Governor Rauner recently signed legislation that revised and expanded the definition of “deliberate and willful” misconduct under the Illinois Unemployment Insurance Act (820 ILCS 405/602).  Under the prior definition, the claimant (i.e. former employee) would be disqualified from receiving unemployment insurance benefits if the respondent (i.e. employer) established that the conduct resulting in termination was “deliberate and willful” (i.e.intentional) and amounted to misconduct. 

Under the new and expanded definition of misconduct, it no longer is just “intentional” conduct that renders a claimant ineligible for unemployment benefits.  Rather, a claimant may now be found ineligible for benefits if he/she engages in certain non-intentional conduct as well, which are identified in italics below.  The new law also delineates specific acts that constitute misconduct, which the prior definition had not done.  The new law provides that “misconduct” now includes:

  • 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, unless the individual can demonstrate that he or she has made a reasonable effort to remedy the reason or reasons for the violations or that the reason or reasons for the violations were out of the individual’s control;
  • Damaging the employer’s property through conduct that is grossly negligent;
  • Refusal to obey an employer’s reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training for the individual required to obey the instruction or the instruction would result in an unsafe act;
  • 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 used in an off-label manner in violation of the employer’s policies; and
  • Grossly negligent conduct endangering the safety of the individual or co-workers.

It remains to be seen how zealous the Illinois Department of Employment Security will be in enforcing the new definitions of misconduct, particularly those involving non-intentional conduct, as well as how strictly courts will interpret them.  In the meantime, employers with questions should contact Scott Cruz or their Franczek Radelet attorney for guidance.