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Tip for Illinois Employers: Plan Your Misconduct Protest BEFORE You Fire Your Employee

December 2013

By: Nancy E. Joerg, Esq.

Employers frequently call me after they have fired an employee for poor performance. Now the ex-employee (let's call him "Ed") is filing for unemployment insurance benefits with the Illinois Department of Employment Security ("IDES"). Ed's employer (let's call him "Donald") is furious!

Donald firmly believes that Ed should not be granted unemployment insurance benefits by the IDES. Donald tells me example after example, painting a vivid picture of the truly terrible employee he fired. Ed made many serious errors in his job as Company Bookkeeper. Donald finally fired Ed after Ed made a particularly significant bookkeeping error (which greatly upset an important customer). Under these facts, Donald is certain that the IDES will not give Ed unemployment insurance benefits.

Unfortunately, Donald may now be in a weak legal position. In order to block Ed's claim for unemployment insurance benefits, Donald will have to prove (hard to do!) to the IDES that Ed's bookkeeping errors were " willful and deliberate!" Under the legal definition of misconduct (found in Section 602A of the Illinois Unemployment Insurance Act ), mere negligence or carelessness by Ed is not enough. Donald has the major challenge of proving that the reason Donald fired Ed was because of some willful and deliberate action by Ed.

How can Donald prove to the IDES that Ed intended to make the bookkeeping errors in question? The sad answer here is that Donald will probably lose in his protest attempt. How can this kind of disappointing outcome be avoided?

One very effective strategy for employers is to think over what misbehaviors by an employee can be viewed as willful and deliberate? Think this over well before you, the employer, actually fire the employee in question.

For example, if Ed refuses to follow Donald's clear instructions (and this can be proven through the use of witnesses, emails, etc.) regarding reasonable bookkeeping procedures, and this is the stated and clearly documented reason for Ed's termination, Donald now has a decent chance of winning when Donald protests Ed's unemployment insurance claim with the IDES.

Having represented many employers over the years before the IDES, I increasingly believe that employers should carefully plan terminations to clearly bolster an eventual employer protest (to the ex-employee's claim for unemployment insurance).

Think through the legal IDES definition of misconduct BEFORE you fire a poorly performing employee. If you do, you will find that you, the Illinois employer, will be far more successful in protesting unemployment insurance claims.

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.