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What Employers Going Through an IDES Audit Need to Understand About the IDES Worker Relationship Questionnaire

June 2014

By: Nancy E. Joerg, Esq.

Illinois Department of Employment Security (IDES) auditors almost always ask the Company they are auditing to fill out the six-page document called the "Worker Relationship Questionnaire." The "Worker Relationship Questionnaire" is modeled largely after the IRS "SS-8" Questionnaire. These Questionnaires are specially designed to help the auditor determine if a "class" of workers are Independent Contractors or Employees.

Illinois employers facing the intimidating job of filling out the six pages of questions (at the command of the IDES auditor) will be helped by appreciating the structure of this lengthy Questionnaire.

The first thing to understand is that a single company being audited by the IDES may be asked to fill out many Questionnaires---if the company uses many types of Independent Contractors. Note: For owner-operators who own a truck, there is a special IDES Questionnaire under Section 212.1 of the Illinois Unemployment Insurance Act.

I once represented an architectural-engineering firm that had many different specialist architects and engineers as Independent Contractors. The firm was audited by the IDES. We had to fill out twelve different IDES Worker Relationship Questionnaires in order to prove to the IDES Auditor that these twelve classes (or types) of Independent Contractors were not really Employees of my client's company.

The structure of the IDES Worker Relationship Questionnaire is unusual and mystifying! For some odd reason, the order of the questions seems designed to confuse!

The first set of questions spring from Section 212(B) of the Illinois Unemployment Insurance Act. This is the second part of the three part A-B-C test that the IDES uses to evaluate most independent contractor relationships. Be aware that the IDES does NOT tell the user of the IDES Worker Relationship Questionnaire that the first set of questions is based on Section 212(B)! No, the befuddled user being audited often does not realize where the questions are springing from.

The second set of questions in the IDES Worker Relationship Questionnaire is based on Section 212(A) of the Illinois Unemployment Insurance Act. Again, this is not revealed anywhere on the Questionnaire. The user who is filling out the many difficult questions is left to wonder about the origin and intention of the questions facing them.

The third set of questions is based on Section 212(C) of the Act. But the Questionnaire itself never reveals this fact in any direct way.

Understanding that the entire Questionnaire is exploring Section 212 (A), (B) and (C) of the Illinois Unemployment Insurance Act is very helpful to the person filling out the document. The questions are devilishly tricky. The terminology is confusing, vague, and misleading.

Much thought and care should go into filling out this Questionnaire (or any IDES Questionnaire such as the special one for owner-operators). It can make or break an auditor's evaluation of an entire class of Independent Contractors under IDES audit.

If any readers would like a free copy of the IDES Worker Relationship Questionnaire or the special IDES Questionnaire for owner-operators, contact my legal assistant Tammy Nelson at tanelson@wesselssherman.com or call her at 630-377-1554 to request one.

For assistance with IDES audits, hearings, and independent contractor agreements (or for consultations on limiting your liability in the use of independent contractors), contact Attorney Nancy E. Joerg, who enjoys a nationwide reputation in working with companies who use Independent Contractors of all types. Nancy Joerg can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.