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Unemployment Insurance/Compensation

Absenteeism And Proof Of “Misconduct”

Absenteeism And Proof Of “Misconduct”

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Unemployment Insurance/Compensation on Thursday, August 2, 2018.

The Wisconsin Unemployment Compensation Act defines “misconduct” to include “absenteeism on more than 2 occasions within the 120-day period before the date of the employee’s termination, unless otherwise specified by [the] employer in an employment manual [which the employee has acknowledged receiving].” Wis. Stat. § 108.04(5)(e). What if the employer’s attendance policy defines excessive absenteeism, and grounds for termination, in a manner that is more restrictive than “2 occasions in a 120-day period?” Is it still “misconduct” for unemployment purposes?

In Wisconsin DWD v. LIRC, 2018 WI 77, the Wisconsin Supreme Court held that it is. The policy at issue in the case provided that a single absence without advance notice during an employee’s probationary period would result in termination. The Labor and Industry Review Commission found that the “2 in 120” day period provided in the statute constituted a floor for eligibility purposes, and that violations of policies with stricter parameters did not constitute “misconduct” for eligibility purposes. The Court disagreed, finding, “the plain language of [the statute] allows an employer to adopt its own absenteeism policy that differs from the policy set forth in § 108.04(5)(e), and that termination for the violation of the employer’s absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer’s policy is more restrictive than the absenteeism policy set forth in the statute.” Id at ¶ 5.

This is good news for employers – and all the more reason to adopt a formal, written attendance policy that is distributed to, and signed for by all employees.

If you have any questions feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: Did You Fire Them or Did They Resign?, Minnesota Supreme Court holds that Employee Discharged for Lying on her Job Application was Ineligible for Unemployment Benefits due to “Misconduct”, Court Clarifies “Misconduct” and Attendance, Proving Misconduct: Winning IDES Hearings

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Unemployment Insurance/Compensation

Did You Fire Them or Did They Resign?

Did You Fire Them or Did They Resign?

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Unemployment Insurance/Compensation on Wednesday, August 23, 2017.

It often happens that an employee tells the employer that the employee is quitting…but later the employee claims the employer really fired the employee.

How does this happen?

Let’s look at a typical fictional example. Steve, a machine operator, decides that he wants to quit to go to see his sick grandmother who lives in Alabama. Steve tells his employer that he is quitting, wishes everyone the very best, and leaves for Alabama.

VOLUNTARY QUIT TURNS INTO “LACK OF WORK”: Steve then files for unemployment insurance benefits and finds out to his dismay that he is not eligible for unemployment if he voluntarily quit. So, he changes his story. Now he says there was a “lack of work” forcing him to leave to because his employer told Steve they did not need Steve anymore because work is slow.

Steve changed his status from an employee who quit to an employee who was discharged due to lack of work.

EMPLOYER PROTESTS NOTICE OF CLAIM: Once Steve files for unemployment insurance benefits, a Notice of Claim is sent to the employer (Smith Manufacturing).

When Smith Manufacturing receives the Notice of Claim, the reason given is “lack of work.” Smith Manufacturing may think this is a typographical error. But, it is actually the new reason Steve has decided caused his separation from employment.

Smith Manufacturing knows there wasn’t a lack of work. In fact, Steve’s leaving put them in a bind because Smith Manufacturing had to quickly hire someone else who was inexperienced and untrained to fill Steve’s position. When Smith Manufacturing protests the Notice of Claim, Smith Manufacturing does its best to explain the circumstances under which Steve left.

LOCAL OFFICE DETERMINATION FINDING THE QUIT WAS DUE TO LACK OF WORK: Smith Manufacturing is upset when it receives a Local Office Determination finding that Steve quit due to lack of work. Smith Manufacturing is angry and protests because now Steve is getting unemployment insurance benefits even though he clearly quit.

KEY ISSUE FOR TELEPHONE HEARING: A telephone Hearing is then scheduled in which Smith Manufacturing will now have to convince the Hearing Officer that Steve voluntarily quit for his own personal reasons and not for “lack of work.”

In my experience, the key issue under this fact pattern is this question: Could Steve have remained in employment if he wished?

Steve will try to convince the Hearing Officer that he could not have remained in employment. He may even introduce as evidence statements by others in the Company that business is slow, we need to cut down on the number of machine operators, etc.

Smith Manufacturing will want witnesses at the Hearing who hopefully heard Steve say he had to quit because his grandmother was sick, that Steve’s leaving put the Company in a bind, etc.

The Hearing will boil down to who can present the most persuasive facts on the key question of could Steve have remained in employment. Did Steve cause the separation or did the employer cause the separation from employment?

It is important at an IDES Hearing for the employer to have well prepared witnesses who can convincingly testify to the key legal issues.

For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Absenteeism And Proof Of “Misconduct”, Minnesota Supreme Court holds that Employee Discharged for Lying on her Job Application was Ineligible for Unemployment Benefits due to “Misconduct”, Court Clarifies “Misconduct” and Attendance, Proving Misconduct: Winning IDES Hearings

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Unemployment Insurance/Compensation

Minnesota Supreme Court holds that Employee Discharged for Lying on her Job Application was Ineligible for Unemployment Benefits due to “Misconduct”

Minnesota Supreme Court holds that Employee Discharged for Lying on her Job Application was Ineligible for Unemployment Benefits due to “Misconduct”

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Unemployment Insurance/Compensation on Tuesday, March 28, 2017.

In Minnesota, as in most every state, terminated employees are not eligible for unemployment benefits if they are dismissed for misconduct. In 2003, the legislature amended the statute to define “employment misconduct” as “any intentional, negligent, or indifferent conduct, on the job or off the job that displays clearly: (1) a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.” However, despite this effort to more clearly define employee misconduct for purposes of unemployment compensation, there remains plenty of room for disagreement, depending upon the facts in each particular case. This dilemma was recently born out in Wilson v. Mortgage Resource Center, Inc. The Minnesota Supreme Court overturned an earlier decision of the Court of Appeals that had found an employee’s misrepresentations about her education on her job application, did not constitute “employment misconduct.” In disagreeing with the Court of Appeals, the Minnesota Supreme Court in effect recognized that employers have the right to reasonably expect the truth from job applicants. Still, the outcome of this case was determined by the particular facts of the case and therefore employers can learn from (and take advantage of) its lessons.

The Wilson case involved an employee, Nina Wilson, who misrepresented on a job application that she had a high school education and GED. The application was for a position at Mortgage Resource Center (MRC), which required, at minimum, a college degree or equivalent experience. Importantly, the MRC application included a notice that providing falsified information was a dischargeable offense. MRC required that applicants sign an acknowledgement of the notice, which Wilson did.

MRC offered Wilson the job, contingent upon a successful background check to verify the details of her application. When the investigation could not verify Wilson’s educational level or GED, MRC requested that she provide documentation. When Wilson failed to do so, she was terminated.

Wilson applied to the Minnesota Department of Employment and Economic Development (DEED) for unemployment benefits, but was denied by an Unemployment Law Judge (ULJ) who found that her discharge was “in large part” a result of the false statements on her application. Wilson appealed her case to the Minnesota Court of Appeals, which found in her favor. Applying a different, more stringent standard of “misconduct” than the ULJ, the Court of Appeals determined that to prevail MRC needed to prove it would not have hired Wilson had it known her true educational background.

Reversing on appeal, the Minnesota Supreme Court rejected the Court of Appeals’ definition of “employment misconduct” under the unemployment compensation statute. The Court reasoned that requiring an employer to prove it would not have hired a candidate if it knew of the false information, though supported by prior precedent, failed to acknowledge the legislature’s amendments to the statute in 2003. Applying the language of the statute as amended, the Court agreed with the DEED ULJ’s decision that, based on the facts in this particular case, Wilson’s false representations in her application about something as important as her educational level met the statutory definition of “employment misconduct.”

It is important for employers to realize that not all resume fraud or falsified statements made by applicants will automatically amount to employment misconduct for purposes of eligibility for unemployment compensation. The following facts proved important to the outcome in the case, and employers are well advised to duplicate them if the job in question warrants doing so:

1. The false statement in this case – achieved level of education – was critical to the job in question; so much so that the written job requirements specified a minimum level of education as a qualification.

2. The application explicitly warned that falsification of information would be grounds for termination. Note: presumably most employers include similar language on their applications; however, a written statement of this sort standing alone probably would not be enough to support misconduct (especially for an employer that did not uniformly enforce it).

3. MRC’s job offer specified that it was conditioned on a satisfactory background check, and although, for various reasons, some time passed between Wilson’s hiring and her discharge, there was no indication that the employer knowingly condoned her false statements on her education.

4. Before discharging Wilson, MRC gave her an opportunity to explain discrepancies between her application and the information from her background check. Of course this likely was legally required under the Fair Credit Reporting Act (FCRA), but Wilson’s failure to respond when given the chance to explain factored into the Court’s decision that her lie was intentional and her educational level was important to MRC’s job offer in the first place.

The Wilson case is highly important to employers because it reversed outdated precedent relied on by the lower courts and clarified the legislature’s intention in amending the statute to favor a more objective definition of “employment misconduct” in the context of unemployment benefits. Employers may now take advantage of this decision by clearly specifying qualifications for each job; requiring each applicant’s written acknowledgement that providing untruthful information in their resume or application, is grounds for discharge; and, of course, paying attention to the results of background checks when discrepancies are identified. Minnesota employers are well aware that if they can prevail before DEED on the “misconduct” issue for purposes of unemployment compensation, their odds are very good in the event their decision to discharge an employee is challenged in some other forum.

Questions? Contact our office at (952) 746-1700 or by email at jasherman@wesselssherman.com

Related Posts: Absenteeism And Proof Of “Misconduct”, Did You Fire Them or Did They Resign?, Court Clarifies “Misconduct” and Attendance, Proving Misconduct: Winning IDES Hearings

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Unemployment Insurance/Compensation

Court Clarifies “Misconduct” and Attendance

Court Clarifies “Misconduct” and Attendance

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Unemployment Insurance/Compensation on Monday, March 27, 2017.

In 2013, the Wisconsin legislature tightened the eligibility requirements for unemployment benefits as they related to discharges for attendance. Under the previous law, an employee had to have “5 or more” absences without notice in a twelve-month period in order for his/her absenteeism to rise to the level of statutorily-defined misconduct. The legislature reduced that level to “more than 2 [absences] within a 120-day period . . . unless otherwise specified by [the] employer in an employment manual. . .” Wis. Stat. § 108.04(5)(e). (The employee must also have failed to provide both notice and a valid reason for the absence.)

What if an employer’s attendance policy calls for discharge in the event of less than two absences without notice in a 120-day period? Is that still misconduct under § 108.04(5)(e)?

The Wisconsin Court of Appeals recently answered this question – in the negative. In DWD v. LIRC, 2016AP1365 (Mar. 8, 2017), the court reviewed whether a discharge pursuant to an employer’s policy that called for termination in the event of a single absence without notice in an employee’s first ninety days of employment constituted “misconduct” under § 108.04(5)(e), falling within the “unless otherwise specified” provision of the statute. Finding that it did not, the court adopted the position of the Labor and Industry Review Commission, which held that the “2 in 120” requirement is a statutory floor, and the “unless otherwise specified in an employment manual” provision was only intended to cover policies that were more generous than the “2 in 120” default standard, not more restrictive. In other words, policies that result in discharge for absences without notice on two occasions or less, in a shorter period of time, do not automatically constitute misconduct under § 108.04(5)(e).

The court noted, however, that its decision only applied to absences being considered under the statutorily-defined level of misconduct in § 108.04(5)(e). An attendance-related discharge can still constitute “misconduct” if the employer can prove that the employee’s conduct met the Boyton Cab standard (i.e., “conduct evincing such willful or wanton disregard of an employer’s interests . . .”) or constituted “substantial fault” (i.e., “acts or omissions . . . over which the employee exercised reasonable control). Thus, while it is much easier to win a case based upon the “2 in 120” standard, an attendance claim can still be won based upon the underlying conduct of the employee and the reasons for the absences.

If you have any questions about the court’s decision or unemployment compensation, attendance and/or misconduct, feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com .

Related Posts: Absenteeism And Proof Of “Misconduct”, Did You Fire Them or Did They Resign?, Minnesota Supreme Court holds that Employee Discharged for Lying on her Job Application was Ineligible for Unemployment Benefits due to “Misconduct”, Proving Misconduct: Winning IDES Hearings

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Hiring/Firing Illinois Department of Employment Security (IDES) Unemployment Insurance/Compensation

Proving Misconduct: Winning IDES Hearings

Proving Misconduct: Winning IDES Hearings

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Illinois Department of Employment Security (IDES) on Thursday, February 23, 2017.

There are many good reasons for which a company fires one of its employees. Some of these reasons are:

  1. Theft by the employee;
  2. The employee is not performing well;
  3. The employee is deliberately violating company rules and policies; and/or
  4. The employee is insubordinate.

But, strangely, not all good reasons for firing an employee lead to a finding by the Illinois Department of Employment Security (IDES) of “misconduct.” Surprising to many clients, many bad employees are fired and are then successful in getting unemployment insurance benefits. Many clients are stunned and very upset!

So, how can an employer prove that the fired employee was guilty of misconduct under Section 602A1 – 8 of the Illinois Unemployment Insurance Act?

DEFINITION OF MISCONDUCT: Under Section 602A of the Illinois Unemployment Insurance Act, the precise legal 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.” (Emphasis added)

You will note that the simple legal elements of Section 602A require deliberate and willful behavior, and it must have caused actual harm to the company. (These elements need to be convincingly proven by the company in order for unemployment insurance benefits to be blocked.)

LISTING OF EIGHT DEFINITIONS OF MISCONDUCT: As of January 3, 2016, there are also eight legal (and very helpful to employers!) definitions of misconduct for IDES purposes:

  1. FALSIFICATION OF DOCUMENTATION: Falsification of an employment application, or any other documentation provided to the employer, to obtain employment through subterfuge.
  2. FAILURE TO MAINTAIN LICENSES: Failure to maintain licenses, registrations, and certifications reasonably required by the employer, or those that the individual is required to possess by law, to perform his or her regular job duties, unless the failure is not within the control of the individual.
  3. REPEATED VIOLATION OF ATTENDANCE POLICIES: Knowing, repeated violation of the attendance policies of the employer that are in compliance with State and federal law following a written warning (tip: put your attendance warnings in writing!)for an attendance violation, unless the individual can demonstrate that he or she has made a reasonable effort to remedy the reason or reasons for the violations or that the reason or reasons for the violations were out of the individual’s control. Attendance policies of the employer shall be reasonable and provided to the individual in writing, electronically, or via posting in the workplace (tip: put your attendance policies in writing!).
  4. DAMAGE TO EMPLOYER’S PROPERTY: Damaging the employer’s property through conduct that is grossly negligent.
  5. REFUSAL TO OBEY REASONABLE INSTRUCTION: Refusal to obey an employer’s reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training (tip: document training) for the individual required to obey the instruction or the instruction would result in an unsafe act.
  6. ALCOHOL/DRUGS: Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer’s premises during working hours in violation of the employer’s policies.
  7. REPORTING TO WORK UNDER THE INFLUENCE: Reporting to work under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer’s policies, unless the individual is compelled to report to work by the employer outside of scheduled and on-call working hours and informs the employer that he or she is under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer’s policies.
  8. ENDANGERING SAFETY: Grossly negligent conduct endangering the safety of the individual or co-workers.

GROSS NEGLIGENCE DEFINED: For purposes of paragraphs 4 and 8, conduct is “grossly negligent” when the individual is, or reasonably should be, aware of a substantial risk that the conduct will result in the harm sought to be prevented and the conduct constitutes a substantial deviation from the standard of care a reasonable person would exercise in the situation.

RECENT WINNING CASE: I recently represented an accounting firm in protesting an IDES claim for unemployment insurance benefits filed by a former employee (i.e., the Claimant).

The unemployment insurance Claimant was a bookkeeper who had previously demonstrated (early in her work history) the ability to properly and timely prepare the payroll tax reports for the firm’s clients.

In the incident that led to the Claimant’s termination, the owner discovered (to her horror) that the Claimant was making serious errors and was very far behind in completing the tax reports. The owner reasonably asked the Claimant for daily progress reports as to the Claimant’s progress on completion of these time sensitive tax documents. The Claimant deliberately misled the owner into believing that the requested documents were nearly done. At the IDES phone hearing, the accounting firm proved that the Claimant did not obey the reasonable instruction of providing accurate and truthful progress reports and put her employer in jeopardy.

The IDES Decision found that “the Claimant is disqualified from benefits under Section 602A5” (which is refusal to obey an employer’s reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training for the individual required to obey the instruction or the instruction would result in an unsafe act). So, misconduct was proven under Section 602A5 and the Claimant was denied unemployment insurance.

PRACTICE TIP FOR EMPLOYERS: The eight definitions of misconduct for IDES purposes can be very helpful when the facts fit neatly into one or more of the categories. This is why it is important to have a strategic consultation to discuss the reasons for firing an employee prior to the employee being terminated. Then, in any documentation of the termination, the employer can use the “buzz words” as found in the eight legal definitions of misconduct.

If you think through these issues thoroughly prior to termination, your batting average at winning IDES misconduct claims and Hearings will go up dramatically.

For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Legislative Update: Key Changes to the Illinois Human Rights Act New Employee Rights and New Requirements for Employers, Don’t Fall Asleep On One Of The Most Important Due Dates Regarding Your IDES Audit!, It’s Easier for Illinois Employers to Win Before the IDES on Cases involving Misconduct, Help! I Just Found Out I Am Going To Be Audited By The IDES!

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Illinois Department of Employment Security (IDES) Unemployment Insurance/Compensation

Illinois Employers Should Be Hyper Alert to an Employee’s First 30 Working Days

Illinois Employers Should Be Hyper Alert to an Employee’s First 30 Working Days

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Illinois Department of Employment Security (IDES) on Wednesday, December 28, 2016.

Recently a client asked if she could fire an “at-will” employee who was working less than “90 days.” Within this question, I could see many employment law concerns colliding with each other and causing confusion.

In this article, I will clarify these confusing issues with the hope that it will help many readers.

90 DAY RULE IS OFTEN FOR BENEFITS PURPOSES: First, 90 days is a common parameter that employers primarily use for benefits purposes. In many companies, health insurance benefits do not kick in until the employee has been with the company for 90 days. But that 90-day rule has nothing to do with “employment at will” or whether the company will “be charged” by the Illinois Department of Employment Security (IDES) if the employee quits or is fired and gets unemployment insurance benefits.

FOR ILLINOIS UNEMPLOYMENT INSURANCE BENEFITS PURPOSES, THE RULE IS 30 WORKING DAYS: For unemployment insurance purposes in Illinois, the critical measure is 30 working days. Under the Illinois Unemployment Insurance Act, a company will usually not be charged for an ex-employee’s unemployment insurance benefits if that ex-employee did not work for the company at least 30 working days.

Important Tip: Therefore, I often tell clients that they should have a calendar to mark off the first 30 working days of a new employee. It is wise to decide, well before the end of the 30 working days, if a company really wants to keep a new employee. A company becomes a “chargeable employer” for purposes of the Illinois Unemployment Insurance Act if the employee works for the company for 30 working days. This is an extremely simple rule that employers should keep in mind because, if properly used, it is a wonderful way for a company to help keep its unemployment insurance rate down.

EXAMPLES OF HOW TO CALCULATE 30 WORKING DAYS: Below are some examples of how to calculate 30 working days in the confusing situations of where an employee works on a shift, becomes ill, or has a variation in work schedule:

(1) The individual begins his shift at Noon but becomes ill fifteen minutes later. Since the individual performed services for the employer for fifteen minutes, one day is counted toward meeting the 30-day requirement.

(2) The individual works a shift which begins at 10:00 p.m. on Monday and ends at 7:00 a.m. on Tuesday. While this individual performs services for this employer on two calendar days, for the purpose of determining whether the 30 day requirement has been met, the individual’s shift counts as only one day of service (Monday).

(3) The individual is scheduled to work on a certain day but fails to report for work because he is ill. Even if the employer provides paid sick leave to the individual for that day, it will not be counted toward the 30-day requirement. He did not work.

(4) The individual’s normal shift begins at 3:00 p.m. and ends at 11:00 p.m. However, he is required to work four hours of overtime every day so that he does not complete his shift until 3:00 a.m. This shift still counts as only one day toward the 30-day requirement.

SHIFT COVERING TWO DAYS: If a shift covers two calendar days, only one day is included in determining whether the 30-day requirement has been met. The day used (for determining whether the 30-day requirement has been met) is the one on which the individual’s shift began.

NON-WORKING DAYS ARE NOT COUNTED: Paid sick days, vacation days, holidays or other similar paid, non-working days are not counted toward meeting the 30-day requirement. If an individual is paid to “stand by” for the day but doesn’t actually work, that day is not counted towards meeting the 30-day requirement.

RARE SITUATIONS WHERE AN ILLINOIS EMPLOYER CAN BECOME A CHARGEABLE EMPLOYER EVEN IF AN EMPLOYEE WORKS LESS THAN 30 WORKING DAYS: An employer may also become the chargeable employer after less than 30 working days if it was thesingle employer who paid wages to the individual permitting the individual to requalify for benefits after a previous disqualification under Section 601 (voluntary leaving), 602 (misconduct), or 603 (refusal of work).

To further complicate things, the only way the individual can requalify is if he/she earnsan amount equal to or in excess of his/her current Weekly Benefit Amount in each of four calendar weeks.

LESSON TO BE LEARNED: The lesson to be learned from this article is that all Illinois employers should carefully track the first 30 working days for all new hires and make sure the company is really happy with the new employee. If the company is not satisfied fully with the new employee, the best time to terminate that employee is before the 30 working days lapse.

For assistance with protesting an IDES unemployment insurance claim, contact Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Legislative Update: Key Changes to the Illinois Human Rights Act New Employee Rights and New Requirements for Employers, Don’t Fall Asleep On One Of The Most Important Due Dates Regarding Your IDES Audit!, It’s Easier for Illinois Employers to Win Before the IDES on Cases involving Misconduct, Help! I Just Found Out I Am Going To Be Audited By The IDES!

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