When an employee is terminated in Illinois, he or she may file for unemployment benefits; however, the claim can be contested by the employer. Here is how the process works from filing the initial claim to the contest, hearing, and appeal.
Employees who are terminated can file for unemployment benefits with the Illinois Department of Employment Security (IDES). This can be done online or in person at an IDES office. Filing is free, and every application will be accepted. There are several procedural stages that might take place after the employee files a request for benefits.
After an employee files a petition, the employer has a right to contest the unemployment claim. Often, the employer alleges that the employee was fired for misconduct, left voluntarily, or was an independent contractor and therefore not eligible for benefits.
IDES will provide a contest form for the employer. The employer has only ten days from the date of the letter to respond. If the employer misses this deadline, the case is over and the employee gets benefits. This is a very strict rule, and it is enforced very aggressively by IDES.
If the employer's protest is filed on time, the case goes to an IDES caseworker. The caseworker has absolute discretion in deciding the issue. The caseworker might schedule an interview with the employee or make a decision based on the evidence presented. At this stage, the main question is whether the employee's claim is trustworthy and accurate. No evidence is required from the employer.
The caseworker will mail a letter of determination to both parties. From the date of the letter, the losing party has 30 days to appeal this decision. The letter explains how to appeal. Usually, appeals must be filed with the local office where the employer is located.
At this stage, you will be asking an IDES Administrative Law Judge (ALJ) to schedule a formal hearing and reverse the decision made by the caseworker. This is a good time to submit any evidence you have to support your claim, such as timesheets, handbooks, policies and procedures, and so on.
When the ALJ schedules a hearing, IDES sends a letter to each party advising them of the time and date for the hearing and the issues to be resolved. No arguments will be heard on issues that aren't mentioned in this letter.
IDES hearings are held over the phone. Each party must file an attorney appearance (if the party is represented by an attorney) and must submit a witness list and any evidence 24 hours before the hearing. Also, the parties must exchange any information they are planning to refer to at the hearing at least one business day before the hearing.
The rules of evidence are very relaxed at these hearings, and objections are usually overruled by the ALJ. But it is an absolute must that each party receives a copy of the documents that the other party is planning to introduce before the hearing. The ALJ must have all of the evidence before the hearing as well. If a party does not submit such evidence to either the opponent or the ALJ, that party will be barred from referring to such evidence at the time of the hearing.
Also, no ex-parte communication is permitted, which means that neither the claimant nor employer may communicate with the ALJ without all involved parties present. To make sure the parties don't try to get around this rule, the ALJ will never provide his or her phone number. Any messages must be submitted either via fax or by mail with a courtesy copy to the other party. It is highly advised to submit such copies via FedEx at least 24 hours before the hearing and obtain a FedEx tracking number, so you can prove that you sent them on time, if necessary.
The hearing itself resembles any other court hearing. The ALJ will call the parties, attorneys, and witnesses. Usually, the party that is appealing the caseworker's decision must prove, by a preponderance of the evidence, that the caseworker abused his or her discretion. If the appealing party is not present, judgment will be entered for the other side. The whole procedure is recorded on tape.
The ALJ will first establish jurisdiction, make sure the appeal was filed on time, and swear in all witnesses. The ALJ might also ask some basic questions, such as what was the rate of pay, when was employment terminated, and so on. After that, each party can present direct testimony and cross-examine the other side. At the end of the hearing, each party will be given an opportunity to make closing statements. The ALJ will render a decision within 14 days after the hearing and send a copy to each party.
After the decision is rendered, the losing party once again has 30 days to file an appeal. But now, the appeal must be filed with IDES Board of Review, which consists of three judges. The appeal must be filed with the Chicago office only. It can also be submitted by fax or mail. There are two ways to appeal:
The Board of Review does not hear every appeal. It picks and chooses the ones it would like to hear. Therefore, there is a better chance to get a hearing if the losing party writes a brief and orders a copy of the transcript. Keep in mind that at this stage, no new evidence will be allowed.
The judges will only look at the evidence and arguments that were presented to the ALJ in the hearing and decide whether the ALJ made a mistake or abused his or her discretion.
If the Board overturns the ALJ's decision, then the case will be sent back to another ALJ. If the Board upholds the decision, a losing party can only go to civil court to seek other relief. The Board also might not request a hearing, and will instead make a decision based on the record.
If a party loses its appeal at the level of IDES Board of Review, the party can go to civil court and sue the whole IDES department, alleging that the process is not proper. The state Attorney General represents the IDES in these cases. Chances to win such a suit are fairly slim. The party must prove that the caseworker, the ALJ, and all three judges on the Board of Review made some sort of a mistake or abused their discretion.