Company Vehicle, Training, Paid hotels, Show Foreman was Roofer's Employee

Frankfort, IL (WorkersCompensation.com) -- A worker can’t collect worker’s compensation benefits from a company if there’s no employee-employer relationship. 

But whether a worker is an employee is more about substance than labels, as shown in a case involving a roofing foreman in Tile Roofs v. Illinois Worker’s Compensation Commission, No. 1-21-0819WC (Ill. App. Ct. 07/15/22). 

The roofing company owner urged the foremen to form his own LLC, through which he would be paid. The owner said that if the foreman didn’t form the LLC, he wouldn’t pay him. 

The foreman created an LLC and began to receive payment. However, his duties as a foreman did not change. He began to receive all his payments through the LLC. 

The foreman eventually injured his right leg and foot. He sought worker’s compensation benefits. An arbitrator concluded that he was not an employee of the roofing company and therefore not entitled to benefits. The worker’s compensation commission reversed that decision. The company then challenged the decision in court, arguing that the commission failed to consider the right factors when making its determination that an employee-employer relationship existed. 

The court explained that the determination of the existence of an employee-employer relationship is based on the totality of the circumstances, and not on a strict application of any specified factors. The court noted that the state Supreme Court in Roberson v. Industrial Comm'n, 225 Ill. 2d 159 (Ill. 2007) articulated certain factors that decisionmakers may consider. But there is no requirement that decisionmakers consider every factor, the court remarked. The factors are simply available to facilitate the determination. 

Here, the Commission properly considered factors relating to: 1) the foreman’s duties and responsibilities; 2) how the roofing company paid the foreman; 3) whether the roofing company withheld payroll taxes; 4) whether the roofing company furnished the foreman equipment and tools; 5) who provided the needed materials; 6) who provided transportation and hotels; and 7) who provided training. Thus, the court rejected the company’s claim that the commission completely ignored the Robertson factors. 

Specifically, the court noted, the Commission found that the foreman was a de facto employee, and the corporate formality existed on paper only. “In short, the Commission found the substance of [the foreman’s] relationship to the [roofing company] never changed,” the court wrote.  

As the Commission observed, after forming the LLC: