Employer-Employee Relationship Flashcards
Who is an “employee” under the IL Workers Compensation Act?
An employee is every person in the service of another, under any form of contract for hire (written or oral & express or implied).
What are the two main elements required for an individual to be an “employee” under the IL Workers Compensation Act?
1) Service of another; and 2) contract for hire.
What kinds of contracts for hire may an employee be hired under in order to qualify as an “employee” under the IL Workers Compensation Act?
1) Express or implied, and 2) oral or written. Absent a contract for hire, an individual cannot be an “employee” under the Act and must pursue general tort or contract remedies against the alleged employer.
What is the “Tooley” expected compensation test?
Under the Tooley expected compensation test, a true employer-employee relationship does not exist if there is no payment or expected compensation received by the claimant.
Can a business owner and/or operator be an “employee” under the IL Workers Compensation Act?
No; business owners and operators are generally “employers” under the Act and therefore cannot simultaneously be both persons under the Act.
Under the “Tooley expected compensation” test, what forms of compensation are acceptable?
Under the Tooley expected compensation test, any form of compensation, actual or expected, satisfies the test. So long as there is actual or expected consideration in exchange for the alleged “employee”’s services, the test is satisfied.
Is there an exception to the general rule that business owners and operators cannot generally be considered as “employees” for IL Workers Compensation Act purposes?
Yes; if a business owner or operator “leaves” or vacates their official capacities to serve the business in another way, the dual capacity doctrine may apply, thus allowing the individual to qualify as an “employee.”
When does the dual capacity doctrine play a role in IL Work Comp cases?
The dual capacity doctrine may apply if the business owner or operator’s new role generates obligations unrelated to those obligations already faced by such persons within their official capacities as business owners or operators.
Who is an “employer” under the IL Work Comp Act?
Most businesses, and state employers, qualify as “employers” under the Act.
What is the Cowgill relation to IL employer test?
To be an “employer” under the Act, there must be a relation between the alleged employer and the state of Illinois, which can be satisfied in 1 of 3 ways:
1) the claimant’s employment contract was finalized in IL;
2) the claimant’s alleged accident occurred in IL; OR
3) the claimant’s principal place of employment was located within IL.
Can a private business still be an “employer” under the IL Work Comp Act without statutorily qualifying?
Yes; an employer may elect coverage under the Act as an “employer.” Generally done to avoid tort liability in such events.
Is whether an employee-employer relationship exists a question of law or fact?
Question of fact.
What is the appellate standard of review from the IL Work Comp Board determination as to whether an employer-employee relationship exists?
Manifest weight of the evidence; strong deference.
What are the Sankey Brothers (3d Dist. 1988) 7-factors for whether an employer-employee relationship exists?
1) Employer’s right to control the manner in which the claimant’s work is performed;
2) method of payment;
3) right of the employer to discharge the claimant;
4) skill required for work completed;
5) who provides work equipment, if any;
6) Whether the claimant’s occupation is related to the employer; and
7) whether the employer deducts tax withholdings.
Which employer does IL Work Comp benefits liability fall onto when a “borrowed” employee is injured?
When a “borrowed” employee is involved in a workplace injury, IL Work Comp benefits payment liability falls upon the borrowing employer; who the employee was performing work for at the time of the accident.
When does a “borrowed” employee become the liability of the “borrowing” employer?
A “borrowed” employee becomes the “employee” of the “borrowing” employer for IL Work Comp purposes when the employee is lent for the performance of special work.
What is required of the employee in order for such individual to be considered a “borrowed” employee for IL Work Comp purposes?
An employee must consent, either express or implied, to work for the “borrowing” employer to be considered a “borrowed” employee.
How is a “borrowed” employee’s consent proven?
Consent may be proven by the employee’s express or implied acquiescence to the “borrowing” employer’s direction to perform work.
What are factors to consider in whether an employee consents to work for a borrowing employer?
1) Manner of hire;
2) manner of compensation;
3) nature of the work involved;
4) direction and supervision of the employee’s work; and
5) right of the borrowing employee to discharge.
Is a borrowing employer’s control over the employee, alone, sufficient to constitute a “borrowed employee” relationship?
No; merely establishing that the alleged borrowing employer had control over the claimant is insufficient to establish a borrowed employee relationship.
When is an employer considered a “loaning employer” for IL Work Comp benefits purposes?
An employer is generally considered a “loaning employer” when a substantial part of the entity’s business consists of hiring, procuring, or furnishing employees for other employers and compensating such employees.
(Think temp agencies)
What is the liability of borrowing and loaning employers under the IL Work Comp act regarding benefits payments?
Borrowing employers are liable for compensable injuries incurred by borrowed employees that relate to and arise out of the employee’s employment.
If the borrowing employer fails to sufficiently compensate the borrowed employee, the loaning employer becomes liable for the claimant’s compensation.
Is a loaning employer entitled to compensation from borrowing employers for IL Work Comp benefits paid to borrowed employees?
Yes; if a loaning employer is forced to compensate a borrowed employee, the loaning employer is entitled to reimbursement from the borrowing employer.
What is included in the reimbursement entitled to a loaning employer from a borrowing employer?
In addition to full reimbursement for compensation paid to borrowed claimants, a loaning employer is entitled to full reimbursement for reasonable attorney fees and hearing expenses.
May a loaning and borrowing employer waive the loaning employer’s right to reimbursement?
Yes
Generally, when must an employee give notice to the employer of his injury?
An employee is required to give notice of injury “as soon as practicable”, but no later than within 45 days of its occurrence.
When is an IL Work Comp claim generally barred by the SOL?
Generally, there is a conclusive presumption that failure to give notice of the injury within 45 days prejudices the employer.
+46 days = BARRED
When is a claimant not held to the general 45-day notice rule under the Act’s SOL?
If the claimant is legally disabled, the general 45-day period does not begin to run until a legal guardian is appointed.
Does an employer’s failure to provide legally-required information regarding filing a Work Comp claim have any effect on whether a claimant is generally barred by the Act’s SOL?
No; an employer’s failure to provide or post information regarding the general 45-day notice period, or other related information, does not exempt a claimant from the general 45-day notice requirement.
