Unemployment Insurancean overview

Unemployment Insurance • Claims Process• Filing Claim• Appealing Adverse Decisions

• Post Benefit/ Miscellaneous Issues

Unemployment Claims Process• Claims Adjudicator• Reconsideration • Referee Hearing• Board of Review • Circuit Court• Appellate and Supreme Court

Claims Adjudicator• Local office application- in person or online• Telephone interview (typically) to determine eligibility• Employer protest- must be filed within 10 days• Determination mailed out to parties- appeal must be received

within 30 days

Claims Adjudicator(cont.)• Determining Eligibility

• Earnings:

Must have earned $1600 in base period

Must have earned $440 in calendar quarter other than highest earning quarter

820 ILCS 405/500.E.

Earnings

Q1- $>440 or

Q2- $>440 or

Q3- $>440 or

Q4- $>440 Q5-only for alternate base period calculation

Termination/application for benefits

BASE PERIOD- $>1600

Jan.-March April-June July-Sept. Oct.-Dec. Jan-March April-June

Alternate Base Period- $> 1600

Examples

Q1- $400 Q2-$400 Q3-$400 Q4-$400 Q5-$400 April 1 apply for benefits

Ineligible based on earnings

Q1-$1000 Q2- $1000 Q3- $400 Q4- $400 Q5- $500 April 1 apply for benefits

Regular Base period

Q1- $400 Q2-$400 Q3- $400 Q4-$500 Q5-$500 April 1 apply for benefits

Alternate Base period

Q1-$500 Q2-$0 Q3-$400 Q4-$400 Q5-$500 April 1 apply for benefitsQ6-$1000

Reapply in next Q

Jan.-March

April-June

July-Sept. Oct.-Dec. Jan-March April-June

Claims Adjudicator(cont.)• Determining Eligibility (cont.)• Covered Employment

• List of exemptions at 820 ILCS 405/204-235.

• Must be Able to Work• Physically able• Have legal authorization

• Must be Available and Actively Seeking Work• Reasonable efforts are sufficient

Galarza v. IDOL, 167 Ill. App. 3d 163, 520 N.E.2d 672 (2nd Dist. 1988)• Full-time students are presumed to be unavailable

Moss v. Department of Employment Sec., 357 Ill. App. 3d 980, 830 N.E.2d 663 (1st Dist. 2005)

• No Disqualifying Reason for Separation• Misconduct• Voluntary Leave

Certification• Even if Claimant is Denied UI benefits, they must certify with

IDES every 2 weeks.

• Certification is telephonic or on-line

• Claimants may retroactively certify at local office

• Best Practice is to keep certifying throughout appeal process

Reconsideration• Local office review

• Notice of decision

• Referral and Notice of Hearing

Referee Hearing• Most important stage- only evidentiary hearing in the process

• Typically telephonic- unless good cause for in person

• Technical evidence rules do not apply

• Documents must be provided 24 hours in advance to both referee and opposing party- unless they are already part of the record

• Decisions mailed within 2-3 days

Referee Hearing(cont.)• Misconduct

Employer goes firstClaimant can cross examineClaimant testimonyClosing statements

• Voluntary LeaveClaimant goes first

Misconduct• Definition: Deliberate and willful violation of a reasonable rule

or policy, governing behavior or work performance, which harmed the employer/other employees or is repeated despite a warning.

820 ILCS 405/602.A.

Misconduct(cont.)• Reasonable Policy:

Need not be written, can be “common sense”• Deliberate and Willful

Most success with this issueRule must be KNOWN by the claimant to be Deliberate

and Willful• Repeated or Harmful

Harm virtually removed via case law

Misconduct (cont.)• Deliberate/Willful • Focus on conduct that caused discharge

• Does not have to be one “last act”Katten, Muchin & Zavis v. IDES, 279 Ill. App. 3d 794, 665 N.E.2d 503 (1st Dist. 1996)

• Burden of Proof in on Employer• Negligence does NOT count

Misconduct (cont.)• Types of Conduct• Alcohol or Drug Use – at work

• Insubordination- single flurry v. “kiss my grits”

• Poor Work Performance

• Negligence

• Absence or Tardiness –depends

• Self Defense

• Falling Asleep at Work- depends

Voluntary Leave• Generally: Claimant is disqualified for leaving work voluntarily

without good cause attributable to the employer

• Burden of proof is generally on the claimant

• Threshold Question: Did Claimant Quit?• Look at Claimant’s intent

• Resignation in lieu of termination – return to misconduct analysis• Lost license needed for job- considered quitting

Horton v. Department of Employment Sec., 335 Ill. App. 3d 537, 781 N.E.2d 545 (1st Dist. 2002)

Voluntary Leave (cont.)

• Good Cause: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

Voluntary Leave (cont.)• Claimant Quit • Part 1: Attributable to Employer?• Unilateral and substantial chance in duties/hours

• Reasonable fear of injury

• Unreasonable Mistreatment on the job

• Substantial Reduction in Wages

• Loss of Child Care

• Loss of Transportation

• Family Emergency

Voluntary Leave (cont.)• Claimant Quit• Part 2: Reasonable Attempt to Resolve

• Claimant must make a reasonable effort to resolve problem before quitting

• WATCH OUT! If Claimant tolerates problem too long , it has been “accepted” by the Claimant and she is Disqualified

Voluntary Leave (cont.)• Good Cause Exceptions• Unable to work for medical reasons (on advise of a licensed medical

doctor)

• Take another job (must work for at least 2 weeks)

• Move to a new home because spouse takes a new job

• Avoid bumping another employee

• Sexual Harassment on the job

• Accepting an “unsuitable” job after losing previous job

• Domestic Violence (requires notification to the employer)

Preparing for the Hearing• Key Pieces of Advise to Clients• Make sure all documents are sent to Referee and Employer

• Focus on Hard Facts and Specifics of Final Incident

• Listen to the Question Asked and Answer the Question Asked –probably the most important piece of advise for claimants!

• Speak Loudly and Distinctly

• Do not interrupt

• Do not Bad Mouth Employer

• Listen to the Employer’s witness, and make objections to hearsay

Board of Review• Last Stage of Administrative Process

• Appeal must be filed within 30 days

• Must request the transcript of the hearing within 15 days of appeal

• Must pay the copy cost (.25 per page)

• Must file a written brief within 10 days of mailing the transcript

• Must certify the brief was served on the other party

Board of Review (cont.)• Standard of Review is de novo

• Board can affirm, reverse, remand with or without instructions

• Board will not accept additional evidence unless the party submitting can show it was not able to present the evidence to the referee through no fault of its own, and for reasons out of its control

• Board has 120 days to decide

• Decision mailed 2-3 months after appeal

Circuit Court- Administrative Review Action• ARA• Must be filed within 35 days of the Board of Review decision-

jurisdictional requirement• Cook County cases are filed in Law Division

• Daley Center 8th floor• Pro Se assistance is available on the 6th floor• No filing fee

• Necessary Named Defendants:• Director of IDES• Board of Review• Employer

Circuit Court- Administrative Review Action (cont.)• Standard of Review:• Issues of Fact- Against the Manifest Weight of the Evidence

• 735 ILCS 5/3-110; Henderson v. IDES, 230 Ill. App. 3d 536, 595 N.E.2d 96 (1st Dist. 1992

• Issues of Law- de novo • Barron v. Ward, 165 Ill. App. 3d 653, 517 N.E.2d 591, 596 (1st Dist.

1987)

• Mixed issues of Fact and Law- Clearly Erroneous • Abbott Industries, Inc. v. Department of Employment Sec., --- N.E.2d

---, 2011 WL 2517034 (2d Dist. June 20, 2011)

Appellate and Supreme Court• Notice of Appeal from Circuit Court must be filed within 30

days of the final decision• Appeals are rarely heard• Opinions are rarely published• Claimants rarely win

• Petition for Leave to Appeal from Appellate Court must be filed within 35 days of the final decision

Post Benefits Issues• Disqualifying Income• Overpayments• Retaliation• Collateral Estoppel• Privilege• Waiver

Disqualifying IncomeDisqualifying income must be reported during Certification

Examples:• Wages• Back Pay Award • Retirement Income • Social Security

Overpayments• Overpayments

• IDES can Recoup regardless of fault- i.e. BOR reverses Referee results in Overpayment

• IDES can Recoup from current UI benefits and/or IL state income tax refund• IDES can recoup federal income tax refund for Fraud overpayments

• IDES waives all non-fraud overpayments after 5 years

Overpayments• Fraud Overpayment

• IDES may sue or recoup anytime without the bar of any statute of limitations

• penalizes the claimant by denying him/her six weeks of benefits for the first offense and two additional weeks for each subsequent offense

• limited to a total of 26 weeks

• After the penalty weeks, Claimant "receives" the benefits as 100% benefit recoupment until balance of overpayment is repaid

Overpayments• Non-Fraud

• Claimant not penalized prior to recoupment

• Recoupment rate limited to 25% of the claimant's weekly benefit amount

• IDES can waive recoupment if it "would be against equity and good conscience" to recoup – claimant must request a wavier of recoupment

Cerveny v. State, 123 Ill. App. 3d 836, 463 N.E.2d 452 (2nd Dist. 1984)

Other Issues• Retaliation- prohibited by the Act; private rights of action

820 ILCS 405/2800(A)(7)

• Collateral Estoppel/Res Judicata – none820 ILCS 405/1900(B)

• Privilege- information obtained is confidential and inadmissible in court or proceeding other than under the Act820 ILCS 405/1900(A)

• Waiver- Employees cannot waive the right to seek UI benefits820 ILCS 405/1300

Take Away Thoughts

• The Referee Hearing is KEY- representation at this stage is the most beneficial• Micah Legal Clinic can refer clients directly to IWR at 312-347-8377

• Advise Clients to keep recertifying throughout the process

• Deadlines are STRICT! Remind clients to appeal on time.

Resources• The Illinois Unemployment Insurance Act (820 ILCS 405/) http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2434&ChapAct=820%C2%A0ILCS%C2%A0405/&ChapterID=68&ChapterName=EMPLOYMENT&ActName=Unemployment+Insurance+Act.

• The IDES Unemployment Insurance Handbookhttp://www.ides.state.il.us/pdf/pubs/uilaw/handbook.pdf.

• Online Application:https://benefits.ides.illinois.gov/File4UI/Benefits/profile/claimantIntentionsHomepageStartLanding.do

• Office Locator:http://www.ides.illinois.gov/page.aspx?module=13&item=31