Chavez v. Transload, (1stDist March 2008 ) again reaffirms that a borrowing employer in Illinois enjoys immunity from negligence suit. A temporary laborer employed by a temporary agency was loaned to a company that unloaded and stored steel for customers. Temporary worker, Chavez, was hit by an overhead crane while off loading a rail car and sued for premises liability and negligence.
The Court dismissed the case under Section 5(a) the "exclusive remedy " provisions of the Illinois Workers Compensation Act barring negligence suits against an employer for line of duty job injuries.
The most important among several factors in finding a "borrowed employment" relationship are (1) the borrowing employer's right to control the work performed and, (2) whether the employee gave an express or implied consent to a borrowed employment relationship.
Here the right to discharge, the right to set the work schedule, the right to control the work and the workers consent to the job assignment, all lead to dismissal of the negligence suit. Note, the exclusive remedy defense rule may not apply where there is a joint venture between the companies instead of a borrowed employment relationship. At the time of this post, that issue is currently pending decision before the Illinois Supreme Court.
Questions on the exclusive remedy defense in loaned borrowed employment relationships often arise in the construction industry where employees of one subcontractor may be under the direction and control of another contractor. Court decisions in this area are often fact specific. A true borrowing employer shares the exclusive remedy defense from any negligence suits by the injured employee. However a borrowing employer may have liability for workers compensation claims brought by the injured worker in the absence of a specific written agreement with the loaning employer.
Questions in this heavily contested area can be addressed by our Chicago workers compensation attorneys with practical experience with the exclusive remedy defense and borrowed employee relationships.
Chicago Workers Compensation Attorneys --- http://wc-chicago.com 5-11-08
Effective January 1, 2008, new laws apply to the Construction industry to guarantee the proper classification of Construction Workers. Workers performing services for construction contractors on or after January 1, 2008 are presumed to be employees of the contractor unless they meet the exceptions specified in Section 10 of the Act. If a contractor chooses to misclassify a worker as an independent contractor in violation of the new law, the State of Illinois can assess civil penalties (money, stop work orders) or other remedies. The Department will notify other State agencies such as the Department of Employment Security (unemployment taxes), the Department of Revenue (income taxes for State & Fed) and the Workers’ Compensation Commission (Work comp insurance compliance penalties for no insurance) who are then required to review and check the contractor’s compliance with each of their respective laws. www.state.il.us/agency/idol/laws/Law185.htm
Employee Classification Information Contact #: (217) 782-1710
This new law is certain to give rise to litigation in construction negligence cases and in workers compensation cases for construction site injuries. For a current update on the practical effect of the new law and new cases interpreting the application of this new law, contact our Chicago workers compensation attorneys with any questions or seek out an experienced Illinois attorney specializing in construction litigation.