It is truism that when you are injured at work, the remedy is to go through the Worker’s Compensation system to hold your employer accountable and to receive reparations for your injury. Like many truisms, however, this idea does not tell the whole story. While there are many classes of claims that are pre-empted by Illinois Worker’s Compensation Act, just because you have a WC claim does not mean that there are not other avenues of recovery. A recent decision in the Federal Northern District of Illinois in the case of Zurbriggen et al v. Twin Hill Acquisition, Inc., No. 1:2017cv05648 – Document 185 (N.D. Ill. 2020), illustrates an unusual example of this.
Fundamentally, the case is about work uniforms that American Airlines introduced in 2016 that were produced by Twin Hill. The uniforms quickly became the source of health complaints involving rashes and respiratory issues, but American Airlines (“AA”) initially represented that the uniforms were safe before discontinuing their use. A class action was brought on behalf of AA employees in 2017 against both AA and Twin Hills.
Where AA really seemed to get into trouble here was that their testing of the uniforms before the wide rollout was very inconclusive as to whether they were safe in the first place, with a number of complaints coming from the initial wear-tests for the uniforms and the lab-testing that they conducted as part of the evaluation process signaling a number of troubling known and unknown chemicals in the uniforms themselves, though they ultimately concluded (apparently incorrectly) that they would not pose a long-term issue for employees. Through 2016, representatives of AA made a number of incorrect and misleading statements about the results of these tests, at the same time that they had to set up a call center to respond to all of the complaints that they were getting from their employees and began to allow for affected employees to wear alternative uniforms. Unfortunately for AA, the effected employees were still experiencing health effects just from being in the confined spaces of airplanes with the Twin Hill uniforms, and this became a source of friction and conflict between employees. And, of course, these employees continued to complaint that the Twin Hill uniforms were injuring them, even if they weren’t choosing to wear them.
The recent decision deals with Worker’s Compensation exclusivity clauses, as the plaintiffs attempt to evade the truism at the beginning of this post. Essentially, they argue that AA knew that they were being injured but still continued with the use of the Uniforms. The court, since this was a case including named plaintiffs from 24 different states, had to evaluate the claim in the context of each slightly different WC regime. I will note that some claims were allowed to continue for some Plaintiffs, and the Court reviews at length the specific differences in the law that allow it to do so. The Plaintiffs from Illinois, unfortunately, were not among the states where the Court found an exception, and their claims were dismissed in the class-action as to AA (Twin Hill itself, not being their employer, can still be sued as normal by these plaintiffs).
Illinois does have an exception from WC exclusivity when an employer intentionally injures an employee. That is, if your employer hurts you on purpose you can go after them in WC and in civil court. However, the court in this case found that while AA appeared to know about the injuries, the exception requires that the employer have a specific intent to injure. That is, the injuries here were an unintended consequence of AA’s actions, and thus they were not intentional under the Illinois Worker’s Compensation Act. An unfortunate result, but keep in mind that the Illinois Plaintiffs still have the action against Twin Hill in this case for manufacturing the uniforms in the first place, and they are still free to pursue Worker’s Compensation claims against American Airlines.
– Attorney Travis Dunn