois employees’ right to payment of wages. This Court is faced with a simple question: Is an employer’s right to chose forum more important than an employee’s right for payment for her work?
This Court’s interpretation of the IWPCA will affect how business is done in Illinois. Denying the Petition would effectively deprive millions of Illinois workers of the right to sue for wages by taking the teeth out of the IWPCA. If this Court allows employers to include forum selection clauses in employment agreements, we will quickly see forum selection clauses limiting average employees’ right to file suit in a convenient forum where Illinois law and public policy will be enforced.
The majority of Illinois employees cannot afford to pursue a lost wage claim in another state and the amount of lost wages sought frequently does not justify the expense of litigating in another state. If this Court denies the Petition, employers could rely on choice of forum provisions in employment agreements to require employees to pursue unpaid wage claims in far off jurisdictions effectively preventing application of the IWPCA and leaving thousands of employees unpaid.”
The case on remains pending in the Delaware Superior Court.
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