Articles Posted in Unemployment Discrimination

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:

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.

President Obama’s American Jobs Act proposes making it illegal to discriminate in employment on the basis of an individual’s unemployment status. As you may have suspected, this part of the bill has received support and criticism from both sides of the political spectrum.

Those who support the bill argue that workers who have lost their job due to no fault of their own should not be foreclosed from job opportunities on this basis alone. A leading proponent of passing a law to prohibit unemployment discrimination is the National Employment Law Project (“NELP”), who published a Brief Paper on July 12, 2011, entitled Hiring Discrimination Against the Unemployed: Federal Bill Outlaws Excluding the Unemployed From Job Opportunities, as Discriminatory Ads Persist. The NELP believes that it is unfair, counterproductive and inconsistent with our nation’s values to permit open discrimination against the unemployed.

The NELP researched how prevalent open discrimination against the unemployed has become and identified a number of reputable employers and job placement firms who are openly advertising their exclusion of the unemployed in their employment ads. For example, a position with Allstate Insurance requires that the applicant “must be currently employed” and a position with Kelly Services that requires the applicant to be “currently employed.” The NELP believes that the bill has public support, citing to a recent poll conducted by the Hart Research Associates in June, 2011, that 90 percent of the respondents believe that the refusal to consider an unemployed job applicant as unfair.