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March 1, 2014

Employers hate unemployment claims. Benefit awards increase unemployment insurance tax rates. Protests can be time-consuming and results can be frustrating. Employers complain that even though they fired the employee for violating company policy, the employee was awarded benefits. Or, that the employee voluntarily quits, argues that she was fired, and is awarded benefits. Often, the problem lies not in the award itself, but in the lack of planning preceding the employment termination. The time to establish your protest is before the termination. Here are some key strategies:

Rule No. 1. Understand the Illinois Department of Unemployment Security (IDES) definition of “misconduct.” The employee is ineligible for benefits if he was fired for misconduct. The Illinois Unemployment Insurance Act requires the employer to prove that the employee deliberately and willfully violated a reasonable work rule and that the violation harmed the employer or the violation was repeated by the employee after a warning from the employer. Mere negligence or carelessness is not enough.

Rule No. 2. Understand the IDES definition of “voluntary leaving without good cause attributable to the employer.”Not all employee quits are created equal. The first question in a voluntary leave case is whether the employee had the option of remaining employed. If the employee quit because he was tired of making the same commute, he is ineligible for benefits because he had the option of continuing employment. If he is a truck driver, and can no longer drive because he lost his license due to a DUI conviction, his resultant work separation is a voluntary quit because his conduct caused him to lose the “tool of the trade” necessary to perform his job. What if the employee complains to her boss about a co-worker’s sexual advances, the boss does nothing (thinking she can take care of herself), the advances continue, and the employee quits? She will be eligible since the employer knew of the harassment and failed to take corrective action. In essence, the law says that she did not have the option of remaining employed in the unreasonable work environment.

Rule No. 3. Document, document, document. Armed with these definitions, consider what behaviors can be viewed as deliberate and willful before you fire the employee. Pinpoint the work rule being violated. Talk to the employee about the violation and document the violation and the warning you gave the employee. Have the employee sign the warning document, acknowledging that he received the warning. If the employee refuses to sign the acknowledgment, document that, too. Make a note of witnesses to the behavior. Obtain witness statements. All of these efforts will pay off when you file a protest or participate in a telephone hearing with an administrative law judge. Here’s a war story: Our client’s employee complained to management about her boss’ alleged intimidating and threatening behavior. Our client took prompt steps to address the situation, including counseling the boss and having the employee report to another manager. The employer documented its actions and had the employee sign an acknowledgment that the supervisory change was an acceptable resolution of her complaint. Several weeks later, the employee went to her new supervisor and announced that she quit because of an incident with her former supervisor the day before. She did not complain to her supervisor about the incident until she announced she was leaving work. The employee filed a claim and was awarded benefits. On appeal, I argued that the employee had a duty to make reasonable efforts to resolve the conflict before voluntarily leaving and seeking unemployment benefits. The fact that she didn’t complain about the most recent incident and the employer’s prompt action when she did complain saved the day for our client. The administrative law judge found that the employee left her job without good cause attributable to the employer and she was disqualified for benefits.

Rule No. 4. Don’t delay. Employers sometimes discipline an employee for deliberate and willful misconduct (say, misuse of a company credit card) but decide not to fire the employee for the incident. Months later, the employer fires the employee because she is making too many mistakes, feeling that this is the “last straw.” Even though the employer had good reason to terminate the employee, the employee’s credit card misuse probably will not make her ineligible for benefits. Discharging the employee after a substantial passage of time is viewed by the IDES as condoning the credit card misuse, and poor work performance alone is not “misconduct.”

Think through these definitions before you terminate an employee. Have written job descriptions identifying the tools of the trade necessary for the employee to perform his job. Document efforts you make to resolve work problems. Line up your witnesses. Careful planning and timely terminations bolster the likelihood that your protest will be successful. You also are in a better position to defend against discrimination claims related to the termination.