A state appeals panel has ruled the Illinois Department of Employment Security Review Board should’ve approved the unemployment claims of workers who claim pharmaceutical maker Fresenius Kabi fired them for falsely certifying their stations were sanitized, alleging their employer pressured them into false certifications in order to increase productivity.
And in the ruling, the appellate justices urged state lawmakers to take action to address concerns that the IDES Review Board took often acts as a "rubber stamp" amid such disputes.
At issue before the Illinois First District Appellate Court were consolidated appeals originating with three former Fresenius employees.
The five member IDES Review Board unanimously agreed each person was fired with cause.
But Cook County Circuit Court Judges Daniel Duffy and John Curry Jr. reversed those rulings based on unrebutted evidence of alleged corporate pressure.
That prompted IDES and its review board to appeal.
Justice Sanjay Tailor wrote the panel’s opinion, filed Dec. 20. Justices Michael Hyman and Celia Gamrath concurred.
The employees had long histories with Fresenius.
Marcelino Salinas was a pharmaceutical compounder from August 1998 through July 2020.
Alan Licudine had the same position for 16 years and Chandrakant Soni for eight.
In total, Fresenius fired more than 30 compounders on the same day.
“Claimants were discharged for falsification of cleaning logs,” Tailor wrote. “The evidence, however, establishes that the employee practice of signing cleaning logs despite not performing the cleaning was not only tolerated but actively encouraged by Fresenius. Each claimant testified that his supervisor encouraged the practice of not cleaning to increase compounding production time, a practice that was followed by the entire department. Each claimant was acting in accordance with a common work practice, which was sanctioned by Fresenius.”
A Fresenius representative who testified “offered no evidence to rebut the testimony that Fresenius’s corporate practice and culture, as condoned by management, was to falsify cleaning records to maximize production,” Tailor continued.
Given that conclusion, Tailor wrote, the appellate panel didn’t consider the workers’ arguments that the IDES Review Board improperly overlooked the agency’s decision to grant benefits to other compounders fired the same day on the same grounds. But the panel did note the inconsistency as well as the Review Board’s “inexplicable decision” to ignore decisions affecting other workers made after Salinas, Licudine and Soni were rejected.
Those data points, along with the compounders’ allegations about Review Board processes, led the panel to analyze the board’s decision making.
Tailor said state law requires all five board members to participate in each decision, a component of ensuring due process when applying for unemployment insurance benefits.
If an IDES adjudicator rejects a claim, the fired worker can appeal to a referee for a telephone hearing. The referee’s decision can be elevated to the Review Board to affirm, modify or set aside. That board does not take new evidence before its final determination.
Tailor noted those orders use the pronoun “we” and are to be signed by all board members to attest that they have reviewed the record, consideres contentions and exercised independent judgment.
The panel said it asked the board’s lawyer if the full board considers the record, whether there are dissenting decisions — “expecting there to be at least some considering that the board consists of two members of the labor class and two members of the employer class” — and if the lawyer could agree the signatures on decisions reflect those members having a role in the process.
“He stated he could not make that representation,” Tailor wrote, further noting an IDES Unit Clarification Decision in which an administrative law judge heard arguments about the employment classification of attorneys who draft decisions for the review board. IDES argued those lawyers were managerial staff in that they “act as surrogates” for the board and are “ ‘the whole game’ when it comes to determining eligibility for benefits.”
The panel further noted a 2017 filing from an Illinois Labor Relations Board administrative law judge who found that eight people who manage issues for review board hearings review hearing and evidence to make credibility determinations, then forward them to a supervisor for approval. The supervisor sends the draft to an actual review board member, but ultimately the board chairman has the final agency decision.
If that process is still in place, Tailor wrote, “this confirms that only one member of the board commonly considers and decides an appeal, which explains the absence of dissent in board decisions. And when the board member and board hearing referee disagree, the board chair acts as a ‘tiebreaker,’ indicating not only that the board hearing officer has a vote but that such vote has the same weight as a board member’s vote. If the board chair agrees with the board hearing referee, then the board member may dissent. However, we are not aware of any dissents in board decisions.”
The panel said the General Assembly intended for board members to disagree and state law has no provision for “one member to decide an appeal without the other four members participating.”
While acknowledging Review Board members have part-time roles with a heavy workload and little income, all “incompatible with their statutory obligations,” the panel said “no judgment can be deemed independent or informed without an understanding and analysis of the evidence in the record. If board members simply rubber stamp a staff member’s or other board member’s decision, then they flout the statutory framework for administrative adjudication and potentially deprive parties of their administrative due process rights.”
Tailor concluded by noting the panel has concerns about integrity and fairness and “we urge the governor and General Assembly to examine its processes and take whatever action is necessary to ensure that parties are afforded the statutory and due process rights to which they are entitled.”
IDES did not respond to a request for comment.