Section 2765.1  Unemployment Contributions Not Deductible From Wages

 

Contributions or payments in lieu of contributions shall not be deducted or deductible, in whole or in part, from the wages or remuneration of individuals in the employ of either a contributing or reimbursable employer in Illinois.

 

(Source:  Amended at 7 Ill. Reg. 13266, effective January 28, 1983)

 

Section 2765.5  Definitions

 

For the purposes of this Part, the following terms shall have the meaning as defined hereunder:

 

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

 

            "Contributing employer", also known as a regular employer, pays contributions at a specified percentage of the taxable wages paid to individuals performing services in covered employment.

 

            "FUTA" means the Federal Unemployment Tax Act, 26 USC 3301 through 3311.

 

            "Reimbursable employer" is a nonprofit organization as defined in Section 211.2 of the Act or any local governmental entity as determined in Section 211.1 of the Act which elects to make payments in lieu of contributions.

 

            "Unemployment taxes" are the contributions paid by contributing employers and the payment in lieu of contributions paid by reimbursable employers.

 

(Source:  Amended at 25 Ill. Reg. 2011, effective January 18, 2001)

 

Section 2765.10  Payment Of Contributions

 

Contributions based upon taxable wages paid in a calendar quarter are payable on or before the last day of the month following the end of the quarter unless the payment period is shortened pursuant to 56 Ill. Adm. Code 2790.5.

 

Section 2765.11  Employers Who Employ Household Workers and Pay Contributions on an Annual Basis

 

Notwithstanding any other provisions of this Part to the contrary, if an employer to whom 56 Ill. Adm. Code 2760.128 applies provides the notice described in subsection (b) of that Section, then the due date for paying contributions shall be April 15 of the calendar year immediately following the quarters for which the contributions are due.

 

(Source:  Added at 33 Ill. Reg. 9658, effective July 1, 2009)

 

Section 2765.15  Liability For The Entire Year

 

If the liability for the payment of contribution first attaches at any time during the calendar year, contributions are payable on the taxable amount of all the wages paid for the entire year.  The contributions are due and payable on or before the last day of the month following the quarter in which the employer becomes liable.  For example, if the 20^th week in which one or more persons are employed or $1500 in wages are paid for the first time, falls in the third calendar quarter, contributions are payable on all the taxable wages paid during the first three quarters of the year and are due on or before October 31.

 

Section 2765.18  Liability of a Third Party Purchaser or Transferee for the Due and Unpaid Contributions, Interest and Penalties of the Seller or Transferor's Seller or Transferor

 

Under Section 2600 of the Act, whenever a purchaser or transferee acquires substantially all or a class of the assets (as enumerated in that Section of the Act), it shall be required to follow a procedure set forth in the Act to ensure that any contributions, interest and penalties that are due and unpaid are paid. If these contributions, penalties and interest are not so paid, the purchaser or transferee becomes personally liable for these contributions, the interest and the penalties. Since these amounts are then the personal liabilities of the purchaser or transferee, if the purchaser or transferee then sells or transfers substantially all or a class of the assets (as enumerated in that Section of the Act), the subsequent purchaser or transferee shall also become personally liable for these same amounts if it does not follow the procedure set forth in the Act to insure that any contributions, interest and penalties which are due and unpaid are paid.

 

Example:  Company B purchases all of the assets of Company A which owes contributions, interest and penalties to the Director. Company B does not follow the statutory procedure to ensure that the amounts have been paid. Therefore, Company B is personally liable for these amounts. Company B then sells all of its assets to Company C. Company C does not follow the statutory procedure to ensure that the amounts now owed by Company B have been paid. Company C is now also personally liable for these amounts. Companies A, B and C are jointly and severally liable for the amount originally owed by Company A, and the Director may attempt collection from Company A, Company B or Company C.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.20  Contributions Of Employer By Election

 

If an employing unit not otherwise liable elects to become an employer under the Act, and election is approved as of a date other than January 1 of any calendar year, the first payment shall include the contributions with respect to all wages for employment paid on or after the date stated in such approval, and up to and including the last day of the quarter in which such election is approved.

 

Section 2765.25  Payments In Lieu Of Contributions

 

The payments in lieu of contributions are equal to the amount of regular benefits paid to a reimbursable employer's employees who become claimants. If extended benefits are paid to such claimants, a non-profit organization reimburses one-half, and a local governmental entity the full amount, of the extended benefits.

 

Section 2765.30  When Payments in Lieu of Contributions Are Payable

 

a)         The payments in lieu of contributions are due within 30 days after the mailing date of the Statement of Amount Due for Benefits Paid (Form Ben-118R) unless the payment period is shortened pursuant to 56 Ill. Adm. Code 2790.5.  The Ben-118R shows the amount of benefits paid and is mailed as soon as practicable to the reimbursable employer after the end of the calendar quarter to which it refers.

 

b)         Whenever the total amount due on the Ben-118R is less than $2.00, that amount may be disregarded.  Any amount disregarded pursuant to this subsection shall be deemed paid for all other purposes under the Act.  However, nothing in this subsection is intended to relieve any employer from filing reports required by the Act or rules promulgated thereunder.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.35  Payments When Reimbursable Employer Becomes Contributory

 

A reimbursable employer which changes from payments in lieu of contributions to payment of contributions shall start paying contributions in the first calendar quarter of the year when the change is effective. Payment shall be made in the manner provided in 56 Ill. Adm. Code 2765.10. The employer remains liable to reimburse any benefits paid to claimants on or after the effective date of the change on the basis of wages paid to such claimants when the employer was on the reimbursement basis.

 

Section 2765.40  Payments When Contributory Employer Becomes Reimbursable

 

An election by an eligible contributing employer to make payments in lieu of contributions shall not terminate by liability incurred by the employer for the payment of contributions, interest or penalties with respect to any calendar quarter which ends prior to the effective date of the election. The change becomes effective beginning with January 1 of the next calendar year.

 

Section 2765.44  Fee For Not Sufficient Funds (NSF) Checks

 

An employer that attempts to pay amounts due under this Part with a check returned to the Department because of insufficient funds (NSF) in its bank account to cover the amount of the check will be charged a fee of $20.00.

 

(Source:  Added at 18 Ill. Reg. 14952, effective September 27, 1994)

 

Section 2765.45  Application of Payment

 

a)         Whenever the employer makes a payment and it is accompanied by a letter, Employer's Contribution Report or a Statement of Account, the money received shall be applied to the quarter or quarters indicated by the employer.

 

b)         If no designation is made for the application of the remittance, or if the payment received is more than sufficient to cover the quarter to which it applies, the remittance or the excess shall be applied beginning with the oldest or earliest unpaid quarters of the employer, if any.

 

c)         The application of remittance within a quarter is not subject to designation.  Within a quarter, all remittance shall be applied first to recording fees paid with respect to liens, as required by 56 Ill. Adm. Code 2790.25, if any, in the order of earliest to latest, then to NSF fees required by Section 2765.44, in the order of earliest to latest, then to penalties, interest and unemployment contributions, in that order.

 

EXAMPLE:  An employer owes $200 in contributions and $50 in interest for the first quarter of 2016.  The employer remits $100 and asks that it be credited to the unpaid contributions due for the first quarter of 2016.  $50 will be credited to the accrued interest for the first quarter of 2016, and $50 will be credited to the unpaid contributions due for the first quarter of 2016.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.50  Accrual Of Interest

 

a)         The contributions or payments in lieu of contributions (reimbursements) shall bear interest from the day following the due date of such contributions or reimbursements, up to and including the day payment is made, as shown by the date of the postmark thereon, if mailed; except that, after December 31, 1987, payments received more than 30 days after the due date shall be deemed to have been received on the last day of the month preceding the month in which such payment is received.  For example, a payment which was due on April 30, 1988, but received on July 14, 1988, shall be deemed, for the purpose of calculating interest, to have been received on June 30, 1988.  Interest accrues at the rate of 1% per month and ¹/₃₀ of 1% per day or fraction thereof through December 31, 1981.  After 1981, such interest will accrue at the rate of 2% per month, calculated at 12/365 of 2% for each day.

 

b)         The Director may waive interest for good cause as provided in this Part.

 

(Source:  Amended at 17 Ill. Reg. 308, effective December 28, 1992)

 

Section 2765.55  Imposition Of Penalty

 

a)         The penalty for late filing of the "Employer's Contribution and Wage Report" provided in Section 1402B of the Act shall be a sum equal to the lesser of $5 for each $10,000 or fraction thereof of the total wages for insured work paid during the period or $2,500, for each month or part thereof of such failure to file the report.  In no case, however, will the penalty be less than $50 nor more than the lesser of $10 for each $10,000 or fraction thereof of the total wages for insured work paid during the period or $5,000.

 

b)         If a timely wage report is deemed insufficient (see Section 2760.120(a)) by the Director, the employer has 30 days after the mailing of the notice of such insufficiency to the employer within which to file a corrected and sufficient wage report without penalty.

 

c)         A penalty may be waived for good cause shown as provided in Sections 2765.65 and 2765.68.

 

(Source:  Amended at 16 Ill. Reg. 2131, effective January 27, 1992)

 

Section 2765.56  Imposition of Late Reporting Penalty for Employers Who Employ Household Workers and Elect to File Reports on an Annual Basis

 

When an employer to whom 56 Ill. Adm. Code 2760.128 applies and who provides the notice described in subsection (b) of that Section does not submit all quarterly reports of wages paid to household workers during the calendar year, along with all quarterly reports of contributions due with respect to those wages, by April 15 of the immediately following calendar year, the Director shall impose the statutory penalty on the employer.  The minimum penalty shall be $50, irrespective of the number of quarters for which the employer filed after April 15.

 

a)         EXAMPLE:  John Smith has notified the Director that he wishes to file his quarterly wage and contribution reports on an annual basis for 2008.  He files his reports for the first, second and third quarters of 2008 on April 15, 2009.  However, he does not file his fourth quarter report until April 20, 2009.  The minimum penalty to be assessed for the delinquent fourth quarter report is $50.

 

b)         EXAMPLE:  John Smith has notified the Director that he wishes to file his quarterly wage and contribution reports on an annual basis for 2008.  He files his reports for the first and second quarters of 2008 on April 15, 2009.  However, he does not file his third and fourth quarter reports until April 20, 2009.  The minimum penalty to be assessed for the delinquent third and fourth quarter reports combined is $50.

 

c)         EXAMPLE: Joe Smith has notified the Director that he wishes to submit his quarterly wage and contribution reports on an annual basis.  However, he fails to submit his reports for 2008 by April 15, 2009. He submits his reports for the first, second and third quarters of 2008 on September 15, 2009, but does not submit his report for the fourth quarter of 2008 until October 1, 2009.  The minimum penalty to be assessed for the delinquent first, second, third and fourth quarter reports combined is $50.

 

(Source:  Added at 33 Ill. Reg. 9658, effective July 1, 2009)

 

Section 2765.60  Payment Or Filing By Mail

 

Where the payment of contribution or filing wage reports is received through the United States mail and the postmark thereon bears a date within the prescribed time limits, the contributions or the wage reports shall be considered timely paid or filed, as the case may be.

 

(Source:  Amended at 16 Ill. Reg. 2131, effective January 27, 1992)

 

Section 2765.61  Waiver of Interest and Penalty for Employers Who Employ Household Workers and Who File Reports and Pay Contributions on an Annual Basis (Repealed)

                                                                                                                       

(Source:  Repealed at 33 Ill. Reg. 9658, effective July 1, 2009)

 

Section 2765.62  Temporary Waivers of Penalty

 

a)         Subject to the limitations set forth in subsection (b), the penalties for failure to file a report as required by 56 Ill. Adm. Code 2760.125(a) for either or both of the first 2 months of a calendar quarter in compliance with 56 Ill. Adm. Code 2760.141(a) shall be waived when the employer timely files the report required for the third month of that quarter as required by 56 Ill. Adm. Code 2760.125(a)(1), in compliance with 56 Ill. Adm. Code 2760.141.

 

b)         Subsection (a) shall not apply for months following the first 2 quarters that include months for which penalties have been waived pursuant to subsection (a) or for any months beginning after November 30, 2014.

 

c)         Notwithstanding any other provision of this Part to the contrary, as a result of business interruptions and widespread closures resulting from COVID-19, the Director finds good cause for waiving any penalties imposed upon any employer for failing to submit or timely submit the report required under 56 Ill. Adm. Code 2760.125(a) for the month of February 2020.

 

(Source:  Amended at 44 Ill. Reg. 13339, effective July 28, 2020)

 

Section 2765.63  When Payment Due and Consequences of Upward Revision in Employer's Contribution Rate

 

a)         Whenever an employer receives notice of a revised contribution rate that is higher than the rate given by the immediately preceding regular or revised rate notice, the employer shall have 30 days from the date of mailing of this revised rate notice to pay the additional amount of contributions due for that calendar year.  This 30 day period shall be available to an employer whether or not the employer exercises its right to appeal this revised rate under Section 1509 of the Act.

 

b)         If an employer pays an additional amount of contributions due as a result of an upward revision of its contribution rate within 30 days after the date of mailing of the revised rate notice, the employer shall be deemed to have paid this additional amount of contributions on the dates that its original contributions for that calendar year were paid in full.  The payment of additional contributions within 30 days after the date of mailing of a higher revised contribution rate notice by an employer under this Section has two consequences:

 

1)         No interest shall accrue on the employer's account from the dates of the original payments in full to the date the additional amount of contributions for that calendar year are received; and

 

2)         The employer's additional payment will be credited for FUTA purposes as of the dates the original payments in full were made.

 

c)         If an employer fails to pay the full amount of additional contributions due as a result of an upward revision to its contribution rate within 30 days after the date of mailing of the revised rate notice, the additional contributions due as a result of this higher rate shall accrue and become payable on the date the original contributions for that calendar year accrued and became payable in accordance with Section 1400 of the Act.  Two results follow from an employer's failure to pay the additional contributions due under a revised higher contribution rate notice within 30 days after the date of mailing:

 

1)         Interest shall accrue on the unpaid balance of the employer's account from the date that the original contributions accrued and became payable.

 

2)         The employer's FUTA credit will be adjusted downward as of the date the original contributions accrued and became payable.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.64  Consequences When an Employee Leasing Company Has Erroneously Reported Wages and Paid Contributions When the Wages Should Have Been Reported and Contributions Paid by Its Client

 

a)         When wages should have been reported and contributions paid by a client, but the wages were erroneously reported and the contributions paid by an employee leasing company, the Director shall, upon the joint request of the client and the employee leasing company, on a form available from the Director, transfer the contributions from the account of the employee leasing company to the account of the client, effective as of the dates that the report was submitted and the contributions paid by the employee leasing company, respectively.  As a result, interest shall be due only to the extent that the amount due from the client exceeds the amount paid by the employee leasing company.

 

EXAMPLE:  Employee Leasing Company X erroneously reports the wages of certain workers on its Wage Report and pays the contributions due on these wages.  It is determined that the wages should have been reported instead by its client, Company Y.  The Director shall, upon the joint request of Employee Leasing Company X and Company Y, transfer the payment made by Employee Leasing Company X to the credit of Company Y.  The wages reported by the leasing company for Company Y's workers will also be credited to Company Y.  As a result, Company Y will only owe additional contributions due, if any, to the extent that the amount due from it exceeds the amount paid by the employee leasing firm.  To the extent that the payment by the employee leasing company was untimely or not sufficient to cover the amount due, interest shall accrue. If the amount paid by the employee leasing company exceeds the amount due from Company Y, Company Y may file a request for an adjustment or a refund of the overpayment to the extent and within the time allowed by Section 2201 of the Act.

 

b)         Upon proper application of the client, on a form available from the Director, when wages should have been reported and contributions paid by a client, but the wages were erroneously reported and the contributions paid by an employee leasing company and the client presents evidence that the employee leasing company is no longer in business in Illinois and that the client was unable to obtain the assistance of the employee leasing company in complying with the requirements of subsection (a), the Director shall transfer available contributions from the account of the employee leasing company to the account of the client, effective as of the dates that the report was submitted and the contributions paid by the employee leasing company, respectively.  As a result, interest shall be due only to the extent that the amount due from the client exceeds the amount paid by the employee leasing company and transferred to the client.  For purposes of determining the amount of wages that should have been reported and contributions that should have been paid by the client, the Department shall use the amounts stated in any determination and assessment that has become final for the relevant quarters or, if none, the amount stated in an audit completed by the Department for the relevant quarters or, if none, the amounts stated in an amended wage report filed by the client.  The Department shall use the total wages and wages subject to the payment of contributions stated in the determination and assessment, audit or amended wage report to adjust the employee leasing company's total wages and wages subject to the payment of contributions for each erroneously reported individual.  For purposes of this subsection, available contributions, with respect to a quarter, means the product of the contribution rate used to calculate the amount of contributions that the employee leasing company paid for the quarter, multiplied by the wages on which the client should have paid contributions for the quarter, except as otherwise provided in this subsection.  The amount of available contributions with respect to a quarter shall not exceed the amount of any credit standing to the employee leasing company's account for the quarter, as of the time of the application, based on the adjustment pursuant to this subsection with respect to the wages on which the client should have reported contributions.  Before making a transfer pursuant to this subsection, the Department shall notify the employee leasing company, by certified mail at its last known address, of its intention to make a transfer of contributions pursuant to this subsection.  The Department shall transfer the contributions unless the employee leasing company responds with information that contradicts the information provided by the client within 20 days after the date of mailing of the notice.  If the employee leasing company timely responds with information that contradicts the information provided by the client, contributions shall not be transferred unless the parties submit a joint request under subsection (a).  The notice shall not be necessary if the matter has been adjudicated as described in 56 Ill. Adm. Code 2725, and the employee leasing company was added as a necessary party under Section 2725.237 of that Part and given proper notice.  The total amount of contributions transferred from an employee leasing company's account to a client's account pursuant to this subsection shall not exceed $1,000,000.  

 

EXAMPLE 1:  Employee Leasing Company X erroneously reports the wages of certain workers on its wage report and pays the contributions due on these wages.  It is determined that the wages should have been reported instead by its client, Company Y.  Y presents evidence that X is no longer in business and that there is no one who could agree to the joint transfer of contributions.  The Director shall transfer any available contributions.  If the amount of contributions available in the account of X is insufficient to cover the amount of contributions owed by Y, Y must pay the unpaid contribution balance, with interest, itself.

 

EXAMPLE 2:  Employee Leasing Company X erroneously reports the wages of certain workers on its wage report and pays the contributions due on these wages.  At the time, X's contribution rate was 1%, which resulted in $100 in contributions owed.  It is determined that the wages should have been reported instead by its client, Company Y.  Y presents evidence that X is no longer in business and that there is no one who could agree to the joint transfer of contributions.  Y's contribution rate for the year was 6%, which will result in $600 in contributions owed by Y.  Upon proper application of Y, the Director shall transfer the $100 in available contributions from the account of X to the account of Y.  Y must pay the $500 in unpaid contributions, with interest, itself.

 

EXAMPLE 3:  Employee Leasing Company A had agreements with Employers B, C and D for A to assume responsibility for personnel management of workers leased to each of B, C and D during the year 2016.  Company A reported the identity of its clients B and C to the Department, as required by 56 Ill. Adm. Code 2732.306, but failed to report the identity of its client D. B, C and D each had one leased worker performing services for them; each leased worker was paid $10,000 in the first quarter of 2016. A's contribution rate for 2016 was 5%.  Company A timely reported to the Department the wages of the leased workers providing services to B, C and D.  According to the report submitted by A, A owed a total of $1,500 in contributions for the first quarter of 2016.  However, A made payments to the Department totaling only $1,200. For 2016, B, C and D each had a contribution rate of 3.75%.  In 2017, it is discovered that A failed to report D's identity to the Department and, therefore, D remained liable for the payment of contributions regarding its leased worker.  D presents evidence that A is no longer in business in Illinois and that there is no one who could agree to the joint transfer of contributions.  Under subsection (b), the amount of contributions available for transfer to D's account cannot exceed the amount of the credit standing to A's account for the quarter, as of the time of the application, based on the adjustment with respect to the wages on which D should have reported contributions due.  The amount necessary to pay the contributions owed by A for the first quarter of 2016 is $1,000 (5% x $20,000).  So even though D owes a total of $375 in contributions for 2016 (3.75% x $10,000), there is only $200 in available contributions to transfer to D's account ($1,200 - $1,000).  D must pay the additional $175, plus interest, itself.

 

c)         When multiple applications have been submitted under subsection (b), the applications shall be processed in the order in which the applications were received. 

 

d)         When multiple applications have been submitted under subsection (b), available contributions shall be transferred, as they become available, to the account that submitted the application that created the available contributions. 

 

EXAMPLE:  Employee Leasing Company A had agreements with Employers B, C and D for A to assume responsibility for personnel management of workers leased to each of B, C and D during the year 2016.  Company A did not report the identity of B, C or D to the Department, as required by 56 Ill. Adm. Code 2732.306.  B, C and D each had one leased worker performing services for them; each leased worker was paid $10,000 in the first quarter of 2016. A's contribution rate for 2016 was 5%.  Company A timely reported to the Department the wages of the leased workers providing services to B, C and D.  According to the report submitted by A, A owed a total of $1,500 in contributions.  However, A made payments to the Department totaling only $500. For 2016, B, C and D also had contribution rates of 5%.  In 2017, it is discovered that A failed to report D's identity to the Department and, therefore, D remained liable for the payment of contributions regarding its leased worker. D presents evidence that A is no longer in business in Illinois and that there is no one who could agree to the joint transfer of contributions.  Under subsection (b), the amount of contributions available for transfer to D's account cannot exceed the amount of the credit standing to A's account for the quarter, as of the time of the application, based on the adjustment with respect to the wages on which D should have reported contributions due.  At the time of D's application, the Department was not aware of A's relationship to B and C, or A's failure to report its relationship with B and C, and there was no credit standing to A's account. At the time of D's application, it appeared that the employee leasing company should have paid contributions of $1,000 for the first quarter of 2016.  Since A paid only $500, there are no funds available to transfer to D. Subsequently, the Department discovers A's relationship with C, and the fact that the relationship was not properly reported to the Department, as required by 56 Ill. Adm. Code 2732.306.  C's wages are removed from A's account, but still, there are no contributions available to transfer to C's account.  At the time of C's application, it appears that A owes $500 in contributions for the first quarter of 2016.  Since that is all A paid for the quarter, there is no credit standing to its account.  Subsequently, the Department discovers A's relationship with B, and the fact that the relationship was not properly reported to the Department, as required by 56 Ill. Adm. Code 2732.306.  B's wages are removed from A's account, which creates a credit balance of $500 in A's account. The available balance will transfer to the account of B.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.65  Waiver Of Interest Or Penalty

 

a)         The Director is authorized to waive the payment of all or part of any interest or penalty upon proposed application and showing of good cause that consists of any or all of the following:

 

1)         Where the delay was caused by the death or serious illness of the employer or a member of his immediate family, or by the death or serious illness of the person in the employer's organization responsible for the preparation and filing of the report or for making the payment.

 

2)         Where the delay was caused by the destruction of the employer's business records by fire or other casualty without fault.

 

3)         Where the Agency, in its written communication or through a specifically identified employee in oral communication directed to a specific employer account has affirmatively misled the employer as to its duties and obligations such that the charging of interest to the employer would violate the principle of equitable estoppel.

 

4)         For the purposes of waiver of interest only:  Where the employer relied to its detriment on a certificate issued by the Director pursuant to Section 2600 of the Act and the Director agrees, at a later date, that the certificate was issued in error, such waiver shall be granted from the date the erroneous certificate was issued to a date 30 days after notice that the original certificate was issued in error.

 

b)         Where a delinquent employer enters into a Repayment Agreement and demonstrates to the Director the financial inability to pay an additional interest during the period of the Repayment Agreement, the Director may waive the interest which would have accrued during the period of the Repayment Agreement.  The employer shall submit as evidence of its inability to pay:

 

1)         Where available, a certified audit and statement of financial condition; or,

 

2)         A copy of latest one year tax return and sworn statement regarding inability to pay and financial condition of business; and,

 

3)         A statement that the financial condition could not have been controlled through reasonable business judgment and the evidence supporting this statement; and,

 

4)         Evidence that it has paid all contributions accrued to date not subject to the Repayment Agreement.

 

c)         The Director is authorized to grant a waiver of such additional interest for the period of the Repayment Agreement if his review of the evidence indicates that the payment of the additional interest imposed will force the employer to default on the agreement or force the employer into bankruptcy.  If the employer fails to make the required payment of accrued contributions, interest and penalty during the period of the Repayment Agreement, such waiver of the additional interest is withdrawn.

 

d)         The penalty for willful failure to pay contributions with intent to defraud cannot be waived by the Director for any cause.

 

(Source:  Amended at 11 Ill. Reg. 12882, effective July 22, 1987)

 

Section 2765.66  Waiver Of Interest Accruing Because Of Certain Types Of Employees For Periods Prior To January 1, 1988

 

a)         The Director shall find good cause for the waiver of all interest, accrued upon unpaid contributions which are due and owing for any period prior to January 1, 1988, if the contributions were based on the payment of wages in employment to an individual where:

 

1)         The employer or its predecessor has not treated any individual holding a substantially similar position as an employee for purposes of the Act, or for Federal Unemployment Tax Act (FUTA), Internal Revenue Code or Social Security Act purposes, and;

 

2)         The employer's treatment of such individual was in reasonable reliance upon:

 

A)        A judicial precedent or an Internal Revenue Service letter ruling for the employer; or,

 

B)        A past agency audit of such employer where there was no assessment attributable to the treatment of individuals holding positions substantially similar to the position held by such individual; or,

 

C)        A long-standing industry practice recognized by a significant segment of the industry in which such individual or employer is engaged.

 

3)         Example:  Pursuant to this subsection, an employer requests a waiver of interest on contributions which were due and owing for the first quarter of 1987. Contributions for the first quarter of 1987 became due and owing on April 30, 1987 but had not been paid because the employer appealed a determination and assessment covering this period. The waiver, if granted would cover all interest which accrued from May 1, 1987 through the date that payment of the contributions was made. The employer must pay all contributions due for the first quarter of 1987 as a condition precedent to the granting of a waiver.

 

b)         The provisions of Section 2765.74 shall not be applicable to requests for waiver under this Section.

 

c)         The payment of all contributions assessed, within 30 days from the effective date of this Section or within 30 days from the date that such assessment becomes final, if such date is later, is a condition precedent to an application for waiver (see Section 2765.75) pursuant to this Section.

 

1)         Example:  During the course of a hearing pursuant to 56 Ill. Adm. Code 2725.200 et seq., the employing unit requests, on the record, that, if the subject assessment is affirmed, in full or in part, it be granted waiver pursuant to this Section.  If it is recommended that the assessment be affirmed, in full or in part, the Director's Representative shall also recommend a decision with respect to the request for waiver.  If such recommendation is to deny, objections may be filed in the same manner and within the same time limits as set forth in 56 Ill. Adm. Code 2725.275.  If the request for waiver is granted, but the contributions assessed are not paid within 30 days from the date that the assessment becomes final, then the request for waiver shall be deemed to have been denied as of the date of the decision which had granted the waiver.

 

2)         Example:  An employer meets the requirements for waiver pursuant to subsection (a) above with respect to wages for services which were the subject of a determination and assessment which became final on February 13, 1988. If this employer has not yet paid this assessment, it has 30 days from the effective date of this rule to pay the contributions due and file its application for waiver.

 

3)         Example:  An employer meets the requirements for waiver pursuant to subsection (a) with respect to wages for services which are the subject of a determination and assessments which becomes final after the effective date of this rule. This employer has 30 days from the date that this assessment becomes final to pay the contributions due and file its application for waiver.

 

d)         Notwithstanding any other provisions of this Part, no employer shall be entitled to a refund or credit of any interest paid prior to the adoption of this Section.

 

(Source:  Amended at 17 Ill. Reg. 308, effective December 28, 1992)

 

Section 2765.67  Partial Waiver Of Interest Where An Employer Has Erroneously Reported Wages To The Wrong State

 

Where wages should have been reported to Illinois, but the employer has erroneously reported these wages to another state, if such employer makes payment of all contributions, penalties and interest (except the amount of interest that is subject to waiver under this Section) due within 30 days after the date that notice of its erroneous reporting is mailed to the employer, the Director shall waive interest to the extent that the amount of interest due exceeds the amount of interest that would have been due if the rate of interest imposed were the same as the rate of interest paid by the Secretary of Treasury on amounts held by the Secretary in the federal Unemployment Trust Fund during the same period.

 

Example:  Employer A erroneously reports the wages of certain workers on its Iowa Unemployment Insurance Contributions Reports.  It is determined that such wages should have been reported under the Illinois Unemployment Insurance Act. If this employer pays all contributions, penalties and interest due under the Illinois Act within 30 days after being notified of its erroneous reporting, the Director will waive any interest in excess of the amount of interest that would have been credited to Illinois if the employer's contributions had been credited to this State's account in the federal Unemployment Trust Fund as of the date that the contributions were due.

 

(Source:  Added at 16 Ill. Reg. 12165, effective July 20, 1992)

 

Section 2765.68  Waiver of Penalty for Certain Employers for 1987 and Thereafter Wage Reports

 

a)         Notwithstanding any other provisions of this Part to the contrary, the Director shall waive the reporting penalty provided in Section 1402 of the Act for 1987 and for any reports of wages paid in calendar year 1987 and any calendar year thereafter, if the employer, within 30 working days after the date of mailing of the notice from the Agency that its report is delinquent, shows that the delinquent report is the employer's first late report during the last 20 calendar quarters, including quarters during which the employer was not required to file reports under the Act and:

 

1)         in the case a contributory employer, the total amount of contributions due for the calendar quarter of the report is less than $500 (the amount due is disregarded for reimbursable employers); and

 

EXAMPLE:  Employer A is required to file two reports for a quarter under 56 Ill. Adm. Code 2760.120.  The total amount of contributions attributable to the first report is $400.  The total amount of contributions attributable to the second report is $200.  Employer A will not be entitled to waiver of penalty under this Section with respect to either report because the total amount of contributions due for the quarter is more than $500.

 

2)         This delinquent report is the employer's first late report during the last 20 calendar quarters, including quarters during which the employer was not required to file reports under the Act.

 

b)         The employer's application for this waiver shall be made in the form provided in Section 2765.75, except that it need not be sworn and instead of stating the "good cause applicable", the employer shall state that it met the requirements of subsections (a)(1) and (2).  In support of its statement that it met the requirements of subsection (a)(1), the employer shall attach a copy of its Contribution and Wage Report for the applicable calendar quarter.

 

c)         If the employer is required to file two reports under 56 Ill. Adm. Code 2760.120 and both reports are filed untimely, for the purposes of subsection (a)(2), both reports will be deemed to be a single delinquent report.

 

d)         For purposes of subsection (a), a month for which the late filing penalty has been waived under any provision of Section 2765.62 shall not be considered a month for which the employer filed a late report.

 

(Source:  Amended at 44 Ill. Reg. 13339, effective July 28, 2020)

 

Section 2765.69  Partial Waiver Of Interest Where An Employer Has Erroneously Paid Its Federal Unemployment Tax Act (FUTA) Tax In Full But Has Failed To Pay Its Illinois Unemployment Insurance Contributions

 

Where an employer has erroneously failed to pay its Illinois Unemployment Insurance contributions when due but instead timely paid the full amount of its Federal Unemployment Tax Act (FUTA) liability (6.2% for 1990) and that employer pays the full amount of any contributions, penalties and interest (except the amount of interest that is subject to waiver under this Section) due within 30 days after the date that notice of its failure to pay its Illinois Unemployment Insurance contributions is mailed to the employer, the Director shall grant a partial waiver of interest from the date that the employer made its FUTA payment.  The extent of that waiver shall be the amount by which the amount of interest due exceeds the amount of interest that would have been due if the rate of interest imposed were the same as the rate of interest paid by the Secretary of Treasury on amounts held by the Secretary in the federal Unemployment Trust Fund during the same period.

 

Example:  On January 31, 1990, Employer A erroneously pays the full FUTA amount on all of the wages that it paid in 1989 which were subject to that Act. On March 31, 1990, the Director notifies this employer that it has failed to pay its Illinois Unemployment Insurance contributions for 1989. If this employer pays the full amount of contributions, penalties and interest due in this matter by April 30, 1990, the Director will waive the interest due for the period from January 31, 1990 to the date of payment, to the extent that the amount of interest due exceeds the amount of interest that would have been due if the rate of interest imposed were the same as the rate of interest paid by the Secretary of Treasury on amounts held by the Secretary in the federal Unemployment Trust Fund during the same period.

 

(Source:  Added at 16 Ill. Reg. 12165, effective July 20, 1992)

 

Section 2765.70  Waiver Of Interest For Certain Nonprofit Organizations or Local Governmental Entities

 

a)         The Director shall waive interest on any unpaid contributions for a nonprofit organization, as defined in Section 211.2 of the Act, or a local governmental entity, as determined under Section 211.1 of the Act, if:

 

1)         The organization or entity had never filed any of the reports or forms required of it under the Act; and

 

2)         No unemployment insurance claims had been filed for which it is determined that the organization or entity was the chargeable employer as that term is used in Section 1502.1 of the Act; and

 

3)         The chief operating officer of the organization or entity files an affidavit with the Director in which he states that, upon learning of the organization or entity's liability under the Act, he took immediate action to bring the organization or entity into compliance.

 

Example:  Nonprofit organization A was created in 1985.  Because it is not liable under the Federal Unemployment Tax Act (FUTA), it believed that it was not liable for state unemployment insurance contributions.  As a result of an audit in 1992, it is determined the organization was liable since 1985 and owes unpaid contributions since 1989.  If the organization had never filed any reports or forms required of it under the Act, if it had never been found to be a chargeable employer and if the chief operating officer tenders the appropriate affidavit, any interest on the unpaid contributions will be waived.

 

b)         Any waiver of interest under this Section shall cover the period up to sixty days after the date that the organization or entity became aware of its liability under the Act.  To stop further interest from accruing after that time, the organization or entity must pay the contributions due in full. However, nothing in this Section shall be interpreted as prohibiting an employer from seeking waiver of any additional interest under the other provisions of this Part.

 

(Source:  Section repealed, new Section adopted at 17 Ill. Reg. 308, effective December 28, 1992)

 

Section 2765.71  Waiver of Interest Accruing Due to a Delay in the Issuance of a Decision on a Protested Determination and Assessment

 

a)         The Director shall find good cause for the waiver of all interest accrued upon unpaid contributions due and owing pursuant to a Determination and Assessment for any period from the 181^st day after the date on which the employer filed its sufficient Petition in protest to the Determination and Assessment (see 56 Ill. Adm. Code 2725.110) to 60 days after the later of the date of the decision of the Director in the matter (see 56 Ill. Adm. Code 2725.280) or the date that the Department mails the employer a statement of the balance due on its account as a result of the recommended decision in the matter (see 56 Ill. Adm. Code 2725.270) or the decision of the Director in the matter, but only to the extent that the delay was not caused by the employer or its agent.

 

1)         EXAMPLE 1:  The employer files its sufficient Petition to protest a Determination and Assessment on March 1, 2017.  After completion of the administrative process within the Department, a decision of the Director, affirming the Determination and Assessment, is issued on October 16, 2017.  On October 19, 2017, the Department mails the employer a statement of the balance due on its account as a result of the decision of the Director.  Pursuant to this subsection (a), this employer will be entitled to a waiver of interest from August 29, 2017 (the 181^st day after the date on which the employer filed its Petition) to December 15, 2017 (60 days after the Department mailed the employer a statement of the balance due on its account as a result of the decision of the Director).

 

2)         EXAMPLE 2:  The employer files a sufficient Petition to protest a Determination and Assessment on March 1, 2017.  A hearing is scheduled for April 3, 2017.  The employer's accountant is not available on April 3, 2017, so the employer requests a continuance until April 5, 2017.  Because the Director's representative already has hearings scheduled for the month of April, a continuance is granted until May 12, 2017, the next available hearing date.  After completion of the administrative process within the Department, a decision of the Director, affirming the Determination and Assessment, is issued on October 16, 2017.  On the same day, the Department mails the employer a statement of the balance due on its account as a result of the decision of the Director.  Pursuant to this subsection (a), this employer will be entitled to a waiver of interest from October 7, 2017 (the 181^st day after the date on which the employer filed its petition plus the 39 day delay attributable to the employer's request for a continuance) to December 15, 2017.

 

3)         EXAMPLE 3:  An employer association requests that the Director not make any decision on Determination and Assessments based on a particular issue while the legislature is discussing a possible change in the statute on that issue. Any delays in issuing decisions on that particular issue caused by the Director agreeing to hold those cases are not attributable to the employer or its agent.

 

4)         EXAMPLE 4:  On March 1, 2017, an employer files a sufficient Petition to protest a Determination and Assessment.  A hearing is held on April 3, 2017. At the conclusion of the hearing, the employer's attorney requests 45 days in which to submit a brief in support of its position.  Because this additional delay is attributable to the agent of the employer, these additional days are added in determining the extent of waiver to be granted to this employer.

 

b)         The provisions of Section 2765.74 shall not be applicable to requests for waiver under this Section.

 

c)         The payment of all contributions assessed, all penalties due and any interest not subject to waiver, within 60 days after the date of the decision of the Director or the date that the Department mails the employer a statement of the balance due on its account as a result of the decision of the Director in the matter, whichever is later, is a condition precedent to a waiver of interest pursuant to this Section.

 

EXAMPLE:  On July 1, 2016, an employer files a sufficient Petition in protest to a Determination and Assessment.  The Director issues a decision affirming the Determination and Assessment on March 1, 2017.  On the same day, the Department mails the employer a statement of the balance due on its account as a result of the decision of the Director.  In the decision, the Director grants a conditional waiver underthis Section from December 29, 2016 to April 30, 2017.  December 29, 2016 is the 181^st day after the date on which the employer filed its sufficient Petition in protest to the Determination and Assessment.  If this employer has not yet paid this assessment, it has until April 30, 2017 to pay the contributions due.  If the contributions are not paid by April 30, 2017, the condition precedent is not met, and the employer is not entitled to waiver under this Section.

 

d)         The granting of waiver under this Section does not foreclose the granting of waiver to the employer under another Section of this Part for another period.

 

e)         When no objection is filed to the recommended decision of the Director's representative and that recommended decision becomes the decision of the Director pursuant to 56 Ill. Adm. Code 2725.270(d), the date of the Director's decision shall be the date on which the recommended decision of the Director's representative becomes the decision of the Director.

 

EXAMPLE 1:  The recommended decision of the Director's representative is issued on October 2, 2017.  If no objections are filed by October 22, 2017, the recommended decision becomes the decision of the Director on October 23, 2017.  October 23, 2017 is the date of the decision of the Director.

 

EXAMPLE 2:  The employer files a sufficient Petition to protest a Determination and Assessment on March 1, 2017.  The recommended decision of the Director's representative is issued on October 2, 2017.  The employer calls the Department on October 3, 2017 to ask for a statement of the balance due on its account as a result of the recommended decision.  The Department mails the employer the statement on October 4, 2017.  The employer does not file objections by October 22, 2017, so the recommended decision becomes the decision of the Director on October 23, 2017.  This employer will be entitled to a waiver of interest from August 29, 2017 (the 181^st day after the date on which the employer filed its petition) to December 22, 2017 (60 days after the date of the decision of the Director).

 

EXAMPLE 3:  The employer files a sufficient Petition to protest a Determination and Assessment on March 1, 2017.  The recommended decision of the Director's representative is issued on October 2, 2017.  The employer calls the Department on October 3, 2017 to ask for a statement of the balance due on its account as a result of the recommended decision.  The Department mails the employer the statement on November 6, 2017.  If no objections are filed by October 22, 2017, the recommended decision becomes the decision of the Director on October 23, 2017.  This employer will be entitled to a waiver of interest from August 29, 2017 (the 181^st day after the date on which the employer filed its Petition) to January 5, 2018 (60 days after the Department mailed the employer a statement of the balance due on its account as a result of the decision of the Director).

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.73  Waiver of Penalties and Interest for Certain Nonprofit Organizations

 

a)         Upon application of an employer, the Director shall find good cause to grant a conditional waiver of any reporting penalty required by Section 1402 of the Act and any interest owed by the employer with respect to contributions due, and interest on past due payments in lieu of contributions, for quarters prior to calendar year 2014 and specified in the conditional waiver, provided the following conditions are met:

 

1)         the employer is an Illinois nonprofit organization, as that term is used in Section 211.2 of the Act, and a local affiliate of a national organization that holds a congressional charter under 36 USC, whose purpose is to promote the health, social, educational, vocational, and character development of youth;

 

2)         the employer experienced a decrease of more than $50,000 from its prior fiscal year in the value of its total net assets in:

 

A)        each of the employer's two fiscal years preceding the first quarter specified in the conditional waiver; and

 

B)        each of at least two of the employer's fiscal years that include one or more quarters specified in the conditional waiver; and

 

3)         the losses described in subsection (a)(2) are established by certified, audited statements of the financial condition of the employer.

 

b)         The Director shall waive penalties and interest covered by a conditional waiver granted under subsection (a) upon payment, within four years after the date on which the conditional waiver is granted, of the full amount of all contributions and payments in lieu of contributions due for the quarters specified in the conditional waiver.

 

c)         A conditional waiver granted under subsection (a) shall be revoked by the Director when:

 

1)                  payment of the contributions due, and past due payments in lieu of contributions, for the quarters specified in the conditional waiver is to be made pursuant to a deferred payment agreement and the employer commits a substantial breach of that agreement; or

 

2)         the employer fails to timely pay contributions or payments in lieu of contributions due for quarters not specified in the conditional waiver.

 

d)         Notwithstanding subsection (a), the Director shall not grant more than one conditional waiver of interest with respect to contributions due, or past due payments in lieu of contributions, for the same quarter.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.74  Time for Paying or Filing Delayed Payment or Report

 

In order to obtain a waiver of all or part of any penalty, the employer must (in addition to filing an application for waiver as provided in Section 2765.68 or 2765.75) file the delayed report within 30 days after the date of the resolution of the occurrence or event relied upon as a ground for waiver.  In order to obtain a waiver of all or part of any interest, the employer must (in addition to filing an application for waiver as provided in Section 2765.75), except if the ground for waiver is Section 2765.65(c), make the late payment of all contributions due and file all wage reports for the period covered by the waiver within 30 days from the date of the resolution of the occurrence or event relied upon as a ground for waiver.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.75  Application for Waiver

 

In order to obtain a waiver of all or part of any interest or penalty, the employer must file a signed written application for waiver of the interest or penalty, or both, with the Department within the time limits set forth in Section 2765.74.  The application should be filed online using MyTax Illinois (mytax.illinois.gov) or by mail to: Illinois Department of Employment Security, Revenue Division, 33 S. State St., 10^th Floor, Chicago IL 60603.  An application is not complete unless it contains the name and address of the employer, the U.I. account number, the period involved and the good cause applicable.  The late payment or missing report, as provided in Section 2765.74, must accompany the application.  If an application for waiver has been timely filed, an employer may file additional information to be considered as part of its application within 30 days after filing the application.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.80  Approval Of Application For Waiver

 

If the good cause relied upon in the application is sufficiently demonstrated by verifiable facts and circumstances, or supported by documentary evidence, such as a medical doctor's certificate, death certificate, or photocopies of the proof of casualty, the Director shall approve the application and issue an order granting the waiver.

 

Section 2765.85  Insufficient or Incomplete Application

 

If the application contains an allowable good cause but otherwise is insufficient or incomplete in other respects, the employer has 15 days after the date of the Director's notice of application deficiency within which to file an amended application based on the same ground.  If an amended application for waiver has been timely filed, an employer may file additional information to be considered as part of its amended application within 30 days after the period for filing an amended application for waiver has ended.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019)

 

Section 2765.90  Disapproval Of Application Conclusive

 

An order disapproving an application for lack of good cause, because the amended application alleges a good cause not timely alleged in the original application or because the application fails to meet the requirements for waiver set forth in Section 2765.68 shall be final and conclusive upon the employer unless he shall file an appeal therefrom with the Revenue Division within twenty days from the date of mailing of the order.

 

(Source:  Amended at 12 Ill. Reg. 20484, effective November 28, 1988)

 

Section 2765.95  Appeal And Hearing

 

The conduct of the appeal and hearing will be the same as that provided for Determination and Assessment under 56 Ill. Adm. Code 2725.

 

(Source:  Amended at 11 Ill. Reg. 12882, effective July 22, 1987)

SUBPART B: EXPERIENCE RATING

 

Section 2765.200  Transfer of Trade or Business Subject to Section 1507.1 of the Act

 

a)         Within 30 days after the date of any transfer to which Section 1507.1(A)(1) of the Act applies, the transferor and transferee shall provide the Department the number of covered workers employed by the transferor on the last day of business immediately preceding the date of transfer and the number of those workers transferred to the transferee.

 

b)         In the case of a transfer to which Section 1507.1 (A)(1) of the Act applies:

 

1)         Of the benefit charges that were incurred by the transferor, and wages that were paid by the transferor for insured work, for each calendar quarter prior to the quarter in which the transfer takes effect:

 

A)        the percentage apportioned to the transferee shall equal the percentage of the covered workers transferred to the transferee; and

 

B)        the percentage apportioned to the transferor shall equal;

 

i)          the difference between 100% and the percentage apportioned to the transferee pursuant to this subsection (b)(1); or

 

ii)         in the case of multiple transferees, the difference between 100% and the percentage apportioned to the transferees pursuant to this subsection (b)(1).

 

2)         Of the benefit charges that were incurred by the transferor, and wages that were paid by the transferor for insured work prior to the transfer, for the calendar quarter in which the transfer takes effect;

 

A)        the percentage apportioned to the transferee shall equal the percentage of the covered workers transferred to the transferee multiplied by the quotient obtained by dividing the number of the days elapsed in the quarter as of the day of the transfer, including the day of the transfer, by the total number of days in the quarter, rounded to the nearest multiple of .0001% (e.g., if the transfer occurred on November 7, the quotient would be 41.3043% because the transfer occurs on the 38^th day of the quarter and there are 92 days in that quarter); and

 

B)        the percentage apportioned to the transferor shall equal:

 

i)          the difference between 100% and the percentage apportioned to the transferee pursuant to this subsection (b)(2); or

 

ii)         in the case of multiple transferees, the difference between 100% and the percentage apportioned to the transferees pursuant to this subsection (b)(2).

 

EXAMPLE:  On November 7, 2017, Employer A transfers 30.0000% of its covered workers to Employer B. At the time of the transfer, there was substantial common ownership, management, or control of Employers A and B. Thirty percent of the benefit charges incurred by A, and 30.0000% of the wages paid by A for insured work, for all quarters prior to the 4^th quarter of 2017, will be transferred to Employer B. For the 4^th quarter of 2017, since there are 92 days in the quarter, and since the transfer occurred on the 38^th day of the quarter, 12.3913% of the benefit charges Employer A incurred, and 12.3913% of the wages Employer A paid for insured work, prior to the transfer, for the quarter (30.0000% of 41.3043%) will be apportioned to Employer B. The remainder will be apportioned to Employer A.

 

3)         For purposes of this subsection (b), the percentage of covered workers transferred to the transferee shall equal the number of covered workers employed by the transferor on the last day of business immediately preceding the date of transfer divided into the number of those workers transferred to the transferee. The percentage shall be calculated to the nearest multiple of .0001% and, if equally near to 2 multiples of .0001%, increased to the higher multiple of .0001%;

 

EXAMPLE:  Employer A has 165 covered workers as of November 6, 2017.  On November 7, 2017, Employer A transfers 11 of those workers to Employer B.  The percentage of the covered workers transferred to Employer B equals 6.6667 percent (11 divided by 165 equals 0.06666667 calculated to 8 decimal places and equals 6.6667% rounded to the nearest multiple of .0001%).

 

4)         As of the effective date of the transfer, the transferor and transferee shall each be considered to have been liable for the payment of contributions during each calendar year during which the transferor was liable for the payment of contributions.

 

EXAMPLE:  Employer A incurred liability for the payment of contributions in each of the calendar years 2010 through 2017. Prior to the transfer, Employer B incurred liability for the payment of contributions in calendar year 2017. On May 7, 2017, Employer A transfers a portion of its trade or business to Employer B. At the time of the transfer, there was substantial common ownership, management, or control of Employers A and B. As a result, Employers A and B will have incurred liability for the payment of contributions in each of the calendar years 2010 through 2017.

 

(Source:  Amended at 43 Ill. Reg. 1585, effective January 15, 2019; expedited correction at 43 Ill. Reg. 11054, effective January 15, 2019)

 

Section 2765.210  Prohibition on Withdrawal of Joint Application for Partial Transfer of Experience Rating Record

 

A joint application for partial transfer of the predecessor's experience record, pursuant to Section 1507B of the Act, cannot be withdrawn after it has been submitted to the Director.

 

a)         EXAMPLE:  After filing a joint application for partial transfer of the predecessor's experience rating record, one of the applicants determines that the partial transfer will result in an increase in its contribution rate. Notwithstanding the increase in its contribution rate, the applicant cannot request to withdraw its joint application for the partial transfer of the predecessor's experience rating record.

 

b)         EXAMPLE:  After the filing of a joint application for partial transfer of the predecessor's experience rating record, the Agency determines that the provisions of Section 1507B of the Act are met but that an affiliation (as described in the last paragraph of Section 1507B of the Act) exists, an applicant cannot request to withdraw its joint application for the partial transfer of the predecessor's experience rating record.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.220  Determination of Benefit Ratio

 

In determining the benefit wage or benefit ratio referred to in Section 1503.1 of the Act for any calendar year, the resulting percentage shall be increased or reduced, as the case may be, to the nearer multiple of one-ten thousandth of one percent.  If the number is equally near to 2 multiples of one-ten thousandth of one percent, it shall be increased to the higher multiple of one-ten thousandth of one percent.

 

EXAMPLE:  An employer has incurred liability for the payment of contributions within each of the three calendar years immediately preceding calendar year 1991.  Its benefit charges for the 12 consecutive month period ending on June 30, 1990 are $1,659.00.  The benefit conversion factor for this period is 139%.  The product of its benefit charges times the benefit conversion factor for this period is $2,306.01.  Its taxable wages for this period are $340,590.00.  Its benefit ratio determined by dividing $2,306.01 by $340,590.00 equals .67706% when calculated to one-hundred thousandths of one percent.  Under the rounding rule set forth in this section, its benefit ratio is increased to .6771%.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.225  Requirement for Privity in Order to Have a Predecessor Successor Relationship

 

In order for a predecessor successor relationship to exist under Section 1507 of the Act, there must be privity between the predecessor employing unit and the successor employing unit.

 

a)         EXAMPLE:  AAA Oil Company, that owns all the equipment and inventory at a gas station, leases the station to Company B that becomes a liable employer under the Act.  When Company B's lease expires, AAA Oil Company refuses to renew the lease and, instead, leases the station to Company C.  Company C is not a successor to Company B because there is no privity between Company B and Company C.

 

b)         EXAMPLE:  Mr. Johnson operates a restaurant.  Bank A has a chattel mortgage on the fixtures of the restaurant and Bank B has a mortgage on the building that houses the restaurant.  Both Bank A and Bank B foreclose on their mortgages and Mr. Johnson goes out of business.  The banks sell their interests in the restaurant fixtures and building to Mr. Moore who opens another restaurant at this same location.  Mr. Moore is not a successor to Mr. Johnson because there is no privity between Mr. Moore and Mr. Johnson.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.228  No Requirement for Continuous Operation in Order for a Predecessor Successor Relationship to Exist

 

The employing enterprise that forms the basis for a predecessor successor relationship under Section 1507 of the Act is not required to be operated without interruption during the time that predecessor employing unit is succeeding to the employing enterprises in order for the relationship to exist.  However, any interruption in operations must be reasonable in light of the particular industry and, under no circumstances, may exceed one year.

 

a)         EXAMPLE:  In April, 1991, Mr. Stella purchases a cafe owned by Ms. Pauli.  Mr. Stella decides that the cafe must be remodeled prior to his operating the business. Such remodeling takes three months.  This three month gap in the operation of the cafe does not preclude Mr. Stella from being the successor to Ms. Pauli if the three month remodeling period is not unreasonable in the restaurant industry.

 

b)         EXAMPLE:  In February, 1991, S Company purchases the concession business at a county fairgrounds from P Company.  This business normally operates between May and September.  The gap between the date of purchase and the time that the business begins to operate in May will not preclude S Company from being found to be a successor to the employing enterprise of P Company.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.230  Effect of a Transfer of Physical Assets on a Finding That a Predecessor Successor Relationship Exists

 

In order for a predecessor successor relationship under Section 1507 of the Act to exist, it is not necessary that there be a transfer of physical assets from one employing enterprise to another.  However, when only physical assets are transferred, without the transfer of good will, the assumption of obligation or the continuation of the enterprises, no predecessor successor relationship exists.

 

a)         EXAMPLE:  Abe and Bill operate a partnership, known as A & B House Painters, that is an employer under the Act.  When the partnership dissolves, Abe retains title to the physical assets which he then sells.  Bill, now a sole proprietor, continues to operate the employing enterprise by continuing to service the customers of the partnership.  Even though he received none of its physical assets, Bill is a successor to the partnership.

 

b)         EXAMPLE:  Alice and Bert operate a partnership, known as A & B House Painters, which is an employer under the Act.  When the partnership dissolves, Alice retains title to the physical assets which she then sells to Clyde who also operates a house painting business.  Clyde does not obtain any of the good will of A & B nor does he service any of its customers.  Clyde is not a successor to A & B.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

SUBPART C: BENEFIT CHARGES

 

Section 2765.325  Application Of "30 Day" Requirement For Determining The Chargeable Employer Pursuant To Section 1502.1 of the Act

 

a)         Except as provided in the other subsections of this Section and in Sections 2765.326, 2765.332, 2765.333 and 2765.334, the last employer prior to the beginning of the individual's benefit year (which is defined at Section 242 of the Act) for whom the individual provided services during at least 30 days beginning with the first day of the individual's base period (which is defined at Section 237 of the Act) but prior to the beginning of his benefit year shall be liable for the benefit charges or payments in lieu of contributions, as the case may be, which result from any benefits paid to that individual.

 

1)         Example:  Immediately prior to filing his claim for unemployment benefits, the individual provides services to Company A, a liable, contributing employer, for 20 days.  Prior to this period, he provides services to Company B, a liable, contributing employer, for 30 days.  Prior to working for Company B and throughout his base period, the individual has provided at least 10 days of service to Company A.  In this example, Company A will be the chargeable employer and will be liable for any benefit charges which might accrue as a result of any benefits paid to this individual.  This is because the individual's last employer prior to the beginning of his benefit year is Company A and he provided services to Company A during at least 30 days during the period from the beginning of the individual's base period to the beginning of his benefit year. Pursuant to Section 1502.1 of the Act, it is not necessary for the 30 days of services by the individual to be consecutive.

 

2)         Example:  Prior to the beginning of his benefit year, the individual provides services only to Company A, a liable, contributing employer, for over ten years.  Company A will be this individual's chargeable employer with respect to this individual's entire benefit year because Company A is the individual's last employer of at least 30 days prior to the beginning of his benefit year.  If, after claiming benefits for a few weeks, this individual is employed by Company B, a liable, contributing employer, for six months, is laid off by Company B and files an additional claim, Company A will still be the chargeable employer of this individual with respect to any benefit charges which might accrue with respect to the additional claim.  Company A remains liable for the benefit charges which accrue during the entire benefit year regardless of the number of times that the individual is laid off and becomes reemployed.

 

3)         Example:  Prior to the beginning of his benefit year, the individual is employed on an as-needed basis (some weeks the individual might work four days, other weeks he might not work at all) for Company A, a liable, contributing employer.  While so employed by Company A, the individual is also employed on a full time basis for Company B, a liable, contributing employer.  The individual is laid off by Company B and is offered two days of work by Company A.  After working for these two days, no other work is currently available with Company A, and the individual files a claim for benefits.  If the individual has been employed by Company A for at least 30 days from the beginning of his base period to the beginning of his benefit year, Company A will be liable for any benefit charges which might accrue as a result of any benefits which might be paid to this individual.  This is because, despite the individual's full time employment with Company B, the individual's last employer for whom he provided services of at least 30 days during the applicable period was Company A, and it was his separation from Company A that caused the individual to become "unemployed."

 

4)         Example:  Assume the same facts as in subsection (a)(3), except that, instead of being an as-needed employee, the individual continues to provide less than full time services to Company A and earns less than his weekly benefit amount.  In that case, Section 2765.326 shall apply, and Company B will be the chargeable employer because it caused this individual to become unemployed as defined in Section 239 of the Act.

 

5)         Example:  The individual is a substitute teacher.  Whenever she is available to teach, she calls in for assignments with her school district, a local governmental entity which has elected to make payments in lieu of contributions.  During the first semester of the school year, she teaches only 32 days.  She, however, did not work for the school district during her base period.  If she now files a claim for benefits, her school district will be liable for 50% of any payments in lieu of contributions which would result if she would be paid benefits.  This is because, despite her services being performed over a five month period, the school district is the last employer prior to the beginning of her benefit year and she has provided the required 30 days of services during the applicable period. The employer is only liable for 50% of the amount of the benefits paid because the individual performed no services for this employer during her base period (see Section 1405(B) of the Act.)

 

6)         Example:  The individual is employed for 25 days during his base period for City A, a local governmental entity which has elected to make payments in lieu of contributions.  He then works for Company B, a liable, contributing employer for approximately ten months.  After being laid off by Company B, he is again employed by City A which then lays him off after five days.  City A will be liable for payments in lieu of contributions equal to 100% of the benefits paid to this individual.  This is because City A is the individual's last employer prior to the beginning of his benefit year, and this individual was employed for at least 30 days beginning with the start of his base period and prior to the beginning of his benefit year.  City A is liable for 100% of the benefits paid because, in addition to being the chargeable employer as provided in this subsection, the individual also provided services for this employer during his base period.  If this employer had met the requirements to be the chargeable employer but this individual had not provided services to this employer during his base period, then this employer would have been liable for only 50% of the payments in lieu of contributions made to this individual as in subsection (a)(5).

 

7)         Example:  The individual is employed by several different employers from the beginning of his base period until he first files a claim for benefits.  However, he does not provide services for at least 30 days to any single employer during this period.  Therefore, there is no chargeable employer, and no employer will be liable for either the benefit charges or payments in lieu of contributions as a result of payments made to this individual during this claim for benefits.

 

8)         Example:  An individual is employed during his entire base period for Company A, a liable, contributing employer.  After being laid off by Company A, he works for at least 30 days for the State of Illinois, which makes payments in lieu of contributions pursuant to Section 1403 of the Act.  If this individual files a claim for benefits, the State of Illinois will be liable for an amount equal to 50% of the benefits paid to this individual since the State of Illinois is the chargeable employer but not a base period employer.

 

b)

            If the last organization or person for whom the individual provided at least 30 days of service is not an employer, as defined by Section 205 of the Act, then no employer shall be the chargeable employer, and any benefit charges or payments in lieu of contributions which accrue as a result of benefits paid to the individual shall not become the benefit charges or the amounts due of any employer.  Whether the last organization or person for whom the individual provided at least 30 days of service is an employer, as defined by Section 205 of the Act, is determined as of the effective date of the claim and is unaffected by a later determination of liability based on events which occur after the effective date of the claim.

 

1)         Example:  An individual is employed during his entire base period for Company A, a liable, contributing employer.  He then leaves Illinois and obtains work in California for at least 30 days for an organization which is not liable under the Act.  If this individual is laid off from his California job and files a claim against Illinois based on his Illinois base period wages, no employer shall be liable for any benefit charges for any benefit payments made to this individual.  This is because the California organization is not an employer under the Act and, therefore, cannot be the chargeable employer under this Section.

 

2)         Example:  An individual is employed during his entire base period for Company A, a liable, contributing employer.  After being laid off by Company A, he works for at least 30 days for the U. S. Postal Service, which is not an employer under the Act and for which reimbursement for any benefits paid is determined pursuant to Federal Regulations.  He is then laid off by the Postal Service.  If this individual files a claim for benefits, no employer shall be liable for any benefit charges for any benefit payments made to this individual.  This is because the U. S. Postal Service is not an employer under the Act and, therefore, cannot be the chargeable employer under this Section.

 

3)         Example:  An individual files a claim for benefits, effective March 11, 1990, after having last been employed by Company A which began business as of January 1, 1990.  As of March 11, 1990, Company A is not an employer under the Act because it has not yet had one or more employees in each of twenty or more weeks nor has it paid at least $1,500 in wages in a calendar quarter. However, as of September 10, 1990, it has one or more employees in each of twenty or more weeks, and, therefore, its liability is made retroactive to January 1, 1990.  In this case, Company A will not be the chargeable employer because its liability is a result of a retroactive determination based on events subsequent to the effective date of the individual's claim.

 

4)         Example:  An individual files a claim for benefits, effective March 11, 1990, after having last been employed by Company A which claims that it is not liable under the Act because it has no employees.  On September 10, 1990, there is a determination and assessment, which becomes final, which holds that Company A is liable for unpaid contributions on the wages of workers whom Company A had not considered employees.  This is not a retroactive determination, and Company A can be held to be the chargeable employer of this individual.

 

c)         Notwithstanding any other provision of this Subpart, no employer shall be the chargeable employer of an individual who was either discharged for misconduct connected with the work or voluntarily left such employer without good cause or refused to accept an offer of or to apply for suitable work from that employer without good cause.  Unless the next subsequent employing unit, if it is an employer under the Act and paid the individual an amount equal to his weekly benefit amount in each of four weeks after the beginning of the individual's benefit year, any payments which might result in benefit charges will be pooled and not charged to any employer.  However, if the circumstances of the voluntary quit are those described in Section 601(B)(1) or Section 601(B)(2) of the Act, then, any payments which might result in benefit charges will become pooled costs and not be charged to any employer.

 

1)         Example:  The individual quits Company A where he was employed for at least 30 days.  He then accepts employment with Company B where he works for two weeks and earns in excess of his weekly benefit amount.  He is then laid off and files a claim for benefits.  Pursuant to Section 601(B)(2) of the Act, this individual is not ineligible for benefits.  However, if it is decided that the individual quit this job without good cause, no employer will be charged for the benefits paid to the individual.  This is because the individual quit his job with Company A without good cause but under the circumstances described in Section 601(B)(2) of the Act.

 

2)         Example:  The individual is held to be ineligible for benefits by the claims adjudicator, Referee, Board of Review or court as a result of his discharge for misconduct by Company A, a liable, contributing employer. Thereafter, he returns to work and performs services for Company B, a liable, contributing employer, for three days per week for three weeks and is then laid off.  However, he does earn an amount in excess of his weekly benefit amount in each of these weeks.  He then performs services for Company C for one week and earns in excess of his weekly benefit amount before being laid off for lack of work.  The individual is eligible for benefits because he met the requalification requirements of Section 602 of the Act.  No employer will be the chargeable employer of this individual because he was discharged for misconduct connected with his work and because the next subsequent employing unit after his discharge did not pay him an amount equal to or in excess of his weekly benefit amount in each of four weeks.

 

3)         Example:  The individual is discharged from Company A, files a claim for benefits and is determined to be ineligible under Section 602 of the Act.  He then returns to work for Company B, a liable, contributing employer, and earns in excess of his weekly benefit amount in each of four weeks.  He is then laid off by Company B.  Thereafter he is employed by Company C before being laid off.  Company B will be this individual's chargeable employer because it was the individual's single employer following his discharge for misconduct from Company A, is an employer under the Act, paid the individual an amount necessary to requalify for benefits and the requalification occurred after the beginning of the individual's benefit year.

 

4)         Example:  Assume the same facts as in subsection (d)(3) except that Company B discharged the individual for misconduct connected with his work. In this case, no employer will be the chargeable employer because Company B cannot be the chargeable employer of an individual if it discharged him for misconduct connected with his work and, though Company C was the individual's next subsequent employer following his discharge for misconduct from Company B and paid the individual the amount necessary to requalify for benefits and the requalification occurred after the beginning of the individual's benefit year, the disqualifying event occurred after the beginning of the individual's benefit year.

 

5)         Example:  Assume the same facts as in subsection (d)(3) except that Company B is not an employer under the Act.  In this case, no employer will be charged as a result of any benefits paid to this individual.  This is because the individual was discharged for misconduct connected with his work by Company A and earned an amount equal to or in excess of his weekly benefit amount in each of four weeks after the beginning of his benefit year from Company B, an organization which is not subject to the Act. However, because it is not an employer under the Act, it cannot be charged and, therefore, the charges will be pooled.

 

6)         Example:  An individual is employed by Company A for several months before being laid off for lack of work.  The individual does not file a claim for benefits immediately but goes on vacation.  When he returns from vacation, Company A offers the individual a suitable job which he refuses without good cause.  However, during that same week, he is hired by Company B where he then works less than 30 days but earns in excess of his weekly benefit amount in each of four weeks.  When he is laid off by Company B, the individual files a claim for benefits and is not subject to disqualification for his refusal of work from Company A because he has had sufficient earning from Company B to purge any possible disqualification.  Company A will not be charged for benefit charges which result from payments to this individual because the individual refused the Company's offer of suitable work without good cause. Company B will not be charged either because it paid this individual the amounts necessary to purge the possible disqualification before the beginning of the individual's benefit year.  Therefore, in this case, no employer will be the chargeable employer, and the benefit charges will be pooled.

 

d)         If no employer meets the requirements of this Subpart to be the chargeable employer for the second of two consecutive benefit years but there was a chargeable employer for the first benefit year, that employer will be the chargeable employer for that second benefit year.

 

            Example:  The individual is discharged for misconduct connected with his work by Company A, files a claim for benefits and is held ineligible pursuant to Section 602 of the Act.  He then returns to work for Company B, a liable and contributing employer, and earns an amount equal to or in excess of his current weekly benefit amount in each of four calendar weeks, which is sufficient to requalify for benefits.  He is then laid off by Company B and is now eligible for benefits.  Under these circumstances, Company B will be charged for any benefit charges which accrue because it was the single employer which paid the individual the amount necessary to requalify for benefits and the requalification occurred after the beginning of the individual's benefit year.  If this individual later files a second benefit year claim, Company B did not employ the individual for at least 30 days and paid the amount necessary for the individual to requalify prior to the beginning of the second benefit year.  However, Company B will be the chargeable employer because there is no other employer that meets the requirements for chargeability and because it was the chargeable employer for the individual's first benefit year.

 

e)         Whether the last employer for whom the individual provided at least 30 days of service is the chargeable employer is determined based on the circumstances as of the effective date of the initial claim for that benefit year and is unaffected by events which occur after that date.

 

            Example:  Company A is determined to be the chargeable employer of an individual who is laid off for lack of work and has filed an initial claim for unemployment insurance benefits.  After a few weeks, this individual is recalled to work by Company A.  A few months later, he quits his job with Company A and files an additional claim.  Company A is still the chargeable employer since chargeability is determined based on the circumstances as of the effective date of the initial claim and is unaffected by the separation which occurred after that date.

 

f)         Notice that a claim for benefits has been filed will be sent by the Agency to every employing unit for whom the individual provided services, subsequent to the services provided to the chargeable employer, prior to the beginning of the individual's benefit year.

 

(Source:  Amended at 16 Ill. Reg. 12165, effective July 20, 1992)

 

Section 2765.326  Requirement For A Separation Or A Reduction In The Work Offered In Determining The Chargeable Employer Pursuant To Section 1502.1 Of The Act

 

There must be either a separation from the employer or a reduction in the work offered which causes the individual to become unemployed, as defined in Section 239 of the Act, for the employer to be the chargeable employer under Section 1502.1 of the Act.

 

            Example:  For six months, an individual is employed on a full time basis for Company A and, at the same time, works part time for Company B, both liable, contributing employers.  The individual is laid off by Company A but does not have sufficient base period earnings to immediately file a valid claim for unemployment benefits.  He remains employed on a less than full time basis by Company B for several months until the base periods change.  He now meets the requirements of Section 500E of the Act for establishing a valid claim based on his base period earnings from both Company A and Company B.  If the individual continues to work, without a reduction in the work offered by Company B and earns less than his weekly benefit amount, even though he has not worked for Company A for several months, Company A will be held to be liable for any benefit charges which might accrue as a result of benefit payments to this individual.  This is because Company B, while it meets the 30 day requirement, did not cause the individual to become unemployed because it neither caused his separation nor reduced the work offered to him.

 

(Source:  Added at 13 Ill. Reg. 17410, effective October 30, 1989)

 

Section 2765.328  What Constitutes A Day For Purposes Of The "30 Day" Requirement In Section 1502.1 Of The Act

 

a)         The 30 day requirement, set forth in Section 2765.325, shall include any day on which any services are actually performed for the employer by the individual prior to the date of separation.  The 30 day requirement, set forth in Section 2765.329, shall include any day on which any services are actually performed for the employer by the individual prior to the first of the week (Sunday) with respect to which the chargeable employer is being determined.  If a shift covers two calendar days, only one day shall be included in determining whether the 30 day requirement has been met.  The day included is the one on which the individual's shift begins.  Paid sick days, vacation days, holidays or other similar paid, non-working days (e.g., "show-up" or stand-by pay days) shall not be counted toward meeting the 30 day requirement.  Payments for wages in lieu of notice, pension or other retirement type payments or for severance pay also do not meet the requirements of this Section.

 

1)         Example:  The individual works a shift which begins at 10 pm on Monday and ends at 7 am on Tuesday.  While this individual performs services for this employer on two calendar days, for the purpose of determining whether the 30 day requirement set forth in Section 1502.1 of the Act has been met, the individual's shift counts as only one day of service, Monday.

 

2)         Example:  The individual begins his shift at noon but becomes ill fifteen minutes later.  Since the individual performed services for the employer for fifteen minutes, one day is counted toward meeting the 30 day requirement.

 

3)         Example:  The individual is scheduled to work on a certain day but fails to report for work because he is ill.  Even if the employer provides paid sick leave to the individual for that day, it will not be counted toward the 30 day requirement.

 

4)         Example:  The individual receives paid sick leave from Company A, a nonprofit corporation, which elects to make payments in lieu of contributions, for 35 days during his base period.  He has no other employment with Company A during his base period.  He also performs services during his base period for Company B, a liable, contributing employer.  After being laid off by Company B, he returns to Company A for 30 days before being again laid off.  Company A will be liable for an amount equal to 100% of the benefits paid to this individual as payments in lieu of contributions.  This is because Company A is the last employer of this individual; the 30 day requirement is met by the individual's employment; and the paid sick leave constitutes wages for insured work paid during the individual's base period.

 

5)         Example:  Upon the permanent layoff of an individual, the employer pays that individual for any unused, accrued vacation time that the individual is due and grants him severance pay in the amount of one day's pay for each year of continuous service.  These payments are not included for the purpose of determining whether this employer has met the 30 day requirement.

 

6)         Example:  The individual works a four day work week, that is, instead of working eight hours per day, five days per week, he works ten hours per day, four days per week.  Even if the individual's ten hour shift extends over two calendar days, each shift still counts as only one day, and this individual will have worked only four days in a normal work week.

 

7)         Example:  The individual had filed a new benefit year claim, effective January 10, 1993.  He then works on Thursday, January 21, 1993, Friday, January 22, 1993, Saturday, January 23, 1993, and Sunday, January 24, 1993, for Company A before being laid off for lack of work.  He files a claim for and is paid benefits for the week ending January 30, 1993.  In determining the chargeable employer for that week, Sunday, January 24, 1993, is not counted in determining if this individual performed services for Company A for 30 days.  This is because Sunday, January 24, 1993, does not occur prior to the beginning of the week with respect to which a chargeable employer is being determined.

 

b)         Overtime work or working additional shifts shall not be included in determining whether the 30 day requirement has been met unless there is at least 6 hours between the beginning of the overtime work or the additional shift and the end of the prior shift and the overtime work or additional shift does not occur on a day which will be otherwise included in meeting the 30 day requirement.

 

1)         Example:  The individual's normal shift ends at 3 am, and he is asked to work the next shift which begins at 4 am.  Even if he works both shifts, since there is not at least 6 hours between the shifts, only one day will be counted toward meeting the 30 day requirement.

 

2)         Example:  The individual's shift ends at 3 am on Saturday, and he is asked to return to work for an additional overtime shift from 9 am until 2 pm. He must then return to work at 7 pm to work his regular shift.  This overtime work does not count as an additional day toward meeting the 30 day requirement because his regular shift begins that same day and would already be included in meeting the 30 day requirement.

 

3)         Example:  The individual's normal shift begins at 3 pm and ends at 11 pm.  However, he is required to work four hours of overtime every day so that he does not complete his shift until 3 am.  This shift still counts as only one day toward the 30 day requirement.

 

(Source:  Amended at 17 Ill. Reg. 614, effective January 4, 1993)

 

Section 2765.329  Application of "30 Day" Requirement for Determining the Chargeable Employer Pursuant to Section 1502.1 of the Act for Benefit Years Beginning on or After January 1, 1993

 

a)         Effective with benefit years beginning on or after January 1, 1993, except as provided in the other subsections and in Sections 2765.326, 2765.330, 2765.332, 2765.333 and 2765.334, the last employer, prior to the beginning of each week claimed by the individual, for whom the individual provided services during at least 30 days beginning with the first day of the individual's base period (defined in Section 237 of the Act) but prior to the beginning of the week claimed shall be liable for the benefit charges or payments in lieu of contributions, as the case may be, that result from any benefits paid to that individual for that week of unemployment. Unless stated to the contrary, each of the examples in this Section assumes a benefit year beginning date on or after January 1, 1993.

 

1)         EXAMPLE:  Prior to the beginning of the week beginning on January 24, 1993, the individual provides services only to Company A, a liable, contributing employer, for over ten years.  Company A is this individual's chargeable employer with respect to this individual for the week ending January 30, 1993 because Company A is the individual's last employer of at least 30 days prior to the beginning of the week beginning on January 24, 1993.  If, after claiming benefits for a few weeks, this individual provides services to Company B, a liable, contributing employer, for six months, is laid off by Company B and files an additional claim, Company B will be the chargeable employer of this individual with respect to any benefit charges that might accrue with respect to weeks which are paid to the individual after the effective date of the additional claim.

 

2)         EXAMPLE:  Immediately prior to filing his claim for unemployment benefits for the week beginning on January 24, 1993, the individual provides services to Company A, a liable, contributing employer, for 20 days.  Prior to this period, he provides services to Company B, a liable, contributing employer, for 30 days. Prior to working for Company B and throughout his base period, the individual has provided at least 10 days of service to Company A. Company A is the chargeable employer and is liable for any benefit charges that might accrue as a result of any benefits paid to this individual for the week ending January 30, 1993.  Company A is the individual's last employer prior to the beginning of the week beginning on January 24, 1993 because he provided services to Company A during at least 30 days during the period from the beginning of his base period to the beginning of the week beginning on January 24, 1993.  Pursuant to Section 1502.1 of the Act, it is not necessary for the 30 days of services by the individual to be consecutive.

 

3)         EXAMPLE:  The individual is employed on an as-needed basis (some weeks the individual might work four days, other weeks he might not work at all) for Company A, a liable, contributing employer.  While so employed by Company A, the individual is also employed on a full time basis for Company B, a liable, contributing employer.  The individual is laid off by Company B and is offered two days of work by Company A.  After working for these two days, no other work is currently available with Company A, and the individual files a claim for benefits for the week ending January 23, 1993.  If the individual has provided services to Company A for at least 30 days since the beginning of his base period, Company A will be liable for any benefit charges which might accrue as a result of any benefits that might be paid to this individual for this week. This is because, despite the individual's full time employment with Company B, the individual's last employer for whom he provided services of at least 30 days during the applicable period was Company A, and it was his separation from Company A that caused the individual to become "unemployed".

 

4)         EXAMPLE:  Assume the same facts as in subsection (a)(3), except that, instead of being an as-needed employee, the individual continues to provide less than full time services to Company A and earns less than his weekly benefit amount.  In that case, Section 2765.326 shall apply, and Company B will be the chargeable employer because it caused this individual to become unemployed as defined in Section 239 of the Act.

 

5)         EXAMPLE:  The individual is a substitute teacher.  Whenever he or she is available to teach, he calls in for assignments with his school district, a local governmental entity that has elected to make payments in lieu of contributions.  During the first semester of the school year, he teaches only 32 days.  He, however, did not work for the school district during his base period.  If he now files a claim for benefits, his school district will be liable for 50% of any payments in lieu of contributions that would result if he would be paid benefits.  This is because, despite his services being performed over a five month period, the school district is the last employer prior to the first day of the week with respect to which he is claiming benefits and he has performed the required 30 days of services during the applicable period.  The employer is only liable for 50% of the amount of the benefits paid because the individual performed no services for this employer during his base period (see Section 1405(B) of the Act).

 

6)         EXAMPLE:  The individual performed services for 25 days during his base period for City A, a local governmental entity that has elected to make payments in lieu of contributions.  He then performs services for Company B, a liable, contributing employer, for approximately 10months.  After being laid off by Company B, he is again employed by City A that then lays him off after he has performed services five days.  City A will be liable for payments in lieu of contributions equal to 100% of the benefits paid to this individual. This is because City A is the individual's last employer prior to the first day of the week with respect to which the individual claimed benefits, and this individual performed services for at least 30 days beginning with the start of his base period and prior to the beginning of the week with respect to  the individual claimed benefits.  City A is liable for 100% of the benefits paid because, in addition to being the chargeable employer as provided in this subsection, the individual also provided services for this employer during his base period.  If this employer had met the requirements to be the chargeable employer but this individual had not provided services to this employer during his base period, then this employer would have been liable for only 50% of the payments in lieu of contributions made to this individual as in subsection (a)(5).  Should this individual return to work for Company B and again become eligible for benefits, Company B would be the chargeable employer with respect to any weeks that occur after this subsequent separation.

 

7)         EXAMPLE:  The individual is employed by several different employers from the beginning of his base period until the beginning of the first week he claims benefits.  However, he does not perform services for at least 30 days for any single employer during this period.  Therefore, there is no chargeable employer for that week or for any subsequent weeks, and no employer will be liable for either the benefit charges or payments in lieu of contributions as a result of payments made to this individual until the claimant has performed services for an employer for at least 30 days.

 

8)         EXAMPLE:  An individual is employed during his entire base period for Company A, a liable, contributing employer.  After being laid off by Company A, he performs services for at least 30 days for the State of Illinois, which makes payments in lieu of contributions under Section 1403 of the Act. If this individual files a claim for benefits, the State will be liable for an amount equal to 50% of the benefits paid to this individual since the State is the chargeable employer but not a base period employer.

 

9)         EXAMPLE:  An individual files a claim with a benefit year that begins on December 1, 1992.  Company A is determined to be the chargeable employer with respect to this claim.  The individual returns to work on January 5, 1993, and performs services for 30 days for Company B before being laid off and filing an additional claim.  Despite having worked for Company B for 30 days, Company A remains the chargeable employer in this case because the benefit year began prior to January 1, 1993.

 

10)       EXAMPLE:  An individual is laid off of work by Company A and files a new claim, effective January 24, 1993.  Company A is found to be the chargeable employer. Thereafter, the individual obtains a part time job with Company B and works four days each week.  However, she never earns over her weekly benefit amount in any week.  Even after working for Company B for more than 30 days, Company A remains the chargeable employer.  This is because Company B has not separated this individual nor caused her to become unemployed as a result of a reduction of the work offered, as required by Section 1502.1.

 

11)       EXAMPLE:  An individual is employed by Easy Living Realty as a secretary for 45 days during his base period.  He leaves Easy Living Realty and obtains work as a secretary for Victorian Realty for 10 days.  He is then promoted to real estate salesman, paid solely by commission.  After working as salesman for several months, he is laid off from this job.  He then files a claim for benefits.  Easy Living Realty is the chargeable employer in this case.  The time that this individual spent as a real estate salesman for Victorian Realty is not included in determining whether he was employed for 30 days for that employer because those services do not constitute employment under the Act.

 

12)       EXAMPLE:  An individual is employed by Company A for 29 days before being laid off from his job.  He then files an unemployment insurance claim with a benefit year beginning date of January 24, 1993.  On February 15, 1993, this individual returns to work for Company A and works only one day.  For any weeks beginning after February 15, Company A meets the requirements to be the chargeable employer.

 

b)         If, with respect to a week, the last organization or person for whom the individual provided at least 30 days of service is not an employer, as defined by Section 205 of the Act, then no employer shall be the chargeable employer for that week, and any benefit charges or payments in lieu of contributions which accrue as a result of benefits paid to the individual for that week shall not become the benefit charges or the amounts due of any employer.  Whether the last organization or person for whom the individual provided at least 30 days of service is an employer, as defined by Section 205 of the Act, is determined as of the last day of the week for which the claim is made and is unaffected by a later determination of liability based on events which occur after that week.  However, if it is later determined that the organization or person has become an employer under the Act, the organization or person can be the chargeable employer for any weeks occurring after the date on which the organization or person became liable.

 

1)         EXAMPLE:  An individual is employed during his entire base period for Company A, a liable, contributing employer.  He then leaves Illinois and performs services in California for at least 30 days for an organization that is not liable under the Act.   If this individual is laid off from his California job and files a claim against Illinois based on his Illinois base period wages, no employer shall be liable for any benefit charges for any benefit payments made to this individual with respect to weeks when the California organization was the last entity to employ the individual.  This is because the California organization is not an employer under the Act and, therefore, cannot be the chargeable employer under this Section.  However, if this individual would return to work for Company A and then again become eligible for benefits, Company A would be the chargeable employer with respect to any weeks which occur after this later separation from Company A.

 

2)         EXAMPLE:  An individual is employed during his entire base period for Company A, a liable, contributing employer.  After being laid off by Company A, he performs services for at least 30 days for the U.S. Postal Service, which is not an employer under the Act and for which reimbursement for any benefits paid is determined under federal regulations.  He is then laid off by the U.S. Postal Service.  If this individual files a claim for benefits, no employer shall be liable for any benefit charges for any benefit payments made to this individual.  This is because the U.S. Postal Service is not an employer under the Act and, therefore, cannot be the chargeable employer under this Section. However, if this individual would return to work for Company A and then again become eligible for benefits, Company A would be the chargeable employer with respect to any weeks that occur after this later separation from Company A.

 

3)         EXAMPLE:  An individual files a claim for benefits, effective March 28, 1993, after having last been employed by Company A that began business as of January 1, 1993.  As of March 28, 1993, Company A is not an employer under the Act because it has not yet had one or more employees in each of twenty or more weeks nor has it paid at least $1,500 in wages in a calendar quarter.  However, as of September 4, 1993, it has one or more employees in each of 20 or more weeks, and, therefore, its liability is made retroactive to January 1, 1993. In this case, Company A will be the chargeable employer only with respect to any weeks that begin after September 3, 1993, because, while the effective date of its liability is January 1, 1993, it did not meet the criteria for liability under the Act until September 4, 1993.

 

4)         EXAMPLE:  An individual files a claim for benefits for the week ending January 23, 1993, after having last been employed by Company A, an employing unit that claims it is not liable under the Act because it has no employees.  On September 10, 1993, there is a determination and assessment, covering all of 1992 and the first two quarters of 1993, which becomes final and which holds that Company A is liable for unpaid contributions on the wages of workers whom Company A had not considered employees.  This determination and assessment is based on events that occurred prior to the week beginning January 17, 1993.  Therefore, Company A can be held to be the chargeable employer of this individual for the week ending January 23, 1993.

 

c)         Notwithstanding any other provision of this Subpart, with respect to a week of benefits claimed, no employer shall be the chargeable employer of an individual who was either discharged for misconduct connected with the work or voluntarily left the employer without good cause or refused to accept an offer of or to apply for suitable work from that employer without good cause.  Unless a subsequent employer paid the individual an amount equal to his or her weekly benefit amount in each of four weeks after the beginning of the week in question, any payments that might result in benefit charges for that week will be pooled and not charged to any employer.  However, if the circumstances of the voluntary quit are those described in Section 601(B)(1), or (2), (6) or (7) of the Act, then, any payments that might result in benefit charges will become pooled costs and not be charged to any employer.

 

1)         EXAMPLE:  The individual quits Company A where he performed services for at least 30 days to accept employment with Company B where he works for two weeks and earns in excess of his weekly benefit amount.  He is then laid off and files a claim for benefits for the week ending January 23, 1993.  Company A is the individual's last employer prior to the beginning of the week ending on January 23, 1993, and the individual provided services to Company A during at least 30 days during the period from the beginning of the individual's base period to the beginning of the week beginning on January 17, 1993.  Under Section 601(B)(2) of the Act, this individual is not ineligible for benefits. However, no employer will be charged for the benefits paid to the individual for the week ending January 23, 1993.  This is because the individual quit his job with Company A without good cause but under the circumstances described in Section 601(B)(2) of the Act.

 

2)         EXAMPLE:  The individual is held to be ineligible for benefits by the claims adjudicator, Referee, Board of Review or court as a result of his discharge for misconduct by Company A, a liable, contributing employer. Thereafter, he returns to work and performs services for Company B, a liable, contributing employer, for three days per week for three weeks and is then laid off.  However, he does earn an amount in excess of his weekly benefit amount in each of these weeks.  He then performs services for Company C for one week and earns in excess of his weekly benefit amount before being laid off for lack of work and claims benefits for the week ending March 6, 1993.  The individual is eligible for benefits because he met the requalification requirements of Section 602 of the Act.  No employer will be the chargeable employer of this individual for the week ending March 6, 1993 because he was discharged for misconduct connected with his work and because, after his discharge, there was no single employer that paid him an amount equal to or in excess of his weekly benefit amount in each of four weeks.  However, if this individual later returns to work for Company B and performs services for an additional 21 days before being laid off, Company B could be the chargeable employer with respect to any weeks that occur subsequent to this separation.

 

3)         EXAMPLE:  The individual is discharged from Company A, files a claim for benefits for the week ending January 23, 1993 and is determined to be ineligible under Section 602 of the Act.  He then returns to work for Company A and earns in excess of his weekly benefit amount in each of four weeks.  He is then laid off by Company A.  Thereafter, he performs services for Company B for less than 30 days before being laid off.  Company A will be this individual's chargeable employer with respect to any weeks subsequent to this second separation from it because it was the individual's single employer following his discharge for misconduct, is an employer under the Act and paid the individual an amount necessary to requalify for benefits.  If this individual had performed services for Company B for 30 days, then it would be this individual's chargeable employer.

 

4)         EXAMPLE:  Assume the same facts as in subsection (c)(3) except that, after performing services 30 days for Company B, the individual was discharged for misconduct connected with his work.  In this case, no employer will be the chargeable employer with respect to this subsequent separation because Company B cannot be the chargeable employer of an individual if it discharged him for misconduct connected with his work.

 

5)         EXAMPLE:  Assume the same facts as in subsection (c)(3) except that Company B, that employed the individual for 30 days, is not an employer under the Act.  In this case, no employer will be charged as a result of any benefits paid to this individual after his second separation (unless a later chargeable employer is found for subsequent weeks).  This is because, even though the individual requalified for benefits by earning an amount equal to or in excess of his weekly benefit amount in each of four weeks from Company A, he was subsequently employed for 30 days by Company B, an organization that is not subject to the Act.

 

6)         EXAMPLE:  An individual is employed by Company A for several months and performs services for Company A for at least 30 days before being laid off for lack of work.  The individual does not file a claim for benefits immediately but goes on vacation.  When he returns from vacation, Company A offers the individual a suitable job that he refuses without good cause.  However, during that same week, he is hired by Company B where he then performs services for less than 30 days but earns in excess of his weekly benefit amount in each of four weeks.  When he is laid off by Company B, the individual files a claim for benefits for the week ending January 23, 1993.  He is not subject to disqualification for his refusal of work from Company A because he has had sufficient earnings from Company B to purge any possible disqualification. Company A will not be charged for benefit charges that result from payments to this individual because the individual refused the Company's offer of suitable work without good cause.  Company B is not the employer that paid the claimant earnings that allowed him to requalify because the individual was never disqualified.  Company B did not employ this individual for at least 30 days. Therefore, in this case, no employer will be the chargeable employer for the week ending January 23, 1993 and thereafter until such time as there is an employer that meets the requirements of the Act to be chargeable.

 

d)         If no employer meets the requirements of this Subpart to be the chargeable employer for the second of two consecutive benefit years, then no employer will be the chargeable employer for that second benefit year (effective with benefit years beginning on or after September 22, 1992).

 

EXAMPLE:  The individual files a claim after being employed at several temporary jobs.  Company A employed this individual for 30 days during the first quarter of his base period.  No subsequent employer employed this individual for 30 days.  Company A is the chargeable employer.  This individual then files a second benefit year claim.  His employment with Company A occurred prior to the base period of the second benefit year claim, and no subsequent employer employed him for at least 30 days.  Therefore, no employer will be chargeable for this claim.  However, if the second benefit year began after January 1, 1993, while no employer might initially be liable for any benefit charges, should this individual become employed and then later unemployed, a subsequent employer could be liable for any charges that might accrue after that period of unemployment.

 

e)         Notice that a claim for benefits has been filed will be sent by the Agency to every employing unit for whom the individual provided services, subsequent to the services provided to the chargeable employer.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.330  Chargeability Where The Individual Is Discharged As A Result Of His Incarceration

 

Effective with respect to the payment of benefits for weeks which begin after September 22, 1992, an employer shall not be the chargeable employer, if that employer would otherwise be the chargeable employer but the individual is separated from that employer as a result of the individual's detention, incarceration or imprisonment under State, local or federal law.  The benefit charges or payments in lieu of contributions with respect to this individual for this period shall be pooled and not chargeable to any employer.

 

a)         Example:  An individual is arrested on his way to work.  He calls the employer to inform it that he cannot make bail so he cannot report to work. The employer replaces the individual because it needs to continue its production uninterrupted.  The charges are later dismissed against the individual, and he files a new benefit year claim effective November 1, 1992. Because he was discharged for a reason other than misconduct connected with his work, the individual is eligible for benefits.  It is determined that the employer would otherwise be the chargeable employer.  Any benefit charges or payments in lieu of contributions as a result of benefits paid to this individual shall be pooled and not chargeable to any employer.

 

b)         Example:  The individual informs his employer that he has been sentenced to jail for 30 days for a non-work related offense.  He requests a leave of absence for this period, but it is denied because he does not meet the employer's criteria for such a leave.  While the claimant is in jail, the employer, Company A, replaces the individual.  After he is released from jail, the individual returns to the employer, but no work is available.  He then files a new benefit year claim effective January 10, 1993.  The individual is eligible for benefits, and is paid for the period from January 17, 1993 through January 30, 1993, when he goes to work for another employer, Company B.  Any benefit charges or payments in lieu of contributions as a result of benefits paid to this individual for the period from January 17, 1993 through January 30, 1993 shall be pooled and not chargeable to any employer.  If this individual is subsequently separated from Company B and if Company B is determined to be the chargeable employer for any subsequent weeks, any benefit charges or payments in lieu of contributions as a result of benefits paid to this individual for the subsequent weeks will be charged to Company B. However, if Company A would otherwise be the chargeable employer with respect to this subsequent period, any benefit charges or payments in lieu of contributions as a result of benefits paid to this individual for this subsequent period shall be pooled.

 

c)         Examples:  An individual is arrested on his way to work.  He calls the employer to inform it that he cannot make bail so he cannot report to work. The employer replaces the individual because it needs to continue its production uninterrupted.  The charges are later dismissed against the individual, and he files a new benefit year claim effective March 1, 1992. Because he was discharged for a reason other than misconduct connected with his work,  the individual is eligible for benefits.  It is determined that the employer is the chargeable employer.  However, any benefit charges or payments in lieu of contributions as a result of benefits paid to this individual for weeks beginning on or after September 22, 1992 shall be pooled and not chargeable to any employer.  This employer remains the chargeable employer for weeks beginning prior to September 22, 1992.

 

(Source:  Added at 17 Ill. Reg. 614, effective January 4, 1993)

 

Section 2765.332  Effect Of Ineligibility Under Section 602(B) On Chargeability Under Section 1502.1 of The Act

 

Pursuant to Section 602(B) of the Act, whenever it is determined that an individual has been discharged for the commission of a felony or theft connected with his work and that the employer has met certain conditions set forth in that subsection of the Act, all wages earned by the individual prior to the date of discharge shall be cancelled, thus making the individual ineligible for benefits on the basis on such wages.  An employer cannot be the chargeable employer pursuant to this Subpart on the basis of wages earned prior to the date of the discharge.  However, if that employer were to reemploy the individual after the date of discharge, such employer could be the individual's chargeable employer pursuant to this subpart if the requirements of the Subpart are met based only on the period of employment following the date of the discharge for the felony or theft.

 

(Source:  Added at 13 Ill. Reg. 17410, effective October 30, 1989)

 

Section 2765.333  Effect of Ineligibility Under Section 612 on Chargeability Under Section 1502.1 of the Act

 

Whenever the individual's last employer is an educational institution or is an educational service agency, then the educational institution or educational service agency shall not be liable for benefit charges on the basis of benefits paid to that individual during the period between two consecutive academic years or terms if the individual has a reasonable assurance that he or she will perform service in any capacity for any educational institution or educational service agency in the second of the academic years or terms.  In these instances, it is not necessary that the individual be ineligible under Section 612 of the Act if Section 612 would have applied if the individual had had wages from an educational institution or educational service agency during his or her base period.  This Section shall also apply to payments in lieu of contributions.

 

a)         EXAMPLE:  An individual is employed as a teacher for a public school. However, during his base period, he earned sufficient wages from a non-educational employer to qualify for benefits.  If this individual is held to be ineligible during a period between academic terms on the basis of his wages from the public school, he could still qualify for benefits based on his wages from the non-educational employer.  Even if the public school would otherwise be the individual's last employer pursuant to this Subpart, the public school will not be liable for any benefit charges that might accrue as a result of payments to that individual during his period of ineligibility under Section 612 of the Act.

 

b)         EXAMPLE:  The individual is employed by a private employer during his entire base period.  Thereafter, he obtains work as a teacher for a public school.  When he is off of work during the summer, the individual applies for unemployment insurance benefits.  If this individual has a reasonable assurance in the second academic year or term, then the public school is the last employer during this period, but it will not be liable for any benefit charges or payments in lieu of contributions that might accrue as the result of payments made to this individual.  In this case, any benefit charges will be pooled.

 

c)         EXAMPLE:  The individual is employed by a private employer during his entire base period.  Thereafter he obtains work as a teacher for a public school.  He is discharged by the school for non-disqualifying reasons and files a new claim with a benefit year beginning January 10, 1993.  He is then paid benefits for the period from January 10, 1993 through January 30, 1993,  at that time he is rehired by this same public school.  If the school meets the other requirements for chargeability, it will be liable for any benefit charges or payments in lieu of contributions that accrue for this period.  However, if this same individual is then off of work during the summer and has a reasonable assurance of similar employment in the second academic year or term, while the public school would otherwise be the chargeable employer during this period, it will not be liable for any benefit charges or payments in lieu of contributions that might accrue as the result of payments made to this individual during the period.  In this case, any benefit charges will be pooled.  However, this pooling occurs only for the period of ineligibility or potential ineligibility under Section 612 of the Act.

 

d)         EXAMPLE:  Assume the same facts as in subsection (c), except that the individual is later laid off for lack of work by the school district for the week ending October 16, 1993.  The school district will be the chargeable employer for this week.

 

e)         EXAMPLE:  The individual is employed by Company A for 2 years until his layoff in May 1993.  He is then employed for 20 days by a public school district as a teacher.  He is laid off for the summer vacation but has a reasonable assurance of reemployment by the school district when the new academic year or term begins.  The individual is not ineligible for benefits under Section 612 of the Act because he was not employed by the school district during his base period.  Because Company A is the last employer for whom this individual performed services for at least 30 days, it is the chargeable employer for any weeks paid to this individual during the summer period. Section 1502.1A(3)(a)(ii)(5) of the Act does not apply to this situation because Company A is not the employer that laid the individual off between academic years or terms.

 

(Source:  Amended at 43 Ill. Reg. 6480, effective May 14, 2019)

 

Section 2765.334  Effect Of Ineligibility Under Section 614 On Chargeability Under Section 1502.1 Of The Act

 

Pursuant to Section 614 of the Act, an individual shall be ineligible, on the basis of wages earned during his base period unless he was either lawfully admitted to this country for permanent residence or otherwise is permanently residing in this country under color of law.  Because this ineligibility could effect some, but not all, of the individual's base period wages, it is possible that the individual could be held ineligible under Section 614 of the Act but still qualify for benefits based on base period wages paid after he was either lawfully admitted to this country for permanent residence or otherwise is permanently residing in this county under color of law.  In determining whether an employer is the individual's chargeable employer under this Subpart, no day on which the individual was not either lawfully admitted to this country for permanent residence or otherwise was permanently residing in this country under color of law will be counted in determining whether the individual was employed by the employer for at least 30 days.

 

a)         Example:  The individual applied for and was granted permanent resident status on July 1, 1988.  He worked for Company A, a liable, contributing employer, continuously from January 1, 1988, to the date of his separation on May 1, 1989.  His base period began on January 1, 1988. Under Section 614 of the Act, the individual is not eligible for benefits based on the wages paid prior to July 1, 1988, because he was not either lawfully admitted to this country for permanent residence or otherwise was permanently residing in this country under color of law during this time. However, he might still be eligible for benefits based on his earnings during the third and fourth quarters of 1988.  Company A will be the individual's chargeable employer under this Subpart because, even not counting the days of employment from January 1, 1988 to June 30, 1988, the individual was employed by Company A for 30 days from the beginning of his base period to the beginning of his claim for unemployment insurance benefits.

 

b)         Example:  The individual applied for and was granted permanent resident status on July 1, 1992.  He worked full time for Company A, a liable, contributing employer, continuously from January 1, 1988, to the date of his separation on April 30, 1993.  He filed his new benefit year claim, beginning May 2, 1993.  His base period began on January 1, 1992.  Under Section 614 of the Act, the individual is not eligible for benefits based on the wages paid prior to July 1, 1992, because he was not either lawfully admitted to this country for permanent residence or otherwise was permanently residing in this country under color of law during this time.  However, he is eligible for benefits based on his earnings during the third and fourth quarters of 1992, and he is paid benefits from May 2, 1993 through May 29, 1993.  Company A will be the individual's chargeable employer under this Subpart because, even not counting the days of employment from January 1, 1988 to June 30, 1992, this individual performed services for Company A for 30 days from the beginning of his base period to the beginning of the week with respect to which he files a claim for unemployment insurance benefits.

 

c)         Example:  The individual applied for and was granted permanent resident status on July 1, 1992.  He worked full time for Company A, a liable, contributing employer, continuously from January 1, 1988, to the date of his separation on June 30, 1992.  He then worked for Company B for the period from July 1, 1992 to the date of his separation on March 15, 1993.  He then returned to work for Company A and performed services for this employer for five weeks (25 days).  He filed his new benefit year claim, beginning May 2, 1993.  His base period began on January 1, 1992.  Under Section 614 of the Act, the individual is not eligible for benefits based on the wages paid prior to July 1, 1992, because he was not either lawfully admitted to this country for permanent residence or otherwise was permanently residing in this country under color of law during this time.  However, he is eligible for benefits based on his earnings during the third and fourth quarters of 1992, and he is paid benefits from May 2, 1993 through May 29, 1993.  Company B will be the individual's chargeable employer under this Subpart because this individual performed services for Company B for 30 days from the beginning of his base period to the beginning of the week with respect to which he files a claim for unemployment insurance benefits.  Company A cannot be the chargeable employer with respect to these weeks because the individual had not performed services for it for 30 days since the days on which he performed services prior to July 1, 1992 cannot be counted in determining whether the individual performed services for 30 days.  However, if this individual would return to work for Company A and perform services for an additional 5 days, Company A would be the chargeable employer for any weeks which begin after the individual performed services for these additional days.

 

(Source:  Amended at 17 Ill. Reg. 614, effective January 4, 1993)

 

Section 2765.335  Procedural Requirements And Right Of Appeal

 

a)         Whenever, pursuant to Section 701 of the Act, the claims adjudicator decides that an employer is the "last employer" of an individual (employer subject to benefit charges or payments in lieu of contributions) as provided in this Subpart, or, pursuant to Section 706 of the Act, decides that charges must be assessed against the employer pursuant to Section 2765.336 for benefits for which a claimant was ultimately determined to be ineligible, the claims adjudicator shall promptly notify the employer of this decision.  A decision that an employer is the "last employer" of an individual shall apply to the week beginning with the effective date of the claim and each week thereafter until the claims adjudicator finds that the individual is no longer unemployed.

 

EXAMPLE:  An individual files a claim with a benefit year beginning January 10, 1993, and Company A is notified that it is the "last employer". The employer fails to file a timely request for reconsideration of this decision.  The individual is then paid benefits for the period from January 10, 1993 through January 30, 1993.  Company A is the chargeable employer for this period.  The individual returns to work for Company A and earns over his weekly benefit amount for the week ending February 6, 1993.  He is then laid off of work and files an additional claim beginning February 7, 1993.  Company A is notified that it is the "last employer" with respect to this claim.  Company A can file a timely request for reconsideration of this decision.  However, this request will affect only weeks after February 6, 1993.

 

b)         If the employer disagrees with the decision of the claims adjudicator that it is the "last employer", or that charges must be assessed against the employer pursuant to Section 2765.336, the employer must file a written request for reconsideration of this decision within 10 days after the date of mailing of the decision.

 

c)         A request for reconsideration of the decision of the claims adjudicator must comply with the requirements of 56 Ill. Adm. Code 2720.130.  In the case of a decision that the employer is the last employer of the individual, the request shall specify the full name and social security number of the individual and the reasons why the employer believes that it is not the chargeable employer under this Subpart. The employer may not allege the misapplication of Section 2765.336 with respect to any claim that was part of the basis for charges assessed against an employer pursuant to that Section, if the claim was the basis of a previous decision that assessed charges against the employer pursuant to Section 2765.336 and that decision has become legally final. An employer's request for reconsideration of a decision issued pursuant to Section 706 may not challenge a legally final determination or decision that the employer failed to file a timely and sufficient protest for purposes of Section 2765.336.

 

EXAMPLE 1:  Employer X receives a decision that charges must be assessed against Employer X for benefits paid to Claimant A even though Claimant A was finally determined to be ineligible for those benefits. Employer X files a timely request for reconsideration of that decision. It will be Employer X's burden to show that Section 2765.336 does not apply to the charges for Claimant A's benefits. However, the request may not challenge a legally final determination or decision that Employer X failed to file a timely and sufficient protest for purposes of Section 2765.336.

 

EXAMPLE 2:  Employer X receives a Notice of Claim indicating that Claimant A has filed a claim for benefits. Employer X does not file a timely protest of the claim. The Department issues a determination, allowing A's claim, and A receives benefits during October 2021. That same month, X sends the Department information, indicating that it had discharged A for misconduct. In November 2021, the Department issues a reconsidered determination, denying A's claim. A does not appeal, and the reconsidered determination becomes legally final. According to Department records, during 2021, there were 4 prior claims with respect to which:  X was the last chargeable employer; the Department had properly notified X; the Department initially paid benefits due to X's failure to file a timely and sufficient protest pursuant to Section 2720.130; and the Department ultimately issued a reconsidered determination denying benefits, with the reconsidered determination becoming legally final. Employer X receives a decision that charges must be assessed against Employer X for benefits paid to Claimant A even though Claimant A was finally determined to be ineligible for those benefits. The decision notes the four prior claims that caused X to remain chargeable for the benefits that were paid to A. To be relieved of the charges for A's benefits, X must file a timely request for reconsideration of the decision. It will be Employer X's burden to show that Section 2765.336 does not apply to the charges for Claimant A's benefits. However, the request may not challenge a legally final determination or decision that Employer X failed to file a timely and sufficient protest for purposes of Section 2765.336.

 

EXAMPLE 3:  Employer X receives a Notice of Claim, indicating that Claimant A has filed a claim for benefits. Employer X does not file a timely protest of the claim. The Department issues a determination, allowing A's claim, and A receives benefits during September 2021. That same month, X sends the Department information indicating that it had discharged A for misconduct. In October 2021, the Department issues a reconsidered determination, denying A's claim. A does not appeal, and the reconsidered determination becomes legally final. According to Department records, during 2021, there were 4 prior claims with respect to which:  X was the last chargeable employer; the Department had properly notified X; the Department initially paid benefits due to X's failure to file a timely and sufficient protest pursuant to Section 2720.130; and the Department ultimately issued a reconsidered determination denying benefits, with the reconsidered determination becoming legally final. Employer X receives a decision that charges must be assessed against Employer X for benefits paid to Claimant A even though Claimant A was finally determined to be ineligible for those benefits. The decision notes the four prior claims that caused X to remain chargeable for the benefits that were paid to A. X does not file a request for reconsideration, and the decision becomes legally final. In November 2021, Employer X receives a Notice of Claim indicating that Claimant B has filed a claim for benefits. Employer X does not file a timely protest of the claim. The Department issues a determination, allowing B's claim, and B receives benefits during November 2021. That same month, X sends the Department information, indicating that it had discharged B for misconduct. In December 2021, the Department issues a reconsidered determination, denying B's claim. B does not appeal, and the reconsidered determination becomes legally final. Employer X receives a decision that charges must be assessed against Employer X for benefits paid to Claimant B even though Claimant B was finally determined to be ineligible for those benefits. The decision notes the five prior claims that caused X to remain chargeable for the benefits that were paid to B. X may not allege the misapplication of Section 2765.336 with respect to any of the five prior claims because each was part of the basis for charges assessed against X pursuant to Section 2765.336 for benefits for which a claimant was ultimately determined to be ineligible, and the decision assessing the charges became legally final.

 

d)         After reviewing the allegations of the employer and any other relevant facts in the record, the claims adjudicator shall issue a reconsidered decision.  If the employer disagrees with the reconsidered decision of the claims adjudicator, the employer must file a written appeal of the reconsidered decision within 30 days after the date of mailing of the reconsidered decision or the reconsidered decision will become final.

 

e)         An Application made pursuant to Section 1508 of the Act and 56 Ill. Adm. Code 2725.100 regarding revision of the Statement of Benefit Charges, that includes benefit charges the employer believes are incorrect because it is not the chargeable employer shall be sufficient only if the Application contains a reference to, and a copy of, the decision that reverses the claims adjudicator and holds that the employer is not the chargeable employer and that the employer is not subject to charges for the claim pursuant to Section 2765.336.  These same requirements must be met by an employer that is questioning payments in lieu of contributions on its Statement of Amount Due for Benefits Paid.

 

f)         Unless the employer has filed a timely request for reconsideration of the decision that the claims adjudicator has found it to be the chargeable employer, or of the decision that charges must be assessed against the employer pursuant to Section 2765.336, as the case may be, the employer shall not be entitled to a revision of its Statement of Benefit Charges under 56 Ill. Adm. Code 2725.100, nor shall it be entitled to a revision of the amounts shown on its Statement of Amount Due for Benefits Paid for payments in lieu of contributions.

 

EXAMPLE:  Employer A is notified that it is the chargeable employer with respect to a claim for unemployment insurance benefits within a benefit year beginning on or after January 1, 1993.  The employer does not request reconsideration of this decision.  Several weeks later, this employer is served with its Statement of Benefit Charges for the weeks paid to this individual.  At this time, the employer requests a revision of the Statement on the grounds that this individual did not perform services for it for 30 days prior to the beginning of the weeks for which it is being charged.  The employer shall not be entitled to a revision of these charges because it failed to file a timely request for reconsideration of the initial decision that it was the chargeable employer.

 

g)         Appeals of decisions under this Section shall be filed with the local office where the original decision was made.

 

h)         The conduct of the hearing shall be the same as that provided under Section 2200 of the Act and 56 Ill. Adm. Code 2725.

 

(Source:  Amended at 44 Ill. Reg. 8234, effective April 28, 2020)

 

Section 2765.336  Non-Cancellation of Benefit Charges Due to Employer's Pattern of Failing to Respond Timely and Adequately

 

a)         For purposes of Section 706 of the Act, if benefits are paid pursuant to a finding or determination, or a reconsidered finding or determination, that is finally reversed or modified in subsequent proceedings, the benefit charges, for purposes set forth in Section 1502.1 of the Act, shall be treated in the same manner as if the reversal or modification had not occurred if:

 

1)         The employer was the last employer with respect to the claim at issue;

 

2)         The employer was properly notified with respect to the claim at issue;

 

3)         The finding or determination, or reconsidered finding or determination, was attributable to the employer's failure to file a sufficient protest within the time required by 56 Ill. Adm. Code 2720.130(a)(1) or (d)(3), whichever is applicable; and

 

4)         During the same calendar year, there were at least 4 prior benefit claims with respect to which:

 

A)        subsections (a)(1), (2) and (3) applied with respect to the employer; and

 

B)        benefits were paid, and the finding, determination or reconsidered finding or determination under which benefits were paid was finally reversed or modified in subsequent proceedings.

 

EXAMPLE:  The employer fails to file a timely and sufficient protest when notified initially that the claimant has filed a claim for benefits and does not preserve party status. The claimant receives benefits. When the employer receives its quarterly Statement of Benefit Charges, it raises a question regarding the claimant's eligibility for benefits. Upon investigation, the claims adjudicator determines the claimant to be ineligible for benefits and establishes an overpayment for the entire amount of the benefits paid to the claimant. The overpayment becomes legally final. The employer's charges for this claimant's benefits will not be cancelled if, within the same calendar year, there were at least four other cases to which subsections (a)(4)(A) and (B) apply.

 

b)         For purposes of subsection (a)(3), with respect to a claim in which benefits are initially paid pursuant to a finding or determination, or a reconsidered finding or determination, the timing of the protest shall be determined without regard to 56 Ill. Adm. Code 2720.130(e) if the finding or determination, or the reconsidered finding or determination, was attributable to the employer's failure to initially submit a sufficient protest.

 

c)         Only claims filed on or after April 1, 2020 shall be considered for purposes of subsection (a).

 

d)         The applicability of this Section shall be based on the date of the reconsidered finding or determination, or decision of a Referee, the Board of Review or a court that finally reverses the finding or determination, or the reconsidered finding or determination, pursuant to which benefits were paid with respect to the claim.

 

EXAMPLE:  The employer fails to file a timely and sufficient protest when notified initially that the claimant has filed a claim for benefits and does not preserve party status. A separation issue is detected on the claim application. The claims adjudicator mails out an "Allow" determination. The claimant collects benefits for several weeks. The employer then submits a request for reconsideration and appeal. On December 3, 2020, the claims adjudicator mails out a "Deny" reconsidered determination. The claimant does not submit a request for reconsideration and appeal. The reconsidered determination becomes final on January 4, 2021. The application of this Section will be based on the date of the reconsidered determination, December 3, 2020, and not the date when the reconsidered determination became final on January 4, 2021.

 

e)         This Section will apply regardless of whether the employer has contracted with one or more attorneys or other representatives for representation in connection with benefit claims. 

 

(Source:  Added at 44 Ill. Reg. 8234, effective April 28, 2020)

 

Section 2765.337  Benefits Paid During the Period Created by Section 1502.4 of the Act Attributable to COVID-19

 

For purposes of Section 1502.4 of the Act, due to the unprecedented rate of displacement and employer closings, both temporary and permanent, the vast majority of unemployment giving rise to the payment of benefits from March 15, 2020 through January 2, 2021 is presumed to be directly or indirectly attributable to COVID-19. Contributing employers shall identify, in the Application for Revision of a Statement of Benefit Charges, the benefit charges resulting from reasons other than COVID-19, as well as any basis not related to COVID-19 for seeking the cancellation of benefit charges for weeks of unemployment that do not fall within that period. Employers making payments in lieu of contributions shall identify, in the Application for Revision of a Statement of Amount Due for Benefits Paid, the amounts due resulting from reasons other than COVID-19, as well as any basis not related to COVID-19 for seeking the cancellation of any amounts due for benefits paid for weeks of unemployment that do not fall within that period.

 

(Source:  Added at 44 Ill. Reg. 19678, effective December 11, 2020)