At Osborne Employment Law, we have represented hundreds of individuals across Illinois in unemployment appeals hearings. The Illinois Unemployment Insurance Act, 820 ILCS 405/100, et seq., is the state law that governs unemployment benefits in Illinois. The Act is designed as a safety net when individuals unexpectedly lose they job. It is in place to prevent these people from falling into poverty while seeking new employment. Unemployment benefits are overseen by the Illinois Department of Employment Security (“IDES”).
The Unemployment Claims Process
The unemployment process begins with a newly unemployed individual filing an initial claim with IDES. The individual, or “claimant,” can either file the initial claim in-person at their local IDES office, or can file online. The claim will be assigned an adjudicator who will generally have a short telephone conversation with the claimant. The adjudicator will then forward the claim to the employer, who can choose to file a protest. If the employer files a protest, the adjudicator will perform a brief investigation, and then make a “Determination” whether the claimant is entitled to unemployment benefits. Unfortunately, we have found the Adjudicator often erroneously finds the employee is ineligible for benefits for committing misconduct, when in fact that is not the case.
If the claimant or employer disagrees with the adjudicator’s determination, they may appeal the decision to a “referee,” or administrative law judge. It is essential that any appeal is made within 30 days of the determination’s date of mailing. 56 Ill. Admin. Code § 27200.200(b). Failure to timely appeal will likely result in an inability to change the adjudicator’s determination. After the claimant appeals the determination, the Referee will conduct a phone hearing. Both parties can present evidence and witnesses supporting their case at the hearing. The Referee will then issue a decision, which must be based “on the preponderance of the credible, legally competent evidence in the record.” 56 Ill. Admin. Code § 2720.250. The losing party can then appeal to the Board of Review, and continue appealing through the Illinois court system.
Common Unemployment Appeals Disputes
The most common dispute in unemployment appeals is whether the employer terminated the claimant for “misconduct,” as defined by the Unemployment Insurance Act. Misconduct is defined as the deliberate and willful violation of a reasonable rule or policy of the employer, provided such violation harmed the employer or other employees, or it has been repeated by the individual despite a warning or other explicit instruction from the employer. 820 ILCS 405/602(A). There are eight additional specific types of misconduct:
- Falsification of an employment application, or any other documentation provided to the employer, to obtain employment through subterfuge;
- Failure to maintain licenses, registrations, and certifications reasonably required by the employer, or those that the individual is required to possess by law, to perform his or her regular job duties, unless the failure is not within the control of the individual;
- Knowing, repeated violation of the attendance policies of the employer that are in compliance with State and federal law following a written warning for an attendance violation…;
- Damaging the employer’s property through conduct that is grossly negligent;
- Refusal to obey an employer’s reasonable and lawful instruction…;
- Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer’s premises during working hours in violation of the employer’s policies;
- Reporting to work under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance…; and
- Grossly negligent conduct endangering the safety of the individual or co-workers.
Contact Us Today
Illinois Unemployment Appeals Attorney
If you have been denied unemployment benefits, contact an employment firm today. We have successfully represented hundreds of individuals in unemployment hearings and in front of the Board of Review, allowing them to receive their well-deserved benefits. Be advised there are strict time limitations in filing unemployment claims and appeals. Generally unemployment appeals must be filed within 30 days of the underlying determination or decision. Therefore, it is essential to contact an attorney as soon as possible.
Unemployment Appeals Frequently Asked Questions (FAQs)
Employees should be well-prepared for their phone hearing well-before it ever takes place. It is essential that claimants are aware of the issues at stake, and which facts are material to those issues. Once those are determined, you should know the material facts extremely well, and be able to communicate such facts to the Administrative Law Judge in a clear and concise manner. Administrative Law Judges typically do not appreciate when parties raise issues and facts that are not directly relevant to the case.
Moreover, the claimant should submit any favorable documents to the Hearing Referee well-before the hearing. It should be noted that in order to use the documents at the hearing, you must also send a copy of all exhibits to the company.
Finally, employees should do everything in their power to obtain a copy of the entire IDES file. In the event the employer submitted documentation to the Claim Adjudicator, these documents do not need to be served on Claimant to be considered as evidence. It is also a good idea to get a copy of your personnel file prior to the hearing to fully understand the potential evidence that could be used against you at the hearing.
I always advise employees to obtain representation for any type of unemployment appeal. Companies often have representatives. The phone hearing is conducted by an Administrative Law Judge who generally applies Illinois rules of evidence. This firm has successfully represented other attorneys in unemployment hearings. If attorneys can benefit from legal representation, surely non-attorneys can benefit as well. Employment attorneys have the ability to look at the case in an unbiased manner, and accordingly prepare for the hearing, conduct direct and cross examination, and make any necessary arguments and objections.
It is essential to obtain representation at an early stage of the unemployment appeal process. The absolute most important time to have counsel is for the IDES phone hearing. This is the Claimant’s only opportunity to submit necessary evidence and testimony into the record, timely object to the company’s evidence, and raise any necessary legal arguments. Individuals often reach out to us after the Hearing Referee has made their decision. While the Firm may still be able to assist (and has done so on numerous occasions), it is generally more difficult to change the Judge’s decision at the IDES Board of Review or through Administrative Review.
Please note that IDES provides free legal representation to qualified claimants. Regardless of who you hire, any competent representative should thoroughly prepare you for the hearing, obtain any necessary documentation (from both IDES and the employer), be prepared to conduct direct and cross examination of likely witnesses, and have an understanding of the material facts of your case.
In order to appeal any IDES decision (Determinations, UI Findings, Administrative Law Judge decisions), it must be appealed in a timely manner. Generally, the time limitation is 30 days. Many employees mistakenly believe they must appeal the decision within 30 days of receiving the IDES decision. This is incorrect. Rather, according to IDES regulations, the appeal must be filed within 30 days of the “date mailed,” which is typically contained on the top right-hand corner of the IDES document. It is essential that employees and executives take every step to ensure that the appeal is filed within the 30 day time limitation.
Moreover, appeal appeals to IDES should be filed by fax. This allows the employee to receive and maintain a fax confirmation of the near-instantaneous filing. The other option is to mail the appeal. However, in the event the mailing does not reach unemployment for any reason whatsoever, you will likely lose the appeal. Therefore, all appeals should be made by fax, and the worker should retain a copy of the fax confirmation sheet.
Phone hearings typically last 30 minutes to an hour, depending on the amount of witnesses, length of exhibits, and the factual circumstances of the employee’s termination or resignation.
If the Administrative Law Judge or the Board of Review finds in your favor, you will typically receive all owed unemployment benefits within a week of the decision. IDES will only pay you benefits for periods in which you were certifying for work. This is why it is essential to continue certifying for benefits every two weeks on your assigned day of the week, even if you are initially denied. In addition, after receiving a decision in your favor, you can continue certifying and receiving benefits so long as you have not exhausted your maximum benefits amount.