Author: Written by: Jeffrey A Gilbert & Revised by: Timothy Huizenga & Miriam Hallbauer, Legal Assistance Foundation of Metropolitan Chicago
Last updated: July 2015
A claimant must be unemployed, or working part-time and earning less than his UI weekly benefit amount ("WBA") (Footnote 1) pursuant to Sections 239 and 500 of the Illinois Unemployment Insurance Act ("IUIA"). 820 ILCS 405/239, 820 ILCS 405/500. For benefit weeks between February 22, 2009 and December 7, 2010, the Federal Additional Compensation Program (FAC) provided a $25 weekly supplement to individuals eligible to receive unemployment benefits under federal or state law. However, the FAC has been discontinued for any benefit week beginning after December 7, 2010.
Claimants receive a computer printout called a "finding," see 820 ILCS 405/701, which shows the wages reported by the claimant's employer(s) in each of the four quarters of the claimant's base period and the resulting WBA and dependent's allowance, if any. If the reported wages are incorrect, the claimant has 30 days to appeal the finding. 820 ILCS 405/800. A claimant who does so should compile any documents that can confirm his receipt of the wages including, wage stubs, W-2 forms or bank account statements showing regular deposits. IDES must consider any such evidence (including the claimant's sworn statement that he received wages) and determine whether the claimant did, in fact, receive the additional wages without first chasing the employer to recover the contributions due. Burtton v. Johnson, 538 F.2d 765 (7th Cir. 1976). If the employer is still a viable entity, IDES can subpoena its records to confirm the payment of wages (Footnote 2).
A claimant must have earned the base period wages on which the claim depends while he was either a United States citizen, a lawful permanent resident or "permanently residing in the United States under color of law" ("PRUCOL"). 26 U.S.C. § 3304(a)(14), 820 ILCS 405/614. The problem cases concern concern whether a claimant meets the definition of “PRUCOL,” which can be imprecise.
When Congress enacts a provision that permits an alien to be in the country during the base period, the claimant becomes PRUCOL, and his earnings thereafter can be credited to him/her under 820 ILCS 405/614 (Footnote 4). See Castillo v. Jackson, 149 Ill. 2d 165, 594 N.E.2d 323 (1992). Similarly, when the Immigration and Naturalization Service ("INS") takes any affirmative step (e.g. grants extension of voluntary departure or suspends deportation), the claimant becomes PRUCOL. See e.g., Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977); Industrial Commission of the State of Colorado v. Arteaga, 735 P.2d 473 (Colo. 1987); Division of Employment and Training v. Turynski, 735 P.2d 469 (Colo. 1987); Alvarado v. Bd. of Review, 737 P.2d 180 (Utah 1987); Lapre v. Dept. of Employment Security, 513 A.2d 10 (R.I. 1986); Gillar v. Employment Division, 717 P.2d 131 (Or. 1986); Antillon v. Dept. of Employment Security, 688 P.2d 455 (Utah 1984); Rubio v. Employment Division, 674 P.2d 1201 (Or. App. 1984). See also Ibarra v. Texas Employment Commission, 645 F. Supp. 1060 (E.D. Tex. 1986) (approving consent decree defining PRUCOL), rev'd and remanded, 823 F.2d 873 (5th Cir. 1987).
When INS knows of a person's presence in the U.S., but takes no affirmative steps to deport, the issue is less clear. The United States Department of Labor takes the position that INS inaction does not mean a person has "color of law" status. Unemployment Insurance Program Letter ("UIPL") No. 1-86, 51 Fed. Reg. 29713 (Aug. 20, 1986). But Castillo and other cases have brought the effect of this letter into question. See, e.g., Brambila v. Board of Review, 124 N.J. 425, 591 A.2d 605 (1991); Cruz v. Commissioner of Public Welfare, 478 N.E.2d 1262 (Mass. 1985); St. Francis Hospital v. D'Elia, 422 N.Y.S.2d 104 (N.Y. App. Div. 1979) aff'd 440 N.Y.S.2d 185, 422 N.E.2d 830 (1981).
An alien does not need INS work authorization during his base period to fulfill the requirements of 820 ILCS 405/614 (Footnote 5). See Antillon, 688 P.2d at 457-59; Sandoval v. Colo. Division of Employment, 757 P.2d 1105, 11-8 (Colo. 1988); Rubio, 674 P.2d at 1203. But a grant of work authorization during that period is sufficient to establish eligibility. See, UIPL No. 1-86, 51 Fed. Reg. at 29715; Gillar v. Employment Division, 717 P.2d 131, 136 (Or. 1986); Bushehri v. Industrial Claim Appeal Office, 749 P.2d 439 (Colo. App. 1987).
Aliens who have been granted lawful temporary resident status pursuant to an amnesty application or amnesty itself, are eligible as of November 6, 1986, the effective date of the Immigration Reform and Control Act. Castillo v. Jackson, 149 Ill. 2d 165, 594 N.E.2d 323 (1992).
IDES's regulations on alien eligibility are at 56 Ill. Adm. Code §§ 2905.1-2905.40. Be careful, however, because these regulations were overruled in certain respects.
Both federal and state law assure that "no determination by the State agency that compensation to [an] individual is not payable because of his alien status shall be made except upon a preponderance of the evidence." 26 U.S.C. 3304(a)(14)(C), 820 ILCS 405/614.B. Thus, IDES bears the burden of proving that an alien is not entitled to benefits because of his status. Velasquez v. Secretary of Dept. of HHS, 581 F. Supp. 16, 18 (E.D.N.Y. 1984); Cruz v. Commissioner of Public Welfare, 478 N.E.2d 1262, 1266 (Mass. 1985). IDES may, therefore, request verification of documents from INS, but it cannot withhold benefits pending INS verification unless a claims adjudicator decides that the documentation presented by the claimant was altered or the claimant admits that he is not legally in the U.S. 56 Ill. Adm. Code § 2905.20.
A claimant's base period wages must have been earned from an employer that is covered by (i.e., not exempt under) the Act. 820 ILCS 405/204-235.
But the statute's definition of "independent contractor" under the IUIA is very narrow and those who claim the advantage of this provision bear the burden of proving that they did not hire the claimant as an employee. That is, an employer seeking this exemption has the burden of proving that:
(1) the worker is free from control or direction over the performance of services;
(2) the services are performed outside the usual course or place of the employer's business; and
(3) the worker is engaged in an independently established trade, occupation, profession or business.
The Illinois Administrative Code contains guidance for this determination, and a list of factors relevant to the determination of independent contractor status. 56 Ill. Adm. Code § 2732.200. Further, the following is a list of cases relevant to this determination:
See Carpetland U.S.A., Inc. v. Illinois Dept. of Employment Sec., 201 Ill. 2d 351, 776 N.E.2d 166 (2002) (finding carpet installers to be independent contractors and carpet measurers to be employees since employee determination made on basis of the parties’ actual relationship and not the parties’ designation); AFM Messenger Service, Inc. v. Department of Employment Sec., 198 Ill. 2d 380, 763 N.E.2d 272 (2001) (messengers not independent contractors); Jack Bradley, Inc. v. IDES, 146 Ill. 2d 61, 585 N.E.2d 123 (1991) (food demonstrators not independent contractors); Bennett v. IDES, 175 Ill. App. 3d 793, 530 N.E.2d 541 (2d Dist. 1988) (drywall installers not independent contractors); Legal Process Service, Inc. v. Ward, 165 Ill. App. 3d 83, 518 N.E. 2d 768 (2d Dist. 1988) (legal process servers not independent contractors); Farmers Ins. Exchange v. IDOL, 186 Ill. App. 3d 493, 542 N.E.2d 538 (2d Dist. 1989) (insurance agent not independent contractor); O'Hare-Midway Limousine Service v. Baker, 232 Ill. App. 3d 108, 596 N.E.2d 795 (1st Dist. 1992) (limousine chauffeurs not independent contractors); National Data Services of Chicago, Inc. v. Director of Employment Sec., 319 Ill. App. 3d 25, 746 N.E.2d 40 (2d Dist. 2001) (home data entry workers not independent contractors); Chicago Messenger Service v. Jordan, 356 Ill. App. 3d 101, 825 N.E.2d 315 (1st Dist. 2005) (couriers not independent contractors); SMRJ, Inc. v. Russell, 378 Ill. App. 3d 563, 884 N.E.2d 1152 (1st Dist. 2007) (laborers referred by service not independent contractors); Veterans Messenger Service, Inc. v. Jordan, 393 Ill. App. 3d 715, 913 N.E.2d 1094 (1st Dist. 2009) (couriers not independent contractors), appeal denied, 234 Ill. 2d 554 (2009); Emergency Treatment, S.C. v. Department of Employment Sec., 394 Ill. App. 3d 893, 917 N.E.2d 135 (1st Dist. 2009) (physicians, scheduler and auditor hired by emergency room staffing service not independent contractors), appeal denied, 235 Ill. 2d 587 (2010). National Data Services of Chicago, 319 Ill. App. 3d at 27 (noting home workers who testified considered themselves to be independent contractors, but nonetheless holding they were not). The Illinois Administrative Code contains guidance for this determination, and a list of factors relevant to the determination of independent contractor status. 56 Ill. Adm. Code § 2732.200.
Claimants must register for work with the job service, be actively seeking work, be able to work, and be available for work. These are commonly referred to as the "A&A" requirements. 820 ILCS 405/500. The claimant has the burden on A&A issues. Yadro v. Bowling, 91 Ill. App. 3d 889, 414 N.E.2d 1244 (1st Dist. 1980).
The requirement that claimants be "able" to work generally is a question of health factors that might disable a claimant (Footnote 7). But even before the Immigration Reform and Control Act of 1986 ("IRCA"), which first made it unlawful to employ aliens without INS work authorization, some courts held that, without such authorization, a claimant is unable to work because "legal inability to work is as disqualifying as physical inability to work." Pinilla v. Bd. of Review, 155 N.J. Super. 307, 311, 382 A.2d 921 (1978); see also Claim of Diamond, 210 A.D.2d 835, 620 N.Y.S.2d 595 (N.Y.A.D. 3d Dept. 1994); Gutierrez v. EDD, CCH Unemploy. Ins. Rpt. 8601 (Cal. 1993); Unemployment Insurance Program Letter No. 1–86, 51 Fed. Reg. 29713–01, at 4 (Department Letter) ("Under the laws of all States, a claimant must be 'able and available' to work to be eligible for unemployment compensation. In addition to meeting other State availability requirements, an alien must be legally authorized to work in the United States to be considered 'available for work.'"); but see Carillo v. Emp. Div., 744 P.2d 1304 (Or. Ct. App. 1987); Flores v. Dept. of Jobs and Training, 411 N.W.2d 499 (Minn. 1987); Vespremi v. Giles, 427 N.E.2d 30 (Ohio Ct. App. 1980).
The "availability" and "actively seeking work" components of Section 500.C. both "depend on the facts and circumstances in each case." Mohler v. IDOL, 409 Ill. 79, 97 N.E.2d 762, 764 (1951); Brown v. Bd. of Review, 8 Ill. App. 3d 19, 289 N.E.2d 40, 43 (1st Dist. 1972). A claimant satisfies these requirements when he "is ready and willing to accept suitable work at a point where there is an available labor market, which work he does not have good cause to refuse." Id.; see also Moss v. Department of Employment Sec., 357 Ill. App. 3d 980, 830 N.E.2d 663 (1st Dist. 2005); Miller v. IDES, 245 Ill. App. 3d 520, 615 N.E.2d 35 (4th Dist. 1993). The focus of the inquiry is on the claimant's "mental attitude" as to whether he is "genuinely attached to the labor market and desires employment" as demonstrated by evidence that the worker has made "a reasonable attempt to find work and will not wait for a job to seek him out." Mohler, 97 N.E.2d at 764.
The requirements do not demand all-encompassing efforts to seek work. Reasonable ones will suffice. Galarza v. IDOL, 167 Ill. App. 3d 163, 520 N.E.2d 672 (2nd Dist. 1988); Mohler, 97 N.E.2d at 764. For example, looking for part-time work is acceptable if there is a market for such work and the claimant is qualified by experience and training for that work. Rosenbaum v. Johnson, 60 Ill. App. 3d 657, 377 N.E.2d 258 (1st Dist. 1978). Similarly, a claimant who is laid off temporarily may seek temporary rather than permanent work (Footnote 8). See Galarza, 520 N.E.2d 672; Mohler, 97 N.E.2d at 764.
IDES confirms each claimant's compliance with the A&A requirements by review of certification forms that each claimant must file bi-weekly and on which claimants must document their work search efforts. See 56 Ill. Adm. Code § 2720.115. Since the touchstone in determining compliance with both the "availability" and "active search for work" requirements is the claimant's attempts to locate employment, these certification forms constitute the best evidence of that search. Therefore, IDES must make those forms "part of the record" and treat them as "competent evidence." (Footnote 9), 820 ILCS 405/801. In fact, however, IDES does not routinely keep the certification forms in the record, and its failure to do so bars a decision against the claimant on the basis of not actively seeking work. See Johnson v. Bd. of Review, 133 Ill. App. 3d 992, 479 N.E.2d 1082 (1st Dist.1985); Camacho v. Bowling, 562 F. Supp. 1012, 1024-25 (N.D. Ill. 1983).
Brown, 8 Ill. App. 3d at 22; see also Ferretti v. IDOL, 115 Ill. 2d 347, 506 N.E.2d 560 (1987) (approving inquiries to friends and driving around a factory district looking for job openings, and emphasizing IDES's failure to question work search).
Though seasonal workers are not generally barred from receiving benefits (Footnote 10), they must make reasonable attempts to find work in the "off" season. Kelley v. IDOL, 160 Ill. App. 3d 958, 513 N.E.2d 988 (1st Dist. 1987).
In addition, claimants who leave one locality to move to another "where opportunities to work are less favorable than those in the locality he has left" are presumed to be unavailable for work. 820 ILCS 405/500.C.3. See Yadro v. Bowling, 91 Ill. App. 3d 889, 414 N.E.2d 1244 (1st Dist. 1980).
Similarly claimants whose "principal occupation is that of a student in attendance at, or on vacation from, a public or private school" are presumed to be unavailable. 820 ILCS 405/500.C.4; see Moss v. Department of Employment Sec., 357 Ill. App. 3d 980, 830 N.E.2d 663 (1st Dist. 2005); Miller v. IDES, 245 Ill. App. 3d 520, 615 N.E.2d 740 (4th Dist. 1993); James v. IDOL, 119 Ill. App. 3d 524, 456 N.E.2d 879 (2d Dist. 1983). "A claimant who is going to school can be available for a full-time job at the same time, but the circumstances of each case must be considered by the Department before finding that someone's principal occupation is that of a student." Moss, 357 Ill. App. 3d at 987. A person maintaining even a full-time academic course load has been considered not to be in the "principal occupation" of a student where her work history and testimony indicated her course schedule would not unduly restrict her work schedule. See Digest of Adjudication Precedents ("Digest") AA § 40.05, ABR-87-7121/12-30-87. Also, a college student who was employed as a temporary full-time bus driver under the CTA's "summer student program," whereby college students are hired on a temporary basis during the summer, and who decided not to return to school for the fall term was deemed "available for work" when she applied for unemployment benefits in the fall. Chicago Transit Authority v. Didrickson, 276 Ill. App. 3d 773, 664 N.E.2d 639 (1st Dist. 1995).
"[T]he longer the claimant has been out of work, the more willing he must be to perform different tasks, travel farther, and accept lower pay." Crocker v. IDOL, 121 Ill. App. 3d 185, 459 N.E.2d 332 (2d Dist. 1984). This principle of lowering expectations is especially important in adjudicating A&A issues in extended benefit claims. See Cosby v. Ward, 843 F.2d 967 (7th Cir. 1988). Extended benefits ("EB") are additional weeks of benefits that "trigger on" during periods of national recession. See 820 ILCS 405/409 and the Federal-State Unemployment Compensation Act of 1970, 26 U.S.C.A. § 3304(a)(11) and note, Pub. L. 91-373 (as amended). IDES requires an additional work search form, establishing, inter alia, a "sustained and systematic" effort to find work, to be submitted to establish eligibility for EB.
The lowering expectations principle is important in EB cases because EB is, by definition, paid to claimants who have been unemployed for a longer time, and because, unlike regular benefits, if a claimant is denied EB for any one week, he is thereby denied all future weeks. Compare, Clark v. Bd. of Review, 126 Ill. App. 3d 559, 467 N.E.2d 950 (1st Dist. 1984) with DiModica v. IDES, 164 Ill. App. 3d 445, 517 N.E.2d 1197 (2d Dist.1987). During periods in which EB is "on," however, IDES must notify claimants of the work search requirements they are expected to meet. Cosby v. Ward, 843 F.2d 967, 984-85 (7th Cir. 1988).
A claimant may draw benefits during one "benefit year" (Footnote 11) for the lesser of 26 weeks times his/her wba plus dependents' allowances, if any, or until (s)he is paid benefits equal to the total wages paid to the claimant during his/her base period. (Footnote 12), 820 ILCS 405/403. Once a claimant has drawn the maximum amount of benefits during one benefit year, (s)he cannot draw more weeks of regular UI until (s)he begins a new benefit year (Footnote 13).
Since June, 2008, claimants who exhausted their state benefits may obtain Emergency Unemployment Compensation (EUC). (Footnote 13.5) EUC works by providing benefits in four successive "tiers" of 20, 14, 13 and 6 weeks each. See Pub. L. No. 110-252, Title IV, §§ 4002(d)-(f), 122 Stat. 2353 (2008), as amended (see Footnote 13.5). The first two tiers are available in any state, while the third and fourth tiers are only available in states with unemployment rates meeting certain minimum levels. Illinois currently meets the minimum level of unemployment for all the tiers, so that claimants in Illinois may be eligible for 53 total additional weeks of benefits though EUC. However, under the most recent extension of the program, regular benefits must be exhausted by December 24, 2011 to qualify for EUC, and a claimant must fully exhaust a "tier" prior to December 31, 2011 to obtain benefits under the next tier. EUC benefits may be available for weeks of unemployment ending on or before January 3, 2012, and eligible claimants can collect these benefits only through June 9, 2012, unless the program is extended once again.
If a claimant remains unemployed after exhausting EUC, s/he may be eligible for up to 20 weeks of EB. As with EUC, EB is currently triggered "on" in Illinois. However, no EB payments will be made in Illinois after January 7, 2012, unless the program is extended. At the maximum, with regular benefits, EUC, and EB, a claimant in Illinois may receive up to 99 weeks of benefits.
Remember that the wages a claimant earned during both the calendar quarter in which (s)he files a claim, and the preceding calendar quarter, are not considered in determining whether the claimant qualifies for benefits because those wages are not in the claimant's "base period." (But if omitting the preceding completed calendar quarter renders the claimant completely ineligible, it may be counted in an alternate "base period.") (See Base Period Earnings.) Some claimants using the traditional base period could file a second claim just after the end of their first benefit year, using wages from the quarters that were disregarded when they first filed because they fell in the original filing quarter and the quarter previous thereto. And, absent any statutory limitation, if those wages were enough to qualify again, the claimant could begin to draw regular benefits again during a second benefit year without working again after the initial layoff (Footnote 14). But Section 607 of the IUIA, 820 ILCS 405/607, requires that, to qualify for benefits again after a claimant's first benefit year has expired, a claimant must have worked again, subsequent to the beginning of the prior benefit year, and earned at least 3 times his/her wba.
A claimant who meets all the eligibility requirements described in Section 1 infra will not receive benefits if (s)he is disqualified for one of the following reasons:
Pursuant to 820 ILCS 405/602.A, an individual who is discharged for misconduct in connection with work is disqualified unless he becomes reemployed and has had earnings equal to or in excess of his current weekly benefit amount in each of four calendar weeks.
"Misconduct" is defined in Section 602 of the IUIA as 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. 820 ILCS 405/602.A.
Although the statute requires a rule or "policy," the Illinois Appellate Court, in a series of cases, has not required that the rule or policy be written or even articulated in circumstances where the behavior violates a policy which is self-evident such as sexual harassment, Caterpillar Inc. v. IDES, 313 Ill. App. 3d 645 (2d Dist. 2000), leaving a vulgar and abusive message on a coworker's home voice mail, Manning v. Department of Employment Sec., 365 Ill. App. 3d 553, 850 N.E.2d 244 (1st Dist. 2006); stealing, Ray v. IDES, 244 Ill. App. 3d 233, 614 N.E.2d 196 (1st Dist. 1993); or fighting, Bandemer v. IDES, 204 Ill. App. 3d 192, 562 N.E.2d 6, 7 (1st Dist. 1990). But proof of a policy is required in situations where an employee would not be aware that certain conduct is proscribed. Zuaznabar v. Bd. of Review, 257 Ill. App. 3d 354, 628 N.E.2d 986 (1st Dist. 1993); Farmers Ins. Bank v. IDES, 216 Ill. App. 3d 633, 576 N.E.2d 532 (3d Dist. 1990); Adams v. Ward, 206 Ill. App. 3d 719, 565 N.E.2d 53 (1st Dist. 1990); compare Oleszczuk v. Department of Employment Sec., 336 Ill. App. 3d 46, 782 N.E.2d 808 (1st Dist. 2002) (noting that while a rule may reasonably require employees directed to attend a training session to "attend and show evidence of having learned something," and that "such a rule is so obvious it need not be stated," where the employer merely disputed "how much, or how well" the employee had learned, no rule had been violated).
The employer's failure to follow its own disciplinary policies in discharging an employee for misconduct does not preclude denial of unemployment benefits. DeBois v. IDES, 274 Ill. App. 3d 660, 653 N.E.2d 1336 (1st Dist. 1995).
What Constitutes a Discharge: The question occasionally arises as to whether a work separation is a discharge. Refusal to put an employee on the schedule is tantamount to a discharge. Grigoleit Company v. IDES, 282 Ill. App. 3d 64,70 (4th Dist. 1996). Likewise refusal to allow an employee to return from an approved leave of absence is the functional equivalent of a discharge. Jones v. IDES, 276 Ill. App. 3d 281 (1st Dist. 1995). A suspension or involuntary unpaid leave of absence of more than one week is treated as a discharge. See Mattson v. IDOL, 118 Ill. App. 3d 724, 455 N.E.2d 278 (1983); Overstreet v. IDOL, 168 Ill. App. 3d 24, 522 N.E.2d 185, 187 (1st Dist. 1988); see generally Digest, MC § 135, VL § 135.
Causation: It is axiomatic that IDES must focus on the conduct which actually caused the discharge. Thus, once an employer states a reason for discharge, other reasons asserted later should be deemed irrelevant. See James L. Hafele & Assoc. v. IDES, 308 Ill. App. 3d 983 (3d Dist. 1999) (Employer testified that claimant was fired for feigning illness and that it would not have fired her but for this act. Therefore, court found no misconduct when claimant produced documentation showing that she was in fact ill and received medical treatment on the date in question, despite evidence of other acts that could arguably support a misconduct finding); Zuaznabar v. Bd. of Review, 257 Ill. App. 3d 354, 628 N.E.2d 986, 990 (1st Dist. 1993) (bus company could not claim that it discharged driver for failing to report unauthorized stops after stating that it had discharged him for making the stops).
Proximate or Last Act: However, a finding of deliberate and willful misconduct does not require a showing of a proximate or last act which led to the discharge. "A section 602A misconduct finding can be premised on either a particular incident of a rule's violation that triggered the employee's discharge, or the employee's cumulative rules violation taken as a whole." See Katten, Muchin & Zavis v. IDES, 279 Ill. App. 3d 794, 665 N.E.2d 503 (1st Dist. 1996) (claimant's compliance with the employer's rules immediately before his discharge did not foreclose a finding of misconduct based on the claimant's cumulative record of violating rules). Note, however, that the employer must offer evidence of such cumulative misconduct to rely upon it. See Wrobel v. Illinois Dept. of Employment Sec., 344 Ill. App. 3d 533, 801 N.E.2d 29 (1st Dist. 2003) (distinguishing Katten, Muchin where there was no evidence that past infractions were willful and not the result of negligence).
Alcohol or Drug Use: Alcohol or drug use either on the job or such that the employee is impaired at work constitutes misconduct. See Jackson v. Board of Review, 105 Ill. 2d 501, 475 N.E.2d 879 (1985) (applying former definition of misconduct); Glasper v. Bd. of Review, 218 Ill. App. 3d 347, 578 N.E.2d 254 (1st Dist. 1991); Overstreet v. IDES, 168 Ill. App. 3d 24, 522 N.E.2d l185 (1st Dist. 1988); Neville v. Bd. of Review, 143 Ill. App. 3d 548, 494 N.E.2d 512 (2d Dist. 1986); Profice v. Bd. of Review of Illinois, 135 Ill. App. 3d 254, 481 N.E.2d 1229 (1st Dist. 1985); Mattson v. IDOL, 118 Ill. App. 3d 724, 455 N.E.2d 278 (4th Dist. 1983).
Also, drug or alcohol use that neither occurs on the job nor affects one's work constitutes misconduct if a urine or blood test taken at work reveals trace amounts of the drugs and the presence of drugs violates an employer rule, particularly when there are safety considerations at work. McAllister v. Bd. of Review, 263 Ill. App. 3d 207, 635 N.E.2d 596 (1st Dist. 1994) (CTA bus driver). An Illinois court has held that failing to pass drug tests on two occasions, despite a warning, constitutes misconduct whether there are safety considerations or not. Robinson v. IDES, 264 Ill. App. 3d 659, 637 N.E.2d 631 (1st Dist. 1994) (Footnote 15).
Perhaps the most valuable argument in cases involving drug or alcohol use is that the claimant's conduct was not deliberate because (s)he is alcoholic or drug dependent. See Menneweather v. Bd. of Review, 249 Ill. App. 3d 980, 621 N.E.2d 22 (1st Dist. 1992). But this argument has been used most effectively when the claimant is absent or tardy because of alcohol or drug use, see id., not when the claimant uses the substance at work or comes to the job under the influence. Also, the Claimant must admit to being alcohol or drug dependent (something that often conflicts with the denial associated with any such illness) and submit medical proof of that fact and that the illness caused the conduct in question. Id.
Insubordination: Insubordination is misconduct. See Greenlaw v. IDES, 299 Ill. App. 3d 446 (1st Dist. 1998); Nichols v. IDES, 218 Ill. App. 3d 803, 578 N.E.2d 1121 (1st Dist. 1991); Carroll v. Bd. of Review, 132 Ill. App. 3d 686, 477 N.E.2d 800 (2d Dist. 1985); Walthall v. IDOL, 146 Ill. App. 3d 701, 497 N.E.2d 782 (1st Dist. 1986); Stovall v. IDES, 262 Ill. App. 3d 1098, 640 N.E.2d 299 (1st Dist. 1994). But merely being argumentative in a private conversation with a supervisor, even in a loud voice, is not misconduct. See Czajka v. Department of Employment Sec., 387 Ill. App. 3d 168 (1st Dist. 2008). A "single flurry of temper between a worker and a supervisor," without threats or abusive language, does not suffice to constitute misconduct. Id.; see also Oleszczuk v. Department of Employment Sec., 336 Ill. App. 3d 46, 52 (1st Dist. 2002); Sheff v. Bd. of Review, 128 Ill. App. 3d 347, 470 N.E.2d 1044 (5th Dist. 1984); Gee v. Bd. of Review, 136 Ill. App. 3d 889, 483 N.E.2d 1025 (1st Dist. 1985). However, directing an abusive expletive at a supervisor may be misconduct even if the employee does not use explicitly profane language. See Greenlaw v. IDES, 299 Ill. App. 3d 446 (1st Dist. 1998) (employee's use of expression "kiss my grits" held to be misconduct). If an employee refuses an employer request to stay overtime to discuss a problem because the employer does not pay overtime pay as required by the FLSA, (s)he has not committed "misconduct." Crowley v. IDES, 190 Ill. App. 3d 900, 546 N.E.2d 1042 (2d Dist. 1989).
Poor Work Performance: Poor work performance is not misconduct unless the employer shows that the claimant willfully performed badly. See Messer & Stilp, Ltd. v. Department of Employment Sec., 392 Ill. App. 3d 849, 910 N.E.2d 1223 (1st Dist. 2009); Loveland Mgt. Corp. v. Bd. of Review, 166 Ill. App. 3d 698, 520 N.E.2d 1070 (2d Dist. 1988); Zuaznabar v. Bd. of Review, 257 Ill. App. 3d 354, 628 N.E.2d 986 (1st Dist. 1993).
Negligence: Similarly, mere negligence, even repetitively, or poor judgment is not misconduct. See Wrobel v. Illinois Dept. of Employment Sec., 344 Ill. App. 3d 533, 801 N.E.2d 29 (1st Dist. 2003); Pesce v. Bd. of Review, 161 Ill. App. 3d 879, 515 N.E.2d 849 (1st Dist. 1987); Siler v. IDES, 192 Ill. App. 3d 921, 549 N.E.2d 760 (1st Dist. 1989); Crowley v. IDES, 190 Ill. App. 3d 900, 546 N.E.2d 1042 (2d Dist. 1989). But see Perto v. Bd. of Review, 274 Ill. App. 3d 485, 654 N.E.2d 232 (2d Dist. 1995) (claimant's failure to perform weekly commodity counts was willful misconduct despite cash register malfunction because claimant failed to report the malfunction to his supervisor and should have continued the counts manually). However, be aware that many referees function under the reasoning that if an action was “within an employee’s ability to control,” and it violates an employer’s reasonable rule, then it is willful misconduct. See, e.g., Wrobel, 344 Ill. App. 3d at 536, 538 (reversing denial of benefits on this ground, where claimant was late because he had overslept); compare Livingston v. Department of Employment Sec., 375 Ill. App. 3d 710, 873 N.E.2d 444 (1st Dist. 2007) (employee's inappropriate touching of elderly nursing home resident's face in effort to subdue her constituted misconduct, despite employee's argument that the incident constituted mere poor judgment).
Absence or Tardiness: Absence or tardiness is not misconduct if the claimant has a good reason for the attendance problem and either notifies the employer, or has a good reason for not doing so. Wright v. IDOL, 166 Ill. App. 3d 438, 519 N.E.2d 1054 (1st Dist. 1987); London v. IDES, 177 Ill. App. 3d 276, 532 N.E.2d 294 (1st Dist. 1988); Garner v. IDES, 269 Ill. App. 3d 370, 646 N.E.2d 3 (2d Dist. 1995); Wrobel v. Illinois Dept. of Employment Sec., 344 Ill. App. 3d 533, 801 N.E.2d 29 (1st Dist. 2003); Abbott Industries, Inc. v. Department of Employment Sec., --- N.E.2d ----, 2011 WL 2517034 (2d Dist. June 20, 2011). But when the claimant could have avoided being absent or tardy, or fails to notify the employer when (s)he could have done so, that is misconduct. See, e.g., Wilson v. IDES, 196 Ill. App. 3d 711, 554 N.E.2d 1006 (1st Dist. 1990); Thomas v. Ward, 211 Ill. App. 3d 624, 570 N.E.2d 477 (1st Dist. 1990); Gregory v. Bernardi, 125 Ill. App. 3d 376, 465 N.E.2d 1052 (2d Dist. 1984); Robinson v. IDOL, 118 Ill. App. 3d 986, 455 N.E.2d 567 (3d Dist. 1983); Bandemer v. IDES, 204 Ill. App. 3d 192, 562 N.E.2d 6 (1st Dist. 1990); Medvid v. IDES, 186 Ill. App. 3d 747, 542 N.E.2d 852 (1st Dist. 1989); Bocehnek v. IDES, 169 Ill. App. 3d 507, 525 N.E.2d 893 (1st Dist. 1988). However, falsifying time sheets constitutes willful misconduct where claimant was notified of employer's reasonable rule regarding falsifying time sheets. DeBois v. IDES, 274 Ill. App. 3d 660, 653 N.E.2d 1336 (1st Dist. 1995).
Self Defense: Self defense is not misconduct. Rias v. IDES, 187 Ill. App. 3d 328, 543 N.E.2d 211 (1st Dist. 1989).
Falling Asleep at Work: Falling asleep at work is not misconduct if doing so was inadvertent (e.g., nodding off at a meeting) as opposed to purposeful (e.g., going to a little-used area of the workplace in order to take a nap). Compare Washington v. Bd. of Review, 211 Ill. App. 3d 663, 570 N.E.2d 566 (1991). (claimant secretary who took aspirin for headache and fell asleep for 30 minutes did not commit misconduct), with Odie v. Department of Employment Sec., 377 Ill. App. 3d 710, 881 N.E.2d 358 (1st Dist. 2007) (distinguishing Washington where claimant's testimony that falling asleep was inadvertent was belied by her reaction to being woken up, which failed to show "alarm or embarrassment," and where her duties, monitoring 20 to 30 nursing home residents who required skilled nursing care, required her to be alert).
Known Rule: For the claimant's action to be "deliberate and willfull," the rule that (s)he violated must be known. See Farmers Ins. Bank v. IDES, 216 Ill. App. 3d 633, 576 N.E.2d 532 (3d Dist. 1990); Adams v. Ward, 206 Ill. App. 3d 719, 565 N.E.2d 53 (1st Dist. 1990); Lachenmeyer v. Didrickson, 263 Ill. App. 3d 382, 636 N.E.2d 503 (4th Dist. 1994). Also, the rule violated must be a reasonable rule or policy governing the employee's work performance. Perto v. Bd. of Review, 274 Ill. App. 3d 485, 654 N.E.2d 232, (2d Dist. 1995). A rule is not "reasonable" unless it provides guidelines that are or should be known by employee. Garner v. IDES, 269 Ill. App. 3d 370, 646 N.E.2d 3 (2d Dist. 1995) (employer's rule about calling in was not reasonable where claimant's absence related to the employer's admitted chronic nonpayment of wages). The existence of a reasonable rule or policy violated by claimant does not have to be proven by direct evidence but can be found to exist through some common sense realization that certain behavior intentionally and substantially disregards the employer's interest. Stovall v. IDES, 262 Ill. App. 3d 1098, 640 N.E.2d 299 (1st Dist. 1994).
The claimant must have either harmed the employer or another employee or repeated his conduct after notice that it was wrong. See Kiefer v. IDES, 266 Ill. App. 3d 1057 (1st Dist. 1994); Adams v. Ward, 206 Ill. App. 3d 719, 565 N.E.2d 53 (1st Dist. 1990); Zuaznabar v. Bd. of Review, 257 Ill. App. 3d 354, 628 N.E.2d 986, 989-90 (1st Dist. 1993). The "harm" element requires care because courts will not view conduct that costs the employer only a little bit as too de minimis to constitute harm. See e.g., Bandemer v. Department of Employment Sec., 204 Ill. App. 3d 192, 562 N.E.2d 6 (1st Dist. 1990) (late opening of store caused the employer sufficient harm to constitute misconduct, because potential customers unable to shop); Ray v. IDES, 244 Ill. App. 3d 233, 614 N.E.2d 196 (1st Dist. 1993) (pilfering a few inexpensive items is misconduct). Harm to the morale of other employees has been held to constitute the requisite harm. See Manning v. Department of Employment Sec., 365 Ill. App. 3d 553, 850 N.E.2d 244 (1st Dist. 2006); Caterpillar, Inc. v. Department of Employment Sec., 313 Ill. App. 3d 645, 730 N.E.2d 497 (2d Dist. 2000) (sexual harassment). The court has even characterized the "loss of trust" placed in an employee and the expense of training a replacement as "harm." See Phistry v. Department of Employment Sec., 405 Ill. App. 3d 604, 939 N.E.2d 577 (1st Dist. 2010). However, that case also involved financial harm caused by the employee's personal use of office credit cards. See id. Presumably, mere "loss of trust," without at least some other harm, should not suffice; otherwise the element of harm is effectively negated altogether.
The courts have been split on the question of whether actual harm, as opposed to potential harm, must be shown. Compare Czajka v. Department of Employment Sec., 387 Ill. App. 3d 168, 901 N.E.2d 436 (1st Dist. 2008) (noting split of authority but finding that where there was no evidence that church employee's continuing protest of video shown by church "had any modicum of success," harm element not met); Adams v. Ward, 206 Ill. App. 3d 719, 565 N.E.2d 53 (1st Dist. 1990) (where employee uniforms wrongly thrown away were retrieved, no harm shown); Kiefer, 266 Ill. App. 3d at 1061-62 (unauthorized insurance sales did not cause harm), and Zuaznabar (negligent driving and unauthorized stops did not cause harm), with Hurst v. Department of Employment Sec., 393 Ill. App. 3d 323, 913 N.E.2d 1067 (1st Dist. 2009) (referring to "weight of authority" permitting harm to be merely potential, and finding harm where employee failed to report arrest for driving while intoxicated, which impeded employer's ability to determine that license was revoked and could have exposed it to liability); Livingston v. Department of Employment Sec., 375 Ill. App. 3d 710, 717-18, 873 N.E.2d 444 (1st Dist. 2007) (slapping nursing home resident caused actual and potential harm); Manning, 365 Ill. App. 3d at 557-58 (hostile and abusive voice mail to coworker caused potential harm to work environment); Greenlaw v. Department of Employment Sec., 299 Ill. App. 3d 446, 701 N.E.2d 175 (1st Dist. 1998) (abusive language directed at supervisors potentially harmful to business); Bandemer, 204 Ill. App. 3d at 195 (failure to open store caused potential harm to business); Brodde v. Didrickson, 269 Ill. App. 3d 309, 645 N.E.2d 990 (1st Dist. 1995) (violation of safety rules constituted potential harm); Winklmeier v. Board of Review, 115 Ill. App. 3d 154, 450 N.E.2d 353 (5th Dist. 1983) (filing false medical claims caused potential harm, as employer was exposed to greater insurance costs). The Livingston court discussed the split of authority and attempted to reconcile some of the cases, determining there was "actual and potential harm" where the potential harm was not remote, in that it exposed the nursing home to liability and reputational damage, and where the conduct at issue was deliberate. Livingston, 375 Ill. App. 3d at 717-18.
The courts are also divided on the similar question of whether the employer must present evidence on the harm/potential harm issue or whether the existence of either actual or potential harm can be presumed from the circumstances. In a Second District case the court held that the employer must articulate and prove either actual or potential harm. Garner v. IDES, 269 Ill. App. 3d 370, 646 N.E.2d 3 (2d Dist. 1995) (claimant failed to call in to report his absence from work in violation of the employer's rule because employer repeatedly failed to pay him on time). The Court in Garner reversed a finding of misconduct because the record contained no evidence of harm of any kind, such as evidence that claimant's absence resulted in uncompleted work, loss of productivity, complaints from clientele or loss of business. It further held that there was no misconduct because the record contained no evidence that claimant was ever explicitly and unambiguously warned that his absence while waiting for his paycheck would not be tolerated, although claimant's supervisor had counseled him that "he was only hurting himself and his absenteeism would reflect on his employment record."
IDES has promulgated a regulation to clarify the requirements of "harm," containing a list of examples. See 56 Ill. Adm. Code § 2840.25.
If an employee violates a rule that does not govern the behavior of the employee in performance of work, this is not misconduct, even though the employer may feel the conduct is contrary to its interests. Thus, some acts, though unquestionably wrongful, do not disqualify a claimant because they are not "connected with work." Caterpillar Inc. v. Fehrenbacher, 286 Ill. App. 3d 614 (2d Dist. 1997) (employee who placed a sign in his truck window reading “scab” did not commit misconduct connected with work). Compare Hurst v. Department of Employment Sec., 393 Ill. App. 3d 323, 913 N.E.2d 1067 (1st Dist. 2009) (where employer had a rule requiring employees to report all arrests, employee failed to report DUI arrest immediately, and valid license was requirement of employee's work, misconduct considered to be connected with work, even though conduct and arrest occurred outside of work); Czajka v. Department of Employment Sec., 387 Ill. App. 3d 168, 901 N.E.2d 436 (1st Dist. 2008) (that some conduct occurred off duty or outside employer's property did not "negate a nexus" between conduct and employer's rule); Manning v. Department of Employment Sec., 365 Ill. App. 3d 553, 850 N.E.2d 244 (1st Dist. 2006) (vulgar and hostile message left outside of work hours and off-site on co-worker's home voicemail considered to be sufficiently connected to work, where dispute started on-site and message referred to work-related matters).
Some courts treat off-duty drug use that does not impair the claimant's work ability as unconnected with work and, therefore, not disqualifying. See National Gypsum Co. v. State Emp. Sec. Bd. of Rev., 244 Kan. 678, 772 P.2d 787 (1989); Total Engineered Maintenance v. ESD, 1988 Unempl. Ins. Rep. (CCH) 8968 at 50, 608 (Wash. Sup. Ct. 1987); Weyhaeser v. Emp. Div., 105 Or.App. 233, 804 P.2d 1183 (1991); Veneer v. Emp. Div., 105 Or.App. 198, 804 P.2d 1174 (1990); Marine Drilling Co. v. Whitfield, 535 So.2d 1253 (La.App. 1988); Glide Lumber Products Co. v. Emp. Div., 86 Or.App. 669, 741 P.2d 907 (1987); Silverton Forest Products Co. v. Emp. Div., 86 Or.App. 684, 741 P.2d 915 (1987). While it may seem that this argument would be particularly strong in Illinois, since the definition of misconduct in the IUIA requires that the claimant violate a rule that "govern[s] the individual's behavior in performance of his work," Illinois state courts have routinely denied such claims. See e.g., Robinson v. IDES, 264 Ill. App. 3d 659, 637 N.E.2d 631 (1st Dist. 1994); MacAllister v. Bd. of Review, 263 Ill. App. 3d 207, 635 N.E.2d 596 (1st Dist. 1994).
As a general rule, the burden of proving misconduct is on the employer. See, e.g., Adams v. Ward, 565 N.E.2d at 57 ("First, an employer must show the former employee violated a reasonable company rule."); Zuaznabar v. Bd. of Review, 257 Ill. App. 3d 354, 628 N.E.2d 986, 989-90 (1st Dist. 1993); Parker v. St. Maries Plywood, 101 Idaho 415, 614 P.2d 955, 959 (Id. 1980) see generally 76 Am. Jur. 2d Unemployment Compensation § 71, (2011). In practice, however, the burden of proof switches depending on who should fairly be asked to prove a point given the relative knowledge of the parties.
For example, in cases involving acts which would otherwise be misconduct, but which were not deliberate and willfull because the claimant is an alcoholic (see Specific Types of Conduct), the claimant will be required to prove the fact of the alcoholism and the causative link between that condition and the conduct in question (e.g., being tardy). See Menneweather v. Bd. of Review, 249 Ill. App. 3d 980, 621 N.E.2d 22 (1st Dist. 1992). Similarly, a claimant who says that he got permission from a supervisor to do something that would otherwise violate the employer's rule has the burden of proving that fact.
Section 602.B of the IUIA is a special misconduct provision for claimants who are discharged because of the commission of a felony or theft in connection with work, for which the employer was in no way responsible 820 ILCS 405/602.B. Section 602.B disqualifies a claimant not just until he earns four times his wba (as is the case in simple "misconduct" disqualifications) but until he earns the full $1600/$440 base period earnings necessary to file a "valid" claim. (Footnote 16), see Base Period Earnings.
Section 602.B applies when an individual has admitted committing the crime (to IDES or in a written statement) (Footnote 17) or commission of the act has resulted in a conviction by a court of competent jurisdiction. But, contrary to the language in the statute, IDES cannot hold a UI claim in abeyance pending disposition of criminal adjudication because to do so violates 42 U.S.C. 503(a)(1). See Jenkins v. Bowling, 691 F.2d 1225 (7th Dist. 1982). Instead, IDES must promptly hold a hearing and determine whether the claimant committed the act in question even if the criminal trial has not yet been completed.
In practice, therefore, felony/theft cases create a somewhat unique problem because the claimant will be asked to testify at the UI hearing before he decides whether to do so in the criminal case. If he does testify in the UI hearing, he arguably waives his fifth amendment right to silence at the later criminal case. See Reed v. State, 523 So.2d 62 (Miss. 1990) (Footnote 18). Alternatively, the claimant may suffer an inference from his refusal to testify because, while the fifth amendment protects a claimant from testifying in a UI case, the right to be free of an adverse inference from refusing to testify is generally limited to the criminal case itself. See City of Chicago v. Reliable Truck Parts Co. Inc., 768 F. Supp. 642, 647 (N.D. Ill. 1991), citing Nat'l Accep. Co. of America v. Bathalter, 705 F.2d 924 (7th Cir. 1983); Shea v. Civil Service Commission, 224 Ill. App. 3d 282, 586 N.E.2d 512, 516 (1st Dist. 1991).
In any case of this kind, the attorney representing the claimant in the UI case should consult with the criminal defense attorney and the affected client to decide on strategy given the seriousness of the offense charged, the likelihood of conviction and the relative costs associated with losing the UI benefits or the criminal case. Also, in multiple claimant cases, be particularly cognizant of potential conflicts.
Pursuant to Section 601 of the Act 820 ILCS 405/601, unless the claimant falls within one of the enumerated exceptions (see Connected with Work) an individual is disqualified from receiving UI if he has left work voluntarily without good cause attributable to the employing unit until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount in each of four calendar weeks.
The first issue in a voluntary leave case is whether the claimant left work or was discharged. This is largely a question of intent, and where the record contains no evidence that the claimant intended to abandon her position, courts have held that the claimant was discharged. Arroyo v. Doherty, 296 Ill. App. 3d 839,846 (1st Dist. 1998) (claimant’s mother contacted employer throughout her illness and claimant attempted to return to work after her recovery 6 weeks later). See also Grigoleit v. IDES, 282 Ill. App. 3d 64 (4th Dist. 1996), (claimant did not voluntarily leave where she thought that she was merely taking the day off without pay and made several attempts to be reinstated); 56 Ill. Adm. Code § 2840.101(a) ("For an individual's separation from work to be a voluntary leaving, the individual must have the option to remain employed by the employing unit."). Similarly, termination of employment during an approved leave of absence where the employee tries to return to work is involuntary and attributable to the employer. Jones v. IDES, 276 Ill. App. 3d 281, 657 N.E.2d 1141 (1st Dist. 1995).
When an employee is hired by a temporary help firm to perform work on a temporary basis, he has an affirmative duty to contact the temporary agency at the conclusion of the assignment for a subsequent placement; failure to do so may result in a finding that he has voluntarily left the employment. See Chicago Transit Authority v. Doherty, 291 Ill. App. 3d 909 (1st Dist. 1997); but see Calkins v. Bd. of Review, 141 Ill. App. 3d 36, 489 N.E.2d 920 (3d Dist. 1986); Jones v. IDES, 276 Ill. App. 3d 281, 657 N.E.2d 1141 (1st Dist. 1995); Chicago Transit Authority v. Didrickson, 276 Ill. App. 3d 773, 659 N.E.2d 28 (1st Dist. 1995), (when a claimant knowingly accepts a temporary job and is then separated from that work when the agreed period of hire is over, he did not voluntarily leave merely by honoring the temporary employment agreement, unless he refused further work when it was offered).
Sometimes an employer will describe a separation as voluntary leaving, especially in cases of "no-call, no-show," because it is to their advantage to have the claim decided under 601A. The courts have generally treated the issue of whether it was a discharge or quit as one of fact, emphasizing which party initiated the separation. It is nearly always to the claimant's advantage to argue that he was discharged.
Illinois courts have adopted the theory of "constructive voluntary leave," whereby the loss of employment is attributable to the claimant's own action or inaction and constitutes a voluntary leaving. See Horton v. Department of Employment Sec., 335 Ill. App. 3d 537, 781 N.E.2d 545 (1st Dist. 2002) (suspension of driver's license due to traffic citations held to constitute "constructive voluntary leaving"); Hawkins v. IDES, 268 Ill. App. 3d 927, 645 N.E.2d 428 (1994) (finding failure to obtain a commercial driver's license was due to claimant's inaction rather than inability to pass the test, since, although driver was aware of deadline for passing test two years before deadline occurred, he failed to take test until one week before the deadline and passed test on his third try one month after deadline). In addition, IDES has promulgated a rule acknowledging this doctrine. 56 Ill. Adm. Code § 2840.101(a) ("Notwithstanding any other provision to the contrary, when obtaining or maintaining a 'tool of the trade' necessary to perform a job, including but not limited to an occupational or other license required by federal or State law, is within an individual's control, a work separation that results from the individual's failure to obtain or maintain the tool of the trade is a voluntary leaving.").
This interpretation contradicts the IUIA because, in fact, the claimant did not quit and the statute does not speak of constructively quitting. Rather, in each case the claimant was discharged for certain conduct and the proper issue should be whether the claimant's acts constitute "misconduct." Thus, where the employer neglected to deduct union dues from a claimant's paycheck and because of her personal financial situation, the claimant could not pay the arrearage when the error was discovered, the claimant ought not be denied UI benefits. Pearson v. Bd. of Review, 194 Ill. App. 3d 1064, 551 N.E.2d 1021 (1st Dist. 1990). In any event, the licensing situation should turn on whether the claimant deliberately refused to do what was required to become licensed, or tried, in good faith, to obtain the license but, for example, could not pass the exam. See Digest MC § 135.3, ABR-85-756/6-25-85. The regulation acknowledges this. See 56 Ill. Adm. Code § 2840.101(a)(7) (citing, as an example, an individual who takes training courses as required to obtain necessary license but repeatedly fails the exam, as not voluntarily leaving employment).
Good cause to leave one's work is cause that results from circumstances that produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner. Burke v. Bd. of Review, 132 Ill. App. 3d 1094, 477 N.E.2d 1351 (2d Dist. 1985). Whether an employee had good cause for leaving the job depends upon an employee's unique personal circumstances and reasonableness of employee's actions. Hawkins v. IDES, 268 Ill. App. 3d 927, 645 N.E.2d 248 ( 1st Dist. 1994). Thus, an action by the employer that places an additional substantial burden on the claimant may be good cause to leave. Jaime v. IDES, 301 Ill. App. 3d 930 (1st Dist. 1998) (employer relocation required claimant to commute an additional distance of 16 miles in each direction). When an employer requires an employee to perform tasks that she is untrained and unqualified to perform competently, she has good cause to quit. Davis v. Bd. of Review, 125 Ill. App. 3d 67 (1st Dist. 1984). Reduction in pay may also constitute good cause for leaving employment unless claimant resigned several months after the pay reduction went into effect and claimant made no efforts to resolve the situation with employer. Henderson v. IDES, 230 Ill. App. 3d 536, 595 N.E.2d 96 (1st Dist. 1992). Reduction in hours, however, has been held not to constitute good cause, where the claimant could keep the job with reduced hours and file a claim for partial benefits. Acevedo v. Department of Employment Sec., 324 Ill. App. 3d 768, 755 N.E.2d 93 (1st Dist. 2001). The regulations contain a list of examples to illustrate what constitutes "good cause." 56 Ill. Adm. Code § 2840.101(b).
IDES has adopted a regulation governing "early retirement" or "employment buyout packages," under which an employee is deemed ineligible after accepting such an offer unless "1) the individual knows or reasonably believes that, within the proximate future, his employment will be terminated by the employer under terms and conditions substantially less favorable than the terms and conditions of the offer, or 2) the individual knows or reasonably believes that his employment will continue, in the proximate future, but under terms and conditions substantially less favorable than the terms and conditions of his employment immediately prior to the offer, or 3) the individual knows that a layoff will follow if a sufficient number of employees do not accept the offer of an early retirement or employment buyout package and the individual accepts the offer to avoid the layoff of another employee." 56 Ill. Adm. Code § 2840.125(a). The regulation provides a non-exclusive list of examples of situations and whether they would fall within the rule. Id., § 2840.125(b)(1)-(8). See also Childress v. Department of Employment Sec., 405 Ill. App. 3d 939, 940 N.E.2d 90 (1st Dist. 2010).
A special (and confused) problem arises when a claimant leaves one job (usually a part-time position) after being laid off from another (usually full-time) job. By the language in the statute, if a claimant quits any job (absent good cause attributable to the employer or the application of one of the exceptions), he should be denied for the week in which he quit and all further weeks until he requalifies (Footnote 19). But in fact, if the circumstances of losing the full-time job are not otherwise disqualifying, the courts are split on whether the claimant should be affected in the receipt of benefits based on then leaving the part-time job. Compare Rogers v. IDES, 186 Ill. App. 3d 194, 542 N.E.2d 168 (2d Dist. 1989); Butler v. Bd. of Review, 136 Ill. App. 3d 1079, 484 N.E.2d 328 (5th Dist. 1985); with Minfield v. Bernardi, 122 Ill. App. 3d 97, 460 N.E.2d 766 (1st Dist. 1984).
The burden of proof in a voluntary leave claim is generally on the claimant. But, as is the case in misconduct cases, it can vary depending on the circumstances. See Burden of Proof.
Since the claimant's cause to leave work must be "attributable to the employ[er]," the inquiry focuses on the employer's conduct, not the employee's. Henderson v. IDES, 230 Ill. App. 3d 536, 595 N.E.2d 96 (1st Dist. 1992); Grant v. Bd. of Review, 200 Ill. App. 3d 732, 558 N.E.2d 438, 440 (1st Dist. 1990); Pearson v. Bd. of Review, 194 Ill. App. 3d 1064, 551 N.E.2d 1021 (1st Dist. 1990). And, whether the claimant's reason for leaving work constitutes "good cause attributable to the employer" is a question of fact. Grant, 558 N.E.2d at 440. The regulations contain a list of examples of what constitutes cause "attributable to the employer" (but not necessarily "good cause"). 56 Ill. Adm. Code § 2840.101(c).
Note that the requirement that the good cause be attributable to the employing unit does not require that the employer's actions be unreasonable. Davis v. Bd. of Review, 125 Ill. App. 3d 67, 465 N.E.2d 576 (1st Dist. 1984); Grant, 558 N.E.2d at 440. For instance, a substantial unilateral change in employment may render a job unsuitable and prevent a disqualification based on voluntary leaving. Id., 465 N.E.2d at 580; Jones v. Bd. of Review, 136 Ill. App. 3d 64, 482 N.E.2d 1131 (2d Dist. 1985). In particular, a unilateral and substantial reduction in hourly wage rate or other benefits constitutes good cause to leave work. Keystone Steel v. IDOL, 37 Ill. App. 3d 704, 346 N.E.2d 399 (3d Dist. 1976); Farmers Ins. Exchange v. IDOL, 186 Ill. App. 3d 493, 542 N.E.2d 538 (2d Dist. 1989). But dissatisfaction with unchanged wages does not constitute good cause. Minfield v. Bernardi, 122 Ill. App. 3d 97, 460 N.E.2d 766 (1984); Butler v. Bd. of Review, 136 Ill. App. 3d 1079, 484 N.E.2d 318 (1985). And reduction of hours generally does not constitute good cause. Acevedo v. Department of Employment Sec., 324 Ill. App. 3d 768, 755 N.E.2d 93 (1st Dist. 2001); Collier v. IDES, 157 Ill. App. 3d 988, 510 N.E.2d 623 (1987); Popoff v. IDOL, 144 Ill. App. 3d 575, 494 N.E.2d 1266 (2d Dist. 1986).
The employer's conduct can be one of several reasons for the claimant's leaving. Pearson v. Board of Review, 194 Ill. App. 3d 1064, 551 N.E.2d 1021 (1st Dist. 1990); Grant, 558 N.E.2d at 440. But the claimant must make reasonable efforts to resolve work related problems with the employer in order to establish good cause for voluntary leaving. Davis, 465 N.E.2d at 580; Henderson v. IDES, 230 Ill. App. 3d 536, 595 N.E.2d 96 (1992). The claimant need not exhaust all avenues of redress, however, and, in particular, need not exhaust a union grievance. Barron v. Ward, 165 Ill. App. 3d 653, 517 N.E.2d 591 (1st Dist. 1987).
If the assigned work jeopardizes the claimant's health, he has good cause to leave. Davis, 465 N.E.2d 576. But mere dissatisfaction with work conditions that cause the claimant added stress is not good cause if the employer has not changed the work conditions. To establish good cause based on ill health arising from the work, a claimant must (a) offer competent (usually medical) testimony that adequate health reasons existed to justify termination; (b) inform the employer of the health problem; and (c) accept any reasonable accommodation by the employer for other work (or other work conditions) that is not inimical to the claimant's health. Burke v. Bd. of Review, 132 Ill. App. 3d 1094, 477 N.E.2d 1351 (2d Dist. 1985); Rogers v. IDES, 186 Ill. App. 3d 194, 542 N.E.2d 168 (2d Dist.1989); Finick v. IDES, 171 Ill. App. 3d 125, 524 N.E.2d 1148 (1st Dist. 1988); Eggleston v. IDES, 199 Ill. App. 3d 743, 557 N.E.2d 534 (1st Dist. 1990); Nichols v. IDES, 218 Ill. App. 3d 803, 578 N.E.2d 1121 (1st Dist. 1991).
The Act provides seven exceptions to the requirement that good cause be attributable to the employing unit. 820 ILCS 405/601.B.1-7.
The statute used to require that the claimant have "notified his employing unit of the reasons for his absence" to invoke the exception for illness or family illness. See 820 ILCS 405/601.B.1. While this provision did not explicitly require that the claimant take a note from the doctor to the employer, one court interpreted it to do so. Finik v. IDES, 171 Ill. App. 3d 125, 524 N.E.2d 1148, 1155 n.1 (1st Dist. 1988). In 2009, the Illinois legislature deleted the language from that section of the statute. See Ill. Pub. Act 96-30, § 10 (June 30, 2009). (Notice requirements do apply when invoking the exception for domestic violence in 820 ILCS 405/601.B.6.) Of course, the "good cause" requirement of the IUIA has been interpreted to require an effort to resolve the issue with the employer when possible, a requirement that could create a duty at least to share the nature of the reason for leaving with the employer, even if the statute does not require the claimant to give documentation to the employer, in the event some accommodation could be made. See 56 Ill. Adm. Code § 2840.101(b).
Note that the exceptions do not affect the requirement that the individual be able and available for work (see Job Service Registration...). Therefore, if he is unable to perform her old work, he must be able to perform other work for which he is trained and/or has experience and for which there is a market. And if he must care for a family member, the caretaking responsibilities cannot prevent him from accepting all work (Footnote 23). A claimant is eligible if he quits to accept other work and is either "not unemployed" in each of two weeks or earns twice his current weekly benefit amount. See Woodliff v. IDOL, 139 Ill. App. 3d 539, 487 N.E.2d 645 (2d Dist. 1985).
Pursuant to Section 603 of the Act (820 ILCS 405/603), a claimant is disqualified from further receipt of benefits (until he earns at least four times his/her wba) if, while he is claiming benefits, he fails, without good cause, either to apply for available, suitable work when so directed by the job service or to accept suitable work when offered by the job service or an employer.
Thompson v. IDOL, 120 Ill. App. 3d 1, 457 N.E.2d 512 (2d Dist. 1983) contains a thorough discussion of what constitutes good cause for failing to apply for suitable work. See also Lester v. Department of Employment Sec., 354 Ill. App. 3d 51, 819 N.E.2d 1143 (1st Dist. 2004) (finding lack of good cause for failing to accept suitable work). The concept is very much like good cause for leaving a job. See Chicago Transit Authority v. Didrickson, 276 Ill. App. 3d, 659 N.E.2d 28 (1st Dist. 1995). Indeed, refusal issues can be thought of as involving work search concepts (since both refusal of a job and failure to look for one indicate a lack of attachment to the workforce), and voluntary leave concepts (since whether refusing or leaving a job is disqualifying often turns on whether the claimant had "good cause" for not doing that work or whether the work in question was "suitable").
Section 603 says that "[i]n determining whether or not any work is suitable for an individual, consideration shall be given to the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience, and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence." 820 ILCS 405/603.
The longer a claimant is out of work the more willing he must be to change jobs, travel farther and accept lower pay. Doyle v. Bd. of Review, 31 Ill. App. 3d 968, 970, 334 N.E.2d 776 (4th Dist. 1975). Whether a skilled worker must accept unskilled work turns on particular facts such as the length of the claimant's unemployment, the amount of reduction of wages and other benefits and the job market available to the claimant. Compare, Behling v. IDOL, 171 Ill. App. 3d 804, 525 N.E.2d 1021 (1st Dist. 1988); Komarec v. IDOL 144 Ill. App. 3d 1105, 494 N.E.2d 1257 (1986); Eddings v. IDOL, 146 Ill. App. 3d 62, 496 N.E.2d 1167 (2nd Dist. 1986); and Mangan v. Bernardi, 131 Ill. App. 3d 1081, 477 N.E.2d 13 (1st Dist. 1985) with Lester v. Department of Employment Sec., 354 Ill. App. 3d 51, 819 N.E.2d 1143 (1st Dist. 2004) and Jones v. IDOL, 140 Ill. App. 3d 699, 489 N.E.2d 325 (1986). But the mere fact that the work offered is a demotion or that there is no chance of advancement does not render the job unsuitable. Perkins v. Bd. of Review, 137 Ill. App. 3d 892, 485 N.E.2d 575 (2d Dist. 1985).
A job may be unsuitable for a particular person because of his/her moral or religious beliefs. See e.g., Frazee v. IDES, 489 U.S. 829 (1989).
A claimant must not only accept, but also apply for suitable work. But failure to apply for one job where circumstances such as distance or transportation difficulties give the claimant good cause for rejecting that opportunity is not disqualifying. Thompson v. Bd. of Review, 120 Ill. App. 3d 1, 457, N.E.2d 512 (2d Dist. 1983).
Section 603 says that "benefits shall not be denied under this Act to any otherwise eligible individual for refusing to accept new work ... [if]:
Pursuant to Section 604 of the IUIA 820 ILCS 405/604, an individual is ineligible for UI for any week in which his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute where he was last employed, unless the claimant shows that he: (a) is not participating in, financing, or directly interested in the labor dispute; and (b) does not belong to a grade or class of workers of which are participating in, financing, or directly interested in the dispute.Pursuant to Section 604 of the IUIA 820 ILCS 405/604, an individual is ineligible for UI for any week in which his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute where he was last employed, unless the claimant shows that he: (a) is not participating in, financing, or directly interested in the labor dispute; and (b) does not belong to a grade or class of workers of which are participating in, financing, or directly interested in the dispute.
Three initial elements must all be met to cause ineligibility under Section 604: existence of work stoppage, existence of labor dispute, and proximate causation between labor dispute and work stoppage. Central Foundry Division of G. M. Corp. v. Holland, 36 Ill. App. 3d 998, 345 N.E.2d 143 (1976); Dunaway v. IDOL, 99 Ill. 2d 417, 459 N.E.2d. 1332 (1984); Golab v. IDES, 281 Ill. App. 3d 108, 666 N.E.2d 347 (4th Dist. 1996).
Work Stoppage: A "work stoppage" exists where because of a labor dispute, the company's business operations are substantially curtailed. Golab v. IDES, 281 Ill. App. 3d 108, 666 N.E.2d 347 (4th Dist. 1996) (work stoppage existed where employees did not work at all during dispute, employer did not hire replacements, and some of their work did not get done). A work stoppage includes not only a strike but a "slow down" by the workers which reduces production and therefore causes employees to be laid off or to have their work hours reduced. Brown Shoe Co. v. Gordon, 405 Ill. 384, 91 N.E.2d 381 (1950); Bankston Creek Collieries v. Gordon, 399 Ill. 291, 77 N.E.2d 670 (1948).
A work stoppage is not over until the employer's business operations return to substantially normal operations. Travis v. Grabiec, 52 Ill. 2d 175, 287 N.E.2d 468 (1972); Boone v. IDOL, 144 Ill. App. 3d 306, 495 N.E.2d 66 (5th Dist. 1986); Golab v. IDES, 281 Ill. App. 3d 108, 666 N.E.2d 347 (1996). Normal operations means not merely that the company maintains full production, but that it did so with the normal number of workers working normal hours. Boone, 495 N.E.2d 66. Thus, the fact that a skeleton management workforce working overtime maintains full production does not mean there is no work stoppage. Id. However, "[p]roduction levels do not have to return exactly to prestrike levels before an employer reaches 'substantially normal business operations.'" Bridgestone/Firestone, Inc. v. Doherty, 305 Ill. App. 3d 141, 148, 711 N.E.2d 799 (4th Dist. 1999); see also 520 South Michigan Ave. Associates v. Department of Employment Sec., 404 Ill. App. 3d 304, 935 N.E.2d 612 (1st Dist. 2010), appeal denied, 239 Ill. 2d 552, 943 N.E.2d 1100 (2011).
In addition, "[a]n individual's total or partial unemployment resulting from any reduction in operations or reduction of force or layoff of employees by an employer made in the course of or in anticipation of collective bargaining negotiations between a labor organization and such employer, is not due to a stoppage of work which exits because of a labor dispute until the date of actual commencement of a strike or lockout." 820 ILCS 405/604.
Labor Dispute: A labor dispute is "any controversy concerning wages, hours, working conditions or terms of employment." Buchholz v. Cummins, 6 Ill. 2d 382, 128 N.E.2d 900 (1955); Local Union No. 11 v. Gordon, 396 Ill. 293, 299, 71 N.E. 2d 637, 640 (1947); Central Foundry Division v. Holland, 36 Ill. App. 3d 998, 345 N.E.2d 143 (4th Dist. 1976); Be-Mac Transport Co. v. Grabiec, 20 Ill. App. 3d 345, 314 N.E.2d 242 (1st Dist. 1974); Golab v. IDES, 281 Ill. App. 3d 108, 666 N.E.2d 347 (4th Dist. 1996). Once contract negotiations begin, it is generally presumed that a labor dispute exists. Ross v. IDES, 201 Ill. App. 3d 474, 559 N.E.2d 100, 103 (1st Dist. 1990). If a contract has expired and employees and employer have not agreed to a new contract, a "labor dispute" exists. Golab, 281 Ill. App. 3d 108. Neither reasonableness of demands nor merits of dispute are material to determining whether a "labor dispute" exists. Id.
A "labor dispute" does not include an individual's refusal to work because of his employer's failure to pay accrued earned wages within 10 working days from the date due, or to pay any other uncontested accrued obligation arising out of his employment within 10 days from the date due." 820 ILCS 405/604 overruling Local 7-641, Oil, Chemical & Atomic Workers, Intern. Union v. IDOL, 96 Ill. 2d 94, 449 N.E.2d 134 (1983).
A "labor dispute" includes lockouts as well as strikes unless certain statutory exceptions apply. Golab v. IDES, 281 Ill. App. 3d 108, 666 N.E.2d 347 (4th Dist. 1996). A "labor dispute" does not include "a lockout by an employer for any week during which (1) the employer refuses to meet under reasonable conditions with the recognized or certified collective bargaining representative of the locked out employees to discuss the issues giving rise to the lockout or (2) there is a final adjudication under the National Labor Relations Act that during the period of the lockout the employer has refused to bargain in good faith with the recognized or certified collective bargaining representative of the locked-out employees over issues giving rise to the lockout, or (3) the lockout violates the provisions of an existing collective bargaining agreement." 820 ILCS 405/604.
Causation: For Section 604 to render a claimant ineligible, the claimant's unemployment must be caused by a labor dispute at the factory, establishment or other premises at which he is or was last employed. Central Foundry Division of G.M. Corp. v. Holland, 36 Ill. App. 3d 998, 345 N.E.2d 143, 147 (4th Dist. 1976). If work stoppage results from disagreement over the terms of a new contract, causal relation exists between labor dispute and work stoppage. Golab v. IDES, 281 Ill. App. 3d 108, 666 N.E.2d 347 (4th Dist. 1996). Causation is a factual issue, usually having to do with whether the labor dispute is at the claimant's "factory, establishment or premises." Id. Thus, if claimants are laid off from one plant or company because of a drop in sales to, or orders from, another plant or company in which a strike is occurring, their unemployment is not causally connected to a labor dispute "at the factory, establishment or other premises at which [the claimant] is or was last employed." See Central Foundry, 345 N.E.2d at 147-48; Dunaway v. IDOL, 99 Ill. 2d 417, 459 N.E.2d. 1332, 1335-36 (1984).
If separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall ... be deemed to be a separate factory, establishment, or other premises. 820 ILCS 405/604.
Even if the three elements are met, a claimant is not ineligible if he shows both that he is not participating in, financing, or directly interested in the labor dispute, and that he does not (or did not just before the work stoppage began) belong to a grade or class of workers which are participating in, financing or directly interested in the dispute. See, Local No. 658 v. Brown Shoe Co., 403 Ill. 484, 87 N.E.2d 625, 630 (1949); Brown Shoe Co. v. Gordon, 405 Ill. App. 3d 384, 91 N.E.2d 381, 386 (1950); Shell Oil Company v. Cummins, 7 Ill. App. 2d 329, 131 N.E.2d 64, 67 (1956). International Union of Operating Engineers, Local 148, AFL-CIO v. Illinois Dept. of Employment Security, 215 Ill. 2d 37, 828 N.E.2d 1104 (2005).
"[A]n individual's failure to cross a picket line... shall not, in itself, be deemed to be participation in the labor dispute." 820 ILCS 405/604; see Owens-Illinois, Inc. v. Bowling, 95 Ill. 2d 397, 447 N.E.2d 1324 (1983); Wyman-Gordon Co. v. Bernardi, 135 Ill. App. 3d 685, 481 N.E.2d 1285 (1st Dist. 1985). But failure to cross the picket line plus receipt of strike benefits does constitute "participation." Highway Drivers v. Ward, 201 Ill. App. 3d 534, 559 N.E.2d 158 (1st Dist. 1990).
A claimant is not necessarily financing a strike merely because her union pays into the same fund into which the striking union also pays even if the fund is used for strike benefits, so long as the claimant had no choice but to pay into the fund and the effect of the fund on the dispute is insignificant. Outboard Marine and Mfg. Co. v. Gordon, 403 Ill. 523, 87 N.E.2d 610, 618 (1949); General Motors Corp. v. Bowling, 85 Ill. 2d 539, 426 N.E.2d 1200, 1212-13 (1981). But a presumption arises that the claimant is financing the strike if the payments are increased during the strike or the claimant's contributions to the fund are used for strike benefits.
Nor are members of one union "directly interested in" the dispute if the pay or other work conditions are not at issue in their dispute. Outboard Marine, 87 N.E.2d at 617. But if work conditions such as the rate of pay of the claimants will be affected by the resolution of the dispute, then the claimants are "directly interested" in the dispute. Local No. 658, Boot and Shoe Workers Union v. Brown Shoe Co., 403 Ill. 484, 87 N.E.2d 625 629 (1949); see also International Union of Operating Engineers, Local 148, AFL-CIO v. Illinois Dept. of Employment Security, 215 Ill. 2d 37, 828 N.E.2d 1104 (2005). The fact that the striking union's contract has been used in the past as a model for the claimant's union does not make the claimants "directly interested" in the dispute so long as there is no assurance that the terms of the striking union's contract will be so used in the future. General Motors Corp., 426 N.E.2d at 1212. Indeed even if the employer pays all workers the same wage increase in settling a dispute with some workers, the others do not thereby become directly interested in the dispute. Shell Oil Company v. Cummins, 7 Ill. 2d 329, 131 N.E.2d 64, 68 (1956).
The determination of whether employees are in the same "grade or class" of workers is determined by reference to the duties the groups perform and whether they are both covered by the same union contract or not. See Brown Shoe Co. v. Gordon, 405 Ill. 384, 91 N.E.2d 381, 386 (1950). Thus, office workers who are members of one union covered by one contract are not in the same grade or class as production and maintenance workers in a different union with a different contract. Outboard Marine and Mfg. Co. v. Gordon, 403 Ill. 523, 87 N.E.2d 610, 619 (1949). And it does not matter that the different unions customarily negotiate together with the employer and have the resulting contracts embodied in the same document so long as each union is free independently to accept or reject the contract. Shell Oil Company v. Cummins, 7 Ill. 2d 329, 131 N.E.2d 64, 68 (1956). But production and maintenance workers are members of the same grade or class of union workers if either they are all in one union with one contract doing work related to the same manufacturing process even though they do somewhat different work, Brown Shoe Co., 91 N.E.2d at 386; Local No. 658, Boot and Shoe Workers Union v. Brown Shoe Co., 403 Ill. 484, 87 N.E.2d 625 (1949), or if they had the same duties even if only one of the two groups is unionized. Boone v. IDOL, 144 Ill. App. 3d 306, 495 N.E.2d 66 (1986).
If a claimant is out of work due to a labor dispute, he generally cannot be ineligible for misconduct or voluntary leaving. Shell Oil Company v. Cummins, 7 Ill. 2d 329, 131 N.E.2d 64, 69 (1956); County of Cook v. IDOL, 123 Ill. App. 3d 68, 462 N.E.2d 576 (1st Dist. 1984).
Receipt of certain types of income disqualifies a claimant for unemployment insurance benefits or reduces the amount of the benefits. IDES's regulations on disqualifying income are at 56 Ill. Adm. Code § 2920 and the relevant statutory provisions are at 820 ILCS 405/234, 820 ILCS 405/235 (Wages), 820 ILCS 405/239 (Unemployed Individual), 820 ILCS 405/401 (Weekly Benefit Amount, Dependents' Allowances), 820 ILCS 405/402 (Reduced Weekly Benefits), 820 ILCS 405/605 (Receipt of Unemployment Benefits Under Another Law), 820 ILCS 405/606 (Receipt of Worker's Compensation), 820 ILCS 405/610 (Vacation Pay), 820 ILCS 405/611 (Retirement Pay).
With two exceptions, it serves little purpose to parse the rules here since they involve definitions as to each type of pay, and a description of whether, when, how much of any such income (as compared to a claimants' wba) disqualifies or reduces benefits (and if it reduces, by how much), and whether you can aggregate. These issues arise infrequently and it is easier to work through the regulations for each form of income when a particular case arises.
The forms of income which can lead to disqualification are:
The two types of issues that arise frequently enough to merit further discussion are social security and pension benefits.
Pursuant to the Federal Unemployment Insurance Tax Act ("FUTA"), 26 U.S.C. 3304(a)(15), social security benefits must offset unemployment benefits at least to the extent that employers rather than the claimant contributed to social security (Footnote 25). Illinois, like other states, must meet this requirement to be certified for exempting employers from the federal tax they would otherwise pay. 26 U.S.C. 3304(a) (Footnote 26). Illinois meets this requirement in Section 611 of the Act. 820 ILCS 405/611.
The entire amount of a pension is disqualifying if the employer paid all of the premiums or contributions, whereas one-half of such pensions is disqualifying if the employer paid some, but not all, of the premiums or contributions. Compare Section 611(A)(1) with Section 611(A)(2). See Benckos v. Cleary, 65 Ill. 2d 568, 358 N.E.2d 1129 (1976).
When a claimant receives benefits to which he is not entitled, the money can be recovered by suit or by recouping from benefits paid later. 820 ILCS 405/900. IDES's recoupment regulations are at 56 Ill. Adm. Code § 2835. Recoupment issues break down by whether the claimant received the overpayment innocently, or by virtue of fraud. [NOTE: the recoupment provision of the IUIA is preempted by the National Labor Relation's Board's exclusive jurisdiction to remedy unfair labor practices under the National Labor Relations Act (NLRA). NLRB v. IDES, 988 F.2d 735 (1993).]
When a claimant receives an overpayment because of a false statement or knowing failure to disclose a material fact, IDES may sue or recoup anytime without the bar of any statute of limitations. 820 ILCS 405/900.A.1. Fraud usually occurs when a claimant lies on one or more certification forms usually by failing to disclose that he returned to work (Footnote 27). IDES generally sues only in cases of fraud (though nothing prevents suit in non-fraud cases, so never tell a claimant that IDES definitely does not sue absent fraud).
Before IDES recoups fraudulently received benefits, it first penalizes the claimant by denying him/her six weeks of benefits for the first offense and two additional weeks for each subsequent offense because of fraud. 820 ILCS 405/901.B. A separate offense is committed in each week for which the claimant received benefits. Id. Thus, if a claimant received ten weeks of benefits because of fraud, he is penalized for 24 weeks because 6+(9x2)=24. The penalty is limited to a total of 26 weeks or two years since the date that the ineligibility began. Id.
After the penalty, however, the claimant then begins to "receive" the benefits only in the sense that each week of benefits is credited against the amount he owes IDES until the debt is completely repaid. It is important, however, that although such a claimant does not "receive" benefits (as most claimants understand that term) during the penalty weeks or the recoupment weeks, he should continue to claim the benefits in any week he can so as to expunge the penalty weeks, repay IDES, and reach the point where he can "receive" benefits again.
For non-fraud overpayments (Footnote 28), there is a 5-year statute of limitations on suit or recoupment. 820 ILCS 405/900. But IDES sends people repayment agreements which arguably extend the limitations period to the ten year period for written contracts. Therefore, it is virtually never advisable to sign these agreements.
Furthermore, under Section 703, 820 ILCS 405/703, a finding (which governs a claimant's monetary eligibility, see 820 ILCS 405/701 and Section I.B supra) can only be reconsidered within 13 weeks after the close of the claimant's benefit year. 820 ILCS 405/703. Also a determination (which governs weekly eligibility issues, see 820 ILCS 405/702, 820 ILCS 405/703) can only be reconsidered within one year from the last day of the week for which the determination was made, except the issue is whether the claimant misstated earnings or was overpaid due to a "back pay award made by any governmental agency or pursuant to arbitration proceedings, or by reason of a payment of wages wrongfully withheld by an employing unit," in which case the reconsideration can occur within three years of the last day of the week for which the determination was made. If the reconsidered finding or determination occurs beyond these limitation periods, then IDES cannot recoup. Weingart v. IDOL, 122 Ill. App. 2d 1, 521 N.E.2d 913 (1st Dist. 1988).
As compared to cases of fraud overpayments, claimants with non-fraud overpayments are not penalized prior to recoupment, 820 ILCS 405/900.E, recoupment is limited to 25% of the claimant's wba, id., and IDES can waive recoupment if it "would be against equity and good conscience" to recoup. 820 ILCS 405/900.A.2; see Cerveny v. State, 123 Ill. App. 3d 836, 463 N.E.2d 452 (2nd Dist. 1984);56 Ill. Adm. Code §§ 2830.
Also, suits on recoupment for non-fraud overpayments can occur pursuant to a claims adjudicator's reconsidered finding or determination or a referee's decision which modifies or sets aside a claims adjudication (Footnote 29),or in the case of certain back-pay awards that would render someone who had been eligible at the time he collected unemployment retroactively ineligible. 820 ILCS 405/900.A.2.D. Thus, a Board or a court decision that reverses an award of benefits cannot be the basis for recoupment. Be careful, however, since a Board remand to have a referee enter a reversal can do so. See 56 Ill. Adm. Code § 2835.5 (Footnote 30). Moreover, particularly during periods of extended benefits, a Board reversal can prevent payment of remaining weeks of benefits. Also, the state may be able to recoup based on a Board or court decision from money owed to claimant such as an income tax refund pursuant to 15 ILCS 405/10.05. See, 820 ILCS 405/900, 74 Ill. Adm. Code §§ 285.1100 et seq.; LaPine Scientific Co. v. Lenckos, 95 Ill. App. 3d 955, 420 N.E.2d 655 (1st Dist. 1981) (state can offset indebtedness from tax refund even though the debt is not collectable because the statute of limitations has run) (Footnote 31).
Recoupment problems are often complicated because they can involve two separate decisions issued by IDES: a substantive decision finding that the claimant was overpaid (e.g., a referee's decision that is issued pursuant to an employer's appeal and that reverses a prior claims adjudicator's determination favorable to the claimant on a "misconduct" or "voluntary leave" issue) and an overpayment decision setting forth the amount of money which is subject to recoupment because of the substantive decision. If the substantive decision is not appealed in a timely manner, the claimant cannot collaterally attack it by appealing a later recoupment decision. People ex rel. Bernardi v. Moran, 121 Ill. App. 3d 419, 459 N.E.2d 1073 (1st Dist. 1984). Nor can a claimant challenge the recoupment decision (e.g., requesting waiver of recoupment) in an appeal from the substantive decision. Campbell v. Bd. of Review, 211 Ill. App. 3d 1070, 570 N.E.2d 812 (1st Dist. 1991).
IDES' procedural regulations are at 56 Ill. Adm. Code § 2720. You cannot properly litigate unemployment insurance claims without constant reference to these regulations.
The claims adjudicator conducts an investigation of any claim on which there is a question raised by an employer's protest (see Section V.A.1.c.), a claimant's application or otherwise. 820 ILCS 405/702. The investigation is done at a local UI office and claimants usually appear pro se.
Prompt Payment and Adjudication of Benefits: Benefits must be paid to eligible claimants in a timely fashion. 820 ILCS 405/706. All unemployment procedures are subject to the federal requirement that benefits be paid "when due", which means "as soon as administratively feasible." 42 U.S.C. 503(a)(1); 20 C.F.R. Part 640, 20 C.F.R. Part 650; California v. Java, 402 U.S. 121 (1972); Fursari v. Steinberg, 419 U.S. 379 (1975); Burtton v. Johnson, 538 F.2d 765 (7th Cir. 1976). The "when due" clause requires both that states pay claimants promptly after an award of benefits regardless of whether the employer appeals, Java, 402 U.S. 121; see 820 ILCS 405/706, and that states adjudicate claims promptly. See, e.g., Jenkins v. Bowling, 691 F.2d 1225 (7th Cir. 1982).
Antedation: Antedation is necessary for claimants who win appeals, but who then lose their benefits nonetheless because, while the appeal was pending, they stopped sending in bi-weekly certification forms. Claimants should be permitted to antedate both initial claims and bi-weekly certifications for a period of one year after the filing should have occurred. See 56 Ill. Adm. Code §§ 2720.105 and 2720.120; Lipman v. Bd. of Review, 123 Ill. App. 3d 176, 462 N.E.2d 798 (1st Dist. 1984); Bellan v. IDES, 164 Ill. App. 3d 495, 520 N.E.2d 652 (4th Dist. 1987). The best practice, however, is to advise clients to file certifications during appeals.
Employer's Party Status: In order to be a "party" (which entitles the employer to appeal any adverse ruling), the employer must mail or hand deliver the protest within 10 calendar days of receipt of the form notice that the former employee filed a claim to the address indicated on the form notice. See 820 ILCS 405/702; 56 Ill. Adm. Code § 2720.130(a)(1). For computation of calendar days, see 56 Ill. Adm. Code § 2720.10.
An employer's protest must also sufficiently allege a basis for denying the claim. See 56 Ill. Adm. Code § 2720.130(d); Carson Pirie Scott & Co. v. IDES, 164 Ill. App. 3d 530, 518 N.E.2d 161 (1st Dist. 1987), rev'd in part on other grounds, 131 Ill. 2d 23 (1989). If the employer's first protest is timely, but insufficient, however, the employer gets a second 10 days to try again. 56 Ill. Adm. Code § 2720.130(e).
Any party adversely affected by the claims adjudicator's decision can request reconsideration or review of that determination. 820 ILCS 405/703, 820 ILCS 405/800; 56 Ill. Adm. Code §§ 2720.160 (reconsideration) and 2720.200 (appeals). IDES's practice is that when a party files an appeal, the claims adjudicator's decision is first reconsidered in the local office. If the reconsidered determination does not change the result, the party's original request for reconsideration and review is treated as an appeal to the appeals division where claims are heard by referees.
The referee's hearing is the most important level of adjudication because it is usually the only hearing. From here, the claimant or employer has 30 days to appeal to the Board of Review. 820 ILCS 405/801. See Timeliness of Appeals within IDES.
Referees must provide "fair hearings." See 820 ILCS 405/801; 42 U.S.C. 503(a)(1),(3). This is a statutory due process requirement. Among other things, this means the referee cannot "switch issues" from those identified on the notice of hearing. Camacho v. Bowling, 562 F. Supp. 1012
(N.D. Ill. 1983); see also Cosby v. Ward, 843 F.2d 967, 984-85 (7th Cir. 1988) (IDES must give clear notice of issues to be heard at hearings and of the work search requirements that claimants must meet to remain eligible for benefits).
As of 2009, IDES is required to provide, at its own expense, an interpreter for a party who needs one, to translate verbatim from that person's language to English and vice versa. See 56 Ill. Adm. Code § 2725.215(b); see also Figueroa v. Doherty, 303 Ill. App. 3d 46 (1st Dist. 1999), (referee’s requirement that an interpreter summarize the claimant’s testimony, and the referee’s refusal to allow verbatim simultaneous interpretation of the employer witness, violated a claimant’s right to a fair hearing.
A referee must provide not only a full and impartial hearing, Angelo v. Bd. of Review, 58 Ill. App. 3d 50, 373 N.E. 2d 858 (4th Dist. 1978); Flores v. Bd. of Review, 74 Ill. App. 3d 667, 393 N.E.2d 358 (1st Dist. 1979), overruled on other grounds. Hernandez v. Bd. of Review, 83 Ill. 2d 512, 416 N.E.2d 263 (1981), but also, at least in the case of a pro se claimant, the referee must make a full inquiry of the relevant facts and issues. Menneweather v. Bd. of Review, 249 Ill. App. 3d 980, 621 N.E.2d 22 (1992). And the referee must consider uncontroverted evidence. Skirin v. Bowling, 86 Ill. App. 3d 954, 408 N.E.2d 355 (1st Dist. 1980).
Technical rules of evidence do not apply in referee's hearings. 56 Ill. Adm. Code § 2720.250. But the referee should rely only on credible, legally competent evidence. Id. A referee can give even hearsay its "natural probative weight" unless there is an objection. Jackson v. Bd of Review, 105 Ill. 2d 501, 475 N.E.2d 879 (1985). And a referee should not credit hearsay over direct testimony. Flex v. IDOL, 125 Ill. App. 3d 1021, 466 N.E.2d 1050 (1st Dist. 1984).
Telephone Hearings: IDES regulations currently, provide that all hearings will be scheduled as telephone hearings. A party may only appear in-person upon request "for good cause shown". 56 Ill. Adm. Code § 2720.215(a)-(c). "Good cause" is not defined in the amended regulations. Thus, a claimant who wishes to appear in person should submit that request in writing to the Referee indicated on the Notice of Hearing. The denial of a party's right to appear in person at the hearing is subject to challenge on constitutional and statutory grounds. Also, under Illinois case law, "where ... the outcome of a hearing is ... dependent on the credibility of the witnesses, an aggrieved party must be allowed to testify in person if he so chooses." Stone v. Bd. of Review, 213 Ill. App. 3d 739, 572 N.E.2d 412 (2nd Dist. 1991), aff'd on other grounds, 151 Ill. 2d 257, 602 N.E.2d 808 (1992) (Footnote 32).
The regulations require that a party appearing by phone must provide copies of documents it intends to introduce at the hearing to both the referee and the opposing party before the date of the hearing. 56 Ill. Adm. Code § 2720.215(c).
Continuances: The regulations provide for very limited grounds for obtaining continuances and referees generally follow the regulations closely. 56 Ill. Adm. Code § 2720.240. A continuance is only allowed due to a conflict in the schedule of an attorney for a party if the party "cannot reasonably find a substitute counsel."
This is the last stage of administrative review and the last opportunity to challenge findings of fact. (Factual findings by the Board will only be overturned if “against the manifest weight of the evidence”). The Board usually considers only the record from the referee's hearing and any written arguments, even though it has discretion to rehear the evidence. See 820 ILCS 405/803; 56 Ill. Adm. Code § 2720.315(a). But since the administrative record is not closed before the Board, parties may submit additional evidence provided they request it within 15 days of filing an appeal and show good cause as to why the evidence was not presented at the referee's hearing. 56 Ill. Adm. Code § 2720.315(b). (If a transcript or copy of the file is sought, the request to submit additional evidence must be filed within 10 days after the date the transcript or file is or made available for inspection. Id. See also Timeliness of Appeals Within IDES.)
Timeliness of Board Decisions: The Board must render its decision within 120 days of the filing of the appeal (or 150 days if a party gets additional time to file written arguments or additional evidence). 820 ILCS 405/803; 56 Ill. Adm. Code § 2720.340. If the Board fails to meet the 120 (or 150) day deadline, the aggrieved party can request a right to sue letter and the Board must either issue the decision or a letter permitting an administrative review appeal within 14 days. 820 ILCS 405/803. But unless a party does invoke the provision by requesting a right to sue letter, the time period is not mandatory. Stone v. Bd. of Review, 213 Ill. App. 3d 739, 572 N.E.2d 412 (1991), aff'd on other grounds, 151 Ill. 2d 257, 602 N.E.2d 808 (1992).
The Board must supply a transcript of the referee's decision, if requested. 820 ILCS 405/803. The transcript must be requested within 15 days after the notice of appeal is filed. 56 Ill. Adm. Code § 2720.315(a)(1). The Board has 35 days to supply the transcript after it is requested. 820 ILCS 405/803. However, the Board can charge the requesting party for the costs of reproduction. (Footnote 33), see Thurston v. IDES, 147 Ill. App. 3d 734, 498 N.E.2d 864 (4th Dist. 1986).
Scope of Review: Most courts hold that the Board can make independent factual findings with only consideration of, but no special deference to, the referee's findings. See e.g., 520 South Michigan Ave. Associates v. Department of Employment Sec., 404 Ill. App. 3d 304, 935 N.E.2d 612 (1st Dist. 2010); Gregory v. Bernardi, 125 Ill. App. 3d 376, 465 N.E.2d 1052 (1984); Neville v. Bd. of Review, 143 Ill. App. 3d 548, 494 N.E.2d 512 (1986). But as to credibility issues, one court has now held that "[t]he referee, as the only one taking testimony, [is] in the best position to judge witness credibility." Adams v. Ward, 565 N.E.2d at 60; but see, id. at 60 (Rakowski, J. concurring) (arguing that the court can review only the Board's findings, not the referee's); 520 South Michigan, 404 Ill. App. 3d at 317 (stating no deference was owed to credibility determinations of referee, where IDES director was ultimate finder of fact). These cases can be reconciled by the principle that, while the Board can reverse the referee's fact findings (including even the referee's credibility judgments), when it does so it must consider the referee's fact findings. Gregory, 465 N.E.2d at 1056-57; see also 520 South Michigan, 404 Ill. App. 3d at 316 (noting that referee's findings were part of the record and part of determination whether ultimate findings were supported by the record). The only way to know that the Board gave proper consideration to a referee's finding is by the Board's explanation as to why it reversed that finding. Therefore, if the Board fails to explain why it reversed a referee's finding, a reviewing court can reconsider the referee's finding and uphold it, instead of the Board's. Adams, 565 N.E.2d at 59.
The Board "may remand the case, in whole or in part, to a referee or claims adjudicator, and, in such event, shall state the questions requiring further consideration and give such other instructions as may be necessary." 820 ILCS 405/803. When the Board remands with instructions to the referee to take additional evidence, but also to incorporate the prior proceedings in the remanded hearing, the referee's conduct of a de novo hearing instead can violate the losing party's rights to a fair hearing and to due process. Stone v. Bd. of Review, 213 Ill. App. 3d 739, 572 N.E.2d 412 (2d Dist. 1991), aff'd on other grounds, 151 Ill. 2d 267, 602 N.E.2d 812 (1992).
With regard to an appeal from a claims adjudicator's determination to a referee, Section 800 of the IUIA requires that "[u]nless the claimant ... within 30 calendar days after the delivery of the claim's adjudicator's notification of ... [the] finding or determination, or within 30 calendar days after such notification was mailed to his last known address, files an appeal therefrom, such finding or determination shall be final as to all parties given notice thereof." 820 ILCS 405/800. With regard to an appeal from the referee to the Board, Section 801 of the IUIA says that "[t]he decision of the Referee shall be final, unless, within 30 calendar days after the date of mailing of such decision, further appeal to the Board of Review is initiated pursuant to Section 803." 820 ILCS 405/801.
These statutory periods for filing intra-agency appeals are "mandatory rather than ... directory provision[s] because the consequence of noncompliance, that the claims adjudicator's determination [or referee's decision] be considered final, is clearly provided in the statute." Hernandez v. Bd. of Review, 83 Ill. 2d 512, 416 N.E.2d 263, 266 (1981); see 820 ILCS 405/800, 820 ILCS 405/801. Accordingly, if an appellant misses the filing date, he can rarely avoid dismissal of the appeal. See e.g., Thompson v. Department of Employment Sec., 399 Ill. App. 3d 393 (1st Dist. 2010); Automated Professional Tax Services, Inc., 244 Ill. App. 3d 485, 612 N.E.2d 1008 (3rd Dist. 1993); Neilly v. IDES, 180 Ill. App. 3d 138, 535 N.E.2d 11 (1st Dist. 1989); Huggins v. Bd. of Review, 10 Ill. App. 3d 140, 294 N.E.2d 32 (1st Dist. 1973).
But "mandatory time limitations are not jurisdictional in the sense of subject matter jurisdiction, and therefore, such limitations may be subject to estoppel and waiver." Louise v. IDOL, 90 Ill. App. 3d 410, 413 N.E.2d 113, 115 (1st Dist. 1980) (IDES was estopped from asserting time limitation after an IDES employee told the claimant, during the appeal period, that she could wait to file her appeal after the 30th day); see Placko v. Jackson, 197 Ill. App. 3d 138, 554 N.E.2d 708 (2d Dist. 1990) (the Board's issuance of notice telling the appellant that it will decide the case "on the merits," thus giving the appellant reason to believe that he need not argue his reasons for filing late, precluded the Board from then deciding the case on the basis of the appellant's untimely appeal); Galarza v. IDOL, 167 Ill. App. 3d 163, 520 N.E.2d 672 (2d Dist. 1987) (state waived the issue of timeliness of appeal to referee by failing to present the issue in the trial court); Wurtz v. Bd. of Review, 62 Ill. App. 3d 163, 378 N.E.2d 126 (1st Dist. 1978) (IDES was estopped to deny timeliness of employer's protest even though the protest was, in fact, filed late, when IDES's notice lulled the employer into believing that IDES was considering whether the claimant voluntarily left employment).
Moreover, pursuant to 56 Ill. Adm. Code §§ 2720.5(b) and 2720.335, the time limit tolls until IDES serves the notice on the party's counsel, if the party has designated counsel as his agent to receive notice. See White v. IDES, 264 Ill. App. 3d 851, 637 N.E.2d 647 (1st Dist. 1994).
Generally, the appeals periods begin with the date of mailing and thus any appeal filed later than 30 days after the mailing date is foreclosed. Indeed, the IUIA specifically says that "[w]henever the giving of notice is required by Sections 701, 702, 801, 803, 805 and 900, it may be given and be completed by mailing the same the last known address of the person entitled thereto." 820 ILCS 405/804. See also Thompson v. Department of Employment Sec., 399 Ill. App. 3d 393, 395 (1st Dist. 2010) ("Section 801(A) of the Act provides that a referee's decision becomes final unless a party files an appeal with the Board within 30 days of a decision being mailed.").
But, arguably, for appeals from claims adjudicator's determinations, the proper date for the beginning of the appeals period is the date the determination is actually received. The reason why the argument for receipt is colorable in the case of appeals from a claims adjudicator's determination is that the statute says that after 30 days, the claims adjudicator's "finding or determination shall be final as to all parties given notice thereof." 820 ILCS 405/800. See Gutierrez v. Bd. of Review, 35 Ill. App. 3d 186, 341 N.E.2d 115, 118 (1st Dist. 1975) (the time limit operates only against "parties given notice [of the claims adjudicator's determination]") (quoting Ill. Rev. Stat. ch. 48, 470, now 820 ILCS 405/800). Thus, for appeals from a claims adjudicator's determination, the statute arguably requires not just that "notice ... be given and completed," 820 ILCS 405/804, but also that the period begins running only for those who actually receive the notice. And, "[a]lthough mailing of a notification to a claimant may be some evidence that it was received by the claimant a few days thereafter, common knowledge of the capability of the postal service negates any conclusive presumption that it was so received." Angelo v. Bd. of Review, 58 Ill. App. 3d 50, 373 N.E.2d 858, 860 (4th Dist. 1978). Also, where the employer received notification of adjudicator's determination of eligibility for unemployment benefits on date later than claimant, employer's 30-day period for filing appeal begins to run on later date. Lachenmeyer v. Didrickson, 263 Ill. App. 3d 382, 636 N.E.2d 93 (4th Dist. 1994).
In contrast, for appeals from the referee to the Board, the statute says only that "[t]he decision of the Referee shall be final, unless, within 30 calendar days after the date of mailing of such decision, further appeal to the Board of Review is initiated pursuant to Section 803." 820 ILCS 405/801. See also Thompson v. Department of Employment Sec., 399 Ill. App. 3d 393, 395 (1st Dist. 2010) (finding appeal to Board untimely where Referee's decision had been mailed to address confirmed by claimant at the hearing the previous day, noting "[s]ervice by mail is not invalid simply because a party denies receiving it") (Footnote 34).
In fact, the argument may be extended to appeals to the Board, based on the decision in Angelo v. Bd. of Review, 58 Ill. App. 3d 50, 373 N.E.2d 858, 860 (4th Dist. 1978), where the court held that actual notice was required not just by the IUIA, but also because "due process requires that claimants be given a reasonable time to make their appearance," and by White v. IDES, 264 Ill. App. 3d 851, 637 N.E.2d 647 (1st Dist. 1994) where the court held, with some suggestion that this result may also be required by due process, that 56 Ill. Adm. Code §§ 2720.5(b) and 2720.335 toll the time limit until IDES serves the notice on the party's counsel, if the party has designated counsel as his agent to receive notice (Footnote 35). But see Footnote 36 and cases in Referee's Hearing section holding that the requirements of due process are coextensive with those of the "fair hearing" clause. Even if a claimant is permitted to file after 30 days from mailing, however, the appellant must act diligently. Gutierrez v. Board of Review, Dept. of Labor, 35 Ill. App. 3d 186, 341 N.E.2d 115, 118 (1st Dist. 1975).
A recent amendment to the IDES rules requires the Referee summarily to dismiss appeals of determinations that appear to be untimely: "Whenever it shall appear to the Referee that the appeal was not filed in a timely manner . . . and no issue relating to timeliness is raised in the letter of appeal, the Referee shall issue his or her decision dismissing the appeal without holding a hearing on the matter." 56 Ill. Adm. Code § 2720.207(a). If this decision is timely appealed to the Board, the Board "shall immediately remand the matter to the Referee for a hearing on the question of the timeliness of the appeal." Id., § 2720.207(b).
Generally, cases in which a claimant denies receipt of a determination or a decision present additional procedural problems since IDES must determine whether the claimant is telling the truth or not (Footnote 36).
Whether the claimant received the determination or decision turns, in part, on whether the document was properly mailed to the claimant, since "mailing of the notice may be some evidence that it was received a few days later by the individual to whom it was mailed." Placko v. Jackson, 554 N.E.2d at 712 (Footnote 37).
"[A] postmark placed on [an] envelope by the United States Postal Service [is] conclusive evidence of the date of mailing." 56 Ill. Adm. Code § 2720.10(d). In contrast, the date on the document itself is merely "rebuttable evidence that it was mailed on that date." Id. Since the claimant's testimony that he did not receive the document rebuts the presumption that it was mailed on the date it bears, IDES then bears the burden of proving that the date stamped on the decision was the date of mailing. Kocourek v. Bowling, 96 Ill. App. 3d 310, 421 N.E.2d 397, 399 (1st Dist. 1978). And the timeliness of mailing must be shown not just by office practice alone, but by evidence that IDES followed the customary practice in the particular case. Id.; Carroll v. Department of Employment Sec., 389 Ill. App. 3d 404, 907 N.E.2d 16 (1st Dist. 2009); Camarillo v. IDOL, 129 Ill. App. 3d 387, 472 N.E.2d 825, 827 (1st Dist. 1984); Commonwealth Edison Co. v. Prop. Tax App. Bd., 67 Ill. App. 3d 428, 384 N.E.2d 504, 506 (2d Dist. 1978); Finik v. IDES, 171 Ill. App. 3d 125, 524 N.E.2d 1148, 1153 (1st Dist. 1988).
If IDES finds that the decision was sent on the date it bears and the claimant's testimony that he did not receive the document lacks credibility, a court must review that issue without itself hearing evidence or making fact findings. See Standard of Review. Therefore, when the claimant offers evidence to a reviewing court that would support his claim that he did not receive the determination or decision, the reviewing court's only remedy is to remand for another hearing to consider the additional evidence (Footnote 38). See e.g., Automated Professional Tax Services, Inc. v. Department of Employment Sec., 244 Ill. App. 3d 485, 612 N.E.2d 1008 (3d Dist. 1993) (dicta); Placko v. Jackson, 197 Ill. App. 3d 138, 554 N.E.2d 708, 712 (2d Dist. 1990) Burke v. Bd. of Review, 132 Ill. App. 3d 1094, 477 N.E.2d 1351, 1355 (2d Dist.1 985); Rizzo v. Bd. of Fire & Police Commissioners, 11 Ill. App. 3d 460, 297 N.E.2d 247, 250 (1st Dist. 1973).
Thus, all roads lead back to a factual decision by IDES which has an interest in discrediting claimants who contend that they did not receive a decision that triggers a time period. Therefore, except when IDES did not send notice to counsel, White v. IDES, 264 Ill. App. 3d 851, 637 N.E.2d 647 (1st Dist. 1994), or when factual findings are inane (e.g., the claimant received a document that was sent to the wrong address), or when IDES offers no evidence that the document was sent on the date it bears, there is little to be done. Moreover, unless the claimant has a substantial chance to succeed not only on the timeliness issue, but also on the merits of his, spending time fighting timeliness questions is a waste of limited resources.
The Filing Period For An ARA: An ARA must be filed in circuit court within 35 days of the Board's decision (or of the Board's issuance of a right to sue letter, or the 14th day after a request for right to sue letter to which the Board does not respond). See 820 ILCS 405/803, 820 ILCS 405/1100; 735 ILCS 5/3-101 et seq. That means not only that you must file the action within that time, but that you must name all the proper parties (see Necessary Parties) and even that all the papers, including the summons and the affidavit, must be styled correctly (Footnote 39).
For instance, an otherwise timely filed case might be dismissed because you failed to name all the defendants in the caption of the summons as required by Ill. Sup. Ct. R. 101(d), even if all the defendants were named in the complaint and in the body of the summons and served within the 35-day period. Central States Trucking Co. v. IDES, 248 Ill. App. 3d 86, 187 Ill.Dec. 839, 618 N.E.2d 430 (1st Dist. 1993).
The Binding Nature of the Filing Period: "Unless review is sought of an administrative decision within the time and in the manner ... provided [in the ARA], the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision." 735 ILCS 5/3-102. Thus, "the requirement that a complaint be filed within the 35-day limit is [not just directory or even mandatory, but] jurisdictional." Lockett v. Chicago Police Bd., 133 Ill. 2d 349, 549 N.E.2d 1266, 1268 (1990), overruled on other grounds, Nudell v. Forest Preserve Dist., 207 Ill. 2d 409, 799 N.E.2d 260 (2003); see also, Strang v. IDOT, 206 Ill. App. 3d 368, 564 N.E.2d 261 (4th Dist. 1990) (applying Lockett to a UI case); Fredman Bros. Furniture Co., Inc. v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E.2d 893 (1984) see also, Strang v. IDOT, 206 Ill. App. 3d 368, 564 N.E.2d 261 (4th Dist.1990) (applying Lockett to a UI case); Fredman Bros. Furniture Co., Inc. v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E.2d 893 (1984) (Footnote 40).
Moreover, in contrast to cases in which an appellant files an appeal within the administrative agency after the time has run (see Timeliness of Appeals within IDES), the defense that an ARA complaint was filed after the expiration of the 35-day period cannot be waived. Id.; Gilty v. Village of Oak Park, 218 Ill. App. 3d 1078, 578 N.E.2d 1294 (1991).
An ARA will not be dismissed if the clerk's office fails to issue the summons within the 35 days, so long as the clerk received the necessary documents in time to serve timely. Lockett v. Chicago Police Bd., 133 Ill. 2d 349, 549 N.E.2d 1266 (1990); Strang v. IDOT, 206 Ill. App. 3d 368, 564 N.E.2d 261 (1990); Moretti v. IDOL, 119 Ill. App. 3d 740, 457 N.E.2d 114 (1983). Thus, the best practice is to file the case before the 35th day and get date-stamped copies of all filed documents.
The Beginning of the Filing Period: The 35-day period begins running from the date the Board mails the decision. 735 ILCS 5/3-103; 820 ILCS 405/804; Campbell v. IDES, 211 Ill. App. 3d 1070, 570 N.E.2d 812, 816 (1st Dist. 1991). See also Nudell v. Forest Preserve Dist., 207 Ill. 2d 409, 799 N.E.2d 260 (2003) (holding 35-day period begins to run with the date of mailing, not the date of receipt, and overruling contrary dicta in previous decisions); Cox v. Board of Fire & Police Commissioners., 96 Ill. 2d 399, 451 N.E.2d 842 (1983). (Footnote 42).
But pursuant to IDES's rules, mailing must be to counsel, not just the claimant, if the claimant has designated counsel to receive notice pursuant to 56 Ill. Adm. Code § 2720.5(b). See White v. IDES, 264 Ill. App. 3d 851, 637 N.E.2d 647 (1994).
The Board has no authority to reconsider its decisions, People ex rel. Olin Corp. v. IDOL, 95 Ill. App. 3d 1108, 420 N.E.2d 1043 (5th Dist. 1981), so a claimant should never delay filing an ARA beyond 35 days after the Board sends its initial decision while the Board reconsiders that decision. See id.; Consolidation Coal Co. v. IDOL, 138 Ill. App. 3d 541, 485 N.E.2d 1102 (5th Dist. 1985).
Necessary Parties: In any ARA in a UI case, you must name the Board of Review as a defendant. Van Milligen v. Department of Employment Security, 373 Ill. App. 3d 532, 868 N.E.2d 1083 (2d Dist. 2007) (failure to name the Board must result in dismissal without leave to amend); McGaw Medical Center v. Department of Employment Sec., 369 Ill. App. 3d 37, 860 N.E.2d 471 (1st Dist. 2006), appeal allowed, 223 Ill. 2d 637 (2007); Veazey v. Baker, 322 Ill. App. 3d 599, 749 N.E.2d 1060 (1st Dist. 2001); Shaw v. IDES, 243 Ill. App. 3d 844, 612 N.E.2d 919 (3d Dist. 1993); Stanley v. IDES, 235 Ill. App. 3d 992, 602 N.E.2d 73 (2d Dist. 1992).
The ARA also requires that "all ... parties of record to the proceedings before the administrative agency shall be made defendants." 735 ILCS 5/3-107(b). Accordingly, the employer should always be named as a defendant in the appeal (Footnote 44). See also Veazey v. Doherty, 327 Ill. App. 3d 522, 763 N.E.2d 816 (1st Dist. 2002) (failure to name employer identified as a party in the Board's decision fatal to ARA complaint).
Until recently, the failure to name a necessary party in an ARA complaint was almost always fatal because, before you could amend the complaint to join the unnamed party, the 35-day period for filing would expire and then, the unnamed party could not be joined. See Lockett v. Chicago Police Bd., 133 Ill. 2d 349, 549 N.E.2d 1266 (1990); Van Milligen v. Department of Employment Security, 373 Ill. App. 3d 532, 868 N.E.2d 1083 (2d Dist. 2007) (failure to name the Board must result in dismissal without leave to amend). Naming the Director of IDES did not excuse failure to name the Board. Veazey, 322 Ill. App. 3d at 604-05. While our practice has always been to name the Director of IDES, in addition to the Board and other necessary parties, some cases hold that it is not necessary to do so. Stone v. IDES, 151 Ill. 2d 257, 602 N.E.2d 808 (1992); Shaw v. IDES, 243 Ill. App. 3d 844, 612 N.E.2d 919 (3d Dist. 1993); but see Catamount Cargo Services, LLC v. Illinois Dept. of Employment Sec., 366 Ill. App. 3d 1039, 853 N.E.2d 85 (1st Dist. 2006) (in employer appeal of assessment of contributions and penalties, director was the "administrative agency" that must be named); Central States Trucking Company v. IDES, 248 Ill. App. 3d 86, 618 N.E.2d 430 (1st Dist. 1993) (same); E & E Truck Line v. IDES, 262 Ill. App. 3d 547, 634 N.E.2d 1191 (4th Dist. 1994) (Footnote 43).
If the court determines that a person or party not named by the administrative agency as a party in its final order was a party of record to the proceedings, the court shall grant the plaintiff an additional 21 days to serve the unnamed party in the manner set forth in Section 3-103 of this Act. 735 ILCS 5/3-107.
In 2008, the General Assembly amended the ARA to provide as follows:
"If, during the course of a review action, the court determines that an agency or a party of record to the administrative proceedings was not made a defendant as required by the preceding paragraph, then the court shall grant the plaintiff 35 days from the date of the determination in which to name and serve the unnamed agency or party as a defendant. The court shall permit the newly served defendant to participate in the proceedings to the extent the interests of justice may require." 735 ILCS 5/3-107.
That provision is apparently intended to protect plaintiffs who inadvertently fail to name necessary parties. However, courts continued to construe the statute very strictly following a similar, narrower amendment in 1995, and it therefore remains very important to name parties correctly when filing a complaint. See, e.g., Veazey v. Doherty, 327 Ill. App. 3d 522, 763 N.E.2d 816 (1st Dist. 2002) (plaintiff having named company he claimed was "true employer," where different employer was named by the Board as party to the proceedings, failed to save his complaint).
Standard of Review: A court generally reviews the Board's, not the referee's decision. See Loveland Mgt. Corp. v. IDES, 166 Ill. App. 3d 698, 520 N.E.2d 1070 (2d Dist. 1988); Crowley v. IDES, 190 Ill. App. 3d 900, 546 N.E.2d 1042 (2d Dist. 1989); Hoffman v. Lyon Metal Production Inc., 217 Ill. App. 3d 490, 577 N.E.2d 524 (1st Dist. 1991); but see Scope of Review. A reviewing court may not conduct a new evidentiary hearing. Grant v. Bd. of Review, 200 Ill. App. 3d 732, 558 N.E.2d 438, 440 (1st Dist. 1990). Rather, it must uphold the Board's factual findings unless they are contrary to the manifest weight of the evidence. See 735 ILCS 5/3-110; Henderson v. IDES, 230 Ill. App. 3d 536, 595 N.E.2d 96 (1st Dist. 1992); Yadro v. Bowling, 91 Ill. App. 3d 889, 414 N.E.2d 1244 (1st Dist. 1980). Even as to pure questions of fact, however, "[w]here a conclusion opposite to the agency's is 'clearly evident' from the evidence, a court must overturn the agency's factual finding." Thompson v. Bd. of Review, 120 Ill. App. 3d 1, 457 N.E.2d 512, 515 (2d Dist. 1983).
A reviewing court is "not bound by the Board's determinations of questions of law." Barron v. Ward, 165 Ill. App. 3d 653, 517 N.E.2d 591, 596 (1st Dist. 1987). Barron held that "the legal effect of undisputed facts" is a question of law, so that whether, under a given set of facts, claimant had "good cause" for leaving was reviewed de novo. Id. at 659-60. However, the Illinois Supreme Court has, in recent years, developed an "intermediate" standard of review for "mixed questions of law and fact," meaning questions "'involv[ing] an examination of the legal effect of a given set of facts.'" See AFM Messenger Service, Inc. v. Department of Employment Sec., 198 Ill. 2d 380, 763 N.E.2d 272 (2001) (whether messengers constituted "employees" under the IUIA considered a mixed question of law and fact), quoting City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204-05, 692 N.E.2d 295 (1998). Under this standard, the reviewing court determines whether a decision is "clearly erroneous," meaning that it leaves the court with a "'definite and firm conviction that a mistake has been committed.'" Id., quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). While the Illinois Appellate Court, as recently as 2008, continued to consider the question "[w]hether an employee's conduct amounted to misconduct under the Act [to be] a question of law," Czajka v. Department of Employment Sec., 387 Ill. App. 3d 168, (1st Dist. 2008), more recent cases have clarified that the misconduct question will normally constitute a mixed question. See Sudzus v. Department of Employment Sec., 393 Ill. App. 3d 814, 914 N.E.2d 208 (1st Dist. 2009) ("The question of whether an employee was properly terminated for misconduct in connection with his work involves a mixed question of law and fact, to which we . . . apply the clearly erroneous standard of review."); Abbott Industries, Inc. v. Department of Employment Sec., --- N.E.2d ---, 2011 WL 2517034 (2d Dist. June 20, 2011). The standard is likely to be applied to voluntary leave cases as well, where the determination is whether a given set of facts gave rise to "good cause," for example.
To appeal from the circuit court, a notice of appeal must be filed in circuit court no later than 30 days from Circuit Court's decision. Ill. Sup. Ct. R. 303.
While courts were once split over whether IDES's findings in a UI case could bar suits for wrongful discharge, under the doctrines of res judicata or collateral estoppel, the General Assembly in 1992 made clear that they cannot:
"No finding, determination, decision, ruling or order (including any finding of fact, statement or conclusion made therein) issued pursuant to this Act shall be admissible or used in evidence in any action other than one arising out of this Act, nor shall it be binding or conclusive except as provided in this Act, nor shall it constitute res judicata, regardless of whether the actions were between the same or related parties or involved the same facts." 820 ILCS 405/1900.B.
An IDES decision that an employee voluntarily left his employment does not bar a subsequent contract action for breach of employment through res judicata or collateral estoppel. Kennedy v. Four Boys Labor Service, 276 Ill. App. 3d 248, 657 N.E.2d 1130 (1st Dist. 1995).
Generally, information obtained from any claimant or employer under the administration of the Act is confidential. 820 ILCS 405/1900.A. However, there are certain statutory exceptions to this rule. For example, the claimant may be supplied with such information to the extent necessary to properly present his claim for benefits. 820 ILCS 405/1900.D. Also, the employer may be supplied with such information to the extent necessary to enable the employer to discharge its obligations under the Act. 820 ILCS 405/1900.E. IDES may furnish such information in its discretion to certain state or federal public officers or agents. 820 ILCS 405/1900.F. IDES is also required to disclose information under Section 303 of the Social Security Act and under other narrow circumstances. 820 ILCS 405/1900.H-Q; 42 U.S.C. 503. Under recent amendments, IDES must disclose certain information to assist in law enforcement, such as information to assist in locating delinquent child support obligors, subjects of arrest warrants, felony victims and witnesses, and people required to register as sex offenders. See 820 ILCS 405/1900.R-T.
The discretion to disclose information belongs solely to the director of IDES and is not subject to release or waiver by individual or employing unit. 820 ILCS 405/1900; Hinojosa v. Joslyn Corp., 262 Ill. App. 3d 673, 635 N.E.2d 546 (1st Dist. 1994). However, the privilege of confidentiality may be waived by the claimant over the objection of IDES by claimant's serving IDES with subpoena duces tecum for production of records in a wrongful discharge action, given the limited scope of the subpoena and lack of objection by employer. Howard v. Forbes, 185 Ill. App. 3d 148, 541 N.E.2d 685 (4th Dist. 1989).
There are also situations where a federal interest may trump the confidentiality provision of the IUIA. See EEOC v. IDES, 995 F.2d 106 (7th Cir. 1993) (enforcing an EEOC subpoena for documents in IDES's possession despite Section 1900 of the IUIA); United States v. Wilson, 960 F.2d 48 (7th Cir. 1992) (holding that UI documents could be used in a federal criminal case because of the overriding interest in enforcement of the federal criminal laws).
Also, in personal injury actions, plaintiffs cannot invoke the confidentiality provision to prevent disclosure of unemployment compensation and at the same time make a claim for lost earnings during that same period. McMahon v. Richard Gorazd, Inc., 135 Ill. App. 3d 211, 481 N.E.2d 787 (5th Dist. 1985).
The question may arise as to what constitutes privileged communications or information. Written statements made by employer concerning claimant's alleged misuse of employee discount privilege that was transmitted to the Department of Labor, together with security manager's written statement concerning same incident that was transmitted to supervisor were privileged and precluded claimant from recovering in a libel action. Harrison v. Sears, Roebuck & Co., 189 Ill. App. 3d 980, 546 N.E.2d 248 (4th Dist. 1989). "Information" includes all investigative materials received from parties during proceedings but does not refer to final decision of IDES, which may be used in other proceedings in order to defeat attempts to relitigate such decisions. Colvett v. L. Karp & Sons, Inc., 211 Ill. App. 3d 731, 570 N.E.2d 611 (1st Dist. 1991). The cloak of the statutory privilege of confidentiality embraces all evidence concerning whether an individual is or is not receiving unemployment benefits, including information provided by the claimant or employing unit. Hinojosa v. Joslyn Corp., 262 Ill. App. 3d 673, 635 N.E.2d 546 (1st Dist. 1994).
No person shall be denied unemployment benefits solely on the basis of pregnancy or termination of pregnancy. 26 U.S.C. 3304(a)(12). This provision once was construed to invalidate a state's practice of denying benefits to women who voluntarily left work because they were pregnant even if claimants who left for other health-related problems were subject to disqualification. Brown v. Porcher, 660 F.2d 1001 (4th Cir. 1981). Brown, however, was overruled by the U.S. Supreme Court in Wimberly v. Labor & Industrial Relations Commission, 479 U.S. 511 (1987), where the Court held that the provision only overturned anti-pregnancy rules and thus assured pregnant women of the same right to benefits enjoyed by other similarly situated claimants. Thus, if a state pays benefits to others who leave because of a health condition (as Illinois does under some circumstances, see Exceptions to the Attribution Requirement), it cannot deny otherwise similar claims by pregnant woman.
Decisions are codified in IDES's Digest of Adjudication Precedents and Board of Review Reporter, 56 Ill. Adm. Code Part 2712, Subpart B. Note: IDES' manuals can be cited as authority. Crocker v. IDOL, 121 Ill. Ap. 3d 185, 459 N.E. 2d 332 (2d Dist. 1984).
The Digest is an abridged reporter of selected Board of Review, Circuit Court and Appellate Court decisions. Anyone can submit a decision for inclusion in the Digest. To be considered for publication in the Digest, the decision must meet one or more of the criteria published in 56 Ill. Adm. Code § 2712.105.
IDES also maintains an unabridged Board of Review Reporter on microfilm. The Reporter has all Board of Review decisions dating from 1985. The Reporter is maintained at the IDES Central Office, the main Chicago Public Library, and at other Illinois Document Depository Libraries in Chicago.
Printed from: www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=2015
We welcome your comments and suggestions