When is an employee eligible for unemployment?

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When is an employee eligible for unemployment?

I have been with the same company as a per diem employee for 11 years now. The first few years I was working less hours but the last 6 or 7 years I average between 30-40 hours a week. Our company is in the process of being bought and there is talk that the per diem work will not be available anymore leaving me unemployed. Because for 11 years I have been classified as a per diem employee, I’m wondering if I will be able to collect unemployment?

Asked on October 27, 2012 under Employment Labor Law, Illinois

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The above addresses unemployment from a point of employee versus independent contractor... but there are a couple of other factors that are applicable to all employees (per diem or regular).  You must have worked for a certain number of hours and received a certain amount of compensation within the last several months.  In addition, you must work for an eligible employer.  Here is a link with a basic brochure on and who is generally eligible in Illiois and how to file:  http://www.ides.illinois.gov/page.aspx?item=888

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If you are actually an employee of this company--you are paid as an employee (they take out FICA, for example)--then you would be eligible for unemployment benefits if/when laid off. However, if by "per diem" you mean that you are an independent contractor (paid on a 1099 basis), then *in theory* you would not be eligible for unemployment: only employees, not independent contractors, are.

However, the reason I emphasize "in theory" is that it doesn't matter what the company calls you--it matters what you actually are. Even if the company call you an independent contractor or per diem employee, and even if you are paid on a 1099 basis, if you are actually an employee, you would be eligible for unemployment benefits. If you work only for one employer; if the employer tells you when, where, and how to do your job; if you don't advertise your services to other clients; and if you do not provide your own insurance, tools, equipment, etc. but instead get some or all of this from the employer, then you are most likely an employee in fact, and should be able to get unemployment compensation.


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