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Beware of Unemployment

Added on 06/22/2016 by kalsonlaw

It’s bad enough when you lose your job but if you can’t collect unemployment benefits you may be unable to survive financially. Many times people view their unemployment benefits as an entitlement. I consult with numerous employees who have lost their job and try to collect unemployment. They tell me they have paid into the system all of their working lives and never tried to collect before. Many employees still believe that their employer determines whether or not they collect unemployment benefits. It does not matter whether your former employer told you it would not contest unemployment or that you would be entitled to unemployment benefits. The Department of Labor Division of Unemployment makes the determination as to whether an employee is entitled to unemployment benefits, not the employer.

On July 2, 2010 the Governor and legislature dramatically changed unemployment law in New Jersey making it more difficult for employees to collect unemployment benefits. The law expanded the gross misconduct disqualification for unemployment benefits and added a new category called severe misconduct. It was supposed to be an intermediate tier between simple misconduct and gross misconduct. However, the “severe misconduct” carries the same penalty as gross misconduct, a complete disqualification. Governor Christie proclaimed that this new law would save New Jersey between $150 and $175 million per year by eliminating otherwise eligible employees from receiving State unemployment benefits. What has happened is that the new law saved New Jersey money by disqualifying workers for necessary unemployment benefits.

In addition, the Department of Labor sent out notices to employers encouraging the employer to challenge unemployment benefits to a former employee. The Department of Labor is also looking for fraud but I will reserve those comments to another day.

The Administrative Code at N.J.A.C. 12:17-10.1f clearly provides that the burden of proof is on the employer to show misconduct through written documentation. Notwithstanding the Administrative Code regulations, I have had cases where my client was disqualified for benefits at the fact finding level solely based upon his or her testimony. Worse yet, in the worker’s own testimony, he/she denied any wrong doing. After I reviewed requested discovery, I found out that the employer never even spoke to the fact finder during the investigation. Moreover, the employer never submitted any written documentation as required by the rule. The decision of the fact finder was clearly an error and contrary to law. I was very upset for my client. I took it upon myself to write to the Department of Labor and the Director of Unemployment Insurance raising my concerns and outrage. I never received a written response to my letter. When I called the Executive Director of Legal and Regulatory for the Department of Labor I was told that the claimant had grounds to appeal. That misses the point. The claimant never should have had to appeal the decision. The claimant had to pay for an attorney to represent him/her in the unemployment appeal. The claimant had a delay in receiving his/her justified unemployment benefits due to the mistake of the fact finder.

I wish this was an isolated incident but I fear it is not. I understand that some fact finders do know the law and follow it. However, when you file a claim for unemployment, it’s the luck of the draw. You may get a good examiner or you may not. You may get the examiner involved in my recent case. For this reason, I encourage all employees who are trying to collect unemployment to obtain legal advice and representation at the earliest possible stage. I have been doing unemployment appeals for 20 years. I used to always advise my client to handle the initial fact finding themselves and only retain the services of my office in the event they were denied. I did this to save the client money at a time when they so desperately needed it. However, now my advice has changed. You need to have an attorney represent you as soon as possible. A colleague of mine with the National Employment Lawyer’s Association New Jersey (NELA-NJ) sued the Department of Labor because the examiners were not letting attorneys advocate for their clients in the initial stages of unemployment. Notwithstanding, the consent order or settlement of that lawsuit unfortunately there are still examiners out there that don’t know the rules or plainly just choose not to follow them. I believe that along with the change in the law came a secret directive to deny employees claims for benefits. That is how the State intended to save money. Please do not be a victim of this process. You should consult with an attorney as soon as possible.