Chicago and the state of Illinois as a whole, is home to large numbers of immigrants from around the world. Many seek work in the labor trades- construction and truck driving among them, because the jobs pay well, and don't generally require fluency in English.
The personal injury attorneys at Lipkin & Apter have witnessed a common experience effecting immigrant workers - Latino, Polish, Romanian and others- attempts by the companies they work for to label them as Independent Contractors, rather than employees. We have seen companies go to great lengths to attach this label, even having the worker sign an Independent Contractor document.
The reason some businesses try to classify employees as Independent Contractors is financial; if a worker is an Independent Contractor, the company doesn’t need to provide:
- Workers compensation,
- Health insurance,
- Payroll tax payments, or
- Sick and vacation days
In addition, in the event that a worker injures someone else, as in a car accident, the employing company will not be responsible, significantly reducing its motor vehicle insurance premium. All of this “saved” money goes into the pocket of the company owners. As the individual worker almost never has health or workers compensation insurance for himself, this means that in the event of a work related accident, the injured worker is on his own- no income, no medical insurance. Moreover, there is no compensation for any third parties injured by the workers.
On the other hand, if a worker is found to be an employee, he will be protected under workers compensation law in the event of a work injury, as would any other person injured by that worker while in the course of employment. It is a basic principle of law that companies are
responsible for the negligence of their employees. So does a company calling a worker an Independent Contractor, or even the worker calling himself an Independent Contractor, make him so? Actually, no.
In determining whether an employment relationship exists, Illinois court examine the following factors:
1. Who has the right to control an individual;
2. Who controls the manner in which work is performed;
3. The method of payment;
4. Who has the right to discharge; and
5. Who furnishes the tools, materials and equipment necessary to do the work?
Of these factors, the right to control the work is the single most important factor when determining these cases. Calling someone an Independent Contractor, even if there is a signed document stating such, is a factor given little weight.
In a recent case, the Chicago workers compensation attorneys at Lipkin & Apter represented a Romanian truck driver whose situation illustrates the lengths a company will go to in order to identify a worker as an Independent Contractor.
The facts of the workers compensation case are as follow:
R.K. is a 32 yr old man who was in the US less than a year when he got a job as an over the road tractor-trailer driver. R.K. had very limited ability to speak English when hired, and even less ability to read English. His "interview" for the job consisted mainly of demonstrating he could drive a semi tractor-trailer. Afterwards, he was presented with a document entitled "Independent Contractor Agreement", in English, which he couldn’t read, and was not interpreted for him. The company told him to sign the document, so he did. Three months later, R.K was injured in a serious trucking accident, crushing his leg. Multiple surgeries followed, with R.K's medical bills totaling more than $100,000. He received no company workers compensation benefits.
The initial inquiry by Lipkin & Apter was to take a detailed history of R.K's relationship with the trucking company. We learned that R.K.:
- owned neither the tractors nor trailers ("tools materials and equipment") he drove;
- was paid by the mile;
- had no taxes taken out of his pay;
- was given no benefits;
- drove a vehicle insured by his company, which also maintained the license for the vehicle and Department of Transportation registration;
- drove a vehicle with the company logo on it;
- had a company credit card to use for gas, oil and maintenance;
- was supplied by the company with all deliveries and pick-ups;
- answered to company routing procedures;
- was denied the right to refuse a load, and
- was denied the right to work for other companies.
In short, the company exercised total control over R.K's work, fitting the classic definition of an employer/employee relationship.
As a result, Lipkin & Apter petitioned the Illinois Industrial Commission to have R.K. determined to be an employee, in order to pursue a lawsuit against his company (while an employee is prohibited under Illinois law from suing his employer, an exception exists where the company willfully attempts to breach its duty to provide workers compensation insurance coverage in industries like construction or truck driving).
Confronted with the overwhelming evidence that R.K. was really its employee, and that efforts to treat him as an Independent Contractor were a sham designed only to save it money, the company agreed to the reality of its relationship with R.K. A lawsuit is now pending against the company, seeking very substantial compensation. As a further sanction in this suit, the company will be prohibited from claiming that R.K. in any way caused his injury. This means that proof of the injury will constitute prima facie evidence of negligence by the employer.
For more information on these types of workers compensation cases, in Chicago or throughout the state of Illinois, please contact Lipkin & Apter to schedule a free consultation.