Under the old law, individuals could be disqualified from unemployment benefits under the following circumstances: (1) voluntary resignation; (2) misconduct; (3) failure to apply for or accept suitable work; (4) involvement in a labor dispute; (5) receipt of money in lieu of notice; (6) receipt of other benefits (such as temporary disability); (7) fraud and (8) participation in a training program. Under this old law, if an employer convinces unemployment that the employee was terminated for misconduct, then the penalty would be for that employee to be disqualified from receiving benefits for six weeks. After the six week period was over, the applicant would still be able to obtain the remainder of his/her unemployment benefits.
What the New Law Adds to the Picture
The new law adds another circumstance under which an individual could be totally disqualified from claiming any unemployment benefits. Now, if a claimant is found to have committed "severe misconduct", then he or she will receives total disqualification from all benefits for the entire period of unemployment (as opposed to disqualification for several weeks for misconduct.)
What Constitutes Misconduct and "Severe Misconduct"?
Misconduct must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of the employee. See N.J.A.C. 12:17-10.2(a)
Examples of the new "severe misconduct" term (which would constitute a total disqualification of benefits) include repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats of physical assault, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time and where behavior is considered malicious and deliberate.
Request a Hearing and Argue Your Case
If an applicant has been denied unemployment benefits due to "severe misconduct", then he or she should request a hearing before an Appeal Tribunal. During this hearing, the applicant should argue how his or her actions were not intentional or malicious in nature. Is the employer asserting repeated violations of a rule or policy? If not, then an applicant should assert that in order to be found to have committed "severe misconduct" as opposed to misconduct, then it is necessary to show repeated violations in order for the hearing officer to find that total disqualification of benefits is warranted.
Consider Hiring an Attorney
The process of securing an administrative unemployment compensation hearing is difficult and complicated. A skilled employment attorney that practices in administrative agencies would be the best suited to represent you. Even if you do not wish to hire an attorney to represent you through the entire process, it would be wise to consider scheduling a one hour consultation with an attorney who can carefully explain the legal issues at hand.
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