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Fighting job abandonment claim to get UI. Illinois

On Lawyer & Legal » Employment & Labor Law

6,594 words with 5 Comments; publish: Mon, 17 Aug 2009 20:25:00 GMT; (80093.75, « »)

First, let me say that I understand that, with at-will employment, my employer can claim anything as job abandonment and fire me for any reason. What's done is done. I now have to take my case before a UI claims referee, so I am seeking advice on how to handle this and counter my former employer's claims of voluntary job abandonment.

Some details of the situation:

I was hired at a startup with no formal policies in place, including absence policy.

Over the course of almost a year, I accrued X number of absences. I communicated with my boss for every absence and had it approved.

After about a year, I was verbally told by my boss that an absence policy would be instated and be counted retroactively. I had nearly used up all paid time off. My boss expressed concern about my absences, but did not indicate any future consequences for extra time off aside from having to take unpaid days. I did not construe this as a warning since I specifically asked if there would be further consequences to additional absences, and he indicated that there would not, aside from not being paid for them.

I later took a week off for surgery. After this, I came in for one day and requested additional, unpaid time off for recovery. I was approved, but my boss indicated to me at this point that the company desired to terminate my employment after a month or so, because of excessive absences. It was my understanding that I would be fired when that time came. I did not agree to resign.

I took several weeks off unpaid for continuing medical recovery. When the time to return to my job came around, I requested an extension on the unpaid leave. I also communicated with my boss about the fact that he had said the company intended to fire me in approximately two weeks, and that it would be expeditious if they simply fired me immediately, since I would probably be out on continued medical leave for most of that remaining time.

My boss said he would talk to his superiors and get back to me. The next day, I was informed by the company president that, because I did not show up on the day I had agreed to return from the second medical leave request, and in light of my extensive absences, I had voluntarily abandoned my job.

I immediately filed a UI claim, which my employer will dispute on grounds of voluntary job abandonment.

I have a ton of documentation regarding this situation, including medical documents as well as communications between my employer and I.

Advice related to how to approach this case with a UI claims referee in Illinois would be much appreciated. Thank you.

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  • 5 Comments
    • Since FMLA did not apply, the doctor's note did not have to be honored by the employer. Personally, I would not call this job abandonment, I would call it an involuntary termination based on inability to return from (non-job protected, btw) leave.

      I would not get all caught up in trying play attorney and cite cases which aren't 100% on point. You need to focus on the "final incident". "I was terminated by the employer because I could not return to work at the end of the approved leave time due to not having a medical release from my doctor". Period.

      Are you medically able to work now? You need to be in order to receive UI benefits.

      #1; Tue, 18 Aug 2009 23:51:00 GMT
    • Had you been there a full year after you were off for the surgery? Did FMLA apply?

      No to both. Employed for 8 months, and the company is under 50 employees in size.

      From what I've gleaned, it seems the key point will not be my history of attendance, but rather the "final incident" upon which my employer acted in deciding that I had committed "job abandonment."

      I did not return to work on the date designated in my leave request (but did give notice of requiring an extension of leave to my boss), as I was waiting for my doctor's approval to return to work after such major surgery. I now have a certificate from the doctor clearing me for work, and indicating that I was under her care from the date of surgery until present.

      I think it's also an important point that this company had NO formal policies recorded regarding attendance or medical leave. I can honestly argue that I was not aware that extending my leave in order to obtain clearance from my doctor to return to work would result in an accusation of job abandonment.

      #2; Tue, 18 Aug 2009 16:55:00 GMT
    • Patty, I assume OP is medically able to work now since they noted, "I now have a certificate from the doctor clearing me for work, and indicating that I was under her care from the date of surgery until present."
      #3; Wed, 19 Aug 2009 00:14:00 GMT
    • Had you been there a full year after you were off for the surgery? Did FMLA apply?
      #4; Tue, 18 Aug 2009 00:10:00 GMT
    • As part of the research I'm doing to support my UI claim, I found this case:

      Wrobel v. Illinois Dep't of Employment Security

      http://www.uchelp.com/law/il/1022739.htm

      Two relevant quotes from the decision (emphasis mine):

      On the other hand, cases such as London and Wright v. Department of Labor, 166 Ill. App. 3d 438, 441, 519 N.E.2d 1054 (1987) demonstrate what is not meant by willful and deliberate conduct. In London,177 Ill. App. 3d at 280, the plaintiff testified that she left home early enough to get to work, but that she became snared in unusual traffic congestion and road construction. We held that her resulting tardiness that day could not have been deliberate under the Act. Likewise, in Wright, 166 Ill. App. 3d at 441, when the plaintiff was late for work as a result of her car failing to start and a bus arriving late, we concluded that she was not late deliberately. We made our decision in these two cases knowing that there were things the plaintiffs could have done to lessen the likelihood of their tardiness, such as the Wright plaintiff better maintaining her car, or the London plaintiff leaving home earlier in anticipation of bad traffic. Our decisions in these two cases further acknowledge that an employee must consciously choose to break the employer's rules, or in this context, consciously choose to be late, in order to be ineligible for unemployment benefits.

      The circumstances of each violation are legally significant and must be known to label a pattern of absence or tardiness as misconduct. Thus, in Wright, 166 Ill. App. 3d at 441, we held that when there was "no information about how tardy plaintiff was or whether she had a reasonable excuse for her tardiness" we could not determine that her pattern of tardiness amounted to misconduct.

      #5; Mon, 17 Aug 2009 21:48:00 GMT