February 2012

By: Nancy E. Joerg, Esq.

Many employers confidently assume that if an employee is arrested on the way to work, cannot make bail and therefore cannot report to work, the employer can justifiably fire that employee and also bar that employee from getting unemployment insurance benefits in Illinois. However, the situation is much more complicated than one would think.

Under the Illinois Unemployment Insurance Act, if an employee is jailed, arrested, detained or imprisoned under state, local or federal law, that individual (let’s call him Sam for purposes of this article) may be eligible for unemployment insurance benefits.

Let’s look at an example: Sam is arrested on his way to work. He next calls his employer to inform his employer that he cannot make bail so he is not free to report to work. Sam’s employer therefore fires and replaces Sam (because the employer needs to continue its manufacturing production and Sam is obviously not available). The charges against Sam are later dismissed. If Sam was fired for a reason other than misconduct connected with Sam’s work, Sam may be eligible for unemployment insurance benefits.

EMPLOYER’S IDES ACCOUNT WILL NOT BE CHARGED: Sam’s employer however is worried that its unemployment insurance account with the Illinois Department of Employment Security (IDES) will be “charged” for Sam’s unemployment benefits and therefore the employer’s unemployment insurance rate will go up. This is a natural concern for any employer. Higher unemployment insurance rates mean increased overhead for the employer.

Sam’s employer will therefore be pleased to learn that the unemployment insurance benefits given to Sam are not charged to the employer’s IDES account. Rather, Sam will be paid out of a special pool maintained by the IDES. Happily, Sam’s employer’s IDES account will not be charged and the employer’s unemployment insurance rate will not go up as a result of Sam’s unemployment claim.

IF EMPLOYEE IS ARRESTED FOR MISCONDUCT CONNECTED WITH WORK: Of course, if any employee is arrested because of misconduct connected with the employee’s work, even if the arrest charges are later dismissed against the employee, that employee could still be found to be guilty of misconduct (as defined by the Illinois Unemployment Insurance law) connected with the employee’s job (if the matter for which the employee was arrested indicated that the employee deliberately and willfully violated a company policy or procedure or a reasonable directive of the employer).

ABSENTEEISM OR A FAILURE TO NOTIFY THE EMPLOYER THAT IS WILLFUL AND DELIBERATE CONSTITUTES MISCONDUCT: Readers should be aware that an employee who is jailed and therefore unable to come to work may be found guilty of misconduct under Illinois Unemployment Insurance law if the employee fails to notify the employer. There is an IDES legal precedent in which the Claimant (i.e., former employee) violated parole and was therefore jailed. The Claimant made no personal effort to contact his employer and did not direct people who knew his whereabouts to contact his employer for him (because he was embarrassed by his predicament). The employer fired the Claimant after he was absent without notice for three days. The employee was found guilty of misconduct under the Illinois Unemployment Insurance Act because “absenteeism or a failure to notify the employer that is willful and deliberate constitutes misconduct.”

The lesson here is that incarceration might under certain facts constitute a good excuse by an employee for failing to report to work. It also might constitute good cause for failing to notify the employer about the incarceration. However, where the Claimant could have notified his/her employer and failed to do so, this may be considered willful and deliberate behavior on the part of the Claimant (and the Claimant might therefore be denied unemployment insurance benefits if the employer protests on the grounds of misconduct).

Of course, if a Claimant is arrested and not able to make a phone call, failure to notify his/her employer is not considered willful and deliberate misconduct, and the Claimant may be eligible for unemployment insurance benefits.

EACH CASE IS FACT SENSITIVE: As in any unemployment insurance matter, each case rises or falls on its own particular facts. This applies to employees arrested, jailed, and unable to report to work. There are many possible legal outcomes in these scenarios: the jailed employee being denied unemployment, the jailed employee obtaining unemployment; the jailed employee drawing unemployment but the charges are billed to a pool and not to the employer, etc. It is a complex area factually and legally.

Any reader who has questions about Illinois unemployment insurance claims or hearings or wishes help protesting a claim should contact Attorney Nancy E. Joerg of Wessels Sherman’s St. Charles, Illinois office at 630-377-1554 or via email at najoerg@wesselssherman.com.