Misconduct Expanded in Recent Update of Unemployment Insurance Act

Jun 10, 2016 | Illinois Law, Unemployment

On December 4, 2015, House Bill 1285 was signed into law, codifying how the industry defined employee misconduct for purposes of unemployment insurance claims. With the new legislation, the question becomes whether the clarified misconduct violations will automatically bar a former employee from obtaining unemployment benefits.

Prior to House Bill 1285, an employee was ineligible for unemployment benefits if he or she committed egregious acts such as committing a theft or felony, for work-related misconduct, out of work because of a labor dispute, or if the employee quit voluntarily without good cause. Illinois Appellate Courts have held that a policy did not need to be written or even articulated in circumstances where the behavior violates a policy which is self-evident, such as stealing, Ray v. IDES, 244 Ill. App. 3d 233 (1st Dist. 1993) or fighting, Bandemer v. IDES, 204 Ill. App. 3d 192 (1st Dist. 1990). However, in situations where the misconduct was not specifically addressed in employer policies, proof of warnings to the misconduct that violated the policy was required. See Zuaznabar v. Bd. of Review, 257 Ill. App. 3d 354, 358 (1st Dist. 1993)

Under the new law, the definition of work-related misconduct can be broken down into three categories: grossly negligent conduct, usage of alcohol, drugs, or other illegal substances, and violations of employer policies.

Grossly negligent conduct occurs in circumstances where the employee damages the employer’s property or endangers the safety of the individual or co-worker. If an employee reports to work or consumes alcohol, drugs, or any other impairing substances on the employer’s premises, unless the individual is compelled to report to work by the employer outside of scheduled and on-call working hours and informs the employer that he or she is under the influence, such conduct may render the employee ineligible to receive unemployment benefits. Lawful use of over-the-counter drug products is not prohibited, provided that the medication does not affect the safe performance of the employee’s work duties.

Violations of employer policies include:

  • Falsification of an employment application or any other documentation provided to the employer, to obtain employment.
  • Failure to maintain licenses, registrations, and certifications reasonably required by the employer or by law, to perform his or her regular job duties, unless the failure is not within the control of the individual.
  • Refusal to obey an employer’s reasonable and lawful instruction, unless refusal is due to an unsafe act or if the individual lacks the ability, skills, or training required to obey the instruction.
  • Knowing, repeated violations of employer attendance policies following a written warning, unless the individual can demonstrate he or she has made a reasonable effort to remedy the violations or that the violations were out of the individual’s control. Employer attendance policies must be reasonable, in compliance with State and Federal laws, and provided in writing, electronically, or via posting in the workplace.

Under this expanded definition of misconduct, IDES has given employers better direction in determining whether an employee’s conduct will be viewed as misconduct resulting in denial of unemployment benefits. It should be noted that the above listed violations were grounds in the past for denial of benefits, but referees were given some discretion in whether the conduct under the specific facts of the case were misconduct.  In practice, our recent experience has been that referees are still working under the old system, even with certain conduct now being explicitly described as misconduct.  As a result employers still need to keep documentation of the misconduct and act swiftly when terminating these employees.

Written by:  Kenneth S. McLaughlin, Jr., Principal Attorney

If you have any questions, contact the Law Offices of McLaughlin & Associates, P.C. at (630) 230-8434.

NOTE: This publication should not be regarded as legal advice or legal opinion. The content is intended for general informational purposes only. If you have any concerns regarding anything in this publication you may contact your own attorney, CPA, or our law office at 630-230-8434, website www.ma-lawpc.com.