Workers who have been terminated from their job without cause or who were part of a layoff are generally entitled to unemployment benefits in New Jersey. However, it is all too common for employers to refute a former employee’s unemployment claims. Sometimes this is done on factual grounds and other times it is not. Anyone who feels they have been wrongly denied unemployment benefits should consider hiring an attorney to help file an appeal.
When an employee, known as the “claimant” is denied an unemployment claim, New Jersey Department of Labor and Workforce Development (DLWD) sends a Notice of Determination letter in the mail. The notice will explain why the claim was denied and describe the appeals process. Workers have 10 days from the mailing date of the notice (or 7 days from delivery) to file an appeal with the New Jersey DLWD Appeal Tribunal.
Why Should I Hire a Lawyer to Fight for My Unemployment Benefits?
There are several good reasons for someone to hire an attorney to fight for their unemployment benefits.
- The employer will most likely have a representative. Without an attorney in one’s corner, the cards are stacked against the employee. It can become a “David and Goliath” situation in which the employer has a representative and multiple witnesses and even HR and employment-related documents to prove their case.
- Legal experience counts. Most people who file an appeal are doing so for the first (and hopefully only) time in their life. Conversely, the employer and/or its attorney may have done this dozens of times and know the process by heart. Having someone with experience to navigate the process and be a zealous advocate can reduce stress and increase the odds of winning.
- The appeals process is complicated. Making sure that the paperwork is filled out accurately and that evidence and documentation is submitted correctly is the first step to getting a favorable ruling by the Appeals Tribunal. The hearing moves along fairly rapidly and an attorney with trial experience can help prepare the claimant for the kinds of questions they will likely be asked and question the employer and their witnesses. In addition, a lawyer can make legal arguments that can result in a favorable determination including a persuasive closing argument.
How to Prepare for an Unemployment Appeals Hearing
Confirm Hearing Attendance. Claimants who file an unemployment appeal will get a hearing notice in the mail. This will state when the hearing will take place and where (sometimes it is done over the phone). The claimant must “confirm” his/her attendance by 3:00pm EST the day before the hearing date. This can be done by calling the phone number listed in the notice or online.
Gather relevant documents. Workers should keep copies of any documents that were submitted in the appeals process and review them before the hearing in case they need to refer to them.
Have a strategy. One should work with his/her attorney on talking points and questions to ask the former employer. One’s attorney can also help determine what kind of evidence is needed to prove the case to the administrative law judge and, in some cases, how best to present the evidence.
Be on time. If the hearing is in person, then show up to the pre-assigned location of the hearing on time. Be sure to anticipate travel delays and leave with extra time. If the hearing is being done over the phone make sure to be ready for the phone call at the exact time scheduled. Note that if the hearing officer is running late the hearing may start later than the time listed on the notice.
Be honest, professional, concise and polite. Administrative law judges are human and can be prone to simple bias against certain behaviors. This includes slouching, rambling, swearing, rudeness, and exaggeration.
What Happens After an Unemployment Hearing?
Within two weeks the Appeal Tribunal will mail a written decision to the claimant and the former employer. In some cases, it may take longer. If the decision is in favor of the claimant, then the DLWD usually sends a check in the mail for any money owed. However, sometimes the employer files an appeal to the Board of Review, which will delay payment until after the further appeal. For more information, check out our page on the unemployment denial appeals process.
When the Appeal Tribunal rules in favor of the employer, the claimant can also choose to appeal the Tribunal’s decision to the Board of Review. Instructions on when and how to file this appeal will be included with the written decision.
How Often Do Workers Win Unemployment Appeals?
In 2017, approximately 144,000 unemployment benefits appeals were filed in New Jersey, according to the U.S. Department of Labor. The majority of appeals—more than 120,000—were filed by claimants. Among claimants filing an unemployment denials appeal the success was about 24.4%. Ironically, when it is the employer filing the appeal the success rate is scarcely better; about 30% won their appeals in 2017.
While past results don’t guarantee future outcomes, our law firm’s success rate at the Appeal Tribunal is over 90%.
Less than 10% of denials (about 12,000) are appealed further to NJ Board of Review. Here the success rate is much lower. Workers enjoyed a success rate of 5.6% while employers won only 6.7% of further appeals.
The next level of appeal after the Board of Review is the Appellate Division of the New Jersey Superior Court.
What If the Worker is Unable to Make it on the Day of the Hearing?
Those with a good reason can request a continuance of the hearing. A “good reason” could include a conflicting court date, inability to obtain legal representation, or if a key witness is unable to appear at that time. A person who is denied a continuance should state clearly that they requested one and were denied so that it is on record; the denial could be relevant to any future appeals.
What If the Employer or Worker Does Not Show Up?
When one of the parties does not appear at an unemployment benefits Appeals Tribunal hearing, it will stack the cards in favor of the party that does show up. However, while it looks poorly on the employer to no-show, for example, it does not guarantee the claimant a favorable ruling.
A no-show prevents the absent party from answering questions and cross-examining the other party and any possible witnesses. Evidence submitted (e.g. if the employer submits proof of claimant misconduct) will still be weighed on its own merits and the claimant must still present a solid case for receiving unemployment benefits.
The hearing officer has the right to question the claimant and base their ruling on any testimony elicited during the hearing.
Why Are New Jersey Unemployment Benefits Denied?
When someone is denied unemployment benefits it is either because the employer has filed a dispute or because the Department has determined that the claimant was ineligible for some other reason (see below). Employers pay unemployment taxes (as do workers) and the more claims that are filed for unemployment the more likely that the employer’s tax rate will go up in the future. As such, many employers wrongly fight every unemployment claim in the hopes of keeping such payouts as low as possible.
On the other hand, the employer may feel they have valid grounds to deny an ex-employee their unemployment benefits. Resolving these disputes and preventing unethical unemployment denials is why the Appeal Tribunal exists.
On What Grounds Can Unemployment Benefits Be Denied?
There are three major grounds an employer can use to deny unemployment benefits (and one that applies to the DLWD).
- Failed to meet the earnings requirements. New Jersey requires unemployment claimants to have worked for at least 20 weeks and earned at least $165 per week in order to qualify for benefits.
- Voluntary Quit. To collect unemployment, someone must be out of work through no fault of their own. Those who quit their job voluntarily and without good cause can be denied benefits. An employee who leaves for good cause attributable to the work (e.g. company was not providing adequate safety equipment, hostile work environment) is considered not to have left voluntarily and is still eligible for benefits.
- Termination due to misconduct. There is a wide range of behaviors that can be considered “misconduct.” This includes acts of insubordination, excessive absenteeism, showing up to work drunk, etc. It’s important to note that general performance issues and not being a “good fit” are not considered misconduct and do not prevent unemployment eligibility. New Jersey regulation N.J.A.C. 12:17-2.1 defines three levels of professional misconduct, each of which has specific consequences regarding claim denial:
- Simple misconduct. This would include any kind of wilful disregard of the employer’s interest. Generally this means refusing to comply with company rules or policies, such as not putting boxes in the appropriate storage room or not refueling vehicles before returning to the shop. In such cases, the worker is denied benefits for the week in which the misconduct occurred and the seven weeks that immediately follow it.
- Severe misconduct. These would include deliberate and malicious acts, such as chronic lateness, abusing sick policies, drinking or doing drugs on the job, or stealing company property. This means a disqualification of benefits until the worker has been employed at a new qualifying job and has earned six times the weekly benefit rate.
- Gross misconduct. Committing one or more acts considered a crime under New Jersey law (such as assault, sexual harassment, or vandalism of company property) would constitute gross misconduct. This will disqualify the worker from receiving benefits for the week of the misconduct and every week thereafter until he/she has been employed at a new qualifying job and worked for eight or more weeks and earned at least 10 times the weekly benefit rate.
- Refusing suitable work. Beyond the employer, the DLWD can deny employment claims on the basis that the individual was not actively seeking work and/or turned down suitable work in their field. That’s why anyone filing an appeal must continue to apply for benefits and should take on new work even while the case is being considered.
How Long Does the Appeals Process Take?
Appeals Tribunal. Workers have 10 days from the notice of the denial to file an appeal. It takes 12 to 15 weeks for the tribunal to schedule a hearing. The hearing usually takes place less than a month after the notice is sent to both parties.
Board of Review. Workers have 20 days from the date of the notice informing them of the tribunals decision. It takes about six months for the Board to review each case.
NJ Superior Court, Appellate Division. Workers have 45 days from the date of the Board of Review’s decision to appeal again. This process is much longer and can take from six months to a year.
Is the Worker Entitled to See Evidence Against Them Beforehand?
Yes, but the request must be made in writing within a reasonable time frame before the hearing to allow the employer to produce the evidence.
Are Appeals Tribunal Hearings Done Under Oath?
Yes. Those who attend hearings swear under penalty of law that they are telling the truth.
Is an Interpreter Available for Appeals Tribunal Hearings?
Those who are not fully fluent in English are entitled to an interpreter at the hearing. The request for an interpreter is best done in advance of the hearing. However, it is possible to request one at the beginning of the hearing. It is important that claimants ensure that the interpreter is not summarizing, but rather interpreting word for word. This includes all of the questions and all of the answers. If there is any problem with the interpreter at all, a person has a legal right to speak up and say so—the hearing should not be permitted to continue without acceptable interpretation.
Who Should You Contact?
If you were recently fired and denied unemployment benefits, contact the attorneys of the Rosenblum Law right away. Our attorneys are licensed in both New Jersey and New York and have a great deal of experience fighting employers and ensuring workers receive the benefits they deserve. Email Rosenblum Law or call 888-815-3649 today for a free consultation about your case.