Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 13 L 50458. The Honorable Robert Lopez Cepero, Judge, presiding.
A decision of the Board of Review of the Department of Employment Security holding that the fact that defendant fell asleep while on duty did not constitute deliberate and willful misconduct within the meaning of the Illinois Unemployment Insurance Act and he could claim benefits was upheld by the appellate court, since there was no indication defendant had previously fallen asleep on duty, that he realized at the time that he was falling asleep or that he made no efforts to stay awake, he was asleep only a short time in an upright sitting position in public view, he did not have a history of work infractions, try to minimize the situation or go back to sleep, and the ruling that he was eligible for benefits was not clearly erroneous.
For PLAINTIFF-APPELLANT: Barry R. Bartlett, Bartlett Associates, LLC, Chicago, IL.
For DEFENDANTS-APPELLEES: Nadine Wichern, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Mason concurred in the judgment and opinion. Justice Pucinski dissented, with opinion.
[¶1] Defendant Darvin T. Hooker took on a second job as an unarmed night security guard at O'Hare International Airport. Less than three months later, a supervisor caught Hooker, while on duty, sitting at his station in an upright position, eyes closed, head tilted to one-side, and inert, in other words, asleep, an offense mandating discharge. Hooker then sought unemployment insurance benefits. An Illinois Department of Employment Security claims adjudicator denied him benefits under the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2012)), holding that Hooker had deliberately and willfully violated Universal's reasonable policy prohibiting sleeping on the job. Hooker appealed, and the referee reversed, ruling that Hooker had not fallen asleep deliberately and willfully and, accordingly, could claim benefits. His employer, Universal Security Corporation, plaintiff, appealed the referee's decision to the Board of Review of the Department of Employment Security, which affirmed. Next, Universal sought judicial review, and the circuit court affirmed.
[¶2] On appeal, Universal contends that the granting of unemployment benefits was clearly erroneous. We affirm and agree that the record supports the Board of Review's conclusion that Hooker's nodding-off did not amount to deliberate and willful misconduct within the meaning of section 602(A) of the Act.
[¶4] The facts, undisputed by the parties and established in a telephonic hearing before the referee, show: Universal hired Hooker to work full-time as an unarmed security officer at O'Hare International Airport during the overnight shift. About 2 1/2 months later, on September 25, 2012, at about 1:20 a.m., a supervisor saw Hooker sitting at his post with his head down and eyes closed. She took his picture on her cell phone before he awoke, about three or four minutes later. Hooker admitted that he " temporarily dozed off on duty," he was tired from working two jobs, and he knew of the potential negative ramifications to his employer and to him. That evening he had reported to work a few hours after a 10-hour shift at his other job. Universal's policy provides for automatic discharge should an employee be caught sleeping on duty.
[¶5] The issue for the referee was whether Hooker had engaged in a deliberate and willful violation, as defined under section 602(A) of the Act. 820 ILCS 405/602(A) (West 2012). The referee decided Hooker had not deliberately and willfully dozed and therefore had not committed " misconduct" under the Act and, thus, could claim his unemployment insurance benefits.
[¶6] Universal appealed to the Board of Review of the Department of Employment Security (the Board). The Board affirmed the referee's ruling as supported by the record and the law. The Board explained that " falling asleep on the job is willful only if an individual purposely takes a nap." The Board noted that Hooker admitted he was " very tired" when he dozed off and that he fell asleep " in the open where all could observe him," an indication of lack of intent.
[¶7] Universal sought judicial review (see 735 ILCS 5/3-101 et seq. (West 2012)). The circuit court affirmed the Board's decision on the ground that it was not clearly erroneous. This appeal followed. (In addition to Hooker, named defendants are the Illinois Department of Employment Security, the Director of the Illinois Department of Employment Security, and the Board of Review.)
[¶9] The Act affords economic relief to employees who, through no fault of their own, become " involuntarily unemployed." AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 396, 763 N.E.2d 272, 261 Ill.Dec. 302 (2001). A former employee may not receive benefits under the Act if his or her discharge was for misconduct connected to work (see 820 ILCS 405/602(A) (West 2012)) when: (i) the employer has a reasonable work policy or rule that (ii) the employee deliberately and willfully violates, and (iii) the violation either harms the employer or was repeated by the employee despite a warning. Wood v. Illinois Department of Employment Security, 2012 IL App. (1st) 101639, ¶ 19, 968 N.E.2d 1241, 360 Ill.Dec. 488; Phistry v. Department of Employment Security, 405 Ill.App.3d 604, 607, 939 N.E.2d 577, 345 Ill.Dec. 734 (2010). Courts construe the Act in an expansive fashion to avoid the forfeiture of benefits. Czajka v. Department of Employment Security, 387 Ill.App.3d 168, 174, 901 N.E.2d 436, 327 Ill.Dec. 108 (2008) (" While unemployment insurance benefits are a conditional right and the burden of establishing eligibility rests with the claimant, the Act must be liberally interpreted to ...