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Wessels Sherman Secures Huge Victory Under Illinois Unemployment Insurance Act Misconduct Case

January 2013

By: Sean F. Darke, Esq.

On December 3, 2012, the Illinois Appellate Court-First Division agreed with Wessels Sherman's interpretation of the Illinois Unemployment Insurance Act, under the "misconduct" section and reversed the Board of Review's decision.

Many employers have been there, protesting an employee's unemployment benefits because the employee was terminated for misconduct. Although in the back of the employer's mind they are thinking "why am I protesting this, the IDES always allows benefits." Well one client was adamant that they were correct in terminating an employee who violated the company's attendance policy on numerous occasions, so the employer protested, then appealed, appealed again, and one last time before having a panel of three (3) appellate judges tell him "you're right!"

As many of you know, under Section 602 of the Illinois Unemployment Insurance Act, an individual will be held ineligible for benefits if they willfully and deliberately violate a reasonable company policy.

In this case, it was an attendance policy. The problem arose when the individual violated the attendance policy over 10 times; however, the Board of Review only reviewed the last absence, the so called "triggering" event, when it made its decision that the individual did not willfully and deliberately violate the attendance policy on her last absence. The Board of Review did not take into account the previous absences, which the employer clearly relied on when making the decision to terminate the individual. The Illinois Appellate Court agreed that the IDES needs to review the series or cumulative events that the employer relied on to make the decision to terminate, not simply the triggering event.

Employers should have renewed confidence that when terminating an individual for misconduct, they can rely on a series of events or cumulative events to hold the person ineligible for benefits. The employer must also understand that it's a fact intensive analysis. The employer therefore must have solid documentation, provide notice to the individual each time the policy was violated, and actually rely on the series or cumulative of events when terminating.