Secretary Shoots Law Firm the Bird, Law Firm Loses Unemployment Appeal

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Summary: After a two year battle, a law firm has lost an unemployment benefits case due to filing an appeal just one day too late.

The Fifth District Appellate Court issued a ruling against Blake Law Group in an employment benefits case that’s been pending since 2012, Madison-St. Clair Record reports.

  

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Kristen E. Auth worked as a secretary for the firm from January 30, 2012 until her termination on February 28, 2012. Auth filed for unemployment benefits with the Illinois Department of Employment Security the following day. Apparently, Auth had flipped the bird to a partner and was promptly fired.

Earlier this year, unemployment benefits requests were on the rise.

A claims adjudicator at first determined that Auth was indeed eligible for unemployment benefits. Blake filed an administrative appeal and a hearing was conducted. A referee ruled that Auth’s decision to give the partner the middle finger was disqualifying misconduct. Therefore, she would receive no unemployment benefits.

Last year, over $80 million in unemployment benefits was paid to millionaires.

After the administrative hearing, Auth appealed to the department’s Board of Review. The Board then determined that Auth’s “poor work performance and poor office demeanor did not rise to the level of disqualifying misconduct under section 602(a) of the Act,” therefore making her eligible for unemployment benefits. In addition, the Board stated that the “preponderance” of evidence failed to demonstrate that Auth’s supposed conduct in flipping the bird was a willful and deliberate violation of Blake Law Group’s rules and/or policies. The ruling stated, “The Board took into account that there was conflicting evidence about whether the incident happened and also took into account that the circumstances alleged were more indicative of an argumentative incident rather than misconduct. As observed by the board: ‘while the employer may very well have made a justifiable business decision to discharge the claimant, such does not automatically trigger misconduct.’”

Justice Judy Cates penned the order, and Justices Richard Goldenhersh and Melissa Chapman concurred in the opinion.

Following that ruling, Blake appealed to the circuit court. Circuit Judge Robert Haida found that the Board’s decision that Auth’s behavior did not meet the misconduct threshold was not against the manifest weight of the evidence. The petition for administrative review was denied on May 2, 2013.

This article details when you may need to hire an unemployment lawyer.

Blake then filed a motion to reconsider, but the Fifth Circuit determined that it was filed one day too late. An amended order had been issued on May 10, but because the amended order did not issue a new ruling, the May 2 date tolled the deadline to file an appeal. The court explained, “We agree that the motion for reconsideration would be timely if we were to use the date of the amended May 10 order, but the amended May 10 order was not a new judgment reopening the 30-day window. In this instance, the final judgment was entered on May 2. For purposes of appeal, a judgment is considered final if it terminates the litigation between the parties on the merits or disposes of the rights of the parties.”

The order continued, “The May 2 order did just that—it affirmed the Board’s decision and denied empoyer’s petition for reversal, thus concluding the litigation. Employer therefore had until June 3, 2013 to either file a notice of appeal or file a motion to reconsider directed against the judgment. Unfortunately, employer’s motion to reconsider was filed June 4, one day late.”

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