The Appellate Court held that the drivers' services were inside Plaintiff's usual course of business. E-Z Movers: had the right to hire and fire the workers; provided the workers with the moving truck; and scheduled the jobs with customers and limited the workers' use of the trucks without its permission. In addition, the drivers could not operate without E-Z Movers' involvement since E-Z Movers owned all of the trucks and held the license to haul goods. Thus, the drivers were employees within the meaning of the Illinois Unemployment Insurance Act. 820 ILCS 405/212.
Plaintiff employees worked as drivers for E-Z Movers, Inc. E-Z Movers, Inc. v. Rowell and Dept. of Empl. Security , 150435 (1st Dist., August 2, 2016). The drivers filed for unemployment compensation. The Illinois Department of Employment Security realized that E-Z Movers had not reported the workers' wages to the Department and audited E-Z Movers. E-Z Movers claimed that the workers were independent contractors, not employees. The Department conducted an administrative hearing and concluded that drivers were employees and not independent contracts for the purpose of unemployment insurance contributions. The Circuit Court reversed the Department's decision. The Appellate Court reversed the Circuit Court and affirmed the Department.
The Appellate Court held that the drivers' services were inside Plaintiff's usual course of business. E-Z Movers: had the right to hire and fire the workers; provided the workers with the moving truck; and scheduled the jobs with customers and limited the workers' use of the trucks without its permission. In addition, the drivers could not operate without E-Z Movers' involvement since E-Z Movers owned all of the trucks and held the license to haul goods. Thus, the drivers were employees within the meaning of the Illinois Unemployment Insurance Act. 820 ILCS 405/212.
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Employee Petrovic worked as tower planner at O'Hare and was employed by an airline for nearly 24 years when she was fired. Petrovic v. Dep't of Employment Security, 2016 IL 118562 (February 4, 2016). The employer claimed that she had engaged in misconduct because she, upon a request from a friend at another airline, arranged for an upgrade of passenger from business class to first class and for a bottle of champagne to be delivered to that passenger. IDES denied the employee's application for unemployment benefits, finding that she was fired for misconduct. The Circuit Court reversed, holding that Petrovic was eligible for unemployment benefits. However, the Appellate Court reversed, finding misconduct. On appeal to the Illinois Supreme Court, the Court reversed the Appellate Court and affirmed the Circuit Court, finding for Petrovich. Because the case did not involve illegal or intentionally tortious conduct, evidence of a deliberate rule violation was required. However, the employer failed to offer evidence of a rule or policy prohibiting employee from the actions taken, and employee testified that special favors of this type had been done previously for customers. Thus, the employer failed to meet its burden of proving that plaintiff was discharged for misconduct under Section 602(A) of Unemployment Insurance Act. In its holding, the Illinois Supreme Court significantly cut back on the "common-sense, obvious misconduct", explaining that "Plaintiff contends that the judicially created commonsense exception cannot be reconciled with the plain language in section 602(A), which clearly requires evidence of a deliberate violation of a reasonable rule or policy of the employer. We agree, with the exception that evidence of a rule need not be shown where the employee’s conduct would otherwise be illegal or constitute a prima facie intentional tort." Id. at paragraph 35. The Illinois Department of Employment Security (IDES) Board of Review found that Plaintiff Weinberg was ineligible for unemployment benefits because he was a partner at the company. Weinberg v. The Dept. of Employment Security, 2015 Ill. App. (1st) 140490 (May 11, 2015). More specifically, his compensation as a partner did not constitute "wages" as defined by Section 5009(E) of the Unemployment Insurance Act. The Circuit Court revered the Board's decision, finding that a portion of his income constituted wages. The Illinois Appellate Court affirmed the Board and reversed the Circuit Court. The Appellate Court noted that the record contained evidence of Plaintiff's partnership status, including partnership agreement he signed, compensation includes guaranteed payment derived from partnership profits, and monthly amount based on client base, and tax reporting (K-1). Thus his renumeration did not constitute "wages" as defined by the Act. The Illinois Department of Employment Security (IDES) determined that window washers who performed services for a company were employees for purposes of Unemployment Insurance Act. L.A. McMahon Building Maintenance, Inc. v. Department of Employment Security, 2015 Ill. App. (1st) 133227 (May 7, 2015). The Circuit Court upheld that determination and the Illinois Appellate Court affirmed. The Appellate Court held that the elements of Section 212 of the Unemployment Insurance Act, not the "independent contractor" agreements between company and window washers, dictate whether the relationship is that of an employer-employee or that of employer and independent contractor. The inability of the company to satisfy any one Section 212 conditions will defeat company's claim for independent-contractor exemption. Although the window washers were not required to wear company uniform, the window washers represent the company's interests when they provide services at customers' homes, provide customers with company business cards and invoices, and provide window washing services to customers' and company's specifications. Darvin Hooker took on a second job as an unarmed night security guard at O'Hare Airport. A few months later, a supervisor found him asleep on duty and fired him. He applied for unemployment and was denied benefits. Universal Security Corporation v. The Department of Employment Security, 2015 Ill. App. (1st) 133886 (February 18, 2015). The adjudicator held that Hooker had deliberately and willfully violated Universal’s reasonable policy. On appeal, the referee reversed, ruling that Hooker had not fallen asleep deliberately and willfully, thus, he could claim benefits. Universal appealed to the Board of Review, which affirmed. Universal then sought judicial review, and the circuit court affirmed the Board. The Illinois Appellate Court affirmed the Board of Review. It held that the record supported the conclusion that Hooker's falling asleep on duty was not deliberate and willful misconduct within the meaning of Section 602(A) of the Unemployment Insurance Act. There were no indications that Hooker previously had fallen asleep on duty, that he realized he was falling asleep, or that he made no efforts to stay awake; and he had no history of work infractions. Thus, Board properly ruled that Hooker was eligible for unemployment benefits, even though employer had reason to fire him for sleeping at work. In this economy, employment gaps can be a difficult obstacle to confront. The following are some tips about handling such gaps.
Keep active. It is easier to minimize the appearance of any gap if you stay active. These are some examples of how you can do that:
Network. It is a good idea to maintain your professional contacts through an employment gap. People move, find new jobs, and retire. You do not want to lose contact with your best references and contacts. One way to maintain your network is to stay active in professional associations. Do not stop at membership, though, attend meetings and conferences and take advantage of other opportunities that the association offers. Spending time, keeping your skills, education, and network active helps keep your resume active and can be invaluable in finding the next position. While Illinois law already forbids an employer from basing hiring, promotion, and other employment discussions on an employee or job applicant's credit history, Chicago is considering a new law that would go further.
Alderman Pawar’s bill would mirror the enacted Illinois law to restrict credit checks in employment, but goes further by allowing Chicago residents to file a formal complaint with the city Human Rights Commission if a violation of the law occurs (in addition to the private right of action in the state bill.) The Chicago bill also bans discrimination against the long-term unemployed. If passed, it would give Chicago job applicants the right to file a complaint with the Chicago Human Rights Commission as well. This law would put an end to the vicious cycle where the longer an employee is out of work, the harder it is to to find new work. The proposed law is set for a full counsel vote later this month, on March 14, 2012. See the Committee on Human Relations February 16, 2012, summary report here. With high levels of unemployment, you need to make sure that your applications stand out from the crowd - in a good way - not because of a glaring problem. Be sure to avoid these issues:
1. Honest Content. You may have an employment gap. You may have some other concern. Regardless, you should be honest about your background and experience. Do not overstate your qualifications or positions. 2. Spelling & Grammatical Errors. Have a friend proof read your resume! Asking a friend to review your resume means you are less likely to have spelling or grammatical errors. Employers only have moments to make determinations about you and will make snap decisions based on these errors. 3. Visually Complicated. You want to limit the number fonts you use, multiple sizes of fonts, borders, or long blocks of texts. Make sure that your resume appears professional. Use standard colors for your ink and paper. 4. Focus Content. Not only does the layout help convey information quickly, but the content needs to be focused so that employers can gather the important information first. Employers pour over numerous applications and you need the important information to stand out quickly. 5. Too General. Not personalizing your resume for each employer can reduce your changes of getting the job. Research the employer and reference goals and values that are important to that employer. This research shows the prospective employer that you took the time and effort to focus on the particular position. Recently, Alderman Ameya Pawaran sponsored amendment to the City of Chicago Ordinance. This amendment would create two key changes:
(1) It would prevent employers from using credit check results to deny a person employment. (2) The amendment also would ban discrimination against the unemployed. If you have experienced this type of discrimination, and are willing to share your experience, contact Nat Lippert at nlippert@unitehere.org to help support this amendment. The amendment can be found here: http://chicago.legistar.com/LegislationDetail.aspx?ID=972504&GUID=FE6BCD20-7A42-4271-B167-74EA27164DCA&Options=Advanced&Search= |
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