Articles Posted in Unemployment Discrimination

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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.

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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.