So far, in 2016, there have been two legal developments that significantly affect unemployment benefits in Illinois. The Illinois Unemployment Insurance Act has long established that an individual is ineligible for unemployment benefits if he or she has been discharged for "misconduct" in connection with his or her work. 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."
However, in January 2016, the Act was amended to include eight specific categories of work-related circumstances that, notwithstanding the definition of "misconduct," constitute "misconduct" under the Act. The eight circumstances are: (1) falsification of an employment application, or any other documentation provided to the employer, to obtain employment through subterfuge; (2) failure to maintain licenses, registrations, certifications reasonably required by the employer or required by law for an employee to perform his or her regular job duties; (3) knowing, repeated violations of employer's attendance policies despite receiving a written warning; (4) damaging the employer's property through conduct that is grossly negligent; (5) insubordination; (6) consuming alcohol or illegal or non-prescribed drugs or impairing substances on the employer's premises during work hours in violation of employer's policies; (7) reporting to work under the influence of alcohol, illegal or non-prescribed drugs or impairing substances; and (8) grossly negligent conduct that endangers the safety of the individual or co-workers.
In addition the amendment of the Act, the Illinois Supreme Court, in Petrovic v. The Department of Employment Security et al., examined the judicially created "commonsense" exception to the general rule that "misconduct" requires a violation of an express rule or policy. The "commonsense" exception, which had support in numerous appellate court decisions, stands for the idea that "some acts of misconduct are so serious and so commonly accepted as wrong that employers need not have rules covering them." Where the "commonsense" exception applied, an employer did not have to present evidence of an express rule or policy that had been violated. In Petrovic, however, the Illinois Supreme Court rejected the "commonsense" exception except in two narrow situations: where the employee's conduct would be (1) illegal or (2) constitute a prima facie intentional tort. In short, where an employee's behavior, amongst other things, constitutes a crime, such as theft or assault, or civil rights violations, such as sexual harassment, or a prima facieintentional tort, such as battery, "it is fair to say that the employee knows his actions are likely to result in termination," and the employee is disqualified from receiving unemployment benefits due to "misconduct" regardless of whether the employer has an express rule or policy forbidding the employee's conduct. However, where the commonsense exception does not apply, the employer must substantiate the factual allegations in its "protest" with competent evidence in the record showing the existence of a rule or policy that is reasonable and that the employee was made aware of such rule or policy. In Petrovic, evidence supporting the employer's factual allegations were not introduced, leading, among other reasons, to the Court's decision that the employee was eligible to receive unemployment benefits.
In light of the amendments to the Illinois Unemployment Insurance Act and Petrovic, employers should continue to carefully document each termination and the reasons behind that termination. Additionally, employers who seek to protest a claim for unemployment benefits on the basis of an employee's willful or deliberate violation of an express rule or policy should be prepared to offer evidence substantiating such a violation and the violated rule or policy. Further, employers are advised to review their employee handbooks to make sure that the rules and policies included clearly address behavior for which the employer may want to terminate an employee. While, according to Petrovic, a rule or policy need not be written or formalized, formalizing and/or writing down such rules and policies may help employers demonstrate that the violated rules and policies exist and that a terminated employee was aware of those rules and policies. Finally, employers should think about issuing a written warning (including the rule or policy violated) to an employee who has engaged in unwanted conduct instead of immediately terminating that employee. A written warning may help to show that the employee was put on notice of the fact that his or her conduct was unacceptable and also help in showing that the employee's conduct falls under one or more of the circumstances constituting "misconduct" that have been added to the Illinois Unemployment Insurance Act.