Articles Posted in Unemployment Benefits

On August 24, 2018, New Jersey has passed Bill A-3871, which amends N.J.S.A. 43:21-5 of the New Jersey Unemployment Insurance Law by eliminating the severe misconduct disqualification as well as other changes to New Jersey unemployment laws.  One of the key changes in the bill is revising the definition of legal definition of what constitutes misconduct, along with modifying the misconduct disqualification period for misconduct was also changed in the new law from 7 weeks to 5 weeks.

Under the new unemployment law, misconduct is now defined as follows:

[b]ehavior, other than gross misconduct, conduct which is improper, 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 refusal without good cause, to comply with the employer’s lawful and reasonable rules made known to the employee or a deliberate 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.

A New Jersey Appellate Division has reversed a Board of Review decision denying an employee the right to have an appeal hearing after failing to register and appear for the scheduled appeal hearing.  This decision stems from the Department of Labor, Unemployment Division, recent change in its procedures that now requires the employee and employer to pre-register one day before the scheduled hearing before the Appeal Tribunal.  In this case, the employee’s unemployment appeal was dismissed without any opportunity to have an appeal hearing because of the employee’s failure to call and register.

In the case entitled Jeff Randall v. Board of Review and D&C Tire Pros, Inc., the claimant, Mr. Randall filed his claim for unemployment benefits in January, 2017 as a result of the termination of his employment with D&C Tire Pros, Inc.  The initial determination disqualified Mr. Randall from receiving unemployment benefits by finding that Mr. Randall was discharged for simple misconduct in connection with the work.  The simple misconduct determination resulted in disqualifying Mr. Randall from receiving unemployment benefits from the period January 22, 2017 through March 18, 2017. Mr. Randall appealed the Deputy’s initial determination to the Appeal Tribunal by arguing that he was not terminated from his employment due to simple misconduct connected with the work.

In response to his appeal, Mr. Randall received a Notice of Telephone Hearing to take place on April 6, 2017 before an Appeal Tribunal Hearing Examiner.  The Notice of Telephone Hearing reads as follows:

The New Jersey Appellate Division recently held that an employee, who quit her job in response to being told that she would be fired, can collect unemployment benefits.

In the case Cottman v. Bd. of Review, Dkt. No. A-1908-16T2, 2018 N.J. Super. LEXIS 52 (App. Div. March 29, 2018), the Appellate Division reversed the Board of Review’s decision that found Ms. Cottman ineligible for quitting her job after her child care arrangements fell through requiring her to ask for the day off.  Ms. Cottman was a parent of three children all of whom had special needs and worked the night shift for Quality Management Associates as a residential counselor.  When Ms. Cottman’s babysitter unexpectedly quit, Cottman as per company policy, tried to find a coworker to fill in for her but was unsuccessful finding anyone to work for her. As a result, Ms. Cottman told her supervisor that she would not be able to make it to work for her shift because there was no one to take care of her kids.  Her supervisor responded that she “might” be fired and should not “play with [her] time.”  Upon being told she might be fired, Cottman instead resigned.

When Ms. Cottman subsequently applied for unemployment benefits, she was initially denied after it was determined she had left her work voluntarily and without good cause attributable to her work.  The Appeal Tribunal cited the New Jersey Administrative Code (N.J.A.C.) which includes “care of children or other relatives” in the list of personal reasons that will ordinarily disqualify someone from receiving unemployment benefits. The Board of Review affirmed the decision.

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.

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.

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.

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.

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 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.

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.