Recently in Unemployment Appeals Category

New Jersey Court Finds the Board of Review Again Misapplies Severe Misconduct Standard

August 1, 2014


For the second time this year, the New Jersey Appellate Court has reverse and remanded a Board of Review decision disqualifying a claimant from receiving New Jersey unemployment benefits on the basis of severe misconduct. This is yet another reminder how necessary it is for the New Jersey legislature to enact a clear definition of what constitutes severe misconduct under New Jersey unemployment law.

In 2010, the New Jersey legislature created a new classification of misconduct called severe misconduct. Prior to 2010, there were only two types of misconduct, which were gross misconduct and misconduct (which was changed to simple misconduct with the enactment of severe misconduct). Gross misconduct occurs when an individual is terminated because they committed a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice. Simple misconduct occurs when an individual is terminated because he or she committed an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee."

In creating the new classification, the legislature did not define "severe misconduct." Instead, the 2010 amendment sets forth a list of examples of what constitutes severe misconduct, which includes the catch-all example, "where the behavior is malicious and deliberate but is not considered gross misconduct." This "malicious and deliberate" catch-all example is, in fact, a lesser standard than the definition of simple misconduct, which has been the cause of the Department of Labor's confusion and as to how to apply the law for over the last three years.

The issue was finally analyzed by the Appellate Division in the case Silver v. Board of Review, decided in March 2013. In that case, the Appellate Division found that the legislature intended for severe misconduct to include conduct more egregious than simple misconduct. The Appellate Division described the two-prong standard for misconduct as follows: "First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer as the right to expect." Silver, supra, 430 N.J.Super. at 53.

Despite the guidance provided by the Appellate Division in Silver, the misinterpretation of severe misconduct continues.

In the case Tarnowski v. Board of Review, decided September 9, 2013, the Board of Review originally found the claimant disqualified to receive unemployment benefits without first applying the two-prong test set forth in Silver. The claimant in Tarnowski was terminated while he was on an emergency leave of absence from work as a result of receiving a call informing him that his cousin in South Carolina was on life support. The claimant had previous attendance problems, and alleged that he was unable to get in contact with anyone from his company for the week during his leave. The Board of Review found that, based upon these facts, the claimant had been terminated for severe misconduct. In reversing the Board of Review's decision, the Appellate Division noted that the Board of Review did not consider the threshold issue of whether the claimant's actions were intentional, malicious or deliberate. As a result, the decision was reverse and the case was remanded.

As we have previously mentioned in this employment law blog, there is a bill pending that would amend the New Jersey Unemployment law to include clear definitions for both simple misconduct and severe misconduct. Until this bill or a similar bill is passed, the Tarnowski decision reminds all claimants, employers and unemployment examiners to follow the standard articulated in Silver in determining whether a claimant was terminated for severe misconduct.

Proposed Bill Limits New Jersey Employers' Ability to Restrain Ex-Employees Based on Unemployment Benefits Eligibility

March 16, 2014

A new bill has been introduced to the New Jersey legislature that would invalidate any contract not to compete, not to disclose and/or not to solicit between employers and former employees if it is determined that the employee is eligible for unemployment benefits. The bill [A-3970] if passed, would not apply to any contract not to compete, not to disclose and/or not to solicit, that was in effect prior to when the bill is enacted.

The current law in New Jersey allows employers to enforce an agreement not to compete, not to disclose and/or not to solicit if the agreement protects a legitimate interest of the employer. Courts have held that, in certain circumstances, employers have a legitimate interest in protecting things such as trade secrets, confidential business information and customer relationships. In order to enforce a restrictive covenant, the terms of the not to compete, not to disclose and/or not to solicit clause must be reasonable, not impose an undue hardship on the employee and not be injurious to the public. Courts will not enforce agreements not to compete, not to disclose and/or not to solicit if the restriction is unreasonable. New Jersey courts have repeatedly held that employers do not have a legitimate interest in restricting competition. This is because New Jersey has a strong public policy affording individuals the right to pursue one's profession and livelihood. When determining whether a restrictive covenant is enforceable, New Jersey courts will analyze the specific facts and circumstances of the employee's former employment and new employment, along with the specific terms of the restrictive covenant.

If A-3970 becomes law, an employee would be relieved from any contractual obligation not to compete, not to disclose and/or not to solicit if they are found to be eligible for unemployment benefits. An employee is eligible for unemployment benefits if they become unemployed due to not fault of their own. Most disqualifications for unemployment benefits are because the employee either left work voluntarily without good cause attributable to the work or was involuntarily terminated for committing an act of misconduct. The three types of misconduct are gross misconduct, simple misconduct and severe misconduct. Gross misconduct is when an employee is terminated because they committed a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice. Simple misconduct occurs when an employee is terminated because of improper, intentional, connected with one's work, malicious and within the applicant's control and is either a deliberate violation of his or her employer's rules or a disregard to standards of behavior that the employer has the right to expect of the applicant. There currently is no statutory definition for severe misconduct, but there is a bill pending to correct this oversight by the legislature. The Appellate Division has interpreted severe misconduct to be a gap-filler between simple misconduct and gross misconduct.

The passing of this bill would undoubtedly be a huge victory for New Jersey employees. It would also become much more common for employers to challenge its former employees' claims for unemployment benefits. All New Jersey employers, employees and employment attorneys will need to stay tuned to see if this bill becomes law.

What constitutes "Severe Misconduct" under New Jersey Unemployment Law?

July 31, 2013

In 2010, the New Jersey legislature amended New Jersey Unemployment Benefits law to include a new basis for disqualification of benefits called "severe misconduct". Prior to the change in law, a claimant could be denied from receiving unemployment benefits if he or she was terminated for "misconduct" or "gross misconduct." Misconduct is defined by the regulations as an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee. Gross misconduct is defined by law as a termination caused by the claimant as a committing a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice.

While adding "severe misconduct" as a new basis for unemployment benefits disqualification, the Legislature did not define what "severe misconduct" means, and instead set forth a non-exclusive list of examples of what could be severe misconduct. These examples include "repeated violations of an employer's rule or policy; repeated lateness or absences after the applicant receives a written warning from their employer; falsification of records; physical assault or threats that do not constitute gross misconduct; misuse of benefits or sick time; abuse of leave; theft of company property; excessive use of drugs/alcohol on the job; theft of time; or where the behavior is malicious and deliberate but is not considered gross misconduct.
Since the amendment to the unemployment law, our New Jersey unemployment lawyers have seen far too many cases in which the lack of a clear definition of severe misconduct has resulted in an unjust and unfair result for our clients. A lot of confusion for Appeal Tribunal examiners stems from the fact that last statutory example of severe misconduct (where the behavior is malicious and deliberate but is not considered gross misconduct) is in fact a lesser standard than the regulations definition of misconduct.

For approximately three (3) years, no New Jersey court wrote any decisions concerning the change in law. However, finally, in the case Silver v. Board of Review, decided March 21, 2013, the Appellate Division reviewed and analyzed the change in unemployment benefits law and provided some guidance as to the applicability of the new law, including the difference between misconduct and severe misconduct. In acknowledging that there is no definition regarding "severe misconduct" in the statute, the Appellate Division in Silver stated "it seems to us fundamental that the term "misconduct," should have the same meaning throughout N.J.S.A. 43:21-5(b) and its implementing regulation. The Appellate Division further stated:

Two examples of severe misconduct listed in the 2010 amendment describe, if read literally, conduct that would not necessarily be deliberate, intentional, or malicious ("repeated violations of an employer's rule or policy," and "repeated lateness or absences after a written warning"). However, light of the history we have described, it is obvious that the Governor and Legislature intended to create severe misconduct as a gap-filler between simple misconduct and gross misconduct. It would make no sense to allow for conduct with a lower level of culpability (such as mere inadvertence or negligence) to qualify as severe misconduct and carry with it a harsher sanction than simple misconduct. Such a result would be absurd and clearly contrary to the legislative intent...

In Silver, the Appellate Division reversed the Board of Review's decision disqualifying the claimant Ms. Silver for "severe misconduct." Although Silver decision has provided the Department of Labor and all unemployment claimants more guidance concerning the meaning of "severe misconduct", there still remains no clear definition of "severe misconduct." Fortunately, there is a bill pending (A1874) that would amend N.J.S.A. 43:21-5 of the New Jersey Unemployment law to include clear definitions for both simple misconduct and severe misconduct. All New Jersey citizens are encouraged to contact their state representatives to assure this bill is passed.

NEW JERSEY BILL LOOKS TO FINALLY DEFINE THE DIFFERENCE BETWEEN "SIMPLE MISCONDUCT" AND "SEVERE MISCONDUCT" IN NEW JERSEY UNEMPLOYMENT COMPENSATION LAW

November 30, 2012

In 2010, Governor Christie and the New Jersey state legislature revised New Jersey Unemployment Compensation Law to include a new "severe misconduct" standard to disqualify certain employees from receiving unemployment benefits. Because of the ambiguity of the statutory revisions to the revised law, New Jersey unemployment lawyers, claims examiners, employers and employees have been left without clear guidance as the difference between being terminated for "severe misconduct" versus the "simple misconduct."

The revised New Jersey Unemployment Compensation Law did not change the definition of simple misconduct. Simple misconduct is defined as actions that are improper, intentional, connected with one's work, malicious and within the applicant's control and is either a deliberate violation of his or her employer's rules or a disregard to standards of behavior that the employer has the right to expect of the applicant. A simple misconduct disqualification will prevent an applicant from receiving unemployment benefits for the week of the termination and the subsequent seven weeks.

The major change contained in the revised legislation was to include a new "severe misconduct" category for disqualification of unemployment benefits. Under the revised law, being terminated for "severe misconduct" will disqualify a claimant from receiving unemployment benefits indefinitely or until he or she becomes re-employed, works for four weeks, earns at least six times their weekly benefit amount and is terminated from that employment due to no fault of their own. The problem with the enactment of the new "severe misconduct" standard is that it is completely void of a definition of what constitutes "severe misconduct." Instead, the revised statute only sets forth "examples" of "severe misconduct" that include the following: repeated violations of an employer's rule or policy, repeated lateness or absences after the applicant receives a written warning from their employer, falsification of records, physical assault or threats that do not constitute gross misconduct, misuse of benefits or sick time, abuse of leave, theft of company property, excessive use of drugs/alcohol on the job, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct.

The "example" of severe misconduct that "the behavior is malicious and deliberate but is not considered gross misconduct" is in clear conflict with the definition of the supposedly lesser "simple misconduct" standard. However, by its very definition, the "malicious and deliberate" behavior example of severe misconduct has effectively rendered the simple misconduct standard meaningless because severe misconduct is a lesser standard. This, of course, makes no sense.

As a result, our New Jersey unemployment lawyers have witnessed claimants who would have been eligible for unemployment benefits pre-2010, be denied their claim for unemployment benefits because an examiner believed their conduct was "malicious and deliberate" thereby constituting "severe misconduct". As a result, instead of being eligible to receive unemployment benefits (or at worst, face a seven week disqualification for simple misconduct) many New Jersey employees have become completely disqualified for "severe misconduct."

There is proposed legislature that would finally remedy this serious problem that our New Jersey unemployment lawyers and clients are routinely confronted with their initial determinations or unemployment appeals. On December 3, 2012, the Assembly will vote on a bill to repair and clearly define the differences between a simple misconduct termination and a severe misconduct termination. If adopted, the new simple misconduct definition will read as follows:

"Simple misconduct" means misconduct, other than severe or gross misconduct, which is improper, intentional, connected with the individual's work, malicious, within the individual's control, not a good faith error of judgment or discretion, and is either a deliberate failure, without good cause, to comply with the employer's lawful and reasonable rules made known to the employee or a disregard of standards of behavior the employer has a reasonable right to expect, including reasonable safety standards and reasonable standards for a workplace free of drug and substance abuse. "Simple misconduct" includes: (1) repeated failure, without good cause, to comply with lawful, reasonable instructions of the employer not requiring the employee to perform services beyond the scope of the employee's customary job duties; (2) falsification of an employment application or other record required by the employer to determine the employee's qualifications or suitability for the job or omitting information which created a material misrepresentation of the employee's qualifications or suitability for the job; (3) tardiness without good cause which is chronic or excessive and repeated after written warnings from the employer; and (4) repeated unauthorized absences without good cause, such as illness or other compelling personal circumstance, or unjustified failure to provide notice prior to the unauthorized absences. An unauthorized absence without good cause for five or more consecutive work days may constitute job abandonment and subject the individual to disqualification for voluntarily leaving work without good cause attributable to work pursuant to subsection (a) of this section. An individual's discharge for failure to meet the employer's standards regarding quality or quantity of work shall not be considered misconduct unless the employer demonstrates to the division that the standards are reasonable and that the individual deliberately performed below the standards.

R.S. 43:21-5 (A1874 Establishes standards regarding the disqualification of claimants for unemployment compensation for misconduct).

The "severe misconduct" definition would be as follows:

"Severe misconduct" means misconduct connected with the individual's work other than gross misconduct, which: (1) is committed with actual malice and deliberate disregard for property, safety or life of the employer, fellow employees, contractors, invitees of the employer, or members of the public at the worksite, or consumers of the employer's products or services, and consists of physical assault, threats of physical assault, or theft or other employee-caused property or monetary loss or damage so serious that it is determined by the division that the penalties for simple misconduct are not sufficient; or (2) is comprised of a pattern of instances of simple misconduct which are, after repeated written warnings from the employer, repeated so frequently that they cause substantial disruption of the employer's operations or substantial property or monetary damage or loss for the employer which is so serious that it is determined by the division that the penalties for simple misconduct are not sufficient. Disruption of operations from a cessation of work during a labor dispute shall not be regarded as severe misconduct for the purposes of this subsection (b).

R.S. 43:21-5 (A1874 Establishes standards regarding the disqualification of claimants for unemployment compensation for misconduct).

If passed, this bill would truly be a victory for all New Jerseyans, especially those employees and their family members who have lost their job and are in need of unemployment benefits. The new language for simple misconduct gives a clear, descriptive, definition in addition to four (4) clear actions/types of actions which will constitute simple misconduct. As for severe misconduct, the new language provides an actual definition, instead of a short inadequate, non-inclusive list of examples. The new severe misconduct language provides two (2) clear, relatively high standards, an employer must demonstrate before a claimant can be disqualified for severe misconduct. Indeed, severe misconduct would finally rightfully be defined actions that more severe than an employee committing simple misconduct.

In its current form, the law has no clear standard for claims examiners to apply to the variety of different circumstances that occur in employee terminations. This has resulted in claimants being wrongfully denied benefits permanently or having to wait up to six (6) months for an appeal hearing due to the terrible backlog in New Jersey unemployment cases. Hopefully on December 3rd, the Assembly will vote in favor of this bill recognizing the necessary and positive impact it will have on New Jersey Unemployment Compensation law. We encourage all New Jersey citizens to reach out to their state representatives to express the importance of passing this law. To find out who your legislators are, please go to:

http://www.njleg.state.nj.us/members/legsearch.asp

Being Told of Likely Termination Is Not Considered Good Cause to Quit and Receive New Jersey Unemployment Benefits

November 15, 2012

The New Jersey Appellate Division recently affirmed the Board of Review's decision denying claimant, Ms. Nzinga Jackson, New Jersey unemployment benefits, finding she left work voluntarily without good cause attributable to the work. In Ms. Jackson's initial hearing, the Deputy Director found that Ms. Jackson's resignation from her position because her union representative told her she would be laid off from work did not constitute voluntarily leaving for good cause attributable to the work. Ms. Jackson appealed the Deputy's determination. The Appeal Tribunal and subsequently the Board of Review affirmed the Deputy's decision.

In the case, Jackson v. Board of Review, Ms. Jackson worked for Verizon New Jersey, Inc. ("Verizon") from February 25, 2008 through September 4, 2010 as a customer service representative. Ms. Jackson accepted a voluntary severance package when her union representative informed her that she would most likely be laid off in the future because of her lack of seniority. Based on that information, Ms. Jackson accepted the severance package and resigned. Ms. Jackson did not confirm that she was going to be laid off with Human Resources or any other Verizon representative. In fact, Verizon did not lay off any employees because an "overwhelming" number of employees voluntary accepted the separation package.

Affirming the Deputy's initial determination denying Ms. Jackson's benefits, the Appeal Tribunal rejected Ms. Jackson's argument that she did not leave work voluntarily without good cause attributable to the work. The Appeal Tribunal stated that acceptance of a voluntary severance package is a valid reason for leaving the job, however it is a personal reason and is not connected to the work itself. During the appeal hearing, the customer service manager testified that Ms. Jackson was not under any direct threat of being laid off if she did not accept the package and continuing work was still available at the time she resigned. Ms. Jackson alleged that she would have been laid off in May 2011, approximately nine (9) months after her voluntary resignation.

In reviewing this decision the Appellate Division stated that "in the context of voluntary early resignation, an employee will not be found to have left for good cause attributable to the work unless the employee's 'subjective fear [of imminent layoff] was based upon definitive objective facts . . . to buttress [the] belief that [her] job [ ] would actually be eliminated in the impending work reduction,' and (2) that [the] claimant [ ] would suffer substantial economic loss.'" An imminent lay off is defined as one in which the individual will be separated within 60 days. N.J.A.C. 12:17-9.5. The Court further stated that the mere threat or possibility of a layoff is an insufficient basis to trigger the right to receive unemployment benefits.

The Court concluded that Jackson's argument that she was effectively terminated was not supported by the factual record. Although she was told by her union representative that she would most likely be laid off in the future, the Court found that she was never threatened with an imminent termination and she instead, made a personal decision to voluntarily leave work to secure the beneficial early resignation package. An employee who leaves work for personal reasons is deemed to have left work voluntarily without good cause attributable to the work. Based on that finding, the Appellate Division affirmed the determination disqualifying Ms. Jackson for unemployment compensation benefits.

Employee Required to Repay New Jersey Emergency Unemployment Compensation Benefits

October 15, 2012

The New Jersey Appellate Division recently affirmed the Board of Review's decision requiring claimant, Anthony M. Cibik, to refund extended Emergency Unemployment Compensation (EUC) received, totaling $14,600.

In the case, Cibik v. Board of Review, Mr. Cibik worked for a company that was acquired by HDR, Inc. (HDR). Mr. Cibik worked for HDR for about one and a half years until his position was terminated in August 2009. Initially, Mr. Cibik worked in HDR's New Jersey location. Around June or July 2008, Mr. Cibik relocated and was transferred to an HDR location in Oregon. He worked at the Oregon location from that time up until his termination.

Upon his termination, Mr. Cibik applied for unemployment benefits in New Jersey. He was found eligible for unemployment benefits in New Jersey because most of his wages during his employment with HDR were from working at the New Jersey location. Mr. Cibik received a total of twenty six (26) weeks of unemployment benefits. Mr. Cibik then received New Jersey EUC benefits from February 20, 2010 to August 7, 2010 totaling $14,600. However, Mr. Cibik was entitled to receive unemployment compensation benefits from Oregon starting on February 10, 2010. Mr. Cibik was unaware of his eligibility to receive such unemployment benefits in Oregon at the time he filed for New Jersey EUC benefits. On August 18, 2010, Mr. Cibik received a letter from the Director of the New Jersey Division of Unemployment Compensation requesting refund of all monies received through New Jersey EUC.

Mr. Cibik was required to refund all monies received through New Jersey EUC because at the time he received those funds, he was entitled to receive regular unemployment benefits in Oregon. In affirming the Board of Review's decision, the Appellate Division stated that even though Mr. Cibik did not make any misrepresentations and did not withhold any material facts concerning his unemployment, full repayment of EUC benefits is required if someone received benefits he or she was not entitled to, for any reason, regardless of good faith. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).

The court noted that "EUC benefits are payable to individuals who have exhausted regular unemployment benefits under Federal or state law and who 'have no other rights to regular compensation or extended compensation. . . under . . . any other State . . . or . . . Federal law . . . .'" Pub. L. No. 110-252, ยงยง4001(b)(1)-(2). Mr. Cibik was entitled to receive Oregon benefits at the same time he received New Jersey EUC. Therefore, Mr. Cibik's good faith mistake could not negate his responsibility to repay EUC benefits to which he was not entitled under Federal or New Jersey law.

The Appellate Division also declined to address Mr. Cibik's argument that his repayment obligation should be waived because he asserted this argument for the first time on appeal to the Board of Review and neither the Board nor the Director decided on that issue.

Employee Disqualified from Receiving Unemployment Benefits for Failing to Adhere to Employer's Call Out Procedure

September 15, 2012

The New Jersey Appellate Division recently affirmed a Board of Review's decision denying claimant, Mr. John M. Custin, from receiving unemployment benefits, finding that he engaged in misconduct connected with the work. Mr. Custin was found eligible for unemployment benefits in the initial hearing however, his employer appealed. The Appeal Tribunal reversed the initial determination finding Mr. Custin eligible for benefits and found that Mr. Custin was disqualified. The Board of Review affirmed that decision.

In the case, Custin v. Board of Review, Mr. Custin worked for Walmart Stores Inc. ("Walmart") from April 11, 2008 through April 26, 2010 as a sales associate. Mr. Custin did not report to work on April 17, 19, 21, 22, and 23 because of pain in his legs that rendered him unable to get out of bed. Walmart's policy required employees to call an employee hotline and get a verification number as proof that the employee followed the correct procedure to call out of work. Mr. Custin asserted that he did call the hotline but was unable to get a verification number because the hotline was not working properly.

Mr. Custin was first found eligible for unemployment benefits on May 13, 2010, however, Walmart appealed that determination. During the appeal hearing, Ms. Beverley Shuck, Mr. Custin's former manager, testified that Mr. Custin was terminated because he was a "no call, no show," on April 17, 19, 21, 22, and 23. Ms. Shuck testified that employees were fully aware of the call out procedure. Ms. Shuck also testified that Mr. Custin had called out in the past, using the correct procedure however, when she asked him why he did not call out in this instance, he stated "that his legs hurt and he figured if he couldn't walk he couldn't work." Ms. Shuck further testified that employees who were absent more than three days were required to provide a doctor's note pursuant to Walmart's leave of absence policy. Mr. Custin denied being aware of such policy.

Under the American Recovery and Reinvestment Act of 2009, Mr. Custin applied for a COBRA premium reduction following his termination. Initially, Mr. Custin's request was denied because it was determined that he was not an "Assistance Eligible Individual" because he had purportedly not been involuntarily terminated. This decision was reversed when Walmart submitted a letter stating that following an additional investigation it was determined that Mr. Custin was eligible for the COBRA subsidy. Mr. Custin asserted that Walmart's position as to his eligibility for the COBRA subsidy contradicted Walmart's position during the appeal hearing, that he voluntarily abandoned his job. However, the Appeal Tribunal denied Mr. Custin's request that Walmart's statement that he voluntarily abandoned his job be stricken.

The Appeal tribunal found that Mr. Custin was disqualified from receiving benefits because he did not properly notify Walmart of his absences which constituted misconduct connected with the work. Mr. Custin appealed the determination of the Appeal Tribunal denying his unemployment benefits arguing Walmart failed to prove his misconduct constituted a wanton or willful disregard of the employer's interests, a deliberate violation of the employer's rules, or an intentional and substantial disregard of his duties and obligations. Mr. Custin also argued that he was denied due process of law. The Board of Review affirmed the Appeal Tribunal's decision and disagreed with Mr. Custin's arguments.

The Board cited to Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979) to support its finding that Mr. Custin's failure to call out was not inadvertent or unintentional and thus, constituted misconduct connected with the work. Citing Demech, the court stated, acts of willful, deliberate, or intentional misconduct must be distinguished from "[i]nadvertent or unintentional acts, or simple neglectful conduct not amounting to a wanton disregard of consequences...." Demech at 38-89. Mr. Custin was absent from work for five days and presented no credible evidence to refute Ms. Shuck's testimony that the hotline was not malfunctioning as other employees had successfully called out the same mornings that Mr. Custin complained he could not. The court concluded Mr. Custin failed, without justification, to take steps necessary to notify his employer of his absence and the reason therefor. N.J.A.C. 12:17-10.3.

The Board also disagreed with Mr. Custin's argument that he was denied due process of law because Walmart failed to provide him copies of his exit interview and attendance record which was referenced by Ms. Shuck in the appeal hearing. The court rejected this argument because Mr. Custin failed to raise the issue before the Appeal Tribunal although he had an opportunity for such presentation.

Lastly, the Court concluded that Mr. Custin's argument that the only issue that was in dispute was whether he voluntarily left his job and since this was decided in his favor, he should have been qualified for unemployment benefits. The Court rejected this argument stating that Mr. Custin was well aware of Walmart's position that he had been separated from work for misconduct, the notice he received from unemployment identified the issues were "voluntary leaving" and "discharge for misconduct," and at the inception of the Appeal Tribunal hearing, the Appeals Examiner informed all parties of the issues.

In rejecting all of Mr. Custin's asserted arguments and finding that his failure to properly notify his employer of his absence as required by Walmart's policy, the Appellate Division affirmed the determination disqualifying Mr. Custin for unemployment benefits.

QUITING WORK DUE TO DISSATISFACTION WITH COMPENSATION DISQUALIFIES CLAIMANT FROM RECEIVING NEW JERSEY UNEMPLOYMENT BENEFITS

July 30, 2012

The New Jersey Appellate Division recently affirmed the Board of Review's decision denying claimant, Ms. Samantha Monday, from receiving unemployment benefits because she left her employment voluntarily without good cause attributable to the work. Ms. Monday was denied unemployment benefits in the initial hearing. However, on appeal, the Deputy determined that being paid less than the national average rate of pay for similar work constituted cause attributable to the work and awarded unemployment benefits. The employer appealed the Deputy's award of benefits and the Appeal Tribunal concluded that the employer's failure to give Ms. Monday a raise immediately upon her request, absent a contractual obligation, did not support a claim for unemployment benefits for voluntarily leaving employment with good cause attributable to the work. The Board of Review and the Appellate Division subsequently affirmed that determination.

In the case, Monday v. Board of Review, Ms. Monday began her employment with Mohn's Florist as a floral designer from May 2004 through May 2009. Ms. Monday also became the shop's retail manager during the course of her employment. Ms. Monday claimed that she left her job because she needed to make at least $22 per hour and spoke with the owners at least five times regarding her dissatisfaction with her rate of pay. Ms. Monday demanded a raise from Ms. Cochrane, co-owner of Mohn's Florist on the day she left her employment. Ms. Cochrane informed Ms. Monday she would have to consult with her husband (the other owner of Mohn's Florist) over the weekend. When Ms. Monday did not receive an immediate response, she cleared her belongings and left.

In support of her claim that she was entitled to unemployment benefits, Ms. Monday asserted that she was assured she would receive an increase in pay and knew that she was underpaid because of "some averages" she found online and knowledge of the wages of other floral designers she knew personally. Mohn's Florist disputed Ms. Monday's allegations claiming Ms. Monday would have received the average pay for the Edison, NJ area, which at the time was $15.35 per hour. Additionally, Mohn's Florist stated that Ms. Monday was given raises and bonuses in May of each year, and occasionally, also in December, dependent upon business performance. The Appellate Division found that because Mohn's Florist only asked for the weekend before responding to Ms. Monday's request for a raise, Ms. Monday in fact left her employment without good cause attributable to the work and was not entitled to unemployment benefits.

Ms. Monday appealed the determination denying her unemployment benefits. The Board of Review affirmed the decision stating that Ms. Monday's mere disappointment in not receiving a hoped-for raise absent a contractual obligation was not sufficient good cause attributable to the work and her resignation barred her from collecting benefits. The Board found that Mohn's Florist was not legally obligated to provide Ms. Monday a raise and thus, her voluntary leaving her employment for that reason was not based on good cause attributable to the work.

In affirming the Board's decision, the Appellate Division stated that there was no contractual obligation between Mohn's Florist and Ms. Monday to obtain a raise. The court disagreed with Ms. Monday's assertion that an employment verification form Mohn's Florist had completed for Ms. Monday during her employment indicating that Ms. Monday would receive a raise in January 2009 was equivalent to a contractual commitment to provide such raise. Instead, the court found that this employment verification form was not binding. Further, Ms. Monday failed to prove under N.J.A.C. 12:17-11.2(b)(2), that her wages were substantially less than those prevailing for similar work in the labor market area. The average figures provided by Ms. Monday were national figures, therefore the court found these did not adequately substantiate her claim of "substantially less" wages for the market areas as required by the statute.

The Appellate Division only intercedes an agency decision on unemployment benefits when it is arbitrary, capricious, or unsupported by substantial or credible evidence on the record as a whole. In this case, the Appellate Division saw no need to intercede because the statute does not include dissatisfaction with wages as "good cause attributable to the work." Ms. Monday failed to meet her burden to establish a right to unemployment compensation thus, the Board's decision denying her unemployment benefits was affirmed.

New Jersey Court Vacates and Remands Decision Disqualifying Employee From Receiving Unemployment Benefits for Failing to Provide Adequate Documentation of Familial Relationship with Deceased Grandfather

June 27, 2012

The New Jersey Appellate Division recently vacated a decision rendered by the Board of Review disqualifying the claimant from receiving New Jersey unemployment benefits. The Appellate Division directed that further proceedings concerning the claimant's eligibility for unemployment benefits be conducted in order to determine the relationship between the claimant and the deceased man that the claimant claimed to be his biological grandfather. In addition, the Appellate Division found it necessary to further develop facts surrounding the employer's policy on documentation of absences.

The Board of Review had previously found the claimant disqualified for New Jersey unemployment benefits when claimant's attendance of his grandfather's funeral caused him to exceed employer's attendance point program resulting in his termination. The Appellate Division found that the ambiguous nature of the evidence presented as to claimant's familial relationship to the deceased and the employer's policy on documentation of absences made it impossible to reach a final decision without further proceedings.

In this matter, Regis v. Board of Review, the claimant, Mr. Cleveland M. Regis, worked as a shipping clerk for five years. In November 2010, Mr. Regis requested leave to attend a funeral with his mother. Mr. Regis claimed that the decedent was his grandfather and was asked by his employer to provide the obituary upon his return. At the time his leave was approved, Mr. Regis was within the ten points permitted in his employer's attendance point program. Upon Mr. Regis' return to work, his employer requested additional written documentation from Mr. Regis because neither Mr. Regis nor his mother were mentioned anywhere in the obituary. Mr. Regis explained to his employer that he was left out of the obituary purposely by a disgruntled aunt, no other documentary evidence existed and that he "did not want to put his family business out there." In lieu of the requested additional written documents that Mr. Regis claimed did not exist, Mr. Regis provided his employer with names and telephone numbers of family members who could confirm his familial relationship to the decedent. There was no evidence on the record that the employer contacted these individuals before the employer terminated Mr. Regis for exceeding the ten points allowed in the attendance point program. Mr. Regis' only exceeded the allotted points because his employer retracted his approval of the leave requested to attend the funeral.

The Appeal Tribunal determined that Mr. Regis' "failure to provide the additional documents" constituted severe misconduct and upheld the initial determination that Mr. Regis was disqualified from receiving unemployment benefits. The Board of Review upheld the Appeal Tribunals determination finding that the cause of Mr. Regis' discharge was unapproved absences because he failed to furnish the necessary documentation that the funeral he attended was in fact that of his grandfather.

In reviewing this decision the Appellate Division stated that it could not conclude that the Board's final decision could have reasonably been reached on sufficient credible evidence because of the ambiguity regarding the familial relationship and the employer's policy on documentation of absences. Specifically, the court noted the Appeal Tribunal and the employer did not pursue Mr. Regis' offer of family members to confirm his relationship to the deceased. Although this duty would not be imposed on an employer, the court found there were not enough facts established to determine whether there was an alternative to confirm the relationship. The court also noted that the Board of Review failed to identify if it was severe misconduct for Mr. Regis to be absent without proving the legitimacy of his absence. Due to the ambiguity of these crucial facts in the record, the Appellate Division vacated the lower court's ruling and remanded the case.

Claimant Not Required to Repay Unemployment Compensation Benefits Improperly Paid to Him

May 18, 2012

The New Jersey Appellate Division recently reversed a decision of the Appeal Tribunal and Board of Review finding the claimant was not liable to refund improperly paid unemployment benefits in the amount $24,676. The Appeal Tribunal and Board of Review previously found that the claimant's receipt of unemployment benefits were invalid because New Jersey unemployment benefits law prohibits the claimant from included his elected position in the base period to determine his eligibility for benefits. The Court disagreed that based upon non-fraudulent nature of the overpayment of the unemployment benefits, the claimant should not be required to repay the unemployment benefits he collected in the amount of $24,676.

In Eckensberger v. Board of Review, the claimant Mr. Dale Eckensberger, Sr. worked as an elected paid fire commissioner in the Township of Woodbridge (Woodbridge) from March 2005 through March 2008. Mr. Eckensberger simultaneously worked as a janitor at Iseling Chemical Hook & Ladder Co. until February 2008. On May 11, 2008, Mr. Eckensberger filed for unemployment compensation benefits, was found eligible for benefits without disqualification and received such benefits from May 17, 2008 to March 20, 2010. Mr. Eckensberger established a regular base year for his benefits from January 1, 2007 through December 31, 2007, taking into account both his work as a Woodbridge fire commissioner and as a janitor for Iseling Chemical Hook & Ladder Co. However, during that one-year period, he only worked for Iseling eight weeks and earned a total of $3374. On September 22, 2009, Mr. Eckensberger filed for Social Security disability benefits and was deemed disabled on August 1, 2009, eligible to receive disability benefits starting January 2010.

Woodbridge appealed the Board's decision as to Mr. Eckensberger's unemployment benefits on November 21, 2009. The Appeal Tribunal found that under New Jersey's Unemployment Compensation Law (N.J.S.A. 43: 21-1 to 24.30), a claimant's employment as an elected official could not be considered in a determination for unemployment benefits. On October 27, 2010, Mr. Eckensberger's unemployment claim was deemed invalid because his position as an elected Woodbridge fire commissioner had been considered in the determination. The Director of the Division of Unemployment Compensation issued a request for refund in the amount of $24,676.

In reviewing the New Jersey unemployment benefits determination, the Appellate Division stated a claimant is liable to repay unemployment benefits if they were received fraudulently, through non-fraudulent nondisclosure or misrepresentation, or for any other reasons while the claimant was not eligible for benefits (N.J.S.A. 43:21-16(d)). Here, Mr. Eckensberger may be permitted a waiver of the repayment obligation because the overpayment was non-fraudulent and he is disabled and no longer to work. New Jersey unemployment benefits law allows the Director to waive a repayment obligation for those reasons or if a claimant would face economic hardship despite a reasonable repayment schedule.

In light of the non-fraudulent nature of Mr. Eckensberger's overpayment and his current disability status, the Appellate Division remanded the case to the Director to render a final decision on Mr. Eckensberger's waiver request within sixty days.

QUITING WORK TO CARE FOR CHILDREN DISQUALIFIES CLAIMANT FROM RECEIVING NEW JERSEY UNEMPLOYMENT BENEFITS

March 30, 2012


The New Jersey Appellate Division recently affirmed a Board of Review decision disqualifying a claimant from receiving New Jersey unemployment benefits finding that the claimant voluntarily left her employment without good cause attributable to the work.

In the matter Damaris Medina v. Board of Review Department of Labor and the City of Camden, the claimant was denied New Jersey unemployment benefits as a result of quitting her job because her employer would not accommodate her request to change her work hours so she could drive her children to school and still get to work on time. Ms. Medina was employed in the position of a clerk from August 12, 2002 through March 3, 2010 with the City of Camden. For the approximately the first six years of her employment, Ms. Medina's shift began at 8:30 a.m. In June, 2008, the City of Camden changed her start time to 9:00 a.m. In June, 2009, Ms. Medina requested that she return to a shift be changed to 9:00 a.m. because the earliest that she could drop her kids to school was 8:15 a.m. and this did not give her enough time to get to work at 8:30 a.m.

The City of Camden denied Ms. Medina's request and began disciplining her for arriving at work a half-hour late each day. Eventually, Ms. Medina retained a New Jersey employment lawyer to represent her in the employment dispute. Ms. Medina's attorney met with representatives of the City of Camden, which resulted in Ms. Medina and the City of Camden entering into a settlement agreement. The terms of settlement agreement included that Ms. Medina would be involuntarily separated from her employment effective March 3, 2010 and the City of Camden would not contest her unemployment benefits application and that the City of Camden would cooperate with her in connection with unemployment benefits application.

Despite the settlement agreement, the Deputy disqualified Ms. Medina from receiving New Jersey unemployment benefits finding that she left work voluntarily. New Jersey Unemployment Compensation law requires that a claimant show that he or she voluntarily quit work for "good cause attributable to the work" and that "good cause" will exist if the cause is "sufficient to justify an employer's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Applying this standard, the Deputy found the having to quit a job because the employer would not accommodate an employee's children's school schedule may be valid, but is a personal reason. Because they found that Ms. Medina's reason for leaving her job was personal, it did not constitute good cause attributable to the work.

The Appellate Division noted that although the City of Camden did not contest Ms. Medina's application for New Jersey unemployment benefits, the decision as to her eligibility must be based upon law, not a private agreement between an employer and an employee. This case reminds unemployment benefits claimants that they cannot enter into agreements with their former employers to receive unemployment benefits when the claimant would otherwise be ineligible to receive them. Even if an employer is willing to agree to not challenge a former employee's application for unemployment benefits, the Department of Labor and New Jersey Courts make the final determination and that the determination will be based upon New Jersey Unemployment Compensation law.

Employee Who Loses Job While In Jail Held Ineligible For New Jersey Unemployment Benefits

March 9, 2012

The New Jersey Appellate Division recently held that a claimant who was terminated because she was unable to work for a period of less than two weeks due to being incarcerated on criminal charges is not eligible to receive New Jersey unemployment benefits.

In the matter of Crystal Mandall v. Board of Review Department of Labor, NJ Team Dental Center, PA, the claimant was employed as a dental assistant with New Jersey Team Dental Center of Old Bridge, New Jersey, from November, 2007 until her termination in April, 2010. On April 20, 2010, Ms. Mandall was arrested on several criminal charges that caused her to become incarcerated until May 1, 2010.
While in jail, Ms. Mandall kept in touch with her employer and promised them that she would return to work as soon as she was released from jail. When she was released from jail on May 1, 2010, Ms. Mandall sent a text message to her employer advising them of her release and that she would return to work on the next work day. In response to the text message, NJ Team Dental Center advised Ms. Mandall that her position had been filled as a result of her being unable to come to work for almost two weeks.

On May 23, 2010, Ms. Mandall applied for unemployment benefits. Ms. Mandall's claim for New Jersey unemployment benefits was denied because the New Jersey Department of Labor found that she had left work voluntarily without good cause attributable to the work. Ms. Mandall appealed the decision, but the Appeal Tribunal and the Board of Review both affirmed the Deputy's initial determination disqualifying her from receiving New Jersey unemployment benefits.

In affirming the decision to disqualify Ms. Mandall from receiving New Jersey unemployment benefits, the Appellate Division cited N.J.S.A. 43:21-5(a) of the New Jersey Unemployment Benefits Law, which reads that a claimant who leaves work "voluntarily without good cause attributable to such work" will be disqualified from receiving New Jersey unemployment benefits. The Appellate court noted in their decision that the New Jersey Unemployment Benefits law was amended in 1961 to require that "good cause" must be attributable to the work. The Appellate court stated that the fact Ms. Mandall lost her job due because she was incarcerated and was unable to make bail had no relationship to her work as a dental assistant. As a result of these facts, the Appellate Division affirmed the Department of Labor's decision to disqualify Ms. Mandall from receiving New Jersey unemployment benefits.

As a result of the decision, the Appellate court required Ms. Mandall to repay the New Jersey Department of Labor in the amount of unemployment benefits she received because she was held not to be entitled to receive them. The Appellate Division cited to N.J.S.A. 43:21-16(d) of the New Jersey Unemployment benefits law which requires a person who has received unemployment benefits when not entitled to do so is obligated to repay them even if he or she received the unemployment benefits in good faith.

CLAIMANT HELD INELIGIBLE FOR UNEMPLOYMENT BENEFITS FOR VOLUNTARILY QUITING BEFORE RECEIVING APPROVAL OF TRANSFER REQUEST

February 24, 2012


The New Jersey Appellate Division recently affirmed a Board of Review decision disqualifying a claimant from receiving New Jersey unemployment benefits for voluntarily quitting her job without good cause attributable to the work.

In the matter of Lydia Oladimeji v. Board of Review, New Jersey Department of Labor and ARC of Middlesex, the claimant, Ms. Oladimeji, was employed as a program specialist for the Association of Retarded Citizens ("ARC") of Middlesex County. On January 8, 2010, Ms. Oladimeji requested a job transfer to a group home position so that she could attend nursing school during the day. After requesting the job transfer, Ms. Oladimeji testified that she did not receive any definitive response regarding whether the transfer had been denied or approved. Ms. Oladimeji further testified that she was told that to write a letter advising that she would no longer be available for work as of January 25, 2010 for personal reasons. ARC received the letter and accepted it as a letter of resignation. ARC testified that they advised Ms. Oladimeji that her request for a transfer would take time and that she would have to have an interview in order to be transferred to a new position. ARC disputed Ms. Oladimeji's testimony that she was told by her employer to resign from her employment.

In its decision to disqualify Ms. Oladimeji from receiving New Jersey unemployment benefits, the Appeal Tribunal concluded that Ms. Oladimeji did not begin the process early enough for a job opening to occur and that the claimant could have preserved her job by delaying her enrollment into nursing school for a later session after a job transfer became available. The Appeal Tribunal noted that N.J.S.A. 43:21-5 disqualifies a claimant from receiving New Jersey unemployment benefits if he or she leaves work in order to further their education or prepare themselves for another type of work. Based upon their findings of fact and its application of New Jersey unemployment benefits law, the Appeal Tribunal held that Ms. Oladimeji left work voluntarily without good cause attributable to the work. The Board of Review upheld the Appeal Tribunal's decision.

In reviewing the Board of Review and Appeal Tribunal's decision, the Appellate Division stated that its role in reviewing an administrative agency's decision is limited and that it will not reverse an administrative agency's decision unless there is a showing that it was arbitrary, capricious or unreasonable, that it lacked fair support in the evidence, or that it violated legislative polices. The Appellate court further stated that the record fully supported the Appeal Tribunal's determination that the claimant's testimony lacked creditability that she did not voluntarily resign her employment and that it was not their role to evaluate the creditability of witnesses. As a result, the Appellate Division stated that the Appeal Tribunal's determination was reasonably made and that the claimant was ineligible to receive New Jersey unemployment benefits because she left work voluntarily without good cause attributable to the job.

GOOD FAITH MISTAKE OF RECEIVING DOUBLE UNEMPLOYMENT BENEFITS IS NO DEFENSE

February 6, 2012


The New Jersey Appellate Division recently affirmed a decision of the Appeal Tribunal and the Board of Review denying a claimant from receiving New Jersey emergency unemployment compensation under the Emergency Unemployment Compensation Act of 2008, 26 U.S.C.A. 3304 because the claimant collected unemployment benefits from New York for the same time period. As a result, the claimant was ordered to refund a total of $15,300 in New Jersey unemployment benefit payments that she received for the period of time that she was also collecting New York unemployment benefits.

In the unpublished decision of Marasco v. Board of Review Department of Labor and AT&T Wireless, the claimant, Kimberly Ann Marasco, was employed in several different positions in New Jersey and New York from the period 2006 to 2008. The employment positions included working for Spherion Professional Services in New Jersey, AT&T in Morristown, New Jersey and Tact Medical Staffing in New York City. After being laid off from working at Tact Medical Staffing for approximately one month, Ms. Marasco filed for New Jersey unemployment benefits on February 1, 2009. After her New Jersey unemployment benefits had exhausted by in July, 2009, Ms. Marasco then applied and became eligible to receive emergency unemployment compensation under the Emergency Unemployment Compensation Act of 2008. Ms. Marasco exhausted the maximum emergency unemployment compensation she could receive in January 23, 2010, which totaled $15,300.

Thereafter, it was determined by the New Jersey Division of Unemployment and Disability Insurance that Ms. Marasco was entitled to receive regular unemployment benefits from the State of New York and informed the New York unemployment benefit authorities to back date the regular payments to July 20, 2009. As a result, Ms. Marasco collected benefits from New York for the same time period that she had also been collecting emergency unemployment compensation from New Jersey.

After Ms. Marasco began receiving unemployment benefits from New York, the New Jersey Division of Unemployment then reexamined her application for New Jersey emergency unemployment compensation and found that she was not entitled to receive these benefits because she was receiving New York unemployment benefits. As a result, Ms. Marasco was ordered to refund $15,300 to the State of New Jersey. Ms. Marasco applied the determination.

The Appeal Tribunal and Board of Review both determined that Ms. Marasco was ineligible to receive the New Jersey emergency unemployment benefits because she received New York unemployment benefits for the same period. In her appeal, Ms. Marasco argued that she did not intentionally seek to receive double benefits, the error was made by the State of New Jersey and that it would be unfair and create a great financial hardship on her if she was forced to refund the $15,300 back to New Jersey.

While recognizing that Ms. Marasco did not commit any fraud in connection with her claim for New Jersey unemployment benefits, New Jersey unemployment law was clear that was not legally entitled to receive the benefits and that the unemployment laws mandate that she make full repayment of the unemployment benefits she received that she was not entitled. The fact that Ms. Marasco acted in good faith was of no moment to the Appellate Division and she now must return $15,300 in overpaid unemployment benefits back to New Jersey.

Asking Family and Friends About Jobs Is Not Enough To Be Actively Seeking Work To Receive New Jersey Unemployment Benefits

January 19, 2012

The New Jersey Appellate Division recently affirmed an Appeal Tribunal and Board of Review decision that the claimant was disqualified for unemployment benefits for failing to actively see work as required by N.J.S.A. 43:21-4(c)(1).

In affirming the decision of the Appeal Tribunal, the Appellate Division noted that New Jersey unemployment benefits law places the burden of proof on the claimant to establish that they have met the eligibility requirements to receive unemployment benefits. The Appellate Division stated that:

Generally, a claimant is eligible to receive benefits if he or she is able to work, and is available to work, and has demonstrated to be actively seeking work. To qualify for benefits, a claimant must make more than minimal efforts to find employment. A claimant must make a sincere effort to obtain employment either in his usual type of work or in such other suitable work as he may be able to do.
In reaching their decision, the Appellate Division reviewed the claimant's testimony during the hearing before the Appeal Tribunal in which he testified that his job search had consisted of asking family and friends who had different businesses such as the YMCA. The claimant was employed as a full-time Nighttime Supervisor for the food service department at William Paterson University from January 19, 2010 until his last day of work at May 15, 2010. The claimant testified that he works during the school year and was laid off on May 10, 2010 because there was no work available during the summer recess. Based upon the claimant's testimony concerning his job search efforts, the Appeal Tribunal held that the claimant was disqualified from receiving unemployment benefits from May 23, 2010 through July 3, 2010 because he was not actively seeking work as required by N.J.S.A. 43:21-4(c)(1).


This case reminds those who make a claim for New Jersey unemployment benefits as a result of losing their job that they better be actively seeking work or they will not receive the benefits. The law requires a sincere effort to find work, which should include at minimum, applying for jobs, filing out applications and trying to get interviews for vacant positions. Merely calling a friend or family member and asking if they have a job is clearly not enough to satisfy the burden to establish eligibility for New Jersey unemployment benefits.