Synopsis: If You Run Employee Background/Credit Checks, Read This! Illinois Appellate Court in Ohle v. Neiman Marcus Group ruled IL employers cannot use credit checks to deny employment to sales associates job applicants. Analysis by Lilia Picazo, J.D.

Editor’s Comment: We are not fans of courts telling businesses how to operate and protect themselves from scammers. On September 27, 2016, the Illinois First District Appellate Court reversed the Circuit Court's ruling in favor of Defendant Neiman Marcus. The Court found Neiman Marcus violated Illinois’ Employee Credit Privacy Act when it denied Plaintiff Ohle a job in 2012 after running a credit check, which revealed several civil judgments against her and accounts in collection.

In 2012, Catherine Ohle applied for and was denied a “Dress Collections Sales Associate” position at Neiman Marcus after failing a credit check. Ohle filed suit arguing the use of credit checks violated the Illinois Employee Credit Privacy Act. This Act “prohibits an employer from inquiring into a potential employee’s credit history and prohibits an employer from refusing to hire an applicant or discriminating against the applicant because of his or her credit history.” 820 ILCS 70/10(a) (West 2012).

Neiman Marcus admitted Ohle applied for, was interviewed, and offered the sales associate position contingent upon completing a successful credit and background check. Neiman Marcus admitted the failed credit check was the reason it did not hire Ohle or other potential sales associates. Plaintiff sued them for this decision. Neiman Marcus moved for summary judgment arguing there were no genuine disputes of any material facts. Neiman Marcus claimed the “access” exemption to the Act allowed their action and they denied they engaged in unlawful practices alleging a satisfactory credit check was a “bona fide occupational requirement” for a sales associate position who handled money. It argued the sales associate position had “access” to personal or confidential customer information by accepting credit application and entering the information into a POS register.

Cook County Circuit Court Judge Kathleen Kennedy agreed the sales associate position fell within the “access” exemption and granted summary judgment in favor of Defendant Neiman Marcus. The IL Appellate Court disagreed noting the “access” exemption was too broadly interpreted. A ruling in favor of Neiman Marcus would exempt all retail sales employees from the protections of the Act intended by the legislatures. The Court reasoned sales associates were “neither managers nor select few employees” entrusted by Neiman Marcus to handle credit card applications. The court found sales associates were instructed to place credit card applications in a locked drawer for handling at a later time by a cash credit office.

The Appellate Court panel wrote “… most stores, including retail stores like defendant’s would be exempt and employers would be allowed to deny employment to citizens who face ‘financial hardships that are often unpreventable’ due to the ‘harshest economic we’ve seen in decades’ and who are not able to obtain employment despite ‘bad credit’” in situations such as Ohle’s.

Neiman Marcus argued two additional exemptions:

(1) sales associates had unsupervised access to cash and merchandise valued at over $2500, and

(2) sales associates had signatory power over business assets of $100 when issuing gift cards or refunds over $100.

The Court found sales associates did not have unsupervised access to merchandise and cash valued over $2500 because associates were supervised by managers and monitored by surveillance. The Court further found sales associates performed regular job duties when issuing gift card or refunds over $100. The Court found the duties did not arise to a signatory power over Neiman Marcus’s assets, as they did not have access to the department store’s bank accounts or authority issue checks on behalf of the store.

The Appellate Court remanded the case back to the Cook County Circuit Court for trial.

We consider this an anti-business decision and all HR managers should be aware of it. This ruling is especially important for our clients and other business entities that may use credit checks to deny employment. The Appellate Court’s ruling signifies that business entities cannot use a single credit check metric to deny employment to an applicant. While one can argue a credit check reflects an applicant’s level of trustworthiness, the Appellate Court’s ruling narrows the use of the credit check to higher level positions with access to sensitive business assets.

The research and writing of this article was performed by Lilia Picazo, JD. Lilia can be reached at lpicazo@keefe-law.com for any questions regarding workers’ compensation and employment law.

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Synopsis: Answers from Last Week’s Article on IL WC--Always Consult with Keefe, Campbell, Biery & Associates on Four Types of Claims and More!! Check out the correct answers below.

Editor’s comment: We have recently reviewed a number of claims that were previously handled by other firms, including some “house” defense counsel operations. What we saw were lots of mistakes, some potentially expensive. We did our best to correct issues and point the claims in the right direction to rapid closure, sometimes finding ways to save lots of money.

The four types of challenging WC claims are

· Death Claims;

· Amputation Claims;

· Total and Permanent Disability Claims and

· Claims that Involve MSA’s or Medicare Set-Asides.

Here are Ten Simple Questions you might want to ask your existing defense firm about these challenging claims to see if they know what they are talking about. They shouldn’t have to research these sorts of issues.

1. In an IL death claim, if the only survivor is a 15 year-old child, can the weekly death benefits be paid to the child? No, children/minors have no standing at the law; the money would have to be paid to the child’s guardian.

2. In an IL amputation claim, can you safely accept the claim and pay weekly permanency benefits? No, once you are aware of the fact of the amputation, you have to pay the full amount to the injured worker all at once. If you do anything else, there is a high risk of penalties and attorney’s fees in an amount as much as 70% of what is owed. We don’t agree the IL WC Act says this but the Appellate Court, WC Division says that is the law.

3. In a total and permanent disability claim in this state, can the employee receive benefits from a source other than the employer and its insurance carrier? Yes, the Rate Adjustment Fund. If you need more information on the RAF, send a reply.

4. How many “types” of total and permanent disability claims are there in Illinois Work Comp? There are three—does your defense attorney know what they are?

5. Can an injured worker adjudicated to be totally and permanently disabled also work and earn additional money? Yes, the IL Courts ruled a statutory total and permanent disability claimant can work and make money while also getting a significant tax-free weekly pay check for life.

6. If you are settling a claim with an MSA, can there be a reversionary clause allowing the amount “set-aside” to be returned to the employer or its carrier? Yes.

7. Under what circumstances can a weekly IL death benefit be payable to a survivor for more than 25 years? If there is a child who is physically or mentally disabled, the benefit can be due while the disability continues, even if that is more than 25 years.

8. What is the purpose of a “death prove-up” in an IL death claim? To insure the employer/insurance carrier is paying the right widow/widower, children or dependents. If you don’t do a prove-up, you might have to double-pay a later arriving claimant.

9. If someone makes $200 a week and they suffer an accident today that results in total and permanent disability, what is their minimum weekly T&P rate? $535.79!!

10. What is the minimum combined death benefit payable to a widow-widower who survives 25 years after their decedent? $535.79 times 52 weeks in a year times 25 years or $696,527.00!!

We are confident few defense lawyers know the answers to what we feel are simple and basic questions. We have several adjunct professors of workers comp law on staff to quickly answer your biggest concerns. We also have Shawn R. Biery and Matthew Ignoffo who are MSA-certified and know the law on Medicare Set-Asides backwards and forwards.

We confirm for all of our readers, if you are dealing with a complex claims, such as the ones above or any other complex WC issue in Illinois, Indiana, Wisconsin, Iowa or Michigan, send us your concerns and we will typically respond with research and the answers you need. We don’t charge for such work unless and until you assign us the file.

Give us a try! We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: What Is Pittsburgh Biomechanics and Would They Help In Your Next WC or GL Defense?

Editor’s comment: Biomechanics is the application of the principles of engineering and laws of physics to the living systems, such as the human body. The human injuries provide a basis for a biomechanical reconstruction that along with the mechanical reconstruction allows the determination of probable accident scenarios.

Biomechanists determine the mechanism of the injury and the forces involved, and relate them to the tolerance data and everyday loads to verify whether a claimed injury is consistent with a specific set of actions or exposure to a specific accident environment.

Who/What Is Pittsburgh Biomechanics?

Pittsburgh Biomechanics is a [regional/national] consulting firm that provides its clients with the knowledge and expertise they need in cases involving human injury as a result of an incident/accident. They use engineering and biomedical sciences to explore the cause, nature, and severity of injuries.

Their Role in WC and GL Claims Defense of Your Toughest Claims

They provide their clients with a biomechanical investigation, which includes the basic technical background that they need to consider when involved in accident-related cases, such as low-speed motor vehicle collisions, slip-and-falls, occupational injuries, etc. Their engineers help the clients, including attorneys practicing personal injury law, understand the role that a biomechanical analysis can play in a wide range of accident scenarios.

Top Ten Reasons to Consider/Use Pittsburgh Biomechanics?

Pittsburgh Biomechanics helped pioneer the science!
They’re equipped with tools like state of the art research equipment, proprietary software, 3D Analysis and visual communication that helps tell a powerful, potentially game changing story.
They have extraordinary experience of 77 years for all professionals combined
Pittsburgh Biomechanics includes a team of two MDs, eight PhDs, three Masters of Science and two RNs.
They produce remarkable results. For example, they are 39-1 in trials using their expert testimony, and 95% of the 1100 cases they’ve analyzed have resulted in denials or compromise settlements that changed the face of those cases.
They turn assignments as quickly as needed and can be available 24/7 for consultation.
Their rates are extremely competitive
They are growing and adding new, Fortune 500 self-insured and insurance carrier clients.
Pittsburgh Biomechanics has the strongest possible client focus – they will understand client objectives and customize their approach to meet your needs
They possess the strongest possible credibility. Their reputation is their most valuable asset.

Management by Top BioScientists

The company is run by Dr. Kevin Toosi, M.D., PhD. He is a faculty member at Department of Bioengineering at the University of Pittsburgh where he received his PhD in Biomechanics Track. He conducts clinical research to understand the mechanisms through which repetitive strain injuries of nerves and tendons occur and investigate the acute and chronic changes in the musculoskeletal systems by collecting and analyzing biomechanical data. His primary research interests include studying median nerve injuries, such as carpal tunnel syndrome, and investigating the relationship between those injuries and biomechanical factors affecting wrist structure and function.

As the Principal Scientist at Pittsburgh Biomechanics, he uses engineering and medical sciences to explore the cause, nature, and severity of accidental injuries. As a biomechanist, he determines the mechanism of the injury and the forces involved, and relate them to the tolerance data and everyday loads to verify whether a claimed injury is consistent with a specific set of actions or exposure to a specific accident environment. He has more than seventeen years of experience in the areas of clinical medicine, basic and clinical research, mechanics of soft tissues, human injury biomechanics, injury causation, and occupant kinematics in motor vehicle accidents.

To retain them as experts in your next claim, go to their website at http://www.pghbiomechanics.com/ or call 412-221-1671

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: You Can Vote Today!!!

Editor’s comment: Voting is one of our most fundamental rights as Americans. It is the cornerstone of our democracy and our civic duty. Early voting is officially underway in Illinois. You can vote early using a mail-in ballot or at a local polling place.

Some people think their vote doesn’t matter. That’s just not true. Elections - especially those at the state and local levels - are often decided by just a few hundred votes. Your vote matters.

Get out there and VOTE!!!

KCBA Blog

10-3-2016; Use Caution Using Credit Checks in Hiring by Lilia Picazo; Answers from Last Week's IL WC Article; Consider Pittsburg Biomechanics in Your Next Claim; Vote NOW! and much more