When Can Injured Workers in Illinois Sue Their Employers?

Workers’ compensation is designed to be an “exclusive remedy.” In Illinois, for instance, a worker who is injured on the job must rely on Illinois workers’ compensation benefits as his or her sole form of recovery. In exchange, he or she relinquishes any right to sue his or her employer. However, there are a few rare scenarios when an employee can side-step the workers’ compensation rules and seek legal recourse against his or her employer in a court of law.

Generally speaking, an injured worker can sue his or her employer in three limited circumstances:

The Worker Doesn’t Qualify as an “Employee”

Illinois workers’ compensation law covers nearly all workers who are principally located in Illinois and whose contract of hire was made in Illinois or who experience a work-related injury in Illinois.

However, some workers are exempted from coverage. For example, real-estate brokers, broker-salesmen and commission-only sales people do not count as “employees” under the Illinois Workers’ Compensation Act. Some short-term agricultural workers are treated similarly. If these workers are injured on the job, they may sue under traditional theories of negligence.

It is important to note that, unlike in some states, independent contractors and subcontractors do qualify as “employees” under Illinois law. They can obtain their own workers’ compensation policy. However, if they do not have their own insurance, these workers will be covered under the workers’ comp policy of the business that hired them.

The Employer Does Not Have Insurance

In Illinois, employers are required to have workers’ compensation insurance, even if the business employs just one part-time employee. If the employer fails to purchase adequate insurance, an injured worker can sue the employer for his or her injuries in civil court.

In these lawsuits, the employer has the burden of proving that it was not negligent. This is a reversal from traditional personal injury lawsuits, in which the plaintiff must prove that the defendant was negligent.

The Worker is Intentionally Injured

An injured worker can sue in civil court if he or she was intentionally harmed by his or her employer. This is rare, and usually occurs when a worker is assaulted on the job.

Even if the employer was grossly negligent-such as when an employer fails to repair a piece of equipment that had been broken for a long time-the employee must still seek recourse under the workers’ comp laws. There must have been a specific intent by the employer to cause harm to the employee for the employee to pursue a tort claim.

Case-By-Case Basis

Nearly every workers’ compensation claim is different, and most involve complicated legal issues. If you have been injured on the job, talk to an experienced Illinois workers’ compensation attorney who can help you understand your rights.