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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 116701
Experience:  20+ Years of Employment Law Experience
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I had a individual working at our property year

Customer Question

Hello I had a individual working at our property for a year or so, at one point in ( October of 2014) we had a robbery and the robber hit the employee in his head ( he had 3-5 stitches ), the individual insisted that he return to work as he needed the
money. So he returned to work the next day, we offered to compensate him for a paid week off and also offered to pay his medical bills. He said no as it was not a major injury and that he was fine and he will take care of the bills. Everything was okay after
that until april of 2015. He was working here and then he was let go for vandalizing the property and sleeping on the job. Now he is threatening to sue for unemployment ( he was on 1099 ) and also has filed a Illinois workers compensation lawsuit for his injury.
I have a notice of case filed on 5/14/15 and there is a hearing on 07/09/15. I am not sure how to proceed , this individual was offered compensation and pay for his medical bills however he refused it but once he was terminated from employment he is doing
all this. We are a small family owned business and do not have workers compensation insurance. Please advise me as to how to approach this problem. Thanks
Submitted: 2 years ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If he was an employee, then you had to provide workers compensation insurance under IL law. Thus, it means you are liable for providing coverage for the employee's injuries. If you can prove he never filed a claim for workers compensation with you within 45 days of the injury, then you have the defense that you offered to pay and file a report, but the employee refused.
Unfortunately, you need an attorney at this point to fight the case against him now he has filed against you and cannot go to the hearing unrepresented. You will also have to deal with the state workers compensation board for not providing workers compensation for your employees and will be fined and made to get insurance.
You say he was on a 1099, this would mean he would be an independent contractor. Thus, you are going to have to prove you did not direct his job, you did not provided him tools to do his job and he performed work that is not associated with your primary business, so this could be yet another issue because the department of labor can claim he was misclassified as an independent contractor and should have been an employee all along.
Under IL law, you have to prove:
1) The individual has been and will continue to be free from control or direction over the performance of service,
2) the service performed is outside the scope of the usual course of services performed by the contractor and
3) the individual is engaged in an independently established trade or business or the individual is deemed a legitimate sole proprietor or partnership under subsection c of ILCS Section 185/10.
If you can prove the above then you would not have to provide workers compensation for the person nor would you be liable for unemployment or misclassification. However, if he is an employee you can incur personal liability and fines, so even more you need to get a local attorney immediately to represent you in this matter and reevaluate how you hire people to perform the work this person was doing for you.

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