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Proving Misconduct: Winning IDES Hearings

There are many good reasons for which a company fires one of its employees. Some of these reasons are:

  1. Theft by the employee;
  2. The employee is not performing well;
  3. The employee is deliberately violating company rules and policies; and/or
  4. The employee is insubordinate.

But, strangely, not all good reasons for firing an employee lead to a finding by the Illinois Department of Employment Security (IDES) of "misconduct." Surprising to many clients, many bad employees are fired and are then successful in getting unemployment insurance benefits. Many clients are stunned and very upset!

So, how can an employer prove that the fired employee was guilty of misconduct under Section 602A1 - 8 of the Illinois Unemployment Insurance Act?

DEFINITION OF MISCONDUCT: Under Section 602A of the Illinois Unemployment Insurance Act, the precise legal definition of misconduct is: "the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit." (Emphasis added)

You will note that the simple legal elements of Section 602A require deliberate and willful behavior, and it must have caused actual harm to the company. (These elements need to be convincingly proven by the company in order for unemployment insurance benefits to be blocked.)

LISTING OF EIGHT DEFINITIONS OF MISCONDUCT: As of January 3, 2016, there are also eight legal (and very helpful to employers!) definitions of misconduct for IDES purposes:

  1. FALSIFICATION OF DOCUMENTATION: Falsification of an employment application, or any other documentation provided to the employer, to obtain employment through subterfuge.
  2. FAILURE TO MAINTAIN LICENSES: Failure to maintain licenses, registrations, and certifications reasonably required by the employer, or those that the individual is required to possess by law, to perform his or her regular job duties, unless the failure is not within the control of the individual.
  3. REPEATED VIOLATION OF ATTENDANCE POLICIES: Knowing, repeated violation of the attendance policies of the employer that are in compliance with State and federal law following a written warning (tip: put your attendance warnings in writing!)for an attendance violation, unless the individual can demonstrate that he or she has made a reasonable effort to remedy the reason or reasons for the violations or that the reason or reasons for the violations were out of the individual's control. Attendance policies of the employer shall be reasonable and provided to the individual in writing, electronically, or via posting in the workplace (tip: put your attendance policies in writing!).
  4. DAMAGE TO EMPLOYER'S PROPERTY: Damaging the employer's property through conduct that is grossly negligent.
  5. REFUSAL TO OBEY REASONABLE INSTRUCTION: Refusal to obey an employer's reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training (tip: document training) for the individual required to obey the instruction or the instruction would result in an unsafe act.
  6. ALCOHOL/DRUGS: Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer's premises during working hours in violation of the employer's policies.
  7. REPORTING TO WORK UNDER THE INFLUENCE: Reporting to work under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer's policies, unless the individual is compelled to report to work by the employer outside of scheduled and on-call working hours and informs the employer that he or she is under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer's policies.
  8. ENDANGERING SAFETY: Grossly negligent conduct endangering the safety of the individual or co-workers.

GROSS NEGLIGENCE DEFINED: For purposes of paragraphs 4 and 8, conduct is "grossly negligent" when the individual is, or reasonably should be, aware of a substantial risk that the conduct will result in the harm sought to be prevented and the conduct constitutes a substantial deviation from the standard of care a reasonable person would exercise in the situation.

RECENT WINNING CASE: I recently represented an accounting firm in protesting an IDES claim for unemployment insurance benefits filed by a former employee (i.e., the Claimant).

The unemployment insurance Claimant was a bookkeeper who had previously demonstrated (early in her work history) the ability to properly and timely prepare the payroll tax reports for the firm's clients.

In the incident that led to the Claimant's termination, the owner discovered (to her horror) that the Claimant was making serious errors and was very far behind in completing the tax reports. The owner reasonably asked the Claimant for daily progress reports as to the Claimant's progress on completion of these time sensitive tax documents. The Claimant deliberately misled the owner into believing that the requested documents were nearly done. At the IDES phone hearing, the accounting firm proved that the Claimant did not obey the reasonable instruction of providing accurate and truthful progress reports and put her employer in jeopardy.

The IDES Decision found that "the Claimant is disqualified from benefits under Section 602A5" (which is refusal to obey an employer's reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training for the individual required to obey the instruction or the instruction would result in an unsafe act). So, misconduct was proven under Section 602A5 and the Claimant was denied unemployment insurance.

PRACTICE TIP FOR EMPLOYERS: The eight definitions of misconduct for IDES purposes can be very helpful when the facts fit neatly into one or more of the categories. This is why it is important to have a strategic consultation to discuss the reasons for firing an employee prior to the employee being terminated. Then, in any documentation of the termination, the employer can use the "buzz words" as found in the eight legal definitions of misconduct.

If you think through these issues thoroughly prior to termination, your batting average at winning IDES misconduct claims and Hearings will go up dramatically.

For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

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