Friday, December 12, 2014

Illinois Employer Policy is Illegal: Work Related Injured Employee Seeking Medical Care Cannot be Required to give Advance Notice to Employer Prior to Treatment



December 2014
By: Anthony J. Caruso, Jr., Esq.

A recent federal court decision prohibits Illinois employers from requiring work related injured employees to give advance notice of medical treatment.

The U.S. District Court, Northern District of Illinois, in Stevenson v FedEx, Ground Package Systems, Inc., (decided on September 24, 2014) found the employer unlawfully terminated an employee in retaliation for asserting his rights under the Illinois Workers’ Compensation Act.

Under the Illinois Workers’ Compensation Act, an employee with a work related injury can choose his/her own medical provider. Here in this case, FedEx had a company policy that had an advance notification requirement on employees who seek medical treatment following a workplace injury. This employee was terminated by FedEx for failing to give advance notice to FedEx.

The Court concluded that the Illinois Workers’ Compensation Act does NOT allow employers to impose such a requirement.

Note that Illinois employers can continue to require employees to report work-related injuries.

If you have questions or concerns about employment policies or any other questions related to workers’ compensation or employment law, please call attorney Anthony J. Caruso, Jr. of Wessels Sherman’s St. Charles, Illinois office at 630-377-1554 or e-mail ancaruso@wesselssherman.com

How the Illinois Department of Employment Security Evaluates Independent Contractor Sales Personnel: Which Salespersons are Really Misclassified Employees!?

December 2014
By Nancy E. Joerg, Esq.



The Illinois Department of Employment Security (IDES) has a handy list of questions that it uses to determine whether or not a salesperson is an independent contractor or an employee for IDES purposes. This valuable list of questions can be found on the entire last page of the IDES Worker Relationship Questionnaire. 

WORKER RELATIONSHIP QUESTIONNAIRE: The IDES Worker Relationship Questionnaire is a multi-page document (six pages), but there is a special seventh page attached to the Questionnaire which is especially designed for evaluating whether or not independent contractor salespersons are really misclassified employees. IDES auditors use that last page to determine whether or not a particular salesperson is actually “controlled and directed” by the company being audited (and therefore should be reclassified to employee status).

The entire IDES Worker Relationship Questionnaire is based on Section 212(A),(B), and (C) of the Illinois Unemployment Insurance Act. This is the Section of the law that defines whether or not a worker is in employment i.e., an employee, or exempt from employment i.e., an independent contractor. 

ONLY EXEMPTION FOR SALES IS THE DIRECT SELLERS EXEMPTION: There is no actual exemption from employment under the Illinois Unemployment Insurance Act for sales, except for the direct sellers’ exemption (Section 217(B)) which is specifically for direct sellers who go door-to-door with consumer products under very narrowly described circumstances. 

However, for the normal sales personnel (who do not sell consumer products door-to-door), the last page of the IDES Worker Relationship Questionnaire is a GOLD-MINE of suggestions as to how a sales personnel can be a bona fide independent contractor for IDES purposes.

SALES RELATED QUESTIONS FROM WORKER RELATIONSHIP QUESTIONNAIRE: Let us look at some of these very helpful questions:

Question: Does the firm furnish the worker with transportation (the worker, meaning the alleged independent contractor sales person.) Yes or no?
Answer: For independent contractor status, the firm should not be furnishing the worker with transportation.

Question: Does the firm furnish the worker with business cards? Yes or no?
Answer: For independent contractor status, the best answer here is no (the firm does not furnish the salesperson with business cards).

Question: Does the firm restrict the worker/salesperson as to territory? Yes or no?
Answer: The best answer for independent contractor status is no, the salesperson is not restricted as to territory.

Question: Does the firm have the right to require the salesperson to follow its instructions? Yes or no?
Answer: The best answer for independent contractor status is no.

Question: Does the firm have the right to require the alleged independent contractor salesperson to attend meetings?
Answer: The best answer here for independent contractor status is no.

Question: Does the firm being audited require the alleged independent contractor salesperson to work fixed work hours?
Answer: If the answer is yes, it is more likely that that salesperson is a misclassified employee.

This last page of the IDES Worker Relationship Questionnaire is extremely helpful when a company is drafting an independent contractor agreement for its salespeople because all of the factors listed on the sales page of the IDES Worker Relationship Questionnaire should be covered in an effective independent contractor agreement for salespeople.

INDEPENDENT CONTRACTOR AGREEMENT: If the Company’s independent contractor agreement for its salespeople has restrictive provisions in it such as a non-compete agreement, a requirement to work a minimum number of sales or a minimum number of calls, etc., then if the company is ever audited by the IDES, the IDES will likely find the Company to be the employer of the salesperson (because of the direction and control that the Company has over the salesperson).

SELF-AUDIT TOOL: Even if a company that uses independent contractor salespeople is not currently under an IDES audit, it is an excellent “self-audit tool” for the Company to fill out the Worker Relationship Questionnaire for its salespeople in order to determine the strengths and weaknesses of that independent contractor relationship.

For assistance and strategic planning with IDES audits, hearings, and independent contractor agreements (or for consultations on limiting your liability in the use of independent contractors), contact Attorney Nancy E. Joerg, who enjoys a nationwide reputation in working with companies who use Independent Contractors of all types. Nancy Joerg can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Decertification and RM Petitions (Follow-up)



By Richard H. Wessels, Esq.
December 2014
  
After I wrote an article in the November Illinois Client Update about decertification and RM petitions, I received quite a few follow-ups asking about how to get this started. As I explained last month, the whole process needs to get started with some kind of an indication that the union has lost majority support. Usually, this takes the form of a piece of paper signed by employees – at least 30% for a decertification petition and 50% for an RM petition. There are a few fundamentals that you should keep in mind.

  1. A company cannot instigate this. If there is evidence of significant company involvement, which the NLRB refers to as “instigation”, you will be vulnerable to an Unfair Labor Practice charge. A ULP could have the effect of bringing about dismissal of the RM or decertification petition.
  2. The best scenario is where an employee asks the “golden question”. Management-side labor lawyers love the “golden question”. Essentially this is along the lines of “how can we get rid of this union?” Once you have an opening, the law is clear that you can explain the process.
  3. The wording on the paper that the employees sign is important. The pro-union NLRB can be expected to nitpick the language. So it is important that there be a clear statement that the employees do not wish to be represented by the union. Sloppy language like “we don’t want to be members of the union any longer” or “we want an election” can cause problems. Below is an example of the simple language that is needed.
  4. As I mentioned last month, a useful strategy is to direct an employee who is interested in ousting a union to the website of the National Right to Work Committee. There are clear instructions there. That website is: http://nrtwc.org/.
  5. Another solid approach is to suggest that the employee call the information officer at the area NLRB office. Our experience is that the information office will give straight information. The phone number can easily be obtained from the NLRB website. That website is: http://www.nlrb.gov/
Sample petition employees can sign indicating they no longer wish to be represented by union:
 
We work for American Growth Company. We no longer want to be represented by the Anti-Flexibility, Rigid Seniority, Bankrupt Pension Plan Local Union No. 1, AFL-CIO

Name                                                    Date
______________________                ______________
______________________                ______________
______________________                ______________
______________________                ______________
______________________                ______________



As we mentioned last month, we are seeing more RM petitions these days. If you want to talk about strategy, give me a call here at our St. Charles office at 630-377-1554 or you can email me at riwessels@wesselssherman.com.

Dick Wessels is Founder and Senior Shareholder of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. He is a nationally recognized labor attorney and has been honored as an Illinois Super Lawyer. Dick handles a wide variety of labor and employment law cases. His primary focus is dealing with labor unions, either on behalf of union-free companies or where unions already have representation rights. Dick has handled cases involving nearly all international unions for companies throughout the United States.