Defending Discharges at the

Unemployment Hearing:

Quick Refresher Course

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IDES Denies Eligibility

if Misconduct, but…..

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Can you Win?

 

            If the person you fired has applied for unemployment benefits at the Illinois Department of Unemployment Security, and you want to challenge the claim because of the impact on your IDES premium, you’re probably wasting your time if one or more of the following is true: 

  • the claimant was fired for performance problems

  • you have no published policy or rule governing the misconduct in question

  • you have no documentation supporting your defense, including documentation of the misconduct

  • you let him or others get away with the same thing in the past

  • the misconduct did not cause any real harm or potential harm to your operation

             If you wind up at a phone hearing after the initial determination of eligibility, you can mount an effective defense if one or more of the following is true: 

  • you had prior to the dismissal communicated the applicable policy or rule to the claimant

  • you had warned the claimant after committing the act in question that doing it again would lead to discharge

  • you had already published in your employee handbook or elsewhere a clear and reasonable policy or guideline that addresses the nature of the misconduct committed

  • you can show that the misconduct caused or potentially could have caused real harm to your operation  

            For these phone hearings and any appeal to the Board of Review, take all IDES protocols seriously.   Screwing them up can cost you your defense.

 

  • Get documents you intend to use as exhibits to the claimant and to the IDES, using the proper           pre-hearing time limitations, as required

  • Do not submit affidavits prior to a phone hearing.  Produce the witness at the hearing.

  • The hearing officer will require the employer to go first.  Do not assume you can present the case by direct examination of your witnesses;  the hearing officer most likely will ask the questions   initially and then turn the questioning over to you and the claimant

  • Keep these elements in mind at the hearing:  1) was there a reasonable rule,  2) was it violated on purpose,  and 3) was there harm.  The IDES has no problem with straightforward concepts like         three-day no call-no show but gave benefits to a manager who habitually slept through executive meetings because there was no published rule forbidding it. 

  • On appeal to the Board of Review, you have to make sure you file a certificate of service that you served your appeal on the claimant. 

  • You cannot file affidavits with the Board unless there was a very good reason that prevented you      from getting that testimony in at the phone hearing with a live body.  Furthermore, the affidavits you’re tendering have to recite the compelling reason.  If this is mishandled, the affidavits will be ignored.

  • Make sure you do not forget to order the phone hearing transcript in a timely manner, and you can do it using an online IDES form that you complete and fax to the Board of Review.  Ordering the transcript tolls the otherwise mandatory briefing schedule for appeals.

             Although the IDES believes that everything said  or submitted at an IDES hearing is “privileged” an employer found out at the Seventh Circuit in a sexual harassment case that the federal courts may ignore this “privilege”.  Of course this means that both the claimant and the employer can exploit what is admitted, or at least try.

 

12/21/2011