Keefe, Campbell & Associates, LLC

Editor’s comment: We were asked this important question by one of our clients and we want to provide a detailed response for all of our readers. The short answer is yes. We first point out it is not illegal for anyone to verify a social security number to determine whether someone is using a correct and accurate SSN or social security number. By making the statement “not illegal,” we point out there is no law, rule, ordinance or guideline that renders verification illegal—what isn’t illegal is therefore legal.

Why would an insurance carrier/TPA want to verify a social security number? Well, it is becoming more and more common to learn that an injured worker is not legally in the country. Estimates vary but in a country of about 300 million people with a total workforce of about 154 million, there are approximately 12 million illegal workers or slightly less than one in every ten workers.

If you are not aware of the ruling, in Hoffman Plastics v. NLRB, the U.S. Supreme Court clearly stated it was a violation of federal law to knowingly apply for work as an illegal alien, just as it is illegal to knowingly hire an illegal alien. We assure our readers, the federal authorities are very gradually getting more aggressive about actually enforcing this federal law.

But why is the Supreme Court ruling important at the IWCC? Well, they are a government agency—regardless of their political views one way or the other, the Commission won’t knowingly violate federal law nor will they openly require an Illinois employer to violate U.S. law. This is critically important in the biggest of Illinois workers’ compensation claims—wage loss differential and total and permanent disability. In both such claims, the injured worker’s employability following recovery from injury is vitally important. For example, if an injured worker has a heavy position; say a job that requires lifting up to 75 pounds on a regular basis and they suffer an injury creating a permanent 25-pound lifting restriction, the ability of the employee to find a new position that pays him/her about what they made prior to injury is the measure of either wage loss differential or what is sometimes called “odd-lot” total and permanent disability status.

If the employer learns the employee cannot legally be hired in the U.S. due to illegal alien status, it becomes difficult if not impossible for the employee to show what they would have been able to make in a reasonably stable labor market around their home because there is no “labor market” for someone who cannot legally work where they are living on an illegal basis. We caution our readers we have heard of a decision by an Arbitrator where he/she refused to require vocational counseling be provided for an illegal alien. We have not yet seen a decision by the Commission or reviewing courts on the issue. We certainly hope the Commission will never consider “wage loss differential” based upon what an illegal worker can earn in a country outside the United States.

Either way, an inquiry to verify a social security number is legal and a valid concern for any Illinois employer along with its insurance carrier/TPA at the time of any workers’ compensation injury. To verify a social security number, go to http://www.socialsecurity.gov/employer/ssnv.htm. The Social Security Administration requires you to register and indicates you can:

Verify up to 10 names and SSNs (per screen) online and receive immediate results.

Upload overnight files of up to 250,000 names and SSNs and usually receive results the next government business day.

The second option is ideal if you want to verify an entire payroll database or if you hire a large number of workers at a time.

We invite your thoughts and comments on the content of this article. If any of our readers is aware of any proscription against checking a social security number as part of the workers’ compensation process, please send a reply.

Editor’s comment: We have told all of our readers to cover this important issue in writing whenever there is a loaning/borrowing situation. Make sure you do so before the temporary worker crosses your threshold the first day of work. If your company hires a temporary worker and the worker gets injured, the Illinois rule on who owes the money for WC benefits is easy. In short, both companies are liable for benefits. However, the Act makes one employer primarily liable and the other secondarily liable—they only pay if the first doesn’t.

The Act says:

Where an employer operating under and subject to the provisions of this Act loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the employment of such borrowing employer and where such borrowing employer does not provide or pay the benefits or payments due such injured employee, such loaning employer is liable to provide or pay all benefits or payments due such employee under this Act and as to such employee the liability of such loaning and borrowing employers is joint and several, provided that such loaning employer is in the absence of agreement to the contrary entitled to receive from such borrowing employer full reimbursement for all sums paid or incurred pursuant to this paragraph together with reasonable attorneys’ fees and expenses in any hearings before the Illinois Workers’ Compensation Commission or in any action to secure such reimbursement. Where any benefit is provided or paid by such loaning employer the employee has the duty of rendering reasonable cooperation in any hearings, trials or proceedings in the case, including such proceedings for reimbursement.

In traditional staffing situations, the staffing agency is the “loaning company.” The “borrowing” company is the account of the staffing agency that needs and uses temporary help for whatever purpose. Primary liability rests with the company at which the temporary worker was injured or the borrowing company; unless there was an agreement to the contrary that placed primary responsibility on the company “loaning” the temporary employee(s).

In Surestaff, Inc. v. Open Kitchens, Inc., (No. 1-06-3225 July 25, 2008), a worker who was placed at Defendant Open Kitchens by Plaintiff Surestaff passed away due to an undisputed work-related accident. About ¼ of a million dollars in death benefits were paid to the widow and dependents by Surestaff, the staffing company.

Surestaff then brought a civil complaint against its own account, claiming there was an oral agreement that Open Kitchens would be primarily liable for any workers’ compensation benefits owed. Trust us; such trials are going to always be a “he said, she said” type of affair. It will be completely up the jury to believe one side or the other with a lot of money in the balance. As we have told all of you in the past, the very best evidence of such an agreement should be in the contract between the staffing company and its account—if you have such a written agreement, it saves time and avoids confusion and unnecessary litigation.

In the trial of the complaint seeking reimbursement by Surestaff as the lending employer against Defendant Open Kitchens as the borrowing employer for reimbursement for workers’ compensation payments which it paid for death of temporary worker, the Appellate Court, First District ruled it was not reversible error for Plaintiff’s counsel to remark, during their opening statement that Defendant Open Kitchens might call a witness, whom Defendant had demanded be available for trial in Rule 237 notice. As you might imagine the witness didn’t show and the remark indicating the witness “might” show wasn’t held to mislead the jury.

Further, the Appellate Court ruled the trial court properly instructed the jury that a borrowing employer had the burden of proving there was an oral or written agreement waiving the staffing agency’s right of reimbursement pursuant to Section 1 of the Illinois Workers’ Compensation Act.

You should also be aware the Act provides for the party successfully claiming there was a right of reimbursement to its attorney’s fees and costs both at the IWCC and in the civil action to prove the right of recovery. In this case, the Appellate Court ruled the trial court was not required to submit question of attorney’s fees to jury; but could enter the attorney award after verdict pursuant to Act. This provision cost Defendant Open Kitchens another $69,390.45.

All of it could have been avoided if there had be a clear written agreement between the staffing agency and its account. If you use a staffing agency and you aren’t sure who is responsible for workers’ compensation benefits in the event of an injury to a staffer, please send us a reply.