Similarly, termination of employment during an approved leave of absence where the employee tries to return to work is involuntary and attributable to the employer. When an employee is hired by a temporary staffing agency to perform work on a temporary basis, he has an affirmative duty to contact the temporary agency at the conclusion of the assignment for a subsequent placement; failure to do so may result in a finding that he has voluntarily left the employment.
See Chicago Transit Authority v. The burden of proof in a voluntary leave claim is generally on the claimant. But, as is the case in misconduct cases, it can vary depending on the circumstances.
Sometimes an employer will describe a separation as voluntary leaving, especially in cases of "no-call, no-show," because it is to their advantage to have the claim decided under A. The courts have generally treated the issue of whether it was a discharge or quit as one of fact, emphasizing which party initiated the separation. It is nearly always to the claimant's advantage to argue that he was discharged. Illinois courts have adopted the theory of "constructive voluntary leave," whereby the loss of employment is attributable to the claimant's own action or inaction and constitutes a voluntary leaving.
See Horton v. In addition, IDES has promulgated a rule acknowledging this doctrine. This interpretation contradicts the IUIA because, in fact, the claimant did not quit and the statute does not speak of constructively quitting. Rather, in each case the claimant was discharged for certain conduct and the proper issue should be whether the claimant's acts constitute "misconduct. Pearson v.
In any event, the licensing situation should turn on whether the claimant deliberately refused to do what was required to become licensed, or tried, in good faith , to obtain the license but, for example, could not pass the exam. The regulation acknowledges this.
Good cause to leave one's work is cause that results from circumstances that produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.
Burke v. Whether an employee had good cause for leaving the job depends upon an employee's unique personal circumstances and reasonableness of employee's actions. Hawkins v. Thus, an action by the employer that places an additional substantial burden on the claimant may be good cause to leave. Jaime v. When an employer requires an employee to perform tasks that she is untrained and unqualified to perform competently, she has good cause to quit.
Davis v. Reduction in pay may also constitute good cause for leaving employment unless claimant resigned several months after the pay reduction went into effect and claimant made no efforts to resolve the situation with employer. Henderson v. Reduction in hours, however, has been held not to constitute good cause, where the claimant could keep the job with reduced hours and file a claim for partial benefits.
Acevedo v. The regulations contain a list of examples to illustrate what constitutes "good cause. IDES has adopted a regulation governing "early retirement" or "employment buyout packages," under which an employee is deemed ineligible after accepting such an offer unless "1 the individual knows or reasonably believes that, within the proximate future, his employment will be terminated by the employer under terms and conditions substantially less favorable than the terms and conditions of the offer, or 2 the individual knows or reasonably believes that his employment will continue, in the proximate future, but under terms and conditions substantially less favorable than the terms and conditions of his employment immediately prior to the offer, or 3 the individual knows that a layoff will follow if a sufficient number of employees do not accept the offer of an early retirement or employment buyout package and the individual accepts the offer to avoid the layoff of another employee.
The regulation provides a non-exclusive list of examples of situations and whether they would fall within the rule. See also Childress v. A special and confused problem arises when a claimant leaves one job usually a part-time position after being laid off from another usually full-time job.
By the language in the statute, if a claimant quits any job absent good cause attributable to the employer or the application of one of the exceptions , he should be denied for the week in which he quit and all further weeks until he requalifies But in fact, if the circumstances of losing the full-time job are not otherwise disqualifying, the courts are split on whether the claimant should be affected in the receipt of benefits based on then leaving the part-time job.
Compare Rodgers v. Since the claimant's cause to leave work must be "attributable to the employ[er]," the inquiry focuses on the employer's conduct, not the employee's. And, whether the claimant's reason for leaving work constitutes "good cause attributable to the employer" is a question of fact. Grant, N. The regulations contain a list of examples of what constitutes cause "attributable to the employer" but not necessarily "good cause".
Note that the requirement that the good cause be attributable to the employing unit does not require that the employer's actions be unreasonable. For instance, a substantial unilateral change in employment may render a job unsuitable and prevent a disqualification based on voluntary leaving. In particular, a unilateral and substantial reduction in hourly wage rate or other benefits constitutes good cause to leave work.
Keystone Steel v. IDOL , 37 Ill. But dissatisfaction with unchanged wages does not constitute good cause. Minfield v. And reduction of hours generally does not constitute good cause. The employer's conduct can be one of several reasons for the claimant's leaving. But the claimant must make reasonable efforts to resolve work related problems with the employer in order to establish good cause for voluntary leaving.
Davis , N. The claimant need not exhaust all avenues of redress, however, and, in particular, need not exhaust a union grievance. Barron v. If the assigned work jeopardizes the claimant's health, he has good cause to leave.
But mere dissatisfaction with work conditions that cause the claimant added stress is not good cause if the employer has not changed the work conditions. To establish good cause based on ill health arising from the work, a claimant must a offer competent usually medical testimony that adequate health reasons existed to justify termination; b inform the employer of the health problem; and c accept any reasonable accommodation by the employer for other work or other work conditions that is not inimical to the claimant's health.
The Act provides seven exceptions to the requirement that good cause be attributable to the employing unit. The statute used to require that the claimant have "notified his employing unit of the reasons for his absence" to invoke the exception for illness or family illness.
While this provision did not explicitly require that the claimant take a note from the doctor to the employer, one court interpreted it to do so. F inik v. In , the Illinois legislature deleted the language from that section of the statute. See Ill. Of course, the "good cause" requirement of the IUIA has been interpreted to require an effort to resolve the issue with the employer when possible, a requirement that could create a duty at least to share the nature of the reason for leaving with the employer, even if the statute does not require the claimant to give documentation to the employer, in the event some accommodation could be made.
Note that the exceptions do not affect the requirement that the individual be able and available for work. And if he must care for a family member, the caretaking responsibilities cannot prevent him from accepting all work A claimant is eligible if he quits to accept other work and is either "not unemployed" in each of two weeks or earns twice his current weekly benefit amount.
See Woodliff v. Thompson v. See also Lester v. The concept is very much like good cause for leaving a job. Indeed, refusal issues can be thought of as involving work search concepts since both refusal of a job and failure to look for one indicate a lack of attachment to the workforce , and voluntary leave concepts since whether refusing or leaving a job is disqualifying often turns on whether the claimant had "good cause" for not doing that work or whether the work in question was "suitable".
Section says that "[i]n determining whether or not any work is suitable for an individual, consideration shall be given to the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience, and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence. The longer a claimant is out of work the more willing he must be to change jobs, travel farther and accept lower pay.
Doyle v. Whether a skilled worker must accept unskilled work turns on particular facts such as the length of the claimant's unemployment, the amount of reduction of wages and other benefits and the job market available to the claimant. Compare, Behling v. IDOL Ill. But the mere fact that the work offered is a demotion or that there is no chance of advancement does not render the job unsuitable. Perkins v. IDES , U. A claimant must not only accept, but also apply for suitable work.
Failure to apply for one job because of circumstances such as distance or transportation difficulties give the claimant good cause for rejecting that opportunity is not disqualifying. Section says that "benefits shall not be denied under this Act to any otherwise eligible individual for refusing to accept new work Three initial elements must all be met to cause ineligibility under Section : existence of work stoppage, existence of labor dispute, and proximate causation between labor dispute and work stoppage.
Central Foundry Division of G. Holland , 36 Ill. IDOL , 99 Ill. Work stoppage : A "work stoppage" exists where because of a labor dispute, the company's business operations are substantially curtailed. Golab v. A work stoppage includes not only a strike but a "slow down" by the workers which reduces production and therefore causes employees to be laid off or to have their work hours reduced.
Brown Shoe Co. Gordon , Ill. A work stoppage is not over until the employer's business operations return to substantially normal operations. Travis v. Grabiec , 52 Ill. Normal operations means not merely that the company maintains full production, but that it did so with the normal number of workers working normal hours.
Boone , N. Thus, the fact that a skeleton management workforce working overtime maintains full production does not mean there is no work stoppage. However, "[p]roduction levels do not have to return exactly to prestrike levels before an employer reaches 'substantially normal business operations. Associates v. In addition, "[a]n individual's total or partial unemployment resulting from any reduction in operations or reduction of force or layoff of employees by an employer made in the course of or in anticipation of collective bargaining negotiations between a labor organization and such employer, is not due to a stoppage of work which exits because of a labor dispute until the date of actual commencement of a strike or lockout.
Labor dispute : A labor dispute is "any controversy concerning wages, hours, working conditions or terms of employment.
Cummins , 6 Ill. Holland, 36 Ill. Grabiec , 20 Ill. Once contract negotiations begin, it is generally presumed that a labor dispute exists. Ross v. If a contract has expired and employees and employer have not agreed to a new contract, a "labor dispute" exists.
Golab , Ill. Neither reasonableness of demands nor merits of dispute are material to determining whether a "labor dispute" exists. A "labor dispute" does not include an individual's refusal to work because of his employer's failure to pay accrued earned wages within 10 working days from the date due, or to pay any other uncontested accrued obligation arising out of his employment within 10 days from the date due. Union v. IDOL , 96 Ill. A "labor dispute" includes lockouts as well as strikes unless certain statutory exceptions apply.
A "labor dispute" does not include "a lockout by an employer for any week during which 1 the employer refuses to meet under reasonable conditions with the recognized or certified collective bargaining representative of the locked out employees to discuss the issues giving rise to the lockout or 2 there is a final adjudication under the National Labor Relations Act that during the period of the lockout the employer has refused to bargain in good faith with the recognized or certified collective bargaining representative of the locked-out employees over issues giving rise to the lockout, or 3 the lockout violates the provisions of an existing collective bargaining agreement.
Causation : For Section to render a claimant ineligible, the claimant's unemployment must be caused by a labor dispute at the factory, establishment or other premises at which he is or was last employed. If work stoppage results from disagreement over the terms of a new contract, causal relation exists between labor dispute and work stoppage.
Causation is a factual issue, usually having to do with whether the labor dispute is at the claimant's "factory, establishment or premises. Thus, if claimants are laid off from one plant or company because of a drop in sales to, or orders from, another plant or company in which a strike is occurring, their unemployment is not causally connected to a labor dispute "at the factory, establishment or other premises at which [the claimant] is or was last employed.
If separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall Even if the three elements are met, a claimant is not ineligible if he shows both that he is not participating in, financing, or directly interested in the labor dispute, and that he does not or did not just before the work stoppage began belong to a grade or class of workers which are participating in, financing or directly interested in the dispute.
See , Local No. Cummins , 7 Ill. Bowling , 95 Ill. But failure to cross the picket line plus receipt of strike benefits does constitute "participation. A claimant is not necessarily financing a strike merely because her union pays into the same fund into which the striking union also pays even if the fund is used for strike benefits, so long as the claimant had no choice but to pay into the fund and the effect of the fund on the dispute is insignificant.
Outboard Marine and Mfg. Bowling , 85 Ill. But a presumption arises that the claimant is financing the strike if the payments are increased during the strike or the claimant's contributions to the fund are used for strike benefits. Nor are members of one union "directly interested in" the dispute if the pay or other work conditions are not at issue in their dispute.
Outboard Marine , 87 N. But if work conditions such as the rate of pay of the claimants will be affected by the resolution of the dispute, then the claimants are "directly interested" in the dispute. Local No. The fact that the striking union's contract has been used in the past as a model for the claimant's union does not make the claimants "directly interested" in the dispute so long as there is no assurance that the terms of the striking union's contract will be so used in the future.
General Motors Corp. Indeed even if the employer pays all workers the same wage increase in settling a dispute with some workers, the others do not thereby become directly interested in the dispute. Shell Oil Company v. The determination of whether employees are in the same "grade or class" of workers is determined by reference to the duties the groups perform and whether they are both covered by the same union contract or not.
See Brown Shoe Co. Thus, office workers who are members of one union covered by one contract are not in the same grade or class as production and maintenance workers in a different union with a different contract. And it does not matter that the different unions customarily negotiate together with the employer and have the resulting contracts embodied in the same document so long as each union is free independently to accept or reject the contract. Cummins, 7 Ill.
But production and maintenance workers are members of the same grade or class of union workers if either they are all in one union with one contract doing work related to the same manufacturing process even though they do somewhat different work, Brown Shoe Co.
Boone v. If a claimant is out of work due to a labor dispute, he generally cannot be ineligible for misconduct or voluntary leaving. Receipt of certain types of income disqualifies a claimant for unemployment insurance benefits or reduces the amount of the benefits.
IDES's regulations on disqualifying income are at 56 Ill. With two exceptions, it serves little purpose to parse the rules here since they involve definitions as to each type of pay, and a description of whether, when, how much of any such income as compared to a claimants' WBA disqualifies or reduces benefits and if it reduces, by how much , and whether you can aggregate.
These issues arise infrequently and it is easier to work through the regulations for each form of income when a particular case arises. The two types of issues that arise frequently enough to merit further discussion are social security and pension benefits. Illinois, like other states, must meet this requirement to be certified for exempting employers from the federal tax they would otherwise pay.
Illinois meets this requirement in Section of the Act. The entire amount of a pension is disqualifying if the employer paid all of the premiums or contributions, whereas one-half of such pensions is disqualifying if the employer paid some, but not all, of the premiums or contributions. Compare Section A 1 with Section A 2. See Benckos v. Cleary , 65 Ill. When a claimant receives benefits to which he is not entitled, the money can be recovered by suit or by recouping from benefits paid later.
IDES's recoupment regulations are at 56 Ill. Recoupment issues break down by whether the claimant received the overpayment innocently, or by virtue of fraud. While the FAC was discontinued beginning on December 12, , many states, including Illinois, continue to report activity related to the FAC supplement for purposes of appeals reversals and overpayment recoupment for the program.
When a claimant receives an overpayment because of a false statement or knowing failure to disclose a material fact, IDES may sue or recoup anytime without the bar of any statute of limitations. Fraud usually occurs when a claimant lies on one or more certification forms usually by failing to disclose that he returned to work IDES generally sues only in cases of fraud though nothing prevents suit in non-fraud cases, so never tell a claimant that IDES definitely does not sue absent fraud.
In addition, the U. A separate offense is committed in each week for which the claimant received benefits. The penalty is limited to a total of 26 weeks or two years since the date that the ineligibility began. After the penalty, however, the claimant then begins to "receive" the benefits only in the sense that each week of benefits is credited against the amount he owes IDES until the debt is completely repaid.
It is important, however, that although such a claimant does not "receive" benefits as most claimants understand that term during the penalty weeks or the recoupment weeks, he should continue to claim the benefits in any week he can so as to expunge the penalty weeks, repay IDES, and reach the point where he can "receive" benefits again.
For non-fraud overpayments 28 , there is a 5-year statute of limitations on suit or recoupment. But IDES sends people repayment agreements which arguably extend the limitations period to the ten year period for written contracts. Therefore, it is virtually never advisable to sign these agreements. B supra can only be reconsidered within 13 weeks after the close of the claimant's benefit year. If the reconsidered finding or determination occurs beyond these limitation periods, then IDES cannot recoup.
Weingart v. State , Ill. Also, suits on recoupment for non-fraud overpayments can occur pursuant to a claims adjudicator's reconsidered finding or determination or a referee's decision which modifies or sets aside a claims adjudication 29 ,or in the case of certain back-pay awards that would render someone who had been eligible at the time he collected unemployment retroactively ineligible.
Thus, a Board or a court decision that reverses an award of benefits cannot be the basis for recoupment. Be careful, however, since a Board remand to have a referee enter a reversal can do so.
Moreover, particularly during periods of extended benefits, a Board reversal can prevent payment of remaining weeks of benefits.
Lenckos , 95 Ill. Recoupment problems are often complicated because they can involve two separate decisions issued by IDES: a substantive decision finding that the claimant was overpaid e. If the substantive decision is not appealed in a timely manner, the claimant cannot collaterally attack it by appealing a later recoupment decision.
People ex rel. Bernardi v. Moran , Ill. Nor can a claimant challenge the recoupment decision e. Campbell v. The claimant will receive a written notice of appeal rights and waiver recoupment when you are deemed ineligible. IDES' procedural regulations are at 56 Ill.
You cannot properly litigate unemployment insurance claims without constant reference to these regulations. The claims adjudicator conducts an investigation of any claim on which there is a question raised by an employer's protest see Section V.
The investigation is done at a local UI office and claimants usually appear pro se. Prompt payment and adjudication of benefits : Benefits must be paid to eligible claimants in a timely fashion. All unemployment procedures are subject to the federal requirement that benefits be paid "when due", which means "as soon as administratively feasible.
Part , 20 C. Part ; California v. Java , U. Steinberg , U. The "when due" clause requires both that states pay claimants promptly after an award of benefits regardless of whether the employer appeals, Java , U. Antedation : Antedation is necessary for claimants who win appeals, but who then lose their benefits nonetheless because, while the appeal was pending, they stopped sending in bi-weekly certification forms. Claimants should be permitted to antedate both initial claims and bi-weekly certifications for a period of one year after the filing should have occurred.
The best practice, however, is to advise clients to file certifications during appeals. Employer's party status : In order to be a "party" which entitles the employer to appeal any adverse ruling , the employer must mail or hand deliver the protest within 10 calendar days of receipt of the form notice that the former employee filed a claim to the address indicated on the form notice. For computation of calendar days, see 56 Ill. An employer's protest must also sufficiently allege a basis for denying the claim.
If the employer's first protest is timely, but insufficient, however, the employer gets a second 10 days to try again. Any party adversely affected by the claims adjudicator's decision can request reconsideration or review of that determination. If the reconsidered determination does not change the result, the party's original request for reconsideration and review is treated as an appeal to the appeals division where claims are heard by referees.
The referee's hearing is the most important level of adjudication because it is usually the only hearing. From here, the claimant or employer has 30 days to appeal to the Board of Review. Referees must provide "fair hearings. This is a statutory due process requirement.
Among other things, this means the referee cannot "switch issues" from those identified on the notice of hearing. Camacho v. As of , IDES is required to provide, at its own expense, an interpreter for a party who needs one, to translate verbatim from that person's language to English and vice versa. A referee must provide not only a full and impartial hearing, Angelo v.
Hernandez v. Menneweather v. And the referee must consider uncontroverted evidence. Skirin v. Bowling , 86 Ill. Technical rules of evidence do not apply in referee's hearings.
But the referee should rely only on credible, legally competent evidence. A referee can give even hearsay its "natural probative weight" unless there is an objection. Jackson v. Bd of Review , Ill. And a referee should not credit hearsay over direct testimony.
Flex v. Telephone hearings : IDES regulations currently, provide that all hearings will be scheduled as telephone hearings. A party may only appear in-person upon request "for good cause shown". Thus, a claimant who wishes to appear in person should submit that request in writing to the Referee indicated on the Notice of Hearing. The denial of a party's right to appear in person at the hearing is subject to challenge on constitutional and statutory grounds.
Also, under Illinois case law, "where The regulations require that a party appearing by phone must provide copies of documents it intends to introduce at the hearing to both the referee and the opposing party before the date of the hearing.
Continuances : The regulations provide for very limited grounds for obtaining continuances and referees generally follow the regulations closely. A continuance is only allowed due to a conflict in the schedule of an attorney for a party if the party "cannot reasonably find a substitute counsel. This is the last stage of administrative review and the last opportunity to challenge findings of fact. The Board usually considers only the record from the referee's hearing and any written arguments, even though it has discretion to rehear the evidence.
But since the administrative record is not closed before the Board, parties may submit additional evidence provided they request it within 15 days of filing an appeal and show good cause as to why the evidence was not presented at the referee's hearing.
If a transcript or copy of the file is sought, the request to submit additional evidence must be filed within 10 days after the date the transcript or file is or made available for inspection.
Timeliness of board decisions : The Board must render its decision within days of the filing of the appeal or days if a party gets additional time to file written arguments or additional evidence.
If the Board fails to meet the or day deadline, the aggrieved party can request a right to sue letter and the Board must either issue the decision or a letter permitting an administrative review appeal within 14 days.
But unless a party does invoke the provision by requesting a right to sue letter, the time period is not mandatory. Stone v. The Board must supply a transcript of the referee's decision, if requested. The transcript must be requested within 15 days after the notice of appeal is filed. The Board has 35 days to supply the transcript after it is requested. However, the Board can charge the requesting party for the costs of reproduction. Scope of review : Most courts hold that the Board can make independent factual findings with only consideration of, but no special deference to, the referee's findings.
But as to credibility issues, one court has now held that "[t]he referee, as the only one taking testimony, [is] in the best position to judge witness credibility. These cases can be reconciled by the principle that, while the Board can reverse the referee's fact findings including even the referee's credibility judgments , when it does so it must consider the referee's fact findings. Gregory , N. The only way to know that the Board gave proper consideration to a referee's finding is by the Board's explanation as to why it reversed that finding.
Therefore, if the Board fails to explain why it reversed a referee's finding, a reviewing court can reconsider the referee's finding and uphold it, instead of the Board's. Adams , N. The Board "may remand the case, in whole or in part, to a referee or claims adjudicator, and, in such event, shall state the questions requiring further consideration and give such other instructions as may be necessary.
When the Board remands with instructions to the referee to take additional evidence, but also to incorporate the prior proceedings in the remanded hearing, the referee's conduct of a de novo hearing instead can violate the losing party's rights to a fair hearing and to due process. With regard to an appeal from a claims adjudicator's determination to a referee, Section of the IUIA requires that "[u]nless the claimant With regard to an appeal from the referee to the Board, Section of the IUIA says that "[t]he decision of the Referee shall be final, unless, within 30 calendar days after the date of mailing of such decision, further appeal to the Board of Review is initiated pursuant to Section These statutory periods for filing intra-agency appeals are "mandatory rather than Accordingly, if an appellant misses the filing date, he can rarely avoid dismissal of the appeal.
But "mandatory time limitations are not jurisdictional in the sense of subject matter jurisdiction, and therefore, such limitations may be subject to estoppel and waiver.
IDOL , 90 Ill. Moreover, pursuant to 56 Ill. See White v. Generally, the appeals periods begin with the date of mailing and thus any appeal filed later than 30 days after the mailing date is foreclosed. Indeed, the IUIA specifically says that "[w]henever the giving of notice is required by Sections , , , , and , it may be given and be completed by mailing the same the last known address of the person entitled thereto.
See also Thompson v. But, arguably, for appeals from claims adjudicator's determinations, the proper date for the beginning of the appeals period is the date the determination is actually received. The reason why the argument for receipt is colorable in the case of appeals from a claims adjudicator's determination is that the statute says that after 30 days, the claims adjudicator's "finding or determination shall be final as to all parties given notice thereof.
See Gutierrez v. Thus, for appeals from a claims adjudicator's determination, the statute arguably requires not just that "notice And, "[a]lthough mailing of a notification to a claimant may be some evidence that it was received by the claimant a few days thereafter, common knowledge of the capability of the postal service negates any conclusive presumption that it was so received. Also, where the employer received notification of adjudicator's determination of eligibility for unemployment benefits on date later than claimant, employer's day period for filing appeal begins to run on later date.
Lachenmeyer v. In contrast, for appeals from the referee to the Board, the statute says only that "[t]he decision of the Referee shall be final, unless, within 30 calendar days after the date of mailing of such decision, further appeal to the Board of Review is initiated pursuant to Section In fact, the argument may be extended to appeals to the Board, based on the decision in Angelo v.
But see cases in Referee's Hearing section holding that the requirements of due process are coextensive with those of the "fair hearing" clause. Even if a claimant is permitted to file after 30 days from mailing, however, the appellant must act diligently. Gutierrez v. Board of Review, Dept. A recent amendment to the IDES rules requires the Referee summarily to dismiss appeals of determinations that appear to be untimely: "Whenever it shall appear to the Referee that the appeal was not filed in a timely manner.
If this decision is timely appealed to the Board, the Board "shall immediately remand the matter to the Referee for a hearing on the question of the timeliness of the appeal. Generally, cases in which a claimant denies receipt of a determination since IDES must determine whether the claimant is telling the truth or not Whether the claimant received the determination or decision turns, in part, on whether the document was properly mailed to the claimant, since "mailing of the notice may be some evidence that it was received a few days later by the individual to whom it was mailed.
Jackson , N. In contrast, the date on the document itself is merely "rebuttable evidence that it was mailed on that date. Since the claimant's testimony that he did not receive the document rebuts the presumption that it was mailed on the date it bears, IDES then bears the burden of proving that the date stamped on the decision was the date of mailing. Kocourek v. Bowling , 96 Ill. And the timeliness of mailing must be shown not just by office practice alone, but by evidence that IDES followed the customary practice in the particular case.
Tax App. If IDES finds that the decision was sent on the date it bears and the claimant's testimony that he did not receive the document lacks credibility, a court must review that issue without itself hearing evidence or making fact findings.
See Standard of Review. Therefore, when the claimant offers evidence to a reviewing court that would support his claim that he did not receive the determination or decision, the reviewing court's only remedy is to remand for another hearing to consider the additional evidence Thus, all roads lead back to a factual decision by IDES which has an interest in discrediting claimants who contend that they did not receive a decision that triggers a time period.
Moreover, unless the claimant has a substantial chance to succeed not only on the timeliness issue, but also on the merits of his, spending time fighting timeliness questions is a waste of limited resources. The filing period for an ARA: An ARA must be filed in circuit court within 35 days of the Board's decision or of the Board's issuance of a right to sue letter, or the 14th day after a request for right to sue letter to which the Board does not respond.
Thus, the action must be filed within the 35 day time period, all the proper parties must be named. That means not only that you must file the action within that time, but that you must name all the proper parties see Necessary Parties and even that all the papers, including the summons and the affidavit , must be styled correctly For instance, an otherwise timely filed case might be dismissed because you failed to name all the defendants in the caption of the summons as required by Ill.
Central States Trucking Co. The binding nature of the filing period : "Unless review is sought of an administrative decision within the time and in the manner Thus, "the requirement that a complaint be filed within the day limit is [not just directory or even mandatory, but] jurisdictional.
Chicago Police Bd. Forest Preserve Dist. IDOT , Ill. Furniture Co. Moreover, in contrast to cases in which an appellant files an appeal within the administrative agency after the time has run see Timeliness of Appeals within IDES , the defense that an ARA complaint was filed after the expiration of the day period cannot be waived. Village of Oak Park , Ill. An ARA will not be dismissed if the clerk's office fails to issue the summons within the 35 days, so long as the clerk received the necessary documents in time to serve timely.
Lockett v. Thus, the best practice is to file the case before the 35th day and get date-stamped copies of all filed documents. The beginning of the filing period: The day period begins running from the date the Board mails the decision.
See also Nudell v. But pursuant to IDES's rules, mailing must be to counsel, not just the claimant, if the claimant has designated counsel to receive notice pursuant to 56 Ill.
The Board has no authority to reconsider its decisions, People ex rel. Olin Corp. IDOL , 95 Ill. Van Milligen v. Department of Employment Security , Ill. The ARA also requires that "all Accordingly, the employer should always be named as a defendant in the appeal See also Veazey v. Until recently, the failure to name a necessary party in an ARA complaint was almost always fatal because, before you could amend the complaint to join the unnamed party, the day period for filing would expire and then, the unnamed party could not be joined.
See Lockett v. Veazey , Ill. While our practice has always been to name the Director of IDES, in addition to the Board and other necessary parties, some cases hold that it is not necessary to do so. If the court determines that a person or party not named by the administrative agency as a party in its final order was a party of record to the proceedings, the court shall grant the plaintiff an additional 21 days to serve the unnamed party in the manner set forth in Section of this Act.
The court shall permit the newly served defendant to participate in the proceedings to the extent the interests of justice may require.
That provision is apparently intended to protect plaintiffs who inadvertently fail to name necessary parties. However, courts continued to construe the statute very strictly following a similar, narrower amendment in , and it therefore remains very important to name parties correctly when filing a complaint. Standard of review : A court generally reviews the Board's, not the referee's decision.
See Loveland Mgt. Lyon Metal Production Inc. A reviewing court may not conduct a new evidentiary hearing. Grant v. Rather, it must uphold the Board's factual findings unless they are contrary to the manifest weight of the evidence. Even as to pure questions of fact, however, "[w]here a conclusion opposite to the agency's is 'clearly evident' from the evidence, a court must overturn the agency's factual finding.
A reviewing court is "not bound by the Board's determinations of questions of law. Barron held that "the legal effect of undisputed facts" is a question of law, so that whether, under a given set of facts, claimant had "good cause" for leaving was reviewed de novo. However, the Illinois Supreme Court has, in recent years, developed an "intermediate" standard of review for "mixed questions of law and fact," meaning questions "'involv[ing] an examination of the legal effect of a given set of facts.
Under this standard, the reviewing court determines whether a decision is "clearly erroneous," meaning that it leaves the court with a "'definite and firm conviction that a mistake has been committed. United States Gypsum Co. While the Illinois Appellate Court, as recently as , continued to consider the question "[w]hether an employee's conduct amounted to misconduct under the Act [to be] a question of law," Czajka v.
See Sudzus v. The standard is likely to be applied to voluntary leave cases as well, where the determination is whether a given set of facts gave rise to "good cause," for example.
To appeal from the circuit court, a notice of appeal must be filed in circuit court no later than 30 days from Circuit Court's decision after the entry of a final judgment from the Circuit Court or entry of an order disposing of the last pending post-judgment motion.. While courts were once split over whether IDES's findings in a UI case could bar suits for wrongful discharge, under the doctrines of res judicata or collateral estoppel, the General Assembly in made clear that they cannot:.
An IDES decision that an employee voluntarily left his employment does not bar a subsequent contract action for breach of employment through res judicata or collateral estoppel. Kennedy v. Four Boys Labor Service , Ill. Generally, information obtained from any claimant or employer under the administration of the Act is confidential. However, there are certain statutory exceptions to this rule. For example, the claimant may be supplied with such information to the extent necessary to properly present his claim for benefits.
Also, the employer may be supplied with such information to the extent necessary to enable the employer to discharge its obligations under the Act. IDES may furnish such information in its discretion to certain state or federal public officers or agents. H-Q ; 42 U. Under recent amendments, IDES must disclose certain information to assist in law enforcement, such as information to assist in locating delinquent child support obligors, subjects of arrest warrants, felony victims and witnesses, and people required to register as sex offenders.
The discretion to disclose information belongs solely to the director of IDES and is not subject to release or waiver by individual or employing unit. Joslyn Corp. However, the privilege of confidentiality may be waived by the claimant over the objection of IDES by claimant's serving IDES with subpoena duces tecum for production of records in a wrongful discharge action, given the limited scope of the subpoena and lack of objection by employer.
Howard v. Forbes , Ill. There are also situations where a federal interest may trump the confidentiality provision of the IUIA. See EEOC v. IDES , F. Wilson , F. Also, in personal injury actions, plaintiffs cannot invoke the confidentiality provision to prevent disclosure of unemployment compensation and at the same time make a claim for lost earnings during that same period. McMahon v. Richard Gorazd, Inc. The question may arise as to what constitutes privileged communications or information.
Written statements made by employer concerning claimant's alleged misuse of employee discount privilege that was transmitted to the Department of Labor, together with security manager's written statement concerning same incident that was transmitted to supervisor were privileged and precluded claimant from recovering in a libel action. Harrison v. Colvett v. The cloak of the statutory privilege of confidentiality embraces all evidence concerning whether an individual is or is not receiving unemployment benefits, including information provided by the claimant or employing unit.
Hinojosa v. No person shall be denied unemployment benefits solely on the basis of pregnancy or termination of pregnancy. This provision once was construed to invalidate a state's practice of denying benefits to women who voluntarily left work because they were pregnant even if claimants who left for other health-related problems were subject to disqualification. Porcher , F.
Brown, however, was overruled by the U. Supreme Court in Wimberly v. Thus, if a state pays benefits to others who leave because of a health condition as Illinois does under some circumstances, see Exceptions to the Attribution Requirement , it cannot deny otherwise similar claims by pregnant woman.
Code Part , Subpart B. Note: IDES' manuals can be cited as authority. Crocker v. Anyone can submit a decision for inclusion in the Digest. To be considered for publication in the Digest, the decision must meet one or more of the criteria published in 56 Ill. Income taxes went up in January , precisely when Illinois started to diverge from most other states that saw steady improvement in their unemployment rates.
The agency declined to change its methodology. The discrepancy may be because some people are holding down two or more jobs, increasing employment in the payroll survey without reducing the unemployment rate. Or it could be a quirk in survey methodology. Manufacturing has been a double whammy for Illinois. The state not only has less of the booming auto industry than the rest of the Midwest, but it also has a heavier concentration in earthmoving and other heavy equipment, led by Peoria-based Caterpillar Inc.
Despite claims that Illinois employers are freaked out by higher taxes, public-sector job losses account for a significant portion of the unemployment rate. Six of the nine occupations in Illinois losing the most jobs in were teachers and other government workers, according to Economic Modeling Specialists International , a labor market data analysis firm based in Moscow, Idaho.
Since November , when the Illinois unemployment rate was 9. A spokesman for the Illinois Department of Employment Security says the high rate reflects the woes of the entire Midwest. Yet at 8. Many firms have turned to temporary workers. By , there were 50 percent more temp workers in Illinois than in Original article here.
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