WCLA MCLE IS OT INCLUDED IN THE AWW? How the Commission Is Interpreting Airborne Express Guest Speaker David Figlioli Wednesday May 13, 2009 James R. Thompson Center Auditorium in Chicago, IL 12:00 noon to 1:00 pm 1 Hour General MCLE Credit

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Legislative Update HB4450 (Madigan) Creates the Officials and Employees Termination Act of Provides that the terms of office or employment of all designated officials and employees are terminated, by operation of law, effective on the effective date of the Act. The designated officials and employees are (i) the heads, assistant heads, and deputy heads of executive State agencies who were nominated by the Governor between January 11, 1999 and January 29, 2009 for a position that requires the advice and consent of the Senate, (ii) members of executive boards or commissions who were nominated by the Governor between those dates for a position that requires the advice and consent of the Senate, (iii) employees of executive State agencies or executive boards or commissions, whose employment in a Rutan exempt position began between those dates, (iv) employees of executive State agencies or executive boards or commissions, appointed to a term appointment between those dates, and (v) any other official or employee who was nominated by the Governor between those dates for a position that requires the advice and consent of the Senate. Executive State agencies and executive boards or commissions are those of the executive branch not under the jurisdiction and control of the Lieutenant Governor, Attorney General, Secretary of State, Treasurer, or Comptroller. Allows hold over for no more than 60 days. Allows the Governor to make temporary appointments and to subsequently nominate or employ a terminated person. Effective immediately.

Section 10 Before PA September 15, 1980 “(g) Earnings, for purposes of this section, shall be based on the earnings for the number of hours commonly regarded as a day’s work for that employment, and shall exclude overtime earnings.” Rohrig v. Kewanee Manufacturing, 81 IIC 898,: “The portion of the Act which excludes ‘overtime earnings’ specifically states that it is overtime earnings which are to be excluded and it does not state or imply that overtime hours are to be excluded.” Method: Average hours per week at straight time rate

Section 10 After PA PA September 15, 1980 “which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury … excluding overtime, and bonus divided by 52”

Edward Hines v. Industrial Comm’n 215 IllApp3d 659, 575 NE2d 1234, 159 IllDec 174 (1990) 88 IIC 862 Matter of first impression; statutory construction and question of law Union forklift driver “Had the legislature intended to exclude from the average weekly wage any time worked over 8 hours per day or 40 hours per week, it could have easily stated this. Instead the legislature took a more flexible approach…and excluded only ‘overtime…’ By ‘overtime’ we find that the legislature meant (1) compensation for any hours beyond those the claimant regularly works each week, and (2) extra hourly pay above the claimant’s normal hourly wage.” Method: Average 67 hours per week at straight time rate

R.A. Cullinan & Sons v. Industrial Comm’n 216 IllApp3d 1048, 575 NE2d 1240,159 IllDec 180 (1991) Employer contends that the Commission’s calculation of the AWW is “against the manifest weight of the evidence” Edward Hines is “factually distinguishable from this case” because Edward Hines “concerns a non-seasonal worker who worked under a union contract that provided that he had to work whatever hours the employer demanded, with the minimum number of hours set at approximately 10 per day six days a week.” Method: “It is undisputed that the claimant in this case was a seasonal worker…Therefore, we remand the cause for determination of claimant’s average weekly wage based on his non-overtime hours.”

Ogle v. Industrial Comm’n 284 IllApp3d 1093, 673 NE2d 706, 220 IllDec 562 (1996) DA 10/27/1997, “governed by law in effect at the time of the injury;” old Section 10 “makes no mention of precluding compensation for overtime hours at the straight time.” “A wage statement indicates that claimant worked overtime 42 out of 52 weeks and it identified the ‘number of hours employee scheduled to work per week’ is 48.” Union contract & “it was mandatory for claimant to work up to eight hours of overtime, coupled with the contents of the wage statement” Method: on average 48 hours at straight time so as not to reflect overtime earnings.

Edward Don Company v. Industrial Comm’n 344 IllApp3d 643, 801 NE2d 18, 279 IllDec 726 (2003) 02 IIC 0019 “(M)anifest weight of the evidence” “In the instant case, unlike in Edward Hines, the claimant presented no evidence establishing the number of hours that he was required to work. Although the wage summary sheet reflects that in 15 out of the 16 weeks…, he worked some overtime, there is no evidence that he was required to work overtime as a condition of his employment or that he consistently worked a set number of overtime hours each week.” Method: “recalculate the claimant’s average weekly wage.”

Freesen v. Industrial Comm’n 348 IllApp3d 1035, 811 NE2d 322, 285 IllDec 81 (2004) 02 IIC 0455 Manifest weight of the evidence “(S)imilar to the situation in Edward Don, while claimant presented a wage summary sheet showing that he worked some overtime in 22 of the 45 weeks in which he worked at least in part, claimant can point to no evidence that (1) he was required to work overtime as a condition of his employment, (2) he consistently worked a set number of overtime hours each week, or (3) the overtime hours he worked were part of his regular hours of employment.” Method: Exclude “such wages”

Airborne Express v. Workers’ Compensation Comm’n 372 IllApp 3d 549, 865 NE2d 979, 310 IllDec 259 (2007) 05 IWCC 0743 Union driver worked overtime in 31 of 32 weeks, 1200 regular hours and 538 OT hours “(I)t is against the manifest weight of the evidence” “This court has been consistent in its interpretation of the overtime exclusion in Section 10 of the Act. Overtime includes those hours in excess of an employee’s regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each week.” Method: exclude all 538 OT hours

Commission Decisions Interpreting Airborne Express Bennett v. George Western Bakeries, 07 IWCC 1080 (8/20/07): Commission (Ulrich, Sherman Dauphin) relies on Airborne Express to affirm Arbitrator ’s exclusion of OT: “Based on the union agreement and testimony by the maintenance supervisor indicating that the decedent’s overtime hours were voluntary, and not a consistently worked set each week, the Arbitrator finds that the overtime hours and resulting pay earned by the decedent shall not be included in the calculation of the of the decedent’s average weekly wage pursuant to Edward Don.”

Commission Decisions Interpreting Airborne Express Terrell v. State of IL, 07 IWCC 1319 (10/11/07): Commission (Gore, DeMunno, Basurto) includes overtime because “under Edward Don and Freesen precedents, the claimant need only show that the overtime was either regular and consistent or mandatory. The Commission also notes that in the more recent case of Airborne Express, the Court relied most heavily on the mandatory aspect…”

Commission Decisions Interpreting Airborne Express Costello v. International Truck, 07 IWCC 1603 (12/10/07): “in finding that the Petitioner’s overtime hours are included in the calculation of her average weekly wage, the Commission (Sherman, Dauphin, Lamborn) relies on Airborne Express…The Commission interprets the case law to require that only one of the bases must be proven in order for the overtime hours to be included in the calculation of the average weekly wage as the cases employ the disjunctive conjunction ‘or’ rather than the conjunction ‘and.’ We find that Petitioner has established that her overtime was mandatory.”

Commission Decisions Interpreting Airborne Express Lojowski v. Pentair, 07 IWCC 1619 (12/12/2007): “In reliance on Airborne Express…, Commission (Mason, Rink, Lindsay) declines to include the overtime earnings…Petitioner did not indicate that she was required to work overtime …and she worked varying amounts of overtime during 24 of 52 weeks.” Hernandez v. Walsh Construction, 08 IWCC 0567 (5/16/08): Commission (Mason, Rink, Lindsay) excludes OT in accordance with Airborne Express, “the record before us does not permit us to assume that when he worked ten hours a day it was because he was required to do so.”

Commission Decisions Interpreting Airborne Express Stell v. Dominicks, 08 IWCC 0817 (7/7/2008): Commission (Mason & Rink) affirms Arbitrator’s inclusion of OT as “regular, mandatory and a condition of Petitioner’s employment;” Lindsay dissents relying on Airborne Express, OT “was offered based upon seniority and could be accepted or declined...failed to show he worked overtime in a regular manner” Weyker v. Imperial Crane, 08 IWCC 0883 (7/23/08): Commission (Mason & Rink) modifies Arbitrator’s decision that had excluded OT and Commission includes OT, relying on Airborne Express because “Petitioner was required to work OT as a condition of his employment.”

Commission Decisions Interpreting Airborne Express Diaz v. Chicago Heights Steel, 08 IWCC 1149 (10/3/08): Commission (Mason, Rink & Lindsay) affirms Arbitrator’s inclusion of mandatory OT; Arbitrator interprets Airborne Express thusly: “OT worked on a regular, but voluntary basis, not included in average weekly wage.” (?) Manuel v. DHL Express, 09 IWCC 0031 (1/13/2009): Commission (Lamborn, Sherman & Dauphin) affirms Arbitrator’s exclusion of OT because this is the same as Airborne Express

Commission Decisions Interpreting Airborne Express Raybum v. Jones Lang, 09 IWCC 0088 (1/28/09): Commission (Dauphin, Sherman & Lamborn) affirms Arbitrator’s exclusion of OT because hours were not mandatory pursuant to Airborne Express; Petitioner attempts to distinguish between OT and “shift differential”: “The petitioner claims that overtime pay should be included in the calculation of his average weekly wage and notes that in the case of Diaz v. Navistar Int'l, 00 IIC 0241, the Commission included "shift premium" in their calculation of average weekly wage. Petitioner testified that if he worked certain hours he would be paid time- and-a-half or double time. Petitioner testified regarding one week in particular: the week ending March 22, The pay stub for this week indicates that Mr. Rayburn worked no regular hours but only overtime and double time. Petitioner characterized such pay as a "shift differential." However, the pay stub to which he refers does not state "shift differential." The pay stubs characterized petitioner's wages as either "REGULAR PAY", "OVERTIME PAY" or "DOUBLETIME.“

Clark v. SOI/IL Dept. of Transportation 09 IWCC 0197 ( 2/24/09) Commission (Gore, DeMunno & Basurto) affirms Arbitrator Kinnaman’s inclusion of OT : “His average weekly wage was $ , which includes his overtime earnings. In Airborne Express, the court held ‘Overtime includes those hours in excess of an employee’s regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each week.’ Stated conversely, hours that an employee is required to work as a condition of employment or hours that are set and worked each week are not excluded from the calculation of the AWW as overtime. The two criteria are stated disjunctively. Here, Petitioner established that overtime was mandatory under his union contract and he could be disciplined for failing to work overtime. He has met the first criteria identified by the Court and his overtime hours are included in his average weekly wage calculation; he is not required to prove more.”