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Kurkowski Law -- Discrimination

Appeals of the Unemployment Tribunal’s Decision

Claims must be made pursuant to the rules of the Department of Labor, Division of Unemployment and Temporary Disability Insurance.  The burden is on the claimant to demonstrate his entitlement to benefits. The initial determination is made by an employee of the division after he or she notifies the claimant’s most recent employer and if necessary subsequent employers. If the employer wishes to challenge the claim, grounds for doing so at this stage is based only upon the claimant being separated for reasons other than lack of work, the claimant is receiving pension, the claimant is receiving wages after his or her last day of work, or the separation its temporary and there is a definite return to work date set.

If the employer fails to respond to the notice after ten days, the employee will be entitled to benefits and the examiner will rely upon other sources for wage and time worked, such as the claimant’s affidavit. Only in cases of fraud (see below) will the employee be penalized. If the employer fails to respond to the initial determination, he cannot contest the outcome and subsequent determinations as to the benefits paid.

Upon terminations, discharges, and layoffs, many employers wish to limit the costs of terminating an employee by fighting the employee’s ability to collect New Jersey unemployment compensation. Reason for this, is that there are contributions (charges to the unemployment insurance account) and taxes that employers face associated with discharging an employee without cause. Those who have been terminated for good cause will be denied. “Good cause” is determined in a fact finding hearing and defined as “any situation which was substantial and prevented the claimant from reporting as required by the division,” meaning it is determined on a case-by-case basis.

An appeal by either the claimant or an employer must be filed within seven calendar days (as opposed to business days) of the delivery of the notification, or within ten days after the notification is mailed to the last known address. There are exceptions to this rule, but the date of appeal must be in close proximity to the seven or ten day rule and must be accompanied with good cause for the delay. Otherwise the decision is final.

The appeal must be in writing and can be typed or handwritten. It can be filed at a local unemployment claims office or by mail, the later will be considered filed on the day it is postmarked. Finally, it can be filed electronically, by email or facsimile.

While an appeal is pending, benefits are sometimes paid in the interim; however, in the event that it has been determined that the claimant is disqualified under the New Jersey Unemployment Compensation Law (see below) benefits will be withheld. If the claimant is successful on appeal these benefits will be paid in full upon the determination of qualification. In the case of withheld benefits, it is important that the claimant continue to meet the requirements of the Department of Labor, such as reporting new employment sought in a manner prescribed by the rule. If a claimant fails to meet the requirements during the pendency of appeal, he or she will not be paid for those weeks prior to the hearing upon a successful appeal and the claim will begin accruing as of the determination date. Simply put, follow all rules and regulations of the Department of Labor while waiting for your hearing.

In New Jersey, appeal hearings are telephonic. The employer, claimant and examiner will participate in the conference call. In person hearings may be requested but are rare. All parties, their representatives or their attorneys may inspect documents or evidence. The examiner will provide initial instructions. Thereafter, the examiner may question the parties and witnesses. Following, the participants may give or their attorneys may solicit direct testimony. The parties or their attorneys may also cross-examine the other parties or witnesses. Finally, all parties or their attorneys may argue a summation of their case to the examiner. All testimony is recorded and under oath. Further appeals must be filed within ten days with the Board of Review. After such matter goes through the Board of Review, all decisions are final unless appealed for judicial review.

Individuals may be disqualified from benefits for a variety of reasons:

  1. Voluntary termination of employment: This occurs when an employee leaves work voluntarily without good cause attributable to the work. Any important distinction here is between the employee who intended to quit and the employee who walked out without intending to resign due to some short-lived physical or mental irritation or frustration. The later will be eligible for unemployment benefits. Likewise, an employee that has multiple reasons for work, one constituting good cause attributable to such work shall not be disqualified for benefits. What constitutes good cause attributable to such work is determined on a case-by-case basis by a fact finder who examines whether there is cause sufficient to justify the employees leaving voluntarily. The good cause equates to involuntary termination and can be where the individual leaves because of dangerous or unhealthy working conditions, refusal to act illegally or immorally, or because of medical reasons supported by medical evidence.

  2. Misconduct: This occurs when the employee’s conduct is improper, intentional, connected with one’s work, and within the individual’s control. Misconduct must be a deliberate violation of the employer’s rules or a disregard of standard of behavior which the employer has a right to expect of an employee. Unintentional or even negligent conduct does not qualify as misconduct, unless it amounts to wanton disregard. Examples can range from absence from work without properly notifying the employer, lying on an employment application, failing a drug test, work stoppage in violation from a collective bargaining agreement, refusing to comply with employer instructions without good cause, acting beyond the scope of the authority granted to the employee, violating a known rule of the employer, violating safety standards, and any act that constitutes a crime under the New Jersey Criminal Code (which actually constitutes gross misconduct).

  3. Failure to accept suitable work: An employee can be disqualified from unemployment benefits if he or she fails to apply for or accept available and suitable work. “Suitable” takes into account the degree of risk to health, safety, morals, physical fitness and prior training, experience, prior earnings and employee benefits, length of unemployment, prospects of finding work in the usual occupation, and distance of the job to his or her residence. Regarding pay, the employment must be at least 80 percent of the claimant’s average weekly wages during a base year (four of the five most recent quarters of a year). Work is not suitable if the employer is facing a union matter such as a strike or lockout, or the individual would be forced to join a company union or resign from a union as a condition of employment.

  4. Involvement in a labor dispute: An employee is disqualified from collecting benefits of involved in a work stoppage because of a labor dispute such as a union strike or lockout, unless the employee is not participating in, financing, directly interested in the dispute, and does not belong to the class of workers at the premises who were involved in the dispute.

  5. Receiving other unemployment benefits: This means that New Jersey Unemployment Compensation Law will not be effectual if the employee is collecting unemployment benefits from the United States or any other state. Nor will the employee receive benefits for any week that the employer provides compensation after termination. This exclusion does not apply to severance agreements.

  6. Fraud: In the event that an individual falsely or fraudulently misrepresents information to the Department of Labor, Division of Unemployment and Temporary Disability Insurance and received or attempted to receive benefits as a result thereof, that person will not be paid any benefits for a year and face civil and criminal penalties. Any finding upon the criminal courts will be binding upon the appeal tribunal.

  7. Leaves of absence: Agreed upon and voluntary leaves of absence mean the employee is not unemployed and therefore not entitled to benefits. However, failure of the employer to allow a leave of absence for their own health reasons or their family’s health reasons (see FMLA) does result in qualification. Other personal leaves which the employer does not grant do not qualify for benefits.

  8. Child Support: If child support is owed, it may be deducted from an individual’s unemployment benefits.

To discuss your employment law concerns with an experienced New Jersey employment lawyer, contact Kurkowski Law.



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