NEXT WEEK!
October 17, 2023 | 7:00 am – 4:00 pm
Doubletree Hilton l 3003 Corporate West Drive
Lisle IL 60532
10:15 am – 11:05 am First Series of Workshops
Workshop #1: John Campbell and Shawn Biery, Keefe Campbell Biery & Assoc.
Topic: Guerilla Claims Handling Tactics for Insured Employers
Defense Attorneys John Campbell and Shawn Biery from Keefe, Campbell, Biery & Associates, LLC, will offer insight into how to best communicate with your insurance carrier to help contain claim cost and keep next year’s premiums at a minimum.
Synopsis: Parking Lot Fall Down Denial Affirmed by IL WC Appellate Court.
Editor’s comment: The Illinois Appellate Court, WC Division upheld a determination that a retail worker was not entitled to benefits for her injuries from a fall in a public parking lot adjacent to the store where she was undergoing new-hire training.
In Hoots v. IWCC, No. 4-22-0041WC, 09/19/2022, nonpublished, Claimant Hoots worked for Dollar General as a sales associate at a store in rural Woodson, IL. When she was hired, the Woodson Dollar General Store was under construction, so Hoots attended mandatory training with others in nearby South Jacksonville.
According to Hoots, she was scheduled to train at the South Jacksonville store for three to four weeks. In the event construction was further delayed at the Woodson store, she would continue to work at the South Jacksonville store indefinitely.
On Nov. 19, 2017, Hoots drove to the South Jacksonville store. At approximately 7:50 a.m., Hoots parked in a public parking lot located adjacent to the store and near a strip mall that also had a parking lot.
Hoots testified she was not instructed by Dollar General where to park nor was she given any sort of parking pass. To her knowledge, she said, the parking lot was open to all employees and customers of Dollar General along with all the surrounding businesses.
As Hoots was walking to the store, she slipped and fell on black ice on the parking lot and badly broke her left ankle. She testified she was carrying a purse, drink and folder containing Dollar Tree training materials.
An ambulance took her to Passavant Area Hospital immediately after the fall. The hospital admitted Hoots, and she underwent surgery on her left ankle.
After a full hearing, an IL WC arbitrator found Hoots’ injuries were not compensable, as the parking lot where she fell was open equally to both the general public, vendors and various employees, so Claimant was not at a greater risk than the general public when she fell.
The IL Workers' Comp Commission panel affirmed the denial, as did a circuit court judge.
The Illinois Appellate Court, WC Division explained a worker’s injury is compensable only if it arises out of and in the course of employment.
The general rule is that the injury incurred by an employee in going to or returning from the place of employment does not arise out of or in the course of employment and, hence, is not compensable,” the court said. “The rationale for this rule is that the employee's trip to and from work is the product of her own decision as to where she wants to live, which is a matter her employer ordinarily has no interest.
The Court said there may be an exception when the worker is a "traveling employee” — one who is required to travel away from their employer's premises in order to perform the job and for whom travel is an essential element of employment.
“As a general rule, a traveling employee is held to be in the course of her employment from the time she leaves home until she returns,” the Court explained.
In this case, the Court noted, Hoots attended training at a location away from the original work site, but all other employees hired for the Woodson store also commuted to South Jacksonville for training because the Woodson store was under construction. The Court said there was no evidence Dollar General reimbursed them for their travel expenses or helped in their travel arrangements.
“Thus, due to these facts, the evidence does not support a finding that claimant's travel was an essential element of her job, which would render her a traveling employee,” the Court ruled.
The Court also rejected Claimant Hoots’ argument the parking lot was part of her employer’s premises.
“The decisive issue in parking lot cases usually is whether or not the lot is owned by the employer or controlled by the employer, or is a route required by the employer,” the Court said.
Here, the Court said, Dollar General did not own the lot, did not control it and did not contribute to its maintenance. The lot also was not a part of a route Dollar General required Hoots to traverse. As such, the Court said, Hoots’ accident did not occur on her employer’s premises and her injury did not arise out of and in the course of her employment. The opinion affirmed denial of the claim.
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Synopsis: Please Learn from the Illinois’ Judicial/Legislative and Executive Travesty That is BIPA—You Have to Know the New Laws/Rules Landing on Illinois Employers Soon.
Editor’s comment: If you don’t know about what I consider to be treachery in the IL General Assembly and Exec Branch, in year 2008, Illinois enacted BIPA which is a scatter-shot “Biometric Privacy” bill that provides certain and wildly high pre-set damages against private employers only. Yes, you are right, unlike private sector employers, IL local governments in this State can freely invade your biometric privacy per our IL General Assembly and former Governor-Now-Out-of-Prison.
What is ludicrous about this unfair and cruel law is Plaintiffs don’t have to establish a penny in actual damages to be provided literally billions of dollars. Anyone who claims this concept was “important” might note if it only applies to some and not all workers, it can’t be that big a deal other than to funnel money to the Millionaire Illinois Plaintiff bar.
Didja Ever Eat at White Castle?—If You Like Their “Sliders,” You Need to Get a Bag Before BIPA and Illinois’ Plaintiff Bar Destroys the Company
The saddest thing that happened, in my view, is thousands of Illinois jobs are pending destruction when the BIPA appellate litigation ends and billions of dollars in damages, costs and attorney’s fees are levied on hapless IL employers. At least one rep of White Castle (that is certain to soon be bankrupt from owing billions to Plaintiffs) was quoted to say they simply missed the BIPA enactment until they were sued years later. This failing means White Castle is almost certainly going bankrupt fast.
The Message to Learn from the BIPA fiasco—PAY ATTENTION!!!
These laws I review below are pointed right at you and you must learn what to do and not do in the next ninety days or so.
Please also note my view our General Assembly and Governor must stop throwing hundreds of new rules, laws and guidelines out there which render Illinois even less business-friendly than any of our sister States.
Unless otherwise noted, all new laws and amendments discussed below will take effect on January 1, 2024; however, IL employers should take measures now to insure that they are prepared to comply with the new laws. You will also note most of these new changes apply to IL employers with sometimes 15 and then most of the time 50 or more employees—no one knows if the 15/50 employees must be based in Illinois or could be outside Illinois and around the world!
New Job Posting Obligations (starts in year 2025):
The Illinois General Assembly modified our Illinois Equal Pay Act and Governor Pritzker signed the legislation and Illinois employers will be subject to the following new requirements beginning on January 1, 2025:
Employers with 15 or more employees (the law does not specify whether these employees must be in Illinois or may be elsewhere) must disclose pay scale, benefits, and other compensation information (collectively, “Compensation and Benefit Information”) in job postings for positions that either
(i) will be performed partly or wholly in Illinois or
(ii) report to a supervisor, office, or worksite in Illinois.
If Compensation and Benefit Information was not previously disclosed on a job posting, all employers, regardless of size, must disclose such information
All employers, regardless of size, must disclose promotional opportunities for Covered Positions to current employees within 14 days of externally posting the opportunity.
Illinois employers cannot avoid these new requirements by sending advertisements via third parties. Employers that engage third parties to announce, post, publish, or otherwise advertise a Covered Position must disclose the relevant compensation and benefit Information to third parties so the Information may be included in their job postings. Because these amendments impose obligations on employers with regard to not only current employees but also prospective employees, the statute’s amendments include a right of action to “any person [who] claims to be aggrieved by a violation,” irrespective of whether those individuals are prospective employees, employees, or former employees.
The Illinois Department of Labor or IDOL will enforce this new law and may initiate investigations into violations on its own. If the IDOL determines an employer violated the new law, the employer will be given time to cure (unless the employer has twice previously violated the law). If the violation is not timely cured, then the IDOL may assess penalties not to exceed $250–$10,000 (depending on whether the unlawful posting is active and the employer’s previous number of violations).
New and Expanded Leave Benefits:
Illinois law has long granted employees paid and/or unpaid time off for specific, limited use. Recent legislation expands the list of qualifying reasons for leave, including supplying certain eligible employees with paid leave for “any reason.”
Amendments to the Illinois Victims’ Economic Security and Safety Act or VESSA Leave (Starts in 2024):
For the second consecutive year, IL legislators have amended the scope of leave reasons permitted under the Illinois Victims’ Economic Security and Safety Act (VESSA). VESSA applies to all Illinois employers and gives eligible employees up to 12 weeks of unpaid, job-protected leave per year. This year’s changes add three additional qualifying reasons for VESSA leave:
to attend the funeral, an alternative to a funeral, or the wake of a “family or household member” killed in a crime of violence;
to make arrangements for a family or household member killed in a crime of violence; and
to grieve a family or household member killed in a crime of violence.
Unlike other VESSA-qualifying reasons for leave, however, leave used for Violent Crime Bereavement is subject to additional restrictions and regulations.
New Child Bereavement Leave (Starts in 2024)
Beginning in 2024, under the Child Extended Bereavement Leave Act or CEBL, employers with 50 or more full-time employees in Illinois must provide employees who experience the loss of a child by suicide or homicide with unpaid, job-protected leave. The CEBL broadly defines “child” to include a biological child, adopted child, foster child, stepchild, legal ward, or a child of a person standing in loco parentis.
I consider it somewhat blurring that the amount of CEBL leave to which an eligible employee will be entitled varies depending on the size of the employer. Employees who work for employers with 250 or more full-time employees in Illinois will be entitled to up to 12 weeks of leave per year, while employees who work for employers with 50 to 249 full-time employees in Illinois will be entitled to up to six weeks of leave per year. Regardless of the size of the employer, employees will be required to use their CEBL leave within one year of the employee notifying the employer of their child’s passing.
You may note the CEBL permits employers to require employees to give advanced notice (when reasonable) of their need for CEBL leave, as well as to submit reasonable documentation supporting the employee’s need for CEBL leave.
Expanded Blood, Organ, Tissue Donation Paid Leave (Starts in 2024):
The new year will change the IL Employee Blood Donation Leave Act, which currently requires employers with 51 or more employees to supply eligible employees with up to one hour of paid leave every 56 days to donate blood. In addition to benefits for donating blood, this Donation Act will also give eligible employees up to 10 days of paid leave in any 12-month period to donate organs or tissue. Notably, employees are entitled to leave under the Donation Act only if they have been employed on a full-time basis for at least six months and have received approval from their employer to participate in blood, organ, or tissue donation.
Paid Leave for Any Reason (Starts in 2024):
Finally, beginning in 2024, the Paid Leave for All Workers Act or PLAW will provide eligible employees with up to 40 hours of paid leave per year to be used for any reason. Unless an exception applies, the PLAW broadly applies to all private employers and, in addition to affirmatively requiring employers to grant leave to employees, contains a list of additional employer obligations. Included among these responsibilities are recordkeeping and notice requirements and a prohibition on requiring employees to submit documentation or other proof to support a request for leave. The IDOL, the agency charged with enforcing the PLAW, has thus far published only limited rulings on the PLAW.
New Commuter Rules (Starts in 2024):
Time off is not the only benefit to which eligible employees may be entitled as of January 1, 2024. The Transportation Benefits Program Act or TBPA will require IL employers with 50 or more “covered employees” in Cook County and 37 surrounding townships to furnish pre-tax commuter benefits to covered employees so that they may purchase a public transit pass with pre-tax dollars. The TBPA defines “covered employees” as those employees who work for the employer on a full-time basis for at least 35 hours per week. Employers subject to the new law will be required to offer covered employees the pre-tax commuter benefits on their first full pay period after the employee’s 120th day of employment.
Gender Violence Act Changes:
The Illinois Gender Violence Act or GVA has long supplied victims of gender-related violence with a channel to recover damages and injunctive and other relief from alleged perpetrators. Changes to the GVA will soon permit victims to also sue employers whose employees or agents commit gender-related violence in the workplace, so long as the violence arises “out of and in the course of employment with the employer.”
This new law may criss-cross with coverage of the IL WC Act which blocks civil claims by injured workers when they are entitled to WC benefits when being attacked by a co-worker in a dispute involving employment (versus personal) issues.
The biggest change to the GVA comes from the addition of a new Section 11, which outlines the specific circumstances under which liability may be imposed on employers for gender-related violence committed in the workplace by employees or the employer’s agents. Specifically, Section 11 imposes liability if the gender-related violence occurs
(i) while the employee was directly performing their job duties and the gender-related violence was the proximate cause of the injury or
(ii) while the employer’s agent was directly involved in the gender-related violence and the performance of the contracted work was the proximate cause of the injury. An employer will be liable for such gender-related violence if the employer failed to (i) act in a manner consistent with how a reasonable person would act in similar circumstances (whatever that is supposed to mean); (ii) supervise, train, or monitor the perpetrating employee; or (iii) investigate and remediate previous reports of similar conduct by the perpetrating employee or agent.
Expanded Statutory Protection for Temporary Workers:
Comparable Pay for Temporary Workers:
The new Day and Temporary Labor Services Act or DTLS requires temporary labor service agencies to pay temporary workers who are assigned to a third-party client for more than 90 days wages and benefits (or the cash value of such benefits) equal to the lowest-paid comparable direct-hire employee at the third-party client. Direct-hire measures are those positions with seniority levels equal to the temporary worker and who perform the “same or substantially similar” work as the temporary worker under similar working conditions. If no such comparator exists, the DTLS permits temporary labor service agencies to supply temporary workers with wages and benefits (or the cash value of such benefits) equal to the lowest-paid direct-hire employee with the closest seniority level to the temporary worker. To help temporary labor service agencies comply with this new equal pay mandate, if a temporary labor service agency requests, third-party clients must share with temporary labor service agencies “all necessary information related to job duties, pay, and benefits” of direct-hire employees. The DTLS treats a third-party client’s failure to comply with such a request as a notice violation for which damages and other penalties are available.
Advance Notice for Temporary Workers
The amended DTLS requires temporary labor service agencies to provide temporary workers with advanced notice of (i) any ongoing strike, lockout, or “other labor trouble” at a third-party client to which the worker is assigned and (ii) the worker’s right to refuse the assignment without prejudice to receiving another assignment. Importantly, the amendments require temporary labor service agencies to distribute this notice to temporary workers in a language that they “understand.” Notably, the amended DTLS treats each failure to produce the required notice as a separate and distinct notice violation under the law.
Safety Training for Temporary Workers
The amended DTLS imposes new obligations on both temporary labor service agencies and third-party clients to disclose and train temporary workers regarding safety hazards at the worksite. With respect to temporary labor service agencies, before assigning a temporary worker to a third-party client, the temporary labor service agency must:
gather information and assess the third-party client’s “safety and health practices and hazards,” which may include an on-site inspection, and if a temporary labor service agency becomes aware of an existing job hazard at the third-party client’s site, the temporary labor service agency must:
alert the third-party client of the hazard,
encourage the third-party client to correct the hazard,
document this encouragement, and
remove the temporary worker if the third-party client fails to correct the hazard;
provide the temporary worker with (i) general safety training (in the worker’s preferred language) regarding “recognized industry hazards” that the worker may encounter at the third-party client’s worksite, (ii) the IDOL’s hotline number for reporting safety hazards, and (iii) the identity of the person to whom safety concerns should be reported, and also document and maintain records regarding this training and notice; and
furnish the third-party client with a general description of the safety training that the temporary labor service agency delivered to the temporary worker, including topics covered and whether the training was electronic or on paper.
With respect to third-party clients, before a temporary worker begins work, the third-party client must:
document and give notice to the temporary labor service agency of any anticipated job hazards the temporary worker may encounter;
review the safety training that the temporary labor service agency delivered to the temporary worker to ensure that it addresses recognized industry hazards relevant to the third-party client; and
provide the temporary worker with training regarding the specific job hazards the worker may encounter at the third-party client’s worksite, document and maintain records recording this training, and timely notify the temporary labor service agency that such training has been completed.
Notably, if a temporary workers’ job duties or worksite changes during the assignment such that the worker is exposed to new safety hazards, then before the temporary worker’s assignment may be modified, the third-party client must notify the temporary labor service agency and the temporary worker of the new hazards and supply the temporary worker with any relevant specific safety training and personal protective equipment.
Under the new amendments, a temporary labor service agency or temporary worker may refuse a new job task at the third-party client’s worksite if (i) the task has not been reviewed with the worker or (ii) the temporary worker lacks appropriate training for the task.
Expanded Penalties:
The amended DTLS expands the available penalties and establishes a new right of action for any broadly defined “interested party” to sue temporary labor service agencies and third-party clients, but only after exhausting their claims administratively with the IDOL.
The DTLS amendments did not modify the definition of “day and temporary laborers.” As such, the DTLS continues to broadly apply to all temporary workers, except those providing services of a professional or clerical nature, who are contractually assigned to third-party clients through temporary labor service agencies.
The IDOL also already published emergency enforcement rules regarding the amended DTLS, but these rules will expire on the earlier of January 1, 2024, or the date on which the IDOL adopts permanent enforcement rules.
New Protections for Freelance Workers:
Temporary workers are not alone in receiving new protections under Illinois law. Beginning July 1, 2024, freelance workers will gain new rights and benefits pursuant to the Freelance Worker Protection Act (FWPA). With a few exceptions (including for workers furnishing construction services or services as “employees” under Section 10 of the Employee Classification Act or Section 2 of the Illinois Wage Payment and Collection Act ), the FWPA defines “freelance workers” as independent contractors who contract with any non-governmental person or entity to provide products/services in Illinois or with an entity located in Illinois worth at least $500 (either in a single contract or in the aggregate of all contracts with a single entity) within a 120-day period.
If a worker satisfies that definition, the FWPA will require the hiring entity to pay the freelance worker all compensation due under a contract within 30 days of the worker completing their contracted services (or such earlier date as identified in the parties’ contract). The FWPA will prohibit a hiring entity from conditioning timely payment on the freelance worker’s acceptance of less compensation once the freelance worker begins performing the contracted services.
The FWPA will also require freelance workers and hiring parties to enter into written contracts that identify the following information:
the name and contact information of both parties (including the hiring party’s mailing address);
an itemized list of all products and services the freelance worker will supply, including the value of the products and services and the rate and method of compensation for such products and services;
the date on which payment is due to the freelance worker; and
if the hiring party requires an invoice to timely compensate the freelance worker, the date by which the freelance worker must submit to the hiring party an invoice of products and services rendered.
Under the FWPA, the hiring entity must retain the contract for at least two years and distribute a copy of the parties’ contract to the freelance worker. The law does not explicitly identify by when the hiring entity must give a copy of the contract to the freelance workers, so we hope the IDOL will publish further guidance on this point. To help parties comply with these new obligations, the IDOL plans to publish a model freelance worker contract.
In addition to imposing affirmative obligations on the parties, the FWPA will prohibit hiring entities from discriminating, harassing, or retaliating against freelance workers for exerting their rights under the FWPA. Relief will be available to freelance workers under the FWPA through both an administrative complaint process with the IDOL and civil litigation. Notably, freelance workers will be permitted to sue hiring entities on behalf of themselves and others similarly situated without first exhausting administrative remedies. The penalties and damages available under the FWPA will vary depending on the type of violation.
Further Access to Personnel Records/Electronic Distribution of Employee Notices:
The Illinois Personnel Record Review Act (PRRA) outlines the specific circumstances under which employees may inspect and obtain copies of personnel records. HB 3733 amends the PRRA to remove restrictions for obtaining copies. As such, employers will be obligated to provide requesting employees with copies of their personnel records via email or mail, regardless of whether the employee can prove that they are unable to inspect the records in person. Employers may continue to charge requesting employees a fee for making copies of the personnel records up to the actual cost of the copies.
HB 3733 also imposes new obligations on employers regarding distributing mandatory employee notices and summaries under the Illinois Minimum Wage Law, Illinois Equal Pay Act, Illinois Wage Payment and Collection Act, and Illinois Child Labor Law. For employees who do not regularly report to a physical worksite (e.g., remote employees), HB 3733 requires employers to distribute the aforementioned laws’ mandatory notice materials by:
email;
posting the materials on the employer’s website, so long as the employer regularly uses the website to communicate with employees and employees can regularly access the website; or
posting the materials on the employer’s intranet site, so long as the employer regularly uses the intranet site to communicate with employees and employees can regularly access the intranet site.
Much like the GVA amendments, HB 3733 lacks an explicit effective date. As such, some sources are reporting that the law’s amendments will go into effect as of January 1, 2024, while other sources claim the amendments had immediate effect upon Governor Pritzker’s June 20, 2023, execution.
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Synopsis: Lou Cohn, Rest in Peace.
Editor’s comment: Attorney Louis Joseph Cohn of the firm of Cohn, Lambert, Ryan & Schneider passed away earlier this month. He was licensed to practice law in Illinois in 1955!
Lou was a long-term practitioner at the IWCC, with a career that spanned 50 plus years. Lou had a strong personality, and his knowledge and talent were widely respected. He co-authored the IL WC Rules of Practice at the Commission in 1975.
