By: Richard C. Harris, Adler Murphy & McQuillen, LLP
The Illinois Supreme Court recently shed light on the circumstances in which an employer can be sued in a particular venue based on the work performed by employees from their homes. This decision is timely given the increasingly virtual business environment that has evolved in response to COVID-19.
The plaintiff in Tabirta v. Cummings was injured in an auto accident in Ohio. He filed suit in Cook County against the other driver and the other driver’s employer, neither of whom were residents of Cook County. However, the other driver’s employer was a food-product manufacturing company who delivered products to grocery stores in the collar counties and had hired an account representative, Bolton, who resided in Cook County. The plaintiff argued that venue was proper under the Illinois venue statute because Bolton’s home office constituted an “other office” of the company. Alternatively, the plaintiff argued that Bolton’s work from his home meant the company was “doing business” in Cook County. See 735 ILCS 5/2-102.
The Court acknowledged that Bolton’s home office was an “office” in the plain, ordinary sense of the word, but held it was not an “other office” for purposes of the venue statute. The evidence showed that Bolton spent about 20 hours per week working from home, during which he communicated with customers by phone and email. Although Bolton acted as the “point person” for the grocery stores in the collar counties, he did not sell any products and there was no evidence that the company hired him because he lived in Cook County—he was hired based on his extensive experience in the food industry, and his employment would not have been affected if he moved to a different county. Further, the company did not pay any of the expenses associated with Bolton’s residence and did not hold out to its customers that the residence was a company office.
As to whether the company was “doing business” in Cook County under the venue statute, the Court noted that this requirement could only be satisfied if the company was conducting “usual and customary business” from within Bolton’s residence. However, the company had no other offices or facilities in Cook County, nor did it design, manufacture, advertise, finance, or sell products from within Cook County. Although 0.19% of the company’s total sales were to customers in Cook County, this minuscule volume was insufficient to constitute “doing business” under the venue statute. Thus, the Court held that Bolton’s work from his Cook County residence was “merely incidental” to the company’s usual and customary business of food product manufacturing.
In a special concurrence, Justice Kilbride emphasized that whether a home office qualifies as an “other office” under the venue statute turns on the specific facts adduced in each case, and there is no one-size-fits-all solution. Justice Kilbride’s cautionary concurrence should resonate with employers and employees alike. Regardless of what the future holds for post-COVID working conditions, it seems certain that a large percentage of business will continue to be conducted from home offices. Your vacation home in Galena may be lovely this time of year—but think about whether you would want your company to be sued there before you pack up your work and head west for the holidays.