This past week, we trained a new client in handling unemployment compensation claims with the Illinois Department of Employment Security (“IDES”). The company terminated a new employee for excessive absenteeism and tardiness. After the former employee filed a claim for compensation, the company’s owner responded through a telephone interview and the claims adjudicator denied compensation to the former employee. The former employee appealed and we were asked to represent the company. What lessons were relearned?  

First, carefully complete the forms received from the IDES. Check the correct boxes, because a “theft” is different than “misconduct.” Draft a response with exhibits to address the claims adjudicator’s needs. Remember that every written and oral statement is a statement which the former employee’s lawyer will introduce during another legal case. Although the appeals hearings are on the telephone, they are tape recorded and lawyers can easily obtain transcripts of the hearings. Therefore, if a company tells an employee that he is terminated for punching a co-worker’s time card and later tells the IDES that he engaged in that and a number of other misbehaviors, the company has engaged in a “shifting defense.” With a shifting defense, a government agency or judge in a discrimination case may infer that none of the stated was the real reason for the termination and that the company terminated the employee for an unlawful reason.  

Second, do not ignore an appeal; or, if compensation was awarded, in most cases, the employer should appeal the decision. The administrative law judges conduct a de novo review of all of the facts. The process is free, except for fees to an attorney or to a company which represents companies before the IDES. Third, prepare for and participate in the hearing, understanding the judge’s role and pressures. The judge conducts a number of hearings each day and usually wants to have the hearings take no more than 30 minutes. The judge has no time for theatrics or lawyers playing games. Instead, the judge wants the facts presented in a specific way so that he or she can draft a two or three sentence decision as easily and as quickly as possible and move onto the next case. Fourth, understand the legal theory. For misconduct cases, judges want to know the actual misconduct, whether the employee knew that their conduct was not correct, whether the company warned the employee before termination, and whether the employee’s misconduct damaged the company. The judge does not need to know the entire background of the employee or facts relating to a discrimination or wrongful discharge case. Judges collect the information during the hearing in special ways, which may be unique to the judge conducting the hearing. Therefore, cooperate, but understand the uniqueness of the IDES’ procedures and how the claim for unemployment compensation relates to other, potential claims which may be brought by the former employee and the defenses to be employed by the company. Accordingly, use of attorneys in certain matters and the proper training of human resource professionals are necessary components of the human resource function.