Severe Misconduct Disqualification Eliminated from NJ Unemployment
I am pleased to report that the New Jersey legislature has finally repealed the extraordinarily unfair and misapplied severe misconduct disqualification standard in the State’s unemployment statute. Governor Christie and his lieutenants had concocted, in 2008, this additional mode of disqualifying applicants as a revenue raising, budget balancing tactic.
Governor Murphy signed this bill on August 24, 2018 and it takes effect immediately. The new law corrects many unworkable and unfair provisions of the unemployment statute, such as:
- There are no longer three tiers of misconduct disqualification (“simple”, “severe” and “gross”);
- There will now be only two tiers of misconduct (“misconduct” and “gross misconduct”);
- The misconduct disqualification will be shortened from 8 weeks to 6 weeks;
- The only total disqualification will be for “gross misconduct,” which requires the commission of an act that rises to the level of a crime;
- It includes a more cogent definition of “misconduct.” The bill provides that “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.” and
- The employer has the burden of proof to demonstrate “misconduct.” Prior to a determination by the Department of misconduct, the employer must provide written documentation demonstrating that the employee’s actions constitute misconduct or gross misconduct.
I am particularly pleased to see the revisions regarding the burden of proof necessary to establish misconduct. I have represented many employees who were wrongfully denied the receipt of critical unemployment benefits based on their own testimony when the employer failed to appear. Moreover, the Department will not be able to rule against the claimant employee without adequate written documentation from the employer.
Should you have any questions regarding the above changes in the NJ State Unemployment statute, please contact a knowledgeable New Jersey employment lawyer.