Recently a client asked if she could fire an "at-will" employee who was working less than "90 days." Within this question, I could see many employment law concerns colliding with each other and causing confusion.
In this article, I will clarify these confusing issues with the hope that it will help many readers.
90 DAY RULE IS OFTEN FOR BENEFITS PURPOSES: First, 90 days is a common parameter that employers primarily use for benefits purposes. In many companies, health insurance benefits do not kick in until the employee has been with the company for 90 days. But that 90-day rule has nothing to do with "employment at will" or whether the company will "be charged" by the Illinois Department of Employment Security (IDES) if the employee quits or is fired and gets unemployment insurance benefits.
FOR ILLINOIS UNEMPLOYMENT INSURANCE BENEFITS PURPOSES, THE RULE IS 30 WORKING DAYS: For unemployment insurance purposes in Illinois, the critical measure is 30 working days. Under the Illinois Unemployment Insurance Act, a company will usually not be charged for an ex-employee's unemployment insurance benefits if that ex-employee did not work for the company at least 30 working days.
Important Tip: Therefore, I often tell clients that they should have a calendar to mark off the first 30 working days of a new employee. It is wise to decide, well before the end of the 30 working days, if a company really wants to keep a new employee. A company becomes a "chargeable employer" for purposes of the Illinois Unemployment Insurance Act if the employee works for the company for 30 working days. This is an extremely simple rule that employers should keep in mind because, if properly used, it is a wonderful way for a company to help keep its unemployment insurance rate down.
EXAMPLES OF HOW TO CALCULATE 30 WORKING DAYS: Below are some examples of how to calculate 30 working days in the confusing situations of where an employee works on a shift, becomes ill, or has a variation in work schedule:
(1) The individual begins his shift at Noon but becomes ill fifteen minutes later. Since the individual performed services for the employer for fifteen minutes, one day is counted toward meeting the 30-day requirement.
(2) The individual works a shift which begins at 10:00 p.m. on Monday and ends at 7:00 a.m. on Tuesday. While this individual performs services for this employer on two calendar days, for the purpose of determining whether the 30 day requirement has been met, the individual's shift counts as only one day of service (Monday).
(3) The individual is scheduled to work on a certain day but fails to report for work because he is ill. Even if the employer provides paid sick leave to the individual for that day, it will not be counted toward the 30-day requirement. He did not work.
(4) The individual's normal shift begins at 3:00 p.m. and ends at 11:00 p.m. However, he is required to work four hours of overtime every day so that he does not complete his shift until 3:00 a.m. This shift still counts as only one day toward the 30-day requirement.
SHIFT COVERING TWO DAYS: If a shift covers two calendar days, only one day is included in determining whether the 30-day requirement has been met. The day used (for determining whether the 30-day requirement has been met) is the one on which the individual's shift began.
NON-WORKING DAYS ARE NOT COUNTED: Paid sick days, vacation days, holidays or other similar paid, non-working days are not counted toward meeting the 30-day requirement. If an individual is paid to "stand by" for the day but doesn't actually work, that day is not counted towards meeting the 30-day requirement.
RARE SITUATIONS WHERE AN ILLINOIS EMPLOYER CAN BECOME A CHARGEABLE EMPLOYER EVEN IF AN EMPLOYEE WORKS LESS THAN 30 WORKING DAYS: An employer may also become the chargeable employer after less than 30 working days if it was the single employer who paid wages to the individual permitting the individual to requalify for benefits after a previous disqualification under Section 601 (voluntary leaving), 602 (misconduct), or 603 (refusal of work).
To further complicate things, the only way the individual can requalify is if he/she earns an amount equal to or in excess of his/her current Weekly Benefit Amount in each of four calendar weeks.
LESSON TO BE LEARNED: The lesson to be learned from this article is that all Illinois employers should carefully track the first 30 working days for all new hires and make sure the company is really happy with the new employee. If the company is not satisfied fully with the new employee, the best time to terminate that employee is before the 30 working days lapse.
For assistance with protesting an IDES unemployment insurance claim, contact Nancy Joerg at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at [email protected].