January 2026 IICLE FLASHPOINTS

The Second District recently affirmed dismissal of a developer’s claims allegedly arising from the joint actions of a competing developer and an association’s design review committee. Silverthorne Development Co. v. Sycamore Creek Homeowners Ass’n, 2025 IL App (2d) 240703-U.

Facts

In a case that was originally filed in 2018, the plaintiff developer that built custom homes and owned lots in a development administered by the defendant homeowners’ association sued a competing developer, the HOA, and the sole decision-maker (Hall) of the HOA’s design review committee who also owned the competing developer. 2025 IL App (2d) 240703-U at ¶¶2, 7. The plaintiff’s claims on appeal arose from allegations focused on the design review committee’s adoption of a rule prohibiting installing vinyl windows in the HOA’s properties. 2025 IL App (2d) 240703-U at ¶2.

The competing developer used clad or fiberglass frame windows. 2025 IL App (2d) 240703-U at ¶9. (Clad windows are wood framed windows with a protective material such as fiberglass on the exterior parts of the window frame.) The plaintiff alleged that its vinyl frame windows were cheaper and more energy efficient than the clad or fiberglass framed windows used by Hall’s company. Id. The plaintiff pleaded that there was greater demand for his homes with vinyl windows. He also pleaded that the defendants intentionally and maliciously interfered with the plaintiff’s anticipated building projects and that Hall’s actions were not in accordance with the HOA’s bylaws. The plaintiff did not identify any particular bylaw being breached and did not attach a copy of the bylaws to his complaints. Id. The plaintiff also alleged that he lost several potential clients because he could not obtain approval from the HOA for designs using vinyl windows. 2025 IL App (2d) 240703-U at ¶10.

This appeal focused on three causes of action that were presented and dismissed at different times in the plaintiff’s original complaint and seven amended complaints. 2025 IL App (2d) 240703-U at ¶¶2 – 6. When causes of action were dismissed, they were pleaded again in subsequent complaints to preserve the claims for appeal. 2025 IL App (2d) 240703-U at ¶4.

Analysis

All three counts considered on appeal were dismissed pursuant to §2-615 of the Code of Civil Procedure, 735 ILCS 5/2-615, for failure to plead sufficient facts to plead a cause of action on which relief could be granted. 2025 IL App (2d) 240703-U at ¶16. The Illinois Supreme Court’s test under §2-615 is that no cause of action should be dismissed “unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery.” Id., quoting Hulsh v. Hulsh, 2025 IL 130931, ¶13. Review of a 2-615 dismissal is de novo.

Count II of the complaints alleged tortious interference with business expectancy (also referred to as intentional interference with prospective economic advantage). 2025 IL App (2d) 240703-U at ¶17. The elements of the action are “(1) a reasonable expectancy of entering into a valid business relationship; (2) the defendant’s knowledge of the expectancy; (3) the defendant’s intentional and unjustified interference that prevents the realization of the business expectancy; and (4) damages resulting from the interference.” Id., quoting State Auto Property & Casualty Insurance Co. v. Distinctive Foods, LLC, 2024 IL App (1st) 221396, ¶83, 254 N.E.3d 891, 481 Ill.Dec. 302.

The appellate court affirmed the dismissal of the plaintiff’s action for tortious interference because the claim did not plead actions taken by the defendants directed at any third parties. “It is well established that ‘Illinois courts require that a tortious interference claim be supported by allegations that the defendant acted toward a third party.’” 2025 IL App (2d) 240703-U at ¶19, quoting Du Page Aviation Corp. v. Du Page Airport Authority, 229 Ill.App.3d 793, 594 N.E.2d 1334, 1341, 171 Ill.Dec. 814 (2d Dist. 1992) (holding there was no showing of act directed toward third party when airport authority refused to enter into lease with plaintiff; plaintiff’s argument that its relationship with its customers was interfered with by refusal was not sufficient). The plaintiff did not plead that either the HOA or Hall had engaged in any act directed to a third party. Although the court does not discuss how this test arose from the prima faciecase for tortious interference with prospective economic advantage, it would presumably be tied to the third element, namely, the defendant’s intentional and unjustified interference that prevents the realization of the business expectancy.

The appellate court examined some other tortious interference cases to support its analysis. In particular, it relied on Boffa Surgical Group LLC v. Managed Healthcare Associates Ltd., 2015 IL App (1st) 142984, 47 N.E.3d 569, 399 Ill.Dec. 887, in which a physicians’ group argued tortious interference when it was excluded from a managed-care group at a hospital where the physicians had staff privileges, thereby losing referrals of future patients. The appellate court in Boffa held that there was not a direct action against a third party giving rise to a tortious interference claim. 2025 IL App (2d) 240703-U at ¶20. In the instant case, the plaintiff focused on pleading that there was “impact” on third parties. The plaintiff argued that acts directed against third parties and having an impact on third parties are essentially the same. The appellate court rejected this contention. 2025 IL App (2d) 240703-U at ¶24. It relied on Boffa in which the court stated: “It is not enough for the defendant’s action to impact a third party; rather, the defendant’s action must be directed towards the third party.” 2015 IL App (1st) 142984 at ¶28.

The appellate court used as an example of a viable allegation of action directed against a third party a case in which defendant, while working for plaintiff company as a director, officer, and employee, acquired a competing company that was also sought by the plaintiff. On appeal, there was no dispute that the defendant’s acquisition of a competitor was action directed against a third party, namely the target company. 2025 IL App (2d) 240703-U at ¶26.

The appellate court also affirmed dismissal of Count V alleging the defendants engaged in a civil conspiracy. The elements of a civil conspiracy are “(1) an agreement to accomplish by concerted action either an unlawful purpose or a lawful purpose by unlawful means; (2) a tortious act committed in furtherance of that agreement; and (3) an injury caused by the defendant.” 2025 IL App (2d) 240703-U at ¶28, quoting Kovac v. Barron, 2014 IL App (2d) 121100, ¶103, 6 N.E.3d 819, 379 Ill.Dec. 491. Here, the plaintiff alleged that Hall and the HOA adopted the committee guidelines regarding windows in violation of the HOA’s bylaws. 2025 IL App (2d) 240703-U at ¶30. However, the complaint also alleged that at all times Hall was acting as an agent for the HOA as a member of its committee. The appellate court observed that it is well established that under agency law, “’there can be no conspiracy between a principal and an agent because the acts of an agent are considered in law to be the acts of the principal.’” Id., quoting Alpha School Bus Co. v. Wagner, 391 Ill.App.3d 722, 910 N.E.2d 1134, 1150, 331 Ill.Dec. 378 (First Dist. 2009).

Similarly, the appellate court affirmed dismissal of Count VI sounding under §876 of the RESTATEMENT (SECOND) OF TORTS(1979), for tortious acts resulting in harm to third persons by “concert of action.” Again, the court applied agency principles to find that Hall was an agent for both the HOA and for his company, which competed against the plaintiff. Silverthorne, supra, 2025 IL App (2d) 240703-U at ¶37. Principals may be found liable for the torts of their agents if the agents are acting with “actual authority,” which is either expressed authority or implied authority. The court found that the plaintiff did not plead facts on the scope of Hall’s actual authority for either the HOA or his company and that the court could not presume that Hall’s company authorized him to violate the HOA’s declaration. Id. Therefore, the dismissal of Count VI was also affirmed.

For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago

Kenneth Michaels, Jr. is a partner at Bauch & Michaels, LLC, with over four decades of experience in commercial litigation, transactions, and corporate governance. He represents a diverse clientele, including banks, insurance companies, and Fortune 500 businesses, specializing in asset sales, property management, and loan agreements. Ken is also a recognized Illinois “Super Lawyer” in real property law and has contributed extensively to legal education and community service. He teaches at the University of Illinois Chicago Law School and has been a public official in Illinois for nearly 30 years.

P.A. 103-804 was signed into law on August 9, 2024, with a delayed implementation date of January 1, 2026. The Act amends the Illinois Human Rights Act (IHRA) to require that employers provide notice if they are using artificial intelligence (AI) with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or other terms, privileges, or conditions of employment.

The Act adds a definition under the IHRA for AI: “a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.” 775 ILCS 5/2-101(N). It also includes “generative artificial intelligence,” which is defined under the IHRA as “an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following: (1) textual outputs, such as short answers, essays, poetry, or longer compositions or answers; (2) image outputs, such as fine art, photographs, conceptual art, diagrams, and other images; (3) multimedia outputs, such as audio or video in the form of compositions, songs, or short-form or long-form audio or video; and (4) other content that would be otherwise produced by human means. 775 ILCS 5/2-101(O).

The Act also prohibits an employer from using AI that has the effect of subjecting employees to discrimination on the basis of protected classes under IHRA or to use ZIP codes as a proxy for protected classes under the IHRA.

The Illinois Department of Human Rights (IDHR) was charged with adopting necessary rules on the circumstances and conditions that require notice, as well as the time period and means for providing notice. IDHR recently shared a draft version of the rules that provides employers insight on expected compliance measures. See proposed 56 Ill.Admin. Code §2520.900, et seq. (Subpart J: Use of Artificial Intelligence in Employment). As of December 23, 2025, the rules were not yet formally published for public comment and are therefore subject to change.

Key Provisions Included in the Draft Rules

Application. The draft rules apply to employers, as defined in the IHRA, as well as their agents, including recruiters and other third parties acting on an employer’s behalf.

When Notice Is Required. Notice is required when an employer uses AI to influence or facilitate a covered employment decision, including recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment. Some examples include

• using computer-based assessments or tests to make predictive assessments, measure skill, personality traits or fit of applicants or employees, or to screen, evaluate, categorize and/or recommend prospective or current employees
• using AI in directing certain job advertisements or recruiting materials to targeted groups, areas or populations
• screening résumés for particular patterns or terms
• analyzing facial expression, word choice and/or voice in online interviews, videos or interview transcriptions
• analyzing data acquired from third parties regarding prospective or current employees

Timing of Notice. If notice is required, employers must provide notice to current employees annually or within 30 days of adopting a new or substantially updated AI system. For prospective employees, the notice must be included in any job posting.

Manner of Notice. Notices must be posted (1) in employee handbooks or manuals; (2) in a conspicuous location on the employer’s physical premises where notices are usually posted; (3) in a conspicuous location on the employer’s intranet or external website where notices are customarily posted, which must also be accessible through a conspicuous link on the homepage of the employer’s external website; and (4) with any job notice or posting.

Content of the Notice. The notice must include

1. the name of the AI product and its developer and vendor, if applicable;

2. the employment decisions the AI system will influence or facilitate (e.g., recruitment, hiring, discipline, etc.);

3. the purpose of the AI system and the categories of personal information or employee data collected or processes by the system;

4. the types of job positions for which AI will be used;

5. a point of contact at the employer for questions about the AI system and its use;

6. the right to request reasonable accommodation and instructions on how to request it; and

7. the statutory language found in 775 ILCS 5/2-102(L).

In addition, notices need to be made available in the languages commonly spoken in the employer’s workforce, and reasonably accessible to employees with disabilities.

Recordkeeping Requirements. Employers must preserve notices, postings, and disclosures regarding AI and records of such use for a period of four years.

In consideration of the draft rules, employers who use AI in connection with employment decisions (or plan to use AI in the future) should begin preparing for compliance with the law and implementing rules.

For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Catherine R. Locallo, Robbins Schwartz, Chicago

Catherine R. Locallo, a partner at Robbins Schwartz, specializes in labor and employment law with a focus on education and board governance. She provides guidance on employment law, collective bargaining, and compliance with various acts. Catherine started as a paralegal, joined Robbins Schwartz in 2004, and became a partner in 2017. She holds a J.D. from The John Marshall Law School and a B.S. from Southern Illinois University. Notably, she is also involved in multiple professional organizations and community activities, including the Glenview Stars Hockey Association.

1. Post-judgment increase in child support affirmed. In In re Marriage of Patel, 2025 IL App (3d) 240453, the husband appealed the trial court’s order granting the wife’s petition for an increase in child support based on a substantial increase to the husband’s postjudgment income. The original judgment required the husband to pay $789 per month in child support, plus 6 percent of any additional net income over $250,896, up to $500,000, with an annual true-up provision. The judgment also stated the husband had no support obligation on any income over $500,000. At trial, the husband’s earnings for the prior year were more than $800,000. The trial court found the language of the judgment was voidable because it created a non-modifiable cap on child support at $500,000, and there were no required statutory findings for any deviation from guideline support when setting such a cap. The trial court also found a substantial change of circumstances had occurred and ordered the husband to pay monthly support in the amount of $3,750 per month, which was an upward deviation of guideline support. The husband appealed, and the appellate court affirmed. It is well settled that parties may not contract to make child support non-modifiable, and the $500,000 cap on income was not only non-modifiable, but it was also a deviation from the statutory guidelines without the written findings required by §505(a)(3.4) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq. In this case, the parties’ combined incomes exceeded the highest guideline level. Therefore, the trial court acted within its discretion in setting support above the guideline maximum at $3,750 per month based on the statutory factors, including the children’s standard of living had the marriage not dissolved.

2. Attorney fee award obtained in arbitration in dissolution action vacated due to lack of written engagement agreement. In In re Marriage of Stoltman and Lesure, 2025 IL App (3d) 240687, a law firm filed a final fee petition for setting of fees and costs against a former client in a dissolution action alleging it had an oral engagement agreement with the client. The firm sought recovery under the theories of quantum meruit and unjust enrichment. The trial court denied the client’s motion to dismiss and ordered arbitration when the law firm recovered $16,511 in fees. The client rejected the award, the trial court entered judgment, and the client appealed. The appellate court reversed the judgment. A law firm may not pursue attorney fees against a former client under §508(c) of the IMDMA absent a written engagement agreement. 750 ILCS 5/508. The lack of such a writing also bars recovery under quantum meruit within the dissolution action. The court rejected the argument that §508(c)(3)’s reference to quantum meruit eliminates the written-agreement requirement, explaining that quantum meruit applies only to determine fees not covered by the written contract — not to dispense with the contract altogether. Id. Because the petition was improperly brought under the IMDMA, the trial court erred in denying the client’s motion to dismiss and in entering judgment on the arbitration award. This decision underscores that attorneys without a written fee agreement must pursue any quantum meruit claim in a separate civil action, not within the dissolution case.

3. Temporary exclusive possession of the marital residence upheld. InIn re Marriage of Calcagno, 2025 IL App (3d) 250299, the husband filed for temporary exclusive possession of the marital residence during the pendency of the divorce case, and the trial court granted the motion. The wife filed an interlocutory appeal, which the appellate court heard because the order granting exclusive possession was injunctive relief. The court affirmed the trial court’s order. The wife argued that the trial court should not have admitted the §604.10(b) of the IMDMA, 750 ILCS 5/604.10, report of a doctor because the doctor was not available for cross-examination. The record showed that the wife did not subpoena the doctor for testimony, and the statute permits the court to review the report upon receipt. Although the trial court erred in admitting the doctor’s report into evidence over the wife’s objection, the error was harmless because the court was entitled to consider the expert’s opinions and ample other evidence in the record supported the trial court’s ruling. The record showed prolonged and severe family conflict, significant estrangement between the wife and the children, and credible testimony from the guardian ad litem and the husband that continued cohabitation was emotionally harmful to the children, even in the absence of physical abuse. Given the case’s duration, the children’s inability to escape the tense home environment, and the statutory focus on protecting mental well-being rather than requiring proof of a single abusive incident, the trial court acted properly in ordering wife to vacate the home pending final resolution.

For more information about family law, see ADOPTION LAW (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.

In Haase vs. Kankakee School District 111, 2025 IL 131420, the Illinois Supreme Court held that the qualified immunity provisions of the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et. seq., applied to a school district and its employee in an action filed by a student who was injured during gym class, reversing the decision of the appellate court and affirming the decision of the circuit court granting summary judgment in favor of the defendants. 2025 IL 131420 at ¶1.

Facts

On March 13, 2017, Darren Wilbur Dayhoff, an employee of Kankakee School District 111, was the supervising physical education teacher during a morning gym class. It was alleged that Dayhoff “provided soccer balls to the students, went to a seat in the corner of the gym, put his feet up, and began using his cellphone and/or a computer.” 2025 IL 131420 at ¶4. Sometime during class, “Student A,” who was alleged to have known behavioral issues, became overly aggressive and began initiating unwanted physical contact with other students, eventually tackling student Riley Haase, causing Riley to fall and severely and permanently injure his arm. 2025 IL 131420 at ¶5.

Riley’s father, as next friend of Riley (and later Riley, when he reached the age of majority), filed suit against the District and Dayhoff, alleging that Dayhoff breached his duty of reasonable care, was utterly indifferent, and consciously disregarded the safety of the students in his care by failing to adequately supervise the class and intervene when he knew or should have known that Student A’s conduct posed a risk. 2025 IL 131420 at ¶¶6 – 7.

Circuit Court

The defendants filed a motion for summary judgment, asserting qualified immunity for both negligent and willful and wonton conduct under §§2-109 and 2-201 of the Act. 2025 IL 131420 at ¶9. The defendants alternatively asserted qualified immunity for negligent conduct only under §3-108 of the Act on the basis that the plaintiffs failed to allege willful and wonton conduct. Id.

The circuit court granted summary judgment in favor of the defendants, holding that both the District and Dayhoff were immune from liability under §§2-109 and 2-201 of the Act. Specifically, the court noted that Dayhoff exercised his discretionary and policymaking judgment within the meaning of §2-201 of the Act through his determination of the activities to be performed during the class period as well as identifying the students who were allowed to participate. 2025 IL 131420 at ¶22.

The circuit court also determined that the plaintiffs did not assert sufficient facts to support an allegation of willful and wonton conduct, and that “inadvertence” and “inattentiveness” by a District employee was not alone sufficient to make this showing. 2025 IL 131420 at ¶23. The circuit court further opined that even if §2-201 immunity didn’t apply, the defendants were immune from liability under §3-108 of the Act. Id. The plaintiffs filed an appeal.

Appellate Court

The appellate court identified matters that it believed were disputed issues of material fact that would preclude summary judgment. 2025 IL 131420 at ¶24. First, the appellate court determined that there was a disputed issue of material fact on the matter of whether Dayhoff made a conscious discretionary decision or policy determination within the meaning of §2-201. Id. Likewise, the court found that the District’s knowledge of Student A’s disciplinary history and obligation to warn its teachers also constituted an issue of material fact as to whether the conduct was willful and wonton. Id. Because the appellate court believed there were disputed issues of material fact, it held that summary judgment was improper and reversed the circuit court’s judgment. Id.

Illinois Supreme Court

The Illinois Supreme Court examined whether the circuit court erred in entering summary judgment in favor of the defendants based on §§3-108, 2-109, and 2-201 of the Act. 2025 IL 131420 at ¶29. Section 3-108 provides that public employees are immune from liability for negligent supervision of activities on public property unless the public employee or entity is guilty of willful and wonton conduct. “Willful and wonton conduct” is defined in §3-108 as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” 2025 IL 131420 at ¶33. While generally a question of fact, the court may decide the issue on summary judgment if the undisputed facts, viewed in the light most favorable to the nonmoving party, are insufficient to sustain such an allegation. 2025 IL 131420 at ¶34.

The Illinois Supreme Court disagreed with the appellate court’s assessment of the District’s willful and wonton conduct, noting that (a) the plaintiffs’ pleadings never alleged that the District independently had a duty to warn its teachers about Student A’s history and (b) the plaintiffs’ entire argument against the District was based solely on Dayhoff’s actions and the District’s vicarious liability as employer. 2025 IL 131420 at ¶35. Accordingly, the court determined that because this cause of action was not included in the pleadings, it was not an issue of material fact that would preclude summary judgment. 2025 IL 131420 at ¶36. With regard to whether Dayhoff knew or should have known about Student A’s history, the court determined that Dayhoff’s and the District administrator’s sworn deposition denied this knowledge and the plaintiffs provided no evidence to refute. 2025 IL 131420 at ¶¶37 – 38. Because the plaintiffs could not rely on the pleadings alone and did not provide any evidence in support of their claims, the Illinois Supreme Court determined that no issues of genuine material fact existed. 2025 IL 131420 at ¶40.

Finally, the Illinois Supreme Court examined whether summary judgment was appropriate. The court noted that indoor soccer, the activity played in class, was not an inherently dangerous activity that would constitute willful and wonton conduct. 2025 IL 131420 at ¶42. Regarding the plaintiffs’ negligence claims alleging that, had Dayhoff been paying attention to the class, he would have observed Student A’s behavior and intervened, the court found that although the facts supported a claim of negligent failure to supervise, Dayhoff’s actions did not rise to the level of willful and wonton conduct. 2025 IL 131420 at ¶44. Accordingly, the court found that the defendants established immunity under §3-108 of the Act. 2025 IL 131420 at ¶46. Because §3-108 applied, the court did not address the applicability of §§2-109 and 2-201. Id.

For more information about governmental tort immunity, see MUNICIPAL LAW: CONTRACTS, LITIGATION, AND HOME RULE (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Laura M. Julien, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C., Sugar Grove

Laura M. Julien is a partner with Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C. in Sugar Grove, Illinois, where she concentrates her practice in municipal law, school law, corporate law, and real estate matters. She is a member of the Illinois State Bar Association, Kane County Bar Association, State Bar of Wisconsin, National Council of School Attorneys, Illinois Local Government Lawyers Association, and Illinois Council of School Attorneys. She is also a recurrent presenter with the National Business Institute. Laura earned her undergraduate, with honors, from the University of Wisconsin and her J.D. degree from the University of Notre Dame Law School.

For more information, see §§3.5 – 3.13 of Brian K. Jackson, Ch. 3, Labor and Employment, MILITARY SERVICE AND THE LAW (IICLE®, 2026)

The Uniformed Services Employment and Reemployment Rights Act’s right to reemployment encompasses two guarantees set forth in 38 U.S.C. §§4312 and 4313. Section 4312 lays out the basic right of a returning veteran to be rehired by the veteran’s past employer and the basic prerequisites that the veteran must meet in order to enjoy that right. Section 4313 sets out the position of employment to which the returning veteran must be rehired and requires that the veteran be “promptly reemployed” in that position. 38 U.S.C. §4313.

These sections protect servicemembers at the instant of seeking reemployment, entitling that servicemember to the position the servicemember would have occupied had the servicemember not left for military service or, in certain circumstances, “a position of like seniority, status and pay, the duties of which the person is qualified to perform.” 38 U.S.C. §4313(a)(2)(A).

Eligibility for Reemployment Under 38 U.S.C. §4312

The Uniformed Services Employment and Reemployment Rights Act requires the servicemember to meet all five general eligibility requirements to be eligible for reemployment. The employee must (1) have left civilian employment, (2) have given timely notice, (3) have been absent for a period generally not to exceed five years, (4) be released under honorable or general conditions, and (5) report back to work in a timely fashion. 38 U.S.C. §4312. Each requirement is addressed below.

Civilian employment. Any person who is absent from a position of civilian employment due to service in the uniformed services is entitled to the reemployment rights and benefits of USERRA as long as the other criteria are met. 38 U.S.C. §4312(a).

Timely notice. The employee must give advance notice to the employer of the call to duty. This notice can be written or verbal. 38 U.S.C. §4312(a)(1). Additionally, the notice may be provided by an “appropriate officer of the uniformed service in which such service is performed.” Id. If notice is precluded by military necessity or is otherwise impossible or unreasonable, advance notice is not required. The determination as to whether this exception applies is set forth in regulations prescribed by the Secretary of Defense. It should be noted that these regulations are not subject to judicial review.

PRACTICE POINTER: Under USERRA, an employer cannot require an activated or drilling employee to seek approved leave for military obligations. An employer cannot deny military leave and cannot discipline or discharge an employee for taking military leave.

Length of absence. The cumulative length of absence due to military services cannot exceed five years. 38 U.S.C. §4312(c). Thus, an employer must reemploy an individual covered by USERRA even if away from employment for five years. In some cases, the five-year time frame may be exceeded. The length of absence can be extended if

1. more time is required to complete an initial period of obligated service (there are certain military specialties that require initial activation beyond five years, such as the Navy’s nuclear power program);

2. the employee, through no fault of the employee’s, was unable to obtain release orders from service in the uniformed services (e.g., a member of the Navy or Marine Corps whose obligated service date expires while the member is at sea or a servicemember involuntarily held on active duty beyond the expiration of obligated service);

3. the Secretary of Defense requires additional training determined to be necessary for professional development, completion of skill training, or retraining (e.g., mandatory annual training and drill weekends);

4. the employee has been ordered to or retained on active duty because of war or a national emergency;

5. the employee has been ordered to active duty to participate in an operational or critical mission;

6. the employee has been ordered to active duty in support of an operational mission for reasons other than war or national emergency, by authority of 10 U.S.C. §12304;

7. the employee has been ordered to active duty in support of a critical mission or requirement in times other than war or national emergency; or

8. the employee is called into federal service as a member of the National Guard by the President. 38 U.S.C. §4312(c).

Discharge status. In order to qualify for reemployment, the servicemember must not have been separated from service with a disqualifying discharge or under other than honorable conditions.

The employer has the right to request documentation from an employee who is absent for a period of service of 31 days or more. 38 U.S.C. §4312(f). This documentation can be used to verify that an employee’s application for reemployment is timely, that the employee has not exceeded the five-year time limit, and that there was a qualifying separation.

PRACTICE POINTER: Under USERRA, in the absence of specific knowledge of a disqualifying discharge, an employer should presume that an employee qualifies for reemployment and reinstate that employee. The employer can continue to investigate whether an employee qualifies.

Timely reapplication.The servicemember must return to work or apply for reemployment in a timely manner after conclusion of service. The timeliness of the application is determined by requirements set forth in 38 U.S.C. §4312(e). A formal job application is not required — the servicemember need only notify the employer that the servicemember is returning to work. Servicemembers are encouraged by the respective branches of the armed forces to make written notification, but it is not required under USERRA.

For service of 1 – 30 days, the employee must report back by the beginning of the first regularly scheduled workday that would fall eight hours after the end of the calendar day.

For service of 31 – 180 days, an application for reemployment must be tendered no later than 14 days after completion of a person’s service. If the 14th day falls on a day when the offices are not open or there is otherwise no one available to accept the application, the time extends to the next day.

For service of more than 180 days, an application for reemployment must be tendered no later than 90 days after completion of a person’s service. As above, if the 90th day falls on a day when the offices are not open or there is otherwise no one available to accept the application, the time extends to the next day.

For employees who are hospitalized or convalescing because of a disability or injury incurred or aggravated during the period of military service, the application deadlines are extended for up to two years. 38 U.S.C. §4312(e)(2)(a). If an employee fails to report, the right to reemployment is not automatically forfeited; the employee becomes subject to the employer’s rules governing unexcused absences. 38 U.S.C. §4312(e)(3).

PRACTICE POINTER: If an employee does not reapply, the discipline/discharge process for absent employees begins following the lapse of the reapplication term.

Reemployment Positions Under 38 U.S.C. §4313

The position to which a servicemember is entitled is addressed in §2(a) of the Uniformed Services Employment and Reemployment Rights Act. 38 U.S.C. §4313. In general, upon following the notice requirements, an employee must be promptly reemployed. The commentators and caselaw suggest that for absences in excess of 180 days an employee should be returned by the employer within two weeks of application for reemployment. 20 C.F.R. §1002.180. Job placement is divided into four categories, as discussed below.

Period of Service of Less than 91 Days

For a period of service of less than 90 days, an employer is required to place the returning employee into the position the person would have held but for service in the uniformed services as long as the person is qualified to perform the duties of the position. 38 U.S.C. §4313(a)(1)(A). If the employee is not qualified to perform the duties, the employer must make “reasonable efforts” to qualify the employee. 38 U.S.C. §4313(a)(1)(B). If this is not possible, then the employee must be placed in the position the employee held at the commencement of service in the uniformed service. Id. In other words, in the following order of priority, the employer is required to

1. continue the employee in the position the employee would have held (i.e., promotion, pay grade increases, title, etc.); or

2. if the individual is not qualified for the position the individual would have held,

a. make reasonable efforts to qualify the person if not qualified for the above position upon return; or

b. return the employee back to the position the employee held before entering the uniformed services.

Period of Service of More than 90 Days

As with those serving for less than 90 days, an employee whose period of service in the uniformed services was for more than 90 days must be placed in the position the employee would have held had the employee’s service to the employer not been interrupted by a call to duty. 38 U.S.C. §4313(a)(2)(A). However, if that is not possible, the employee must be placed in a position of like seniority, status, and pay as long as the employee is qualified to perform the job. Id. If the employee is not qualified to perform the job, the employer must again make reasonable efforts to qualify the individual for the position the employee would have held. 38 U.S.C. §4313(a)(2)(B). If after such reasonable efforts, the individual is still not qualified for that position, the individual must be placed in a position of like seniority, status, and pay that the individual does qualify to perform. Id. In other words, the employer is required to

1. continue the employee in the position the employee would have held (i.e., promotion, pay grade increases, title, etc.); or

2. if the individual is not qualified for the position the individual would have held,

a. make reasonable efforts to qualify the employee; or

b. place the employee in a position for which the employee does qualify that is of like seniority, status, and pay.

Reemployment of a Disabled Person

A person with a disability incurred in or aggravated during service who, after reasonable efforts by the employer to accommodate the disability, is not qualified due to the disability for continuous employment in the position held prior to entering duty in the uniformed services must be placed in

1. any position of equivalent seniority, status, and pay that the individual is qualified to perform or could become qualified to perform with reasonable efforts by the employer; or

2. in a position that is similar in terms of seniority, status, and pay to the position the person would have held if the person’s employment had not been interrupted by entering duty in the uniformed services. 38 U.S.C. §4313(a)(3).

PRACTICE POINTER: Reemployment of a person whose disability is a result of the Uniformed Services Employment and Reemployment Rights Act protected military service is not the same as an accommodation under the Americans with Disabilities Act of 1990 (ADA), Pub.L. No. 101-336, 104 Stat. 327. USERRA offers greater protections to the returning servicemember than the ADA.

Escalator Position

The “escalator position” is the starting point for determining the proper reemployment position. The escalator principle requires that each returning servicemember actually step back onto the seniority “escalator” at the point the person would have occupied had the person been continuously employed. 20 C.F.R. §1002.191. The employee is entitled to the job that the employee would have attained with reasonable certainty if not for the military service. Id. This could include a promotion, a transfer, or even a layoff. 20 C.F.R. §1002.194. Even though the servicemember steps back into the servicemember’s place of seniority, it may not be for the same job that the servicemember held before entering military duty. In the unionized workplace, this is an easy calculation because wages, seniority, assignments, and other terms and conditions of employment are detailed in the collective-bargaining agreement.

The reemployment position must consider factors such as seniority, status, and rate of pay. 20 C.F.R. §1002.193(a). This would include consideration of job history, including prospects for future earning and advancement. The most troubling concepts here are “status” and what constitutes an equivalent status. When considering whether a position is of similar status, one should consider opportunities for advancement, general working conditions, job location, shift assignment, rank, responsibility, and geographical location. Id.

Promotions

If a promotional opportunity was available during the absence for military service, the Uniformed Services Employment and Reemployment Rights Act requires that an employer give the returning employee a reasonable amount of time to adjust to the new position before giving the skills test or examination. 20 C.F.R. §1002.193(b). Further, an employee is entitled to the same preparation time, materials, and examination that the non-servicemember employees received. If an employee is successful on the makeup test or exam and there is a reasonable certainty that the employee would have been promoted to the position, the promotion or eligibility for promotion must be made effective as of the date the employee would have been promoted or eligible if employment had not been interrupted for military service. Id.

Under USERRA, an employer can offer a promotional examination to a deployed employee, but cannot require that employee to take the examination while on active duty.

PRACTICE POINTER: The armed forces may be able to proctor a promotional examination. The employer should contact the deployed employee’s unit to inquire.

Reemployment of Servicemembers with Disabilities

When an individual has a disability that is incurred or aggravated during such service, the employer has an affirmative duty to make “reasonable efforts” to accommodate the disability. The Uniformed Services Employment and Reemployment Rights Act defines “reasonable efforts” as “actions, including training provided by an employer, that do not place an undue hardship on the employer.” 38 U.S.C. §4303(10). USERRA defines an undue hardship as “actions requiring significant difficulty or expense.” 38 U.S.C. §4303(16). Several factors are considered in determining whether an action is significantly difficult or expensive. The factors include

1. the nature and cost of the action;

2. the overall financial resources of the facility or facilities involved;

3. the effect or impact of the expenses and resources on the operation of the facility;+

4. the overall financial resources of the employer;

5. the overall size of the business (i.e., number of employees, number and type of locations of its facilities, etc.); and

6. the type of operation. Id.

In Fink v. City of New York, 129 F.Supp.2d 511 (E.D.N.Y. 2001), the defendants were held liable under USERRA and the Americans with Disabilities Act. The plaintiff, a retired fire marshal with the defendant city fire department, claimed discrimination and retaliation on the basis of his military service and his perceived hearing loss disability. Upon returning from military duty in 1994, the plaintiff claimed that the New York City Fire Department began to discriminate against him by first refusing to allow him to take a makeup promotional exam. The employer ultimately allowed him to take the exam in 1997. However, it refused to furnish him with the necessary study materials. Furthermore, Fink claimed that the fire department discriminated against him by altering the terms of his employment, assigning him to alternative duties, and forcing him to undergo extra medical exams. A jury found in his favor on all counts and awarded him damages of backpay, lost benefits, liquidated damages, and emotional distress.

PRACTICE POINTER: Unlike the ADA, which places the responsibility for adapting the workplace or job tasks on the employer, the returning servicemember may be eligible for a variety of services or devices under the Veteran Readiness and Employment Program of the U.S. Department of Veterans Affairs. Details are available at www.benefits.va.gov/vocrehab/index.asp.

Brian K. Jackson, Laner Muchin, Chicago

Brian K. Jackson is a Partner at Laner Muchin in Chicago, where his practice focuses on labor and employment law. Brian received his BA from Southern University and A&M and his JD cum laude, Order of the Coif, from Southern University Law Center.

Practitioners see this on a regular (sometimes even monthly) basis in First District cases: Chicago’s Residential Landlord Tenant Ordinance (RLTO) requires landlords’ hypervigilance in complying with its technical, often counterintuitive provisions, lest they incur substantial penalties for noncompliance. A common trap for unsuspecting landlords is the improper handling of security deposits, which can result in a penalty equaling double the security deposit held. Surprisingly, the landlord’s acknowledged mishandling of the security deposit and ensuing penalty was not disputed by the parties in the recent First District case Republic Ontario LLC v. Organ, 2025 IL App (1st) 231405. Rather, it was the manner in which the landlord attempted to recover its attorneys’ fees that caused it trouble, again highlighting the need for hypervigilance in pursuing claims when the RLTO is involved.

Facts

In May 2020, Lawrence and Susan Organ entered into a luxury residential lease with Republic Ontario LLC, with monthly rent at $18,750, a required $37,500 security deposit, and a lease term ending on June 30, 2022. 2025 IL App (1st) 231405 at ¶¶4 – 5. It is undisputed that Republic Ontario did not provide a security deposit receipt to the Organs. Id. The lease also contained a common fee-shifting provision requiring the Organs to pay Republic Ontario’s legal fees and costs “to the extent permitted by court rules, statute, or local ordinance.” 2025 IL App (1st) 231405 at ¶6.

Approximately six months into their lease, the Organs entered into a side agreement with a third-party, Thomas Merkel, to sublease the unit with the intention that Merkel be added to the lease. 2025 IL App (1st) 231405 at ¶¶7 – 8. It is unclear whether Republic Ontario ever agreed to add Merkel to the lease. Id. Due to various alleged issues with the apartment, including the HVAC system causing the master bedroom to vibrate and make noise, the Organs, via their attorney, notified Republic Ontario that they would be terminating their lease as of May 31, 2021. 2025 IL App (1st) 231405 at ¶¶10 – 12. On the advice of their attorney, the Organs paid rent to Republic Ontario up to May 31, 2021, on which date it was undisputed that the Organs and Merkel had vacated the apartment. 2025 IL App (1st) 231405 at ¶¶12 – 14.

In response, Republic Ontario contended that the Organs had abandoned the lease and were obligated to make the payments through the lease end date of June 30, 2022, ultimately prompting it to file a complaint against them for unpaid rent and damages and alleging that it was “taking all commercially reasonable steps to mitigate damages, including relisting the premises for rent.” 2025 IL App (1st) 231405 at ¶¶12, 15 – 16.

Although initially defaulted by the trial court for failing to appear, the Organs, through counsel, filed a timely motion to vacate the default judgment and shortly thereafter answered the complaint and filed their counterclaim. 2025 IL App (1st) 231405 at ¶¶18 – 23. The tenants alleged that Republic Ontario failed to mitigate its damages by failing to list the subject property to rent for months after they had moved out and when it was eventually listed, the monthly rent sought was “in excess of the rental value.” 2025 IL App (1st) 231405 at ¶21. In their counterclaim, the Organs alleged various violations of RLTO regarding the handling of their security deposit and because Republic Ontario had sought attorneys’ fees against them in express violation of the ordinance. 2025 IL App (1st) 231405 at ¶¶22, 23.

During discovery, Republic Ontario admitted that it “failed to list the address where the security deposit was held on the lease” and failed to deposit the security deposit “into a bank in Illinois” — both express violations of the RLTO. 2025 IL App (1st) 231405 at ¶27. Republic Ontario also admitted that after the Organs and Merkel had vacated the apartment, it undertook necessary and significant repairs of the unit, including repairs to the roof and wood flooring, and could not market the property to new prospective tenants until the work was completed approximately nine months later. 2025 IL App (1st) 231405 at ¶28. Ultimately, Republic Ontario entered into a new lease starting in July 2022, the month following the expiration of the Organs’ original lease term. Id.

The Organs moved for summary judgment on various counts and obtained partial summary judgment with respect to their security deposit counterclaims, which Republic Ontario admitted it had violated, and on Republic Ontario’s request for attorneys’ fees in violation of the RLTO. 2025 IL App (1st) 231405 at ¶¶30 – 40. The trial court order found Republic Ontario liable on the Organ’s counterclaim for “a combined sum of $112,500 — that is, $75,000 (twice the security deposit) for violation of [RLTO] section 5-12-080 [and] and $37,500 (two months’ rent) for violation of [RLTO] section 5-12-040.” 2025 IL App (1st) 231405 at ¶40. Whether Republic Ontario had reasonably mitigated its damages was continued for bench trial.

Ultimately, the trial court found that the Organs were liable to Republic Ontario for rent from the date their landlord relisted the unit until the end of their lease term (about five months of rent). 2025 IL App (1st) 231405 at ¶43. In rendering its decision, the trial court essentially found that Republic Ontario could not seek damages for lost rent for the nine months immediately following the Organs’ vacation of the unit because material issues to the condition of the unit (not caused by the tenants) precluded renting it to someone else — conditions supported by the evidence presented by Republic Ontario itself. 2025 IL App (1st) 231405 at ¶48. Ultimately, after crediting the Organs for the amount of their security deposit, the trial court entered judgment in favor of Republic Ontario for $54,910.71, which it offset against the previously entered $112,500 judgment relating to the Organs’ counterclaims 2025 IL App (1st) 231405 at ¶50.

In the end, Republic Ontario was liable to the Organs for nearly $58,000, prompting it to timely file an appeal. 2025 IL App (1st) 231405 at ¶51. Notably, Republic Ontario did not challenge the award with respect to the security deposit violations but, rather, challenged the trial court’s ruling with respect to (1) the request for its attorneys’ fees in its default motion (two times the rent or $37,500) and (2) on the lower court’s failure to award lost rent damages for the period of June 1, 2021, to February 2022. 2025 IL App (1st) 231405 at ¶¶53, 56.

Appellate Court

The appellate court, noting that “[t]he construction and legal effect of the lease agreement and the provisions of the [Ordinance] are questions of law” that are subject to de novo review, upheld the lower court’s ruling. 2025 IL App (1st) 231405 at ¶¶60, 61.

RLTO §5-12-140 expressly prohibits any rental agreement obligating a tenant to cover a landlord’s attorneys’ fees “except as provided for by court rules, statute, or ordinance.” 2025 IL App (1st) 231405 at ¶71. Section 5-12-140 further provides that “[i]f the landlord attempts to enforce a provision in a rental agreement prohibited by this section the tenant may recover two months’ rent.” Id. Even though the default order awarding Republic Ontario its fees was almost immediately vacated and no attorneys’ fees award was ever entered in favor of Republic Ontario, the fact that it had attempted to recover its the fees in the first place, along with failure to give proper notice to the Organs of its intent to seek a fee award in its complaint or in its motion practice, was deemed sufficient to constitute a violation of the RLTO. 2025 IL App (1st) 231405 at ¶¶72 – 76. (citing notice requirements of 735 ILCS 5/2-604.2 and Illinois Supreme Court Rule 105).

In rendering its decision, the appellate court, like the trial court, recognized that Illinois courts repeatedly have held similar lease provisions are not violative of the RLTO and, therefore, declined to hold that Republic Ontario’s fee shifting provision was, on its face, impermissible under the RLTO. 2025 IL App (1st) 231405 at ¶¶78 – 82. Rather, the appellate court agreed with the lower court’s decision, which “was based on landlord’s improper attempt to seek its fees as part of a default judgment, outside the rules of pleading and beyond the scope of the [RLTO].” 2025 IL App (1st) 231405 at ¶81. In other words, just because attorneys’ fees potentially may be recoverable under the RLTO did not absolve Republic Ontario from complying with separate procedural rules when it sought attorney fees in conjunction with a default judgment. Accordingly, Republic Ontario’s actions “amounted to an attempt to enforce a prohibited provision, justifying an award of two months’ rent under section 5-12-140.” 2025 IL App (1st) 231405 at ¶82.

With respect to the second issue on appeal, Republic Ontario made its own technical (albeit losing) argument under the RLTO that the trial court improperly denied its request for lost rental income for the unit from June 1, 2021 (after the Organs had declared the lease terminated), to February 2022 (when it was able to actively relist the unit after substantial repairs had been made). Republic Ontario claimed that the Organs had acted improperly by summarily declaring the lease terminated instead of giving it official notice of any defects in the unit and an opportunity to correct them, as required under RLTO §5-12-110. 2025 IL App (1st) 231405 at ¶89. As a result, Republic Ontario argued that the “tenants’ obligation to pay rent ‘was not terminated’ by the roof leaks and that they remained obligated to pay rent for the next several months.” Id. The appellate court rejected this argument, mainly because it lacked a sufficient record of the evidence and/or arguments presented to the lower court on which to base its review. 2025 IL App (1st) 231405 at ¶92.

Interestingly, the trial and appellate courts held the Organs to their lease obligations for the last five months of their lease term. If it was undisputed that the unit could not be rented for a substantial and prolonged period while the necessary repairs were being made, it is unclear why there wasn’t a basis to simply declare the lease terminated at that juncture rather than hold the Organs to their lease. Conceivably, Republic Ontario could have been liable for the Organs moving and alternate housing costs while the repairs were ongoing until the tenants could be relocated back to the unit for the last few months of their lease. Of course, these are just musings on the potential issues and arguments on hand and until the next RLTO case appears for review and analysis.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

In Safeway Scaffolding/Safeway Services, LLC v. Illinois Workers’ Compensation Commission, 2025 IL App (5th) 250298WC-U, the claimant sought benefits pursuant to §19(b) of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., for injuries sustained to his low back. The claimant was employed as an insulator and sustained an undisputed low back injury on October 26, 2018. He underwent an L4 through S1 lumbar spine fusion surgery on February 11, 2019, and was authorized to return to work on May 17, 2019, with a 20-pound lifting restriction and to avoid repetitive bending, stooping, or twisting.

On June 6, 2019, a light duty assignment was made commencing on June 10, 2019. The claimant testified that he did not appear on June 10, 2019, due to a flood that caused bridge and ferry closures causing a 4-hour drive to work, and he had a 30-minute sitting restriction. He also testified that the job was a sham offer based on his situational experience. The respondent’s witness testified that the light duty job assignment was within the claimant’s restrictions and consisted of necessary tasks and was not a sham. He also testified that the position required making and trimming bandings. The job did not require any lifting.

Dr. Coyle amended the restrictions on July 2, 2019, to include 30 pounds lifting and intermittent sitting, standing, and walking every 30 minutes.

On July 7, 2019, the claimant contacted the employer and left a voicemail that he would return to work in a light-duty capacity. The employer did not respond to this call.

The claimant continued to treat thereafter until October 14, 2019, when he was released to maximum medical improvement by Dr. Coyle. He recommended the claimant seek physiatrist treatment if necessary.

Thereafter, the claimant was examined by Dr. Wayne at respondent’s request. He opined that the claimant could have returned to work light duty on May 17, 2019, and full duty as of October 14, 2019.

On January 10, 2020, the respondent sent an email offering to bring the claimant back to work full duty consistent with Dr. Wayne’s opinions. There was no restriction on driving, and they believed the claimant could pull over if he had issues driving to work.

The claimant testified that he wanted to proceed with additional treatment as recommended by Dr. Coyle. He understood he had been offered a job to return to work full duty. However, he did not believe he would be able to perform the job of an insulator and requested vocational rehabilitation services.

The arbitrator determined that the claimant had sustained a compensable accident and that his condition was causally related but that no further treatment was necessary. Medical benefits were awarded through the date of maximum medical improvement (MMI) of October 14, 2019. The arbitrator believed the petitioner could return to work full duty based on both Dr. Coyle and Dr. Wayne’s inability to find any explanation for the claimant’s alleged low-back pain when sitting. He also found significant Dr. Wayne’s findings of symptom magnification and Dr. Coyle’s opinions that the claimant did very well after surgery, could walk seven miles a day, and was in excellent health and physical condition. Prospective medical treatment was denied. Additionally, the arbitrator denied the claimant temporary total disability (TTD) after his refusal to return to work in a light-duty assignment after July 8, 2019. The arbitrator also denied vocational rehabilitation benefits.

The Commission affirmed and adopted the arbitrator's decision with certain modifications. On review, the circuit court of Madison County found that the Commission’s award of TTD benefits and its denial of maintenance benefits and vocational rehabilitation were against the manifest weight of the evidence. The court concluded that the claimant had not declined the light-duty job offered by the respondent.

On appeal, the respondent raised two principal issues. First, the Commission’s finding that the claimant’s refusal for light-duty work restrictions was not against the manifest weight of the evidence. Secondly, the Commission’s decision to deny maintenance and vocational rehabilitation services should be upheld.

The central issue before the court was whether the Commission’s denial of TTD benefits after July 8, 2019, was against the manifest weight of the evidence. Relying on Gallentine v. Industrial Commission, 201 Ill.App.3d 880, 559 N.E.2d 526, 147 Ill.Dec. 353 (2d Dist. 1990), and Presson v. Industrial Commission, 200 Ill.App.3d 876, 558 N.E.2d 127, 146 Ill.Dec. 164 (5th Dist. 1990), the court emphasized that the dispositive inquiry is whether the claimant’s unemployment results from medical incapacity or from a voluntary refusal of available work. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶27. They noted that the record supported the Commission’s conclusion that the claimant never intended to return to work for the respondent, notwithstanding repeated offers of light-duty and, later, full-duty employment. The claimant’s failure to report to work on June 10, 2019, his characterization of the position as a “sham,” and his lack of response to subsequent job offers collectively undermined his claim for continued TTD. They noted that the record supported that the job offer was not a sham given the respondent’s testimony. They noted that despite the offer that light duty work continued to be available, the claimant never presented for a light duty assignment.

Significantly, the court rejected the claimant’s argument that the absence of MMI was dispositive. While MMI often marks the natural endpoint of TTD, the court reiterated that it is not a prerequisite to the termination of TTD benefits. An employee who is medically capable of working within restrictions and who declines an offer for light duty work is not temporarily totally disabled within the meaning of the Workers’ Compensation Act, even if additional treatment is contemplated. 2025 IL App (5th) 250298WC-U at ¶54, citing Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, 236 Ill.2d 132, 923 N.E.2d 266, 276, 337 Ill.Dec. 707 (2010) (TTD benefits may be “suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor”).

The court also gave substantial deference to the Commission’s credibility determinations. The Commission reasonably discounted the claimant’s explanations for failing to report to work, particularly where certain restrictions were imposed only after the job offer was made and where medical evidence contradicted the claimant’s assertions regarding his inability to drive or sit. The Commission’s rejection of the “sham job” characterization was likewise supported by detailed testimony regarding the job’s duties and its consistency with the claimant’s restrictions.

Viewed collectively, the decision reinforces the evidentiary burden on claimants to demonstrate not only ongoing medical need but a genuine inability to work. It also confirms that well-documented, bona fide light-duty offers that have been declined can serve as a defense to a claim for TTD benefits.

The second issue concerned whether Commission’s original decision denying maintenance and vocational rehabilitation benefits was against the manifest weight of the evidence. The claimant argued that vocational rehabilitation was necessary because he could not return to his pre-injury job as an insulator and that the respondent failed to accommodate his restrictions. The court rejected this argument, holding that the Commission’s decision was not against the manifest weight of the evidence.

The court began by reiterating that vocational rehabilitation and maintenance are not automatic entitlements under §8(a) of the Workers’ Compensation Act. The claimant may only receive maintenance benefits while engaged in a prescribed vocation rehabilitation program. Rather, they are awarded where a work-related injury results in diminished earning capacity and where rehabilitation is reasonably likely to restore or increase that capacity. 2025 IL App (5th) 250298WC-U at ¶65, citing National Tea Co. v. Industrial Commission, 97 Ill.2d 424, 54 N.E.2d 672, 676, 73 Ill.Dec. 575 (1983). Importantly, maintenance benefits are incidental to participation in an approved vocational rehabilitation program and are payable only while the employee is actively engaged in such a program. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶65, citing Euclid Beverage v. Illinois Workers’ Compensation Commission, 2019 IL App (2d) 180090WC, ¶29, 124 N.E.3d 1027, 429 Ill.Dec. 517.

Here, the Commission found that vocational rehabilitation was neither necessary nor appropriate because the claimant was capable of returning to work within his restrictions and had been offered suitable employment by the respondent. The record demonstrated that the claimant’s skills and physical abilities were sufficient to obtain employment without additional training, particularly given medical opinions supporting a return to full duty. Moreover, the claimant’s failure to accept light-duty work supported the conclusion that he lacked the requisite intent to return to work — a factor that independently weighs against an award of vocational rehabilitation.

The court also distinguished this case from situations in which an employer refuses to provide suitable work after an employee expresses a willingness to return. Unlike cases such as Otto Baum Company, Inc. v. Illinois Workers’ Compensation Commission, 2011 IL App (4th) 100959WC, 960 N.E.2d 583, 355 Ill.Dec. 701, the evidence in this case showed that the respondent consistently maintained the availability of work within the claimant’s restrictions and communicated that availability through counsel as documented in an email. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶65. The claimant’s failure to respond to or pursue those offers precluded a finding that vocational rehabilitation was necessary.

The Commission’s original decision was reinstated and the matter remanded with directions.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE^®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kisa P. Sthankiya

Kisa P. Sthankiya is a Partner at Rusin Law, Ltd., specializing in workers' compensation defense. With extensive experience in litigating workers' compensation claims, she has achieved successful outcomes at various court levels. Recognized as an “Emerging Lawyer” and a “Rising Star,” Kisa has also contributed as an educator and author in her field. She holds a B.S. from Northwestern University and a J.D. from Loyola University Chicago School of Law. Outside of work, Kisa enjoys fitness, traveling, and reading.

Our January FLASHPOINTS Author Spotlight recognizes James W. Dodge, who most recently served as a contributing author on LIMITED LIABILITY COMPANIES (IICLE^®, 2025). He has also written for BUSINESS PARTNERSHIPS and prior publications on business organizations since 1997.

Dodge first encountered IICLE when he was in private practice, where his specialties included corporate restructuring, business succession planning, and organizing business startups. He noted, “I was approached by a client who wanted to provide a key employee with an equity share in the business without losing control over their business. IICLE publications at the Illinois Supreme Court Library gave me the literacy I needed to know what questions to ask my client.”

After publishing a law journal article on Illinois’ then-new limited liability partnerships, Dodge took the opportunity to become a contributing author when he was serving as an assistant attorney general in the Revenue Litigation Bureau of the Illinois Attorney General’s Office and has since written numerous chapters on limited liability partnerships and limited liability companies. A long-time instructor at several colleges and universities, Dodge initially wrote his chapter on limited liability partnerships as a resource for his students before publishing it with IICLE. He noted: “There were no textbooks available with information on limited liability partnerships[,] and I wanted to provide my students with a resource to understand what was (at the time) a new form of business organization in a focused, practical manner — which turns out to be just what practicing attorneys are looking for.”

Dodge is a Professor at Purdue Global Law School, where he teaches business organizations, contracts, real property, and estates, wills, and trusts. He served as a member of the Uniform Laws Commission from 2011 to 2022. Dodge worked for the State of Illinois in numerous capacities, retiring as Executive Director of the Illinois Legislative Reference Bureau.

Dodge is a graduate of the University of Illinois at Urbana-Champaign and holds a J.D. from Southern Illinois University Simmons Law School. He is currently pursuing a PhD from the University of Aberdeen’s School of Law.