Articles Posted in Unemployment Insurance Appeals

I usually blog about New Jersey unemployment cases and determinations but there is an interesting case that was just decided in New York that is worth noting. Although the legal standard for entitlement to unemployment benefits differs between the states, both New Jersey and New York ultimately look to see how much “control” the business exercises over the worker in making its determination on how the relationship should be classified. The more control a business has over the worker in the nature and manner of the work performed, the more likely it is that he or she will be considered an employee who is entitled to unemployment benefits.

In the New York case, Yoga Vida NYC, Inc. v. Commissioner of Labor, No. 130 (N.Y. Oct. 25, 2016), the New York State Court of Appeals issued a rare decision, concluding that the employer yoga studio did not exercise sufficient control over certain of its instructors to create an employment relationship, thereby disqualifying the workers for unemployment compensation benefits.

Yoga Vida, a Manhattan-based yoga studio, offers classes taught by both staff instructors, classified as employees, and non-staff instructors, classified as independent contractors. The NYS Unemployment Insurance Appeal Board held that the non-staff instructors were misclassified as independent contractors and that Yoga Vida was therefore responsible for paying additional unemployment contributions. Yoga Vida appealed to the Appellate Division, which affirmed the determination of the Appeal Board. The NYS Court of Appeals reversed, finding that the non-staff instructors were not employees because Yoga Vida did not exercise sufficient control “over the results produced and the means used to achieve the results.”

On September 15, 2015, Rina Traub, Esq. was featured on “Know Your Rights NJ” in a program discussing unemployment insurance.  This program, which is available for viewing here, is produced by Princeton Community Television.  Ms. Traub described New Jersey’s unemployment insurance program in detail, including the basics of qualifying for benefits and appealing adverse determinations from the Department of Labor.

If you have questions regarding your entitlement to unemployment insurance benefits, or have been denied benefits, contact a knowledgeable employment attorney to discuss your options.

The New Jersey Department of Labor has settled a lawsuit that claimed applicants for unemployment benefits have been wrongfully denied counsel and other due process rights. As part of the Consent Order that lays out the terms of the settlement, the Department agrees to address its procedures for telephone hearings and other proceedings.

Each claim for unemployment has three possible stages where notifications are sent out: (1) a notification of the initial fact-finding interview; (2) notice of a hearing before an appeal tribunal, which is sent out if the claimant challenges the initial eligibility finding; and (3) notice of hearing before the Board of Review, which is the next and final step in the internal process before the matter goes to an appellate court.

The class action lawsuit claimed that notices sent at the first and third stages of the above process lack any notification that the claimant has a right to counsel. The lawsuit pleadings claimed that, even worse, claims examiners routinely instructed claimants that they do not have the right to counsel, and affirmatively prevented them for doing so. This is quite troubling, given that attorneys ensure that the rights of claimants are protected and instruct their clients on what they can legally accomplish.

Four more New Jersey’s cities, Paterson, East Orange, Passaic, and Irvington, have adopted paid sick leave ordinances similar to the one which was passed in Jersey City late last year. These laws make it mandatory for employers with more than 10 employees to pay employees for up to five sick days per year. The state legislature is currently considering a bill which would extend paid sick leave to employers state-wide.

Proponents of the bill point to the fact that there are 1.2 million New Jerseyans who currently do not get paid if they take a sick day, which results in a big hit to our economy. At the same time, studies have shown there is no significant downside to employers, a large majority of whom have reported no negative consequences to their profits.

This kind of common-sense legislation will benefit New Jersey’s working families and employers and we wholeheartedly support it.

The City of Seattle, Washington, is currently leading the nation by mandating that businesses pay a minimum wage of $15 per hour. The wage increase, which will affect more than 100,000 employees, will be phased in over a number of years. Seattle residents are stating that the Seattle City Council’s historic vote to raise the minimum wage could change their lives. According to one young McDonald’s employee, the higher wage will mean she can move out of her parent’s house and go back to school.

As described in USA Today, “the plan, which includes a lower training wage aimed at teenagers, will phase in the higher, local minimum over three to seven years, depending on the size of the business and benefits they provide employees. Next April 1, when the plan takes effect, every worker will get at least a $1-an-hour raise.”

Business groups initially balked at the plan but were able to reach a compromise with the City Council. Said City Councilman Nick Licata: “Seattle, and other cities, are taking direct action to close our nation’s huge income gap because the federal and state governments have failed to do so. . . . By significantly raising the minimum wage, Seattle’s prosperity will be shared by more people and create a sustainable model for continued growth.”

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.”

According to CBS News, younger veterans who served in the years following the Sept. 11 attacks are having a harder time finding work than their civilian peers. The unemployment rate for veterans between 18 and 24 exceeded 20 percent last year and was also in double digits for those 25-34. CBS News reports that the unemployment rate for both age groups was higher than for their non-veteran peers and much higher than the national average.

This persistent problem has continued despite a wide range of private and public efforts to address the situation. For example, Congress has approved tax credits for companies that hire veterans and federal agencies have stepped up their preferential hiring of vets. In the private sector, companies such as Wal-Mart, General Electric and many others have announced programs designed to hire more veterans.

In the legal realm, it is unlawful for employers to discriminate against persons based on their status as a veteran. If you are a veteran who has had difficulty finding or keeping a job because of your military service, consider getting advice from a competent employment lawyer regarding your particular situation.

A New Jersey Senate Committee has finally taken action to prod the NJ Department of Labor to reduce a lengthy backlog of unemployment appeals. Currently, an unemployed individual who is appealing a denial of benefits can wait as long as 6 months for a hearing. This delay may cost the unemployed worker his or her home, car, health care coverage, or force them into a position where their credit rating is all but destroyed.

A bill sponsored by Senate Economic Growth Committee Chairman Raymond J. Lesniak and Senate Labor Committee Chairman Fred Madden would require the New Jersey Department of Labor and Workforce Development to rule on an unemployment insurance appeal within 60 days of receiving the appeal. If the Department does not make a determination on the appeal within 60 days, the claimant would be paid any withheld unemployment benefits and would begin receiving benefits as they would normally accrue under the unemployment compensation law. If the Department decides, after the 60 day deadline has passed, that the claimant is legitimately ineligible for unemployment insurance benefits, then the benefits may be modified or denied from that point forward, but any funds that were withheld and paid out resulting from the Department’s delay would not have to be repaid, unless funds were paid as a result of intentional fraud by the claimant.

We are pleased to report that this bill, S-2212, was approved by the Labor Committee by a vote of 3-0. The bill now heads to the full Senate for consideration. We will be tracking this bill closely so check our blog for any updates.

Traub Law, LLC has recently published a white paper entitled “Top Ten Ways to Maximize Your Unemployment Insurance Benefits.” Readers of this blog and visitors to our website can download this white paper for free.

The paper describes several ways that employees can improve their chances of being awarded unemployment insurance benefits. Some are obvious, such as “do not resign voluntarily.” Some are not so obvious, including what to say and what not to say to the Department of Labor at the initial fact-finding teleconference.

If you are recently laid off or terminated from your job, or considering whether or not to resign, take a few minutes to read up on this important subject.

The Appellate Division of the New Jersey Superior Court recently reversed and remanded a decision from the Board of Review which upheld a denial of unemployment benefits. The Court, in Regis v. Board of Review, held that an employer did not present sufficient evidence to the Board of Review to justify a claim of “severe misconduct” after firing the employee for going to a funeral of a family member and thereby exceeding the number of unexcused absences allowed to employees. The employer contested the employee’s claim for benefits arguing that he did not present sufficient proof that a funeral he attended was for an immediate family member. The Court concluded that the relationship between the employee and the deceased was unclear, and that further testimony and evidence was required in order to deny the employee his benefits.