An Illinois Federal court expands on the contours of the IWPCA, promissory fraud, the employee vs. independent contractor dichotomy and the intentional infliction of emotional distress (IIED) tort in Lane Legal Services v. Le Brocq, 2016 WL 5955536,
The plaintiff law firm (“Firm”) sued a former associate (“Associate”) when he left to open his own law shop. The Firm claimed the Associate stole firm business records, hacked into Firm computers and breached a written employment agreement. The Associate fired back with multiple counterclaims against the Firm including ones for unpaid compensation under the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq., fraud, and IIED.
IWPCA Claim
The Court denied the Firm’s motion to dismiss the Associate’s IWPCA count. The IWPCA requires an employer to pay final compensation to a separated employee no later than the next regularly scheduled payday. Independent contractors, in contrast to employees, aren’t covered by the IWPCA.
The key question when deciding whether someone is an employee or an independent contractor is the level of control exerted over the plaintiff. The more autonomy a plaintiff has in performing his job functions, the more likely he is deemed an independent contractor and not subject to the IWPCA.
Associate attorneys are generally considered employees under the IWPCA. While the Associate here had a unique relationship with the Firm in the sense he was entitled to a share of the Firm’s fees, the Court ultimately found the Associate was an employee under the statute as the Firm could still dictate the details of the Associate’s legal work.
‘Promissory’ Fraud
The Court found the Associate alleged enough facts for his fraud counterclaim to survive the Firm’s motion to dismiss. In Illinois, a common law plaintiff must plead (1) a false statement of material fact, (2) knowledge or belief by the speaker that a statement is false, (3) intent to induce the plaintiff to act, (4) action by the plaintiff in reliance on the statement, and (5) damages.
Where fraud is predicated on forward-looking/future statements, the claim is a non-actionable “promissory fraud.” An exception to this rule lies where the fraudulent conduct is part of a scheme to defraud – an exception that governs where there is a pattern of deceptive conduct by a defendant. As few as two broken promises can amount to a scheme of defraud although that is not the norm. (**6-7).
The court found that the Associate’s allegations that the firm falsely stated it supported him “leaving the nest” and starting his own firm knowing it would later retaliate against him for doing so was factual enough to beat the Firm’s motion to dismiss.
Intentional Infliction of Emotional Distress (IIED)
The Court dismissed the associate’s intentional infliction claims finding that the Firm’s conduct, while possibly vindictive, still wasn’t objectively extreme and outrageous enough to sustain an IIED action.
An IIED plaintiff must show: (1) extreme and outrageous conduct, (2) the defendant’s intent to inflict severe emotional distress or knowledge that there was a high probability his conduct would inflict such distress, and (3) the conduct caused severe emotional distress. Whether conduct rises to the level of extreme and outrageous is judged on an objective standard based on the facts of a given case and must be more than insults, threats, indignities, annoyances or petty trivialities. To be actionable, the conduct must be “unendurable by a reasonable person.”
Illinois courts especially disfavor applying the IIED tort to employment settings since nearly every employee could conceivably have a claim based on everyday work stressors.
The Court found that the Firm’s challenged actions – filing a frivolous suit and bad-mouthing the associate to regulatory bodies – while inappropriate and bothersome, didn’t amount to extreme and outrageous conduct that would be unbearable to a reasonable person. As a result, the Court dismissed the associate’s IIED claim.
Take-aways:
(1) A plaintiff can qualify as an employee under the IWPCA even where he shares in company profits and performs some management functions. If the employer sufficiently controls the manner and method of plaintiff’s work, he likely meets the employee test;
(2) While promissory fraud normally is not actionable, if the alleged fraud is part of a pattern of misstatements, a plaintiff may have a viable fraud claim – even where there is as few as two broken promises;
(3) A colorable intentional infliction claim requires a showing of extreme and outrageous conduct that go beyond harsh business tactics or retaliatory conduct. If the conduct doesn’t demonstrate an overt intention to cause mental anguish, it won’t meet the objective outrage standard.