Overtime in Illinois

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The inclusion of overtime earnings can increase an injured employee’s average weekly wage thereby increasing his TTD (2/3) rate of pay for every five work days he/she is not working. Hence, overtime is one of the most commonly disputed issues and often times may result in a hearing before the Illinois Workers' Compensation Commission.

Section 10 of the Illinois workers' compensation Act provides:

“The compensation shall be computed on the basis of the "average weekly wage" 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, illness or disablement excluding overtime, and bonus divided by 52; but if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages shall be followed. Where by reason of the shortness of the time during which the employee has been in the employment of his employer or of the casual nature or terms of the employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury, illness or disablement was being or would have been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week by the same employer. In the case of volunteer firemen, police and civil defense members or trainees, the income benefits shall be based on the average weekly wage in their regular employment. When the employee is working concurrently with two or more employers and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation.”

When overtime is included in the average weekly wage calculation, it is calculated at the straight rate of hourly pay, not time and a half. For example, if you earn $20.00 an hour and overtime is included in your average weekly wage calculation the hours you worked overtime in the prior in fifty-two week period will be included at $20.00 per hour, not $30.00 per hour (time and a half pay).

AIRBORNE EXPRESS, INC. v. ILLINOIS WORKERS’ COMPENSATION COMMISSION

The issue of overtime was revisited by the Illinois Appellate Court in the 2007 case. In AIRBORNE EXPRESS, INC., Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, the Illinois Appellate Court First District was confronted with the issue of whether to include overtime earnings at the straight rate of pay when calculating the injured employee’s average weekly wage.

Claimant

Claimant was a package car driver. His shift began at 7 a.m. and ended at 4 p.m. He testified he could not return to the employer’s facility with undelivered packages after 4 p.m. unless he received permission to do so. Overtime was available based on seniority and the senior package car drivers were able to either accept overtime if they chose or reject overtime if they did not want to work it. If the overtime was rejected by the senior package car drivers, the less senior package car drivers had to accept the overtime. The less senior package car drivers comprised approximately 20-25% of the total drivers. Claimant fell into the top 30% of the package car drivers based on his seniority. It was very doubtful claimant was required to work overtime in the year prior to his injury based on his high level of seniority. Claimant worked overtime in 31 of 32 weeks in the year prior to his injury.

Ruling

The Illinois Appellate Court held that under 820 Ill. Comp. Stat. Ann. 305/10 (2000), the overtime hours should not have been included in the calculations. The hours of overtime were not part of the claimant's regular hours of employment and they were not hours that the claimant was required to work as a condition of his employment. While the claimant consistently worked overtime, he did not work a set number of overtime hours each week. While the employer's operational needs required overtime work by its drivers, the claimant's seniority ensured that he would not have been required to work overtime if he did not request to do so. Those uncontradicted facts led the Illinois Appellate Court to conclude that the Commission's calculation of the claimant's average weekly wage, and thus its benefit calculations, were against the manifest weight of the evidence.

Discuss Your Case with a Chicago Workers’ Compensation Attorney

Every overtime issue is decided on a case by case basis. The above case law provides the injured worker with a guideline used by the Illinois Appellate Court in a recent 2007 case. If you have suffered a work related injury and have questions regarding the calculation of your average weekly wage, please contact Leonard Law Group for a case consultation. If you have already secured an attorney, Leonard Law Group offers free second opinion case evaluations.

Since 1995, we’ve recovered more than $500 million on behalf of our clients. Let us protect your rights and fight for the compensation you are owed. Call (312) 487-2513 for a case review today!

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