Illinois Appellate Court Rules The Employee Was A Traveling Employee

In the case of Mechanical, Inc, v. Illinois Workers’ Compensation Commission, the Illinois Appellate Court again took on the question of what constitutes a traveling employee. The case’s procedural history was extensive procedural history.  The case was tried before Arbitrator Michael Glaub, who found the employee was a traveling employee.  Mechanical appealed to the Commission, which reversed and found he was not a traveling employee.  Petitioner appealed to the Circuit Court, which reversed the Commission’s decision and remanded the case to the Commission to find petitioner was a traveling employee.  Commission did so pursuant to the remand order, and Mechanical appealed it to the Appellate Court where the 2^nd Commission decision was affirmed. 

The analysis centers around the Supreme Court’s legal analysis of what constitutes a traveling employee and how the facts in Mechanical, Inc. differed from the facts in Venture-Newburg-Perini, which is an Illinois Supreme Court decision.  When considering the two cases there are a few things we need to keep in mind about traveling employees are:

1. Injuries sustained while the traveling employee is engaged in “reasonable and foreseeable” activities are compensable. 
2. Traveling employees are in the course and scope of the employment and covered by the WC accident door-to-door.  This means from the moment the employee leaves the first location, which can be their home, until they arrive at the second location, they are covered under the Act.
3. The cases and their analysis are fact driven.  Change one fact, and can get a different outcome.
4. It is possible for an employee to only become a traveling employee after they arrive at work, making their travel to and from work outside the scope and course of employment.  This happens when an employee is required to report to the employer’s place of business before beginning the workday, and then departs the place of business after “checking in” with the employer.

In Venture-Newberg-Perini, the employee was a member of the Local #137 (plumbers/pipefitters).  Work was not available through the Local 137, and the employee accepted a position 200-miles from his home through a different union hall.  Venture-Newburg hired the employee to work at one location and one location only, the Cordova nuclear plant.  The position was temporary, and at the end of the project, his employment would end.  The employee worked on four prior projects for Venture-Newburg in 2004 and 2006, but in between each project, he was laid off and did not remain an employee of Venture-Newburg.  When he accepted the employment offer for the project at the nuclear plant, the employee knew it was 200-miles from his home, and he chose to relocate to a nearby hotel.  He was not paid travel or lodging expenses by Venture-Newburg. Venture-Newburg did not direct him to relocate or where to live.  Venture-Newburg did not dictate the route he was to take to and from work, and it did not require him to carpool with the co-worker who was driving the car when the accident occurred. He was injured in a car accident going between the hotel and the nuclear plant.  He claimed he was a traveling employee.

In Mechanical, Inc., the facts that differed it from Venture-Newburg are why the Circuit Court initially reversed the Commission’s decision, and the Commission’s remand decision was ultimately affirmed by the Appellate Court.  The differing facts were:  (1) the Mechanical employee was a permanent employee, not a temporary employee; (2) he was not assigned to one location for work; (3) he was assigned to 29 different job sites in 1-1/2 years of employment; (4) he could be directed to more than one job site throughout the day; and (5) his route to a job site changed frequently and took him on routes with which he was not familiar. 

The factual distinction between the two cases is one employee (Venture-Newburg) was hired to work at one job site and only one job site for a specific duration of time after which his employment ended while the other employee (Mechanical, Inc.) was hired as a permanent employee with the understanding he would be assigned to multiple different job sites and after each job was completed he remained employed by the company.  The Mechanical employee had no one set job location to which he was assigned, but he instead traveled from job to job at the employer’s direction; thus, he is a traveling employee.  He was also never required to report to the employer’s place of business, and he never performed any of his job tasks at their place of business.

Our analysis of traveling employee cases is not changed by the Court’s holding in Mechanical, Inc.  The questions we ask the employer about the circumstances of the employment have not changed, and it does not change the recommendations we give to a client on whether to challenge compensability.  If presented with facts like those in Mechanical, the Commission will find the employee was a traveling employee, but if you have facts like Venture-Newburg, the Commission will still find the employee was not a traveling employee.  Given the current proclivities of the Commission, is the Commission more likely to find an employee was a traveling employee than it might have done 5 or more years ago? The answer is probably, but we still look at the facts, make good faith arguments when we have them and challenge before the arbitrator and Commission compensability when warranted by the facts of the case.  The Mechanical, Inc. case does not change the legal principals and standards against which the facts of the case are analyzed. It is an instance where changing the facts ever slow slightly can and did result in an outcome different than the outcome in Venture-Newburg.