735 ILCS 5/Art. VIII Pt. 29: Amendment to the Evidence Article of the Code of Civil Procedure
Illinois has added SB 1420 – PA 101-0550 which amends the Evidence Article of the Code of Civil Procedure. The new statute amendment provides that evidence of a person's immigration status is not admissible in any civil proceeding unless: it is essential to prove an element of a claim or an affirmative defense; or a person or his or her attorney voluntarily reveals his or her immigration status to the court. In addition, a party intending to offer evidence regarding a person's immigration status shall file a written motion at least 14 days before trial. The amendment provides that the court shall conduct an in camera hearing to review the probative value of the person's immigration status; and if the court finds that the probative value of the person's immigration status outweighs its prejudicial nature, the court shall make findings of fact and conclusions of law regarding the permitted use of the evidence. In addition, the amendment provides that the motion, related papers, and the record of the hearing shall be sealed and remain under seal unless the court orders otherwise. Of particular importance, the amendment provides that a party who communicates to a person or witness any threat to or actually disclose a person's or witness's immigration status to any entity or immigration or law enforcement agency with the intent to deter the person from testifying commits a Class C misdemeanor.
The new bill does not specify applicability to Worker’s Compensation cases, but the argument would be that the Illinois Rules of Evidence should be adopted by the IWCC. In addition, the IWCC is an administrative agency and would therefore fall under the same rules.
This has potential implications for vocational rehabilitation for illegal immigrants as they are required provide vocational rehabilitation up to the level of employability in one’s home country. Employers and attorneys need to be wary of potential criminal implications when assessing any potential use of immigration status as a defense or other method of reducing exposure in a claim.
In Holten v. Syncreon North America, Inc., 2019 IL App (2d) 180537, Holten was injured while operating a forklift for Android as a temporary employee provided through a staffing agency, Staff on Site, Inc ("Staff"). Holten filed a worker’s compensation claim against Android, who them directed him to file against Staff. Ultimately, Holten received worker’s compensation benefits for his injuries through Staff on Site. He then filed a personal injury lawsuit against Android. The trial court granted Android’s motion for summary judgment in the personal injury lawsuit based upon the exclusive-remedy bar of the Workers’ Compensation Act. Section 305/1(a)(4) of the Workers’ Compensation Act (“the Act”) “incorporates the borrowed-employee doctrine and extends the immunity of the exclusive-remedy provision to borrowing and loaning employers.” 2019 IL App (2d) 180537 at *6. The court found that there was a borrowed-employee relationship between Android and Staff and an implied contract of hire between Holten and Android. Of note, Android maintained direction and control of Holten’s work and retained power to remove himfrom his job duties on its premises.
Holten appealed the summary judgment and argued that because Android did not pay the premiums or benefits for workers’ compensation, nor was Android obligated to reimburse Staff on Site for the expenses, Android should not be included in the exclusive remedy bar of the Worker’s Compensation Act as a borrowing employer. Of note, Android had a contract with Staff which required Staff “to pay wages; withhold and remit payroll taxes and other government-mandated charges (including worker[s’] compensation)” and “to be responsible for and handle work-related claims and complaints.”
The Appellate court noted that the Act provides that the liability of the borrowing and loaning employers is joint and several, and “in the absence of agreement to the contrary,” the loaning employer is entitled to reimbursement from the borrowing employer for sums paid or incurred under the Act. The Appellate Court held that the contract between Android and Staff, wherein Staff was responsible for paying Petitioner’s wages and maintaining worker’s compensation benefits for Petitioner constituted an “agreement to the contrary” and was inconsequential in determining whether Android was entitled to protecting as a borrowing employer under the doctrine. The Court noted that while the contract waived Staff's right to reimbursement from Android under the Act, it did not eliminate Android’s exclusive-remedy protection, as a borrowing employer, from further claims by Holten. 2019 IL App (2d) 180537 at *7, 10.
Key Take Aways:
This case confirms that an employee’s acceptance of workers’ compensation benefits will bar any further claims against a borrowing or a loaning employer, regardless of which employer actually paid the compensation benefits or insurance premiums. Immunity from further claims arose from the existence of a borrowed-employee relationship rather than the direct provision of insurance coverage.
A staffing agency may waive its statutory right to reimbursement under the Act through written agreement. This agreement may serve to protect a borrowing employer from worker’s compensation claims brought by an borrowed employees, any future injury related claims brought by the borrow employee, as well as reimbursement claims brought by a loaning employer or its compensation insurer.