The Difficult Job of Proving Misconduct to the Illinois Department of Employment Security (IDES) When a Truck Driver is Terminated for Poor Performance

March 2015
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.