By Nancy E. Joerg, Esq.
As one
would expect, sometimes a trucking company finds it best to terminate a truck
driver for poor performance. This poor performance may involve very serious
accidents or negligence (such as cross-dropping no lead gasoline into a premium
tank, thereby contaminating that product). Sometimes, instead of properly loading
thousands of gallons of no-lead and thousands of gallons of mid-grade, the
driver carelessly loads thousands of gallons of no-lead and thousands of
gallons of premium.
While
there is of course usually no problem in terminating a driver who has had many
accidents which cost the company time, money and damage to their reputation, our trucking clients are often surprised
when they don’t win with the Illinois Department of Employment Security (IDES)
- if the terminated truck driver files for unemployment insurance benefits with
the IDES.
What many
trucking clients don’t realize is that the
IDES WILL give unemployment insurance benefits to drivers (even when
they have had many serious accidents in the course of their employment) if
the trucking company cannot successfully prove that these accidents were willful and deliberate on the part
of the employee truck driver.
IDES DEFINITION OF MISCONDUCT:
The IDES works under a strict legal definition of misconduct which requires
that the trucking company prove that the incident was intentional, willful and
deliberate. Mere negligence and terrible
driving or a series of significant mistakes or accidents do not qualify as
misconduct under the IDES definition.
Under
Section 602A of the Illinois Unemployment Insurance Act, the definition of
misconduct is: “the deliberate
and willful violation of a reasonable rule or policy of the employing
unit, governing the individual’s behavior in performance of his work, provided
such violation has harmed the employing unit or other employees or has
been repeated by the individual despite a warning or other explicit
instruction from the employing unit.”
Section
602A requires deliberate and willful behavior and that behavior must
have caused harm to the trucking
company. (These elements need to be proven
by the trucking company in order for unemployment insurance benefits to be
blocked.)
TIPS FOR TERMINATION LETTER: When you terminate a truck driver for a series of incidents
in the course of their truck driving, indicate in the termination letter
what reasonable rule or policy the truck driver intentionally failed to follow.
This is a way to win with the IDES, by emphasizing the deliberate and willful
nature of the driver’s behavior. For example, if the driver failed to double
check the gasoline in a manner in which he was instructed by the trucking
company, then that might be a winning strategy to block his claim for
unemployment insurance benefits.
PROTESTING THE DRIVER’S CLAIM FOR UNEMPLOYMENT:
Keep this in mind the next time you protest a truck driver’s claim for
unemployment insurance benefits with the IDES…your goal is to prove to the IDES that the truck driver’s behavior was
willful, deliberate and intentional. Merely pointing out what a bad driver that
individual was is NOT a winning strategy. Accidents and negligence are
(sadly) not enough.
For assistance with IDES
audits, hearings, and independent contractor agreements (or for consultations
on limiting your liability in the use of independent contractors), contact
Attorney Nancy E. Joerg, who enjoys a nationwide reputation in working with
companies who use Independent Contractors of all types. Nancy Joerg can be
reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or
email her at najoerg@wesselssherman.com.
