Synopsis: The Illinois State Republican Party Died Last Week and is Deader’n a Doornail—What Does It Mean to IL WC?

Editor’s comment: One goal in writing this KCB&A Update for our readers is to remain relatively impartial from the perspective of political parties and politics. We represent government bodies on both sides of the political matrix. Our focus is saving such governments and businesses money in the WC arena. However, we have to call ‘em as we see ‘em, folks. In our view, the evidence is irrefutable. While we aren’t happy at all to see the complete lack of options or the protections a two-party system brings, sometimes you may be better served to face reality and try to adjust.

Chicago has had One Political Party for Years; Now the Whole State of Illinois Does

In taking a bipartisan stance on political issues, we are certain Illinois lost its two-party political situation last week. Most folks know the City of Chicago basically lost any vestige of a two-party system when a crooked Republican political boss named Big Bill Thompson was soundly routed by then-mayoral candidate Anton Cermak. That happened 81 years ago in 1931. Thereafter, Richard J. and Richard M. Daley ascended to the post of Chicago mayor and held the post for about ½ of the 80 or so years of Democrat supremacy in Chicago. Their ascendancy indicates one clear facet or failing of Chicago-style politics that impacts our whole state—our lack of term limits for political posts. Once in power, a smart Illinois politician uses patronage, nepotism, the ability to control government contracts, the capacity to appoint friends/supporters to cushy jobs and control of workers’ compensation/government disability benefits to become entrenched. Once embedded, they can hold the job as long as they like. Please don’t expect the Democrats to bring term limits in to hamstring their potentially unending claim to dominion over this state.

From our perspective, the political disaster that befell the Republican party in Chicago generations ago has expanded to a statewide dilemma—in our view, the Illinois Republican Party is smoked, finis, done, over and out. The Illinois “Blue” team hasn’t just won another election, they have thrown the other “Red” side out with the bathwater. How did we get to this point? Why are we sure of this relatively shocking news?

Well, IL Democrats now completely dominate within numerous voting blocs. It doesn’t take a rocket scientist to notice there were no African-American or Latino candidates slated by the Illinois Republican party and the party did very little to actively woo such voters. Black and Latino voters in Illinois came out and voted overwhelming for Democratic candidates. In a similar vein, many Illinois women voters have long been upset to consider a State Republican party with an open focus on controlling abortion, even in cases of rape and incest. Women voters were stunned to hear impossibly stupid comments on such topics from Republican candidates in other states and vented their dissatisfaction at our polling places. In our view, when Republicans can’t figure out a workable strategy on such an issue that will make women voters happy, voters will figure it out for you. A vast majority of IL women voters, particularly among young women voted Blue. We don’t see that changing any time soon.

The last major group we feel everyone is skipping are “government ghost payrollers.” As we have advised our readers in the past, this group is

· Almost 800,000 eligible Illinois voters receiving or that will be eligible to receive generous government pensions from the five different poorly funded and almost-broke Illinois state pension plans;

· Thousands of voters who are receiving lifetime “odd-lot” total and permanent disability benefits from State or City of Chicago governments and their impossibly poorly run WC systems;

· Thousands of former police and firefighters who are now on lifetime line-of-duty disability pensions for things like runny noses where they can have jobs, run businesses and make money but are still considered “disabled” because their condition no longer allows them to be a police officer or firefighter.

In our view, hundreds of thousands of government ghost payrollers are supporting, donating and voting for one issue—“keep-my-pension/disability/WC-pay-in-place-and-growing.” Political observers are still laughing about Prop. 49, which would have provided such state and local pensions couldn’t be raised without a 3/5’s vote. The proposition failed miserably. We feel this phenomenon demonstrates the power of this heretofore unknown voting bloc. It is our view “government ghost payrollers” raised a campaign fund of about $500,000 and ran a major media blitz designed to let all of us know they don’t want limits on their current and future “rights” for the major taxpayer-paid benefit they receive. IL state pensions go up 3% each year. “Odd-lot” T&P WC benefits get business-funded COLA increases. Don’t expect either rising cost to slow without a major battle or three.

The State of Illinois has been “Gerrymandered” and Will Stay That Way for Ten More Years, Further Blocking a Republican Comeback

Gerrymandering is a practice that locks in a political advantage for a particular party or group by manipulating voting boundaries to create slanted, partisan or incumbent-protected districts. On top of getting slaughtered in double and triple-digits in many defined voting blocs, as we outline above, Illinois State Republicans will struggle with another monster mess for the next ten years—IL State Democrats “took advantage of their advantage” and just redistricted the entire state in their image and likeness. They bolstered Democratic strongholds and combined Republican districts to force Republicans to fight and oust other Republicans. This obvious political manipulation of the state’s election boundaries was attacked in IL state courts. Guess what, IL state judges/justices who have to run for election in the same districts quickly and quietly approved the distorted redistricting that helps them and their supporters stay entrenched. Another aspect of gerrymandering is voters start seeing little chance of their candidates winning and stop voting, making the party in power even stronger. We assure our readers this gerrymandering will insure the State Republican party is decimated and powerless in almost all areas of the state for at least the next decade.

So Where Is Illinois Going? How Will This One-Party Political System Affect Workers’ Comp Claims?

At present, Illinois now has veto-proof Democratic majorities in the state House and Senate. If you aren’t sure, Democratic Governor Pat Quinn just became a figurehead—he can’t stop anything in the legislature as they have the power to overrule him if he doesn’t support a bill. We are sure Senate President John Cullerton and House Speaker Mike Madigan are running things and no one will be able to stop them other than via old age or retirement. Both of them are active, wealthy and healthy men who worked hard to get where they are and appear to want to keep their posts and unsurpassed power.

We are predicting you will see one to three new gambling casinos in Chicago, as Mayor Rahm Emanuel sorely needs the cash for his underfunded City payroll and public school system. The only one who was blocking gambling expansion was Governor Quinn—all he can do now is go on the television and whine about it; he has no power to stop it. The veto session that is starting November 27th has lots of “lame duck” legislators on their last laps; odd and unexpected legislation may happen because outgoing legislators have nothing to lose; they are leaving in January no matter what. Often during lame duck sessions, controversial bills are passed. During 2011’s lame duck session the IL General Assembly passed a 67% income tax hike – the largest tax increase in Illinois history. It is possible an additional tax increase may be passed and all wealthy Illinois citizens are worried state legislators may “occupy” their wallets and savings in the same direction our President is taking to turn around his ballooning and massive federal deficit.

On the workers’ comp front, everyone on the defense side has our fingers crossed Illinois WC reform and progress in cutting costs will stay at the same levels. About two years ago, Senate President Cullerton took an across-the-board review of workers’ comp costs and supported the 2011 reforms that unquestionably trimmed rising costs. As one prominent Plaintiff/Petitioner lawyer put it, “everyone got a haircut” and WC benefits were similarly clipped. The Arbitrators and Commissioners are now very, very professional and most of the defense bar will affirm they are not issuing shocking, pro-Plaintiff/Petitioner rulings and work to be fair to both sides. We are still the fourth-highest WC state in the United States but things have gotten better since the Blagojevich era. That said, we do predict:

· PPP’s or Preferred Provider Programs are going to be magically and mysteriously tied up in committee for several more years—they were enacted on June 28, 2011 and remain entwined in JCAR or the IL Joint Committee on Administrative Rules 17 months later (if you want our suggestion on what to do about this, send a reply);

· Impairment ratings will continue to be politely considered but won’t have the impact their proponents wanted in cutting reserves and payouts on permanency;

· The Illinois Workers’ Compensation Commission’s budget isn’t going to be cut to match the dramatic and continuing drop in new claims;

· State of Illinois and City of Chicago workers’ comp defense programs will continue to payout hundreds of millions in benefits to political supporters as no one will be able to rein them in.

Whatever happens on the One-Party Political Matrix in Illinois, Keefe, Campbell, Biery & Associates will continue to look out for the interests of Illinois business. If you want thoughts, concepts and strategies to cut your WC, GL, EPLI or MVA budgets and free up reserves, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Employers must be sensitive to the religious practices of employees, but there is a limit to everything. Thoughts from John P. Campbell, Jr., J.D.

Editor’s Comment: We were comforted by this recent decision from our Seventh Federal Circuit, as it reflects a pragmatic and fact-specific analysis of Plaintiff’s claim of religious discrimination. In Porter v. City of Chicago our U.S. Court of Appeals for the Seventh Circuit found insufficient evidence for Plaintiff to proceed with her claim of religious discrimination, as the employer, City of Chicago, demonstrated sufficient effort to accommodate the request for accommodation.

Plaintiff Porter worked in data entry for the Chicago Police Department. The position required 24hr/7 day per week coverage by those employees, so of course, Sunday shifts were part of the obligation, utilizing rotating and alternating shifts among all assigned workers. Ms. Porter attended Sunday church services regularly and made a prior request for Sundays off. A few years prior to this claim, her request had been accommodated. However, upon her return from FMLA leave, she was placed on a weekend shift which included Sunday work. She again made the request for accommodation for Sunday off, citing her religious obligation. This time however, her supervisor explained she would have to wait for other similarly situated employees to either

(1) agree to switch shifts or

(2) for a position to open up on her desired shift schedule.

Also, her supervisor offered to place her on the Sunday afternoon shift, allowing her to attend Sunday morning church services. Ms. Porter was dissatisfied with this offer and her EEOC complaint followed.

Drawing from the legal rule cited in the text of the case:

Title VII prohibits employers from “discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines “religion” as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to [sic] an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e-(j).These provisions of Title VII prohibit an employer from intentionally discriminating against an employee based on the employee’s religion, and require an employer to make reasonable efforts to accommodate the religious practices of employees unless doing so would cause the employer undue hardship. See Reed v. Great Lakes Cos., 330 F.3d 931, 934-35 (7th Cir. 2003) (citations omitted).

With the affirmation of the summary judgment for the City of Chicago, our Seventh Circuit explained the employer here made a reasonable attempt to accommodate Plaintiff’s request for accommodation, offering an alternate Sunday (afternoon) shift. This shift would have allowed Plaintiff to attend her Sunday services. Also, evidence the supervisor attempted to get co-workers to switch shifts is further evidence a reasonable accommodation was attempted. Plaintiff on the other hand, refused to accept the form of accommodation offered. Therefore, her decision to elect sick leave or vacation days was her own choice, having refused the option to simply work the Sunday afternoon shift.

Although employers may draw solace from the Porter decision, Human Resource directors and managers everywhere should be mindful of similar such requests by employees wishing to meet their religious obligations. As explained in this decision, a routine dismissal of such an employee’s request may very well be met with a valid charge of discrimination unless the employer makes a good faith effort to accommodate. As always, we strongly recommend you document, document, and document your efforts to accommodate employees if such a scenario should arise.

This article was researched and written by John Campbell, Jr., J.D. Please direct your thoughts and comments to John at jcampbell@keefe-law.com.

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Synopsis: Illinois trucking company unsuccessful in using signed “independent contractor” agreement to establish that status.

Editor’s Comment: We are regularly asked whether an employer or contractor can establish “independent contractor” status and avoid paying WC benefits for an injured worker simply by having a worker sign such an agreement. Our answer is uniformly “no��—you have to look at the bigger picture of the relationship between the two parties. If you truly want anyone providing services for you to be “independent,” make them buy their own WC insurance to protect themselves or assume you are going to have to pay such benefits, if the unfortunate or unforeseen occurs.

In Labuz v. JKC Trucking, both parties appealed an order from the Circuit Court of Cook County which confirmed a decision of the IWCC awarding claimant benefits for neck, back and left shoulder injuries. Among the more pertinent issues on appeal was whether the Circuit Court should have dismissed claimant’s petition for review for lack of subject matter jurisdiction; whether the Circuit Court erred in finding claimant was an employee rather than an independent contractor; and whether the Circuit Court erred in denying penalties and fees against JKC.

JKC argued Claimant failed to effect proper service of the summons related to his petition for review in the Circuit Court as claimant mailed its summons addressed to the Commission generally and not to a particular member of the Commission. Relying on section 19(f) of the Act which notes “[s]ervice upon any member of the Commission or the Secretary or Assistant Secretary thereof shall be service upon the Commission…”, JKC argued the statutory language indicated service on the Commission may be accomplished only by serving a particular Commission Member or the Secretary or Assistant Secretary thereof. Thus, claimant’s general service to the Commission was insufficient to trigger Circuit Court jurisdiction.

Reading section 19(f) in its entirety, the Appellate Court, Workers’ Compensation Division noted the statutory language immediately following the quoted language goes on to explain service on the Commission is to be effected by mailing notice “to the office of the Commission.” Thus, the Court rejected JKC’s argument reasoning the quoted language in section 19(f) is not a restriction on proper service but an expansion as it mandates service on the named individuals be considered service at the Commission.

The Court also rejected JKC’s independent contractor argument. In so doing, it assigned no weight to the fact Claimant signed a document indicating he was retained as an independent contractor for JKC. Interestingly, JKC was able to successfully argue against penalties and fees based on the same grounds that proved unsuccessful in its argument that claimant was an independent contractor.

While the Appellate Court found there was sufficient evidence to allow a rational trier of fact to conclude Claimant was an employee and not an independent contractor. The Court’s ruling outlined there were reasonable grounds for JKC’s position he was an independent contractor. In addition to the signed document, it was undisputed JKC did not withhold taxes from claimant’s pay checks and there was evidence claimant exercised control over his routes and over which gas stations he used. Thus, JKC’s basis for withholding payment—its argument he was an independent contract and not an employee—was neither unreasonable nor vexatious.

This article was researched and written by Sean C. Brogan, J.D. He can be reached for questions or comments at sbrogan@keefe-law.com.

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Synopsis: Welcome aboard, Tim O’Gorman.

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Tim O’Gorman, J.D. to our legal team. Last week, Tim was sworn in as an IL lawyer and will focus his practice on defense of folks like you who face the enormous challenge of keeping your company’s costs and reserves low in aggressively defending your workers’ compensation, general liability, employment law and motor vehicle defense. Tim is up for the challenge—feel free to contact him at togorman@keefe-law.com.

KCBA Blog

11-12-12; The Day the Republican Party in Illinois Died--What It Means to WC; John Campbell Reviews Religious Discrim Ruling; Sean Brogan analyzes Independent Contractor Claim and much more