How Unions can Level the Playing Field with Non-Union “Independent” Contractors
Union contractors in the construction trades have long fought an uphill battle, forced to compete at a financial disadvantage with non-union contractors who pay their employees less, offer few, if any benefits, and have historically reduced their overhead by not providing legally mandated workers’ compensation insurance.
Amendments in February 2006 to the Illinois Workers’ Compensation Act significantly improved the law and imposed, among other things, stiffer fines for contractors who failed to provide workers’ compensation coverage to employees.
Since that time, however, non-union contractors have simply moved to “Plan B,“ falsely classifying workers as “independent contractors”.
In response, the Illinois General Assembly enacted the Employee Classification Act, which became effective in January 2008.
The Act creates a legal presumption that anyone performing services for a construction contractor is an employee rather than an independent contractor, and in doing so, changes the game entirely. The presumption of employment can be overcome only if the contractor proves that the worker is essentially operating his own business and is not within the contractor’s control.
When one combines the new Employee Classification Act with the 2006 amendments to the Workers Compensation Act, a powerful advantage to level the playing field is created.
A substantial civil remedy is afforded to injured employees (so called “independent contractors”) against the non-union companies that hired them. Such employees can bypass the Workers Compensation Act and file a civil lawsuit against the contractor. The jury is instructed that the company is presumed to be negligent. This places the injured employee in a superior position from which to prosecute the civil jury action. Hence, rather than enjoy workers compensation immunity or raise the defenses that they might raise in a negligence action, these non-union contractors are exposed to significant liability, under this law.
The new legislation permits attorneys who represent these injured workers to act as private attorneys generals. They can enforce the rights of employees that are subject to this scheme. These cases may now be brought before a jury, at great expense to the wrongdoer company that set up the fictional independent contractor relationship. The attorney for the injured worker will be paid from the proceeds of the recovery, so the new law is a “win-win” situation for unions, employees and attorneys. The concept also saves taxpayers money, because no government intervention or government funds are required to prosecute these cases.
To learn more about this powerful right to protect labor, feel free to contact myself, Mitchell Horwitz, Jay Luchsinger, Wayne Newman, Marc Perper or Mark Weissburg at Horwitz, Horwitz and Associates, Ltd. Combined, these five attorneys have more than 135 years of experience in prosecuting cases for union labor.