AUTHORITY: Implementing and authorized by Sections 601, 602, 1700 and 1701 of the Unemployment Insurance Act [820 ILCS 405/601, 602, 1700 and 1701].

SOURCE: Adopted at 17 Ill. Reg. 10270, effective June 29, 1993; amended at 17 Ill. Reg. 17929, effective October 4, 1993; emergency amendment at 34 Ill. Reg. 2335, effective January 19, 2010, for a maximum of 150 days; amended at 34 Ill. Reg. 8520, effective June 16, 2010; amended at 43 Ill. Reg. 6517, effective May 14, 2019.

SUBPART A: MISCONDUCT

 

Section 2840.25  What Is Meant by "Harm"

 

The phrase "...has harmed the employing unit or other employees" in the general definition of misconduct in Section 602A of the Act [820 ILCS 405/602A] includes, but is not limited to:

 

a)         physical or quantitatively measurable damage or injury;

 

b)         other damage or injury to other employees' well-being or morale or to the employer's property, operations or goodwill;

 

1)         EXAMPLE:  An individual is dissatisfied because he does not receive a raise.  He confronts his supervisor and threatens to injure him, if not immediately, at some time soon.  The threat itself, even in the absence of a physical assault resulting in a tangible injury, constitutes harm.

 

2)         EXAMPLE:  Without authorization, an individual enters the company president's office, opens a desk drawer and removes and photocopies trade secrets.  Even if the individual decides not to pass along this information to others, the removal and photocopying of trade secrets constitutes harm.

 

3)         EXAMPLE:  An employer has a point system for evaluating tardiness and absence.  When the worker exceeds the allotted number of points in a particular period, he is subject to discharge.  Absences and tardiness always cause harm to the employer, even if a worker is allowed to make up the time.  This is because absences and tardiness cause disruption to the general operations of any business.  However, even before reaching the question of harm, the worker's reason for tardiness or absence must be reviewed in order to determine if the worker's conduct was willful.

 

c)         damage or injury that could be reasonably foreseen to occur but for the individual being prevented from either carrying out his or her act or continuing to work;

 

1)         EXAMPLE:  At the end of her shift, a grocery store checker is stopped at the exit by a security guard.  The security guard removes from the checker's purse a can of fruit cocktail and a package of sandwich cookies belonging to the employer.  Because the checker was caught, the employer was not deprived of its property.  Still, this constitutes harm.

 

2)         EXAMPLE:  An individual applies for a job that requires that he have a valid driver's license.  On his application, he fails to disclose that his driver's license has been suspended.  One year later, the employer learns of the suspension.  Although the individual has not yet been involved in any accidents on the employer's premises, it is reasonable to foresee that one may occur and that the employer's insurance company would deny liability because of the individual's omission.  The individual's omission on his application constitutes harm.

 

3)         EXAMPLE:  Federal law provides that a commercial carrier may not permit its vehicles to be operated by an individual if there is, within the individual's system, the presence of unlawful, controlled substances beyond a particular level.  The presence of such a substance during working hours within the system of a commercial driver employed by the carrier constitutes harm to the carrier.  To continue to employ the individual as a driver would result in the carrier's violating federal law.

 

4)         EXAMPLE:  The individual is driving a forklift truck through the employer's warehouse at excessive speeds.  It is reasonably foreseeable that this conduct could result in both injuries and property damage.  Even if the conduct is stopped before injuries or damage occur, there is still harm to the employer.

 

d)         It should be noted that harm is only one element of the definition of misconduct and that all of the elements set forth in the Act must be analyzed before a finding of misconduct can be made.

 

(Source:  Amended at 43 Ill. Reg. 6517, effective May 14, 2019)

SUBPART B: VOLUNTARY LEAVE

 

Section 2840.101  General Principles for Interpreting Section 601 of the Act [820 ILCS 405/601]

 

a)         For an individual's separation from work to be a voluntary leaving, the individual must have the option to remain employed by the employing unit.  The separation is a discharge if the individual does not have the option to remain employed by the employing unit. Notwithstanding any other provision to the contrary, when obtaining or maintaining a "tool of the trade" necessary to perform a job, including but not limited to an occupational or other license required by federal or State law, is within an individual's control, a work separation that results from the individual's failure to obtain or maintain the tool of the trade is a voluntary leaving. An individual who is allowed to resign in lieu of discharge is considered as having been discharged.

 

1)         Example:  The individual is told that he/she will be discharged because of his/her poor attendance.  However, in order to avoid having a discharge on his/her record, he/she is allowed to submit a resignation.  This separation is not a voluntary leaving because the individual does not have the option to remain employed.

 

2)         Example:  The employing unit tells the individual that his/her position on the second shift has been eliminated.  However, a position is available to the claimant on the first shift.  The individual leaves rather than accept the first shift.  This is a voluntary leaving.

 

3)         Example:  An individual is involved in an automobile accident, will be unable to work until released by his/her doctor and so advises his/her employer.  The employing unit advises the individual that it cannot offer him/her a leave of absence and cannot keep his/her job open.  This is a discharge because the employing unit has not given the individual the option of remaining employed.

 

4)         Example:  On Day 1, upon returning home from work, an individual is advised by his/her babysitter that, effective immediately, the sitter can no longer watch the individual's two pre-school children. Before work on Day 2, the individual telephones his/her employer to advise it of the situation and says he/she may need a few days to find a new sitter. The employer indicates that he/she must come to work that day or it will consider him/her as having resigned. On Day 3, he/she telephones the employer to advise that he/she has some leads for a new sitter, but will need a few more days. He/she is advised the employer has accepted his/her resignation. The individual was discharged. By presenting the individual with the choice between keeping his/her job and ensuring his/her two pre-school children were properly attended, the employer did not provide the individual with the opportunity to remain employed.

 

5)         Example:  Upon returning home from work, an individual is advised by his/her babysitter that, effective immediately, the sitter can no longer watch the individual's two pre-school children. Before work the next day, the individual telephones his/her employer to advise it of the situation. The employer acknowledges the importance of finding a sitter with whom the individual is comfortable, indicates the company will work around his/her absence while he/she looks for a sitter and instructs him/her to telephone it at the end of two weeks if he/she still has not found a sitter. Without contacting the employer in the interim, he/she reports to work at the employer's premises one month later. He/she is advised that the employer assumed he/she was no longer interested in the job and hired a replacement, and there is no work available to him/her. The individual left work voluntarily. He/she had the option to remain in contact with his/her employer and thereby preserve the possibility of returning to work but did not avail himself/herself of that option.

 

6)         Example:  An individual's job requires that he/she maintain a valid driver's license. After learning that the individual's driver's license has been suspended because of traffic violations, the employing unit instructs the individual that it no longer needs his/her services. The separation is considered a voluntary leave. The individual failed to maintain a tool of his/her trade, in this case, a valid driver's license.

 

7)         Example:  An individual is hired with the understanding that he/she must pass a State mandated licensing test within one year of his/her date of hire.  The individual takes all of the training courses available to prepare for the test but still fails it on three occasions.  The individual is told that his/her services are no longer needed as a result of his/her failure to obtain the required license by the one-year deadline. The resulting separation is not a voluntary leaving because the individual made a reasonable and substantial effort to obtain the required license. Obtaining the license was not within his/her control, and he/she did not have the option to remain employed by the employing unit.

 

8)         Example:  Pursuant to the terms of the collective bargaining agreement governing labor-management relations at the individual's workplace, the payment of union dues was a condition of employment. The individual refused to pay the dues, although he/she was financially able to do so.  After the individual ignored warnings from the employer that he/she needed to pay the dues, the employer indicated that it was no longer able to employ him/her.  The separation was a voluntary leave.  The individual had the option of remaining employed by paying the dues, which he/she had the means to do, but failed to avail himself/herself of that option.

 

9)         Example: Rumors of a shutdown circulate within a plant, although the employer has not given any indication that it intends to close the plant or lay off any employees. After hearing the rumors, a worker at the plant quits to begin looking for work elsewhere, indicating he/she is not going to wait around to find out what happens at the plant. The separation was a voluntary leave, since the worker had the option of remaining at the plant. 

 

10)         Example:  An individual becomes temporarily bed ridden after contracting the flu on a Sunday. When he/she telephones the employer the following day (Monday) to indicate that he/she is unable to go to work, the employer indicates that if he/she is not at work by the next day (Tuesday), he/she will be considered as having resigned. The individual is unable to return to work on Tuesday. When he/she calls the employer on Tuesday to indicate he/she is still unable to go to work, the employer indicates that it has accepted the individual's resignation. The individual was discharged. He/she did not have the option of remaining employed by the employer.

 

b)         An individual has good cause for leaving work when there is a real and substantial reason that would compel a reasonable person who was genuinely desirous of remaining employed to leave work and the individual has made a reasonable effort to resolve the cause of his/her leaving, when such effort is possible.

 

1)         Example:  When hired, the individual commuted 5 miles each way to work.  The employing unit then relocated its plant to a town over 150 miles from the individual's residence, causing a substantial increase in the individual's commuting costs and commuting time.  As a result, the individual leaves his/her job. The individual had good cause for leaving work.

 

2)         Example: An individual retires at the same time a coworker retires, because he/she believes work would not be as enjoyable without the coworker. The individual does not have good cause for leaving the job.

 

3)         Example:  An individual's paychecks are repeatedly returned due to insufficient funds, despite the individual's numerous complaints to the employer. Upon having yet another paycheck returned due to insufficient funds, the individual resigns. The individual has good cause for leaving the job.

 

4)         Example:  When hired, the individual was able to walk to work from his/her home in 15 minutes.  Thereafter, the employing unit relocates to a distance approximately 5 miles from the individual's home, requiring the individual to use public transportation. The commute on public transportation is approximately 45 minutes each way.  The individual quits his/her job because of the increase in commuting time. The individual does not have good cause for quitting.

 

c)         To be attributable to an individual's employing unit, his or her reason for leaving work must be within the control of the employing unit.  Situations in which the reason for leaving is attributable to the employer include, but are not limited to, situations in which the employing unit has implemented a substantial change in the conditions of employment.

 

1)         Example:  The individual relocates to a town over 150 miles from the job site. Because the commute would take more than 2 hours each way, the individual resigns.  The individual's reason for leaving is not attributable to the employing unit because the employing unit had no control over where the individual chose to reside.

 

2)         Example:  When hired, the individual commuted 5 miles each way to work.  The employing unit then relocated its plant to a town over 150 miles from the individual's residence, causing a substantial increase in the individual's commuting costs and commuting time.  As a result, the individual leaves his/her job. The reason for his/her leaving is attributable to the employing unit since the employing unit changed the conditions of employment by moving its plant to a location substantially farther from the individual's residence.

 

3)         Example:  An individual concludes he/she is not living up to his/her full potential in his/her present job and quits to return to school. The employer has made no changes in the terms or conditions of his/her employment and has not given the individual any reason to suspect any such changes are forthcoming. The individual's reason for leaving is not attributable to the employing unit.

 

4)         Example:  An individual quits his/her job to work for a different employer. The employing unit that the individual leaves has made no changes in the terms or conditions of his/her employment and has not given the individual any reason to suspect any such changes are forthcoming. The individual's reason for leaving is not attributable to the employing unit.

 

5)         Example:  The employer announces that, as a result of a loss of a major client, hourly wages will be reduced from $15 to $10, whereupon an employee quits. The employee's reason for leaving is attributable to the employer, since the reduction is a substantial change in working conditions. The employee will still have to demonstrate that there was good cause for leaving. 

 

6)         Example:  An individual quits work because his/her supervisor is demeaning and abusive to him/her, but he/she has not complained to higher management about the supervisor even though the employer has a policy encouraging employees to report abusive supervisors, and higher management is not otherwise aware of the supervisor's conduct.  The individual's leaving is not attributable to his/her employer. Since higher management was not aware of the supervisor's conduct, the reason for the individual's leaving was not within the employer's control.

 

7)         Example: An individual assigned to clean an area in the facility where he/she works objects to the odor of the cleaning fluid the employer provides and requests the employer to switch to a fluid the individual considers preferable. The employer denies the request, stating that there is no indication the fluid it uses is unsafe, and no one else has objected to the odor. The individual quits because the request is denied.  The type of cleaning fluid used is within the employer's control, so the reason for quitting is attributable to the employer. However, to avoid disqualification, the individual will have to demonstrate he/she had good cause for quitting.

 

d)         Subsection B of Section 601 of the Act [820 ILCS 405/601B] lists situations in which an individual will not be disqualified from receiving unemployment benefits even though he or she has left work voluntarily for a reason that is not necessarily attributable to his or her employer.  The following provides examples of some of those situations, but is not an exhaustive list of circumstances, in which subsection B would apply:

 

1)         Example:  The individual is employed as a full time bank teller.  His/her spouse develops a serious medical condition that requires constant supervision.  A friend can watch the claimant's spouse each morning.  The individual asks if he/she can work mornings only so that he/she can be home to watch his/her spouse during the afternoon.  The employer indicates that it is unable to switch the individual to part time hours.  If the claimant leaves work to care for his/her spouse, he/she is not subject to disqualification because his/her case falls within the exception provided at Section 601B(1).

 

2)         Example:  The individual works the third shift.  The individual's spouse becomes ill and needs 24-hour assistance.  The individual is able to obtain county services to care for the spouse during the day, but the only option for nighttime care is prohibitively expensive.  The employer indicates that it is unable to move the individual to the first shift.  If the individual leaves work to care for his/her spouse, he/she is not subject to disqualification because his/her case falls within the exception set forth in Section 601B(1). 

 

3)         Example:  The individual is a skilled metalworker.  He/she quits his/her job to start his/her own metal working business.  For a few weeks, the business is quite successful, and he/she earns over his/her weekly benefit amount in each of at least two weeks.  However, after a while, business falls off substantially.  He/she files a claim for unemployment insurance benefits.  He/she is not subject to disqualification because his/her case falls within the exception provided at Section 601B(2).

 

4)         Example:  An individual complains to his/her supervisor about persistent sexual advances by a coworker.  The supervisor takes no further action believing the individual can take care of himself/herself.  The advances continue causing the individual to quit his/her job.  The individual is not subject to disqualification because his/her case will fall within the exception at Section 601B(4) since the employer knew of the harassment and failed to take any action.

 

5)         Example:  An individual's ex-boyfriend/girlfriend periodically waits outside his/her job site and threatens him/her when he/she arrives and leaves work.  Fearing for his/her safety, he/she stops coming to work, informing the employing unit of his/her reason for leaving and providing the Department with a copy of a letter signed by the individual's social worker, indicating the individual is receiving domestic violence services.  His/her case falls within Section 601B(6).

 

6)         Example: An individual who works nights lives with his/her 17-year-old child. His/her child's ex-boyfriend/girlfriend has been harassing the child, repeatedly following the child in public and making threatening telephone calls to the child at his/her home at night.  Fearing for the child's safety, the individual quits his/her job to be home at night with the child. He/she informs the employer of his/her reason for quitting and provides the Department with a copy of the police report regarding the threatening calls. His/her case falls within Section 601B(6).

 

7)         Example: An individual's ex-boyfriend/girlfriend periodically waits outside his/her job site and threatens him/her when he/she arrives and leaves work.  Fearing for his/her safety, he/she stops coming to work.  He/she informs the employer of his/her reason for leaving but fails to provide the Department with any of the evidence enumerated in Section 601B(6) as acceptable proof of domestic violence. His/her case will not fall within Section 601B(6).

 

8)         Example:  An individual lives and works in Chicago with his/her spouse. The spouse accepts a new job in Los Angeles, CA, and the individual and his/her spouse both agree they will move to Los Angeles together. The individual leaves his/her job when it is time to move to Los Angeles. The individual is not disqualified for leaving the job. It would be impractical for him/her to commute from Los Angeles to his/her job in Chicago, and his/her case, therefore, falls within Section 601B(7) of the Act.

 

9)         Example:  An individual's drive to work from Lincoln to Bloomington took about 45 minutes.  The individual moved to Decatur when his/her spouse was transferred to that city.  The individual quits his/her job to look for work in Decatur, although there is no reason that he/she could not have continued driving to work in Bloomington as the drive to Bloomington would only have been 15 minutes longer from Decatur.  The individual's case does not fall within Section 601B(7) because commuting from Decatur to Bloomington would not be impractical.

 

10)         Example: An individual's commute to work within the City of Chicago by bicycle took about 45 minutes.  The individual and his/her spouse move to Skokie, a Chicago suburb, when his/her spouse is transferred to Buffalo Grove, another Chicago suburb. While the individual's commute time by automobile would still be about 45 minutes, the individual refuses to use an automobile even though one is available to him/her.  Leaving under these circumstances would not fall within the exception in Section 601B(7) of the Act [820 ILCS 405/601B(7)] because commuting would not be impractical.  Bicycling is the individual's personal preference.

 

(Source:  Added at 34 Ill. Reg. 8520, effective June 16, 2010)

 

Section 2840.125  Early Retirement Or Employment Buyout Packages

 

a)         An individual who accepts his employer's offer of an early retirement or employment buyout package and leaves work according to the terms and conditions of the offer is ineligible under Section 601 of the Act unless, at the time the offer is accepted:

 

1)         the individual knows or reasonably believes that, within the proximate future, his employment will be terminated by the employer under terms and conditions substantially less favorable than the terms and conditions of the offer, or

 

2)         the individual knows or reasonably believes that his employment will continue, in the proximate future, but under terms and conditions substantially less favorable than the terms and conditions of his employment immediately prior to the offer, or

 

3)         the individual knows that a layoff will follow if a sufficient number of employees do not accept the offer of an early retirement or employment buyout package and the individual accepts the offer to avoid the layoff of another employee.

 

b)         The circumstances under which an individual may be found to have the reasonable belief required by subsection (a)(1) and (a)(2) above include but are not limited to circumstances in which the individual seeks but does not receive assurances from the employer that his employment will not in the proximate future be terminated under terms and conditions of the offer or that the terms and conditions of his employment will not in the proximate future become substantially less favorable than the terms and conditions immediately prior to the offer, as the case may be.

 

1)         Example:  An employer operates a plant that has consistently earned a profit.  The employer offers an early retirement package.  There is no indication from the employer that the offer is intended to avert layoffs and there are no rumors to that effect within the plant.  An employee at the plant accepts the offer and applies for unemployment benefits after separating from the employer.  These facts alone do not establish the reasonable belief required by subsection (a)(1) or (a)(2) above; the individual is ineligible under Section 601.

 

2)         Example:  An employer who operates a plant with 800 employees offers an early retirement plan on October 1 and indicates that, if by December 31 of the same year fewer than 150 employees have accepted the offer, the employer may begin laying off "nonessential" employees in no particular order of seniority, with no benefits.  On October 2 of that year an employee at the plant seeks but does not receive assurances from the employer that she is considered "essential," whereupon she accepts the offer.  Without other evidence to the contrary, these facts establish the reasonable belief required by subsection (a)(1) above; the individual is not ineligible under Section 601.

 

3)         Example:  An employer who operates a plant with 900 employees announces it intends to downsize by 25 percent and offers an early retirement package on October 15.  Rumors circulate through the plant that, if a sufficient number of employees do not accept the offer by the end of the year, layoffs will follow, with no benefits, although the employer has made no announcement to that effect.  The employer is aware of the rumors and does not take any action to dispel them.  An employee seeks but does not receive assurances from the employer that he would not be laid off.  Without other evidence to the contrary, if the employee accepts the offer, these facts establish the reasonable belief required by subsection (a)(1) above; the employee is not ineligible under Section 601.

 

4)         Example:  An employer operates a plant with 1,000 employees.  On September 15, the employer offers an early retirement package to its most senior workers. Thereafter, rumors circulate throughout the plant that the employer is considering eliminating and restructuring jobs.  In conversation with the employer, a senior employee is assured the employer has no plans to eliminate or restructure his job.  However, the employer does observe that, if the next few years are as unprofitable as the current one, everybody's job could be at risk and the employer might not be able to offer early retirement packages as generous as the one now being offered.  Troubled by the employer's observation, the employee accepts the offer.  These facts alone are not sufficient to establish the reasonable belief required by subsection (a)(1) above; the employee is ineligible under Section 601.  An employer's abstract statement of concern over what the future may bring is too speculative to establish a reasonable belief that the employee's job will be affected in the proximate future.

 

5)         Example:  An employer asks for "volunteers" to be laid off, explaining that each volunteer will receive two months of wages and extended health insurance coverage upon separation.  The employer indicates that, if 250 volunteers are not found, it will lay off, with no benefits, a number of employees equal to the difference between 250 and the number of volunteers, irrespective of seniority.  Any employee volunteers after seeking but not receiving assurances from the employer that he would not be laid off.  Without other evidence to the contrary, these facts establish the reasonable belief required by subsection (a)(1) above; the employee is not ineligible under Section 601.

 

6)         Example:  On January 2, an employer offers an employee an early retirement package.  The offer is effective through April 15 of the same year.  There is no indication from the employer that the offer is intended to avert layoffs and there are no rumors to that effect within the workplace.  The package would provide the employee with a greater pension than would otherwise have been available to her had she immediately retired and would provide the employee with the same medical benefits that are currently provided to her as a full time employee, including full medical insurance for the employee's sick husband.  The employer indicates to the employee that, if she does not accept the offer, the employer will, as of April 16, discontinue medical insurance for her husband.  These facts establish the reasonable belief required by subsection (a)(2) above; the employee is not ineligible under Section 601.

 

7)         Example:  On January 2, an employer offers an employee an early retirement package.  The offer is effective through April 15 of the same year.  There is no indication from the employer that the offer is intended to avert any layoffs and there are no rumors to that effect within the workplace.  The package would provide the employee with a greater pension than would otherwise have been available to her had she immediately retired and would provide full medical insurance for the employee and her sick husband, even though the employer does not currently provide medical insurance for employees, retirees or the families of employees or retirees.  There is no indication that the terms and conditions of the employee's employment will change if she does not accept the offer, although by not accepting the offer, she will forego any medical insurance furnished by the employer.  The employee accepts the offer.  These facts do not establish the reasonable belief required by subsection (a)(2) above; the employee is ineligible under Section 601.

 

8)         Example:  An employer who operates a plant with 1,000 employees asks for "volunteers" to be laid off, explaining that each volunteer will receive two months of wages and extended health insurance coverage upon separation.  The employer indicates that, if 250 volunteers are not found, it will lay off, with no benefits, a number of employees equal to the difference between 250 and the number of volunteers.  An individual who, because of his seniority, knows he will not be laid off, volunteers to be laid off in place of his son, who has little seniority.  According to subsection (a)(3) above, the individual is not ineligible under Section 601.

 

c)         An individual who accepts his employer's offer of an early retirement or employment buyout package and leaves work according to the terms and conditions of the offer and is not ineligible under Section 601 of the Act may still be ineligible under other provisions of the Act.

 

1)         Example:  An employer announces it intends to downsize by 25 percent and offers an early retirement package which includes a generous pension package financed solely by the employer.  Rumors circulate through the plant that, if a sufficient number of employees do not accept the offer by the end of the year, layoffs will follow, with no benefits, although the employer has made no announcement to that effect.  The employer is aware of the rumors and does not take any action to dispel them.  An employee seeks but does not receive assurances from the employer that he would not be laid off.  Without other evidence to the contrary, if the employee accepts the offer, these facts establish the reasonable belief required by subsection (a)(1) above; the employee is not ineligible under Section 601.  However, because the individual's retirement pension is financed solely by the employer, it will be 100% disqualifying income for each week for which the individual qualifies for the pension.

 

2)         Example:  An employer announces it intends to downsize by 25 percent and offers an early retirement package.  Rumors circulate through the plant that, if a sufficient number of employees do not accept the offer by the end of the year, layoffs will follow, with no benefits, although the employer has made no announcement to that effect.  The employer is aware of the rumors and does not take any action to dispel them.  An employee seeks but does not receive assurances from the employer that he would not be laid off.  Without other evidence to the contrary, if the employee accepts the offer, these facts establish the reasonable belief required by subsection (a)(1) above; the employee is not ineligible under Section 601.  However, the individual decides that he will retire from the labor force and relocate to Florida.  This individual will be ineligible for each week during which he is not able to, available for or actively seeking work.

 

(Source:  Added at 17 Ill. Reg. 17929, effective October 4, 1993)