ILLINOIS UNEMPLOYMENT INSURANCE:
WINNING A MISCONDUCT HEARING BEFORE THE IDES
By
Nancy E. Joerg, Esq.
Senior Attorney and Shareholder
Wessels Sherman Joerg Liszka Laverty Seneczko P.C.
St. Charles, Illinois
(630) 377-1554
One of the most common reasons that employees are “separated from their employment” is because they have been fired for poor performance. Often, these fired employees go to the Illinois Department of Employment Security (IDES) and file for unemployment insurance benefits.
When an employer fires an employee for poor performance, the employer is often appalled that the employee would even be eligible for unemployment insurance.
EMPLOYER MUST PROVE EMPLOYEE WAS GUILTY OF MISCONDUCT: Unfortunately for the employer, the IDES will grant unemployment insurance benefits to the fired employee unless the employer protests and can prove that the fired employee was guilty of misconduct as defined by the Illinois Unemployment Insurance Act.
DEFINITION OF MISCONDUCT:Under Section 602A of the Illinois Unemployment Insurance Act, the 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.”
PREPARATION FOR HEARING IS KEY: When I represent an employer at an unemployment insurance hearing involving misconduct, I make sure that the company witnesses can testify about how the employee was fired for deliberate and willful misconduct. Words that you want witnesses to use in such a Hearing in order to prove misconduct are: on purpose; deliberate; willful; intentional; etc.
If an employer fires an employee for poor performance but the employer cannot actually prove that the poor performance occurred on purpose, then unfortunately the employer will lose at the Hearing and the ex-employee will get unemployment insurance benefits.
It is very important for employers to understand that they can often win at IDES hearings on the issue of misconduct. The employer must have extremely well prepared witnesses who are ready, willing and able to testify that the poor performance of the employee (for which the employee was fired) was deliberate, willful and on purpose.Witness preparation for an IDES hearing is the key to winning.
FREE INFORMATION: If any readers would like free information on misconduct of a particular type (for example, stealing, insubordination, etc.), please contact Legal Assistant Tammy Nelson at 630-377-1554 or via email at , and she will send information that might be helpful in understanding a certain type of misconduct.
Biographical Information for Nancy E. Joerg
Nancy E. Joerg is a senior attorney and shareholder at Wessels Sherman Joerg Liszka Laverty Seneczko P.C., a labor and employment law firm concentrating exclusively in the representation of management. Wessels Sherman maintains offices in St. Charles and Chicago, Illinois; Oconomowoc, Wisconsin; Davenport, Iowa; and Minneapolis, Minnesota. (Ms. Joerg can be reached at the St. Charles, Illinois office at 630-377-1554.)
Ms. Joerg defends all kinds of companies in audits and hearings before various state agencies (including the Illinois Department of Employment Security and the Illinois Department of Labor) on the issue of independent contractor status and other issues of employment law. She reviews and drafts IDES owner-operator leases, independent contractor agreements, and employee handbooks. Ms. Joerg also defends companies before the EEOC and the IDHR as to discrimination cases of all kinds.