Illinois Employee Classification Act, Misclassifying Employees As Independent Contractors

The Illinois Employee Classification Act (820 ILCS 185/10) was made to deal with the practice of misclassifying construction workers as “independent contractors”. The Law went into effect on January 1, 2008 stated that all workers for construction companies are presumed to be ‘employees’ and not ‘independent contractors’ unless they meet specific exceptions in the Law.

Misclassifying employees as independent contractors  harms the misclassified employee by  restricting their legal protections, primarily their eligibility and to worker compensation insurance, unemployment assistance, & fair compensation. Additionally, the practice of misclassification will adversely affect the State of Illinois’s revenue by reducing unemployment insurance  paid by these employers to the State, and  other contributions such as workers' compensation contributions paid by these contractors based on their number of "fully employed" staff.

In 2009 Illinois State Attorney fined five construction companies over $79,000 for misclassifying workers as ‘independent contractors’.
Specific exceptions to the law: Illinois Employee Classification Act makes specific exclusions. These exclusions revolve around control, direction…

• If a contractor  lacks  control or direction of an individual  / subcontractor performance of the service and provide their own resources and tools to do the job.
• If service performed by individual / subcontractor is outside the contractor’s line of service.
• If the individual / subcontractor has own trade with distinguished and separate address and unique business name.
• The individual / subcontractor business will not end upon the severance of the relationship between that individual and the contractor.
• The individual / subcontractor business has substantial capital investment in the business, beyond ordinary tools or personal vehicles used.
• The individual / subcontractor business provides its  services to the general public on continuous basis,  owns the capital good and makes its own profit and loss, and includes  services offered  on a Federal Income Tax Schedule as an independent business .
• If the individual / subcontractor business can hire and pay their own employees to do the job without the approval or consent of the contractor, and is reporting the employees income to the IRS.
• If contractor does not represent individual / subcontractor business as employee to customers.
• If the individual / subcontractor business can perform similar services to other people any time it chooses and under any assumption.