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MEMORANDUM OF LAW
Attorney Scott Sami Jiries April 10, 2010 Wrongful Termination and Unemployment Benefits ISSUE

TO: FROM: DATE: RE:

Is a former employee who was terminated for unethical and illegal conduct, although he acted pursuant to the directions of a supervisor, entitled to a claim for unemployment benefits? BRIEF ANSWER

Qualified no. An employee who is terminated for unethical and illegal conduct, even if he acted pursuant to the directions of a supervisor, may not be legally entitled to unemployment benefits. It would depend on how narrowly the courts interpret the relevant statutes. FACTS

Mr. Jones was employed as a paralegal with a major law firm for eight years. During the last three years of his employment, he used his notary authorization to sign and acknowledge signatures without the signor present. Mr. Joness supervising attorney had instructed him to do this and was fully aware of his conduct. A senior attorney at the firm was reviewing documents, in the absence of Mr. Joness supervising attorney, and noticed Mr. Joness authorization signature on documents for clients who had not yet visited the firm. The senior attorney immediately fired Mr. Jones. When Mr. Jones applied for unemployment benefits, he was denied because the law firm argued that he had been terminated for misconduct. Mr. Jones believes he did not engage in misconduct and that he is entitled to unemployment benefits because he was acting according to the instructions of his supervising attorney. DISCUSSION/ANALYSIS

The rule of law governing entitlement to unemployment benefits in the case of termination for misconduct is Unemployment Insurance Act, Ill. Rev. Stat. ch. 48, para. 432A (1991). This paragraph provides that employees who are terminated for misconduct are ineligible for unemployment

benefits. Additionally, the paragraph provides a definition of misconduct, which it defines as 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
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the individual despite a warning or other explicit instruction from the employing unit. Since Mr. Jones was acting according to the directions of his supervising attorney, it is important to look at how courts have interpreted this paragraph of the statute in cases involving extenuating circumstances. One such case is DeBois v. The Department of Employment Security, 274 Ill. App. 3d 660 (1995). In this case, DeBois was terminated for misconduct but argued she was still eligible for unemployment benefits because she was wrongfully terminated. DeBoiss place of employment had an escalating discipline policy which it did not utilize in this case, instead summarily discharging her. The circuit court ruled that because DeBoiss employer did not adhere to its stated policy on discipline, DeBois was eligible for unemployment benefits. However, the appeals court disagreed with this reasoning, stating, When the statute defines its own words, courts interpreting that statute should construe those words in accordance with the statutory definition. In DeBois the court ruled that misconduct occurs when (1) a claimant violates a reasonable rule of the employer (2) through willful conduct and (3) either causes harm to the employer or other employees or repeats the action despite an explicit warning to avoid that action. Since this definition does not include any other requirements or details, the fact that DeBois may have been wrongfully terminated was irrelevant to the case. In our case, Mr. Jones engaged in misconduct by notarizing documents which should not have been notarized for a period of three years. This is conduct that someone in his position as a notary would know is a violation of his ethical and legal duties, and given the time period in which it occurred it can be categorized as willful. Additionally, if an outside party had become aware of this conduct, the law firm at which he was employed could very likely have been liable; thus, he was causing harm to his employer. It is reasonable to conclude, therefore, that according to both the statute and courts

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interpretation of the statute Mr. Jones is ineligible for unemployment benefits because he engaged in misconduct, regardless of any other factors involved. We could argue that Mr. Joness misconduct is mitigated by the fact that he was only doing what he was told to do by his supervising attorney. We could further argue that ultimate responsibility for this lies not with the paralegal who was only following directions, but rather with the supervising attorney, whose duty it is to prevent such violations. However, given the appellate courts precedent in that the statute ought to be interpreted narrowly, there is a strong likelihood that we may not succeed with this line of reasoning.

CONCLUSION

The Unemployment Insurance Act of Illinois explicitly states that employees terminated for misconduct are ineligible for unemployment benefits. That statute also provides a definition for what constitutes misconduct. In the case of DeBois v. The Department of Employment Security, the appellate court held that because the statute is explicit, it must be read narrowly, and therefore, extenuating circumstances are not relevant to the facts of the case. Our client notarized documents that he should not have notarized, which is misconduct. Although he was told to do so by his supervising attorney, there is a strong likelihood that he may still be found ineligible.

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RECOMMENDATIONS

Based on this analysis, there is still a question of whether Mr. Jones would receive a favorable decision from the courts. It may be advisable to conduct further research to determine if there is another case that is more on point, which could provide a more favorable precedent.

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