Author: Sylvia Styka

The Illinois 7th Circuit Court decided a case that clarifies employer/employee rights in discharge cases that involve workers’ compensation and the Family Medical Leave Act.

In Dotson v. BRP US Inc., Brian Dotson, the plaintiff, worked for BRP in a “grind and trim” job. BRP’s absentee policy reflects the minimum FMLA requirements. Therefore, the firm only gives 12 weeks (480 hours) of unpaid leave in a rolling 12-month period. The employee handbook also states that FMLA leave, short-term disability, and workers’ compensation run concurrently and that any employee who cannot work after 12 weeks of leave is automatically terminated.

Injury Leads to Discharge

In January 2004, Mr. Dotson suffered a work-related back injury. He was notified by his BRP that he was eligible for FMLA and had 194 hours remaining. Mr. Dotson questioned whether he needed to use FMLA hours when his injury was work-related. BRP told him that if he did not apply for FMLA, he would be terminated immediately. Even though he collected total temporary disability benefits during his absence, BRP fired Mr. Dotson the day after his 194 hours were used up, on February 24, 2004, for excessive absenteeism.

Appeal Clarifies Misconceptions

On appeal of Mr. Dotson’s suit against BRP, the Illinois 7th Circuit Court stated the plaintiff’s arguments were based on three theories steeped in misconceptions of workers’ compensation, the FMLA, and retaliatory discharge:

• Myth #1: An employer may not lawfully force an employee to take FMLA.
  Truth: An employer may designate an absence as FMLA if the employer gives the worker proper notice.
• Myth #2: An employee may not be terminated for absenteeism resulting from a work-related injury.
  Truth: An employer may fire an employee for excessive absenteeism, even if caused by a work-related injury. Further, under Illinois law, employers are not required to retain at-will employees who are medically unable to perform their duties nor are they required to reassign them to other positions.
• Myth #3: An employer may not count leave covered by worker’s compensation toward FMLA or run them concurrently. Truth: With the proper notification and designation, an employer may count an absence toward FMLA and may, at the minimum, consider workers’ compensation, disability, and FMLA to run concurrently. When the 12-week FMLA leave is used up, the employee must look to the state workers’ compensation statute or the ADA for protection or relief.

While these rulings appear to favor employers, many companies do not meet the requirements set by law to terminate for excessive absenteeism. Remember, even if you are terminated, you are still entitled to all the rights and benefits under the Workers’ Compensation Act, including: weekly disability benefits (TTD) while unable to work your regular job, payment of your medical bills, vocational rehabilitation if you are unable to return to full-duty work, and a lump-sum settlement or award for the injury itself. Understand your rights and receive just compensation for your injuries. Contact STYKA & STYKA, LLC at 312-357- 8000 after any work-related injury.

In a landmark decision supporting employers, the Illinois Appellate Court ruled that unless overtime hours are a required part of employment, they may not be calculated into the average weekly wage for worker’s compensation purposes.

On top of his 1200 regular hours, an Airborn Express driver totalled 538.7 extra hours of work over a 32-week period. His overtime included finishing his own routes and helping on other routes. His seniority granted him his pick of overtime. Under previous worker compensation law, these regular and consistent overtime hours would be calculated into the driver’s average weekly wage. On appeal, the Appellate Court ruled that the overtime hours are to be excluded from the calculation of average weekly wage unless the overtime is mandatory.

All Overtime is Affected

Under this new ruling, everyone’s overtime is affected. However, if overtime is mandatory to your position, it is important to keep track of any extra hours you are required to work. Mandatory overtime may still be calculated as part of your average weekly wages for worker’s compensation. Your extra hours may be considered mandatory if you cannot leave for the day until your job is finished. For example, until the next shift reports to work, most nurses cannot leave their patients for the day. Concrete truck drivers who can’t stop shifts until all concrete is disbursed—or it will harden in the truck—and delivery people who must work overtime to finish all the deliveries on their routes are further examples of mandatory overtime.

Injuries from Treatment Are Covered

Ruling in favor of workers, in Newbold v. S-P LLC, the Illinois Workers’ Compensation Commission made it clear that injuries suffered due to the treatment or rehabilitation of an injury covered by worker’s compensation must also be covered.

Report Work Injuries to a Manager

Finally, failure to provide timely notice to a supervisor or manager following a work-related accident cost an Illinois truck driver his worker’s compensation. Notice of your injury only to a co-worker is not sufficient under the law.

While by law, you have 45 days to report an accident, in reality, it is best to always report any work injury to your supervisor or manager immediately after the incident occurs so the employer cannot deny it happened at work.

In Maxit, Inc., v. Van Cleve, 2008, an employee sustained work-related injuries as a result of an auto accident and filed a workers’ compensation claim and a claim under the employer’s underinsured motorist (UIM) policy. The UIM claim was settled for $800,000 and a release was signed by the employee and his wife. Terms in the release stated the employee released any and all claims arising from the accident.

One year after the release was signed, the employee and employer reached a settlement to resolve the workers’ compensation case for $200,000. But the employer then filed a complaint against the employee, alleging a breach of the release terms and claiming workers’ compensation fell under the release he signed when settling the UIM claim. The employee filed a counterclaim stating that the employer fraudulently induced him to settle the workers’ compensation claim for $200,000. Both filed motions for summary judgment.

This case worked its way up to the Illinois Supreme Court. The employer argued that the language of the release included in the UIM settlement, which used the phrase “any and all claims,” was clear, unambiguous and applied to the workers’ compensation claim. The employee argued the release specified only the UIM policy and released only claims in conjunction with that policy.

The Court agreed there was some ambiguity in the release as to whether the parties intended to release further claims against only the UIM policy or meant to include the workers’ compensation claim as well. The Court did not have to answer that question because it found that the Illinois Workers’ Compensation Act resolved the case. The relevant section states in part:

“No employee . . . shall have power to waive any of the provisions of this Act in regard to the amount of compensation which may be payable to such employee . . . except after approval by the Commission and any employer . . . who shall enter into any payment purporting to compromise or settle the compensation rights of an employee . . . without first obtaining the approval of the Illinois Workers’ Compensation Commission (WCC) . . . shall be barred from raising the defense of limitations in any proceedings subsequently brought by such employee.”

Because the release was never approved by the WCC, the court rejected the employer’s argument that this was a breach of contract case that had nothing to do with the Act. The employer argued that the requirement to abandon the claim for benefits was not a waiver of rights under the Act but a contractual obligation agreed to in the release. The court found this to be a distinction without any difference. The language of the Act is clear and states that no settlement purporting to settle claims under the Act can be effective unless it is approved by the WCC.

The Court also rejected the employer’s argument that a previous appellate court’s ruling allowed a double recovery. The Court’s opinion noted the employer did not have workers’ compensation coverage for the accident.

From retail workers in the big box stores and the local corner flower shop to non-exempt employees in cubicles, hourly workers are the backbone of our economy.

Few hourly retail workers or non-exempt office staff are protected by union benefits, but they do have rights under the Fair Labor Standards Act (FLSA). However, many employees are frequently victims of FLSA infractions. As the economy continues to struggle and profit margins continue to shrink, these violations may increase. Whether you are an hourly retail worker or a non-exempt office worker, you should be familiar with the your rights under the FLSA.

Overtime Pay

The FLSA requires your employer to pay you overtime (OT) pay at the rate of 1.5 times your regular rate if you work more than 40 hours in a work week. Most employees qualify to receive overtime pay. Some employers try to avoid paying OT by using one of these common tactics:

• Telling you that you are not entitled to overtime because you are salaried, even though you are non-exempt from OT.
• Not paying you OT if you are making less than $455 in a 40 hour work week.
• By splitting up OT hours during a biweekly pay period. For example, if you work 50 hours in one week and 30 hours in the next week of the pay period, you are entitled to OT for the 10 extra hours worked in the first week. It doesn’t matter that you are paid bi-weekly.
  

Lunch Breaks

Meal breaks and work breaks are determined by state law. In Illinois, all non-union hourly and non-exempt employees are entitled to one uninterrupted 20 minute meal break per 7-1/2 hour continuous work day, which must be given no later than five hours after an employee begins work.

Many employers illegally interrupt a meal break with work requests or pressure employees to work off-the-clock through their meal breaks. In 2005, a California jury awarded $172 million to more than 100,000 current and former Wal-Mart workers who were denied lunch breaks or were asked to clock in before their breaks were over.

Illinois has no law for any other break during a 7-1/2 hour work period.

A Day to Rest

Unlike corporate non-exempt employees whose work weeks are usually Monday through Friday, retail workers often work both weekend days. However, through the One Day Rest in Seven Act, all Illinois workers are guaranteed 24 consecutive hours off of work during a 7-day calendar week.

Everyone—especially those who work outdoors or in poorly cooled environments—should know both the signs of heat-related illnesses (also known as Heat Stroke and Heat Exhaustion) and steps to prevent it.

Preventing Heat Illness in Workers

Preventing heat illness on the job can be difficult. Any employee exposed to heat and high humidity, who works outdoors, performs heavy work tasks, or wears bulking protective clothing and equipment is at great risk for heat exhaustion and potentially fatal heat stroke. Workers who have not built up a tolerance to hot conditions are also at an increased risk for heat sickness.

Three simple words can help prevent heat-related illnesses: Water, Rest & Shade.

Understanding the challenges facing these workers to successfully obtain those three critical factors, OSHA has rolled out a thorough outreach campaign to raise awareness among workers and employers about the hazards of working in hot weather. OSHA’s program emphasizes the importance of drinking water often, taking breaks, and limiting time in the heat to help prevent heat illness. Employers should include these prevention steps in worksite training and plans.

Employers and workers are urged to understand the signs and symptoms heat illness, to report any signs in themselves or co-workers, and to plan for heat emergencies at the job site.

The department’s heat illness campaign includes training resources for employers and educational factsheets for workers. Through a partnership with NOAA Weather, OSHA also has a Heat Safety Tool cell phone app for Android and iPhones that gives workers the temperature, heat index, precautions, and risk levels at their locations.

Signs of Heat Illness

During hot weather—especially paired with Chicago’s high humidity levels—sweating just isn’t enough to cool your body. Your temperature can rise to dangerous levels and result in a heat illness. The most serious heat illnesses are heat exhaustion and heat stroke, which can be fatal. Heat stroke can occur suddenly, without any symptoms of heat exhaustion. If a person is experiencing symptoms of heat exhaustion or heat stroke, GET MEDICAL CARE IMMEDIATELY. Any delay in emergency treatment can be fatal.

Heat Exhaustion symptoms include:

• Fatigue and/or Weakness
• Nausea and/or Headaches
• Excessive thirst
• Muscle aches and cramps
• Agitation, Confusion or Anxiety
• Drenching sweats, often accompanied by cold, clammy skin
• Slowed or weakened heartbeat
• Dizziness or Fainting

Heat stroke symptoms are very similar to Heat Exhaustion but important differences may include:

• Vomiting
• Delirium
• Loss of consciousness
• Decreased sweating
• Hot, flushed, dry skin
• Rapid heart rate
• Shortness of breath
• Decreased urination
• Fever
• Convulsions

If you are treated or hospitalized for a work-related heat illness, contact Styka & Styka to learn about your worker’s compensation rights.

Access the OSHA Campaign at www.osha.gov/SLTC/heatillness