Sleeping on the job may mean no unemployment benefits

Under the Illinois Unemployment Insurance Act, terminated employees are not eligible to receive unemployment compensation benefits if they are discharged for “misconduct.” Misconduct is a deliberate and willful violation of a work rule or policy when the rule or policy is reasonable and either the violation harms the employer or the employee repeatedly broke the rule despite previous warnings.

But what about an employee who unintentionally violates a reasonable rule or policy? Is she ineligible for unemployment comp? In Odie v. Illinois Department of Employment Security, the Illinois Appellate Court clarified the circumstances when an employee’s unintentional violation may be considered “deliberate and willful.”

The case of the sleeping caregiver

In Odie, the plaintiff worked as a certified nursing assistant at a skilled nursing facility. Her job had been in jeopardy because of previous written warnings for tardiness, negligence and failure to follow procedures. She also had been suspended for providing poor nursing care. Nonetheless, her employer had assigned her to monitor approximately 25 residents in the facility’s dayroom and to provide necessary assistance.

She knew that sleeping on the job was a violation of company policy and constituted grounds for termination. During the course of her monitoring duties, the plaintiff chose to take Extra Strength Tylenol to relieve a toothache, knowing that the medicine caused drowsiness. She fell asleep. When a visitor woke her, she refused to attend to a resident who had been crying out for help; then she fell back to sleep. The nursing home fired her.

There’s falling asleep and then there’s misconduct

She filed a claim for unemployment insurance. The Illinois Department of Employment Security (IDES) denied her benefits because she had been fired for “misconduct.” The IDES referee found that falling asleep on the job after warnings was a deliberate and willful disregard of the employer’s interests. 

After the Circuit Court of Cook County affirmed the IDES decision, she appealed. The plaintiff cited two earlier “sleeping” decisions to justify her claim. The appellate court rejected her argument.

In one case, an administrative secretary was assigned to provide support to her counterpart during an executive committee meeting. She stepped out of the room and took an aspirin to relieve a headache. Upon her return, she fell asleep and was immediately fired for violating her employer’s policy against sleeping during work hours. In that case, the appellate court had found that the employee did not deliberately and willfully violate her employer’s policy against sleeping on the job. She had never had a poor work performance review, nor had she ever before fallen asleep on the job. Aspirin taken for a headache made her fall asleep, and there was no indication she purposely took a nap.

In another prior case, the court found that a discharged employee seeking unemployment benefits acted “unconsciously” when he involuntarily overslept because his alarm clock did not sound because of a power failure. The court found that his act of calling in late to work did not constitute misconduct under the Illinois Unemployment Insurance Act.

In contrast to those earlier cases, the plaintiff in Odie was aware that her job was in jeopardy due to several prior work infractions. The surrounding circumstances indicated that the plaintiff purposely took a nap, while her monitoring duties demanded that she be awake and alert. She understood that drowsiness was a side effect of the medication, but she voluntarily took it during her shift without notifying anyone that she was going to do so. Thus, the appellate court found that her sleeping could not be excused as unintentional.

A proper basis to deny benefits

“Misconduct” and “cause” are not the same for unemployment insurance benefits. Just because an employee violates a rule or policy does not mean that you can successfully fight her claim for benefits.

Instead, IDES and the courts look to facts beyond the employee’s single rule violation. To bolster your case to defeat unwarranted unemployment compensation benefits:

• Have a clear rule or policy about prohibited conduct. Even though some improper conduct may seem so clear that it doesn’t need to be expressly stated, the better practice is to specifically prohibit all conduct that could harm your interest. Include the rule in both your policies and handbooks.
• Document prior instances of employees’ policy violations. An employee’s record of prior company policy or rules violations is an important factor in finding that he or she committed “misconduct.”
• Investigate and preserve witness statements surrounding the violation. A termination based on a policy or rules violation may seem clear and supportable. However, being able to show the IDES evidence developed and recorded at the time of the violation (including statements of witnesses) goes a long way toward eliminating any factual issues that may lead an investigator or referee to question the existence of misconduct.
• Consistently enforce policy or rules violations that could harm your interest. If certain violations are truly harmful to your company’s interests, you should be consistent in how you treat those violations. Allowing some employees to commit violations without employment consequences could undermine the validity of your later “harmful to company interest” claims.