January 2014

By: Nancy E. Joerg, Esq.

A frequent fact pattern that I have come across over the years involves a truck driver who has several accidents in driving his or her truck and then eventually is found uninsurable by the insurance company (because of all the accidents). In those cases, the trucking company then terminates its relationship with the driver.

The driver then usually goes to the Illinois Department of Employment Security (IDES) and files for unemployment insurance benefits. Of course the trucking company usually protests that claim for unemployment insurance benefits (on the grounds that the driver was negligent, or even reckless, with the truck, which resulted in the insurance company finding the driver uninsurable).

Sadly, clients often lose with the IDES under this fact pattern. The attitude of the IDES is that the truck driver may have been an awful truck driver, but, under the IDES definition of misconduct, terrible performance is not usually proven to be willful and deliberate.

DEFINITION OF MISCONDUCT UNDER ILLINOIS UNEMPLOYMENT INSURANCE ACT: Under Section 602A of the Illinois Unemployment Insurance Act, the definition of misconduct is: “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.”

Of course, all of this legalese drives my clients almost berserk. They wonder how the IDES can give unemployment insurance benefits to a truck driver with such a deplorable driving record. Trucking companies struggle to understand that in order to block the truck driver’s claim for unemployment insurance benefits, the trucking company must show the driver’s behavior is willful and deliberate. Horrendous performance by the truck driver may not be considered misconduct under Section 602(A) of the Illinois Unemployment Insurance Act.

Is there a solution to this nightmare? Well one happy outcome sometimes occurs when the driver who has all of these repeated and serious accidents fails to “report” the incident to the company as required by strict company policy. I am always overjoyed when the company has such a policy in WRITING mandating reporting of accidents to the company. When the driver has signed and dated such a policy-and then later fails to report the incident per the policy-then that behavior can often be proven (to the IDES) to be willful and deliberate (i.e., willful and deliberate failure to report an incident per strict written company policy).

HAVE A STRICT WRITTEN POLICY MANDATING THE REPORTING OF ACCIDENTS TO THE COMPANY: Therefore, I suggest that all trucking companies have a strict written policy that any driver who has an incident while driving (and of course the policy should define what an incident is) MUST immediately report the incident (often it’s reported to dispatch). Have all drivers sign and date the written policy. Keep a copy in each driver’s file.