By Nancy E. Joerg, Esq., Managing Shareholder – St Charles Office, Wessels Sherman Joerg Liszka Laverty Seneczko PC, St. Charles, Illinois, (630) 377-1554, najoerg@wesselssherman.com, www.wesselssherman.com
Recently, I represented an Illinois employer in an Illinois Department of Employment Security (IDES) hearing where the employee had been terminated for misconduct because the employee was shopping online during work hours.
The terminated employee (called the Claimant) filed for unemployment insurance benefits and was turned down by the Local IDES Office. The Claimant appealed, and an IDES telephone hearing was scheduled.
The IDES Hearing Officer (also called the Hearing Referee or the Administrative Law Judge) heard the case to determine whether the terminated employee was eligible for unemployment insurance benefits.
BURDEN OF PROOF IS ON THE EMPLOYER: The employer realized that it would have to prove that the Claimant was in fact online doing personal shopping while he was supposed to be performing his job duties. These kinds of cases are often quite tricky because the burden of proof is on the employer to prove misconduct.
DEFINITION OF MISCONDUCT: Under Section 602A of the Illinois Unemployment Insurance Act, the 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.”
These elements need to be proven by the employer in order for unemployment insurance benefits to be blocked.
The definition of misconduct also includes eight work-related behaviors that will result in a finding of misconduct for IDES purposes if proven. For a listing of those eight situations, please contact Legal Assistant Tammy Nelson at tanelson@wesselssherman.com or by phone at 630-377-1554.
HOW THE EMPLOYER PROVED MISCONDUCT: The employer was able to prove misconduct in this case because there were witnesses who testified at the Hearing that they observed the Claimant shopping online during work hours when the Claimant should have been attending to his work duties. Additionally, the employer had a written policy prohibiting employees from being online for personal reasons while on duty. Further, the Claimant’s supervisor had previously warned the Claimant about shopping online for personal reasons while on duty.
In this case, it was very important to prepare the co-worker witnesses for the Hearing. Part of the preparation of these witnesses was to go over all of the detailed facts such as what day and time(s) did the co-worker witness observe the Claimant shopping online for personal reasons when he should have been working? What exactly did the witness observe? How close was the witness standing to the computer where the Claimant was shopping online? How long a period of time did the witness observe this?
Also important was to submit as evidence for the Hearing a copy of the employer’s written policy prohibiting its employees from being online for personal reasons while on duty. The Claimant had signed and dated a copy of this policy.
The IDES Hearing Officer found that the Claimant was guilty of misconduct (shopping online while on duty in direct violation of the employer’s policies). Additionally, the Hearing Officer found the Claimant had been warned and the Claimant’s misconduct caused the employer harm (in this case, a theft of time when the employee should have been working rather than being paid for doing personal shopping).
The Claimant appealed to the Board of Review. The Board of Review affirmed the decision of the Hearing Officer, and the Claimant was therefore denied unemployment insurance benefits.
PRACTICE TIPS: This case shows Illinois employers the importance of:
- Having witnesses who are well prepared.
- Having written policies signed and dated by employees for potential use as evidence.
When firing an employee and the firing is for misconduct, it is extremely important to think through how you are going to prove the employee’s misconduct. Strategic planning prior to firing the employee is crucial. If you think through these issues thoroughly, your batting average at winning IDES misconduct Hearings will go up dramatically.
Remember that it is up to employers to “police” the unemployment insurance system. If the employer doesn’t protest when the employee files for unemployment insurance, then often that employee will obtain unemployment insurance benefits. Then, those benefits will be “charged” to the IDES Account Number of the Illinois employer. Because of these new charges to its IDES Account Number, the employer’s unemployment insurance rate will go up. This will result in a higher unemployment insurance premium being paid by the employer over the course of the next three years. This can result in a very large expense to the employer.
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.