Find Legal Information

PRESIDING JUSTICE REID delivered the opinion of the court:

The trial court granted the motion of defendants TargetMarketing Systems, Inc. (TMS), and Richard Koh to dismiss. Onappeal, the plaintiff, Byung Moo Soh, argues that the trial courterroneously interpreted an employee exemption found in section 2of the Illinois Wage Payment and Collection Act (820 ILCS 115/2(West 2002)). For the reasons that follow, we reverse thedecision of the trial court and remand this matter.

BACKGROUND

On March 20, 2003, Soh filed his third amended complaintagainst TMS, Buylateral and Koh, who was the chief executiveofficer of TMS. In the complaint, Soh alleged that on November27, 2000, he entered a written stock purchase agreement withdefendant Buylateral.com PTE, LTD. (Buylateral), pursuant towhich Soh sold and Buylateral bought all of the shares of commonstock that he owned in TMS. Thereafter, on January 5, 2001, Sohand TMS entered into an amended and restated employment agreement(employment agreement) whereby Soh agreed to serve TMS in thecapacity of president for a term of four years commencing onOctober 1, 2000. However, on February 5, 2002, Soh's employmentwith TMS was terminated.

On February 27, 2002, Soh filed his original complaintalleging causes of action for breach of employment agreementagainst TMS in count I, breach of stock purchase agreementagainst Buylateral in count II, and detinue against TMS in countIII. Subsequently, the complaint was amended to add a claimunder the Illinois Wage Payment and Collection Act (the Act) (820ILCS 115/1 et seq. (West 2002)) against TMS and Richard Koh. Thereafter, Soh amended his complaint on two additional occasionsin an effort to state a cause of action but failed.

On April 17, 2002, TMS and Buylateral filed a counterclaimagainst Soh. Thereafter, on January 10, 2003, TMS and Buylateralfiled a third-party complaint against Boraam Industries, LLC.

On July 29, 2003, TMS and Koh subsequently filed a motion todismiss count IV of Soh's third amended complaint pursuant tosection 2-615 of the Illinois Code of Procedure (the Code) (735ILCS 5/2-615 (West 2002)). Relying on Doherty v. Kahn, 289 Ill.App. 3d 544 (1997), the defendants alleged that Soh did not fallwithin the class of employees protected by the Act because heserved as president of TMS and had some degree of control overthe performance of his work.

Specifically, count IV of Soh's third amended complaintalleged a failure on the part of TMS and Koh to pay Soh hisagreed salary pursuant to the terms of the employment agreement. Count IV also alleged, inter alia, a failure to pay Soh otherbenefits to which he was entitled, a failure to reimburse Soh forbusiness expenses incurred by him and that TMS terminated himwithout cause and without the required written notice.

On August 6, 2003, the trial court granted the defendants'motion to dismiss with prejudice. On September 5, 2003, Sohtimely filed his notice appeal, wherein he requested that thiscourt reverse the trial court's order of August 6, 2003.

ANALYSIS

The only claim at issue on appeal relates to the trialcourt's dismissal of count IV of Soh's third amended complaint.

A motion to dismiss brought pursuant to section 2-615 of theCode attacks the legal sufficiency of a complaint based ondefects apparent on the face of the complaint. Vitro v.Mihelcic, 209 Ill. 2d 76, 81 (2004). In ruling on a section 2-615 motion, a court must accept as true all well-pled facts inthe complaint and draw all reasonable inferences therefrom infavor of the nonmoving party. Vitro, 209 Ill. 2d at 81. Thecritical question on appeal is whether the allegations of thecomplaint, when viewed in the light most favorable to theplaintiff, are sufficient to state a cause of action upon whichrelief can be granted. Borowiec v. Gateway 2000, Inc., 209 Ill.2d 376, 382 (2004). A cause of action should be dismissedpursuant to a section 2-615 motion only if it is clearly apparentthat no set of facts can be proven which will entitle theplaintiff to recovery. Borowiec, 209 Ill. 2d at 382-83. Ourreview of a dismissal pursuant to section 2-615 is de novo, andwe may affirm upon any grounds for which a factual basis existsin the record. Colmar, Ltd. v. Fremantlemedia North America,Inc., 344 Ill. App. 3d 977, 994 (2003).

"In 1973, the Illinois General Assembly enacted the Wage Actto provide employees with a cause of action for the timely andcomplete payment of earned wages or final compensation, withoutretaliation from employers. See S. Miller, Minimum GuaranteedRights Under the Illinois Wage Payment and Collection Act, 81Ill. B.J. 194, 195 (1993). Upon an employee's separation, anemployer is required to pay the full amount of the employee's final compensation within the next regularly scheduled payperiod. 820 ILCS 115/5 (West 1992). An employer convicted underthe Act for intentionally withholding or delaying the payment ofwages or final compensation is guilty of a Class C misdemeanor.820 ILCS 115/14(a)(West 1992). The Wage Act defines wages orfinal compensation as 'any compensation owed an employee by anemployer pursuant to an employment contract or agreement betweenthe 2 parties.' 820 ILCS 115/2 (West 1992). Claims for wages orfinal compensation are thus akin to breach of contract actions." Doherty v. Kahn, 289 Ill. App. 3d 544, 557-58 (1997).
The defendants contend that the trial court's decision togrant their motion to dismiss was proper. The defendants arguethat Soh, as president of TMS, had some degree of control anddirection over the performance of his work. The employmentagreement, which governed the relationship that Soh had with TMS,defines his job title and duties as follows:

"1.01 JOB TITLE AND DESCRIPTION. Executive shallserve the Company in the capacity of President. Assuch, Executive shall have such powers and perform suchduties as may be designated by the Board of Directorsof the Company from time to time, such duties not tovary significantly from his duties as Vice President ofthe Company existing on the date hereof, unless agreedto by Executive."

Consequently, the defendants maintain that the employmentagreement does not provide any specifics as to how Soh is toperform his duties. As such, the defendants claim that Soh had"some control" and "some direction" over how his job was to beperformed. Consequently, relying on Doherty, the defendantsargue that Soh does not fall into the class of employeesprotected by the Act and, therefore, cannot state a claim forrelief under the Act.

Soh contends that the trial court erred when it dismissedcount IV of his third amended complaint. In particular, Sohargues that the trial court should not have relied on thedecision reached in Doherty. Soh maintains that the Dohertycourt erroneously interpreted the meaning of "employee" as it isdefined by section 2 of the Act.

In Doherty, the appellate court affirmed the trial court'sdismissal of the plaintiff's claim under the Act, on the basisthat the plaintiff did not fall into the class of employees theAct seeks to protect. The ruling of the Doherty court follows:

"Plaintiff asserts that, as an employee of GlenRegal, he was within the class of persons the Wage Actwas designed to protect. Section 13 of the Wage Actdoes allow an employee to hold corporate officers andagents personally liable by proving that they knowinglypermitted the corporation to violate the Wage Act. [820 ILCS 115/13 (West 1992)]; see Johnson v. WesternAmusement Corp., 157 Ill. App. 3d 873, 510 N.E.2d 991(1987); Stafford v. Puro, 63 F.3d 1436 (7th Cir. 1995). However, section 2(1) states that the Wage Act does notapply to an employee 'who has been and will continue tobe free from control and direction over the performanceof his work.' 820 ILCS 115/2(1)(West 1992).

In the case sub judice, it is not clear whetherplaintiff is referring to the time period before orafter he was voted out as president. As president ofGlen Regal, plaintiff was an employee who also had somecontrol over the business and direction over theperformance of his work. Therefore, we hold thatplaintiff does not fall into the class of employees theWage Act seeks to protect." Doherty, 289 Ill. App. 3dat 558.

Soh argues that Doherty was decided wrongly because,"pursuant to Illinois law on statutory construction, the clearand express language of the Act's 'independent contractor'exclusion set forth in section 2 clearly requires that anindividual meet all three factors in order to be excluded fromthe Act's protection."

Section 2 of the Act states the following:

"As used in this Act, the term 'employee' shallinclude any individual permitted to work by an employerin an occupation, but shall not include any individual:

(1) who has been and will continue to be free fromcontrol and direction over the performance of his work,both under his contract of service with his employerand in fact; and

(2) who performs work which is either outside theusual course of business or is performed outside all ofthe places of business of the employer unless theemployer is in the business of contracting with thirdparties for the placement of employees; and

(3) who is in an independently established trade,occupation, profession or business." 820 ILCS 115/2(West 2002).

"The construction of a statute is an issue of law; ourreview is de novo. Boaden v. Department of Law Enforcement, 171Ill. 2d 230, 237, 664 N.E.2d 61, 65 (1996). The fundamentalprinciple of statutory construction is to ascertain and giveeffect to the intent of the legislature. Bowne of Chicago, Inc.v. Human Rights Comm'n, 301 Ill. App. 3d 116, 119, 703 N.E.2d443, 446 (1998). The most reliable indicator of legislativeintent is the statute's language, which must be given its plainand ordinary meaning. Boaden v. Department of Law Enforcement,171 Ill. 2d 230, 237, 664 N.E.2d 61, 65 (1996)." Gilchrist v.Human Rights Comm'n, 312 Ill. App. 3d 597, 602 (2000).

Generally, principles of statutory construction interpretthe term "and" as conjunctive rather than disjunctive. City ofCarbondale v. Bower, 332 Ill. App. 3d 928, 933 (2002), citingPeople ex rel. Aramburu v. City of Chicago, 73 Ill. App. 2d184(1966). "As a general rule, the use of the conjunctive, as inthe word 'and,' indicates that the legislature intended for allof the listed requirements to be met. 1A N. Singer, Sutherlandon Statutory Construction