Martin v. Illinois Dept. Of Transportation, 13 ILWCLB 184 (Ill.Ind.Comm. 2005).
: The Commission held that a highway employee’s overtime wages should be included in his average weekly wage calculation, as evidence indicated that the claimant was required to work such overtime was as a condition of his employment.
What it means:
Where a union contract governing work rules provides for an employee to be disciplined if he fails to respond to overtime calls from the employer, such overtime should be included in the AWW calculation.
: A highway maintenance employee filed a benefit claim for neck and back injuries sustained when a falling tree struck him at work. The claimant testified that his paychecks reflected a base salary, any overtime earned, and additional salary if he worked in a supervisory capacity as a lead worker. He stated he normally worked a 40 hour week, but from Nov. 1 until March 31 of each year, the “snow and ice period,” he was required to work overtime, if called, during inclement weather conditions. Pursuant to union contract, an employee’s failure to respond to such a call would result in disciplinary actions. The claimant testified that during the year preceding the injury, he frequently worked as a lead worker and also worked substantial overtime during the snow and ice periods. Based on the claimant’s testimony, pay stubs and case law, the arbitrator included overtime in the AWW calculation, as the claimant was required to work overtime as a condition of his employment. Upon review, the Commission affirmed the award with modification to the PPD award.
In Edward Don C. v Industrial Commission, the appellate court found that in order to include overtime earnings in the calculation of the AWW, evidence must establish that the claimant was required to work overtime as a condition of his employment, he consistently worked as a set number of overtime hours each week, or the overtime hours worked were part of the regular hours of employment. In the instant case, a union contract governed the work rules involved and the claimant would have been disciplined for his failure to respond to inclement weather calls. Under these circumstances, the overtime pay at the straight time rate must be included in the calculation of the AWW.