Section 2725.1  Definitions

 

All other terms used in this Part shall have the meaning set forth in definitions, Sections 200 through 247 of the Unemployment Insurance Act [820 ILCS 405/200 through 247].

 

            "Act" means the Unemployment Insurance Act [820 ILCS 405].

 

            "Adjudicator" means the person authorized to make findings, reconsidered findings, determinations, reconsidered determinations or decisions relating to the Act.

 

            "Agency" means the Department of Employment Security.

 

            "Application" means an Application for Revision of Statement of Benefit Charges or Application for Review of Rate Determination.

 

            "Claim" means a Claim for Adjustment or Refund.

 

            "Claimant" means a person who applies for benefits under the Act.

 

            "Determination" means an Adjudicator's statement of whether or not a claimant is eligible for benefits or waiting week credit, and the dollar amount of such benefits for each week with respect to which a claim is made. (See 820 ILCS 405/702.)

 

            "Director" means the Director of Employment Security.

 

            "Director's Representative" means the administrative law judge designated by the Director to conduct hearings and recommend decisions to the Director.

 

            "Filing Date" means the date a document was mailed to or received by the Agency, whichever is earlier.

 

            "Finding" means a statement by an Adjudicator of the amount of wages for insured work paid to a claimant during each quarter in the claimant's base period by each employer [820 ILCS 405/701].

 

            "Local Office" means the office of the Agency serving claimants who live in a specific geographical area.

 

            "Petition" means a Protest and Petition for Hearing.

 

(Source:  Amended at 35 Ill. Reg. 6129, effective March 25, 2011)

 

Section 2725.3  Burden Of Proof

 

In all proceedings under this Part the party on whom the Act places the burden of proof must establish its position by a preponderance of the evidence.  An application for relief under this Part will be granted when a party proves its allegations by a preponderance of the evidence.

 

Section 2725.5  Designation Of Agents

 

Any employing unit may designate an agent to receive any documents by filing the name and address of such agent with the Agency or by changing its designated address to be in care of its agent.  In such cases, notice to the designated agent is notice to the employing unit.  Notwithstanding the foregoing, such documents sent to an employing unit shall be adequate notice under this Subpart.

 

Section 2725.10  Computation of Time

 

a)         For purposes of any notice, decision, ruling or order that is mailed or delivered by personal service by the Department, the calendar day on which any notice, decision, ruling or order is mailed or delivered by personal service by the Department shall be excluded in computing time. For purposes of any notice, decision, ruling or order that is posted electronically as provided in Section 2725.40, the date treated as the date of mailing for purposes of electronic notices shall be excluded in computing time.

 

b)         The calendar day on which notice is due or action is required by a party shall be included in the computation of time.

 

c)         If the last day a response is due to be filed is a day on which the Agency is closed, the due date is extended to the end of the next day on which the Agency is open.

 

d)         The date on the document shall be rebuttable evidence that it was mailed or delivered on that date.  A postmark placed on the envelope by the United States Postal Service shall be conclusive evidence of the date of mailing.  An Agency notation showing the date of receipt shall be conclusive evidence of the date of personal service, or of an undated, unpostmarked document which is mailed.  A return receipt signed and dated by an Agency employee shall be conclusive evidence of the date of receipt.  For purposes of documents posted electronically as provided in Section 2725.40, notice shall be deemed to have been served as provided in Section 2725.40(e).

 

(Source:  Amended at 43 Ill. Reg. 6434, effective May 14, 2019)

 

Section 2725.11  Use of Private Messenger Services

 

For purposes of Section 2725.10, any date recorded or marked by a designated delivery service, recognized as such by the Internal Revenue Service (IRS) pursuant to 26 USC 7502(f), shall be treated as the postmark placed on an envelope by the United States Postal Service.  IRS Notice 2004-83 (modifying Notice 2002-62), effective January 1, 2005, provides the list of designated delivery services and is subject to further revision by the IRS.  Should there be additional or superseding IRS notices, procedures or other documents that are promulgated in the future, this Section will be amended accordingly.  Until such time as this Section is amended, only those recognized designated delivery services in IRS Notice 2004-83 (modifying Notice 2002-62), effective January 1, 2005, shall be acceptable.

 

EXAMPLE:  The employer is required to file its quarterly wage report for the first quarter of 2009 by April 30, 2009.  On April 30, 2009, ABC Messenger Service records that it has received the wage report from the employer for delivery to the Agency.  On May 1, 2009, ABC Messenger Service delivers the wage report to the Agency.  A penalty will be assessed against this employer unless the IRS officially recognizes ABC Messenger Service as a designated delivery service at the time.

 

(Source:  Added at 33 Ill. Reg. 9641, effective July 1, 2009)

 

Section 2725.15  Disqualification Of Agency Employee

 

a)         No Agency employee shall participate in any manner in any investigation or proceeding under the Act if such individual has a financial or other direct personal interest in the proceeding or investigation.  Personal interest includes family, social or professional relationship or general bias or prejudice which would tend to affect the ability of the Agency employee to remain fair and impartial.

 

b)         A person seeking such disqualification of an Agency employee must file a written request prior to the investigation or proceeding to disqualify the individual whose removal is sought.  The request to disqualify must contain specific facts which indicate a financial or direct personal interest defined in subsection (a), or specific facts which indicate prejudice on the part of the person whose disqualification is sought.

 

c)         The Agency employee whose disqualification is sought will respond to the request prior to the investigation or proceeding orally on the record or in writing.  Further proceedings in the matter will be stayed until a decision on disqualification is rendered.  If the request is granted, the Agency will reassign the matter.  If the request is denied, the reasons for the denial shall be set forth in writing or on the record and the Agency employee will proceed with the investigation or proceeding.  The request and reasons for the denial shall be part of the record on appeal.

 

Section 2725.20  Request for Clarification

 

Any employer may request clarification of information contained on a "Statement of Benefit Charges" (Ben-118), a Statement of Amount Due (Ben-118R)," Contribution Rate  Determination " or "Notice of Determination and Assessment and Demand for Payment" by contacting the Department of Employment Security, Division of Revenue, at the address or telephone number listed on such applicable form.  However, such response by the Revenue Division shall be for informational and clarification purposes only and not binding on either the employer or the Agency.

 

(Source:  Amended at 43 Ill. Reg. 6434, effective May 14, 2019)

 

Section 2725.25  Form of Papers Filed

 

a)         Each Application, Protest, Petition or Claim shall bear the name, address and account number of the employing unit and, when the employment or unemployment status of the individual or claimant is at issue, the name and Social Security account number or claimant ID number of the individual or claimant, along with the name, address and telephone number of the person filing the document.

 

b)         All subsequent papers shall bear the docket number, if applicable, of the matter, along with the name, address and telephone number of the individual filing the document.

 

(Source:  Amended at 43 Ill. Reg. 6434, effective May 14, 2019)

 

Section 2725.30  An Employer's "Last Known Address"

 

a)         Notwithstanding any provision to the contrary, and except as provided in subsection (b) and Section 2725.40, an employing unit's "last known address" or "last known place of business or residence", as those terms are used in the Act, is the last address provided to the Department by the employing unit.

 

EXAMPLE:  On September 1, 2016, the Director mails an annual contribution rate notice to Employer A at the last address provided to the Department by Employer A. For purposes of Section 1509 of the Act, the annual contribution rate notice mailed on September 1, 2016 is mailed to Employer A's last known address.

 

b)         The Department receives manual and electronic address correction notices from the United States Postal Service (USPS) to update employing unit addresses maintained in Department records when mail is sent to the last address provided by the employing unit but is undeliverable as addressed. Except as provided in this Section, when the Department receives notification from USPS that the employing unit's address is different from the last address provided to the Department by the employing unit, the new address provided by USPS shall be the employing unit's last known address or last known place of business or residence.  The last address obtained from USPS is the employing unit's last known address or last known place of business or residence until the employing unit informs the Department of a change of address as provided in subsection (c).

 

EXAMPLE:  When Employer A began business in 2010, it filed a "Report To Determine Liability Under the Illinois Unemployment Insurance Act" (see 56 Ill. Adm. Code 2760.105), listing its address as 1234 S. Main St., Springfield IL. On September 1, 2016, Employer A files a change of address with USPS, listing its new address as 5678 N. State St., Chicago IL. Employer A does not inform the Department of its change of address. On November 1, 2016, the Director mails an annual contribution rate notice to Employer A at 1234 S. Main St., Springfield IL, which is the last address provided to the Department by Employer A. For purposes of Section 1509 of the Act, the annual contribution rate notice mailed on November 1, 2016 is mailed to Employer A's last known address. Since Employer A filed a change of address with USPS, the annual contribution rate notice is forwarded to Employer A's new address by USPS. A few days later the Department receives notice of Employer A's change of address from USPS. The Department will update its records with the new address received by USPS. Subsequent mail sent to Employer A at 5678 N. State St., Chicago IL is mailed to Employer A's last known address.

 

c)         It is the employing unit's responsibility to inform the Department of any address change through MyTax Illinois (mytax.illinois.gov), by mailing a UI-50A Notice of Change to the Department, or by calling, faxing or writing the Department and providing the same information as would be provided on the UI-50A.  A change of address request must be signed unless the request is made by telephone.  The mailing address and telephone and fax numbers for submitting a change of address can be found on the UI-50A, which is available on the Department's website (ides.illinois.gov).  Except as otherwise provided for in Section 2725.40 for Electronic Posting of Notices, a change of address is effective the day on which it is received by the Department. If an employing unit does not file a UI-50A Notice of Change with the Department and instead relies on the Department to update its address based on information received by USPS, the employing unit bears the risk that the Department will not receive correct change of address information from USPS in a timely manner.  A new last known address or last known place of business or residence received from USPS is not effective until the Department updates its records with the new address. 

 

EXAMPLE 1:  In January 2010, Employer A filed a UI-50A notifying the Department that its mailing address was 1234 S. Main St., Springfield IL. On March 1, 2015, Employer A files a change of address with USPS, listing its new address as 5678 N. State St., Chicago IL. On November 23, 2015, the Director mails Employer A's annual contribution rate notice to Employer A at 1234 S. Main St., Springfield IL, the last address provided to the Department by Employer A. For purposes of Section 1509 of the Act, the annual contribution rate notice mailed on November 23, 2015 is mailed to Employer A's last known address. The USPS forwards the annual contribution rate notice to Employer A at its new address but does not notify the Department of Employer A's change of address information. A little over a year later, on November 25, 2016, after USPS has stopped forwarding Employer A's mail, the Department sends another annual contribution rate notice to Employer A at its 1234 S. Main St., Springfield IL address. For purposes of the Act, the annual contribution rate notice mailed on November 25, 2016 to 1234 S. Main St., Springfield IL is mailed to Employer A's last known address.

 

EXAMPLE 2:  Same facts as Example 1 except, in addition to filing a change of address with USPS, on March 1, 2015, Employer A also files a UI-50A with the Department, listing its new address as 5678 N. State St., Chicago IL. If the Department does not timely update its records before sending the annual contribution rate notice on November 23, 2015, since Employer A properly notified the Department of its change of address, the annual contribution rate notice mailed to Employer A's old address will not be treated as having been mailed to Employer A's last known address for purposes of the Act.

 

(Source:  Added at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.35  Electronic Submissions

 

a)         For purposes of this Section, "electronic submission" means any document that is transmitted to the Department through MyTax Illinois (mytax.illinois.gov), including, but not limited to, a contribution and wage report required by 56 Ill. Adm. Code 2760.120, 2760.125 or 2760.145, an application for review of rate determination (see Section 2725.105), a protest of a determination and assessment as provided by Section 2725.110, a claim for adjustments or refund (see Section 2725.115), an election to make payments in lieu of contributions, or a written notice of termination of election, an application for review of a Director's order allowing or denying an election to make payments in lieu of contributions, or a written notice of termination of election (see Section 2725.125), an application for waiver (see Section 2765.75), or an appeal of an order or determination and assessment of the Director (see Section 2725.200). 

 

b)         The date that the Department confirms receipt of the electronic submission, as shown in the "Date Submitted" field of the electronic submission, will constitute the date of filing. An electronic submission will be confirmed as received only if all required information is provided in accordance with the instructions.  An electronic submission will not be considered filed unless it has been confirmed as received by the Department, as evidenced by the electronic confirmation number and confirmation page provided.

 

(Source:  Added at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.40  Electronic Posting of Notices

 

a)         On and after November 11, 2017, when a person or employing unit uses the Department's online tax system, MyTax Illinois (mytax.illinois.gov), the Department will post an electronic version of all notices, except as provided in subsection (c), that are required to be mailed to the person or employing unit, including, but not limited to, notices under Sections 1400, 1509, 2200 and 2201 of the Act, in the correspondence tab of the account of the person or employing unit on the MyTax Illinois website.

 

b)         An email address is needed to register an account in MyTax Illinois. When a notice is posted to the MyTax Illinois account of a person or employing unit as provided in subsection (a), the Department will send an email to each email address that has been provided on the account. A person or employing unit that uses MyTax Illinois will continue to receive, in addition to receiving email notifications and notices within MyTax Illinois, all notices as a paper document sent through USPS to its last known address as provided in Section 2725.30, unless the person or employing unit elects to stop receiving notice under subsection (d). Unless the person or employing unit elects to stop receiving notice as a paper document sent through USPS, the last known address for purposes of the notices described in subsection (a) shall be as provided by Section 2725.30.

 

c)         Electronic versions of the following notices are not posted on the MyTax Illinois website and, regardless of an election under subsection (d), will always be sent as a paper document through USPS:

 

1)         All notices that a person or employing unit is entitled to receive after the filing of an appeal of an order or Determination and Assessment of the Director as provided in Subpart C, including, but not limited to, hearing notices (see Section 2725.210), recommended decisions (see Section 2725.270), and decisions of the Director (see Section 2725.280); and

 

2)         Certificates of withdrawal or release of a notice of lien (see Section 2401 of the Act).

 

d)         A person or employing unit that uses the Department's online tax system may elect to stop receiving notice as a paper document sent through USPS for any notice, except those notices described in subsection (c), that is required to be mailed by the Department as provided in subsection (a). An election under this subsection must be made on the MyTax Illinois website.

 

e)         If, pursuant to subsection (d), a person or employing unit elects to stop receiving notice as a paper document sent through USPS, the email address or addresses provided by the person or employing unit shall be the last known address for purposes of Section 2725.30 for each notice described in subsection (a), and the notices described in subsection (a) will not be mailed to the person or employing unit through USPS. If, pursuant to subsection (d), a person or employing unit elects to stop receiving notice as a paper document sent through USPS, then notice shall be deemed to have been served on the person or employing unit if the Department posts an electronic version of the notice in the correspondence tab of the account of the person or employing unit on the MyTax Illinois website and transmits an email to at least one of the email addresses provided on the account of the person or employing unit, even if the email is not accepted by the server of the person or employing unit.

 

EXAMPLE 1:  An employing unit establishes a MyTax Illinois account and, pursuant to subsection (d), elects to stop receiving notice as a paper document sent through the USPS. The employing unit provides a total of four different email addresses for the account. The Department posts a Determination and Assessment in the correspondence tab of the employer's MyTax Illinois profile and attempts to send an email notification to each of the four email addresses provided by the employing unit. Due to a computer glitch, only one email is sent. Because the Department transmitted an email to at least one of the email addresses provided on the account of the employing unit, notice of the Determination and Assessment will be treated as having been served on the employing unit.

 

EXAMPLE 2:  An employing unit establishes a MyTax Illinois account and, pursuant to subsection (d), elects to stop receiving notice as a paper document sent through USPS. The employing unit provides an email address for the account. The Department posts a Determination and Assessment in the correspondence tab of the employer's MyTax Illinois profile and sends an email notification to the email address provided by the employing unit. The email is rejected as undeliverable by the recipient's e-mail server. Because the email was sent to the email address provided by the employing unit, notice of the Determination and Assessment will be treated as having been served on the employing unit.

 

f)         If, pursuant to subsection (d), a person or employing unit elects to stop receiving notice as a paper document sent through USPS, the date of mailing of the notice for purposes of the Act shall be whichever of the following dates is later:

 

1)         The mail date listed on the notice that is posted on the MyTax Illinois website; or

 

2)         The date that the email notifying the person or employing unit that a notice has been posted to the MyTax Illinois website is transmitted to the person or employing unit.

 

EXAMPLE 1: An employer has elected to stop receiving notice through USPS under subsection (d). On October 1, 2017, the Department posts a Determination and Assessment in the correspondence tab of the employer's MyTax Illinois profile. The mail date on the Determination and Assessment is October 3, 2017 to allow time for system processing. Due to a system error, the Department does not email the employer until October 4, 2017 to inform it that the Determination and Assessment has been posted to the MyTax Illinois website. Even if the employer logs into its MyTax Illinois account and views the document on October 1, 2017, notice of the Determination and Assessment will be treated as having been mailed on October 4, 2017.

 

EXAMPLE 2: An employer has elected to stop receiving notice through USPS under subsection (d). On October 1, 2017, the Department posts a Determination and Assessment in the correspondence tab of the employer's MyTax Illinois profile. The mail date on the Determination and Assessment is October 3, 2017 to allow time for system processing. The Department sends the employer an email on October 2, 2017 to inform it that a notice has been posted to the MyTax Illinois website. Notice of the Determination and Assessment will be treated as having been mailed on October 3, 2017.

 

g)         The email notifying the person or employing unit that a notice has been posted to the MyTax Illinois website may not be responded to by email. If the notice posted to the MyTax Illinois website provides for appeal rights or otherwise allows or requires a response by the person or employing unit, the person or employing unit must appeal or respond according to the instructions provided on the notice, whether posted to the MyTax Illinois website or sent through USPS.

 

EXAMPLE: On November 1, 2017, the Department sends an employing unit an email notifying the employing unit that a notice has been posted to the MyTax Illinois website. The notice posted to the MyTax Illinois website is an Annual Notice of Contribution Rate Determination. The notice informs the employing unit that, pursuant to Section 2725.105, it may file an application for review of the notice of contribution rate determination online using MyTax Illinois or by mail at the address on the Notice of Contribution Rate Determination. On November 2, 2017, the president of the employing unit signs into MyTax Illinois and sees the rate notice. Instead of submitting an application for review on MyTax Illinois or by mail, the president of the employing unit sends an application for review of the rate notice in an email response to the email that the Department sent to the employing unit. Since the application for review was not submitted to the Department in accordance with Section 2725.105, as explained on the Notice of Contribution Rate Determination, the application for review will not be treated as filed for purposes of Section 1509 of the Act, and the rate determination will be final against the employing unit. Under  Section 2725.105 and subsection (g), it is the employing unit's responsibility to respond to the notice according to the instructions provided on the notice.

 

h)         If, pursuant to subsection (d), a person or employing unit elects to stop receiving notice as a paper document sent through USPS, the email address or addresses provided by the person or employing unit will continue to be the last known address of the person or employing unit for purposes of the notices described in subsection (a) until the person or employing unit changes its email address or cancels its election to stop receiving notice as a paper document sent through USPS. An election to change an email address or cancel an election to stop receiving notice as a paper document sent through USPS may be completed within MyTax Illinois. A change pursuant to this subsection is not effective until it has been processed by the Department.

 

EXAMPLE 1: Six months after electing to stop receiving notice as a paper document sent through USPS as provided in subsection (d), an employer loses access to the email address it provided to the Department and begins using a new email address. However, the employing unit does not notify the Department of the new email address. On November 1, 2017, the Department posts an Annual Notice of Contribution Rate Determination in the correspondence tab of the employer's MyTax Illinois profile. On the same day, the Department sends the employing unit an email to the email address the employing unit provided to the Department, notifying the employing unit that a notice has been posted to the MyTax Illinois website. The Notice of Contribution Rate Determination informs the employing unit that, pursuant to Section 1509 of the Act, the employing unit has 15 days from November 1, 2017 to file an application for review of the rate determination. Since the employing unit no longer has access to the email address it provided to the Department, it does not receive the email or retrieve the notice in MyTax Illinois. On November 20, 2017, the employing unit signs into MyTax Illinois, sees the rate notice, and immediately files an application for its review. Since the application for review was filed more than 15 days after the mail date listed on the notice, which was also the date that the Department sent an email to the employing unit's last known address, the application for review is not timely, and the rate determination will be treated as final against the employing unit. Under subsection (h), it is the employing unit's responsibility to notify the Department of its new mailing address through MyTax Illinois. 

 

EXAMPLE 2: An employing unit establishes a MyTax Illinois account and, pursuant to subsection (d), elects to stop receiving notice as a paper document sent through USPS. The employing unit provides an email address for the account "oldemail@example.com." The Department posts a Determination and Assessment in the correspondence tab of the employer's MyTax Illinois profile and sends an email notification to the email address provided by the employing unit. The employing unit's email sends an automatic reply to the Department that states: "My email address has changed. Please email me at my new email address: newemail@example.com". Since the email sent by the Department is an automated notification and is unable to receive replies, the Department does not update the email address of the employing unit. Notice will be treated as properly served on the employing unit when sent to the original email address provided by the employing unit (oldemail@example.com). It is the employing unit's responsibility to notify the Department of its new mailing address through MyTax Illinois.

 

(Source:  Added at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.45  Signature Requirement

 

Unless otherwise provided, a letter, form or request that is required to be signed by this Part and 56 Ill. Adm. Code 2760 and 2765 and that is submitted on behalf of an employing unit must be signed by the owner, partner or authorized officer or official of the employing unit, or its authorized agent. Unless otherwise provided, a letter, form or request that is required to be signed by this Part and 56 Ill. Adm. Code 2760 and 2765 and that is submitted by or on behalf of an individual that is not himself or herself an employing unit must be signed by the individual or his or her agent. A letter, form or request that is required to be signed as provided in this Section may be electronically signed (see Section 2725.50). A signature, including an electronic signature, constitutes an attestation that the information submitted is true and correct to the best of the signatory's knowledge and belief.

 

(Source:  Added at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.50  Electronic Signature

 

An electronic submission, as defined by Section 2725.35, that must be signed shall be signed using an electronic signature in lieu of a written signature by clicking the "I Agree" check box beneath the certification statement prior to submission on the MyTax Illinois website (mytax.illinois.gov).  An electronic submission has the same legal effect as a signature on a paper document.

 

(Source:  Added at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.55  Forms

 

Blank copies of all reports and forms mentioned in this Part and 56 Ill. Adm. Code 2760 and 2765 are available on the Department's website (ides.illinois.gov) and, except the reports described in 56 Ill. Adm. Code 2760.105, may also be obtained by contacting the Department's Revenue Division at 33 S. State St., 10^th Floor, Chicago IL 60603.  Copies of the reports described in that Section may be obtained from the Illinois Department of Revenue at Central Registration Division, Illinois Department of Revenue, PO Box 19030, Mail Code 3-222, Springfield IL 62794-9030.

 

(Source:  Added at 43 Ill. Reg. 1537, effective January 15, 2019)

SUBPART B: FILING OF APPLICATIONS AND CLAIMS FOR RELIEF

 

Section 2725.100  Application For Revision Of Statement Of Benefit Charges

 

a)         Applications for Revision of the Statement of Benefit Charges must be filed at the address specified on such Statement, within 45 days of the mailing of such Statement, as provided in Section 1508 of the Act.

 

b)         An Application shall set forth:  the name and Social Security account number of each claimant whose benefit charges are contested; the amount of benefit charges contested or the weeks of benefit charges contested; the year and quarter of the Statement contested; and, in the cases described in subsections (b)(1), (2) and (3) below, a statement of facts providing the basis for relief upon which the employer relies in its Application.

 

1)         If an employer alleges that the benefit charges arose from the payment of benefits to a claimant for weeks of eligibility to which the employer was entitled to notice of a determination pursuant to Sections 702 or 703 of the Act, and was not notified of such determination of eligibility and the claimant was improperly paid benefits, the employer must show that it filed in response to notice of the claim, a timely (see 56 Ill. Adm. Code 2720.30) Notice of Possible Ineligibility or letter in lieu thereof alleging that the claimant was ineligible for benefits for the weeks charged and did not receive a determination of eligibility or decision holding the Notice of Possible Ineligibility or letter in lieu thereof as insufficient or untimely.

 

A)        A copy of the allegedly unanswered Notice of Possible Ineligibility or letter in lieu thereof should, if possible, be included with the Application, together with any subsequent documentation where applicable, such as a Referee or Board of Review decision holding the Notice of Possible Ineligibility as sufficient.

 

B)        If the employer did not file a timely and sufficient Notice of Possible Ineligibility or letter in lieu thereof (pursuant to 56 Ill. Adm. Code 2720.130) in response to the notice of claim, the employer's remedy is to request a reconsidered determination from the local office Claims Adjudicator where the claimant filed for benefits, pursuant to Section 703 of the Act, or if a determination of eligibility was served upon the employer, its remedy is to file an appeal to the determination under Section 800 of the Act.

 

C)        If the determination of eligibility for the weeks charged is reversed, the employer will receive appropriate relief from the benefit charges through the operation of Section 706 of the Act.

 

2)         If the employer is charged for benefits and claims that it was not sent a notice that a claim was filed, the employer must allege this fact and, at a hearing, must prove lack of notice and must show the reasons why the payment of benefits to the claimant for the weeks charged is improper.

 

A)        If an employer was served with a notice that a claim was filed, the employer's remedy for relief of the benefit charges is its protest of the claimant's eligibility pursuant to Section 800 of the Act or a request for reconsideration of a determination pursuant to Section 703 of the Act with the Claims Adjudicator at the local office where the claimant filed for benefits.

 

B)        If the determination is subsequently modified or reversed, the benefit charges will be modified or cancelled, as appropriate, through the operation of Section 706 of the Act.  (See 56 Ill. Adm. Code 2720).

 

3)         When the employer alleges that a clerical error was made by the Agency, the nature of the clerical error and its effect on the benefit charges must be clearly stated.  A copy of the material bearing the error must accompany the Application.

 

c)         An Application which fails to meet the criteria in subsection (b)(1) thru (3) shall be ruled insufficient and the Director shall serve notice of such ruling and the basis therefor upon the employer.  The ruling shall be final and conclusive unless the employer files, within 20 days of the date of mailing of the ruling, a written objection or a revised Application for Revision of the Statement of Benefit Charges, specifically responding to the reasons the original Application was ruled insufficient.  The written objection or revised Application shall be reviewed and, if sufficient, an order issued.  An employer disagreeing with such order may appeal to a Director's Representative under Subpart C of this Part if such appeal is taken within 20 days of the date of mailing of the order. If the written objection or revised Application is still found to be insufficient, it shall again be ruled insufficient, and such ruling shall be final and subject to review under the State's Administrative Review Law [735 ILCS 5].

 

1)         Where an employer alleges that a claimant was not an unemployed individual under Section 239 of the Act during a period when such claimant was paid benefits, no relief shall be available under Section 1508 of the Act, but the matter shall be referred to the local office where the claimant last filed a claim for benefits for investigation to which such employer shall be a party.  If the claimant is determined ineligible, appropriate relief will be granted to such employer under Section 706 of the Act.

 

2)         Where an employer alleges that his Statement of Benefit Charges is incorrect because it is not the chargeable employer pursuant to Section 1502.1 of the Act, such Application must contain a reference to and a copy of the decision which reverses the claims adjudicator and holds that the employer is not the chargeable employer.  Unless the employer has filed a timely request for reconsideration to the decision that the claims adjudicator has found it to be the chargeable employer, pursuant to 56 Ill. Adm. Code 2765.325, 2765.326 or 2765.329, such employer shall not be entitled to a revision of its "Statement of Benefit Charges".

 

d)         Upon receipt of a sufficient Application, the Application shall be ordered allowed or denied in whole or in part and notice of such order stating the basis therefor shall be mailed to the employer.  Such application will be allowed in part and denied in part where the employer has contested multiple benefit charges but has made sufficient allegations on some but not all.  Such order shall become final and conclusive at the expiration of 20 days from the date of mailing of such order, unless the employer shall have filed a Petition specifying its objections thereto.

 

e)         Where the allegation in the Application is lack of notice of a determination or reconsidered determination and the ineligibility of the claimant for a specific reason, such employer shall be sent either a copy of the original determination or reconsidered determination, as may be applicable, and if the allegation of lack of notice proves to be true, the period for filing a timely appeal under Section 800 of the Act and 56 Ill. Adm. Code 2720,  Subpart C shall begin from the date of mailing of the copy of the determination or reconsidered determination.

 

(Source:  Amended at 20 Ill. Reg. 6378, effective April 29, 1996)

 

Section 2725.102  Filing Additional Information for an Application for Revision of Statement of Amount Due for Benefits Paid During the Effective Period of Section 1502.4 of the Act

 

a)         Subject to subsection (b), if an Application for Revision of the Statement of Amount Due for Benefits Paid has been timely filed, an employer may file, within 30 days after the period for filing an application has ended, additional information to be considered as part of its application.

 

b)         Subsection (a) shall be applicable to benefits paid for the weeks of March 15, 2020 through January 2, 2021 (the period that the non-charging provisions of Section 1502.4 of the Act is in effect), and shall not extend beyond the calendar quarter that follows the calendar quarter that contains the last week of non-charging under Section 1502.4 of the Act.

 

EXAMPLE:  Employer A is a liable nonprofit organization that has elected to make payments in lieu of contributions. Claimant Z worked for Employer A, but due to COVID-19 became unemployed and received unemployment insurance benefits through the week ending January 2, 2021. Without an amendment extending the effective period established in Section 1502.4 of the Act, the week ending January 2, 2021 is the last week that the non-charging provisions of Section 1502.4 of the Act are in effect. The week ending January 2, 2021 falls within the first calendar quarter of calendar year 2021. Accordingly, the last Statement of Amount Due for Benefits Paid for which Employer A may file a timely application for revision, and thereafter have an additional 30 days to file additional information, is the statement issued for the second calendar quarter of calendar year 2021.

 

(Source:  Added at 44 Ill. Reg. 17657, effective October 23, 2020)

 

Section 2725.105  Application for Review of Rate Determination

 

a)         An Application for Review of Rate Determination should be filed online using MyTax Illinois (mytax.illinois.gov) or at the address on the Notice of Contribution Rate Determination.  An application must be signed and filed within 15 days after the mailing of the Notice of Contribution Rate Determination to the employer.  If an application has been timely filed, an employer may file additional information to be considered as part of its application within 30 days after the period for filing an application has ended.

 

b)         A sufficient application shall set forth the following:

 

1)         If the rate determination is based in whole or in part on erroneous benefit charges, the application must allege:

 

A)        The employer was not served with a Statement of Benefit Charges containing the benefit charges used in the calculation of the employer's contribution rate; or

 

B)        The employer has received an order or decision allowing an adjustment of the benefit charges used in calculating the employer's contribution rate.  A copy of the order or decision must be attached to the application.

 

2)         If a determination or decision allowing the payment of benefits has finally been reversed or modified and the benefit charges resulting from the benefit payment were not revised in accordance with the provisions of Section 706 of the Act, the employer shall provide a copy of the final reconsidered finding, reconsidered determination or decision.

 

3)         If the Department has made a mathematical error, the employer shall provide a detailed, clear statement showing the correct calculations.

 

4)         If the employer alleges that the provisions of Section 1507 of the Act have been erroneously applied, the employer must show that it complied with 56 Ill. Adm. Code 2760.105(b), if applicable, and shall provide a statement of whether the employer has succeeded to substantially all or to a distinct severable portion of the employing enterprises of a predecessor, or whether a successor has succeeded to substantially all or a distinct severable portion of the employer's employing enterprises, and the factual basis for those statements.

 

5)         If an employer alleges that the provisions of Section 1507.1 of the Act have been erroneously applied, the employer must show that it complied with 56 Ill. Adm. Code 2760.105(b), if applicable, and shall provide a statement of whether the employer is a transferee of trade or business and whether there is common ownership, management or control, and the factual basis for those statements.

 

6)         If the employer alleges an incorrect North American Industry Classification System (NAICS) code, a statement of the employer's primary activity and the factual basis for that statement must be provided.

 

7)         If the employer alleges that it has not been credited with the full amount of wages for insured work subject to the payment of contributions that it reported, it shall state the exact amount of the wages and the quarters for which the wages were reported and shall provide a copy of its Employer's Contribution and Wage Report (see 56 Ill. Adm. Code 2760.25) and any forms, Social Security Number Correction and Name Change Notice used to report additional wages for the same quarters (see 56 Ill. Adm. Code 2760.145).

 

c)         An application that does not specify the factual basis for relief sought, or does not contain the information required by the applicable Section of this Part, shall be ruled insufficient.  The ruling shall be final and conclusive unless the employer files, within 10 days after the date of mailing of the ruling, a written objection or revised application specifically responding to the reasons the original application was ruled insufficient.  If a written objection or revised application has been timely filed, an employer may file additional information to be considered as part of its objection or revised application within 30 days after the period for filing a written objection or revised application has ended.  The written objection or revised application shall be reviewed and an order allowing or denying relief issued.

 

d)         If the application is sufficient, the Department shall investigate the allegations in the application based on agency records and any documents supplied by the employer.  The Department shall issue a written order with reasons for denying the application or allowing the application in whole or in part.

 

e)         An employer disagreeing with the order may appeal to a Director's representative under Subpart C.

 

f)         If the basis for review of the rate determination is a pending benefit charge matter, the matter is not a basis for relief under this Section, but rather the employer's remedy is pursuant to Section 1508 of the Act and Section 2725.100.  If the benefit charges are modified or cancelled, as appropriate, through the operation of Section 2725.100, appropriate relief will be granted through the operation of Sections 1508 and 1509 of the Act.

 

EXAMPLE:  While review of a benefit charge matter is pending, the employer receives a Notice of Contribution Rate Determination based on the contested benefit charges.  This employer's pending Application for Revision of Statement of Benefit Charges shall be deemed to be an Application for Review of that portion of its rate based on the contested Statement.  If the employer prevails on the application , its benefit ratio shall be modified accordingly and, if this results in a change to its rate, a revised Notice of Contribution Rate Determination will be issued.

 

(Source:  Amended at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.110  Protest of Determination and Assessment

 

a)         A protest of a Determination and Assessment must be filed in the form of a petition and should be filed online using MyTax Illinois (mytax.illinois.gov) or at the address shown on the Determination and Assessment.  A protest must be signed and filed within 20 days after service.  If a protest has been timely filed, an employer may file additional information to be considered as part of its protest within 30 days after the period for filing a protest has ended.

 

b)         A sufficient Petition shall set forth the specific part of the Determination and Assessment with which the employing unit disagrees and the specific legal and factual basis for the disagreement and, in the specific situations described in this subsection (b), will state the following:

 

1)         If the employing unit alleges that it has paid all or part of the amount assessed, the exact amount of the contributions, penalties and interest paid, if any, the date paid and the quarter to which the payment relates;

 

2)         If the employing unit alleges that the Determination and Assessment is erroneous because of clerical error,  the specific nature of the clerical error;

 

3)         If the employing unit claims one or more persons whose wages are the basis of the Determination and Assessment were not in employment,  the names, addresses and Social Security account numbers of those persons, the nature of the services performed, if any, and the reasons the person or persons are not considered in employment; or

 

4)         If the employing unit alleges that it is not an employer subject to the Act,  the reasons for that allegation and supporting facts.

 

c)         An employing unit that files a petition that does not contain the information required by subsection (b) shall be notified of the insufficiency and given 20 days after the date of mailing of that notice to revise the petition or file objections to the notice.  A revised petition or objections to the notice must be signed and should be filed online using MyTax Illinois or at the address shown on the notice of insufficiency.  If a revised petition or objections to the notice of insufficiency have been timely filed, an employer may file additional information to be considered as part of its application within 30 days after the period for filing a petition has ended.  If a revised petition or objections responding to the notice are filed within 20 days after the date of mailing of the notice and the petition or revised petition is still determined to be insufficient, the revised petition or original petition and objections, as the case may be, shall be adjudicated under Subpart C.  If no further documents are filed or corrections made, electronically or by mail, within 20 days after the date of mailing of the notice of insufficiency, the petition shall be ruled insufficient and the ruling, notice of which shall be provided to the employing unit, shall be final and subject to review under the State's Administrative Review Law [735 ILCS 5/Art. III].

 

d)         An employing unit that files a petition, but not within the time prescribed, shall be notified of its untimeliness and given 20 days after the date of mailing of the notice to submit further information or objections to the notice of untimeliness.  Objections to the Notice of Untimeliness must be signed and should be filed online using MyTax Illinois or at the address shown on the notice of untimeliness.  If further information or objections to the notice of untimeliness has been timely filed, an employer may file additional information to be considered as part of its submission within 30 days after the period for submitting further information or objections has ended.  If, within 20 days after the date of mailing of the Notice of Untimeliness, information or objections are filed but do not sufficiently respond to the notice of untimeliness, the petition shall be adjudicated under Subpart C.  If, within 20 days after the date of mailing of the notice of untimeliness, no information or objections are filed, the petition shall be ruled untimely and the ruling, notice of which shall be provided to the employing unit, shall be final and subject to review under the Administrative Review Law.

 

e)         Except as provided in subsection (f), if the petition is sufficient and timely, the Department will investigate the allegations in the petition based upon Department records and any documents supplied by the employing unit.  If the Department determines that the petition should be allowed, the Department shall cancel the Determination and Assessment by written order.  If the Department determines that the petition should be allowed in part and denied in part, the Department shall modify the Determination and Assessment by written order, with reasons for the partial denial.  An employing unit disagreeing with the Order to Modify the Determination and Assessment may file a petition to the Modified Determination and Assessment as provided in subsections (a) and (b).  If the Department determines that the Determination and Assessment should be affirmed, the petition shall be adjudicated under Subpart C.

 

f)         If an employing unit files a timely and sufficient petition in response to a Modified Determination and Assessment issued under subsection (e) or a Determination and Assessment that is issued as a result of an audit, the petition shall be adjudicated under Subpart C.

 

(Source:  Amended at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.115  Claim For Adjustments (Credits) And Refunds

 

a)         Claims for Adjustments (credits) or Refunds must be signed and should be made online using MyTax Illinois (mytax.illinois.gov) or on the Department form Employer's Claim for Adjustment/Refund and filed at the address listed on the form.  Except as provided in this subsection,  a claim must be filed within three years after the date the employing unit paid the contributions, interest or penalties that are the basis of the employing unit's claim.  In the case of an erroneous payment that occurred January 1, 2015 through September 8, 2017, the employing unit may file the claim for adjustment or refund not later than June 30, 2018 or three years after the date of the erroneous payment, whichever is later.  If a claim for adjustment or refund has been timely filed, an employer may file additional information to be considered part of its claim within 30 days after filing the claim.

 

b)         A sufficient Claim for Adjustment (credit) or Refund must meet the requirements set forth in 56 Ill. Adm. Code 2760.150 and shall set forth the reason for the refund as follows:

 

1)         The employer overpaid due to a mathematical error.  For example, the employer misplaced a decimal point in computing his or her contributions due;

 

2)         The employer paid at an incorrect rate.  For example, the assigned rate was 2.0% and the employer paid at 3.7%.  This frequently occurs the first year an employer receives a rate based on its experience;

 

3)         The employer reported wages paid to workers to Illinois that should have been reported to a different state.  In this case, the employer must supply the Department with a list of workers' names and Social Security numbers on the form titled "Employer's Correction Report of Wages Previously Reported" if he or she has not already done so on form UC-40C "Employer's Correction Report For The Quarter" (see 56 Ill. Adm. Code 2760.145(a)).  If any benefits have been paid to these workers by Illinois, the refund amount shall be adjusted downward to reflect any benefits paid due to the employer's error;

 

4)         The employer reported payments that are excluded from the definition of "wages" by the Act.  For example, a sole proprietor reported compensation paid to his or her parents.  In these cases, the employer must supply the Department with a list of the workers' names and Social Security numbers on an  "Employer's Correction Report For Wages Previously Reported" if he or she has not already done so on an "Employer's Correction Report For The Quarter" (see 56 Ill. Adm. Code 2760.145(a)).  If any benefits have been paid to these workers, the refund amount shall be adjusted downward to reflect any benefits paid due to the employer's error;

 

5)         The employer incorrectly reported total payments as wages subject to the payment of contributions;

 

EXAMPLE:  The employer made an error in computing the excess wages.  In this case, the employer must file an "Employer's Correction Report Of Wages Previously Reported" to correct his or her error if he or she has already not done so on an "Employer's Correction Report For The Quarter" (see 56 Ill. Adm. Code 2760.145(a)).

 

6)         The employer overpaid due to a rate revision;

 

EXAMPLE:  The employer's rate is revised downward after he or she has already paid the contributions for the quarter, thus creating a credit balance for which he or she can request a refund or adjustment.

 

7)         The employing unit is not an employer subject to the Act, but has paid contributions;

 

8)         Any other circumstances that would show that the employer overpaid his or her contributions;

 

9)         The employing unit has paid interest and/or penalties that were determined not due.

 

c)         If the Claim for Adjustment (credit) or Refund is sufficient, the Department will investigate the allegation in the claim by examining Department records and documents supplied by the employer and then issue a written order.

 

d)         A claim that does not specify the factual basis for the relief sought or does not contain the information required by subsection (b) shall be ruled insufficient.  The ruling shall be final and conclusive unless the employer files, within 20 days after the date of mailing of the ruling in accordance with Section 2203 of the Act, a written objection or revised claim, specifically responding to the reasons the original claim was ruled insufficient.  The written objection or revised claim must be signed and should be filed online using MyTax Illinois or at the address listed on the ruling.  If a written objection or revised claim has been timely filed, an employer may file additional information to be considered as part of its submission within 30 days after the period for filing a written objection or revised claim has ended.  The written objection or revised claim shall be reviewed and an order, allowing in whole or in part or denying in whole or in part, shall be issued.  An employer disagreeing with the order may appeal to a Director's representative under Subpart C.

 

(Source:  Amended at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.120  Application For Cancellation Of Benefit Charges Due To Lack Of Notice

 

a)         An Application for Cancellation of Benefit Charges due to lack of notice made pursuant to Section 1508.1 of the Act shall be sufficient only if the following requirements are met:

 

1)         The employer has also filed a timely and sufficient Application for Revision of Statement of Benefit Charges, as provided in Section 2725.100; and

 

2)         The employer specifically alleges in its Application for Cancellation of Benefit Charges that the Agency did not issue one or more of the following Notices within the required time period:

 

A)        A "Notice to Last Employer, Last Employing Unit or Other Interested Party," (See 56 Ill. Adm. Code 2720.130(a)(1)) within 180 days after the date of the initial Finding; or

 

B)        A "Notice of Determination" (BEN-134) (See 56 Ill. Adm. Code 2720.140(a)) under Section 702 of the Act within 180 days after the employer's timely "Notice of Possible Ineligibility" (BIS-22) or letter in lieu thereof (see 56 Ill. Adm. Code 2720.130), or, in the case of a remanded Decision regarding the sufficiency of the employer's protest under Section 702 of the Act, within 180 days after the remanded Decision; or

 

C)        In the case of a "Notice of Determination" (BEN-134) issued under Section 702 of the Act, in which an issue was not adjudicated at the time of the employer's timely "Notice of Possible Ineligibility" (BIS-22) or letter in lieu thereof, because of the individual's failure to file a claim for a week of benefits, within 180 days after the date on which the individual first files a claim for a week of benefits; or

 

D)        A "Notice of Reconsideration of Findings" or "Notice of Reconsideration of Determination" (BEN-134), within 180 days after the date of reconsideration; or

 

E)        A "Notice of Referee's Decision" (See 56 Ill. Adm. Code 2720.270), which allows benefits within 180 days after the date that the appeal was received by the Agency; or

 

F)         Under Section 604 of the Act, a "Notice of Director's Decision" within 180 days after the date of the report and Recommended Decision of the Director's Representative; or

 

G)        With respect to the notice of a decision that the employer is a chargeable employer, pursuant to 56 Ill. Adm. Code 2765, within 180 days after the employer's protest or appeal of such a decision.

 

b)         A citation to Section 1508.1 of the Act or this Section of the Rules need not be made in the Application, nor is it necessary to specifically allege the failure of the Agency to act within 180 days.

 

            Example:  The employer meets the requirements of subsection (a)(1) and alleges that the Agency failed to respond to its timely "Notice of Possible Ineligibility" (BIS-22) or letter in lieu thereof by issuing a "Notice of Determination" (BEN-134).  If the Agency finds that the allegations contained in the employer's Application for Cancellation of Benefit Charges are true, and 180 days have elapsed since the employer's "Notice of Possible Ineligibility" (BIS-22) or letter in lieu thereof, then the benefit charges in question will be cancelled.

 

c)         The Application for Cancellation of Benefit Charges can be made a part of an Application for Revision of Statement of Benefit Charges provided that the requirements of subsection (a)(2) are satisfied.

 

d)         An Application for Cancellation of Benefit Charges will be denied if an Application for Revision of Statement of Benefit Charges regarding the same benefit charges and based on the same allegation has already been denied.

 

e)         The cancellation of benefit charges will be allowed if it is proven by the employer that:

 

1)         The employer meets the definition of a "party" under 56 Ill. Adm. Code 2720.1; and

 

2)         The Agency failed to issue one or more of the "Notices", as set forth in subsection (a)(2); and

 

3)         The employer has satisfied the requirements of Section 1508 of the Act; and

 

4)         The Agency's actions directly resulted in the payment of benefits to an individual and hence caused benefit charges in accordance with the provisions of Sections 1501, 1501.1, 1502 and 1502.1 of the Act.  For the purposes of this Section, the Agency's actions "directly resulted" in the payment of benefits where the Agency fails to respond to a timely, where required, notice from an employer within the time limits set in subsection (a)(2).

 

            Example 1:  The employer files a late appeal to the Referee (after expiration of the 30 day appeal period set forth by Section 800 of the Act).  Even if the Agency fails to rule on the employer's appeal within 180 days from the date the appeal is filed, the employer's benefit charges will not be cancelled, as the Agency's failure to rule on an issue over which the Referee has no jurisdiction cannot "directly result" in the payment of benefits.  This result would be different if the employer proves that its appeal was filed in a timely manner.

 

            Example 2:  The employer files a timely "Notice of Possible Ineligibility" (BIS-22) or letter in lieu thereof to which the Agency makes no response within 180 days.  Even if the claimant is found to be eligible for benefits, these benefit charges will be subject to cancellation if the other requirements of this Section are met.

 

f)         All of the provisions of Section 1508 of the Act and Section 2725.100 of this Part, applicable to Applications for Revision of Statements of Benefit Charges and not inconsistent with the provisions of Section 1508.1 of the Act and this Section, shall apply to Applications for Cancellation of Benefit Charges under Section 1508.1 of the Act.

 

            Example:  The employer must file its timely Application for Revision of Statement of Benefit Charges in response to a Statement of Benefit Charges. If any benefit charges are allowed by the employer to become final, it cannot later request that the benefit charges be cancelled due to its subsequently meeting the requirements of Section 1508.1 of the Act.

 

(Source:  Amended at 20 Ill. Reg. 6378, effective April 29, 1996)

 

Section 2725.125  Elections to Make Payments in Lieu of Contributions and Written Notices of Termination of Election by a Nonprofit Organization or Governmental Entity

 

a)         Elections by a nonprofit organization or governmental entity to make payments in lieu of contributions must be signed and should be made online using MyTax Illinois (mytax.illinois.gov) or on the Department form "Reimburse Benefits in Lieu of Paying Contributions", mailed to the address listed on the form.

 

b)         A nonprofit organization or governmental entity that would like to terminate its election to be reimbursable may do so either online using MyTax Illinois or in writing, mailed to: Illinois Department of Employment Security, Revenue Division, 33 S. State St., 10^th Floor, Chicago IL 60603.  There is no special form needed to terminate an election to be reimbursable if submitted by mail.  A notice to terminate an election to be reimbursable must be signed, whether submitted online using MyTax Illinois or by mail. 

 

c)         An application for review of a Director's order allowing or denying an election to make payments in lieu of contributions and written notices of termination of election must be signed and filed within 15 days after the date of mailing of the order and should be filed online using MyTax Illinois or in writing, mailed to the address listed on the order. 

 

(Source:  Added at 43 Ill. Reg. 1537, effective January 15, 2019)

SUBPART C: APPEAL TO DIRECTOR'S REPRESENTATIVE

 

Section 2725.200  Filing Of Appeal

 

a)         An employing unit may appeal an order or Determination and Assessment of the Director by filing a written petition.  The petition must be signed and should be filed online using MyTax Illinois (mytax.illinois.gov) or at the address shown on the order or Determination and Assessment being appealed.  The Petition must be filed within 20 days after the Director's order or Determination and Assessment was served on the employing unit, except for orders on application for review of rate determinations, which must be filed within 10 days after the date of service.

 

b)         No special form is necessary to file a petition.  However, in addition to the requirements of Section 2725.25, the following must be included:

 

1)         The petition must be in writing, dated and signed; and

 

2)         The petition must set forth the specific parts of the order or Determination and Assessment and when the employing unit disagrees and the specific legal and factual basis for that disagreement.

 

c)         The employing unit may request a prehearing conference.

 

(Source:  Amended at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.205  Pre-Hearing Conference

 

a)         The Director's Representative shall, on his own motion or the motion of a party, conduct a pre-hearing conference, if it expedites the hearing. The pre-hearing conference may be in person or by telephone.  The Director's Representative shall make a record with all stipulations as part of the pre-hearing conference.

 

b)         During or subsequent to the pre-hearing conference, the petitioner may move to commence the hearing in accordance with Sections 2725.215, 2725.220 or 2725.225.  The record shall then be opened and petitioner's waiver of written notice shall be made on the record.

 

Section 2725.210  Notice Of Hearing

 

a)         The Agency shall schedule a hearing and written notice of the date, place and time of the hearing shall be mailed to the parties, at least 25 days prior to the scheduled hearing.

 

b)         If the hearing is to be conducted by telephone, the notice will so inform the parties and include instructions for informing the agency of the necessary telephone numbers (see Section 2725.220).  At least 20 days prior notice shall be given for a telephone hearing.

 

Section 2725.215  Preparation for the Hearing

 

a)         Each party shall appear at the hearing before the Director's Representative with such witnesses and/or documents believed necessary to establish a right to relief as set forth in the Petition.

 

b)         The Agency shall provide to a party requiring a foreign language interpreter, at the Agency's expense, an interpreter able to translate verbatim from the witnesses' language to English and vice versa. The Director's Representative will administer an interpreter's oath to any interpreter.

 

c)         Upon request to the Director's Representative assigned to hear the case, a party may inspect the file at a reasonable time and place.  The date and name of any person inspecting the file shall be placed on the file jacket.

 

(Source:  Amended at 33 Ill. Reg. 9641, effective July 1, 2009)

 

Section 2725.220  Telephone Hearings

 

a)         The Director's Representative has the authority to schedule a telephone hearing.  Any party shall have a right not to participate in a telephone hearing, and any party electing not to participate in a telephone hearing shall be granted an in-person hearing. If a hearing is to be conducted by telephone, the notice shall so inform the parties and include instructions for providing the Agency with any necessary telephone numbers.  The in-person presence of some parties or witnesses at the hearing shall not prevent the participation of other parties or witnesses by telephone.

 

b)         A party to a telephone hearing must submit to the Director's Representative, at least 5 days before the date of the scheduled hearing, any documents that are intended to be introduced at the hearing.  Copies of the documents must also be provided to any other party prior to the date of the scheduled hearing.  All documents submitted to the Director's Representative will be identified on the record.

 

(Source:  Amended at 43 Ill. Reg. 6434, effective May 14, 2019)

 

Section 2725.225  Ex Parte (One Party Only) Communications

 

a)         The Director's Representative shall not initiate ex parte communications, directly or indirectly, in any matter in connection with any substantive issue, with any interested person or party.  If the Director's Representative receives any such ex parte communication, including any documents, he shall inform the other parties of the substance of any such oral communication or documents.  The other party shall be given an opportunity to review any such ex parte communication.

 

b)         Nothing shall prevent the Director's Representative from communicating ex parte about routine matters such as requests for continuances or opportunities to inspect the file, as long as all parties are informed of the substance of the ex parte communication.  The date and type of communication, the persons involved and the results of such routine communications shall be part of the record.

 

Section 2725.230  Subpoenas

 

a)         The Director's Representative may issue a subpoena to compel the attendance of a witness or the production of documents when such witness or the production of documents when such witness or document has or contains relevant evidence but is not being presented by the party, witness or holder of a document.  A party may also request the Director's Representative to issue a subpoena to compel the attendance of a witness or the production of documents.  The request shall be either in writing or on the record and shall:

 

1)         Identify the witness or document sought;

 

2)         State the facts that will be proven by each witness and/or document sought.

 

b)         The Director's Representative shall grant or deny the request, either in writing or on the record.  If the Request for Subpoena is granted, the Director's Representative shall, if necessary, reschedule the hearing to a specific date.  The Request for Subpoena shall be denied only if the Director's Representative finds that the evidence sought is immaterial, irrelevant or cumulative.  If the Request for Subpoena is denied, the Director's Representative shall proceed to conduct the hearing, and the specific reasons for denial of the Request for Subpoena shall be made part of the record on appeal.

 

c)         If a witness fails to obey a subpoena, the party seeking enforcement of the subpoena shall prepare an application to the circuit court of the county in which the subpoenaed witness resides requesting enforcement of the subpoena pursuant to Section 1002 of the Act and shall present the application to the Director's Representative.  If satisfied that the subpoena was properly served and that the application is in proper form, the Director's Representative shall sign the application and the party seeking enforcement of the subpoena, or its attorney, may then file and prosecute the application to the circuit court.  In such instance, the matter shall be contained pending the outcome of enforcement of the subpoena.

 

Section 2725.232  Depositions

 

a)         Where any hearing is pending under this Part, the Director's Representative shall order the taking of a person's deposition, specifying the subject matter to be covered, under oral examination or written questions for use as evidence at the hearing if:

 

1)         It appears to the Director's Representative that the deposition of such person is necessary for the preservation of relevant testimony because of a substantial possibility it would be unavailable at the time of the hearing (i.e. potential witness is moving out of state, incarcerated, etc.); and,

 

2)         Such request is made by a motion of a party who gives notice of this motion to any other parties to the issue and to the Office of Legal Counsel of the Agency.

 

b)         The taking of depositions shall be in accordance with the rules for the taking of depositions in civil cases, and the order for the taking of a deposition may provide that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.

 

c)         Any other parties and the Agency shall have the right to confront and cross-examine any witness whose deposition is taken.  The other parties and the Agency may waive such right in writing, filed with the Director's Representative.

 

d)         Depositions shall be taken in the county of residence or of employment of the witness, as specified in Rule 203 of the Rules of the Illinois Supreme Court, unless the witness waives such right in writing.

 

e)         Failure to obey an order for deposition shall result in the same sanctions as provided in Section 2725.230 for failure to comply with a subpoena.

 

Section 2725.235  Consolidation Or Severance Of Proceedings

 

a)         The Director's Representative shall, on his own motion or the motion of a party, consolidate hearings if he finds that hearings involve a common question of law or fact, that consolidation will expedite the hearings, and that no rights of any party will be prejudiced.

 

b)         All parties shall be given notice of the motion to consolidate and opportunity to be heard on the motion.

 

c)         The Director's Representative shall sever cases previously consolidated if it appears that the requirements of subsection (a) are not met.

 

Section 2725.237  Adding Necessary Parties

 

a)         The Director's Representative shall add one or more additional parties whenever he finds that it is necessary for the proper disposition of a case. Such additional party or parties shall be given reasonable notice of this action and an opportunity to be heard.

 

            Example:  The Director issues a Determination and Assessment based on a finding that Employer A has failed to report and pay contributions on wages that it paid to Mr. Smith.  Employer A contends that it did not employ Mr. Smith but that he was employed instead by Employer B.  Employer B, which has a lower contribution rate than Employer A, reported the wages of Mr. Smith and paid contributions on those wages so that it is not possible to make a Determination and Assessment against Employer B and then to consolidate the cases.  If the Director's Representative finds that it is necessary for the proper disposition of the case, he shall add Employer B as a party, and Employer B shall be given reasonable notice and an opportunity to be heard.

 

b)         Whenever an employing unit believes that it should be added as an additional party in a case pending before the Director's Representative but the Director's Representative has not done so, it shall file a Motion to Intervene. Such Motion shall include arguments in support of such Motion.  If the Director's Representative finds that the addition of the employing unit is necessary for the proper disposition of the case, it shall be added as a party. If the Director's Representative finds that the addition of the employing unit is not necessary for the proper disposition of the case, the Motion shall be denied and the reasons therefor noted in the record.

 

(Source:  Added at 16 Ill. Reg. 113, effective December 23, 1991)

 

Section 2725.240  Withdrawal Of Petition For Hearing

 

The employer may voluntarily withdraw his petition by filing a signed written statement with the Director's Representative or by oral statement on the record.  Any other parties will receive notice of the withdrawal.

 

Section 2725.245  Continuances

 

All requests for continuances of hearings or pre-hearing conferences must be either in writing or on the record and must set forth the reasons for such request.  The Director's Representative to whom the matter was assigned, or the supervisor if the Director's Representative is not available, shall grant a continuance for good cause shown, such as the unavailability of a witness or a party due to accident, illness or circumstances beyond the person's control.  In that event, the hearing will be rescheduled to the earliest mutually agreeable time and date and the agency will inform all parties of the date and time of the rescheduled hearing.

 

Section 2725.250  Conduct of Hearing

 

a)         The Director's representative will control the hearing, which will be confined to the relevant factual and/or legal issues.

 

b)         At the hearing, the petitioning employer must produce testimony, argument or other evidence to establish that the Director's order or Determination and Assessment is incorrect.

 

c)         Following the testimony of each witness, the witness may be questioned and cross-examined by the opposing party, if any, and then may be questioned and cross-examined by the Director's representative or any other employee of the Department as the Director may designate.

 

d)         It is the duty of the Director's representative to ensure that the party or parties, as appropriate, have full opportunity to present all evidence relevant to the issues before the Director's representative.

 

e)         If any person becomes disruptive or abusive, the Director's representative shall exclude that person from the hearing and the hearing will continue without the participation of the excluded individual.  The Director's representative shall render a decision based on all evidence in the record.

 

f)         The Director shall prohibit any person from representing a party in any proceeding under this Part if the Director finds that the person is or has been guilty of violating the Code of Professional Responsibility or Article 8 of the Rules of the Illinois Supreme Court, or has intentionally disregarded the provisions of the Act, rules promulgated under the Act, or written instructions of the Director.  The prohibition shall be in writing and shall be applicable for a period not to exceed 120 days after the date the decision is mailed to the party.

 

(Source:  Amended at 43 Ill. Reg. 1537, effective January 15, 2019)

 

Section 2725.255  Rules of Evidence

 

The rules of evidence as provided in Section 10-40 of the Illinois Administrative Procedure Act [5 ILCS 100/10-40] shall apply.  The Director's Representative need not rule on any objection to the introduction of evidence or testimony, but any such objection shall be duly noted and made part of the record.

 

(Source:  Amended at 35 Ill. Reg. 6129, effective March 25, 2011)

 

Section 2725.260  Oral Argument-Memoranda-Post Hearing Documents

 

a)         The Director's Representative shall give each party an opportunity to present oral argument after the evidentiary hearing has been concluded.

 

b)         The Director's Representative shall, either on the record or in writing, if necessary to clarify the issues, require any party to file a memorandum.  A party at the conclusion of the hearing may file, either in writing or on the record, a notice of intent to file a memorandum in support of its position.  Such memorandum shall include proposed findings of fact and conclusions of law, and the Director's Representative shall set a reasonable schedule for filing any memoranda.  Each party filing such memoranda shall furnish a copy thereof to all other parties, at the time of such filing.

 

Section 2725.265  The Record

 

A complete record shall be kept of all proceedings before the Director's Representative, which shall include all items required by Section 10-35 of the Illinois Administrative Procedure Act [5 ILCS 100/10-35].

 

(Source:  Amended at 35 Ill. Reg. 6129, effective March 25, 2011)

 

Section 2725.270  Recommended Decision

 

a)         The Director's Representative shall issue a recommended decision without a hearing when:

 

1)         The Record fails to state a basis for relief under the facts stated or the law;

 

2)         The Petition or revised Petition, Application for review of rate determination, Application for revision of statement of benefit charges, or Claim for refund or adjustment was not filed in a timely manner as provided for in the Act and no issues relating to timeliness have been raised by the petitioner.

 

b)         The Director's Representative, at the conclusion of the hearing, or upon the failure of an appealing party to appear at a scheduled hearing or failure of that party to provide any necessary telephone number or to answer at a designated telephone number at the time of the scheduled hearing as provided in Section 2725.220, shall submit his or her recommended decision to the Director. The recommended decision shall include:

 

1)         A statement of issues involved;

 

2)         Findings of fact;

 

3)         Conclusions of law;

 

4)         A recommended decision.

 

c)         A copy of the recommended decision shall be served upon all parties.

 

d)         The recommended decision shall become the decision of the Director unless objections are filed to the recommended decision in accordance with Section 2725.275.

 

(Source:  Amended at 43 Ill. Reg. 6434, effective May 14, 2019)

 

Section 2725.275  Objections to Recommended Decision

 

a)         Any party shall have the right to file objections to a recommended decision within 20 days after the service of the recommended decision. The objections shall also be served upon the other parties, if any.

 

b)         Objections to a recommended decision shall be sufficient only if they set forth specifically and in detail a basis for relief.  Failure to file or set forth an objection in accordance with this Section shall be deemed a waiver of the objection.

 

c)         If the employer failed to appear at the hearing before the Director's Representative or failed to provide any necessary telephone numbers at the time of the scheduled hearing as provided in Section 2725.220 and the employer wants a hearing, he or she must file his or her objections and the facts that show the failure to appear, provide the telephone number or answer the telephone was caused by reasons outside of his or her control, or by circumstances that could not be reasonably foreseen and avoided and that there is a likelihood that a hearing on the merits would result in the relief sought.

 

d)         If an employer receives a recommended decision pursuant to Section 2725.270(a), the employer may also demand a hearing before the Director's Representative to orally present objections.  A hearing will be scheduled and shall be limited to the issues set forth in the recommended decision and the objections filed.

 

e)         Upon written request or oral request on the record, within 10 days after service of the recommended decision, the employer shall be granted one 10 day extension of the time for filing objections.  Notice of the request must be served upon the other parties, if any.

 

(Source:  Amended at 43 Ill. Reg. 6434, effective May 14, 2019)

 

Section 2725.280  Decision Of Director

 

a)         After review of the objections to the recommend decision, the Director shall make his decision and serve notice thereof on the party or parties thereto.

 

b)         The Director may, after review of the objections to the recommended decision, order that a matter be remanded to the Director's Representative for rehearing or to take additional testimony whenever the Director believes that there is a basis for relief as provided in this Part or that the record is incomplete.

 

c)         The Director shall issue a decision at any stage of the proceedings where it appears from the pleadings, the Agency file and other matters of record that a decision awarding all the relief sought by the petitioner should be issued and a hearing on the merits would be unnecessary; provided, however, that such a decision shall not be issued if there are other parties who would be denied due process by the lack of notice and the opportunity to be heard.