The circumstances under which an employer may successfully contest payment of unemployment compensation after terminating an employee have recently expanded to include some instances where the employee’s conduct was not “willful and deliberate.” On January 3, 2016, a new amendment to the Illinois Unemployment Insurance Act (the “Act”)—which is favorable for employers when contesting an employee’s eligibility for unemployment compensation benefits based on his or her “misconduct”—went into effect. This amendment broadens the definition of “misconduct” so that employers seeking to contest an unemployment compensation claim no longer have to prove that the misconduct that led to the employee’s termination was “deliberate and willful” in certain circumstances.

Misconduct: The Old Definition
In Illinois, an employee may be denied unemployment compensation benefits if it is shown he or she engaged in “misconduct.” Under the old definition of “misconduct,” employers had to prove the misconduct giving rise to the employee’s termination was “deliberate and willful” in order to successfully contest a claim for unemployment benefits. Specifically, the Act defined “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.”

This old definition often led to the frustrating inability of employers to prevent employees from receiving unemployment compensation benefits despite their being involuntarily terminated for misconduct, simply because the employees’ conduct was not deemed to be “deliberate and willful” by the Illinois Department of Employment Security. For example, an employee who was involuntarily terminated for recklessly driving a forklift through a wall of the employer’s building, thereby causing extensive damage to the property, could have been granted unemployment compensation benefits if the employer was unable to show the employee intended to cause damage to the employer’s equipment and property.

Misconduct: More Broadly Defined
Under the new amendment, the Act continues to include its current definition of “misconduct” requiring that the employee’s conduct be “deliberate and willful.” However, the definition has been broadened to now include eight specific circumstances where the employee’s conduct is deemed to be “misconduct,” though not necessarily “deliberate and willful.” These specific eight circumstances are:

  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 were 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 coworkers.

For purposes of items four and eight, conduct is “grossly negligent” when the individual is, or reasonably should be, aware of a substantial risk that the conduct will result in a 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 items six or seven prohibits the lawful use of over-the-counter drug products as defined by the Illinois Controlled Substances Act, provided the medication does not affect the safe performance of the employee’s work duties.

Employers’ Response
In response to this new amendment, employers should continue to accurately record and document in writing all instances of employee misconduct, especially when it 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 that 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.

Moving forward, it is important for employers to closely examine the terminated employees’ “misconduct” before contesting unemployment compensation. First, determine if the misconduct was willful and deliberate. If not, examine whether it fits into any of the eight categories stated in the new amendment which would prove the employee ineligible for unemployment compensation without the misconduct necessarily being “willful and deliberate.” This new step could save employers from paying unemployment compensation in a significant number of termination scenarios. iBi

James VanRheeden is an associate attorney with Quinn, Johnston, Henderson, Pretorius, and Cerulo. Email him at [email protected]