The new year brought a business-friendly change to the Illinois Unemployment Insurance Act. Until recently, employers had to shoulder a portion of unemployment benefits unless it could be shown an employee was terminated for misconduct.
The law didn’t detail what exactly constituted misconduct. The legalistic definition of “misconduct” was overly complicated and could be argued any way imaginable, depending on the facts.
Public Act 99-488, which became law on Jan. 3, flips the script on employee misconduct.
While the old definition remains in place, the statute now contains a laundry list of actions, which are deemed automatically to constitute misconduct.
To compare, the old definition of misconduct was, “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 from the employing unit.”
This left many ways for an employee to drag out an unemployment case. Was the misconduct deliberate and willful? Was there an actual policy in place? How did the violation harm the employer? Where was the record of a warning and of a repeated violation?
While misconduct can still be shown as before, the following acts are deemed to be misconduct under the new law, even if they do not meet the older, complicated definition:
• Intentional falsification of a job application.
• Failure to maintain a license or certification necessary for the job when the employee has the ability to maintain licensing.
• Repeated violations of a reasonable, posted attendance policy. The employer has to provide a written warning, and an employee can demonstrate how absences were outside of his control.
• Damaging the employer’s property or endangering others’ safety through gross negligence. While “gross negligence” has its own complicated definition, it boils down to whether a reasonable employee should have known the misconduct posed a substantial risk.
• Refusal to follow the employer’s reasonable and lawful instruction.
• Consuming alcohol or other impairing substances at work, or reporting to work in an impaired state. Prescription drugs are allowed, so long as they do not affect “the safe performance of the employee’s work duties.”
Employers now can take “safe harbor,” knowing if they terminate an employee for one of these reasons, they will not have to pay unemployment benefits because of an employee misconduct finding.
To take full advantage of the new law, employers should:
• Clarify the certifications necessary for each job and the employee’s responsibilities to maintain certifications.
• Have a visible, posted attendance policy that complies with federal and state labor laws. Employers should issue written warnings when app
• Implement a company-wide substance abuse policy.
• Ensure these policies are carried out in a nondiscriminatory manner.
The change to the Unemployment Insurance Act is a boon to employers, but only to those who try to take advantage of it.
Adopting policies, issuing warnings when appropriate and terminating – if necessary – based on the new law can result in fewer unemployment payments, less uncertainty and lower litigation costs should there be a contested unemployment case.
• Gregory J. Barry is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Reach him at 815-459-2050.