Supreme Court Summaries

Opinions filed February 21, 2014






Bartlow v. Costigan, 2014 IL 115152



Appellate citation: 2012 IL App (5th) 110519.


            JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

            Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and             Theis concurred in the judgment and opinion.


      The Employee Classification Act, which became effective in 2008, addresses the practice of misclassifying employees as independent contractors in the construction industry. In this case from Franklin County, the Illinois Supreme Court upheld the circuit court’s rejection of a business’s facial challenge, on vagueness grounds, to the constitutionality of the Act. A procedural due process challenge was found to have been mooted by recent legislation.

      Plaintiffs Rhonda and Jack Bartlow are general partners in a construction-related business called Jack’s Roofing, which installs siding, windows, seamless gutters and roofs. There are other individual plaintiffs who are involved in doing these installations. In the complaint filed in circuit court, the plaintiffs sought injunctive relief against enforcement of the Act and a declaration of the facial unconstitutionality of certain of its provisions. This the circuit court refused to do. The Director of the Department of Labor, who had been made defendant, was awarded a summary judgment, and the appellate court affirmed.

      The Act broadly provides that any individual “performing services” for a construction contractor is “ deemed to be an employee of the employer.” The statutory term “performing services” is extensively defined. There are exemptions for independent contractors, sole proprietors, and partnerships if they can satisfy specific criteria, set out in the statute, showing that they effectively operate independently from the construction contractor.

      In this decision, the Illinois Supreme Court rejected the plaintiffs’ claims that these provisions are facially unconstitutional as impermissibly vague. The court did this because the Act provides a person of ordinary intelligence with a reasonable opportunity to understand what it prohibits and also does not encourage arbitrary or discriminatory enforcement. Although the plaintiffs asserted that their subcontractors satisfied the statutory elements for qualifying for the exemptions provided in the Act, the supreme court said that this was an implicit concession that they understood what is required for an exemption to be applicable. The court said that, to prevail on a facial challenge, vagueness must be shown in all applications of the challenged statute, and this the plaintiffs failed to do. The rejection of the vagueness challenge by the courts below was upheld.

      While this case was pending on appeal, the statute in question was amended effective January 1, 2014, concerning formal administrative hearings and also concerning application of the Administrative Review Law. The plaintiffs had raised procedural due process challenges to the pre-amendment version of the Act, and this issue was the subject of supplemental briefing in the supreme court. It was held here that, because the Act’s enforcement procedures have been substantially replaced, the plaintiffs’ procedural due process claim is now moot.

      Plaintiffs had also challenged the Act as denying equal protection and amounting to impermissible special legislation, but these issues were found forfeited by not having been fully briefed and argued.