The New Jersey Appellate Division, in the case of Silver v. Board of Review, has ruled that in order for the Department of Labor to reach a finding of “severe misconduct,” which effectively disqualifies a claimant from eligibility for unemployment compensation benefits, it must find intentional, deliberate misconduct. Practitioners who represent workers in unemployment appeals have been anxiously awaiting this bright line standard. Prior to this, the Appeal Tribunal had been randomly and unjustifiably disqualifying workers from unemployment compensation benefits under this “severe misconduct” provision.
The severe misconduct category was added to New Jersey’s unemployment compensation law in 2010 and was intended to be an intermediate form of misconduct, requiring greater culpability than simple misconduct, but less than gross misconduct. The statute provides some examples of “severe misconduct” but does not define this term. Needless to say, this ambiguity has led to inconsistent and unfair denials of benefits to employees whose conduct could not reasonably be deemed to be severe. The misinterpretation of this new standard by the Department of Labor has had devastating effects. So many claimants were disqualified from benefits that the waiting time for an appeal before the Appeal Tribunal increased from three weeks to six months. Workers were completely denied due process when their benefits were denied without good cause, since they were not afforded a fair hearing for more than six months. This destroyed the entire purpose of having unemployment as a safety net. Some workers have had no choice but to declare bankruptcy while waiting to find out if they would be eligible for unemployment benefits.
In the Silver case, the claimant was a full-time teacher at the Middlesex County Youth Facility. The Facility had a rule limiting and accounting for the distribution of pens to students in order to avoid their use as a weapon. Over Ms. Silver’s nine years of employment at the Facility, she had been written up for six previous incidents of student theft. On the last day of her employment, she had handed pens out to each student and thought she had accounted for all of the pens at the end of class. Shortly after dismissing the students she realized that one pen was missing and she immediately reported the potential security breach. The Facility then terminated Ms. Silver for this “infraction.”
Ms. Silver applied for unemployment benefits, and was denied all benefits due to a finding of severe misconduct.
In its decision, the court emphasized that in order to be “severe misconduct”, an employee’s actions must at least rise to the established definition of “misconduct” under the statute. “Misconduct” requires an employee’s actions to be “intentional, deliberate, and malicious.” Therefore, simple negligence or absenteeism beyond the employee’s control can never be “severe misconduct” because it does not satisfy the definition of the lower tier “misconduct.”
There is currently before the New Jersey Senate a bill that I have written about in a previous blog post, which more clearly and fairly defines the tiers of disqualification for unemployment compensation benefits. Until this bill becomes law, the Appellate Division has provided a clear set of guidelines for future unemployment claims.