1415 W. Diehl Road, Suite 400 Naperville, IL 60563 (630) 566-8400 ...
A Review of the Unemployment System and Major Unemployment Issues for Academic Employers For The Illinois Association of School Business Officials
1415 W. Diehl Road, Suite 400 Naperville, IL 60563 (630) 566-8400 www.sikich.com
A Review of the Unemployment System and Major Unemployment Issues for Academic Employers •
•
Perspective on the significance of unemployment claims: o Academic employers are usually reimbursable employers who pay dollar for dollar the cost of all unemployment benefits collected against their account. A single lost claim can cost you over $15,000. o If unprepared to address the claim, the time and energy spent by your employees collecting information and participating in proceedings can be significant. How the unemployment system works: (the process) o The Claimant (former or current employee filing for benefits) files a claim online, in person, or over the phone. o The Illinois Department of Employment Security (IDES) processes the claim and makes a few initial determinations purely based on the Claimant’s employment history, such as their weekly benefit amount. This is the weekly amount they may be eligible to receive if they are found to be eligible for benefits. The determination is based on their income for roughly the last year and a half and will fall between $51-$569 a week. o IDES then begins the process of gathering information to answer two main questions: Is the Claimant eligible for benefits? If the Claimant is eligible, who is the chargeable employer liable for the benefits? o Initial phase: IDES sends a notice of claim to all former employers’s who have paid the claimant wages within roughly the last year and a half. The Employer has 10 days to provide information relevant to the claim in the form of a protest and supporting documentation. IDES does an initial phone interview with the Claimant and may choose to follow up with either party to ask for more specifics or supporting documentation. IDES then makes initial determinations on chargeability and eligibility issues. o First Determinations: IDES sends notices of all initial determinations to both parties and either party may appeal a determination within 30 days. If no appeal is filed, the decision is final. If either party appeals a determination, a phone hearing is scheduled with an Administrative Law Judge. Each party receives notice of a phone hearing date and time as well as the specific issue to be reviewed at the hearing. Both parties are able to participate in the hearing to present testimony and evidence. o ALJ Decision following the hearing: IDES sends the ALJ’s decision to each party and they are again given 30 days to appeal the decision, this time to the Board of Review. If no appeal is filed, the decision is final. This appeal is just a written appeal to the Board of Review where the party may address why they disagree with the ALJ’s determination; there are generally no additional hearing proceedings at this stage.
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If an appeal to the ALJ decision is received, the non-appealing party is notified and also permitted to submit a written statement if they desire. o Board of Review Determination: The Board of Review usually makes a determination within 3-9 months. They make the determination based on a review of the ALJ hearing transcript and any written arguments submitted by either party as long as there is proof they were sent to both the ALJ and the other party. If the Board determines that further information is needed or that the hearing was biased, incomplete or unsatisfactory in any way, they may remand it to be reheard. Unless it is remanded, this is the final decision that will be made by IDES; any further appeals must be made to the Circuit Court. Appeals to Circuit Court are generally just remanded back to IDES for the issue to be heard again or the Circuit Court will find in line with the Board of review. The Circuit Court rarely overturns a Board Determination. Major Issues in Unemployment o This brings us back to the two basic questions to be answered for every unemployment claim: Who is the chargeable party: who will pay for benefits if the Claimant is eligible to collect? Is the Claimant eligible for benefits: will they collect unemployment? Chargeability: o In the state of Illinois there is only one chargeable employer who is liable for 100% of the benefits collected by the claimant, even if the Claimant has earned wages from multiple employers. o Illinois primarily uses the 30 day rule. The chargeable employer is generally the Employer who has most recently employed the claimant for a minimum of 30 days. If the Claimant has multiple employers, the most recent is literally the most recent in time or the last employer they worked for prior to physically filing the claim. For these purposes, a day is any period of time. If they work for 5 minutes or 15 hours, it is considered a day. The days do not need to be consecutive and the period reviewed for 30 days is usually between a year and half to two years. o Exceptions to the 30 day rule Requalifying Employer: In very rare circumstances, when a claimant has previously filed for unemployment and been denied, they become chargeable to a new employer when they requalify for benefits. To requalify, they must work for a new employer for four weeks and earn over their weekly benefit amount in each of those four weeks. Clearly, in this case a claimant could requalify for benefits and become chargeable to their new employer in less than 30 days.
•
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Continuing Employment: If an employer continues to employ a claimant in the exact same capacity throughout employment, the employer may be relieved of charges even if they are technically the most recent 30 day employer. • Please note: This exception is very narrowly applied! If the weekly earnings of the individual have fluctuated at all you may not find relief under this rule. It is suggested to be careful giving extra hours to an employee who informs you they have lost other employment because you may become chargeable for their benefits. If you increase the hours on a short term basis and then drop them down again, you have become the employer causing the underemployment and can be charged moving forward. Medical Separations/relocation fleeing domestic abuse/relocation with a spouse relocated for work or military service: in certain specific cases where the separation seems to be no fault of either party, the State may relieve the employer of charges even when they are the most recent 30 day employer.
Eligibility: o Separation Issue: All separations fall under one of three categories, Discharge, Voluntary Quit or Layoff Discharge • A discharge is disqualifying under IDES rules if it is shown that the discharge was for misconduct. • Misconduct is defined by IDES as an intentional and willing violation, of a known and reasonable company policy, about which the Claimant has been previously warned or which causes harm to the employer and has to do with their work. • The state will generally only look at the triggering event or final incident that immediately lead to the discharge to look for misconduct. • Factors of misconduct: o Intentional and willing violation: The claimant’s actions must be taken intentionally, things beyond their control such as a car accident or absence due to illness would not be disqualifying because the claimant did not intentionally choose to act. o Known and reasonable company policy: IDES is generally very picky about requiring that a specific written policy be identified to show that there was a known policy. Occasionally, the state will apply the “common sense” policy. If it can be shown that the Claimant would clearly have known through common sense that the action would be harmful to the employer, the State will accept that as a “policy”. Best practice is to provide a copy of the written policy signed by the claimant with your protest. o Previous warnings or harm: You must be able to show that the claimant was either previously warned for similar behavior or that the action harmed the employer. If possible you will want to submit any copies of prior written warnings for similar behavior or documentation showing harm caused.
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Has to do with their work: The discharge has to be for something they have done while at work or that has a very significant impact on their work. For example, discharging someone after finding out that they received a DUI while off the clock and the DUI in no way impacts their ability to fulfill their job duties, would not have to do with their work. • Suspensions: o An employee on an unpaid suspension in excess of 5 days is considered to have been discharged for unemployment purposes. If you receive a notice of claim on someone in this situation a protest should be filed on the potential reasons for discharge even if it has not yet occurred. As the state sees the separation as already having occurred, there will be no additional opportunities to protest after you officially separate. o An employee on a paid suspension no matter the length is still considered employed. Voluntary Quit • In order for a voluntary resignation to be disqualifying, the Claimant had to have resigned while work remained available and the resignation has to be for no reason attributable to the Employer. • The Two factors of a quit o Work remained available at the time of resignation: The Claimant cannot be aware of any immediate plan by the Employer to end the employment. If an employee is told they will be discharged and they are given the option to resign instead of being discharged, then the separation will be treated as a discharge. As work did not remain available IDES considered a resignation in lieu of discharge and views it as a discharge. However, if there is the possibility of discipline or discharge but no decision to discharge has been made or conveyed to the employee, then it is a resignation in anticipation of discharge and will still be treated as a resignation. It is a common practice in the educational arena to inform a teacher of non-renewal and then allow them to resign. This is just considered a layoff or a discharge not for misconduct because work did not remain available. o The resignation is for no reason attributable to the employer: the Claimant must be unable to provide a reason created by the Employer that necessitated their resignation. Examples of reasons for resignation that would be attributable to the Employer are a reduction in hours or o
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wages, a change of job duties or some kind of harassment unaddressed by the employer. It is required that the Claimant gives the Employer notice of the issue prior to resigning and gives them the opportunity to correct it. If the Claimant resigned without telling the Employer there was a problem they should be unsuccessful claiming resignation for a reason attributable to the Employer. Preserving a quit: If an employee resigns with a notice period and you do not allow them to work the notice period IDES considers the separation to be a discharge instead of a quit. In order to preserve the quit it is best to pay out the notice period if you do not wish for them to work the notice.
Layoff • Layoffs are not disqualifying. This would include non renewals of contracts, separations for lack of funds or lack of work. Other major eligibility issues Availability: In addition to other requirements, a claimant must be able to work, available for work and actively seeking work in order to collect unemployment. • Able: physically able to do work. • Available: not limiting the hours or days they are willing to accept work and physically available to be at the required location. • Actively seeking: IDES generally looks for a work search created by the Claimant showing they are making at least 3 contacts to potential employers a week. • This issue is generally only reviewed for very short periods of one to two weeks at a time. If you have a continuing availability issue with an employee, you will want to protest it on a weekly basis. Refusals of work: If the Claimant refuses any offer of additional work after a work stoppage or separation an additional protest should be filed. A Claimant should no longer be eligible if they refuse a valid offer of work without good reason. • IDES is requires a great deal of specificity in refusal protests in order to investigate and make a new determination based on this issue. o These protests should include: Who offered the work, How it was offered (phone, letter, in person), When the work was offered, What exactly was offered (job title and description), The start date, The rate of pay, and finally, The reason for refusal if one was given. • IDES may require a showing that the Claimant actually received the offer, so offers should be given in some fashion where you can prove receipt by the claimant. (Email with receipt, registered mail, conversation in front of witness, etc.)
o
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Disqualifying income: Any pay received in the form of wages, disability, workers compensation, social security, pension, holiday pay or vacation pay may be disqualifying. • Wages: In order for payment to be considered wages the claimant must be working and earning a wage. o Delayed payments for hours already worked are not considered wages because the individual is no longer working. Continued pay over summer for academic workers on 12 month pay is not disqualifying because it is considered pay for hours already worked. o A part time employee working and earning a wage that is less than their weekly benefit amount may still be eligible to collect partial or total benefits. See breakdown below: If the Claimant earns wages in an amount that is less than 50% of their weekly benefit amount, they collect the full benefit plus their wages. If the Claimant earns wages in an amount between 50% and 99% of their weekly benefit amount, their benefit will just be reduced dollar for dollar for everything earned over the 50% point. • Ex: If the Claimant’s weekly benefit amount is $200 and they work and earn $150, only the last $50 will be reduced from the benefit because that is dollar for dollar the amount earned over $100, which was the 50% mark. So, the Claimant will still collect $150 in unemployment. If the Claimant earns over their weekly benefit amount, they will not be eligible for any unemployment benefits. • Holiday Pay and vacation pay: These kinds of pay must be protested with the specific amount that has been, or is to be paid, and the time period it will cover. The amount received for holiday or vacation pay will be reduced dollar for dollar from the weekly benefit amount. • Pension payment: If both the Employer and the Claimant paid into the pension then 50% of the pension payment is considered disqualifying income. • The determination of whether or not Social Security payments, workers compensation payments and disability payments will be disqualifying is very complicated, so that information should always be noted in a protest to IDES. Reasonable Assurance: Employees of Academic institutions are disqualified from collecting benefits during break periods if they have reasonable assurance of returning to work at the conclusion of the break period.
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•
Reasonable assurance is the one area in which the presumption is in favor of the employer, the Claimant is presumed to have reasonable assurance unless they are told otherwise. Reasonable assurance can be shown in a written document, verbal assurance or a pattern or practice of returning for a number of years. The best practice is to use written letters of assurance and distribute them prior to the break period. Additionally, if you initially RIF an employee and later give notice of recall, they have reasonable assurance from that date forward and you should file a protest at that time.
Additional Issues/Tips: o Substitutes: It is a common misconception that due to the on call nature of their positions, substitutes cannot collect unemployment. There is nothing inherent in a temporary, on call or part time position that makes a claimant ineligible for unemployment. The state just sees the conclusion of any substitute placement as a layoff because work no longer remains available. As long as the claimant fulfills all other requirements, they will be eligible to collect between assignments. Ways to attack the substitute unemployment problem: • Protest Availability: If they are refusing work, are unreachable or are generally limiting their availability (limiting shifts, days, times or locations they will work) the protest that they are unavailable. Automated sub calling systems usually have the ability to create great reports to support these protests. • Protest Chargeability: If they file before they have worked 30 times for you make sure to protest that you should not be the chargeable employer. Additionally, many school districts consider if they wish to continue the use of a substitute if they file before working 30 times. At that point, the districts know they should not yet be chargeable and will not become so if they stop use of that substitute before hitting 30 times. • Limit number of substitutes in your district and work them as frequently as possible: This reduces the number of potential claimants and increases the likelihood that your substitutes will be ineligible due to wages from frequent work. o Temporary Employees/Coaches: It is also a misconception that coaches and other temporary employees are not eligible for unemployment. Just like with substitutes, these positions have no inherent characteristic that makes them ineligible and the end of the season or temporary term is just considered a layoff. The best way to deal with the coach or temporary employee problem is to attempt to fill the position from employees already employed full time in some other capacity. In these cases, when the season or term ends, they are still employed full time. There is really no other protection in these situations unless the employee works under 30 days.
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Fraud: There has recently been a huge jump in the number of fraudulent claim for unemployment in the state of Illinois. If you believe the individual you receive a claim for did not file, you should still appropriately protest their current status but also note that you believe it to be fraud. This triggers a deeper investigation into the individual filing. Probationary periods: It is a common misconception that if you have the employee in some kind of initial probationary period and you let them go they will not collect unemployment, unfortunately, this is incorrect. Once they work 30 times for you despite any kind of probation, you are chargeable. If you are having problems right away with a new employee, make sure to separate before they work 30 times. This should also be considered with any type of temporary or on call employee. The problem of generic poor performance: Employers frequently incorrectly say that they discharged someone for “poor performance”, which will not disqualify the claimant from collecting benefits. IDES has made a general determination that generic poor performance is not disqualifying because it is not intentional. Employers are not aware of this specific interpretation of the term poor performance and frequently make the mistake of saying a separation was due to poor performance, when it was really due to a specific violation or failure to follow instructions. Always make sure to provide specifics of the final violation and never use the term poor performance if you wish to fight the claim. The requirement of intent in proving misconduct for attendance violations: If a claimant’s final incident of absence is truly due to illness or some other unavoidable problem, then the final incident will be seen as unintentional and they will be allowed benefits. The best way to get around this problem is to show that they failed to follow attendance procedure, such as not calling into the correct person, not calling in with the required notice period or failing to provide a doctor’s note if required. You can then show that they made an intentional and willing choice not to follow the procedure, where there is no way to show intention in the absence itself. Documentation: Documentation is extremely important and can easily make or break your case. Always provide as much documentation as possible. For a discharge you want the policy and acknowledgement sheet, prior warnings for similar behavior as well as all documentation surrounding the final incident. For resignations you should submit any proof of the resignation such as a letter or email. For wage or other pay issues you will want to submit proof of payment. Testimony: As important as documentation is, first hand witness testimony can also make or break your case. Whenever possible use all first hand witnesses of the final incident in a hearing. Written statements by these individuals will not be admitted due to hearsay rules.
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Julia Katz Consultant, Human Resource Consulting Julia Michelle Katz Esq. has received extensive experience in the area of Employment Law and has received the CALI award for Trial Advocacy. Following graduation, she was admitted to the Illinois Bar Association and began working in the area of Unemployment Law. She excelled in the area of Unemployment Law and advanced to the position of Executive Vice President and head of the Reimbursing Employer department as well as participating in the Illinois Chamber of Commerce Employment Law Council Unemployment Insurance Committee. She was very successful in representing 180 school districts belonging to IASB (Illinois Association of School Boards), a collection of cities and municipalities belonging to IRMA (Intergovernmental Risk Management Agency), the Archdiocese of Chicago, Northwestern and DePaul Universities, the Chicago Cubs, the Chicago White Sox and additional reimbursing and taxable Employers. Julia is extremely excited to have recently made the move to the position of HR Consultant with Sikich where she continues to assist an array of clients on issues in all areas of Human Resources.
Service Areas Human Resource Consulting
Affiliations Illinois Bar Association, member
Education Bachelor’s Degree in Psychology and Philosophy, University of Kansas Juris Doctorate, Chicago-Kent College of Law
1415 W. Diehl Road Suite 400 Naperville, IL 60563 P: 630.566.8563 F: 630.849.2808 E: [email protected]
1415 W. Diehl Road, Suite 400 Naperville, IL 60563 (630) 566-8400 www.sikich.com
A Review of the Unemployment System and Major Unemployment Issues for Academic Employers •
•
Perspective on the significance of unemployment claims: o Academic employers are usually reimbursable employers who pay dollar for dollar the cost of all unemployment benefits collected against their account. A single lost claim can cost you over $15,000. o If unprepared to address the claim, the time and energy spent by your employees collecting information and participating in proceedings can be significant. How the unemployment system works: (the process) o The Claimant (former or current employee filing for benefits) files a claim online, in person, or over the phone. o The Illinois Department of Employment Security (IDES) processes the claim and makes a few initial determinations purely based on the Claimant’s employment history, such as their weekly benefit amount. This is the weekly amount they may be eligible to receive if they are found to be eligible for benefits. The determination is based on their income for roughly the last year and a half and will fall between $51-$569 a week. o IDES then begins the process of gathering information to answer two main questions: Is the Claimant eligible for benefits? If the Claimant is eligible, who is the chargeable employer liable for the benefits? o Initial phase: IDES sends a notice of claim to all former employers’s who have paid the claimant wages within roughly the last year and a half. The Employer has 10 days to provide information relevant to the claim in the form of a protest and supporting documentation. IDES does an initial phone interview with the Claimant and may choose to follow up with either party to ask for more specifics or supporting documentation. IDES then makes initial determinations on chargeability and eligibility issues. o First Determinations: IDES sends notices of all initial determinations to both parties and either party may appeal a determination within 30 days. If no appeal is filed, the decision is final. If either party appeals a determination, a phone hearing is scheduled with an Administrative Law Judge. Each party receives notice of a phone hearing date and time as well as the specific issue to be reviewed at the hearing. Both parties are able to participate in the hearing to present testimony and evidence. o ALJ Decision following the hearing: IDES sends the ALJ’s decision to each party and they are again given 30 days to appeal the decision, this time to the Board of Review. If no appeal is filed, the decision is final. This appeal is just a written appeal to the Board of Review where the party may address why they disagree with the ALJ’s determination; there are generally no additional hearing proceedings at this stage.
1
If an appeal to the ALJ decision is received, the non-appealing party is notified and also permitted to submit a written statement if they desire. o Board of Review Determination: The Board of Review usually makes a determination within 3-9 months. They make the determination based on a review of the ALJ hearing transcript and any written arguments submitted by either party as long as there is proof they were sent to both the ALJ and the other party. If the Board determines that further information is needed or that the hearing was biased, incomplete or unsatisfactory in any way, they may remand it to be reheard. Unless it is remanded, this is the final decision that will be made by IDES; any further appeals must be made to the Circuit Court. Appeals to Circuit Court are generally just remanded back to IDES for the issue to be heard again or the Circuit Court will find in line with the Board of review. The Circuit Court rarely overturns a Board Determination. Major Issues in Unemployment o This brings us back to the two basic questions to be answered for every unemployment claim: Who is the chargeable party: who will pay for benefits if the Claimant is eligible to collect? Is the Claimant eligible for benefits: will they collect unemployment? Chargeability: o In the state of Illinois there is only one chargeable employer who is liable for 100% of the benefits collected by the claimant, even if the Claimant has earned wages from multiple employers. o Illinois primarily uses the 30 day rule. The chargeable employer is generally the Employer who has most recently employed the claimant for a minimum of 30 days. If the Claimant has multiple employers, the most recent is literally the most recent in time or the last employer they worked for prior to physically filing the claim. For these purposes, a day is any period of time. If they work for 5 minutes or 15 hours, it is considered a day. The days do not need to be consecutive and the period reviewed for 30 days is usually between a year and half to two years. o Exceptions to the 30 day rule Requalifying Employer: In very rare circumstances, when a claimant has previously filed for unemployment and been denied, they become chargeable to a new employer when they requalify for benefits. To requalify, they must work for a new employer for four weeks and earn over their weekly benefit amount in each of those four weeks. Clearly, in this case a claimant could requalify for benefits and become chargeable to their new employer in less than 30 days.
•
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Continuing Employment: If an employer continues to employ a claimant in the exact same capacity throughout employment, the employer may be relieved of charges even if they are technically the most recent 30 day employer. • Please note: This exception is very narrowly applied! If the weekly earnings of the individual have fluctuated at all you may not find relief under this rule. It is suggested to be careful giving extra hours to an employee who informs you they have lost other employment because you may become chargeable for their benefits. If you increase the hours on a short term basis and then drop them down again, you have become the employer causing the underemployment and can be charged moving forward. Medical Separations/relocation fleeing domestic abuse/relocation with a spouse relocated for work or military service: in certain specific cases where the separation seems to be no fault of either party, the State may relieve the employer of charges even when they are the most recent 30 day employer.
Eligibility: o Separation Issue: All separations fall under one of three categories, Discharge, Voluntary Quit or Layoff Discharge • A discharge is disqualifying under IDES rules if it is shown that the discharge was for misconduct. • Misconduct is defined by IDES as an intentional and willing violation, of a known and reasonable company policy, about which the Claimant has been previously warned or which causes harm to the employer and has to do with their work. • The state will generally only look at the triggering event or final incident that immediately lead to the discharge to look for misconduct. • Factors of misconduct: o Intentional and willing violation: The claimant’s actions must be taken intentionally, things beyond their control such as a car accident or absence due to illness would not be disqualifying because the claimant did not intentionally choose to act. o Known and reasonable company policy: IDES is generally very picky about requiring that a specific written policy be identified to show that there was a known policy. Occasionally, the state will apply the “common sense” policy. If it can be shown that the Claimant would clearly have known through common sense that the action would be harmful to the employer, the State will accept that as a “policy”. Best practice is to provide a copy of the written policy signed by the claimant with your protest. o Previous warnings or harm: You must be able to show that the claimant was either previously warned for similar behavior or that the action harmed the employer. If possible you will want to submit any copies of prior written warnings for similar behavior or documentation showing harm caused.
3
Has to do with their work: The discharge has to be for something they have done while at work or that has a very significant impact on their work. For example, discharging someone after finding out that they received a DUI while off the clock and the DUI in no way impacts their ability to fulfill their job duties, would not have to do with their work. • Suspensions: o An employee on an unpaid suspension in excess of 5 days is considered to have been discharged for unemployment purposes. If you receive a notice of claim on someone in this situation a protest should be filed on the potential reasons for discharge even if it has not yet occurred. As the state sees the separation as already having occurred, there will be no additional opportunities to protest after you officially separate. o An employee on a paid suspension no matter the length is still considered employed. Voluntary Quit • In order for a voluntary resignation to be disqualifying, the Claimant had to have resigned while work remained available and the resignation has to be for no reason attributable to the Employer. • The Two factors of a quit o Work remained available at the time of resignation: The Claimant cannot be aware of any immediate plan by the Employer to end the employment. If an employee is told they will be discharged and they are given the option to resign instead of being discharged, then the separation will be treated as a discharge. As work did not remain available IDES considered a resignation in lieu of discharge and views it as a discharge. However, if there is the possibility of discipline or discharge but no decision to discharge has been made or conveyed to the employee, then it is a resignation in anticipation of discharge and will still be treated as a resignation. It is a common practice in the educational arena to inform a teacher of non-renewal and then allow them to resign. This is just considered a layoff or a discharge not for misconduct because work did not remain available. o The resignation is for no reason attributable to the employer: the Claimant must be unable to provide a reason created by the Employer that necessitated their resignation. Examples of reasons for resignation that would be attributable to the Employer are a reduction in hours or o
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wages, a change of job duties or some kind of harassment unaddressed by the employer. It is required that the Claimant gives the Employer notice of the issue prior to resigning and gives them the opportunity to correct it. If the Claimant resigned without telling the Employer there was a problem they should be unsuccessful claiming resignation for a reason attributable to the Employer. Preserving a quit: If an employee resigns with a notice period and you do not allow them to work the notice period IDES considers the separation to be a discharge instead of a quit. In order to preserve the quit it is best to pay out the notice period if you do not wish for them to work the notice.
Layoff • Layoffs are not disqualifying. This would include non renewals of contracts, separations for lack of funds or lack of work. Other major eligibility issues Availability: In addition to other requirements, a claimant must be able to work, available for work and actively seeking work in order to collect unemployment. • Able: physically able to do work. • Available: not limiting the hours or days they are willing to accept work and physically available to be at the required location. • Actively seeking: IDES generally looks for a work search created by the Claimant showing they are making at least 3 contacts to potential employers a week. • This issue is generally only reviewed for very short periods of one to two weeks at a time. If you have a continuing availability issue with an employee, you will want to protest it on a weekly basis. Refusals of work: If the Claimant refuses any offer of additional work after a work stoppage or separation an additional protest should be filed. A Claimant should no longer be eligible if they refuse a valid offer of work without good reason. • IDES is requires a great deal of specificity in refusal protests in order to investigate and make a new determination based on this issue. o These protests should include: Who offered the work, How it was offered (phone, letter, in person), When the work was offered, What exactly was offered (job title and description), The start date, The rate of pay, and finally, The reason for refusal if one was given. • IDES may require a showing that the Claimant actually received the offer, so offers should be given in some fashion where you can prove receipt by the claimant. (Email with receipt, registered mail, conversation in front of witness, etc.)
o
5
Disqualifying income: Any pay received in the form of wages, disability, workers compensation, social security, pension, holiday pay or vacation pay may be disqualifying. • Wages: In order for payment to be considered wages the claimant must be working and earning a wage. o Delayed payments for hours already worked are not considered wages because the individual is no longer working. Continued pay over summer for academic workers on 12 month pay is not disqualifying because it is considered pay for hours already worked. o A part time employee working and earning a wage that is less than their weekly benefit amount may still be eligible to collect partial or total benefits. See breakdown below: If the Claimant earns wages in an amount that is less than 50% of their weekly benefit amount, they collect the full benefit plus their wages. If the Claimant earns wages in an amount between 50% and 99% of their weekly benefit amount, their benefit will just be reduced dollar for dollar for everything earned over the 50% point. • Ex: If the Claimant’s weekly benefit amount is $200 and they work and earn $150, only the last $50 will be reduced from the benefit because that is dollar for dollar the amount earned over $100, which was the 50% mark. So, the Claimant will still collect $150 in unemployment. If the Claimant earns over their weekly benefit amount, they will not be eligible for any unemployment benefits. • Holiday Pay and vacation pay: These kinds of pay must be protested with the specific amount that has been, or is to be paid, and the time period it will cover. The amount received for holiday or vacation pay will be reduced dollar for dollar from the weekly benefit amount. • Pension payment: If both the Employer and the Claimant paid into the pension then 50% of the pension payment is considered disqualifying income. • The determination of whether or not Social Security payments, workers compensation payments and disability payments will be disqualifying is very complicated, so that information should always be noted in a protest to IDES. Reasonable Assurance: Employees of Academic institutions are disqualified from collecting benefits during break periods if they have reasonable assurance of returning to work at the conclusion of the break period.
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Reasonable assurance is the one area in which the presumption is in favor of the employer, the Claimant is presumed to have reasonable assurance unless they are told otherwise. Reasonable assurance can be shown in a written document, verbal assurance or a pattern or practice of returning for a number of years. The best practice is to use written letters of assurance and distribute them prior to the break period. Additionally, if you initially RIF an employee and later give notice of recall, they have reasonable assurance from that date forward and you should file a protest at that time.
Additional Issues/Tips: o Substitutes: It is a common misconception that due to the on call nature of their positions, substitutes cannot collect unemployment. There is nothing inherent in a temporary, on call or part time position that makes a claimant ineligible for unemployment. The state just sees the conclusion of any substitute placement as a layoff because work no longer remains available. As long as the claimant fulfills all other requirements, they will be eligible to collect between assignments. Ways to attack the substitute unemployment problem: • Protest Availability: If they are refusing work, are unreachable or are generally limiting their availability (limiting shifts, days, times or locations they will work) the protest that they are unavailable. Automated sub calling systems usually have the ability to create great reports to support these protests. • Protest Chargeability: If they file before they have worked 30 times for you make sure to protest that you should not be the chargeable employer. Additionally, many school districts consider if they wish to continue the use of a substitute if they file before working 30 times. At that point, the districts know they should not yet be chargeable and will not become so if they stop use of that substitute before hitting 30 times. • Limit number of substitutes in your district and work them as frequently as possible: This reduces the number of potential claimants and increases the likelihood that your substitutes will be ineligible due to wages from frequent work. o Temporary Employees/Coaches: It is also a misconception that coaches and other temporary employees are not eligible for unemployment. Just like with substitutes, these positions have no inherent characteristic that makes them ineligible and the end of the season or temporary term is just considered a layoff. The best way to deal with the coach or temporary employee problem is to attempt to fill the position from employees already employed full time in some other capacity. In these cases, when the season or term ends, they are still employed full time. There is really no other protection in these situations unless the employee works under 30 days.
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Fraud: There has recently been a huge jump in the number of fraudulent claim for unemployment in the state of Illinois. If you believe the individual you receive a claim for did not file, you should still appropriately protest their current status but also note that you believe it to be fraud. This triggers a deeper investigation into the individual filing. Probationary periods: It is a common misconception that if you have the employee in some kind of initial probationary period and you let them go they will not collect unemployment, unfortunately, this is incorrect. Once they work 30 times for you despite any kind of probation, you are chargeable. If you are having problems right away with a new employee, make sure to separate before they work 30 times. This should also be considered with any type of temporary or on call employee. The problem of generic poor performance: Employers frequently incorrectly say that they discharged someone for “poor performance”, which will not disqualify the claimant from collecting benefits. IDES has made a general determination that generic poor performance is not disqualifying because it is not intentional. Employers are not aware of this specific interpretation of the term poor performance and frequently make the mistake of saying a separation was due to poor performance, when it was really due to a specific violation or failure to follow instructions. Always make sure to provide specifics of the final violation and never use the term poor performance if you wish to fight the claim. The requirement of intent in proving misconduct for attendance violations: If a claimant’s final incident of absence is truly due to illness or some other unavoidable problem, then the final incident will be seen as unintentional and they will be allowed benefits. The best way to get around this problem is to show that they failed to follow attendance procedure, such as not calling into the correct person, not calling in with the required notice period or failing to provide a doctor’s note if required. You can then show that they made an intentional and willing choice not to follow the procedure, where there is no way to show intention in the absence itself. Documentation: Documentation is extremely important and can easily make or break your case. Always provide as much documentation as possible. For a discharge you want the policy and acknowledgement sheet, prior warnings for similar behavior as well as all documentation surrounding the final incident. For resignations you should submit any proof of the resignation such as a letter or email. For wage or other pay issues you will want to submit proof of payment. Testimony: As important as documentation is, first hand witness testimony can also make or break your case. Whenever possible use all first hand witnesses of the final incident in a hearing. Written statements by these individuals will not be admitted due to hearsay rules.
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Julia Katz Consultant, Human Resource Consulting Julia Michelle Katz Esq. has received extensive experience in the area of Employment Law and has received the CALI award for Trial Advocacy. Following graduation, she was admitted to the Illinois Bar Association and began working in the area of Unemployment Law. She excelled in the area of Unemployment Law and advanced to the position of Executive Vice President and head of the Reimbursing Employer department as well as participating in the Illinois Chamber of Commerce Employment Law Council Unemployment Insurance Committee. She was very successful in representing 180 school districts belonging to IASB (Illinois Association of School Boards), a collection of cities and municipalities belonging to IRMA (Intergovernmental Risk Management Agency), the Archdiocese of Chicago, Northwestern and DePaul Universities, the Chicago Cubs, the Chicago White Sox and additional reimbursing and taxable Employers. Julia is extremely excited to have recently made the move to the position of HR Consultant with Sikich where she continues to assist an array of clients on issues in all areas of Human Resources.
Service Areas Human Resource Consulting
Affiliations Illinois Bar Association, member
Education Bachelor’s Degree in Psychology and Philosophy, University of Kansas Juris Doctorate, Chicago-Kent College of Law
1415 W. Diehl Road Suite 400 Naperville, IL 60563 P: 630.566.8563 F: 630.849.2808 E: [email protected]
