IL Denial for 602A, now at BOR stage. Anyone ever win? (receive, claim)

[lilarae330]

Hi all. TIA for any insight you may be able share. I'll try to make a long story short, but give pertinent details.

I was fired by my employer of 7+ years for misconduct-602A. They said "theft of promotional item", but called it misconduct as opposed to 602B (which i believe is misconduct for theft specifically). I worked at a business that had special interestgroups like Medical Conventioners, National Business Conferences,etc. Well there is usually a lot of leftover things like computer bags, laptop covers, binders, etc. The rule is that once the conventions are gone for good, if there are left behind items we would like to have, we have to get a pass from the Director of our specific department in order to take it from the building. There are always more ppl that want items, than items themselves so we ( employees) put things up/away so a co-worker doesnt get it before you can get your pass. We habitually put the item in our employer provided lockers. That way noone but you, Security, or HR can get it then. The lockers are employer provided with an employer provided lock, and are subject to search and seizure at anytime because they belong to the employer. Which is fine and makes sense to me.

Anyway, they searched lockers and i had a promotional item in it. It had been there for weeks. I had not gotten my pass yet because of just being busy, my Director was busy, and it just wasnt at the forefront of my mind. I knew that i couldnt take it from the building until i got the pass, so i DID NOT take it or attempt to take it anywhere past the locker. We are searched by security and there is only 1 way in and out for employees. IDES denied me, said it was misconduct. I appealed to the ALJ and for that hearing, i had an attorney. The ALJ ruled against me but the ruling was weird. She acknowledged and found as fact that i didnt take or attemt to take it, that i hadnt asked due to seeing my director so infrequently, being very busy, and "inadvertence", and that I hadnt been warned about any of it ever before. THEN she stated that i deliberately and willfully didnt ask!

I and my attorney were dumbfounded. These were in her decision as fact. My attorney has submitted the written argument to the Board of review, and now we wait... Any ideas?

[Chyvan]

Board of reviews are stacked against you because if there is substantial and credible evidence to support the ALJ's decision, it will be affirmed.

So you might have some hope though, I DID win at a board of review (sort of. it was enough to get me a new hearing and a second chance to do it right).

The ALJ said, "Additionally, the reduction of compensation does not render Claimant's job unsuitable under any of the refusal to work regulations."

The review board said, "However, the Tribunal's decision neither cites nor mentions any specific refusal of work code provisions."

So, what I'm getting at is if the ALJ failed to explain what in the record or evidence lead to the conclusion that you "deliberately and willfully didnt ask," you just may very well get your case remanded for a new hearing.

[lilarae330]

Thank you for replying so quickly Chyvan! I've gone over and over the decision and it just didnt make sense. I thought "ok self, maybe you're just an idiot.", lol. My attorneys written argument is really a thing of beauty:-) When you read it you think "wth was the ALJ thinking". Praying the boadr sees it the same. Her finding of facts went so opposite of the decision... Im having a difficult time finding out how long the BOR actually takes here in IL? They give themselves a time frame of 120 days, but say it usually takes less. Im just not seeing anyone who actually has had to wait and/or how long. Im at 5 1/2 months with no paycheck. Another 4 months might ruin me. Thank God for my big brother and my best friend, smh. Does it help at all if the employer does not respond to the written argument, or not really?

[Chyvan]

I don't know about an employer response. I went to the board of review 3 times with my claim, and I was in appeals for 11 months, but I'm also in AZ, not IL. Each cycle through the system for me was 6 to 8 weeks each. It went decision, my appeal, then 6 to 8 weeks later I'd get a new decision.

My employer was going down the path that I voluntarily quit rather than accept a compensation reduction. I was going down the path that the unilateral change in compensation was a discharge/refusal of work, or a quit with good cause.

Each appeal I filed only ever generated an acknowledgment that my appeal had been received. I never received an answer from the employer (but it's possible the appeals board did, and I wasn't entitled to a copy), and I honestly don't even know if they received paperwork even giving the opportunity to dispute why I thought the ALJ's decision was wrong. Also, we don't seem to have any employers on here saying what happens on the filp side of a board of review, and most claimants here don't even go that route.

[lilarae330]

Here in IL every response or communication sent to ALJ, BOR has to be sent to the opposing party. My attorney had to send my former employer a copy of the written argument, and then my employer has the opportunity to respond within 7 days to the BOR. If they send it to the BOR, they have to send one to my attorney too. Then we have 5 days to respond to that. That final response is the end at the BOR stage. Afterwards, they work on the decision. My attorney says if she hasnt receved a response by 4-15, then my employer didnt submit a response to our argument. Im hoping that helps me in some way...

[Chyvan]

Does the IL unemployment department come into play?

In AZ, the loser is actually appealing against the employer and the Department of Economic Security (our unemployment people). It's very possible that if the employer doesn't take issue with the appeal that the AZ DES will write something to justify the decision.

What I don't know is if this happens while the claim is in administrative appeals. The only time that I see the back and forth that you mention is when the appeal gets into the judicial court system, and at that point it skips superior/county court and goes right to the court of appeals in AZ.

Having read way too many of those decisions, the AZ DES attorneys are the only ones that ever submit a brief. The winning employers do nothing and pretty much let the state fight their battle for them.

[lilarae330]

Im not sure if im reading your question correctly, but I'll try to answer anyway. I filed with the Illinois Department of Employment Security (aka Unemployment) when I was first terminated. Received a letter to come to the office for a phone interview with an ajudicator. They spoke to me on one line, my employer on another. The ajudicator found me ineligible due to misconduct. After that, I appealed that determination and was given a date to have a phone hearing between myself, attorney, ALJ, and the employers rep. The ALJ ruled against me and now we're at the BOR stage which consists of 3 Justices. The ALJ is an attorney that hears appeals for the IDES. All parties are under the umbrella of IDES. Im not sure if the ALJs work ONLY for IDES though. I believe its a rotation of BAR attorneys that have other jobs. I don't know if the BOR justices are the same. After the BOR, the next step is the Circuit Court and the state (IDES) is represented by the attorney generals office.

[Chyvan]

I think you answered it. At this point, it sure sounds like IDES isn't doing the work for your employer. The only thing working against you is the that a decision stands if supported by substantial and credible evidence.

[lilarae330]

In looking at your posts, you're pretty much the go to gal on these things, so your opinion is much needed. So, in IL "misconduct" is defined as:" the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individuals 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 warning or explicit instruction from the employing unit."
It was amended later to clarify that the legislature intends that persons discharged for "inadvertence, negligence or inability to perform assigned tasks should receive benefits. It is necessary to show that a workers non-compliance was deliberate and willful."

My ALJ ruling reads as I stated in the OP plus the statute as above, with the following: The claimant admits to taking possession of xxxx and placing them in the locker. She was aware of the policy to request a pass to remove items from the building and did not do so for several weeks. Her decision not to request a pass to remove the item from the building, and to place them in her locker, was deliberate and willful. She asked her direct co-worker if they intended to take them home. I find a prepoderance of the evidence has established that she was discharged for deliberate and willful violation of the reasonable policy requiring her to obtain a pass in order to take the property.

This after a Finding of fact that 1) I didnt ask because either I or my Director was very busy, seeing him infrequently, and it "inadvertently" slipping my mind. 2) my locker is provided and owned by the employer. 3) my locker is inside the building and infact on the property. 4) the rule is agreed that A PASS IS NEEDED TO TAKE IT FROM THE BUILDING! Thoughts...?

[Chyvan]

What I think doesn't matter so much anymore because I understand that your attorney wrote the appeal for the board of review. However, the most glaring issue is that the agreed rule is: A PASS IS NEEDED TO TAKE IT FROM THE BUILDING

You never took it from the building.