Tips on Protesting an IDES Claim for Unemployment Insurance Benefits
By Nancy E. Joerg, Esq., Managing Shareholder – St. Charles Office, Wessels Sherman Joerg Liszka Laverty Seneczko P.C.
There are many strategies that an employer should use to increase its chances of winning when protesting an Illinois Department of Employment Security (IDES) claim for unemployment insurance benefits by a former employee (“Claimant”).
The unemployment insurance system is set up in such a way that the Claimant will usually get unemployment insurance benefits unless the employer effectively protests the claim. In other words, employers “police” the Illinois Unemployment Insurance system. Unless the employer puts forward a good reason why the IDES should not give the Claimant unemployment insurance benefits, then (in most cases) the Claimant will be successful in obtaining the unemployment insurance benefits (roughly $400 per week).
There is a strong motivation for employers to protest unemployment insurance claims. With each claim that is “charged” to the employer’s unemployment insurance account number, the employer’s unemployment insurance rate goes up. For 2013, the lowest rate an employer can have in Illinois is .550% and the highest rate an employer can have in Illinois is 8.950%.
The employer’s unemployment insurance rate is multiplied times the amount of money an employee earns for 2013 up to the wage base of $12,900 (which is the cap for 2013). An employer can significantly decrease its overhead as far as what it pays in “contributions/premiums” to the IDES by aggressively and intelligently protesting unemployment insurance claims.
The following list comprises my 10 best strategy tips on how to successfully protest an IDES Claim:
- Make a careful note of the Reply Due Date on the Notice of Claim.
As soon as you receive a Notice of Claim from the IDES, the very first thing you should look for, in the upper right hand corner of the first page of the Notice of Claim, is the Reply Due Date. If you are even one day late in replying to the IDES with your protest, then you have lost all rights of protest. The IDES accepts no excuses (from employers regarding late protests). The IDES is brutal on this point.
- Check the right box(es).
When you look at the protest form, there are many boxes you can check. Carefully consider each box and check the ones that apply to your fact pattern.
- Write a detailed and factually accurate protest letter.
When you look at Section C of the Notice of Claim form, you will see that you are asked to write down the basic facts of the case. However, I always recommend to clients that they write “see attached letter” in that small Section C space, and then attach a detailed letter on Company letterhead. Include in that letter the dates, times, locations, witness names and job titles, and the facts that back up the basis of your protest.
- Carefully question witnesses.
In order to have an accurate account of what occurred (whether it is misconduct or voluntary leaving, which are the two basic fact patterns), talk to the eye witnesses. Take the time to understand exactly what happened and what was said, who are all of the actual witnesses, what policies were violated, who heard the Claimant say “I quit so I can go back to Russia and visit my grandmother”—whatever the facts are, be sure to gather the facts in great detail.
- Gather the company policies in question.
If the misconduct alleged is a violation of a company policy, gather those policies and attach them to your protest.
- Attach the resignation letter.
If there is a resignation involved, attach the resignation letter (or email) to your protest.
- Gather witness affidavits.
If there are witnesses to the misconduct or resignation, have the witnesses write sworn statements (affidavits) that they sign and date. The statement can be in their handwriting. Have them give details as to where they were standing when they heard or saw whatever the fact pattern might be. These affidavits will be valuable to the IDES Local Office investigators who are considering whether to give the Claimant unemployment; they will also be valuable if there is a Hearing which results from an appeal of the Local Office Determination.
- Respond to all IDES Local Office phone calls immediately.
Do not delay in calling back the investigators from the IDES Local Office as they are evaluating the claim. If you don’t call back promptly, they may very well make a decision in the absence of information from you.
When you sign the protest of the Notice of Claim, it asks for your name and phone number. Be sure to give a cell phone number where you can be reached immediately and easily. You do not want to make it difficult for the IDES Local Office investigators to reach you because if they cannot reach you easily, they often will not persist (and they will make a decision without your additional information).
- If you lose at the IDES Local Office level, do not be discouraged because many Local Office Determinations are overturned at the Hearing level.
The Local Office investigators are not attorneys. The Hearing Officers are attorneys. It is well worth your time and effort to protest the Local Office Determination where appropriate and go to a Hearing.
- Don’t be afraid of telephone Hearings. Many employers assume that telephone Hearings cannot be successful. An employer can be just as successful with a telephone Hearing as an in-person Hearing. Most IDES Hearings nowadays are telephone Hearings (a major switch from years ago when most of the IDES Hearings were in person). The key to winning a telephone Hearing is to have appropriate and very well prepared witnesses.
Telephone witnesses can be at telephone numbers other than your office. If you have a witness who is off from work and cannot come into the office, you can tell the IDES Hearing Officer that the witness will be at a different location and to please conference in the witness at the other phone number.
Questions? Call Attorney Nancy E. Joerg of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at firstname.lastname@example.org.
Areas of Practice: Nancy Joerg represents employers in administrative actions, hearings, and audits before the Equal Employment Opportunity Commission, the Illinois Department of Human Rights, the Cook County Commission on Human Rights, the Illinois Department of Employment Security, the Illinois Department of Labor, and the U.S. Department of Labor.
She represents employers in all types of unemployment insurance hearings, independent contractor matters, discrimination charges, Employee Classification Act complaints, IDES audits, employee termination issues, and wage & hour issues (including exempt/non-exempt status for overtime, deductions from wages, and state and federal wage claims). Nancy Joerg effectively counsels and advises clients concerning preventive efforts such as the preparation and review of severance and release agreements, independent contractor owner-operator agreements, independent contractor-based manuals and websites, employee handbooks and personnel policies, anti-harassment training, sex harassment investigations, and the development of strategies to help ensure exemptions from overtime.
Nancy Joerg is the Managing Shareholder of the St. Charles, Illinois office of Wessels Sherman Joerg Liszka Laverty Seneczko P.C.