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
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HB4450 (Madigan)
Creates the Officials and Employees Termination Act of 2009. 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 PA81-1482
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 PA81-1482
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 timeand-a-half or double time. Petitioner testified regarding one week in
particular: the week ending March 22, 2003. 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 $1025.82, 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.”