9-18-2017; Important Ruling Knocking out the Obama OT Rule; Brilliant IL WC Appellate Ruling on the Positional Risk Doctrine and more

Synopsis: No Go for Obama-era Federal Overtime Rule! Texas Federal Judge Strikes Down Federal Overtime Rule. Research and analysis by Bradley J. Smith, J.D.

 Editor's Comment: U.S. District Judge Amos Mazzant granted summary judgment to more than 55 business groups that challenged the Obama administration’s 2016 rule that more than doubled the minimum salary required to qualify for the Fair Labor Standards Act’s “white collar” exemptions. As you recall, I wrote an article in November of last year discussing the same court blocking the overtime rule from taking effect. The minimum annual salary would have increased in dramatic fashion, which would have crippled some businesses—it more than doubled from $23,660 to $47,476.00. The rule also required additional increases every three years. Instead, for now, the existing overtime regulations apply, which includes the $23,660.00 exempt salary threshold.

This means U.S. employers do not have to make any changes for now, because the ruling is final, rather than last year’s temporary injunction, which was only temporary. This decision creates more certainty for employers, because it assures employers the Obama rule will not see the light of day.

Although the ruling could be challenged, the new leadership in the U.S. Department of Labor will likely not challenge it. Alexander Acosta, Secretary of Labor under the Trump administration, already sent a request for information on the 2016 overtime rule to the Office of Information and Regulatory Affairs. Those types of requests generally signal a government agency is looking for information to determine whether there is a need for new rulemaking. Acosta said he recognizes the salary threshold needs to be increased. However, he seemingly understands the salary threshold for overtime should not be doubled.

One of the central arguments used by the business community in challenging the new rule was the threshold was increased too high. Plaintiffs also argued the 2016 overtime rule raised the minimum salary threshold so high it made the duties test irrelevant. This test also required employees to perform certain duties to qualify for the FLSA’s white collar (executive, administrative, and professional) exemption. The Federal District Court agreed in reasoning that, “Congress unambiguously intended the exemption to apply to employees who perform bona fide executive, administrative or professional capacity duties.” He further said the U.S. DOL does not have the authority to set a salary threshold that effectively eliminates the duties test. Instead, the District Court explained the DOL is supposed to set the minimum salary level as a floor in order to screen out obviously nonexempt employees.

Employers should prepare for an eventual increase to the salary threshold under FLSA. For now, employers can submit comments to the DOL, as the DOL’s request for information offers an additional opportunity for the public to submit comments about the salary threshold.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com.

Synopsis: An IL Worker Needs to Show More than Simply Being at Work to Get WC Benefits—IL WC Appellate Court Upholds IL WC Commission decision Denying Benefits Again Rejecting the “Positional Risk” Doctrine. Analysis and research by Tim O’Gorman, J.D.


Editor’s comment: In Herff Jones v. Illinois Workers’ Compensation Commission, 2017 IL App (4th) 160346WC-U, again confirms the IL Courts rejected the use of the “positional risk” doctrine in the Illinois WC System..


Claimant in Herff Jones alleged WC benefits were owed for a right hand injury as a result of an alleged fall while at work. Claimant testified initially she believed her fall was caused by a rock which she stepped on while taking a break from work and going on a walk on a normal city street with a co-worker. Claimant testified she felt she stepped on a rock however mentioned the probability of being too close to the edge of the walk. She admitted she could not recall seeing a rock and provided a prior recorded statement denying she saw any defects in the sidewalk or the walkway.


Respondent’s HR manager testified he spoke to Claimant after the incident where Claimant stated she was not sure what happened. Respondent’s HR manager inspected the area where the claimant fell and did not see any rocks and could not identify any defects in the sidewalk or the surrounding environs.


Respondent’s HR manager also testified he took photographs of the area in question. The photographs taken by Respondent’s HR manager were described as “lost forever” save for one, which was not provided at the time of hearing. Instead, photographs taken at an unknown date and unknown time were presented as evidence. It is odd to note the photos were admitted without objection.


The Arbitrator rendered a decision finding Claimant’s alleged injury did not arise out of or occurred in the course of Claimant’s employment. On review, the Commission affirmed unanimously.


On appeal to the Circuit Court, the Court reversed the Commission’s decision stating


There are disputed facts; namely what caused the fall [and] [t]his allows the court to consider this a question of law." The ruling goes on to state: "In this case, it is clear to this court that whether or not the [claimant] employee tripped on a rock is immaterial. The fact is that she was on an official break during her employment and remained on the [employer’s] premises. Thus, her accident arose out of and was in the course of her employment.


The IL WC Appellate Court’s decision on this statement speaks for itself:


The Circuit Court was correct in stating that the cause of the claimant's fall was a disputed question of fact. But that did not justify the circuit court considering the issue "as a question of law." It is the Commission that resolves disputed issues of fact (O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980)), not courts on review of its decisions. The Commission's resolution of a factual issue will not be disturbed on review unless it is against the manifest weight of the evidence. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). Compounding the error was the circuit court's conclusion that, simply because the claimant was on a scheduled work break and on Herff's premises when she fell, her injury arose out of her employment and "automatic liability applies." The circuit court seems to have adopted positional risk whenever an employee is on the employer's premises and engaging in activities of personal comfort. The positional risk doctrine has been rejected in this State as being inconsistent with the requirements of the Act, and specifically the requirement that to be compensable an employee's injury must arise out of her employment. Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 552 (1991) (emphasis added). Herff Jones v. IWCC, at pg. 8 para 17.


In disagreeing with the Circuit Court’s seeming application of the “positional risk” doctrine, the IL WC Appellate Court found


1. Claimant’s alleged injury was not a result of a personal risk,

2. Claimant’s alleged injury occurring while walking across a sidewalk did not establish a risk greater than that faced by the general public and

3. Claimant’s alleged injury was not a risk incidental to her employment.


The Appellate Court examined the third potential risk in greatest detail. Claimant was not carrying anything in furtherance of her employment with Respondent. Claimant was not traveling from one place to another in furtherance of her employment with Respondent. Based on Claimant’s testimony, she was unable to establish that a defect occurring on Respondent’s premises was the cause of her alleged accident. As such, the Appellate Court vacated the decision of the Circuit Court and affirmed the decision of the Commission denying any and all benefits.


We salute the Court for following the traditional precepts of IL WC law and practice.


We appreciate your thoughts and comments. Please post them on our award-winning blog. This article was researched and written by Tim O’Gorman, JD and your editor.


Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532.  The program runs from 8:30 am – 3:30 pm.


Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith


The IL State Chamber also wants you to know:


This is the most important annual Workers’ Compensation Conference for Illinois employers!

·        The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.  


Workers' Comp. Reform is being debated at the state Capitol.

·        Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.


Continuing Education Available!

·        This conference has been pre-approved to offer 3 HRCI credits.

·        This conference has been pre-approved to offer 4 SHRM Professional Development credits.

·        This conference has been submitted for approval to offer 4 CLE credits for attorneys.


- Learn More -



You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org