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Fired for working another job while currently employed

by Michael
(Rockaway New Jersey)

I was allowed to use and take home the company car for 'job 1', Unbeknowst to job 1 in July of 2016 I went and got my real estate liscence = "job 2".
August of 2016 'job 1' decided to install GPS tracking equipment in all vehicles. I was told numerous times by the owner of the company "job 1" that he didnt care what I did as long as I sold (produced) for the company. In March of 2017 "job 1' found out from unknown resources that I was also selling real estate, the owner and his 2 children(in there 40s) called me into the conference room and i was yelled at for not disclosing to them about the 2nd job and that it better not interfere with "job 1" also i better not use the company car for real estate.
I was fired from "job 1" October 24th 2017 and filed for unemployment benefits in New Jersey where I work and live.
I received the phone interview on 11/27/2017 and was told my employer is claiming I was working real estate while using the company car and the employer would be providing a GPS report to substantiate their claim, which I am sure they provided this GPS report but I do not feel their claim is substantiated.


The exact wording on this claim denial states: You were Discharged from work on 10/24/17. You were discharged on 10-24-17 for violation of company policy when you were found to be working at another job during company time and using company vehicle on 10-18-17. Your actions constitute a willful and deliberate disregard of the standards of behavior your employer had a right to expect. Therefore, your discharge was for simple misconduct connected with work. You are disqualified for benefits.

I never received a company policy nor was it ever established what my hours of work were to be, nor the standards of behavior expected of me from my employer. I was allowed to go to the doctors on company time or any personal matters and utilize the company car for such practices, the owner of the company stated multiple times, you guys are not on the clock you make your own hours.

I do wish to appeal the decision but I must respond no later than 12/11/17 Please provide any advice in this matter which could help me with my appeal letter.

My Reasonable Advice About Appealing This Determination From New Jersey Unemployment Department Finding Simple Misconduct



If it were me, I wouldn't appeal because it didn't sound to me, as if you are denying that you did use an employer/company provided car to conduct your own real estate business.

(I must admit, I haven't gone so far as to check on whether real estate commission would be covered, or exempt from coverage by unemployment insurance in NJ.. if you're paid by commissions .. for requalifying purposes.)

But because you didn't deny explicitly that you never used the company car from Job 1 to conduct business for Job 2, I am going to remind you there is something unique to NJ about being disqualified for being fired when there isthree levels of misconduct with varying disqualifications.

Simple Misconduct: A simple misconduct disqualification (i.e. insubordination, lateness or absences with no written warnings from
your employer) would begin with the week the firing or suspension occurred, and continues for the next seven (7) weeks. After the disqualification period ends, you may be eligible to collect benefits.

In other words, you don't need to return to work, generally speaking to earn an amount specific to a multiple of whatever your weekly benefit amount to requalify.

Severe Misconduct: If you are discharged for severe misconduct, you are disqualified for benefits indefinitely until you work in new employment four (4) weeks and earn six (6) times your weekly benefit amount and become separated through no fault of your own. Examples of severe misconduct are: use of drugs/alcohol on the job, repeated violations of a company rule, repeated lateness or absences after receiving a written warning from your employer, destruction/theft of company property or misuse of benefits.

Your actions as an employee, at least in my opinion, potentially give any employer a chance to argue as severe misconduct, or might also be considered by a hearing examiner .. to be severe and therefore, knowing if any subsequent real estate commission are actually earnings .. might be important to know.

Gross Misconduct: If you were fired for any reason that is serious enough to be considered a crime of the first, second, third or fourth degree under the "New Jersey Code of Criminal Justice," you may be disqualified from collecting benefits indefinitely. This is known as a "gross misconduct" discharge. To remove a "gross misconduct" disqualification, you must return to work for at least eight (8) weeks, earn ten (10) times your weekly benefit rate, and become unemployed through no fault of your own. The new work must be employment covered under the unemployment compensation law. In addition, the wages you earned with the employer who discharged you cannot be used to establish a current or future unemployment insurance claim or to remove a disqualification.

I don't think this applies to you, but then I've coached people who were found to of committed gross misconduct .. out of the gate.

My advice .. in case anyone misses it, take the simple misconduct finding and be grateful enough to not risk the initial determination might be modified to severe misconduct after an appeal hearing. Makes sense to me, if you really do think they have GPS records and they submitted them to the unemployment department, and you're only assuming they have no route to substantiate you were using their car for your own business, or a second job.

Another way to look at the situation is you were the one putting miles on an employer owned car which puts put maintenance wear and tear cost on them to help you with your second job, not to mention taking advantage of car insurance you probably didn't pay for and burning up gas the employer might of paid you back if you filled up .. via expense account records .. as not being any kind of misconduct at all .. because they were nice enough to let you drive that car to the doctor .. and other personal type business things a reasonable person would know they should probably use their own car for.

I really do wish you the best, but as you might of noted .. not necessarily meaning I also hope you win your appeal hearing.

Chris

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