New Jersey Employment Law Blog - Current Information on Employment Law and Business/Civil Litigation

How many times have we heard it?  "They told me that I had to resign or I'd be fired."  As if they were doing you some big favor.  So the employee submits a letter of resignation, presumably to avoid the stigma attached to being fired.

The comes the application for unemployment, and the frequent denial of benefits, since unemployment is not available to those who voluntarily quit a job.

The law in NJ has recently been clarified by the decision of the Appellate Division in Lord v. Board of Review.  The facts were simple.  Lord, the applicant for benefits, needed his car to do his job.  One day his transmission broke, and he did not have the money needed to repair it or obtain other transportation.  He notified his supervisor, saying that he would not be able to return to work on Monday.  The supervisor then told him that he "had to resign . . .  effective immediately."

Lord's application for unemployment benefits was denied, as the Division of Unemployment Compensation decided that he had left his employment voluntarily without good cause attributable to the work.  The Appeal Tribunal upheld the initial decision.

The Appellate Division (NJ's second-highest court) reversed, finding that Lord's separation from employment was not voluntary.   Rather, it found that the termination was initiated by the employer, not the employee, and there was involuntary. 

As with most cases involving unemployment benefits, there are some factual nuances in the decision which make it impossible to say that Lord v. Board of Review establishes a sweeping rule that can be applied to every situation.  Nonetheless, it is good news for employees.  Employers need to be aware of this ruling as well, to ensure that "resignations" are just that, and not disguised firings.

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.

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.