Martin v. Department of Employment Security

Opinion

Summary Rule 23 order filed NO. 5-06-0478 August 8, 2007; Motion to publish granted IN THE September 17, 2007. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

HELEN MARTIN, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Effingham County. ) v. ) No. 06-MR-8 ) THE DEPARTMENT OF EMPLOYMENT ) SECURITY, DIRECTOR OF EMPLOYMENT ) SECURITY, and THE BOARD OF REVIEW, ) Honorable ) James J. Eder, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________

JUSTICE SPOM ER delivered the opinion of the court:

The plaintiff, Helen Martin, appeals an order of the circuit court of Effingham County

that affirmed a decision of the Board of Review (the Board) of the Illinois Department of

Employment Security (IDES) to deny unemployment insurance benefits to the plaintiff. For

the reasons that follow, we affirm.

The facts in this case are undisputed and easy to summarize. The plaintiff began to

receive social security retirement benefits in 1999. From September 19, 2004, until August

17, 2005, the plaintiff was employed by Wal-Mart. Following her discharge from that

employment, the plaintiff filed an application for unemployment insurance benefits with

IDES pursuant to the Unemployment Insurance Act (the Act) (820 ILCS 405/100 et seq.

(West 2004)). Had she been eligible for benefits, the plaintiff would have received $72 per

week. However, a claims adjudicator for IDES found the plaintiff ineligible for benefits

because the plaintiff was receiving disqualifying income, in the form of a portion of her

social security retirement benefits, that exceeded her potential unemployment insurance

1 benefit amount. An IDES hearing referee affirmed the decision of the claims adjudicator.

The decision of the hearing referee was in turn affirmed by the Board.

Although in her appeals below the plaintiff argued that a social security offset against

her potential unemployment insurance benefits was unconstitutional, before this court the

plaintiff has neither raised nor briefed the issue of constitutionality. Accordingly, the

plaintiff has waived the consideration of that argument on appeal. See 210 Ill. 2d R.

341(h)(7) (points not argued in an opening brief are waived and shall not be raised in the

reply brief, in oral argument, or in a petition for rehearing). The sole issue before this court

on appeal is whether the Board erred when it found that Wal-Mart, the plaintiff's most recent

employer, was her "base-period employer" for purposes of determining if the plaintiff was

eligible for unemployment insurance benefits. The plaintiff contends Wal-Mart was not her

base-period employer because Wal-Mart did not contribute to the retirement benefits she is

now receiving, which are based upon her employment with other employers prior to her

retirement from the work force in 1999, and because her retirement benefits did not change

when she began employment with Wal-Mart in 2004. She concedes that Wal-Mart was her

chargeable employer as that term is defined in relevant regulations and statutes, but she takes

issue with the finding that Wal-Mart was also her base-period employer.

The plaintiff's argument, although not well-developed, appears to be based on the

mistaken premise that the term "base period" encompasses only the years during which an

employee worked prior to beginning to receive social security retirement benefits and that

accordingly a base-period employer can be only an employer that contributed to an

employ ee's future retirement benefits prior to that employee becoming eligible for those

retirement benefits. Accordingly, the plaintiff appears to argue that once an individual

becomes eligible for retirement benefits, no future employer can be a base-period employer

and that any finding to the contrary is legally erroneous. The plaintiff cites no legal authority

2 for this proposition, nor is this court aware of any legal authority in support of the plaintiff's

position. To the contrary, as the defendants note, the Act clearly defines the base period as

the period of time examined to determine whether the claimant earned sufficient wages to

qualify for unemployment benefits and, if so, the amount of those benefits. 820 ILCS

405/237(A), 401 (West 2004). The "base-period employer" is the employer who pays wages

to the claimant during this eligibility period. It is undisputed that Wal-Mart is the employer

who paid wages to the plaintiff during the time period immediately prior to her claim for

unemployment insurance. Accordingly, the Board did not err in concluding that Wal-Mart

was the plaintiff's base-period employer. Put simply, the term "base-period employer"

means, for purposes of determining eligibility for unemployment insurance benefits, the

employer who paid wages during the base period for which benefits are claimed, and it has

nothing to do, as the plaintiff presumes, with the period of time during which a claimant may

or may not have been working toward eligibility for social security retirement pay benefits.

Furthermore, there is no requirement, as the plaintiff presumes, that the base-period

employer's contributions to the social security retirement plan affect either an unemployment

insurance benefits claimant's eligibility for social security retirement benefits or the amount

of social security retirement benefits the claimant receives. See 56 Ill. Adm. Code

§2920.70(b)(5) (eff. March 3, 1994).

For the foregoing reasons, the order of the circuit court of Effingham County is

affirmed.

Affirmed.

STEW ART and W EXSTTEN, JJ., concur.

3 NO. 5-06-0478

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ___________________________________________________________________________________

HELEN MARTIN, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Effingham County. ) v. ) No. 06-MR-8 ) THE DEPARTMENT OF EMPLOYMENT ) SECURITY, DIRECTOR OF EMPLOYMENT ) SECURITY, and THE BOARD OF REVIEW, ) Honorable ) James J. Eder, Defendants-Appellees. ) Judge, presiding. ___________________________________________________________________________________

Summary Rule 23 Order Filed: August 8, 2007 Motion to Publish Granted: September 17, 2007 Opinion Filed: September 17, 2007 ___________________________________________________________________________________

Justices: Honorable Stephen L. Spomer, J.

Honorable Bruce D. Stewart, J., and Honorable James M. Wexstten, J., Concur ___________________________________________________________________________________

Attorney Helen Martin for 10569 Aminoff Drive Appellant Effingham, IL 62401 ___________________________________________________________________________________

Attorney Rachel Hoover, Assistant Attorney General, 100 West Randolph Street, 12th for Floor, Chicago, IL 60601 Appellees ___________________________________________________________________________________