Micah Legal Aid UI training 9-27-12

Report
Unemployment
Insurance
an overview
Unemployment Insurance
• Claims Process
• Filing Claim
• Appealing Adverse Decisions
• Post Benefit/ Miscellaneous Issues
Unemployment Claims Process
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•
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•
Claims Adjudicator
Reconsideration
Referee Hearing
Board of Review
Circuit Court
Appellate and Supreme Court
Claims Adjudicator
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Local office application- in person or online
Telephone interview (typically) to determine eligibility
Employer protest- must be filed within 10 days
Determination mailed out to parties- appeal must be received
within 30 days
Claims Adjudicator(cont.)
• Determining Eligibility
• Earnings:
Must have earned $1600 in base period
Must have earned $440 in calendar quarter other than
highest earning quarter
820 ILCS 405/500.E.
Earnings
Jan.-March
April-June
July-Sept.
Oct.-Dec.
Jan-March
April-June
Q1- $>440
or
Q2- $>440
or
Q3- $>440
or
Q4- $>440
Q5-only for
alternate
base period
calculation
Termination
/application
for benefits
BASE PERIOD- $>1600
Alternate Base Period- $> 1600
Examples
Jan.March
AprilJune
July-Sept.
Oct.-Dec.
Jan-March April-June
Q1- $400
Q2-$400
Q3-$400
Q4-$400
Q5-$400
April 1
apply for
benefits
Ineligible
based on
earnings
Q1-$1000
Q2- $1000 Q3- $400
Q4- $400
Q5- $500
April 1
apply for
benefits
Regular
Base
period
Q1- $400
Q2-$400
Q3- $400
Q4-$500
Q5-$500
April 1
apply for
benefits
Alternate
Base
period
Q1-$500
Q2-$0
Q3-$400
Q4-$400
Q5-$500
April 1
apply for
benefits
Q6-$1000
Reapply in
next Q
Claims Adjudicator(cont.)
• Determining Eligibility (cont.)
• Covered Employment
• List of exemptions at 820 ILCS 405/204-235.
• Must be Able to Work
• Physically able
• Have legal authorization
• Must be Available and Actively Seeking Work
• Reasonable efforts are sufficient
Galarza v. IDOL, 167 Ill. App. 3d 163, 520 N.E.2d 672 (2nd Dist. 1988)
• Full-time students are presumed to be unavailable
Moss v. Department of Employment Sec., 357 Ill. App. 3d 980, 830 N.E.2d 663 (1st
Dist. 2005)
• No Disqualifying Reason for Separation
• Misconduct
• Voluntary Leave
Certification
• Even if Claimant is Denied UI benefits, they must certify with
IDES every 2 weeks.
• Certification is telephonic or on-line
• Claimants may retroactively certify at local office
• Best Practice is to keep certifying throughout appeal process
Reconsideration
• Local office review
• Notice of decision
• Referral and Notice of Hearing
Referee Hearing
• Most important stage- only evidentiary hearing in the process
• Typically telephonic- unless good cause for in person
• Technical evidence rules do not apply
• Documents must be provided 24 hours in advance to both
referee and opposing party- unless they are already part of
the record
• Decisions mailed within 2-3 days
Referee Hearing(cont.)
• Misconduct
Employer goes first
Claimant can cross examine
Claimant testimony
Closing statements
• Voluntary Leave
Claimant goes first
Misconduct
• Definition: Deliberate and willful violation of a reasonable rule
or policy, governing behavior or work performance, which
harmed the employer/other employees or is repeated despite
a warning.
820 ILCS 405/602.A.
Misconduct(cont.)
• Reasonable Policy:
Need not be written, can be “common sense”
• Deliberate and Willful
Most success with this issue
Rule must be KNOWN by the claimant to be Deliberate
and Willful
• Repeated or Harmful
Harm virtually removed via case law
Misconduct (cont.)
• Deliberate/Willful
• Focus on conduct that caused discharge
• Does not have to be one “last act”
Katten, Muchin & Zavis v. IDES, 279 Ill. App. 3d 794, 665 N.E.2d 503 (1st Dist.
1996)
• Burden of Proof in on Employer
• Negligence does NOT count
Misconduct (cont.)
• Types of Conduct
• Alcohol or Drug Use – at work
• Insubordination- single flurry v. “kiss my grits”
• Poor Work Performance
• Negligence
• Absence or Tardiness –depends
• Self Defense
• Falling Asleep at Work- depends
Voluntary Leave
• Generally: Claimant is disqualified for leaving work voluntarily
without good cause attributable to the employer
• Burden of proof is generally on the claimant
• Threshold Question: Did Claimant Quit?
• Look at Claimant’s intent
• Resignation in lieu of termination – return to misconduct analysis
• Lost license needed for job- considered quitting
Horton v. Department of Employment Sec., 335 Ill. App. 3d 537, 781
N.E.2d 545 (1st Dist. 2002)
Voluntary Leave (cont.)
• Good Cause:
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.
Burke v. Bd. of Review, 132 Ill. App. 3d 1094, 477 N.E.2d 1351
Voluntary Leave (cont.)
• Claimant Quit
• Part 1: Attributable to Employer?
• Unilateral and substantial chance in duties/hours
• Reasonable fear of injury
• Unreasonable Mistreatment on the job
• Substantial Reduction in Wages
• Loss of Child Care
• Loss of Transportation
• Family Emergency
Voluntary Leave (cont.)
• Claimant Quit
• Part 2: Reasonable Attempt to Resolve
• Claimant must make a reasonable effort to resolve problem before
quitting
• WATCH OUT! If Claimant tolerates problem too long , it has been
“accepted” by the Claimant and she is Disqualified
Voluntary Leave (cont.)
• Good Cause Exceptions
• Unable to work for medical reasons (on advise of a licensed medical
doctor)
• Take another job (must work for at least 2 weeks)
• Move to a new home because spouse takes a new job
• Avoid bumping another employee
• Sexual Harassment on the job
• Accepting an “unsuitable” job after losing previous job
• Domestic Violence (requires notification to the employer)
Preparing for the Hearing
• Key Pieces of Advise to Clients
• Make sure all documents are sent to Referee and Employer
• Focus on Hard Facts and Specifics of Final Incident
• Listen to the Question Asked and Answer the Question Asked –
probably the most important piece of advise for claimants!
• Speak Loudly and Distinctly
• Do not interrupt
• Do not Bad Mouth Employer
• Listen to the Employer’s witness, and make objections to hearsay
Board of Review
• Last Stage of Administrative Process
• Appeal must be filed within 30 days
• Must request the transcript of the hearing within 15 days of
appeal
• Must pay the copy cost (.25 per page)
• Must file a written brief within 10 days of mailing the transcript
• Must certify the brief was served on the other party
Board of Review (cont.)
• Standard of Review is de novo
• Board can affirm, reverse, remand with or without instructions
• Board will not accept additional evidence unless the party
submitting can show it was not able to present the evidence
to the referee through no fault of its own, and for reasons out
of its control
• Board has 120 days to decide
• Decision mailed 2-3 months after appeal
Circuit Court- Administrative
Review Action
• ARA
• Must be filed within 35 days of the Board of Review decisionjurisdictional requirement
• Cook County cases are filed in Law Division
• Daley Center 8th floor
• Pro Se assistance is available on the 6th floor
• No filing fee
• Necessary Named Defendants:
• Director of IDES
• Board of Review
• Employer
Circuit Court- Administrative
Review Action (cont.)
• Standard of Review:
• Issues of Fact- Against the Manifest Weight of the Evidence
• 735 ILCS 5/3-110; Henderson v. IDES, 230 Ill. App. 3d 536, 595 N.E.2d
96 (1st Dist. 1992
• Issues of Law- de novo
• Barron v. Ward, 165 Ill. App. 3d 653, 517 N.E.2d 591, 596 (1st Dist.
1987)
• Mixed issues of Fact and Law- Clearly Erroneous
• Abbott Industries, Inc. v. Department of Employment Sec., --- N.E.2d --, 2011 WL 2517034 (2d Dist. June 20, 2011)
Appellate and Supreme Court
• Notice of Appeal from Circuit Court must be filed within 30
days of the final decision
• Appeals are rarely heard
• Opinions are rarely published
• Claimants rarely win
• Petition for Leave to Appeal from Appellate Court must be
filed within 35 days of the final decision
Post Benefits Issues
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Disqualifying Income
Overpayments
Retaliation
Collateral Estoppel
Privilege
Waiver
Disqualifying Income
Disqualifying income must be reported during Certification
Examples:
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•
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Wages
Back Pay Award
Retirement Income
Social Security
Overpayments
• Overpayments
• IDES can Recoup regardless of fault- i.e. BOR reverses Referee
results in Overpayment
• IDES can Recoup from current UI benefits and/or IL state income
tax refund
• IDES can recoup federal income tax refund for Fraud overpayments
• IDES waives all non-fraud overpayments after 5 years
Overpayments
• Fraud Overpayment
• IDES may sue or recoup anytime without the bar of any statute of
limitations
• penalizes the claimant by denying him/her six weeks of benefits
for the first offense and two additional weeks for each
subsequent offense
• limited to a total of 26 weeks
• After the penalty weeks, Claimant "receives" the benefits as 100%
benefit recoupment until balance of overpayment is repaid
Overpayments
• Non-Fraud
• Claimant not penalized prior to recoupment
• Recoupment rate limited to 25% of the claimant's weekly benefit
amount
• IDES can waive recoupment if it "would be against equity and good
conscience" to recoup – claimant must request a wavier of recoupment
Cerveny v. State, 123 Ill. App. 3d 836, 463 N.E.2d 452 (2nd Dist. 1984)
Other Issues
• Retaliation- prohibited by the Act; private rights of action
820 ILCS 405/2800(A)(7)
• Collateral Estoppel/Res Judicata – none
820 ILCS 405/1900(B)
• Privilege- information obtained is confidential and
inadmissible in court or proceeding other than under the Act
820 ILCS 405/1900(A)
• Waiver- Employees cannot waive the right to seek UI benefits
820 ILCS 405/1300
Take Away Thoughts
• The Referee Hearing is KEY- representation at this stage is the
most beneficial
• Micah Legal Clinic can refer clients directly to IWR at 312-347-8377
• Advise Clients to keep recertifying throughout the process
• Deadlines are STRICT! Remind clients to appeal on time.
Resources
• The Illinois Unemployment Insurance Act (820 ILCS 405/)
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2434&ChapAct=8
20%C2%A0ILCS%C2%A0405/&ChapterID=68&ChapterName=EMPLOY
MENT&ActName=Unemployment+Insurance+Act.
• The IDES Unemployment Insurance Handbook
http://www.ides.state.il.us/pdf/pubs/uilaw/handbook.pdf.
• Online Application:
https://benefits.ides.illinois.gov/File4UI/Benefits/profile/claimantIntent
ionsHomepageStartLanding.do
• Office Locator:
http://www.ides.illinois.gov/page.aspx?module=13&item=31

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