Category Archives: unemployment

Immigrant without valid work permit cannot collect unemployment

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This case from March 30, 2009 illustrates New Jersey’s rule that an immigrant who does not have a valid green card or work permit while employed is ineligible for unemployment benefits.

The Superior Court of New Jersey, Appellate Division denied unemployment benefits to a Polish immigrant, despite the fact that he had worked in New Jersey.  The claimant entered the U.S. in 1995 on a tourist visa and had a work permit from 2002 to 2003.  He said that he had already bee working for a few years by the time he got his work permit in 2002.

Then in 2006, after his work permit had expired, the claimant got another job, from which he was laid off in February 2007.  This was the employment from which he tried to claim unemployment benefits.  He did not get another work permit until May 2007.

Unfortunately, the claimant could not be eleigible for unemployment benefits since he did not hold a valid work permit while he was employed.  His pleas of ignorance of the English language as a reason for failing to renew the work permit fell on deaf ears.

The lesson in this decision is simple:  Immigrants must have a valid green card or work permit in place while they are working in New Jersey if they want to be able to claim unemployment benefits when needed.

The decision is here:  Cieslewicz v. Board of Review, et al. Docket No. A-2120-07T1 (March 30, 2009).

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Quitting due to mental stress from job not enough for unemployment benefits

Yesterday the Superior Court of New Jersey, Appellate Division, decided a case involving an employee who voluntarily quit her job due to work-related stress and was then turned down for unemployment benefits.

The employee worked as a claims adjuster until May 2007, when she quit. Two months earlier, her job duties had increased because a co-worker went out on disability.

She argued that she left work because of mental health issues that began when her mother died and that worsened with her work-related stress. Both the Appeal Tribunal and the Board of Review found that she left without good cause attributable to her work and that as a result, she could not qualify for unemployment benefits. the test for whether a decision to quit work constitutes good cause is one of ordinary good sense and prudence.

Under the law, the employee needs to do whatever is necessary and reasonable to stay employed.

To show that a pre-existing medical condition was aggravated by a workplace situation, the claimant must show competent medical evidence as to that assertion. The evidence must be more than an equivocal statement.

In this case, the claimant presented evidence of an ER visit two years before she left work in which she told the nurse that she had stress at work and she had thoughts of killing her boss.  In addition, the ER records reflected her complaints about financial and housing problems.

The court pointed out that the employee stayed in her job for two years after her ER visit, which damaged her contention that it was the work-related stress that made her quit work.

The Appellate Division agreed with the Appeal Tribunal and the Board of Review and concluded that the employee was not eligible for unemployment benefits since she left work without good cause attributable to her work.

Goodman v. Board of Review, et al., Docket No. A-1260-07T2 (Sup. Ct. Nj, App. Div 2008)

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Restaurant employers, this is how serious some employment violations can get

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Today, the New York Times reports about the arrests of the two owners of the Saigon Grill in New York City. New York Attorney General Andrew M. Cuomo announced the arrests yesterday.

New York’s AG’s office is bringing a staggering number of criminal charges – over 400, according to the New York Times – against the two, who are a husband-and-wife couple.

A judge had already ordered the restaurant to pay its workers $4.6 million as part of a prior civil suit for violations of wage-and-hour laws, the New York Times reports.

These new criminal charges are related to the subject of the civil suit – the restaurant’s mistreatment of its workers. Each of the two is charged with 151 counts of falsifying business records, 46 counts of offering a false instrument for filing, and 45 counts of tampering with physical evidence. These counts come from the allegation that the couple provided the New York Department of Labor with fake payroll records during its investigation of minimum wage violations.

And then there are the counts for failure to pay wages, failure to keep records, and receipt of kickback wages. These counts stem from the couple’s alleged failure to pay minimum wages for 4 years to employees who were working 70 to 80 hours per week.

The AG’s office also alleges that the couple threatened to end delivery service at its restaurants after some of its delivery workers decided to file the civil suit mentioned earlier, leading to charges of witness tampering, coercion, and retaliation.

Finally, the AG’s office complains that the restaurant owners paid some employees off the books and failed to report their employment to New York State‘s unemployment insurance fund. The AG’s office states that the owners failed to report the employment of 65 employees, effectively cheating the New York State unemployment insurance fund and tax funds.

It’ll be interesting to follow this case through trial and see what happens. Restaurant employers, beware.

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New Jersey extends unemployment benefits a second time since July 2008

United States unemployment rates 1950-2005

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According to a press release dated 11/24/08, the New Jersey Department of Labor and Workforce Development is notifying unemployed workers of an unemployment benefits extension for workers whose benefits run out without having found a job.

The State of New Jersey is mailing letters to about 65,000 people, notifying them of this extension in unemployment benefits. Funding for the extension comes from the federal Unemployment Compensation Extension Act of 2008 enacted on November 21. This is the second federally-funded extension of unemployment benefits since July 2008.

Up to seven additional weeks of benefits are available under the new federal law, beginning 11/23/08. The benefits will not be retroactive.

People who are currently on unemployment should automatically qualify for extended benefits without having to file a separate application. Those whose benefits have already run out and who may be eligible for the extended benefits should receive instructions from the Department of Labor and Workforce Development on how to claim the extended benefits.

The current unemployment rate in New Jersey is 6.0 percent, which is below the national 6.5 percent rate, according to the Department’s press release.

You can find the press release here:  Notice of Additional Extended Unemployment Benefits Announced

Update: For information on your own unemployment claim or for general questions about unemployment, there is a list of phone numbers on the NJ Department of Labor and Workforce Development website. Check it out.

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Change in employee’s work hours leads to unemployment benefits

Last Wednesday, the Superior Court of New Jersey, Appellate Division, affirmed an award of unemployment benefits to an employee whose employer had changed her work hours to interfere with her child care arrangements.

The employee worked from 8:30am  to 4:30pm, but had difficulty getting to work on time every day because of the traffic.  Her supervisor asked her to think about changing her hours to 9am to 5pm, but the employee resisted because she would not have enough time to pick up her child by 5:30pm, when the after-school program closed.  As a compromise, the employee suggested she work from 8:45 to 4:45, a notion that the employer rejected out of hand.  The employee left her employment as a result.

In its opinion, the Court provides an interesting discussion of “good cause” under the law’s provision that a person who leaves work without good cause attributable to the work is disqualified from receiving unemployment benefits.  Good cause, the Court says, generally means enough cause to justify the employee’s voluntary departure from employment.  Good cause is directly related to the employment and gives the employee no choice but to leave employment.

The Court examined a prior case involving an employee’s transportation problem.  When a transportation issue arises solely from the employee’s personal circumstances, it is not enough to provide good cause, the Court recalled.  If the transportation issue stems from a change in working conditions unilaterally instituted by the employer, an “evaluation and balancing” of factors must be done to determine eligibility for benefits.

While this case involved a unilateral change in work hours instituted by the employer, it caused a child care problem instead of a transportation problem.  The employee had the same child-care arrangements for a long time and yet the employer had given her no time to find alternate arrangements, rejecting a compromise proposal for the employee.

These circumstances resulted in the Court’s affirming the prior award of unemployment benefits to the employee.

Commentary

The procedural history of this case is worth noting.  The employer protested the employee’s application for unemployment and the Appeal Tribunal sided with the employer, denying benefits.  But the Board of Review found in favor of the employee, rejecting the Appeal Tribunal’s finding that the unilateral change in working hours was insubstantial.

This procedural history shows that what seems like a fairly simple issue at first blush – the conflict between working hours and child care – is actually fairly complicated and can be difficult to decide, requiring a balancing of several factors.

Silent Type, Inc. v. Board of Review, et al., Docket No. A-0403-07T3 (Superior Ct of NJ, App Div 2008).

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Court qualifies disabled employee for unemployment after her employer offers unsuitable work

The Supreme Court of New Jersey, Appellate Division, yesterday reversed a decision that had denied unemployment benefits to a former employee of a grocery store located in the Princeton area. The employee’s positions with the store were variously located in the sub shop, photo department, personnel department, and on the merchandise floor.

After developing chronic obstructive pulmonary disease (COPD) and osteoporosis, the employee went out on short-term disability for over 5 months. Her doctor released her to work with a 10-pound weight restriction and a restriction on standing for no more than 3 1/2 hours at a time.

Upon her return to work, the store offered the employee a position busing tables at night, which she could not do because her husband didn’t drive at night and her listed work availability had always ended at 6pm, since the beginning of her employment.

Then the store offered her a job cleaning the employee break room. She rejected this job, stating that she could not do cleaning. A month later, she produced a doctor’s note stating that she could not do cleaning or mopping.

In the store’s employee manual was a statement that upon returning from disability leave, an employee would be returned to the same or equivalent position. New Jersey unemployment law states that employees only need to accept suitable work, taking their health into account.

The facts that: 1) The employee had never before been required to do cleaning work; 2) She was almost 64 when she returned from disability, wearing a back brace and suffering from arthritis, COPD and osteoporosis; and 3) Her doctor provided notes showing that the employee was incapable of performing the work offered, persuaded the court that the job offered to the employee was not suitable work.

The court concluded that the Board of Review was wrong in its decision denying benefits based on the employee quitting without good cause, and determined that the employee is eligible for unemployment benefits.

Commentary

Although it is not clear based on the facts presented, this case seems to raise issues in addition to the employee’s qualification for unemployment benefits. Issues appear to arise under the Family Medical Leave Act (FMLA) and or the Family Leave Act (FLA), as well as the Americans with Disabilities Act (ADA). However, cases under those laws are very fact-specific and cannot be evaluated adequately under the facts recited by the court.

Boccia v. Board of Review, et al., Docket No. A-0399-07T3 (Superior Court of New Jersey, Appellate Division 2008)

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One sure way to mess up your unemployment claim…

…starts before you ever separate from your employer.

If you want to be able to collect unemployment benefits, at least in New Jersey, you should not voluntarily resign from your employment. A shining example is provided in a recent decision from the Superior Court of New Jersey’s Appellate Division, in which an employee appealed her disqualification from benefits because she “left voluntarily and without good cause attributable to the work.”

After a business meeting, the employer asked the employee to undergo a psychiatric evaluation to determine her fitness for the job. She had the evaluation and was determined fit for duty. But she also asked the Human Resources Department for a severance package based on her belief that she was bullied during the business meeting and subjected to a discriminatory and hostile work environment. She felt that her supervisor was going to fire her. But the employee initiated the separation process. No one asked her to resign.

Therein lies the rub. No one asked her to resign, and yet she initiated the separation process. Hence, the denial of unemployment benefits was proper.

Hetherington v. Board of Review, et al.

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