Last week, the Illinois Supreme Court seemed poised to reject an expansive interpretation of the "traveling employee" exception to the "going and coming" rule, which holds that employees injured during their commute to work are not entitled to workers’ compensation benefits for their injuries. The argument was in Venture-Newberg Perini Stone & Webster v. Illinois Workers’ Compensation Commission. Our detailed summary of the underlying facts and Commission and Appellate Court decision is here. Our preview of the argument is here.

The employer in Venture-Newberg was a contractor hired to do maintenance and repair work at a nuclear plant in Cordova, Illinois. The union local for Cordova was unable to fill all the available jobs, so the openings were posted in other union halls, including the claimant’s union hall in Springfield. The claimant bid on the job and was hired. But Cordova is 200 miles from Springfield; the claimant concluded that commuting was impractical, and besides, he would be unable to be available for on-call emergencies, as he believed the employer wanted. So he found lodging about thirty miles from Cordova for the few weeks’ duration of the job. The claimant was injured one morning traveling from his lodging to the plant. The Commission found that the course or method of travel was determined by the exigencies of the job rather than the personal preference, and that the claimant was essentially traveling on business, satisfying the "traveling employee" exception to the "going and coming" rule. The Circuit Court reversed, but the Appellate Court reversed the trial court.

Counsel for the employer began the argument. He argued that the claimant was not entitled to coverage for a long list of reasons: (1) he had no exclusive or continuous relationship with the company; (2) he was hired through union referrals for a series of short engagements; (3) the claimant couldn’t accept the job if positions were available in his local’s territory, and he was not required to accept work outside the area; (4) the employer hired the claimant through union referrals; (5) the claimant chose to live where he did, rather than being required to by the employer; (6) the employer did not pay for the claimant’s travel or lodging, or make his lodging arrangements; (7) the claimant was not definitively hired until he passed background checks and drug testing; (8) the claimant was not on call when he was injured; and (9) the claimant was hired for employment at only one location and paid only from clock-in to clock-out. The facts and circumstances didn’t fit any other traveling employee case, counsel argued. Justice Theis asked whether it changed the analysis that the employer had had to recruit outside its area. Counsel argued that "recruit" was a loaded term, and that the claimant hadn’t been recruited more than any other local member. Justice Garman asked whether the "traveling employee" determination was a finding of fact entitled to the Court’s deference, and counsel responded that in fact, it was a finding of law — the facts were undisputed. Justice Burke pointed out that the employer had premises in Wilmington, and the Cordova plant was a job site. Counsel responded that the claimant wasn’t hired in Wilmington, so the plant was irrelevant. Reviewing the traveling employee cases, counsel pointed out that the claimant had never had to travel away from a single location. Chief Justice Kilbride asked whether it was important that the claimant had been employed by the employer four different times for brief stints. Counsel argued that he was not a "traveling employee" at any location.

Counsel for the appellee argued that the Appellate Court decision did not expand the traveling employee exception. Counsel pointed out that the decision was based on two exceptions, both of which focus on the demands of the claimant’s employment, not the instructions of the employer. Justice Burke suggested that both require employer control of travel, but counsel disagreed, arguing that if instructions were the crucial issue, employers would avoid the exception simply by never directing temporary employees where to live. Justice Garman asked what the difference was between the claimant and other employees coming and going to work. Counsel argued that traveling out of town was inherently different, carrying a different level of risk. Justice Garman asked whether that meant anybody who travels to work is a traveling employee, and counsel responded that it depended on the facts and circumstances. Justice Thomas asked whether a traveling employee wasn’t traditionally one traveling away from an employer’s premises. Counsel responded that the Cordova plant was not the employer’s premises. Justice Karmeier asked whether counsel’s argument meant that when a contractor hired short-term employees to work at a job site, whether in construction or anything else, they were all traveling employees. Counsel responded that it depended on the particular facts – whether the exigencies of the assignment required travel. Justice Freeman asked whether the parties’ disagreement was on facts or permissible inferences, and counsel responded that there were disputes of fact. Justice Karmeier asked whether it was fair to say that there was no dispute that the employer hadn’t required the claimant to stay anyplace in particular. Counsel responded that while the employer hadn’t directly directed the claimant where to stay, he had testified that it was his understanding that the employer preferred its employees to be nearby. Chief Justice Kilbride asked whether the record suggested that employees were expected to be reasonably close so as to respond to on-call emergencies. Counsel agreed that the record reflected that.

On rebuttal, counsel argued that the claimant was not on call the morning of the accident, nor was there any emergency. The Commission’s decision was unreasonable, counsel argued, and an unjustified expansion of the traveling employee exception.

We expect Venture-Newberg to be decided in two to four months.