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In yet another legislative win in favor of New Jersey workers, Governor Murphy has signed a bill eliminating the controversial severe misconduct disqualification for unemployment benefits.   As of Friday, August 24, 2018, the severe misconduct disqualification has been repealed from the New Jersey unemployment law.  The bill also makes other significant changes to unemployment law concerning misconduct.  The change of law is being viewed by plaintiff employment attorneys as another legislative victory for New Jersey employees.

The History of Severe Misconduct

The severe misconduct disqualification was first enacted into law in 2010 and created a new total disqualification of unemployment benefits as a more severe penality than that of simple misconduct’s temporary seven (7) week disqualification. Prior to the 2010, a claimant would be disqualified for six weeks if it was found that they committed misconduct and could only be totally disqualified from receiving unemployment benefits if it was found that the termination was for gross misconduct.  Gross misconduct is when the claimant is terminated as a result of committing a criminal act, such as stealing, assault and other conduct punishable by criminal law.

More than a year before #MeToo, a Select Task Force was created by President Obama to examine the problem of sexual harassment at the workplace. The Select Task Force consisted of a select group of outside experts who analyzed the causes and effects of workplace harassment and made recommendations what should be done to prevent it. The Select Task Force’s Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace was published in 2016 before the #MeToo movement.

The mission of the Select Task Force on the Study of Harassment in the Workplace was to determine the extent to which harassment impacts employees of various industries nationwide, as well as how best to mediate this behavior. The Task Force operated in conjunction with the United States Equal Employment Opportunity Commission (EEOC), and its eighteen (18) members include academics, lawyers, EEOC representatives, and other experts from all across the country.  The Select Task Force’s June 2016 Report outlined that analyzed the different factors that increase the risk of workplace harassment, how workplace harassment impacts employees and productivity, and how workplaces can both address and prevent the occurrence of harassment in their office. The eruption of movements have revealed the continuing epidemic of sexual harassment in the workplace which has caused an renewed interest in the report.

The report revealed that Equal Employment Opportunity Commission (EEOC) received approximately 30,000 charges of workplace harassment in 2015 alone. This statistic is even more shocking in light of the Select Task Force’s finding that only 25% of the victims report the harassment to their employers. In fact, reporting harassment to the employer is the least common response to harassment.  Victims of sexual harassment fear disbelief, inaction, or blatant retaliation by their superiors or the harasser.

The Appellate Division has denied an individual from proceeding with her unemployment appeal as a result of failing to appear for the scheduled Appeal Hearing.  In the matter of Boone v. Board of Review, Department of Labor and Workforce Development, and LSA Ventures, LLC, Respondents- No. A-2286-16T3, decided April 9, 2018, the claimant realized the day after the scheduled appeal hearing date, that she had misread the date of the hearing which had been scheduled for the previous day.  After the claimant was unable to obtain a rescheduled date from the Department of Labor, she appealed the decision requesting that she be provided the right to a new hearing as a result of her non-appearance.

The claimant, Sharon Boone, originally filed for unemployment benefits in September 2016.  At this first stage of the unemployment benefits process, Ms. Boone was found ineligible for benefits by the Deputy Director because she left her job voluntarily due to dissatisfaction with her working conditions.   Ms. Boone then appealed her original determination disqualifying her from receiving unemployment benefits and received notice on October 26, 2017 that a telephonic hearing would take place before the Appeal Tribunal, which is the next level in challenging a finding of ineligibility for unemployment benefits. The notice informed Ms. Boone that the hearing would take place on November 14, 2016, at 10:30 a.m. The notice also informed Ms. Boone in upper-case print that she was required to call the Appeals Office 15-30 minutes before the scheduled hearing to register for the hearing.   The notice also indicated that the appeal may be dismissed or that the claimant could be denied participation in the appeal if “you fail, without good cause, to follow these instructions.”

Unfortunately for Ms. Boone, she did not call the Appeals office on the appointed date and time and therefore, the hearing did not take place. The Appeals Tribunal found therefore, that because Ms. Boone had failed to participate in the telephonic hearing, her appeal was dismissed.  On November 15, Ms. Boone subsequently faxed a letter indicating that she had confused the dates and thought her appeal was to take place “today.”  She requested a new hearing date, but the Tribunal declined to reopen the decision.

The New Jersey Appellate Division recently reversed a decision of the Appeal Tribunal and the Board of Review disqualifying a claimant from receiving unemployment compensation benefits when he was forced to resign from his job. The Court disagreed with the prior determination that such a forced resignation was a voluntary separation from employment and instead found that the statement “you must resign,” made to the claimant by his supervisor, was really no different than “you’re fired.” The Court found that the employer’s actions amounted to a compelled resignation, which would not constitute a voluntary separation from employment and disqualification from receiving New Jersey unemployment compensation.

In Talmage Lord v. Board of Review, New Jersey Department of Labor and Crossmark Inc., the claimant, Mr. Talmage Lord, was employed by Crossmark Inc. Mr. Lord’s job duties included reseting merchandise on Crossmark’s retail stores in New Jersey and Pennsylvania. Mr. Lord was required by his employer to use his own car to travel to each store and perform his work. On June 3, 2009, Mr. Lord’s car broke down on his way home and the car was towed to a garage. Mr. Lord immediately informed his supervisor and he was excused from coming to work the following day, Thursday, June 4, 2009. On Thursday, Mr. Lord was informed that his car’s transmission was broken and he could not afford the cost of the repair. After failed attempts to borrow the money or find alternative transportation, Mr. Lord called his supervisor on Friday to inform him of the situation. Mr. Lord’s supervisor told him he “had to resign” from his employment “effective immediately.”

In its decision to disqualify Mr. Lord from receiving New Jersey unemployment benefits, the Appeal Tribunal concluded that Mr. Lord left his job because he was unable to obtain transportation that was needed to perform his job. The Appeal Tribunal noted that in cases bordering between discharge and voluntarily leaving, the person who initiates the action, which eventually leads to the separation, is the one responsible for breaking the employment relationship. The Appeal Tribunal found that Mr. Lord’s personal car troubles and not the statement from his supervisor that “he must resign” was the reason for the ending of his employment. Based upon this interpretation of the facts, the Appeal Tribunal concluded Mr. Lord left work voluntarily without good cause attributable to his work and was therefore ineligible for unemployment compensation benefits.

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