Written by attorney Agnes Jury

Illinois Unemployment Benefits Misconduct & Voluntary Leave Basics

Disqualificationsfrom UB


"Misconduct" is defined in Section 602 of the IUIA as the 1) deliberate and willful violation of 2) a reasonable rule or policy of the employing unit, 3) governing the individual's behavior in performance of his work, 4) provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.

820 ILCS 405/602.A.

Finding of misconduct can be premised on either a particular incident of a rule's violation that triggered the employee's discharge, or the employee's cumulative rules violation taken as a whole.

1) For the claimant's action to be "deliberate and wilfull," the rule that (s)he violated must be known.

2) Therule violatedmust be a reasonable rule or policy governing the employee's work performance. Rule is not "reasonable" unless it provides guidelines that are or should be known by employee.

The rule or policy be written or even articulated in circumstances where the behavior violates a policy which is self-evident such as sexual harassment. But proof of a policy is required in situations where an employee would not be aware that certain conduct is proscribed.

3) If an employee violates a rule that does not govern the behavior of the employeein performance of work, this is not misconduct even though the employer may feel the conduct is contrary to its interests.

4) The courts are split on the question of whether actualharm, as opposed to potential harm, must be shown. And are also divided on the question of whether the employer must present evidence on the harm/potential harm issue or whether the existence of either actual or potential harm can be presumed from the circumstances.

Types of Misconduct

Alcohol or drug use either on the job or such that the employee is impaired at work constitutes misconduct.

Insubordination is misconduct.

Poor work performance is not misconduct unless the employer shows that the claimant willfully performed badly.

Similarly mere negligence, even repetitively, or poor judgment is not misconduct.

Absence or tardiness is not misconduct if the claimant has a good reason for the attendance problem and either notifies the employer, or has a good reason for not doing so.

Felony/Theft is a special misconduct provision for claimants who are discharged because of the commission of a felony or theft in connection with work, for which the employer was in no way responsible.

Felony/Theft Misconduct

Section 602.B misconduct is special because it disqualifies a claimant not just until (s)he earns four times her wba (as is the case in simple"misconduct" disqualifications-602.A) but until she earns the full $1600/$440 base period earnings necessary to file a "valid" claim.

Section 602.B applies when an individual has admitted committing the crime (to IDES or in a written statement) or commission of the act has resulted in charges or a conviction by a court of competent jurisdiction.

Burden of Proof in Misconduct

As a general rule, the burden of proving misconduct is on the employer.

In practice, however, the burden of proof switches depending on who should fairly be asked to prove a point given the relative knowledge of the parties.

Voluntary Leave

A claimant is disqualified from receiving UI if 1) (s)he has left work voluntarily 2) without good cause 3) attributable to the employing unit until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount in each of four calendar weeks.

1) Leaving work voluntarily

The first issue in a voluntary leave case is whether the claimant left work or was discharged.

This is largely a question of intent, and where the record contains no evidence that the claimant intended to abandon her position, courts have held that the claimant was discharged.

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.

2) Good Cause

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.

Whether an employee had good cause for leaving the job depends upon an employee's unique personal circumstances and reasonableness of employee's actions.

Thus, an action by the employer that places an additional substantial burden on the claimant may be good cause to leave.

Employer relocation required claimant to commute an additional distance of 16 miles in each direction.

When an employer requires an employee to perform tasks that she is untrained and unqualified to perform competently, she has good cause to quit.

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.

If the assigned work jeopardizes the claimant's health, (s)he has good cause to leave.

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.

3) Attributable to employer

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.

employer's actions do not have to be unreasonable (ex; a unilateral and substantial reduction in hourly wage rate or other benefits constitutes good cause to leave work)

The employer's conduct can be one of several reasons for the claimant's leaving.

Claimant must makereasonable efforts(need not exhaust all avenues of redress) to resolve work related problems with the employer in order to establish good cause for voluntary leaving.

5 Exceptions to "Attributable to Employer"

A claimant is eligible if (s)he quits because a health problem prevents him/her from performing his/her work or (s)he is needed to care for spouse, child, or parent who is ill.

But the need for the claimant to stop work must be confirmed by advice from a licensed and practicing physician.

Also, the claimant must have "notified his employing unit of the reasons for his absence

Note, however, that to get UI the individual must be able and available for work. Therefore, if (s)he is unable to perform her old work, (s)he must be able to perform other work for which (s)he is trained and/or has experience and for which there is a market. And if (s)he must care for a family member, the caretaking responsibilities cannot prevent him/her from accepting all work., otherwise (s)he will be inelligbile .

A claimant is eligible if (s)he quits to accept other work and is either "not unemployed" in each of two weeks or earns twice his/her current weekly benefit amount.

A claimant is eligible if (s)he quits because of sexual harassment by another employee when the employer had knowledge. (Sexual harassment by a supervisory employee is not covered by this provision because any such circumstance would presumably give the claimant good cause for leaving attributable to the employer.)

A claimant is eligible if (s)he quits to avoid bumping another employee under the terms of a labor contact or established employer plan.

A claimant is eligible if (s)he quits after separation from first job, and the subsequent job turns out to be unsuitable.

Burden of Proof in Voluntary Leave

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.

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