New Jersey Employment Law Blog

On February 12 we posted here about more-aggressive employer opposition to worker claims for unemployment compensation.  We specifically noted that courts may be redefining "misconduct" in a way that favors employers.

We should have waited a few days.  Since we didn't, It's time to pull out the old knife and fork and eat some crow. 

In Parks v. Board of Review the Appellate Division of NJ Superior Court considered the application for unemployment benefits of an employee whose employer fired her for repeated absences after being given warnings.  Unemployment benefits were denied for misconduct, and the Appeal Tribunal affirmed.  The Appellate Division reversed and ordered that benefits be paid to Parks.  The court noted that three of Parks' absences were caused by her illness or that of her young son.  The fourth had been caused by the unexpected need to care for a homeless four year old niece. 

That conduct, the court ruled, was not  "misconduct":

Absences from work for such reasons do not constitute "deliberate violation[s] of the employer's rules, . . . or . . . an intentional and substantial disregard . . . of the employee's duties and obligations to the employer."

So put an asterisk next to our previous post where we said that the courts may be interpreting "misconduct" to the benefit of employers.  There may be no such trend, at least in New Jersey.

For those of you outside the great Garden State, the court relied upon similar rulings from Florida, Minnesota, Missouri, North Carolina and Pennsylvania.

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Here's an article from the Washington Post suggesting that employers are becoming more aggressive in opposing former employees' claims for unemployment benefits.  One reason: saving money in a tough economy.  Successful unemployment claims increase an employer's future premiums, so it makes financial sense for businesses to oppose claims where they think the employee is not deserving of the benefit.

As the article points out, a prime area for conflict is whether the employee was fired for misconduct.  If so, no benefits.  And the definition of misconduct may be changing in favor of employers.  Good reason for employees to avoid any charge that misconduct justifies their termination.

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Under New Jersey law, as in most states, ex-employees may be ineligible for unemployment benefits if they left the job due to their own "misconduct." Courts have to make some interesting calls on what conduct is misconduct.

In Patrick Cudahy Inc. v. LIRC, the Wisconsin Supreme Court recently confronted the question of whether off-duty drinking could be a kind work related misconduct under an unemployment statute. The court held that an employee's violation of a "last chance agreement" under a corporate substance abuse policy constituted misconduct and disqualified the employee from benefits. The twist to this case? The employee admitted to drinking, but only on his own time, not at work. However, since the last chance agreement prohibited the employee from any drinking at all, the court found that off-duty drinking violated the agreement and constituted misconduct. Therefore, the employee could not collect benefits.

An older case from New Jersey applied the same principle but, in a different situation, reached a different result. In Demech v. Board of Review the court considered the application for unemployment benefits of a butcher who was terminated for alleged misconduct. Her offense? Throwing a roast at a co-worker.

But as we said, the result was different than in the Wisconsin case. The butcher had a good reason for throwing the roast. Her target had subjected her to a continuing course of sexually harassing comments that apparently were so graphic that the court barely even hinted at their content in its opinion. The butcher lost her temper and chucked the roast at the offender, but did nothing else. Finding the incident to be an isolated, unusual, and provoked occurrence, the court held that she had not engaged in misconduct and was entitled to collect benefits.

So even seemingly routine unemployment cases are not always easy to predict.

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In an unpublished opinion, Callegher v. Board of Review, the Appellate Division of New Jersey Superior Court reminds us that bad language in the workplace can have financial consequences. Joan Callegher was fired "for use of inappropriate or abusive language towards management/co-worker." (The opinion does not tell us what she said.) A hearing officer found that Callegher's actions "constitute[d] a willful and deliberate disregard of the standards of behavior . . . [her] employer had a right to expect." Thus, her "discharge was for misconduct connected with the work," disqualifying her from unemployment benefits under New Jersey law.

Most people understand the need to speak respectfully on the job. This otherwise unremarkable case reinforces the fact that a failure to behave can hit you in the pocketbook in more ways than one.

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