How Proper Documentation of Employee Misconduct Can Prove “Willful and Deliberate” Misconduct in Defending IDES Unemployment Claims

Many Illinois employers are faced with unemployment benefit claims from the Illinois Department of Employment Security (“IDES”).  More often than not these claims are frustrating for employers because the claimant was actually a horrible employee and was in fact terminated for a legitimate reason.  Unfortunately, the way that the system is set up, unless the employer effectively protests the claim and puts forth a good reason as to why IDES should not grant unemployment benefits, the employee will usually get those benefits.  Additionally, in order to prove that the employee was terminated for good reason, and thus not entitled to unemployment benefits, the employer will need to prove that the specific instance of misconduct leading to termination was a “deliberate and willful” violation of a reasonable company rule or policy, provided such violation has harmed the company or other employees or has been repeated by the individual despite a warning or other explicit instruction from the company.  See, 820 ILCS 405/602.A.  This is not always easy to prove as mere negligence and carelessness is not enough to prove “misconduct” under its legal definition.  Additionally, oftentimes the IDES is most concerned with the actual misconduct resulting in termination.  For example, if an employee has been tardy to work several times in the last 30 days, and is fired for excessive tardiness, the IDES may only look at the final instance of tardiness that caused the termination.  If it can’t be proven that the final instance of tardiness was willful and deliberate, then the employee could be entitled to benefits.

Employers should be motivated to protest these claims because each claim that is charged to the employer’s unemployment insurance account number causes the employer’s unemployment insurance rate to increase.  So what can employers do to prove an employee’s termination was caused by “willful and deliberate” misconduct?  Employers should make it a habit to document all instances of employee misconduct.  Employers often document employee misconduct through performance evaluations and incident memorandums.  The employer should document dates, times, names of witnesses and their job titles, the actual conduct committed, and the policy that was violated.  Preferably, this documentation process would include counseling the employee on the violation, as well as steps for improvement.

So if the IDES is often only concerned with the final instance of misconduct, why is it beneficial to document and present several instances of misconduct?  Using the example above, if the employee is habitually tardy and is eventually terminated as a result, the employer can provide documentation that the employee was terminated for consistently violating company policy, not for the final instance of tardiness.  The IDES is more likely to find this is a willful and deliberate violation of company policy.  The documentation supports that the employee had prior warning or other explicit instruction from the company.

In addition, having documentation of employee misconduct is beneficial when writing a protest letter.  Although a letter is not required, it allows the employer to provide details surrounding the employee’s termination.  In other words, the protest letter allows the employer to provide a factual basis that the employee’s misconduct was willful and deliberate to support a denial of benefits.  The letter should include the information that was included on the performance evaluations.  The employer can attach these evaluations as exhibits to further support its position.  Additionally, the employer will want to attach the company policy that was violated resulting in the termination.

Documenting employee misconduct and filing protest letters is only one strategy to effectively protest IDES claims.  If you need assistance protesting an IDES claim or for more information on this topic, contact Stephanie Strickler at 312-334-3465 or by email at