Unemployment Appeals

New Jersey Legislature Releases Proposed COVID-19 Employment Protections

March 16, 2020 | Smith Eibeler LLC

The New Jersey Assembly Democratic Caucus will introduce a package of 25 bills, each designed to address a different aspect of the impact from the novel coronavirus COVID-19 pandemic (“Coronavirus”). Some of these impacts are directly related to the Coronavirus, but many others are the downstream, unintended but unavoidable consequences of policies and practices instituted to combat further spread of the virus. Many of these policies and practices have focused on limiting or eliminating social interaction, wherever possible. While this may be the best method of stopping the spread of the virus, it creates additional problems in the context of employment rights and protections.

Many of the proposed bills in this package impact employment in ancillary ways, however three of the bills are specifically designed to provide employment protections. If passed, these bills would provide critical benefits for employees who are impacted by the Coronavirus pandemic, including providing payment of lost wages, provision of paid sick leave, and job protections for individuals who take leave. As is discussed in detail below, these proposed bills do not apply to all employees or all situations.

“Temporary Lost Wage Unemployment Program” (A-3846)

Can I Collect Benefits Due to Corona Virus-Related Layoff or Business Closing?

March 15, 2020 | Smith Eibeler LLC

Many businesses and schools have or will be closing due to the Corona-Virus. While some New Jersey workers can still perform their job duties and responsibilities from home, others cannot and will be temporarily or permanently separated from their employment. For those people who are separated from their employment for COVID-19 related reasons, there are various local, state or federal governmental run programs that provide for paid benefits to impacted workers. For New Jersey employees who find themselves unemployed due to COVID-19, they two programs that could provide for temporary relief are New Jersey Unemployment Insurance and the “Emergency Paid Leave Act of 2020” program that was passed into law late Friday night.

New Jersey Unemployment Insurance Law provides for unemployment benefits for employees who are separated from their work due to no fault of their own. Employees who are unable to perform their job duties and responsibilities at home during a Corona-Virus related business closing may be eligible to collect unemployment benefits if they meet all other eligible requirements, including the minimum earnings requirement. Benefits under the New Jersey Unemployment Insurance program are available up to 26 weeks per year. Eligible employees are paid 60% of his or her average weekly wage earned during the base year, with a maximum week benefit up to $713. The current maximum total benefit for one worker to receive is $18,538 for 26 weeks of unemployment.

Workers who become eligible to receive unemployment benefits are required to be show they are (1) able to work; (2) actively seeking work; (3) available for work: and did not refuse any offer of suitable work. While securing a new job during the Corona-Virus pandemic could prove very difficult, any person collecting unemployment benefits should still actively seek for work during their period of unemployment. This includes applying for any open and available jobs and keeping all documentation to prove he or she conducted a diligent job search efforts should the Department of Labor request the information relating to the job search.

What is “Misconduct” under New Jersey Unemployment Law?

October 15, 2018 | Smith Eibeler LLC

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.

Appellate Division Remands Employee’s Unemployment Appeal Dismissed For Failing to Register For Appeal Tribunal Hearing

September 13, 2018 | Smith Eibeler LLC

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:

Employee Eligible for Unemployment Benefits After Resigning Under the Threat of Imminent Termination

May 10, 2018 | Smith Eibeler LLC

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.

Misreading the Hearing Date Notice is Not Good Cause for Appeal of Unemployment Benefits

May 4, 2018 | Smith Eibeler LLC

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.

Unemployment Benefits for Job Switchers-the New Jersey Supreme Court Will Now Weigh In

March 16, 2018 | Smith Eibeler LLC

The New Jersey Supreme Court will soon decide whether someone who leaves a job for another job that never commences will still be eligible for unemployment benefits.

Under New Jersey Unemployment Benefits law, an individual is disqualified for unemployment benefits if he or she has left work voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). In 2015, due to increased political pressure to fix what was commonly referred to as the “Black Hole” of New Jersey unemployment law, the New Jersey legislature specifically amended N.J.S.A. 43:21-5(a) to assure that employees are no longer found to be ineligible for leaving one job for an equal or better job, but lose the subsequent job prior to the expiration of the 8 week employment requirement. Specifically, the Legislature stated that there will not be a disqualification if the individual “voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer, except that if the individual gives notice to the first employer that the individual will leave employment on a specified date and the first employer terminated the individuals before that date, the seven-day period will commence from the specified date.”

But what happens if the new job is rescinded, due to no fault of the employee, before the employee ever starts his or her first day of work? This is exactly what happened in the case entitled McClain v Board of Review. Patricia McClain had been a teacher at the Learning Edge Academy, in Galloway Township. On Oct. 12, 2015, she accepted an offer to teach at another school, in Egg Harbor, to start within seven days after she left her former employer. Unfortunately, a day after McClain quit her job at the Learning Edge, her job offer at Kids Choice was rescinded. As it turned out, the teacher she was supposed to replace, returned to the school, thus eliminating the need for the new position, and a new job for Ms. McClain. Ms. McClain, now finding herself unemployed, applied for unemployment benefits, for which she was denied by the State Department of Labor’s Board of Review.

Know Your Rights: Collecting Unemployment Benefits When Having to Quit A Job Because Of A Medical Condition

March 15, 2018 | Smith Eibeler LLC

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.

Employee Eligible For Unemployment Benefits For Weeks She Made Attempts To File Claim

August 7, 2016 | Smith Eibeler LLC

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.

Appellate Division: Employee Terminated for Refusing Flu Vaccination is Entitled to New Jersey Unemployment Benefits

April 14, 2016 | Smith Eibeler LLC

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.