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Gross Misconduct Case Law - Illinois

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  • Gross Misconduct Case Law - Illinois

    Is there any IL case law that defines gross misconduct? Since gross misconduct is not defined by the IRS or DOL, I need to prove that falsifying an expense report is considered gross misconduct and thus the employee we terminated is not entitled to IL unemployment insurance and the federal COBRA subsidy (35/65 split).

  • #2
    how much was the theft for? What was it for?

    The definition might very well be vastly different in UI vs COBRA.

    Unfortunately, from everything I have read "gross misconduct" under COBRA, it only applies if it is truly something that the person could be prosecuted for. I suggest searching "gross misconduct COBRA" under google and reading many of the different articles/cases on it. Hopefully that will help you formulate your own thoughts. But your case needs to be absolutely defensible. You might even call the DOL and give them your information and see what they suggest.

    My first reaction is generally something like falsifying an expense report wouldn't fall under that for COBRA purposes unless the amount were paid out and was a very large amount, but might for UI purposes.


    • #3
      $400 dinner was expensed to the company. When the employee 1 was confronted with this expense he stated that this was for taking out a fellow employee 2 and two customers. The manager contacted the fellow employee 2 who stated that no customers were taken out and that he wanted to split the bill with employee 1 and not expense it. Employee 1 stated that he would take care of the bill and not to worry because the company never questions his expenses. Employees are only allowed to expense more than $75 per day when traveling unless preapproved by their manager and this was not preapproved. Employee one was confronted and terminated. Now I'm trying to make the case that employee 1 should not be granted UI because this employee 1 tried to steal from the company. I'm also trying to make the case that employee 1 doesn't deserve the cobra subsidy because his actions were intentional. I'm thinking he still is entitled to cobra, but must pay the entire premium.
      Junior Member
      Last edited by lms; 02-04-2010, 10:21 AM.


      • #4
        UI is decided by the state so all you can do is make your case and see what happens.

        As for COBRA, I'd call the DOL and get their read on whether they consider it gross misconduct. The fact that he made up a story on top of expensing the dinner he should not have might be enough to push it over the top.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


        • #5
          It is my understanding that the definition (or lack of one) for gross misconduct under the subsidy ARRA portion of COBRA coverage is exactly the same as for regular COBRA. Gross misconduct does rule out eligibility from ARRA since it wouldn't be considered an involutary termination. However, if I were going to argue the misconduct was bad enough to void ARRA, then it should be bad enough to void COBRA. I think you should choose either one stance or the other -- that is he is eligible or ineligible due to misconduct for both.

          Here's a good article I found:
 One really good statement there states "Several courts have distinguished between an employee's willful intentions versus an exercise in poor judgment or ordinary negligence — the latter generally not rising to the level of gross misconduct." The expense report could be argued as either willful OR poor judgement. I would argue willful if there were a pattern and possibly because like Elle posted, he lied on top of it.

          But in any case, calling the DOL is never a bad idea when trying to use the gross misconduct standard.

          eta: one more good legal perspective:
          hr for me
          Senior Member
          Last edited by hr for me; 02-04-2010, 11:15 AM.


          • #6
            Originally posted by lms View Post
            Is there any IL case law that defines gross misconduct? Since gross misconduct is not defined by the IRS or DOL, I need to prove that falsifying an expense report is considered gross misconduct and thus the employee we terminated is not entitled to IL unemployment insurance and the federal COBRA subsidy (35/65 split).
            You're going about this the wrong way. You, as the employer, do not have to PROVE to the UC Division what constitutes willful (gross) misconduct under the law. It's their job to interpret the law and apply any precedents. Plus, the only relevent definition that applies is how willful misconduct is defined in your State's UC Reg's. In mine (which is a neighboring State to yours), it's "a willful disregard of the employer's best interests." I expect yours is identical or nearly so.

            All you need to do is challenge the ee's eligibility due to willful misconduct and present the facts and evidence you have that you believe demonstrates willful misconduct on the ee's part. The State will then decide if the ee's actions meet the legal standard under UC reg's.


            • #7
              The Il. Dept. of Employment Security notes that the following acts, among others, disqualify individuals for unemployment compensation - resignation without good cause; discharge for misconduct (defined as the deliberate and willful violation of a reasonable rule or policy of the employer, provided that such violation has harmed the employer or other employees and has been repeated by the employee despite a warning or explicit instruction); failure, without good cause, to apply for or accept a suitable job; discharge for committing a felony or theft in connection with work; participating in a labor dispute that causes a stoppage of work; and receiving unemployment benefits from another state or under federal law. (820 ILCS 405/600)
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