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"On 9/24/2019 an appeal has been filed to the Referee by the reconsideration unit of the agency."
Does that mean it's being reconsidered internally or does that mean the reconsideration unit of
the UI agency received a filed appeal?
The ALJ (Administrative Law Judge) is also called a Referee. So it looks like the reconsideration unit did not change the decision, and sent it on the the hearing unit to be scheduled for a hearing.
"IDES's practice is that when a party files an appeal, the claims adjudicator's decision is first reconsidered in the local office. 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."
If an employer uses poor job performance for a reason to deny benefits, how could they prove it and how can claimants defend themselves?
In many states the employer would have to show that the poor performance was the result of misconduct. The best way to prove it would be to have records that showed the employee was capable of performing better, that the employee had been warned that their performance had to improve, and the employee still failed to improve.
The best defense for most employees is to keep copies of anything that might support their side. Also very important is for them to remember that the employer has the burden of proof, and make the employer prove it -- with evidence. Many times the employer can't prove it, either from lack of evidence, or because they don't bother to prepare for the hearing well. Employees who jump in too soon trying to defend themselves often do so in a way that harms their case. It is generally best to gather all the evidence you can (without contacting the employer) and then wait - say nothing - and if benefits aren't awarded in the first instance, to deal with it on appeal.
"¶ 25 Section 602(A) of the Act provides that an individual is ineligible for unemployment
benefits if she has been discharged for “misconduct” in connection with her work. 820 ILCS
405/602(A) (West 2012). The Act defines misconduct as:
“the deliberate and willful violation of a reasonable rule or policy of the employing
unit, governing the individual’s behavior in performance of his work, 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.”
Id.
¶ 26 An employee’s actions thus constitute misconduct under the Act only if the evidence in the
record satisfies three requirements: (1) a deliberate and willful violation (2) of a reasonable
rule or policy of the employer governing the individual’s behavior in the performance of her
work that (3) either (a) harmed the employer or a fellow employee or (b) was repeated despite
a warning or explicit instruction from the employer.Unless all three requirements are
established by competent evidence in the record, the Board’s decision to deny unemployment
benefits on this basis should be reversed as clearly erroneous. See Woods v. Illinois
Department of Employment Security, 2012 IL App (1st) 101639, ¶ 19. "
The decision further explains the willful violation part:
"A. Deliberate and Willful Violation of a Reasonable Rule or Policy
¶ 30 Section 602(A) expressly limits misconduct to a deliberate and willful violation of a
reasonable rule or policy of the employer. 820 ILCS 405/602(A) (West 2012). “Willful
conduct is a conscious act made in violation of company rules, when the employee knows it is
against the rules.” Wrobel v. Department of Employment Security, 344 Ill. App. 3d 533, 538
(2003) (citing Lachenmyer v. Didrickson, 263 Ill. App. 3d 382, 389 (1994) (“[w]ilful behavior
stems from employee awareness of a company rule that is disregarded by the employee”)). The
“deliberate and willful” language “reflects the General Assembly’s intent that only those who
intentionally act contrary to their employers’ rules should be disqualified on the basis of
misconduct, while those who have been discharged because of their inadvertent or negligent
acts, or their incapacity or inability to perform their assigned tasks, should receive benefits.”
Abbott Industries, Inc., 2011 IL App (2d) 100610, ¶ 19.
¶ 31 In light of the purpose of the misconduct disqualification, the requirement that a rule
violation be “deliberate and willful” necessarily requires evidence that the employee was
aware that her conduct was prohibited. While a rule or policy need not be written or formalized
(Caterpillar, Inc. v. Department of Employment Security, 313 Ill. App. 3d 645, 654 (2000)), it
must have been clearly expressed to the employee in order to place the employee on notice that
she could be fired for violating it. See Hoffmann v. Lyon Metal Products, Inc., 217 Ill. App. 3d
490, 498-99 (1991); Farmers State Bank of McNabb v. Department of Employment Security,
216 Ill. App. 3d 633, 637-38 (1991); Adams, 206 Ill. App. 3d at 726."
I just spoke to an UI attorney who seems hung up on the fact that there could have been a similar policy in place before the new policy, even though I told him that I didn't know about any policy like this and that in training we were told to do the complete opposite. He was a bit of a difficult person. He is going to let me know if they will represent me or not.
This is great information, thank you again. I definitely did not know about it nor did I willingly
violate any policy. Nothing was ever told to me, no notification that I was doing anything
against policy.
This is all so stressful. I know that big corporations have depts who only do this stuff, just so they
don't have to pay UI. I am sure there are people who don't show up or give up which is why they
keep pursuing it.
Then it means the reconsideration unit did not change the decision, but sent it off to the appeals office to be scheduled for a hearing.
Once you get the notice that the hearing is scheduled, you will be able to get a copy of the file.
So my hearing is scheduled for 10/9, so next Wednesday.
I have read the Illinois "Preparing for a Hearing" document but it doesn't tell me how
to get a copy of the file including the appeal from my employer.
Do I just call to request the file? or go to the UI office?
Well I had my hearing this morning. I have no idea if it went well or not since I haven't been through one of these before. The judge did ask if I had been warned before being terminated and my employer did say no. I also explained my reason for what happened and she did clarify if what I was saying was true and my employer did say yes. I hope those two things show that I did not willfully violate policy. Especially after not being warned.
I did have an attorney there. Illinois dept of UI will provide them for free so I contacted them and they said they felt I had a valid claim. I hope between the attorney being there and my boss saying that they did not warn me is enough to keep my unemployment. It would be a huge hardship to lose that right now.
So my hearing is scheduled for 10/9, so next Wednesday.
I have read the Illinois "Preparing for a Hearing" document but it doesn't tell me how
to get a copy of the file including the appeal from my employer.
Do I just call to request the file? or go to the UI office?
I am sorry I missed this post.
But in case any one else reads this later -- I posted the info further up the thread.
You would fill this out AFTER you have received your notice of hearing. It says you can take it to the local office or mail / fax it to Chicago. I did both. I faxed a copy to Chicago, but was impatient, so I also took a copy to my local office. The local office gave me a printed copy of my file. I received a copy of the file from Chicago several days later. That copy included things that the copy at my local office did not include.
When you get a copy of the file, you will get to see what the employer submitted in the way of statements / evidence.
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Illinois Supreme Court)
