New Jersey Employment Lawyers Blog

Two recent unpublished unemployment benefits decisions remind New Jersey unemployment benefit applicants that they will be prohibited from appealing of their unemployment decision if they do not file their appeal timely and without good cause.

In the matter of Alvarez v. Board of Review an Advanced Automotive, Inc., the Appellate Division affirmed the Board of Review’s decision holding an employee ineligible for unemployment insurance benefits on the ground that his appeal was filed untimely. In this case, the employee received a Notice of Determination that identified the date of mailing as April 19, 2010. The Notice of Determination further stated that the employee was disqualified from receiving unemployment benefits because he failed to work the available hours provided to him by his employer. On May 4, 2010, the employee filed his appeal. In the telephone hearing with the Appeal Tribunal, the employee admitted that received the Notice of Determination two or three days after the mailing date and that he did not file his appeal within the ten day time period because he did not speak English and had to find someone to write him his appeal letter in English. In upholding the Board of Review’s decision, the Appellate Division held that the employee failed to show that his untimely appeal was for “good cause.” N.J.A.C. 12:20-3.1(i) reads that good cause for an untimely filing of an appeal for unemployment benefits will only be found if 1) “The delay in filing the appeal was due to circumstances beyond the control of the appellant”; or 2) “The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.” Because the employee failed to argue that his untimely appeal was caused by one of these two circumstances, the Appellate Division dismissed his appeal without addressing the substantive merits of the employee’s appeal.

In the matter of Waites v. Board of Review, the Appellate Division also affirmed a Board of Review’s decision to disqualify an employee’s appeal of unemployment benefits because the appeal was not filed timely. In this case, the employee received a Notice of Determination that identified the date of mailing as July 22, 2010. The Notice of Determination disqualified the employee from receiving unemployment benefits because the employee left work voluntarily without good cause attributable to the work. Consistent with N.J.S.A. 43:21-6(c), the employee therefore had to file her appeal before August 1, 2010. The employee’s appeal was postmarked August 10, 2010 and her letter of appeal did not address any good cause reasons for the late filing. Because she failed to present any argument or facts showing why the appeal was filed late, the Appellate Division affirmed the Board of Review’s decision without addressing any of the substantive arguments made by the employee that she did not leave work voluntarily.

The Appellate Division recently overturned the Board of Review holding that the fact the claimant was not more aggressive in following up with his employer regarding his employment status should not have disqualified him from receiving unemployment benefits.

In the matter of Hutchinson v. Board of Review, the claimant, Frank Hutchinson, was employed as a driver with Elite Transportation of New Jersey, Inc. Mr. Hutchinson testified that his company vehicle broke down twice in three days, the first being on January 4, 2010 and the second on January 6, 2010. It was extremely cold on January 6, 2010, with the temperature being approximately twenty-one degrees at the time the company vehicle had broken down. After the company vehicle’s engine would not start, Mr. Hutchinson called his employer and informed the dispatcher that the car was broken down and that he needed emergency aid to dispatched to his location. When no emergency aid arrived, the claimant again called his employer and this time spoke with the owner, Vonda. Vonda instructed Mr. Hutchinson to remain in his car until emergency assistance arrived. Mr. Hutchinson responded that he did not want to wait any longer because of how cold it was and the fact he had to wait for over an hour-and-a-half for emergency assistance to arrive when the vehicle had broken down on January 4, 2010. After waiting for emergency assistance for a few more minutes, Mr. Hutchinson again called Vonda. This third conversation resulted in an argument as a result of Mr. Hutchinson advising Vonda that he was leaving the car and taking the train home. During the argument, Vonda did not ask Mr. Hutchinson to come to the office or call in for another assignment.

The following day, Mr. Hutchinson called Vonda to discuss his work status. Vonda responded that she would have someone call him back, but no one returned his call. As a result, Mr. Hutchinson believed that his employer no longer wanted or needed his services and therefore he filed for unemployment benefits.

The New Jersey Appellate Division recently affirmed a Board of Review decision finding that an employee who quit her job as a result of a hostile work environment is eligible for unemployment benefits. In the matter of Allied Interior Contractors v. Board of Review, the claimant quit her job because of a pattern of sexist, vulgar and degrading comments regarding woman that were made by the President of the company in her presence.

The Appeal Tribunal initially disqualified the claimant from receiving unemployment benefits by finding that she left her employment without good cause attributable to her employment. Specifically, the Appeal Tribunal concluded that the claimant failed to show that she left her employment for good cause because none of the offensive comments were directed at her and because she had never complained to her employer regarding her complaints of a hostile work environment. The Appeal Tribunal went as far as to state that the claimant “condoned” the behavior by failing to inform the employer that she found the remarks offensive.

In reversing the Appeal Tribunal’s decision disqualifying the claimant from receiving unemployment benefits, the Board of Review relied upon on the seminal New Jersey case, Lehman v. Toy ‘R’ Us, Inc. 132 N.J. 587 (1993), which defines a hostile work environment based upon sexual harassment. In Toy ‘R’ Us, the New Jersey Supreme Court defined a hostile work environment based upon sexual harassment as discriminatory conduct that a reasonable person of the same sex in the plaintiff’s position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment. With this legal standard in mind, the Board of Review noted that evidence of sexual harassment directed at woman at the workplace other than the claimant is still relevant to the character of the work environment and the effect it had on the claimant. The Board of Review took further note that the President of the company routinely reminded his employees that they could leave if they did not like his comments as a legitimate reason justifying the claimant’s failure to complain about the working conditions.

The New Jersey Appellate Division recently affirmed three (3) final decisions of the Board of Review disqualifying the claimants in these cases from receiving unemployment benefits.

In the matter of Walter v. Board of Review, the Board of Review disqualified the claimant, John P. Walter, from receiving unemployment benefits finding that he voluntarily left his job without good cause attributable to the work. Mr. Walter began his employment with Wawa as an Assistant Manager in July, 2003 and was promoted to the position of General Manager in May, 2007. As a result of his mid-year evaluation in 2009, Mr. Walter was told that his work performance required improvement or he could face a possible demotion. According to Wawa, Mr. Walter’s work performance did not improve and on December 14, 2009, he was advised that he would be demoted to Assistant Manager. As a result of the demotion, Mr. Walter resigned his employment because he believed the demotion was unfair and personal. In upholding the Board of Review’s determination disqualifying Mr. Walter from receiving unemployment benefits, the Appellate Division held that there was substantial credible evidence that Mr. Walter left work without good cause attributable to the work.

In the matter of Prosceno v. Board of Review, the Appellate Division affirmed the Board of Review’s determination disqualifying the claimant, Carol Prosceno, from receiving unemployment benefits by finding that she left work voluntarily without good cause attributable to the work. In this case, Ms. Prosceno worked as a sales and cash register clerk for Shop-Rite supermarket in Cape May County from August, 2007 through September, 2008. On September 5, 2008, Ms. Prosceno underwent lung surgery, which she anticipated would put her out on disability for two or three months. She was then in a car accident in October, 2008, sustaining injures to her head, back, neck and ribs. On December 15, 2008, her lung surgeon determined that she had recovered from the surgery. Ms. Prosceno, however, stated that because she did not have medical insurance, she could not find a doctor in New Jersey to treat the injuries she sustained from the car accident. As a result, she moved to South Carolina, where she was able to receive medical treatment for her injuries and obtain living accommodations. Her doctor in South Carolina cleared her to return to work on August 19, 2009. At that time, she was advised by Shop-Rite that her position was no longer available for her. The Appellate Division upheld the Board of Review’s determination finding that the claimant’s decision to move to South Carolina was for personal financial and medical reasons that were not attributable to her work at Shop-Rite and therefore was disqualified from receiving unemployment benefits.