Articles Posted in Unemployment Benefits

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.