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2018 Employment Law Update

September 2018

By W. Scott Trench

Employment Law Legislative Update

Illinois Governor Bruce Rauner recently signed off on two new legislative amendments of which employers in Illinois should be aware. The first is an amendment to the Illinois Wage Payment and Collection Act, 820 ILCS 260/10, which requires employers to reimburse employees for all necessary expenses incurred which are directly related to services performed for the employer. The second is an amendment to the Nursing Mothers in the Workplace Act, 820 ILCS 115/9.5, under which Illinois employers will now be required to provide nursing mothers with paid breaks to nurse or express breastmilk. These important amendments, and their impact on Illinois employers, are discussed below.

Illinois Wage Payment and Collection Act

The recent amendment to the Illinois Wage Payment and Collection Act, which becomes effective on January 1, 2019, will require Illinois employers to reimburse employees for "all necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer." Under the new law, "necessary expenditures" means "all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer." The employee has 30 days to submit a request for reimbursement with supporting documentation. While most employers reimburse employees for necessary business expenses, this new statute could capture expenses incurred by employees not contemplated by employers such as cell phone data charges for work-related calls and expenses incurred by remote employees for home internet access and related equipment.

Illinois Appellate Court Analyzes the Definition of “Sidewalk” Under the Snow and Ice Removal Act’s Immunity Provision

June 2018

In Hussey v. Chase Manor Condominium Association, et al., (2018) IL App. 1st 170437, the First District Appellate Court reversed the trial court’s ruling that an informal pathway behind a condominium building was a sidewalk under the Snow and Ice Removal Act (“Act”) 745 ILCS 75/2 (West 2012). The appellate court held that the term “sidewalk” is limited to a municipal right-of-way, which is the portion of the public street reserved for pedestrians that abuts private residential property.

Appellate Court Rejects Argument that Workers’ Compensation Lien Should be Extinguished Based on Improper Conduct of Insurer

June 2018

By W. Scott Trench

The Illinois Appellate Court, Fifth District, recently addressed whether a workers’ compensation lien, under 820 ILCS 305/5(b) of the Illinois Workers’ Compensation Act, could be subject to reduction or elimination on equitable grounds due to the conduct of the insurer. In Estate of Rexroad v. Mid-West Truckers Risk Management Association, 2018 IL App(5th) 170342, the Appellate Court rejected an “equitable extinguishment” argument, reaffirming the absolute right of employers and insurers to recover a Section 5(b) lien from the proceeds of any settlement recovered from a third-party tortfeasor.

Second District Appellate Court Overturns Trial Court’s de minimis Finding

June 2018

By Andrew R. Makauskas

Bartkowiak v. City of Aurora, 2018 Ill. App. (2d) 170406, arose out of a fall at the parking lot of the Route 59 train station in Naperville. The plaintiff caught her toe in a depression in a pavement seam in a driving aisle as she crossed the aisle to get to her car. She alleged the defendant failed to maintain the asphalt surface of the parking lot in a reasonably safe condition. She also contended the defendant failed to provide adequate artificial lighting in the parking lot so that pedestrians could see potential defects that existed therein (the latter allegation was eventually dropped, as experts from both sides agreed that lighting was not an issue).

ILLINOIS APPELLATE COURT AFFIRMS TRANSFER BASED ON FORUM NON CONVENIENS DESPITE DEFENDANTS’ BUSINESS PRESENCE IN COOK COUNTY

April 2018

By Jeffrey F. Clement

In Schuster v. Richards, et al., 2018 IL App (1st) 171558, the First District Appellate Court affirmed the trial court’s ruling transferring the case from Cook County to Kane County under the doctrine of forum non conveniens. In Illinois, the doctrine of forum non conveniens allows a trial court, which otherwise has proper jurisdiction over a cause, to transfer it to another forum if the other forum can better serve the convenience of the parties and the ends of justice.

In the Schuster case, the plaintiff alleged, while a pedestrian, she was struck by defendant Richards’ automobile while Richards was driving in the course of her employment. Plaintiff sued Richards, Richards’ employer and the lessor of the automobile. The employer and lessor (hereinafter the “corporate defendants”) were sued solely under a theory of respondeat superior/vicarious liability. In other words, the plaintiff alleged Richards was an agent of the corporate defendants and that, as principal, they were responsible for Richards’ negligent acts and omissions. There were no allegations of direct negligence against the corporate defendants.

FIRST DISTRICT DENIES COVERAGE TO AN ADDITIONAL INSURED DUE TO UNFORGIVING EMPLOYEE EXCLUSION

April 2018

By Courtney Morso Driscoll

In Vivify Construction, LLC v. Nautilus Insurance Company, 2018 IL App (1st) 170192, the First District Appellate Court found an employee exclusion within the subcontractor’s policy barred coverage to the general contractor for a personal injury lawsuit even though the general contractor was an additional insured under that policy.

In Vivify, a construction worker, Pablo Vieyra, was injured when he fell from a second story scaffold. Vierya was employed by Victoria Metal Processor (“Victoria”), and the general contractor was Vivify Construction, LLC (“Vivify”). Vieyra filed a lawsuit against Vivify for failing to properly supervise the work site. Vivify then filed a third-party complaint against Victoria, claiming Victoria’s negligence led to Vieyra’s injury.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
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