By Nancy E. Joerg, Esq., Managing Shareholder – St. Charles Office, Wessels Sherman Joerg Liszka Laverty Seneczko P.C., St. Charles, Illinois, (630) 377-1554, najoerg@wesselssherman.com
This article is to remind Illinois employers about an important amendment to the Illinois Unemployment Insurance Act (which took effect over two years ago on January 3, 2016). The amendment broadened the misconduct definition by adding eight work-related behaviors which automatically disqualify the Claimant (i.e., ex-employee who filed for unemployment insurance benefits) from receiving unemployment insurance benefits due to misconduct.
In years past, there was only a strict definition of misconduct which required deliberate and willful behavior by the Claimant. Now, under these additional factors, employers have a better chance of winning.
DEFINITION OF MISCONDUCT: Under Section 602A of the Illinois Unemployment Insurance Act, the precise legal definition of misconduct is: “the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” (Emphasis added)
These elements need to be convincingly proven by the company in order for unemployment insurance benefits to be blocked.
LISTING OF EIGHT DEFINITIONS OF MISCONDUCT: As a result of the amendment, the definition of “misconduct” now includes the following eight work-related behaviors that will result in a finding of misconduct for IDES purposes:
- FALSIFICATION OF DOCUMENTATION: Falsification of an employment application, or any other documentation provided to the employer, to obtain employment through subterfuge.
Comment: Under this factor the employer has to prove the ex-employee obtained employment by falsifying a document. Note that this doesn’t require deliberate and willful behavior by the Claimant; all that it requires is the employer proves the falsification.
- FAILURE TO MAINTAIN LICENSES: Failure to maintain licenses, registrations, and certifications reasonably required by the employer, or those that the individual is required to possess by law, to perform his or her regular job duties, unless the failure is not within the control of the individual.
Comment: The employer has to prove that the Claimant (ex-employee) failed to maintain licenses and the failure was within the Claimant’s control.
- REPEATED VIOLATION OF ATTENDANCE POLICIES: Knowing, repeated violation of the attendance policies of the employer that are in compliance with State and federal law following a written warning (tip: put your attendance warnings in writing!) for an attendance violation, unless the individual can demonstrate that he or she has made a reasonable effort to remedy the reason or reasons for the violations or that the reason or reasons for the violations were out of the individual’s control. Attendance policies of the employer shall be reasonable and provided to the individual in writing, electronically, or via posting in the workplace (tip: put your attendance policies in writing!).
Comment: The attendance policy must be reasonable and provided to the Claimant in writing during employment.
- DAMAGE TO EMPLOYER’S PROPERTY: Damaging the employer’s property through conduct that is grossly negligent.
Comment: This factor requires gross negligence on the part of the Claimant. In other words, the employer must prove that the Claimant should have been aware that the conduct would result in the harm sought to be prevented and the conduct constituted a substantial deviation from the standard of care a reasonable person would exercise in the situation.
- REFUSAL TO OBEY REASONABLE INSTRUCTION: Refusal to obey an employer’s reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training for the individual required to obey the instruction or the instruction would result in an unsafe act.
Comment: Under this factor, the employer must have issued a reasonable and lawful instruction. The Claimant’s only defense is that he/she didn’t follow the instruction because it was due to his/her lack of ability, skills or training. Or that following the instruction would result in an unsafe act. Tip: document training!
- ALCOHOL/DRUGS: Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer’s premises during working hours in violation of the employer’s policies.
- REPORTING TO WORK UNDER THE INFLUENCE: Reporting to work under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer’s policies, unless the individual is compelled to report to work by the employer outside of scheduled and on-call working hours and informs the employer that he or she is under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer’s policies.
Comment: This must be done in violation of the employer’s policies, so the employer must prove that the employer has such a policy and the Claimant violated it.
- ENDANGERING SAFETY: Grossly negligent conduct endangering the safety of the individual or co-workers.
PRACTICE TIP FOR EMPLOYERS: The old misconduct definition (Section 602A) still remains, but these new eight work related behaviors are in addition to Section 602A.
Employers must be clear in disciplinary write-ups and the termination letter (if any) that the employee was terminated for one of these behaviors. Prior to termination, the employer should review these eight behaviors to see under which one the employer will terminate the employee (so that the misconduct argument is successful in blocking an unemployment insurance claim).
This is why it is important to have a strategic consultation with an attorney to identify the reasons for firing an employee prior to the employee being terminated. Then, in any documentation of the termination, the employer can use the correct “buzz words”.
If you think through your legal strategy prior to termination, your batting average at winning IDES misconduct claims and Hearings will go up dramatically.
For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.