New Illinois Law Beneficial to Employers When Contesting Unemployment Compensation Claims

On December 14, 2015, Governor Rauner signed into law a new amendment to the Illinois Unemployment Insurance Act (the “Act”). The new law is favorable and helpful for employers when contesting an employee’s eligibility for unemployment compensation benefits based on the employee’s “misconduct.”[1] The new amendment broadens the definition of “misconduct” so that employers seeking to contest an employee’s unemployment compensation claim no longer have to prove that the misconduct that led to the employee’s termination was “deliberate and willful” in eight specific circumstances.

The new legislation was passed by the Illinois legislature on December 2, 2015 and was approved by Governor Rauner on December 4, 2015. The new amendment will take effect on January 3, 2016.

In Illinois, an employee may be denied unemployment compensation benefits if it is shown the employee engaged in “misconduct.” Under the current definition of “misconduct,” in order to successfully contest an employee’s claim for unemployment benefits, employers must prove the employee’s misconduct giving rise to termination was “deliberate and willful.” Specifically, the Act defines “misconduct” as 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.”

As a result of this definition, despite being involuntarily terminated for misconduct, employees have often received unemployment compensation benefits because the employees’ conduct was not deemed to be “deliberate and willful” by the Illinois Department of Employment Security. As an example, an employee who was involuntary terminated for carelessly causing extensive damage to the employer’s equipment could have been granted unemployment compensation benefits because the employer was unable to show the employee intended to cause damage to the employer’s equipment.

Under the new amendment, the Act will continue to include its current definition of “misconduct” requiring that the employee’s conduct be “deliberate and willful.” However, the definition of “misconduct” is broadened to now include eight specific circumstances where “deliberate and willful” conduct does not need to be present. Under the new law, “misconduct” will also include:

1. Falsification of an employment application or any other documentation provided to the employer to obtain employment;
2. 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. Knowing, repeated violation of the attendance policies of the employer that are in compliance with state and federal law following a written warning 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 was out of the individual’s control;
4. Damaging the employer’s property through conduct that is grossly negligent;
5. 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;
6. Consuming alcohol or illegal or non-prescribed prescription drugs, or an impairing substance used 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 of alcohol or 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 if he or she is under the influence of alcohol or illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer’s policies; or
8. Grossly negligent conduct endangering the safety of the individual or co-workers.

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. Note that nothing in paragraph 6 or 7 prohibits the lawful use of over-the-counter drug products as defined by the Illinois Controlled Substances Act, provided that the medication does not affect the safe performance of the employee’s work duties.

In response to this new amendment, employers should continue to accurately record and document in writing all instances of employee misconduct, especially when the misconduct results in involuntary termination. Employers should make sure they complete written documentation when an employee is involuntarily terminated for misconduct, and such documentation should note any prior warnings given to the employee prior to termination.

In addition, employers should update attendance policies so as to clearly specify when an employee will be assessed a warning for violating the company’s attendance policy. Employers should ensure they are routinely issuing written warnings to employees for attendance violations prior to termination in accordance with the written policy. Employers should also make certain that employees actually receive the company’s attendance policy in writing, electronically, or via posting in the workplace

[1] The new amendment also makes a number of other changes to the Illinois Unemployment Insurance Act, which are not discussed in this article.

For more information concerning this or other issues affecting labor and employment, please contact:

Kimberly Sarff
Peoria, Illinois
Direct:  309-636-7225
Fax:  309-674-6503
Email:  ksarff@quinnjohnson.com

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Copyright © 2015 Kimberly A. Sarff, Esq., Quinn Johnston Henderson Pretorius Cerulo