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When releases do not work: Employees and Workers Compensation

State Law prohibits releases for employees if they are covered by Worker’s Compensation.

Prior to the creation of Worker’s Compensation, if an employee was injured at work he had to sue his employer and prove the employer was negligent to recover for his injuries. This created problems for both parties. Injured employees went bankrupt attempting to win a suit and employers injured employees rather than keeping workplaces safe. It was cheaper to fight a lawsuit then make a workplace safe.

With the creation of worker’s compensation the employers and employees both gave up and received benefits. Basically, in return for not suing the employer the employee receives medical care and some of their lost wages.

An employee gives up the right to sue the employer if they accept worker’s compensation benefits. The employer is required to carry worker’s compensation on employees or they can suffer fines or damages levied by the state or if sued by the employee additional damages over what are owed.

Colorado Statutes state that if you accept worker’s compensation you give up other rights to sue.

C.R.S. §§ 8-41-104. Acceptance as surrender of other remedies

An election under the provisions of section 8-40-302 (5) and in compliance with the provisions of articles 40 to 47 of this title, including the provisions for insurance, shall be construed to be a surrender by the employer, such employer’s insurance carrier, and the employee of their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries or death of such employee other than as provided in said articles, and shall be an acceptance of all the provisions of said articles, and shall bind the employee personally, and, for compensation for such employee’s death, the employee’s personal representatives, surviving spouse, and next of kin, as well as the employer, such employer’s insurance carrier, and those conducting their business during bankruptcy or insolvency.

Georgia Statutes state:

O.C.G.A. § 34-9-11 (2013)

§ 34-9-11.  Exclusivity of rights and remedies granted to employee under chapter; immunity granted to construction design professionals

(a) The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits, and other than a construction design professional who is retained to perform professional services on or in conjunction with a construction project on which the employee was working when injured, or any employee of a construction design professional who is assisting in the performance of professional services on the construction site on which the employee was working when injured, unless the construction design professional specifically assumes by written contract the safety practices for the project. The immunity provided by this subsection to a construction design professional shall not apply to the negligent preparation of design plans and specifications, nor shall it apply to the tortious activities of the construction design professional or the employees of the construction design professional while on the construction site where the employee was injured and where those activities are the proximate cause of the injury to the employee or to any professional surveys specifically set forth in the contract or any intentional misconduct committed by the construction design professional or his employees.

(b) As used in subsection (a) of this Code section, the term “construction design professional” means any person who is an architect, professional engineer, landscape architect, geologist, or land surveyor who has been issued a license pursuant to Chapter 4, 15, 19, or 23 of Title 43 or any corporation organized to render professional services in Georgia through the practice of one or more such technical professions as architecture, professional engineering, landscape architecture, geology, or land surveying.

(c) The immunity provided by this subsection shall apply and extend to the businesses using the services of a temporary help contracting firm, as such term is defined in Code Section 34-8-46, or an employee leasing company, as such term is defined in Code Section 34-8-32, when the benefits required by this chapter are provided by either the temporary help contracting firm or the employee leasing company or the business using the services of either such firm or company. A temporary help contracting firm or an employee leasing company shall be deemed to be a statutory employer for the purposes of this chapter.

Illinois law states:

§ 820 ILCS 310/5. (Text of Section WITH the changes made by P.A. 89-7, which has been held unconstitutional) [Exclusive remedy against employer; third party liability]

Sec. 5. (a) There is no common law or statutory right to recover compensation or damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for or on account of any injury to health, disease, or death therefrom, other than for the compensation herein provided or for damages as provided in Section 3 of this Act [820 ILCS 310/3]. This Section shall not affect any right to compensation under the “Workers’ Compensation Act” [820 ILCS 305/1 et seq.].

No compensation is payable under this Act for any condition of physical or mental ill-being, disability, disablement, or death for which compensation is recoverable on account of accidental injury under the “Workers’ Compensation Act“.

Consequently the battle in worker’s compensation cases is whether or not someone was an employee. Several people are automatically excluded; first independent contractors are not employees. Interns are probably a revolving area of the law, and are probably moving close to being called employees. Several recent federal regulatory changes have required more education for interns and several lawsuits have resulted in interns receiving pay. If interns are paid, then they are employees covered under worker’s compensation.

Interns that have been injured and not covered by worker’s compensation are prevented from recovering because of state law, not because of unequal bargaining power.

The prohibition against lawsuits does not extend to malfunctioning equipment or any third party that might have caused the injury. An example would be an employee working on a road that is hit and injured by a car. The employee’s worker’s compensation would cover his lost wages and medical bills. The injured employee would still sue the driver of the car. However the worker’s compensation insurance company would have the right to recover any damages first before the injured employee based on its subrogation rights.

Simply put, an injury on the job provides guarantees not lawsuits. Those guarantees vary by state, but generally it means 100% of the injured employee’s medical bills are paid and a percentage of their income is replaced. If necessary additional retraining and/or long term disability if the injury is severe enough or permanent.

Employers don’t have to worry about being sued and employees do not have to worry about any defenses to their claims. Statues state that Assumption of the Risk is not a defense to a worker’s comp claim. (C.R.S. 8-41-101 (2013))

8-41-102. Liability of employer complying

An employer who has complied with the provisions of articles 40 to 47 of this title, including the provisions relating to insurance, shall not be subject to the provisions of section 8-41-101; nor shall such employer or the insurance carrier, if any, insuring the employer’s liability under said articles be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.

There is no litigation between employers and employees any more. Now that type of litigation resolves around whether or not someone was an employee. If you are an employer, make sure every person understands that situation and you can prove it, either in writing or some other way. You also must be able to prove that someone is not an employee according to the law. Just saying someone is not an employee is not enough.

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Waiver Protects Chimp Sanctuary from Suit by College Intern

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Wisconsin Sales Rep Statute

Wisconsin Sales Rep Statute

REGULATION OF TRADE

CHAPTER 134. MISCELLANEOUS TRADE REGULATIONS

Wis. Stat. § 134.93 (2012)

134.93. Payment of commissions to independent sales representatives.

(1) DEFINITIONS.

In this section:

(a) “Commission” means compensation accruing to an independent sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales made by the independent sales representative or as a percentage of the dollar amount of profits generated by the independent sales representative.

(b) “Independent sales representative” means a person, other than an insurance agent or broker, who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission. “Independent sales representative” does not include any of the following:

1. A person who places orders or purchases products for the persons own account for resale.

2. A person who is an employee of the principal and whose wages must be paid as required under s. 109.03(3) “Principal” means a sole proprietorship, partnership, joint venture, corporation or other business entity, whether or not having a permanent or fixed place of business in this state, that does all of the following:

1. Manufactures, produces, imports or distributes a product for wholesale.

2. Contracts with an independent sales representative to solicit orders for the product.

3. Compensates the independent sales representative, in whole or in part, by commission.

(2) COMMISSIONS; WHEN DUE.

(a) Subject to pars. (b) and (c), a commission becomes due as provided in the contract between the principal and the independent sales representative.

(b) If there is no written contract between the principal and the independent sales representative, or if the written contract does not provide for when a commission becomes due, or if the written contract is ambiguous or unclear as to when a commission becomes due, a commission becomes due according to the past practice used by the principal and the independent sales representative.

(c) If it cannot be determined under par. (a) or (b) when a commission becomes due, a commission becomes due according to the custom and usage prevalent in this state for the particular industry of the principal and independent sales representative.

(3) NOTICE OF TERMINATION OR CHANGE IN CONTRACT.

Unless otherwise provided in a written contract between a principal and an independent sales representative, a principal shall provide an independent sales representative with at least 90 days prior written notice of any termination, cancellation, nonrenewal or substantial change in the competitive circumstances of the contract between the principal and the independent sales representative.

(4) COMMISSIONS DUE; PAYMENT ON TERMINATION OF CONTRACT.

A principal shall pay an independent sales representative all commissions that are due to the independent sales representative at the time of termination, cancellation or nonrenewal of the contract between the principal and the independent sales representative as required under sub. (2)

(5) CIVIL LIABILITY.

Any principal that violates sub. (2) by failing to pay a commission due to an independent sales representative as required under sub. (2) is liable to the independent sales representative for the amount of the commission due and for exemplary damages of not more than 200% of the amount of the commissions due. In addition, the principal shall pay to the independent sales representative, notwithstanding the limitations specified in s. 799.25 or 814.04, all actual costs, including reasonable actual attorney fees, incurred by the independent sales representative in bringing an action, obtaining a judgment and collecting on a judgment under this subsection.

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Alabama Sales Representative

MICHIE’S ALABAMA CODE ANNOTATED

TITLE 8 Commercial Law and Consumer Protection

CHAPTER 24 Sales Representative’s Commission Contracts

Go to the Alabama Code Archive Directory

Code of Ala. § 8-24-1 (2012)

§ 8-24-1. Definitions.

As used in this chapter, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:

(1) Commission. Compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of certain orders or sales.

(2) Principal. Any person who does all of the following:

a. Engages in the business of manufacturing, producing, importing, or distributing a product or products for sale to customers who purchase the product or products for resale.

b. Utilizes sales representatives to solicit orders for the product or products.

c. Compensates the sales representatives, in whole or in part, by commission.

(3) Sales representative. Any person who engages in the business of soliciting, on behalf of a principal, orders for the purchase at wholesale of the product or products of the principal, but does not include a person who places orders or purchases for his or her own account for resale, or a person engaged in home solicitation sales.

(4) Termination. The end of services performed by the sales representative for the principal, whether by discharge, resignation, or expiration of a contract.

§ 8-24-2. Sales representative’s commission contracts; commission due.

(a) The terms of the contract between the principal and sales representative shall determine when a commission is due.

(b) If the time when the commission is due cannot be determined by a contract between the principal and sales representative, the past practices between the parties shall control, or if there are no past practices, the custom and usage prevalent in this state for the business that is the subject of the relationship between the parties shall control.

(c) All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within thirty days after the date of termination. Commissions that become due after the termination date shall be paid within thirty days after the date on which the commissions become due.

§ 8-24-3. Failure to pay commission; damages; attorney’s fees.

A principal who fails to pay a commission as required by Section 8-24-2 is liable to the sales representative in a civil action for three times the damages sustained by the sales representative plus reasonable attorney’s fees and court costs.

§ 8-24-4. Nonresident principal; personal jurisdiction.

A principal who is not a resident of this state and who enters into a contract subject to this chapter is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.

§ 8-24-5. Waiver void; unrestricted rights or remedies.

(a) This chapter may not be waived, whether by express waiver or by any provision in a contract attempting to make the contract or agreement subject to the laws of another state. A waiver of any provision of this chapter is void.

(b) This chapter does not invalidate or restrict any other right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.

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Arizona Sales Representative

ARIZONA REVISED STATUTES

TITLE 44. TRADE AND COMMERCE

CHAPTER 11. REGULATIONS CONCERNING PARTICULAR BUSINESSES

ARTICLE 15. SALES REPRESENTATIVE CONTRACTS

Go to the Arizona Code Archive Directory

A.R.S. § 44-1798.01 (2012)

§ 44-1798.01. Sales representative contract

A. The sales representative and the principal shall enter into a written contract. The contract shall set forth the method by which the sales representative’s commission is to be computed and paid.

B. The principal shall provide each sales representative with a signed copy of the contract. The principal shall obtain a signed receipt for the contract from each sales representative.

§ 44-1798.02. Termination of sales representative contract; payment of earned commissions

A. If an agreement of services is terminated for any reason both of the following apply:

1. All the commissions due through the time of termination shall be paid to the sales representative within a period of not to exceed thirty days after termination.

2. All the commissions that become due after the effective date of termination shall be paid to the sales representative within fourteen days after they become due.

B. The principal shall pay the sales representative all commissions due while the business relationship is in effect in accordance with the agreement between the parties.

C. A principal who fails to comply with subsections A and B of this section is liable to the sales representative for damages in the amount of three times the sum of the unpaid commissions owed to the sales representative.

D. The prevailing party in an action brought under this section is entitled to the cost of the suit, including reasonable attorney fees.

E. Commissions shall be paid at the usual place of payment unless the sales representative requests that the com-missions be sent by registered mail. If, in accordance with a request by the sales representative, the sales representative’s commissions are sent by mail, the commissions are deemed to have been paid as of the date of the registered postmark on the envelope.

F. Unless payment is made pursuant to a binding and final written settlement agreement and release, the acceptance by a sales representative of a commission payment from the principal does not constitute a release as to the balance of any commissions claimed due. A full release of all commission claims that is required by a principal as a condition to a partial commission payment is null and void.

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Arkansas Sales Representative

Arkansas Code of 1987 Annotated Official Edition

© 1987-2012 by the State of Arkansas

All rights reserved.

Title 4 Business and Commercial Law

Subtitle 6. Business Practices

Chapter 70 General Provisions

Subchapter 3 — Sales Representatives

A.C.A. § 4-70-306 (2012)

4-70-301. Definitions.

As used in this subchapter, unless the context otherwise requires:

(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for, or sales of, the principal’s product;

(2) “Principal” means a person who:

(A) Does not have a permanent or fixed place of business in this state;

(B) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;

(C) Uses a sales representative to solicit orders for the product; and

(D) Compensates the sales representative in whole or in part by commission; and

(3) “Sales representative” means a person who solicits on behalf of a principal orders for the purchase at wholesale of the principal’s product. The term “sales representative” does not include a person who places orders for or purchases the product for his or her own account for resale, or is engaged in door-to-door sales regulated by § 4-89-101 et seq.

4-70-302. Sales representatives’ contracts — Limitation.

(a) A contract between a principal and a sales representative under which the sales representative is to solicit wholesale orders within this state must be in writing and set forth the method by which the sales representative’s commission is to be computed and paid.

(b) The principal shall provide the sales representative with a copy of the contract.

(c) A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void.

4-70-303. Payment in absence of contract.

If a compensation agreement between a sales representative and a principal that is not in writing is terminated, the principal shall pay all commissions due the sales representative within thirty (30) working days after the date of the termination.

4-70-304. Jurisdiction.

A principal who is not a resident of this state and who enters into a contract subject to this subchapter is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.

4-70-305. Waivers prohibited.

A provision of this subchapter may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of this subchapter is void.

4-70-306. Damages and attorney’s fees.

A principal who fails to comply with a provision of a contract under § 4-70-302 relating to payment of a commission or fails to pay a commission as required by § 4-70-303 is liable to the sales representative in a civil action for three (3) times the damages sustained by the sales representative, plus reasonable attorney’s fees and costs.

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