Unemployment Appeals

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

March 30, 2012 | Smith Eibeler LLC

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.

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

March 9, 2012 | Smith Eibeler LLC

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.

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

February 24, 2012 | Smith Eibeler LLC

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.

GOOD FAITH MISTAKE OF RECEIVING DOUBLE UNEMPLOYMENT BENEFITS IS NO DEFENSE

February 6, 2012 | Smith Eibeler LLC

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.

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

January 19, 2012 | Smith Eibeler LLC

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.

Two Recent Unemployment Appeals Dismissed for Late Filing Without Good Cause

December 17, 2011 | Smith Eibeler LLC

Two recent unpublished unemployment benefits decisions remind New Jersey unemployment benefit applicants that they will be prohibited from appealing of their unemployment decision if they do not file their appeal timely and without good cause.

In the matter of Alvarez v. Board of Review an Advanced Automotive, Inc., the Appellate Division affirmed the Board of Review’s decision holding an employee ineligible for unemployment insurance benefits on the ground that his appeal was filed untimely. In this case, the employee received a Notice of Determination that identified the date of mailing as April 19, 2010. The Notice of Determination further stated that the employee was disqualified from receiving unemployment benefits because he failed to work the available hours provided to him by his employer. On May 4, 2010, the employee filed his appeal. In the telephone hearing with the Appeal Tribunal, the employee admitted that received the Notice of Determination two or three days after the mailing date and that he did not file his appeal within the ten day time period because he did not speak English and had to find someone to write him his appeal letter in English. In upholding the Board of Review’s decision, the Appellate Division held that the employee failed to show that his untimely appeal was for “good cause.” N.J.A.C. 12:20-3.1(i) reads that good cause for an untimely filing of an appeal for unemployment benefits will only be found if 1) “The delay in filing the appeal was due to circumstances beyond the control of the appellant”; or 2) “The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.” Because the employee failed to argue that his untimely appeal was caused by one of these two circumstances, the Appellate Division dismissed his appeal without addressing the substantive merits of the employee’s appeal.

In the matter of Waites v. Board of Review, the Appellate Division also affirmed a Board of Review’s decision to disqualify an employee’s appeal of unemployment benefits because the appeal was not filed timely. In this case, the employee received a Notice of Determination that identified the date of mailing as July 22, 2010. The Notice of Determination disqualified the employee from receiving unemployment benefits because the employee left work voluntarily without good cause attributable to the work. Consistent with N.J.S.A. 43:21-6(c), the employee therefore had to file her appeal before August 1, 2010. The employee’s appeal was postmarked August 10, 2010 and her letter of appeal did not address any good cause reasons for the late filing. Because she failed to present any argument or facts showing why the appeal was filed late, the Appellate Division affirmed the Board of Review’s decision without addressing any of the substantive arguments made by the employee that she did not leave work voluntarily.

Communication Breakdown with Employer Does Not Result in Employee’s Disqualification of Unemployment Benefits

November 22, 2011 | Smith Eibeler LLC

The Appellate Division recently overturned the Board of Review holding that the fact the claimant was not more aggressive in following up with his employer regarding his employment status should not have disqualified him from receiving unemployment benefits.

In the matter of Hutchinson v. Board of Review, the claimant, Frank Hutchinson, was employed as a driver with Elite Transportation of New Jersey, Inc. Mr. Hutchinson testified that his company vehicle broke down twice in three days, the first being on January 4, 2010 and the second on January 6, 2010. It was extremely cold on January 6, 2010, with the temperature being approximately twenty-one degrees at the time the company vehicle had broken down. After the company vehicle’s engine would not start, Mr. Hutchinson called his employer and informed the dispatcher that the car was broken down and that he needed emergency aid to dispatched to his location. When no emergency aid arrived, the claimant again called his employer and this time spoke with the owner, Vonda. Vonda instructed Mr. Hutchinson to remain in his car until emergency assistance arrived. Mr. Hutchinson responded that he did not want to wait any longer because of how cold it was and the fact he had to wait for over an hour-and-a-half for emergency assistance to arrive when the vehicle had broken down on January 4, 2010. After waiting for emergency assistance for a few more minutes, Mr. Hutchinson again called Vonda. This third conversation resulted in an argument as a result of Mr. Hutchinson advising Vonda that he was leaving the car and taking the train home. During the argument, Vonda did not ask Mr. Hutchinson to come to the office or call in for another assignment.

The following day, Mr. Hutchinson called Vonda to discuss his work status. Vonda responded that she would have someone call him back, but no one returned his call. As a result, Mr. Hutchinson believed that his employer no longer wanted or needed his services and therefore he filed for unemployment benefits.

CLAIMANT WHO VOLUNTARILY LEFT HER EMPLOYMENT BECAUSE OF A HOSTILE WORK ENVIRONMENT IS ELIGIBLE FOR UNEMPLOYMENT BENEFITS

November 4, 2011 | Smith Eibeler LLC

The New Jersey Appellate Division recently affirmed a Board of Review decision finding that an employee who quit her job as a result of a hostile work environment is eligible for unemployment benefits. In the matter of Allied Interior Contractors v. Board of Review, the claimant quit her job because of a pattern of sexist, vulgar and degrading comments regarding woman that were made by the President of the company in her presence.

The Appeal Tribunal initially disqualified the claimant from receiving unemployment benefits by finding that she left her employment without good cause attributable to her employment. Specifically, the Appeal Tribunal concluded that the claimant failed to show that she left her employment for good cause because none of the offensive comments were directed at her and because she had never complained to her employer regarding her complaints of a hostile work environment. The Appeal Tribunal went as far as to state that the claimant “condoned” the behavior by failing to inform the employer that she found the remarks offensive.

In reversing the Appeal Tribunal’s decision disqualifying the claimant from receiving unemployment benefits, the Board of Review relied upon on the seminal New Jersey case, Lehman v. Toy ‘R’ Us, Inc. 132 N.J. 587 (1993), which defines a hostile work environment based upon sexual harassment. In Toy ‘R’ Us, the New Jersey Supreme Court defined a hostile work environment based upon sexual harassment as discriminatory conduct that a reasonable person of the same sex in the plaintiff’s position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment. With this legal standard in mind, the Board of Review noted that evidence of sexual harassment directed at woman at the workplace other than the claimant is still relevant to the character of the work environment and the effect it had on the claimant. The Board of Review took further note that the President of the company routinely reminded his employees that they could leave if they did not like his comments as a legitimate reason justifying the claimant’s failure to complain about the working conditions.

NEW JERSEY UNEMPLOYMENT BENEFITS LAW UPDATE – SEPTEMBER, 2011

September 14, 2011 | Smith Eibeler LLC

The New Jersey Appellate Division recently affirmed three (3) final decisions of the Board of Review disqualifying the claimants in these cases from receiving unemployment benefits.

In the matter of Walter v. Board of Review, the Board of Review disqualified the claimant, John P. Walter, from receiving unemployment benefits finding that he voluntarily left his job without good cause attributable to the work. Mr. Walter began his employment with Wawa as an Assistant Manager in July, 2003 and was promoted to the position of General Manager in May, 2007. As a result of his mid-year evaluation in 2009, Mr. Walter was told that his work performance required improvement or he could face a possible demotion. According to Wawa, Mr. Walter’s work performance did not improve and on December 14, 2009, he was advised that he would be demoted to Assistant Manager. As a result of the demotion, Mr. Walter resigned his employment because he believed the demotion was unfair and personal. In upholding the Board of Review’s determination disqualifying Mr. Walter from receiving unemployment benefits, the Appellate Division held that there was substantial credible evidence that Mr. Walter left work without good cause attributable to the work.

In the matter of Prosceno v. Board of Review, the Appellate Division affirmed the Board of Review’s determination disqualifying the claimant, Carol Prosceno, from receiving unemployment benefits by finding that she left work voluntarily without good cause attributable to the work. In this case, Ms. Prosceno worked as a sales and cash register clerk for Shop-Rite supermarket in Cape May County from August, 2007 through September, 2008. On September 5, 2008, Ms. Prosceno underwent lung surgery, which she anticipated would put her out on disability for two or three months. She was then in a car accident in October, 2008, sustaining injures to her head, back, neck and ribs. On December 15, 2008, her lung surgeon determined that she had recovered from the surgery. Ms. Prosceno, however, stated that because she did not have medical insurance, she could not find a doctor in New Jersey to treat the injuries she sustained from the car accident. As a result, she moved to South Carolina, where she was able to receive medical treatment for her injuries and obtain living accommodations. Her doctor in South Carolina cleared her to return to work on August 19, 2009. At that time, she was advised by Shop-Rite that her position was no longer available for her. The Appellate Division upheld the Board of Review’s determination finding that the claimant’s decision to move to South Carolina was for personal financial and medical reasons that were not attributable to her work at Shop-Rite and therefore was disqualified from receiving unemployment benefits.