This article is about a somewhat unusual unemployment insurance case that has a very happy ending as far as Illinois employers are concerned.

Many times clients call me and tell me that their employees are no longer “employable” for a wide variety of reasons (for example, the employer’s insurance company will no longer cover the employee because the employee has had too many accidents, or because of the employee’s failure to keep up his insurance or other qualifications enabling him to work for that Illinois employer).

A recent case, Volpert v. Illinois Department of Employment Security (decided June 4, 2012 by the Fifth District Appellate Court of Illinois, No. 5-11-0381), gives hope that sometimes employers can win these very tricky unemployment insurance cases.

The underlying legal issue is usually whether the employer can prove that the employee (due to the employee’s failure to keep up his/her license or employability) has actually “voluntarily quit,” per Section 601A of the Illinois Unemployment Insurance Act, or that the employee is no longer “able and available” for work under Section 500C of the Illinois Unemployment Insurance Act.

In Volpert v. IDES , Norman Volpert (the ex-employee) was fired in August 2010 by the Illinois employer (Hydro Services) because Volpert failed to maintain his Missouri operator certification as required by the Missouri Department of Natural Resources.

IDES HEARING: Hydro Services testified at the IDES Hearing that it always allowed its employees to take time off to attend training and had always paid for the expense of training.

The employer emphasized to the IDES that it is the responsibility of the individual operator (i.e., Volpert) to actually avail himself of the necessary training and to take any exams required to maintain certification of the Missouri operator’s license. Hydro Services could not have continued Volpert’s employment without this recertified license because there were no other employment opportunities for him at the company.

Volpert testified at the IDES Hearing that a Missouri operator certification was an absolute requirement for his continued employment with his Illinois employer, Hydro Services. Volpert also admitted at the Hearing that his Missouri operator certification expired in 2007. Volpert tried to excuse his failure to have his Missouri operator certification recertified by saying he had received notices from the Missouri Department of Natural Resources and put these notices on the desk of his boss (but his boss never scheduled Volpert’s training).

The employer’s legal position was that it was Volpert’s responsibility to obtain the necessary training and not the boss’s responsibility. The IDES agreed.

Happily for the employer, the IDES found that when an occupational license (which is a tool of an individual’s trade) is within the individual’s control to obtain and maintain and the individual fails to do so, it is a voluntary leaving by the employee (i.e., Volpert) rather than a discharge by the employer.

The IDES hearing officer found that Volpert voluntarily left his job under Section 601A and therefore Volpert was ineligible for unemployment insurance benefits. Volpert had voluntarily quit!

CLAIMANT APPEALED TO IDES BOARD OF REVIEW: Volpert appealed to the IDES Board of Review, and the Board of Review again found for the employer under Section 601A (voluntary leave).

CLAIMANT THEN FILED A COMPLAINT IN CIRCUIT COURT AND CIRCUIT COURT FOUND IN FAVOR OF CLAIMANT: Volpert refused to give up. He appealed and filed a complaint in Circuit Court. The Circuit Court reversed the decision of the IDES Board of Review and found in favor of Volpert.

IDES APPEALED CIRCUIT COURT’S REVERSAL: The IDES appealed, and the case ended up before the Fifth District Appellate Court of Illinois.

The issue on appeal was whether Volpert voluntarily left his employment without good cause attributable to the employer per Section 601A.

The IDES rules pertaining to Section 601A (voluntary leaving) state: ” When obtaining or maintaining a ‘tool of the trade’ necessary to perform a job including but not limited to an occupational or other license required by federal or State law, is within an individual’s control, a work separation that results from the individual’s failure to obtain or maintain the tool of the trade is a voluntary leaving.”

There are many cases that have similar facts to Volpert v. IDES and in some of them, the employer wins and in some of them, the Claimant wins. It appears that what the IDES and then the reviewing courts focus on is whether the Claimant’s failure to obtain the license was attributable to his own inaction or due to the employer’s negligence .

APPELLATE COURT FOUND THAT IDES DECISION WAS CORRECT: The Fifth District Appellate Court of Illinois found in the instant case that Volpert was fully aware of his need to recertify his Missouri operator’s license. The recertification of the license was within Volpert’s own control. The Court found there was no evidence that it was the employer’s responsibility to ensure Volpert’s recertification of his license. The Court found that certification was “ultimately Volpert’s responsibility to maintain.” These refreshing words are likely to warm the hearts of any company owners and supervisors who are reading this article.

The Court therefore found that the IDES’ decision (that Volpert’s failure to certify was a voluntary leaving per Section 601A of the Illinois Unemployment Insurance Act) was a correct decision.

This kind of case is very tricky. The decisions often hinge on the detailed facts surrounding the matter. Courts look which party has control over the circumstances and the responsibility to keep the license in force.

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com. If you would like a free copy of the case, contact Legal Assistant Tammy Nelson at 630-377-1554 or via email at tanelson@wesselssherman.com.