by Terry
(New Jersey)
My son was fired 2/19/2013 from his job at a drug rehab.
A former client reached out to him via inbox on FACEBOOK. This person was never his client, had seen him at meetings with other clients they knew. He had only been in the position of conselor (23 yrs old) for a few months. He responded to this person via inbox. He admitted this when his employer asked him (another former client told them). They fired him on the spot saying their hands were tied due to state law (cant find it). They also said they would not fight his unemployment.
He was denied on grounds of simple misconduct. The letter
says denied from 2/19/2013 to 4/13/13. So confused! He worked for them for two years, never a blemish on his record. He bought a new car a year ago and quit college to take the courses the employer wanted him to take.
Can he win an appeal? If I understand they have to prove intent. If he loses can he fill after 4/13/13? i WISH we could afford an attorney, we cannot. Appreciate any suggestions. Thank you for your time.
Hi,
New Jersey amended their definitions of misconduct to include three different types in the summer of 2010 (or maybe it was 2011).
Prior to then if someone was fired for “misonduct in NJ, all one had to do was file in each of those weeks denied and then without having to meet any kind of earning requirement in subsequent employment, the unemployed person could finally, begin collecting.
Basically, a finding of simple misconduct is the same as it used to be for all misconduct.. Your son will be able to collect, but those weeks denied are removed (I think) from the balance of the benefits available which should of been detailed in the monetary determination.
Now as to whether he can win an appeal .. I’d say what YOU told me, that the employer claims they were forced to terminate employment due to a state law that you can’t find .. well, I’m not sure that makes any sense, at least not if I’m looking at this from an employer point of view. That’s not the sort of potential liability a smart employer would leave to chance, because “unaware” employees can create big liabilities by “mistake”.
An employer (was his employer a non-profit?) terminates employment when an employee doesn’t comply with the employer’s rules. Rules are in written form so they can be enforced uniformly and “known” to all employees and used as evidence to prove misconduct.
If there was some state law with the potential to be violated, it makes sense to me that all employees would know what that law was and how it worked, because it would likely be found in the employee handbook and I suspect, the employer would also provide special training, or mention it in orientation at least, if employees are the ones with the greatest potential to violate the law.
Employers have a vested interest in staying in compliance and out of hot water with lawsuits from clients ..
What he did sound like there may be some medical aspects to it .. could it of been a possible violation of HIPAA maybe? (Employers tend to err on the side of caution when in comes to “interpreting” what’s a violation.)
For purposes of winning appeals, if a person can prove(and I do not use the word prove lightly .. ever) that the employer has missed some pivotal points in their burden of proof that misconduct was committed, such as the violation being of a “KNOWN written rule or policy and it doesn’t call for immediate termination and is open to “progressive discipline, the employer would have a tough time of it when a hearing officer, or the claimant cross examined the employer asking if they could prove the rule and the fact the claimant was made aware of the rule and knew his job was in jeopardy. (That is pivotal because it’s what makes any misconduct, “willful”.) Only
There are few instances of a one time error made in good faith rising to a level of even simple misconduct.
Most instances of a clean record and one instance so bad you get fired are actually gross misconduct.
New Jersey however has three levels of misconduct for reasons I can only believe were to stop people from collecting.
That they only found him guilty of simple would have me appealing to save rights until I could talk to someone .. if it were me.
They had three options, but maybe the employer didn’t respond and the state is practicing their own form of attrition ..
Simple
Severe
Gross
The last two carry disqualifications of weeks, like in simple, but also, require the claimant to purge with an earning requirement in subsequent employment.
Hello .. when a person gets a job .. reasonable people want to keep it .. so most people don’t realize what those determs say exactly.
In other states you don’t find NJ’s simple miscondcut DQ .. the first level is usually the only level and similar to what NJ means by “severed misconduct”. Although some state also have gross misconduct provisions for certain types of behaviors.
I would advise him to contact a NJ attorney given that the state denied him once already. (NJ is one of those states that require claimants to hire NJ attorneys for the Examiner Tribunal Hearing .. although NJ doesn’t require the “hearing examiner” to be an attorney.)
Go figure,even the state isn’t required to hire attorneys, but the unemployed people do .. and I happen to know how employers work around the requirement.
Let me know if you need a NJ attorney for an unemplo0yment appeal. I know where to find one that takes claimant appeals.
But in the end .. if he doesn’t .. he should be able to collect when that disqualification period is up .. even if he doesn’t find new work.