Defending Discharges at
Quick Refresher Course
IDES Denies Eligibility
if Misconduct, but…..
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
the claimant was fired for performance problems
you have no published policy or rule governing the misconduct in
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
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
you can show that the misconduct caused or potentially could have caused
real harm to your operation
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
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.