Question 1: What is an employer’s obligation with regard to termination of employees?

There is no federal or state law that prohibits an employer from terminating an employee if an employee’s home, vehicle, personal possessions, etc. are affected and/or destroyed during a national disaster such as an earthquake, tornado, or flood.

Question 2: What is an employer’s obligation with respect to group insurance?

The shutdown of an employer’s business would trigger the elimination of group insurance coverage for covered employees and dependents. This would obligate the employer to send notices to the ex-employees advising them of their conversion rights (the right to convert the group coverage to individual coverage) pursuant to a federal statute known as “COBRA,” (for employers with at least 20 employees) or perhaps under similar state laws. In the usual case, COBRA permits the ex-employee to continue the same coverage in an individual policy for up to 18 months after termination of employment. The new federal healthcare law may provide former employees additional options.

Question 3:  Does Illinois have any legal restrictions against firing, suspending or disciplining employees?

Illinois is known as an employment-at-will state. Generally, this means that an employer may legally hire, fire, suspend or discipline any employee at any time and for any reason—good or bad—or for no reason at all (unless there is an employment contract or union protections). However, under the Illinois Human Rights Act, 775 ILCS 5/1-101 et seQuestion  , an employer may not discriminate against any employee on the basis of the employee’s race, sex, age, religion, color, national origin, citizenship status, arrest record, military status, unfavorable military discharge, sexual orientation, or disability. The law also prohibits discrimination on the basis of pregnancy or childbirth. In general, an employer cannot allow an employee’s inherent characteristics or the fact that the employee complained about discrimination or harassment to affect decision-making about that employee.

Question 4:  Does Illinois have a whistleblower law?

Illinois law prohibits an employer from retaliating against an employee who discloses information in a court, administrative hearing, before a legislative commission or committee or to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of a state or federal law, rule, or regulation. The whistleblower statute also prohibits an employer from retaliating against an employee for refusing to participate in an activity that would result in the violation of a state or federal law, rule, or regulation. 740 ILCS 174/1 et seQuestion 

However, there is also a public policy exception to the at-will doctrine which, in cases of whistleblowing, would act to protect the employee. For example, when an employee has the right or obligation to take action, the employer cannot punish the employee for taking that action.

For example, an employee cannot legally be disciplined, demoted, denied a promotion or fired because he or she has:

• Reported child or adult abuse as a mandatory reporter
• Reported an employer to the INS for immigration issues 
• Complained to OSHA 
• Complained to the Department of Labor 
• Reported illegal behavior by a coworker, a supervisor, or the company

This list does not contain every single basis that might exist for illegal retaliation and/or whistleblower exceptions.

Question 5: Are there exceptions to the employment-at-will doctrine in Illinois?

• Discrimination based on the factors mentioned in Question  3
• Harassment based on any of those characteristics 
• Discrimination or harassment based on an employee’s association with someone in a protected category 
• Retaliation because an employee has opposed or made a complaint about illegal discrimination or harassment 
• Retaliation because an employee has done something that he or she is legally obligated or entitled to do

DEADLINES: An employee cannot protect his or her rights unless some kind of action is taken, such as filing a civil rights charge or a lawsuit, within a set time frame after something negative happens with regard to employment. Deadlines for taking action on employment law cases vary by the type of case. An employee should act as soon as possible to make sure that he or she is not left without a remedy.

Question 6:  When should final paychecks be issued in the case of employers who are closing their businesses as a result of the disaster?

The Illinois Wage Payment and Collection Act requires that all wages earned by an employee during weekly pay periods be paid not later than 7 days after the end of the weekly pay period in which the wages were earned. For employees paid semi- monthly or bi-weekly, the wages must be paid not later than 13 days after the end of the pay period in which the wages were earned. 820 ILCS 115/4. An employer must pay the final compensation of a separated employee in full at the time of separation if possible, but in no case later than the next regularly scheduled payday for such employee. If the employee requests in writing that the final compensation be paid by check and mailed to him, the employer must comply with this request. If an employee resigns or is terminated without having used all the vacation time earned under the employer’s policy, the monetary equivalent of all earned vacation must be paid to him as part of the final compensation at the final rate of pay. 820 ILCS 115/5.

Question 7: What is unemployment insurance?

Unemployment insurance (UI) is a program designed to provide temporary financial assistance to workers who are unemployed through no fault of their own and who meet the requirements of the Illinois Employment Security Law. UI benefits are paid as a matter of past employment and legal entitlement, not on the basis of need.

If you become unemployed because your employer’s business is destroyed or closed because of a disaster, or because your house or car is destroyed, or because you are no longer able to get to work due to the disaster, you may apply for unemployment benefits. As referenced below in the FEMA section, if you are not eligible for Illinois unemployment compensation, you may be entitled to disaster unemployment assistance under FEMA.

Unemployment compensation benefits and disaster unemployment assistance require the completion of separate applications. Unemployed disaster victims should apply for unemployment benefits under both the state and FEMA provisions, as soon as possible since there is a waiting period for receipt of benefits.

Question 8:  How do I qualify for unemployment insurance benefits?

The law sets qualifying requirements in three main areas: your past wages, the circumstances of your job separation, and ongoing availability and work search requirements. You must meet all of the following qualifying requirements in order to receive benefits.

Past wages: You must have earned enough wages in your base period. The base period is the first four of the last five completed calendar quarters before you filed your claim.

Reason for separation from your last work: You must be unemployed or partially unemployed through no fault of your own in order to receive benefits.
   
Ongoing availability and work search: You must be physically able and available to work. You must also be actively seeking work.

Question 9:  How do I file for unemployment insurance?

To file a claim for unemployment insurance, you may report in person to the nearest Illinois Department of Employment Security (IDES) office or you may file online, http://www.ides.state.il.us/individual/online_claim.asp. following information:

• Your social security number
• The name, address and telephone number of your most recent employers (last 15 months), and the beginning and ending dates that you worked for those employers 
• An Alien Registration Number, if you are not a U.S. citizen. A DD-214 (Member 4), if you served in the U.S. Military during the last 18 months 
• An SF-8 form if you worked for the federal government in the last 18 months 
• The name(s), social security number(s) and date(s) of birth of anyone you will be claiming as a dependent.

Question 10:  How should I file if I worked in another state or more than one state?

No matter in which state you may have worked, or in which state you may now live, you can file your UI claim in the IDES office closest to your current place of residence. Personnel in that office will assist you in determining against which state you should file. There is an IDES office in nearly every large town in the state.

Question 11:  What are the minimum and maximum amounts of unemployment benefits?

The minimum weekly benefit amount in Illinois is $51.00. The maximum is currently $385 (individual), $458 (with spouse) or $531 (with child). Your weekly benefit amount will depend upon the total amount of wages paid to you during your base period and the number of dependents. The total amount of unemployment benefits payable to you would be equal to the lesser of 26 times your weekly benefit amount or one-third of your total base period wages.

Question 12:  Are unemployment benefits taxable?

Benefits you receive are taxable income. You will be issued Form 1099G showing the amount of benefits paid to you, as well as any federal income tax withheld at the time the benefits were paid. The amount on the 1099G is not reduced by any repayments you may have made for overpaid benefits. Therefore, if you are paid any benefits, you must maintain your record of payment, such as reimbursement receipts or canceled check notices to make adjustments to your taxable income and as documentation for the federal Internal Revenue Service and Illinois Department of Revenue when you file your tax returns.

Question 13:  What is Disaster Unemployment Assistance, or DUA?

If the President of the United States declares a disaster in your area, payment of Disaster Unemployment Assistance (DUA) may be authorized. Persons who become unemployed as a result of the disaster, and who do not qualify for regular unemployment benefits, may file for DUA. If a disaster is declared in your area, your local news media will likely provide information on how to obtain this assistance.

Question 14:  Can I recover DUA benefits?

DUA provides financial assistance to individuals whose employment or self- employment has been lost or interrupted as a direct result of a major disaster declared by the President of the United States. Before an individual can be determined eligible for DUA, it must be established that the individual is not eligible for regular unemployment insurance benefits (under any state or federal law). The program is administered by states as agents of the federal government.

Question 15:  Who qualifies for DUA?

Illinois residents who are out of work as a direct result of a disaster may be eligible for weekly benefit payments under the DUA program.

Under the DUA program, certain individuals who normally would not be eligible for regular unemployment benefits, for example, farmers, self-employed persons, independent contractors and workers who have not earned sufficient wage credits may be eligible to apply.

Applicants eligible to apply may include those who: (1) became the major support for a household because of the disaster-related death of the head of the household, (2) cannot work because of an injury caused as a direct result of the disaster, (3) could not work or lost work as a result of physical damage or destruction of a business, or (4) are unable to work because of the physical inaccessibility of the place of employment due to its closure by the federal government.

Except for persons with injuries or self-employed individuals trying to restart their businesses, individuals must be able to work and available for work, which are the same requirements for regular state unemployment insurance benefits.

Question 16:  What benefits are available?

The number of weeks an individual may be eligible for unemployment payments may vary depending upon his or her particular circumstances; however, the unemployment must be a result of the major disaster. The maximum weekly benefit amount is determined by the state.

Eligibility for benefits will be determined on a week-to-week basis. Federal funding covers 100 percent of the cost for the DUA program, which is administered by the state.

Question 17:  How do I file a claim?

Disaster victims seeking information on unemployment benefits and disaster unemployment benefits may also call 1-800-244-5631, TTY 1-866-322-8357. Online guidance is available at http://www.ides.state.il.us/ or, disaster victims may apply at any IDES office:  http://www.ides.state.il.us/worknet/centers.pdf.

Individuals who might be eligible for assistance must file a claim at their nearest IDES office. To find your closest office, go online to www.ides.state.il.us. Internet access is available at Illinois libraries or WorkNet Centers. Office locations are also available by calling IDES at 1-888-367-4382. TTY users call 1-866-322-8357.

Individuals who live in a declared disaster area are encouraged to apply for assistance with the U.S. Department of Homeland Security Federal Emergency Management Agency (FEMA). Go online at www.disasterassistance.gov or call 1-800- 621-FEMA (3362). TTY users may call 1-800-462-7585.

Question 18:  How does a disaster affect my workers’ compensation benefits?

If you are currently receiving workers’ compensation benefits and have relocated or have otherwise seen a disruption in benefit checks due to flooding, tornado, or other natural disaster, there are steps you can take to make sure you continue receiving benefits. If you used an attorney in your workers’ compensation case and are able to locate a phone number or contact information for that attorney or firm, he or she should be able to contact your employer’s (whether current or former employer) human resources department or insurance carrier on your behalf to make sure your benefits continue. If you did not use an attorney, you can call your employer (the one you had at the time of your workers’ compensation injury) and ask to speak to someone in human resources or management to report your move or to discuss workers’ compensation benefits. If you happen to have contact information for the insurance claims adjuster who handled your claim, you can call that person as well.

If you are not able to reach or locate an attorney, your employer at the time of the injury, or the insurance adjuster who handled your claim, you can contact Illinois Workers’ Compensation Commission: 1-866-352-3033, TDD: 1-312-814-2959, http://www.state.il.us/agency/iic/.

If you have been injured in the course of your employment or while at work— even if the injury is related to a natural disaster—you may be entitled to workers’ compensation benefits in the form of medical care and/or disability benefits. Illinois law establishes time limits for notifying your employer and for seeking recovery for such benefits. Generally, you must notify your employer of the injury, orally or in writing, within 45 days and must file a claim within 3 years. If you have been injured at work, you should seek legal advice at once.

To download the full Disaster Legal Services Manual, please click here.