AUTHORITY: Implementing and authorized by Sections 802, 1700, 1701 and 1900 of the Unemployment Insurance Act [820 ILCS 405/802, 1700, 1701, 1900].

SOURCE: Adopted at 10 Ill. Reg. 16679, effective September 23, 1986; amended at 13 Ill. Reg. 795, effective January 4, 1989; amended at 17 Ill. Reg. 3194, effective March 2, 1993; amended at 21 Ill. Reg. 9472, effective July 2, 1997; amended at 33 Ill. Reg. 9617, effective July 1, 2009; amended at 43 Ill. Reg. 6372, effective May 14, 2019.

SUBPART A: FACSIMILE MACHINES

 

Section 2712.1  Use of Facsimile Machines

 

Notwithstanding any other provisions of this Chapter to the contrary, any document that is a response to or protest of a statement or notice that has been issued by the Department or the Director to which there are protest or appeal rights may be filed by facsimile transmission sent to the designated Department address.  The date imprinted on the document by the Department's telefax machine shall have the same effect as the U.S. Postal Service's postmark.  The individual or entity filing a document by telefax transmission bears the risk that the transmission will not be successful.  The date imprinted on the transmission confirmation document by the sender's telefax machine may be presented as evidence of successful transmission and filing of the document.

 

(Source:  Amended at 43 Ill. Reg. 6372, effective May 14, 2019)

SUBPART B: DIGESTS AND REPORTERS

 

Section 2712.100  IDES Board of Review Reporter (Repealed)

 

(Source:  Repealed at 43 Ill. Reg. 6372, effective May 14, 2019)

 

Section 2712.105  Digest of Adjudication Precedents

 

a)         The Department of Employment Security publishes as an abridged reporter a compilation of selected Board of Review decisions, court orders and published appellate court decisions in the Digest of Adjudication Precedents (the Digest).  It is available as part of a larger publication known as the UI Handbook.

 

b)         Availability of Handbook

Copies of the UI Handbook shall be available free of charge at the Department's website, www.ides.state.il.us.

 

c)         Any individual desiring to submit a decision or order for inclusion in the Digest may do so by submitting a copy of that decision or order and his or her rationale for the inclusion to:

 

Illinois Department of Employment Security

Office of Legal Counsel

33 South State Street – 9^th Floor

Chicago, Illinois 60603

 

d)         To be considered for inclusion in the Digest, a decision must fulfill any one of the following criteria:

 

1)         The decision resolves an issue not already included in the Digest;

 

2)         The decision modifies, creates an exception to, overrules, reverses, extends or changes a ruling previously included in the Digest;

 

3)         The decision presents a fact pattern likely to repeat itself in future cases;or

 

4)         The decision provides a statement of applicable facts and states a general principle of law that is readily applicable to the daily work of an Adjudicator, Referee or the Board of Review.

 

(Source:  Amended at 43 Ill. Reg. 6372, effective May 14, 2019)

SUBPART C: LEGAL SERVICES PROGRAM

 

Section 2712.201  Definitions

 

All other terms used in this Part shall have the meaning set forth in the Unemployment Insurance Act [820 ILCS 405] (Act).

 

            "Small employer" is any employing unit, as defined in Section 204 of the Act [820 ILCS 405/204], that reported wages paid to fewer than 20 individuals, whether part time or full time, for each of any two of the four calendar quarters preceding the quarter in which its application for legal assistance is made.

 

            "Tax case" will mean an appeal brought pursuant to 56 Ill. Adm. Code 2725.

 

            "Valid claim or defense" is one which, to the best of the provider or attorney's knowledge, information and belief formed after reasonable inquiry, within the necessary time constraints, is well grounded in fact and is warranted by existing law, is not interposed for any improper purpose (i.e., for the purpose of harassment or delay) and, if proven by a preponderance of the legally competent evidence of record at a hearing on that issue, would require the proponent of the claim or defense to prevail.

 

(Source:  Amended at 33 Ill. Reg. 9617, effective July 1, 2009)

 

Section 2712.202  Agreement To Hold the Department Of Employment Security And Its Employees Harmless

 

By participating in this legal services program, individuals and small employers acknowledge that the Department of Employment Security and its employees are not responsible for the quality of the legal services that are provided and that their sole remedy for any alleged malpractice shall be an action against the legal services provider or attorney involved in the matter.

 

(Source:  Added at 13 Ill. Reg. 795, effective January 4, 1989)

 

Section 2712.203  Eligibility Requirements for Legal Services for Individuals

 

a)         If funding is available for the service, individuals whose claims are in dispute before either a claims adjudicator or a referee can qualify for legal services under this Part to pursue their appeals to the referee, the Director, the Director's representatives or the Board of Review if they can present a valid claim or defense.

 

EXAMPLE:  An individual quits his job in Chicago to relocate in California where he can pursue his dream of becoming an internationally renowned surfer.  The claims adjudicator holds that he quit his job without good cause attributable to his employer.  The individual admits that he quit his job solely to pursue his surfing goal but wishes to appeal the claims adjudicator's determination because he needs his unemployment benefits to finance his ambitions.  This individual would not qualify for legal services under this Part because he has presented no legal justification under existing precedent for his appeal.

 

b)         Whether a claim or defense is valid will be determined by the attorney assigned to the case by the legal service provider.  If the individual disagrees with the judgment of the attorney assigned to the matter by the legal service provider, the individual may pursue the internal review process established by the legal service provider.  If the internal review process of the legal service provider still results in a decision that the individual does not have a " valid" claim or if the individual decides to forego the legal service provider's internal review process, he or she can hire a private attorney who may then be eligible for reimbursement pursuant to Section 2712.207(b).

 

c)         Application for legal services under this Part must be made at least three working days prior to the date of a scheduled hearing before the referee.  Failure to make application for services prior to three working days before the hearing shall disqualify the individual from receiving these services if the attorney assigned by the legal service provider finds that the reason that the individual failed to apply for the services prior to the three day period would not constitute good cause for a continuance under 56 Ill. Adm. Code 2720.240.

 

1)         EXAMPLE 1:  On the date of his hearing, the individual appears at the office of the legal services provider and requests an attorney to represent him at his hearing later in the day.  If the attorney assigned to his case finds that the reason that this individual failed to seek legal assistance prior to this time would constitute good cause for a continuance under 56 Ill. Adm. Code 2720.240, then, if the claimant meets the other criteria for eligibility for this program, the attorney will agree to represent this individual.

 

2)         EXAMPLE 2:  On the date of her hearing before the referee, the individual appears at the office of the legal services provider and requests an attorney to appear on her behalf at the scheduled hearing that day.  If the individual's reason for failing to seek legal assistance prior to this time would not constitute good cause for a continuance under 56 Ill. Adm. Code 2720.240 in the judgment of the assigned attorney, then the attorney will deny the individual the requested representation at the referee hearing.  However, if the individual is otherwise eligible for the program, the fact that she was denied assistance under this subsection at the hearing before the referee would not preclude the individual from seeking assistance in preparing her appeal to the Board of Review if the referee rules against her after her hearing.

 

d)         Even if individuals do not qualify for legal services under this Section because they do not have a valid claim or defense, they shall be entitled to a maximum of one-half hour of legal advice regarding their unemployment insurance claim from the attorney assigned to the matter by the legal services provider.

 

(Source:  Amended at 43 Ill. Reg. 6372, effective May 14, 2019)

 

Section 2712.205  Eligibility Requirements For Legal Services For Small Employers

 

a)         Except for any unpaid contributions, penalties or interest which are the subject of the appeal for which the legal services are requested, a small employer requesting services under this program must not be delinquent in the payment of any monies due the Director under this Act.

 

b)         The small employer must present a valid claim or defense to the action for which the legal services are sought.  Whether a claim or defense is valid will be determined by the attorney assigned to the case by the legal service provider.  If the small employer disagrees with the judgment of the attorney assigned to the matter by the legal service provider, it may pursue the internal review process established by the legal service provider.  If the internal review process of the legal service provider still results in a decision that the small employer does not have a " valid" claim or if the small employer decides to forego the legal service provider's internal review process, it can hire a private attorney who may then be eligible for reimbursement pursuant to Section 2712.207(b).

 

c)         Application for legal services under this Part must be made at least three working days prior to the date of a scheduled hearing pursuant to 56 Ill. Adm. Code 2725 or before the referee under 56 Ill. Adm. Code 2720.  Failure to make application for services prior to three working days before the hearing shall disqualify the small employer from receiving such services if the attorney assigned by the legal service provider finds that the reason that the small employer failed to apply for such services prior to such 3 day period would not constitute good cause for a continuance under 56 Ill. Adm. Code 2720.240.  See examples following Section 2712.203(c).

 

d)         To be eligible for legal services at a hearing, the small employer must be a "party", as defined in 56 Ill. Adm. Code 2720.1 or must be the appellant to an adverse decision, determination, order or ruling under 56 Ill. Adm. Code 2725 or the issue for which the legal services are being sought must be whether the small employer is a "party" as defined in 56 Ill. Adm. Code 2720.1.

 

e)         Even if the small employer does not qualify for legal services under this Section because it does not have a valid claim or defense, it shall be entitled to a maximum of one-half hour of legal advice regarding its unemployment insurance claim from the attorney assigned to the matter by the legal services provider.

 

(Source:  Amended at 17 Ill. Reg. 3194, effective March 2, 1993)

 

Section 2712.207  Attorney Eligibility for Requirements

 

a)         The Director of the Department of Employment Security will contract separately for individuals and small employers with one or more legal service providers who will then be responsible to either hire staff attorneys or for assembling a referral panel of attorneys for providing the legal services pursuant to Section 802 of the Act [820 ILCS 405/802].  Except as provided in subsection (b), the Director shall make no payments for legal services under this Part to anyone other than the legal service providers.

 

b)         If any individual or small employer is denied legal services by a legal service provider because that individual's or small employer's claim or defense was determined not to be valid and that individual or small employer then hires a private attorney and prevails on that claim or defense, the individual or small employer shall be entitled to reimbursement for the services of the private attorney in an amount not to exceed the maximum fee set forth in Section 2712.210.

 

c)         All attorneys participating in this program, whether as staff attorneys or referral panelists for a legal services provider or a private attorney must be licensed by the State of Illinois and must carry or must be insured for at least $100,000 in malpractice insurance.

 

d)         Any legal service provider under this Section must agree to maintain a toll-free number so that claimants and small employers can consult a plan attorney to determine their possible eligibility for the program.

 

(Source:  Amended at 33 Ill. Reg. 9617, effective July 1, 2009)

 

Section 2712.210  Maximum Fees Allowed

 

Where the individual or small employer has failed to present a "colorable claim":

 

a)         The maximum hourly rate for private attorneys paid for under this program shall be $50.

 

b)         The maximum number of billable hours per referee appeal shall be six; the maximum number of billable hours per Board of Review appeal shall also be six.  A maximum of ten billable hours shall be allowed per tax case.

 

(Source:  Added at 13 Ill. Reg. 795, effective January 4, 1989)