|
Offices
in Chicago and Skokie, IL |
|
|
||
|
Helpful Information:
|
Some of What Every Claimant Should Know
About
Unemployment Insurance Benefits Act
To receive benefits while out of work you must look
for and be able to work. What if I'm a temporary employee
between assignments? What is an appeal before a
Hearings Referee? Advice to the claimant: Think
before you act; be prepared.
To receive benefits while out of work you must look
for and be able to work Merely being out of work or being unable to work does not entitle you to unemployment insurance benefits under the Illinois Unemployment Insurance Act (the Act). Generally, benefits are only payable to those who are unemployed, temporarily laid-off or who were forced to quit work through no fault of their own and who are available, able to and actively seeking work. Benefits will not be paid to those who do not want to work, who do not seek work, who are too sick to work, who have been discharged from work for misconduct or who have voluntarily left work through no fault of their employer. 1
You usually apply for unemployment insurance benefits
(benefits) at your Local Office of the Illinois Department of Employment
Security (IDES). That office decides
whether you (the "claimant") are entitled to benefits. That decision is made by the person handling
your claim, who is called the Claims Adjudicator (the "Adjudicator"). The Adjudicator decides whether benefits
should be paid. The Adjudicator makes an
investigation and makes a decision based on what you and your former employer
may say. You should be very careful the first time you speak to the Adjudicator about your case to tell the adjudicator all the important facts the first time, so no important facts are left out that have to be added later. The idea is to be consistent and not make contradictory statements. If you give inconsistent or contradictory statements or if you add important facts in later statements, when those statements are reviewed later they may lead the Adjudicator to believe that you have not been truthful and cause your claim to be denied. Thus, even if the employer never objects to your claim for benefits, or even if the employer agrees that you should be paid benefits, you can, just by what you yourself say, cause your own claim to be denied. Therefore, to be consistent think about what you will say before you say it. Get it right the first time.
The actual decision of the Local Office to allow or deny
benefits is made in a written document, called a "Determination." It is mailed to you and the employer. The Determination gives a brief explanation
of the reasons for the decision and says how and when an appeal from it may be
made to a Hearings Referee (Referee), who is an attorney authorized to hear and
decide appeals. Only the losing party
may file an appeal. If the losing party
fails to file an appeal as required by the Act, the Determination will become
final and it cannot be appealed later. The appeal must be filed within thirty (30) days of the
date the Local Office makes its Determination.
That date is called the "appeal due date;" it appears on the copy of the
Determination mailed to the losing party.
As an example, if you are allowed benefits, only the Determination sent
to your employer (if it protested the claim) will give an appeal due date. On the other-hand, if the Determination
denies benefits, the copy of the Determination sent to you, not the one sent to
your employer, will include an appeal due date.
If that date falls on a weekend or holiday, an appeal will be timely if
it is filed on the next business day.
The appeal may be filed in person, by mail or by facsimile sent to the
Local Office. The instructions are on
the Determination. If you mail the
appeal the date of mailing controls timeliness.
Though your appeal need only say you are appealing because the
Determination is wrong, you may also give your reasons why you feel the
Determination is wrong. Except in rare
cases, a Referee is without authority to hear an appeal that is filed
late. A late appeal will be
dismissed. You should be aware that the employer has to take an
additional step, besides filing the appeal on time, in order to validly
appeal. Not only must the employer file
its appeal by the appeal due date, as you must do, but the employer must also
file, within ten days of receiving notice of your claim for benefits, a protest
or objection to the claim for benefits.
Unless both a timely, sufficient protest and a timely appeal are filed
by the employer, the employer's appeal will be dismissed by the Referee. On the other-hand, your appeal will be valid
as long as it is filed on time. The
claimant has to meet only one requirement to appeal: File the appeal on or
before the appeal due date. The most common cases appealed to Referees (but far from
the only ones), involve: 1) Whether or not the claimant was discharged for
misconduct under Section 602A of the Act; 2) whether or not the claimant who
voluntarily left work was forced to leave by the employer under Section 601A of
the Act; and 3) whether or not the claimant is available, able and actively
seeking work under Section 500C of the Act.
What does "misconduct" under Section 602A of the Act
mean? It means a willful and deliberate
violation of an employer's known and reasonable rule or policy or of an earlier
warning to an employee that harms the employer.
A few examples include tardiness, absenteeism, intoxication, the use of
illegal drugs and insubordination. Thus,
besides being a violation of a known and reasonable rule, policy or a prior
warning, in order to be considered misconduct under Section 602A the employee's
conduct must be more than accidental or negligent. It must be intentional, willful, or
deliberate. However, certain conduct, if
proven, is considered misconduct whether or not a written rule or prior warning
forbids it: If the employee's conduct is generally considered improper, it will
be considered misconduct in every workplace.
Some examples are fighting, drunkenness and stealing. As mentioned already, since Section 602A requires an
intentional, willful or deliberate violation of a reasonable rule or prior
warning, not all conduct that leads to a discharge will disqualify you from
receiving benefits. This is especially
true where the employer has rules that require an employee's discharge based
solely on points given for certain infractions, such as for absences or
tardiness. That is sometimes referred to
as a "no-fault" policy or system. Under
that policy, the employee is discharged whenever the required points are
reached, regardless of why the points were given. If the claimant can show his or her points
were accumulated as a result of absences or tardiness caused by sickness,
accident or medical emergencies over which the claimant had no control, the
claimant may still be entitled to benefits under Section 602A of the Act. Although a claimant may be properly discharged
under a point system, unless the claimant acted deliberately, willfully, or
intentionally when accumulating those points his or her right to benefits may
not be affected. The issue under Section 601A of the Act is whether an
employee who voluntarily left his or her job was forced to leave by the
employer. Generally, benefits are not
available to an employee who voluntarily leaves a job when work is still
available. If an employee voluntarily
resigns, moves or relocates to another area the employee may not receive benefits. Examples of when you may be entitled to
benefits under Section 601A even if you leave voluntarily are: 1) The employer
moves to a new location that is very difficult or almost impossible for you to
get to; 2) the employer suddenly changes your shift or hours without giving you
a reasonable time to get needed child-care or to arrange transportation; or 3)
the employer significantly reduces your pay or hours. Section 601B of the Act provides some exceptions to
Section 601A. It exempts from disqualification
certain situations that would otherwise cause the employee to lose benefits
under Section 601A. The exemptions under
Section 601B(1) are the ones that are used most often. Under 601B(1), if an employee voluntarily
leaves work because he or she has been told to do so by a doctor either due to
the employee's own health or to care for the employee's sick child, spouse or
parent and, before leaving, the employee tells the employer that is why he or
she is leaving, the employee will not be disqualified from receiving
benefits. Although Section 601B(1) of
the Act does not specifically require it, it is a good idea for the employee to
give the employer a written statement from the doctor giving both the medical reasons
and the need for the employee to leave work.
You should also keep extra copies of that statement in case it is needed
as proof in the future. In most cases,
if a claimant qualifies for an exemption under any subpart of Section 601B of
the Act, any benefits paid to the claimant under that exemption after the
claimant is able to return to work are not chargeable to the employer. The majority of appeals under Section 500C of the Act deal
with whether or not, since being unemployed or for any period while being
unemployed or laid off from work, a claimant: 1) Was able to work; 2) made a
reasonable and realistic search for work; 3) has records to show he or she made
a reasonable and realistic search for work (called a work search); and 4) is
willing to accept suitable work. To be
eligible for benefits, the claimant, in all events, must be able to work. Even if Section 601B of the Act applies to
exempt a voluntary separation from disqualification under Section 601A, or even
if a discharged claimant is found not to be disqualified under Section 602A, a
claimant who is unable to work due to his or her health or for most any other
reason will not be eligible to receive benefits under Section 500C of the
Act. You have to keep in mind,
regardless of all else, that the Act
only allows benefits to people who are able to and who are seeking work. What if I'm a temporary employee between assignments? You must be actively looking for work to be eligible to
get or to continue to get benefits while you are unemployed. To comply with Section 500C of the Act, if
you are applying for benefits while between assignments when working for a
temporary help firm (an employer that assigns people to temporarily work at its
client's locations) you should regularly contact the employer for new
assignments. Otherwise, the employer may
say it could not reach you to give you a new assignment, or it had an
assignment but it did not hear from you, or you were not around to take an
assignment, so you were not actively looking for work. Even if the employer says it will call you,
you should regularly contact the employer so the employer will not be able to
say you failed to contact it. For that
reason, when you call or contact the employer you should keep a record of each
contact and the name of the person you spoke with. Keep contacting the employer even if you are
also contacting others for work. Also,
when you complete your work search for the Local Office do not forget to
include, in addition to all other contacts and information, your contacts with
the employer, as proof that you made those contacts. What is an appeal before a Hearings Referee? Every claimant should have an understanding of the
Referee's appeal hearing and how it is conducted. It is not an interview. It is not a conversation. It is not a conference. It is not a meeting. It is a hearing, or, in other words, it is
similar to a trial in a regular court.
It is presided over and conducted by a lawyer who is called a Hearings
Referee. The Referee acts as the judge.
Most hearings are by telephone. A
special conference telephone is used so everyone can hear what each person
says. It is an adversarial hearing, which means each side does whatever it
legitimately can to prove its case.
Usually, no punches are pulled. After a party files an appeal of a Determination, a
written notice setting the date and time for the appeal hearing is mailed to
the employer and the claimant by the IDES.
Continuances are rare and given only for special circumstances, such as
a death in the immediate family, a medical emergency, a job interview or a
failure to receive a timely notice of the hearing. Each side has an opportunity to present its
proof and contest the proof of the other side through sworn testimony and the
presentation of documents. The Referee is required to make his or her decision based
on reliable testimony and documents admitted into evidence at the hearing. The Referee will not consider facts,
testimony, or documents not presented or given at the time of the hearing. To do otherwise would prevent the other side
from contesting them or arguing against their admissibility. Therefore, the Referee cannot discuss the
facts of a case separately with either party before the hearing. To do so might give the other side an
advantage. Before the hearing, the
Referee may only discuss procedural questions with one side. Procedural questions include a request for a
continuance, a request to review the file, a request to appear in person or to
give the Referee the names and telephone numbers of witnesses to be called for
the hearing. You should not be upset if
the Referee refuses to discuss non-procedural matters with you when the other
side is not on the telephone. You should
understand that when the Referee says he or she cannot discuss certain matters
with you that the Referee is trying to keep the hearing as fair as
possible. Both sides, the claimant and the employer, are entitled to
have an attorney or other representative assist them in the hearing. A representative need not be an
attorney. Employers frequently use what
are called "Service Companies," companies that specialize in unemployment
matters, to assist them to respond to claims, to deal with the Local Office and
to handle appeals. A Service Company may
also contact the employer's witnesses, arrange for their testimony and help
present the employer's evidence and arguments to the Referee. The Referee will open the hearing by briefly explaining
how the proceedings will be conducted.
It is tape-recorded by the Referee; no one else may record the
hearing. What is said in the hearing is
strictly confidential and may only be used for that hearing and in appeals of
that hearing. Testimony given at the
hearing cannot be used in any other case, trial or proceeding and will not be
made available for use in any other case, trial or proceeding. After all the witnesses are sworn to tell the
truth, the Referee will ask each witness questions and then the witness may add
additional facts. Next, the other side,
if it wishes, may cross-examine the witness to test the witness' truthfulness
and memory. Cross-examination means
asking the witness questions, not making statements of your own. After cross-examination, the witness is given
a chance to explain his or her answers that were given while under
cross-examination. Each witness for each
side will testify in turn so each side has a chance to present its case. One problem claimants face that employers usually do not
have is that claimants usually have no witnesses to support their
position. That should not be surprising
since most factual witnesses are still working for the employer when the appeal
is heard. Witnesses who are still
working for the employer will not want to testify against their employer. They fear they will be fired. As a practical matter, it usually is not
done. Before you can count on the
testimony of any witness who is still working for the employer you should talk
to that person to determine whether he or she will actually testify against the
employer and, if so, what the witness will say.
You should not put on any witness who will not help your case. Additionally, although the Referee may in
certain cases issue a subpoena to compel a witness to testify, a witness who is
forced to testify against his or her own employer will usually not be
helpful. You should also be aware that
the one who causes the subpoena to be issued must also serve it on the witness.
The Referee will not serve it. During the initial or direct testimony of a witness the
other side may not interrupt or speak except to make an objection. Objections are mainly evidentiary. They usually only go to the nature of the question. As examples, objections may be made to
questions that require conclusions, that attempt to or do elicit hearsay or
that lack a proper foundation. You
cannot object to a question or an answer merely because you disagree with it if
it is otherwise proper. Even if a
witness says you made a particular statement that you know you did not make,
you may still not object to that statement.
An objection that goes only to whether the answer is true or false is
not proper. The rules of evidence used at regular trials determine,
under the court's direction, what testimony and records may be properly
presented during the trial. Though very
similar to the rules used in regular trials, less rigorous rules of evidence
and procedure apply before Referees. For
example, hearsay evidence is allowed at the hearing although not allowed at a regular
trial. However, though allowed, hearsay
is not treated the same as evidence that is not hearsay. Simply put, hearsay evidence is the statement
of one person about what another person said.
An affidavit, even if notarized, from a person who does not appear and
testify under oath at the hearing may be hearsay also. Direct, sworn testimony of a firsthand
witness who is available for cross-examination by the other side is the
strongest evidence. The witness who
testifies at the hearing does so under oath and is subject to
cross-examination. Cross-examination of a witness is a fundamental and
important right. The right to
cross-examine a witness is the right to ask a witness, after the completion of
his or her direct testimony, questions about what he or she just said. It can have several purposes. It may show that the witness lacks firsthand
knowledge about the facts, that the witness made contradictory statements at other
times or that the witness is not credible so his or her testimony should not be
believed. Cross-examination is not the
time for the examiner to make a statement, to offer contradictory facts or to
argue with the witness. (Contradictory
testimony or evidence should be presented when you put on your own case before
the Referee.) Although the
cross-examiner may not like the answers a witness may give, the examiner may
still not make a direct response to them during cross-examination. An unfavorable or unexpected answer to a
question you ask is the price you may pay for asking the question. Unless you know what the answer will be, you
must always consider whether to ask the question and risk getting a bad
answer. After all the testimony is presented at the hearing, each
side is given a chance to make a closing argument. Through a closing argument you may summarize
the facts already in evidence and argue how those facts support your
position. New facts may not be presented
in a closing argument. If you fail to
present relevant facts during the hearing, you may not present them for the
first time in your closing argument.
Closing arguments are not evidence, they are not required and they may
be waived. Advice to the claimant: Think before you act; be prepared. You should keep the following suggestions in mind at all
times. To avoid appearing untruthful,
you must always do what you promise to do.
Thus, if you told the Local Office you will bring in a medical statement
or any other item and you fail to do so, your truthfulness or credibility will
be affected. Furthermore, any papers or
records that you want to use at the hearing that are not already in the file
should be produced before the hearing to the Referee and the other side or they
cannot be used in the hearing. The Rules and the Notice for Hearing state that. Additionally, do not assume that any of the
documents you previously gave the employer that might help you in your claim
for benefits, such as your doctor's statement or hospital bill, will be
automatically included in submissions the employer makes to the Local Office or
the Referee. Because the proceeding is
adversarial, the employer usually will not submit anything that is helpful to
you. To make sure that the Local Office
or the Referee gets the documents you want them to have, you should submit them
yourself. Finally, you should not wait
until the telephone hearing has begun to first start thinking about the case,
what documents to use in the hearing or how and when to get them to the Referee
and the other side. Your statements
during the telephone hearing such as: "I have the bill in front of me;" "I'll
have to look for it;" "I gave my only copy of it to the employer;" "my doctor
has it;" "I lost it;" or, "I can get it if I had time," will not help you. In fact, they may hurt you. They show either that the documents do not
exist or, if they do exist, they would not help you. It is the duty of both parties to be prepared
to proceed when the hearing begins. You
cannot wait until the Referee calls to begin thinking about the case. If you
do, it will be too late.
1 The Illinois Department of Employment Security has
contracted with certain law firms to provide limited free legal services to
qualified claimants and small employers.
A claimant may contact one of these firms to see if he or she qualifies
for free legal services or, even if not qualified, to discuss their case with
an attorney. Claimants may call the
following numbers: In |
|
|
This material is provided for information only, and should not be construed to be legal advice. | ||
| Created by WizardCraft Copyright © 2004-2007 |
||