By Dave Strausfeld, J.D. Criticizing state intermediate appellate decisions that had adopted a broader definition of “misconduct,” the Illinois Supreme Court held that an airline employee who was fired for upgrading a passenger to first class without authorization did not engage in misconduct. Unless there is an express violation of a work rule, an employee may be disqualified for misconduct only if the conduct was illegal or would constitute a prima facie intentional tort. By denying unemployment benefits here, an unemployment board had clearly erred (Petrovic v. The Department of Employment Security, February 4, 2016, Burke, A.). Free upgrade. While working for American Airlines, an employee did a favor for a friend at another airline by arranging a free upgrade to first class for a passenger on an American flight. When she was fired for her actions, she filed for unemployment benefits. Without finding that she had violated any specific work rule, an unemployment board denied her claim on the ground that “there are some acts of misconduct that are so serious and so commonly accepted as wrong that employers need not have rules covering them.” The employee appealed to the state courts, and the case ultimately ended up in the state supreme court, with the unemployment board as the sole opposing party because American Airlines chose not to participate on appeal. Statutory definition of “misconduct.” The dispute centered around what constitutes “misconduct” disqualifying an employee from unemployment benefits. Under the state’s unemployment compensation act, “misconduct” is defined to expressly require a “deliberate and willful violation of a reasonable rule or policy.” A company’s rule or policy need not be written or formalized, the court explained, but it must have been clearly expressed to employees in order to place them on notice that they could be fired for violating it. “Commonsense” approach. Numerous Illinois intermediate appellate decisions have applied a broader definition of “misconduct” that supported the unemployment board’s denial of benefits in this case. They have held that behavior can constitute misconduct as long as a court may infer a rule violation “by a commonsense realization that certain conduct intentionally and substantially disregards an employer’s interests.” For instance, an employee may engage in misconduct by throwing a folder toward a supervisor, or leaving a meeting and calling supervisor a liar, the appellate courts have found. Approach rejected. But this approach cannot be reconciled with the statutory requirement of a deliberate and willful violation, the state supreme court concluded. “We hold,” the court declared, “that in the absence of evidence of an express rule violation, an employee is only disqualified for misconduct if her conduct was otherwise illegal or would constitute a prima facie intentional tort.” In the present case, because the airline employee’s free upgrade as a favor to a friend was not illegal or tortious, the airline needed to show that she had willfully and deliberately violated a work rule, and the airline failed to do so. Accordingly, even if her conduct justified the airline in discharging her, she did not commit “misconduct” for unemployment compensation purposes, and the board’s decision ruling otherwise was clearly erroneous, the court held. Illinois’ unemployment compensation statute, the court noted, was recently amended to list certain additional circumstances under which an employee is disqualified from receiving benefits. But that amendment was irrelevant to the court’s analysis here.
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