New Jersey Governor Phil Murphy recently signed into law Bill A-3871 which immediately takes effect and amends N.J.S.A. 43:21-5 by removing the “simple misconduct” and “severe misconduct” standards for unemployment insurance benefits disqualification and instead replaces them with a more straightforward and manageable “misconduct” standard. Previously, a finding of severe misconduct would result in work totally forfeiting their rights to unemployment insurance benefits. Misconduct is now defined as follows:

“Misconduct” means conduct which is improper, intentional, connected with the individual’s work, within the individual’s control, not a good faith error of judgment or discretion, and is either a deliberate refusal, without good cause, to comply with the employer’s lawful and reasonable rules made known to the employee or a deliberate disregard of standards of behavior the employer has a reasonable right to expect, including reasonable safety standards and reasonable standards for a workplace free of drug and substance abuse.

The new law makes clear that the burden of establishing misconduct before the New Jersey Department of Labor and Workplace Development, Division of Unemployment Insurance (the “Division”) is on the employer who must do so by providing the Division with “written documentation demonstrating that the employee’s action constitute misconduct …”

If an employer establishes that a worker was discharged from work for misconduct, the amount of time that the worker is disqualified from receiving unemployment insurance benefits is reduced under the Bill from 7 weeks to 5 weeks. However, if an employer can demonstrate to the Division that a worker was discharged for “gross misconduct”, the worker suffers a total disqualification of benefits. Gross misconduct occurs when the discharge results form the worker committing an act punishable as a crime of the first, second, third or fourth degree under the “New Jersey Code of Criminal Justice”, N.J.S.A., 2C:1-1, et. seq.

Workers who are denied unemployment insurance benefits in whole or in part, may contest the Initial Determination of the Division by filing an appeal with the Division’s Appeal Tribunal within 7 days after delivery of notification of the Division’s Initial Determination to the applicant or within 10 calendar days after such notification was mailed to his or their last-known address. Decisions of the Appeal Tribunal “as rendered must be supported by sufficiently substantial and legally competent evidence to provide assurance of reliability and to avoid the fact or appearance of arbitrariness.” N.J.A.C. 1:12-15.1(b). Decisions made by the Appeal Tribunal may be appealed to the Division’s Board of Review within twenty (20) days of the date of the issuance of the decision. The Board of Review maintains the authority to “modify or set aside any decision of the appeal tribunal on the basis of the evidence previously submitted in such case …” N.J.S.A. 43:21-6(e). The Appellate Division of the Superior Court has expressly held that, “[t]he regulations governing the internal appeals process in unemployment compensation proceedings clearly establish the Board of Review’s authority to engage in a plenary, de novo review of the evidentiary record; i.e., to make findings independent of those made on the Appeal Tribunal level …” Messick v. Board of Review, 420 N.J. Super. 321, 326 (App. Div. 2011). “De novo review means that a reviewing court may disagree with the lower court’s findings and conclusions.” Baker v. National State Bank, 353 N.J. Super. 145, 153 (App. Div. 2002). “In sum, no deference need be paid to the [lower tribunal].” Id. A decision of the Board of Review may be appealed the New Jersey Superior Court, Appellate Division.

If you want to consult regarding your right and entitlement to New Jersey Unemployment Insurance Benefits and/or need representation before the Division’s Appeal Tribunal or Board of Review, do not hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, located in Morganville, New Jersey, we are dedicated to protecting the rights of employees.

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