Articles Posted in Unemployment Appeals

Published on:

The New Jersey Supreme Court will soon decide whether someone who leaves a job for another job that never commences will still be eligible for unemployment benefits.

Under New Jersey Unemployment Benefits law, an individual is disqualified for unemployment benefits if he or she has left work voluntarily without good cause attributable to the work.  N.J.S.A. 43:21-5(a).  In 2015, due to increased political pressure to fix what was commonly referred to as the “Black Hole” of New Jersey unemployment law, the New Jersey legislature specifically amended N.J.S.A. 43:21-5(a) to assure that employees are no longer found to be ineligible for leaving one job for an equal or better job, but lose the subsequent job prior to the expiration of the 8 week employment requirement.  Specifically, the Legislature stated that there will not be a disqualification if the individual “voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer, except that if the individual gives notice to the first employer that the individual will leave employment on a specified date and the first employer terminated the individuals before that date, the seven-day period will commence from the specified date.”

But what happens if the new job is rescinded, due to no fault of the employee, before the employee ever starts his or her first day of work?  This is exactly what happened in the case entitled McClain v Board of Review. Patricia McClain had been a teacher at the Learning Edge Academy, in Galloway Township. On Oct. 12, 2015, she accepted an offer to teach at another school, in Egg Harbor, to start within seven days after she left her former employer. Unfortunately, a day after McClain quit her job at the Learning Edge, her job offer at  Kids Choice was rescinded.  As it turned out, the teacher she was supposed to replace, returned to the school, thus eliminating the need for the new position, and a new job for Ms. McClain.  Ms. McClain, now finding herself unemployed, applied for unemployment benefits, for which she was denied by the State Department of Labor’s Board of Review.

Published on:

Our New Jersey employment law office routinely receives inquiries from unemployed workers who are denied their claim for unemployment benefits after needing to leave their job as a result of a medical condition.  In some situations, the worker should be entitled to unemployment benefits, while in others, they should not receive them.  The answer to this inquiry is not always straight forward.

A worker must show that although they can no longer perform their current job because of the medical condition, they are able to medically work in another job position. In other words, they are not disabled.  Instead, they have a medical condition that prevents them from performing the essential functions of their current employment.

Under New Jersey Unemployment Law, a person will be disqualified from receiving unemployment benefits if he or she leaves work voluntarily and without good cause attributable to such work.  The burden is on the unemployed worker to prove he or she left their employment for good cause attributable to such work.  Good cause attributable to the work has been defined as cause sufficient to justify the employee’s voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.

Published on:

The New Jersey Appellate Division recently found that a claimant should be eligible for unemployment benefits for weeks that she attempted to claim unemployment benefits but was unable to do so due to the Division of Unemployment and not due to any fault of her own.

In the case of Smith v. Board of Review, the employee, Conchita Smith, was laid off from her job with the United States House of Representatives on March 15, 2013.  Despite being terminated a month early, Ms. Smith waited until April 21, 2013 to file for unemployment benefits.  Ms. Smith claimed that she was waiting for her employer’s instructions on how to file for unemployment benefits, although she admitted that she was familiar with the unemployment process.  After being found eligible for unemployment benefits, Ms. Smith failed to report her claim for unemployment every two weeks and, as a result, was found to be ineligible for benefits for those weeks.  However, during at least some of the weeks, Ms. Smith claimed that she was unable to report her claim due reasons caused by the Division of Unemployment and through no fault of her own.  For example, Ms. Smith claimed that she was placed on hold for inordinate periods of time (only to be disconnected) and the online system persistently rejected her Personal Information Number that had been provided her to contact the Division and report her claim for unemployment benefits.

The Court ruled in Ms. Smith’s favor by remanding the matter back to the Appeal Tribunal for further proceedings regarding her eligibility for unemployment benefits for the weeks in which Ms. Smith attempted to reach the Division but was unable to do so through no fault of her own.   The Court found that Ms. Smith should be entitled to unemployment benefits for any weeks she was unable to claim due to the fault of the Division of unemployment.

Published on:

The New Jersey Appellate Division has ruled that an employee is not disqualified from receiving unemployment benefits for refusing to submit to a flu vaccination policy for purely secular reasons.

In the case of June G. Valent v. Board of Review, Department of Labor, the employee, Ms. Valent, was employed as a Registered Nurse with Hackettstown Community Hospital (“the Hospital”) from May 11, 2009 through her termination on January 2, 2011. On September 21, 2010, the Hospital’s corporate entity, Adventist Health Care, Inc., implemented a “Health Care Worker Flu Prevention Plan” that required their employees to have a flu vaccine unless there was a documented medical or religious exemption.

Ms. Valant refused to be vaccinated with the flu shot and did not provide her employer with any medical or religious reason.   Although Ms. Valant offered to wear a mask during flu season as a concession for not having to be vaccinated, the Hospital declined her offer and terminated her employment on the basis that she violated her employer’s flu vaccination policy.  If terminating Ms. Valant was not enough, the Hospital then challenged Ms. Valant’s claim for unemployment benefits by claiming that she committed misconduct (“improper, intentional, connected with one’s work, malicious, and within the individual’s control, and is either a deliberate violation of the employer’s rule or a disregard of standards of behavior which the employer has the right to expect of an employee.”) in her refusal to permit her employer to inject her with the flu vaccination.  The Appeal Tribunal rejected this argument and found that Ms. Valant’s refusal to follow an employer’s policy that “was not unreasonable” and approved her claim for unemployment benefits.  The Board of Review, however, reversed the Appellate Division and disqualified Ms. Valant on the basis of simple misconduct.  In the decision, the Board of Review found that the hospital’s policy requiring flu vaccinations was not unreasonable, and therefore Ms. Valant should be disqualified from receiving unemployment benefits.

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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.