ASSEMBLY, No. 3707

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED JANUARY 10, 2011

 


 

Sponsored by:

Assemblyman  PATRICK J. DIEGNAN, JR.

District 18 (Middlesex)

Assemblyman  JOSEPH V. EGAN

District 17 (Middlesex and Somerset)

 

Co-Sponsored by:

Assemblyman Coughlin

 

 

 

 

SYNOPSIS

     Establishes standards regarding the disqualification of claimants for unemployment compensation for misconduct.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning unemployment compensation claims and amending R.S.43:21-5.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    R.S.43:21-5 is amended to read as follows:

     43:21-5.  An individual shall be disqualified for benefits:

     (a)   For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment, which may include employment for the federal government, and has earned in employment at least ten times the individual's weekly benefit rate, as determined in each case. This subsection shall apply to any individual seeking unemployment benefits on the basis of employment in the production and harvesting of agricultural crops, including any individual who was employed in the production and harvesting of agricultural crops on a contract basis and who has refused an offer of continuing work with that employer following the completion of the minimum period of work required to fulfill the contract.

     (b)   For the week in which the individual has been suspended or discharged for simple misconduct [connected with the work], and for the seven weeks which immediately follow that week, as determined in each case.  “Simple misconduct” means misconduct, other than severe or gross misconduct, which is improper, intentional, connected with the individual’s work, malicious, within the individual’s control, not a good faith error of judgment or discretion, and is either a deliberate failure, without good cause, to comply with the employer’s lawful and reasonable rules made known to the employee or a 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.  “Simple misconduct” includes: (1) repeated failure, without good cause, to comply with lawful, reasonable instructions of the employer not requiring the employee to perform services beyond the scope of the employee’s customary job duties; (2) falsification of an employment application or other record required by the employer to determine the employee’s qualifications or suitability for the job or omitting information which created a material misrepresentation of the employee’s qualifications or suitability for the job; (3) tardiness without good cause which is chronic or excessive and repeated after written warnings from the employer; and (4) repeated unauthorized absences without good cause, such as illness or other compelling personal circumstance, or unjustified failure to provide notice prior to the unauthorized absences.  An unauthorized absence without good cause for five or more consecutive work days may constitute job abandonment and subject the individual to disqualification for voluntarily leaving work without good cause attributable to work pursuant to subsection (a) of this section.  An individual’s discharge for failure to meet the employer’s standards regarding quality or quantity of work shall not be considered misconduct unless the employer demonstrates to the division that the standards are reasonable and that the individual deliberately performed below the standards.

     For the week in which the individual has been suspended or discharged for severe misconduct connected with the individual’s work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment, which may include employment for the federal government, and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.  [Examples of severe misconduct include, but are not necessarily limited to, the following: 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 that do not constitute gross misconduct as defined in this section, 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, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.]  “Severe misconduct” means misconduct connected with the individual’s work other than gross misconduct, which: (1) is committed with actual malice and deliberate disregard for property, safety or life of the employer, fellow employees, contractors, invitees of the employer, or members of the public at the worksite, or consumers of the employer’s products or services, and consists of physical assault, threats of physical assault, or theft or other employee-caused property or monetary loss or damage so serious that it is determined by the division that the penalties for simple misconduct are not sufficient; or (2) is comprised of a pattern of instances of simple misconduct which are, after repeated written warnings from the employer, repeated so frequently that they cause substantial disruption of the employer's operations or substantial property or monetary damage or loss for the employer which is so serious that it is determined by the division that the penalties for simple misconduct are not sufficient.  Disruption of operations from a cessation of work during a labor dispute shall not be regarded as severe misconduct for the purposes of this subsection (b).

     In the event the discharge should be rescinded by the employer voluntarily or as a result of mediation or arbitration, this subsection (b) shall not apply, provided, however, an individual who is restored to employment with back pay shall return any benefits received under this chapter for any week of unemployment for which the individual is subsequently compensated by the employer.

     If the discharge was for gross misconduct connected with the work because of the commission of 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.2C:1-1 et seq., the individual shall be disqualified in accordance with the disqualification prescribed in subsection (a) of this section and no benefit rights shall accrue to any individual based upon wages from that employer for services rendered prior to the day upon which the individual was discharged.

     The director shall insure that any appeal of a determination holding the individual disqualified for gross misconduct in connection with the work shall be expeditiously processed by the appeal tribunal.

     To sustain disqualification under this subsection (b), the burden of proof is upon the employer, who shall provide written documentation, to show that the employee’s actions constitute simple misconduct, serious misconduct, or gross misconduct.

     (c)   If it is found that the individual has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the director or to accept suitable work when it is offered, or to return to the individual's customary self-employment (if any) when so directed by the director. The disqualification shall continue for the week in which the failure occurred and for the three weeks which immediately follow that week, as determined:

     (1)   In determining whether or not any work is suitable for an individual, consideration shall be given to the degree of risk involved to health, safety, and morals, the individual's physical fitness and prior training, experience and prior earnings, the individual's length of unemployment and prospects for securing local work in the individual's customary occupation, and the distance of the available work from the individual's residence. In the case of work in the production and harvesting of agricultural crops, the work shall be deemed to be suitable without regard to the distance of the available work from the individual's residence if all costs of transportation are provided to the individual and the terms and conditions of hire are as favorable or more favorable to the individual as the terms and conditions of the individual's base year employment.

     (2)   Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: the position offered is vacant due directly to a strike, lockout, or other labor dispute; the remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or, the individual, as a condition of being employed, would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

     (d)   If it is found that this unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which the individual is or was last employed.

     (1)   No disqualification under this subsection (d) shall apply if it is shown that:

     (a)   The individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and

     (b)   The individual does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided that if in any case in which (a) or (b) above applies, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment, or other premises.

     (2)   For any claim for a period of unemployment commencing on or after December 1, 2004, no disqualification under this subsection (d) shall apply if it is shown that the individual has been prevented from working by the employer, even though the individual's recognized or certified majority representative has directed the employees in the individual's collective bargaining unit to work under the preexisting terms and conditions of employment, and the employees had not engaged in a strike immediately before being prevented from working.

     (e)   For any week with respect to which the individual is receiving or has received remuneration in lieu of notice.

     (f)    For any week with respect to which or a part of which the individual has received or is seeking unemployment benefits under an unemployment compensation law of any other state or of the United States; provided that if the appropriate agency of the other state or of the United States finally determines that the individual is not entitled to unemployment benefits, this disqualification shall not apply.

     (g) (1) For a period of one year from the date of the discovery by the division of the illegal receipt or attempted receipt of benefits contrary to the provisions of this chapter, as the result of any false or fraudulent representation; provided that any disqualification may be appealed in the same manner as any other disqualification imposed hereunder; and provided further that a conviction in the courts of this State arising out of the illegal receipt or attempted receipt of these benefits in any proceeding instituted against the individual under the provisions of this chapter or any other law of this State shall be conclusive upon the appeals tribunal and the board of review.

     (2)   A disqualification under this subsection shall not preclude the prosecution of any civil, criminal or administrative action or proceeding to enforce other provisions of this chapter for the assessment and collection of penalties or the refund of any amounts collected as benefits under the provisions of R.S.43:21-16, or to enforce any other law, where an individual obtains or attempts to obtain by theft or robbery or false statements or representations any money from any fund created or established under this chapter or any negotiable or nonnegotiable instrument for the payment of money from these funds, or to recover money erroneously or illegally obtained by an individual from any fund created or established under this chapter.

     (h) (1) Notwithstanding any other provisions of this chapter (R.S.43:21-1 et seq.), no otherwise eligible individual shall be denied benefits for any week because the individual is in training approved under section 236(a)(1) of the "Trade Act of 1974," Pub.L.93-618 (19U.S.C. s.2296 (a)(1)) nor shall the individual be denied benefits by reason of leaving work to enter this training, provided the work left is not suitable employment, or because of the application to any week in training of provisions in this chapter (R.S.43:21-1 et seq.), or any applicable federal unemployment compensation law, relating to availability for work, active search for work, or refusal to accept work.

     (2)   For purposes of this subsection (h), the term "suitable" employment means, with respect to an individual, work of a substantially equal or higher skill level than the individual's past adversely affected employment, as defined for purposes of the "Trade Act of 1974," Pub.L.93-618 (19U.S.C. s.2101 et seq.) and wages for this work at not less than 80% of the individual's average weekly wage, as determined for the purposes of the "Trade Act of 1974."

     (i)    For benefit years commencing after June 30, 1984, for any week in which the individual is a student in full attendance at, or on vacation from, an educational institution, as defined in subsection (y) of R.S.43:21-19; except that this subsection shall not apply to any individual attending a training program approved by the division to enhance the individual's employment opportunities, as defined under subsection (c) of R.S.43:21-4; nor shall this subsection apply to any individual who, during the individual's base year, earned sufficient wages, as defined under subsection (e) of R.S.43:21-4, while attending an educational institution during periods other than established and customary vacation periods or holiday recesses at the educational institution, to establish a claim for benefits. For purposes of this subsection, an individual shall be treated as a full-time student for any period:

     (1)   During which the individual is enrolled as a full-time student at an educational institution, or

     (2)   Which is between academic years or terms, if the individual was enrolled as a full-time student at an educational institution for the immediately preceding academic year or term.

     (j)    Notwithstanding any other provisions of this chapter (R.S.43:21-1 et seq.), no otherwise eligible individual shall be denied benefits because the individual left work or was discharged due to circumstances resulting from the individual being a victim of domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19). No employer's account shall be charged for the payment of benefits to an individual who left work due to circumstances resulting from the individual being a victim of domestic violence.

     For the purposes of this subsection (j), the individual shall be treated as being a victim of domestic violence if the individual provides one or more of the following:

     (1)   A restraining order or other documentation of equitable relief issued by a court of competent jurisdiction;

     (2)   A police record documenting the domestic violence;

     (3)   Documentation that the perpetrator of the domestic violence has been convicted of one or more of the offenses enumerated in section 3 of P.L.1991, c.261 (C.2C:25-19);

     (4)   Medical documentation of the domestic violence;

     (5)   Certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency that the individual is a victim of domestic violence; or

     (6)   Other documentation or certification of the domestic violence provided by a social worker, member of the clergy, shelter worker or other professional who has assisted the individual in dealing with the domestic violence.

     For the purposes of this subsection (j):

     "Certified Domestic Violence Specialist" means a person who has fulfilled the requirements of certification as a Domestic Violence Specialist established by the New Jersey Association of Domestic Violence Professionals; and "designated domestic violence agency" means a county-wide organization with a primary purpose to provide services to victims of domestic violence, and which provides services that conform to the core domestic violence services profile as defined by the Division of Youth and Family Services in the Department of Children and Families and is under contract with the division for the express purpose of providing such services.

     (k)   Notwithstanding any other provisions of this chapter (R.S. 43:21-1 et seq.), no otherwise eligible individual shall be denied benefits for any week in which the individual left work voluntarily and without good cause attributable to the work, if the individual left work to accompany his or her spouse who is an active member of the United States Armed Forces, as defined in N.J.S.38A:1-1(g), to a new place of residence outside the State, due to the armed forces member's transfer to a new assignment in a different geographical location outside the State, and the individual moves to the new place of residence not more than nine months after the spouse is transferred, and upon arrival at the new place of residence the individual was in all respects available for suitable work.  No employer's account shall be charged for the payment of benefits to an individual who left work under the circumstances contained in this subsection (k), except that this shall not be construed as relieving the State of New Jersey and any other governmental entity or instrumentality or nonprofit organization electing or required to make payments in lieu of contributions from its responsibility to make all benefit payments otherwise required by law and from being charged for those benefits as otherwise required by law.

(cf: P.L.2010, c.37, s.2)

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill amends the current provisions of R.S.43:21-5 regarding disqualification from unemployment insurance (UI) benefits for misconduct by claimants.  The bill retains the provisions of P.L.2010, c.37 that bar UI benefits in cases of “severe misconduct” by claimants and increase periods of disqualification from and requalification for benefits, but amends the law to clearly define “simple misconduct” and “severe misconduct” in a manner that provides fair treatment to laid off workers and clear, consistent procedural standards for employers, as follows:

     1.  The bill adds a definition of “simple misconduct” which codifies into statute the definition of “minor” misconduct found in existing regulations.  The current UI statute has no definition at all of any misconduct other than “gross” (criminal) misconduct.  To be regarded under the bill as “simple misconduct,” behavior would have to be: improper; intentional; work-connected; malicious; within the individual’s control; not a good faith error; and either a deliberate violation of the employer’s lawful, reasonable rules made known to the employee, or a disregard of reasonable standards of behavior.  For example, for tardiness and absences to be regarded as simple misconduct under the bill, they must be repeated or chronic and without good cause, and unsatisfactory work performance must be deliberate and below reasonable standards.

     2.  The bill replaces the law’s definition of “severe misconduct,” which is currently only a list of examples, with a comprehensive definition of “severe misconduct” as work-connected misconduct other than gross misconduct which either: (1) is committed with malice and deliberate disregard for the property, safety or life of people at the worksite or consumers, and consists of violence, threats, theft, or other employee-caused, substantial property or monetary loss; or (2) is comprised of a pattern of instances of simple misconduct which are, after written employer warnings, repeated so frequently that they cause substantial property damage or disruption of employer operations.

     3.  The bill adds to the UI statute the requirement found in existing regulations that the burden of proof is on the employer to demonstrate that employee actions constitute misconduct, and adds a requirement not in the current or proposed regulations that the employer must provide written documentation.