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In nj if you lose your appeal can you still try and claim benifits at a later time

by Bill
(Nj)

I was terminated for misconduct in November. The reason was excessive Internet usage and texting. I had been written up for it in October. Internet usage was allowed and used by all employees everyday. It was used for personal and business purposes by all employees. To the point where finally they had to block Facebook because it was used so much that it became a problem. This company selectively enforced this policy only when they wanted to start the process of getting rid of you. This position was a sales Job and I was the lowest rank. (cold caller). I worked there 14 months. Had used the Internet the same way the whole time I was there. In October they skipped the verbal warning and wrote me up. It appeared at the time the company was struggling. They were firing people left and right. They were trying to build a file on me so they could fire me. It really feels like a salary dump. I was good enough to just barely keep my numbers at a point were they couldn't fire me for production but it was very very clear I was not going to be moved to the next step. I was paid a decent hourly rate for being a cold caller. I wasn't good enough to make the next step so I was not in the future plans for the company and made to much money for not advancing. I filed my claim and was declined due to misconduct. I received a letter from nj unemployment stating there was a 7 week gap before I could re apply and I could appeal. I did. My hearing is next week. My main concern is if I lose my appeal hearing can I still claim my benefits as per the letter or do I lose all benefits moving forward. I'm very concerned now they will decline me again and then I can't claim anything. Even though in NJ I pay into this fund with every check I have ever made. I have never claimed unemployment before. This is my first time. Please help me answer some of these questions.





Hi Bill,

Mind if I try to get you to focus on what's important for your appeal hearing?

Try to prove through your testimony and possibly a witness that the policy was not uniformly enforced by the company and forget the speculations as to why they fired you .. they are irrelevant.

As for the disqualification question.

Give me the exact language used on the determination .. including the disqualification.

Chris

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Jul 24, 2012
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How long are they legally allowed to...
by: Anonymous

How long is the state allowed to delay the appeal process for the first hearing? I filed for unemployment in March and was denied for misconduct. I immediately faxed and snail mailed a letter of appeal the next day. That was April 2, 2012. It's now July 23rd, 2012 and I have heard nothing back as to when I will actually get a hearing. Is there a time frame that legally they have to hear my case by? Also, I recently got married and became a veteran's dependant and was told that regardless of anything I am entitled to my unemployment. Is there any truth in that?
Thank you for your time.




Hi,

Regardless of which state you are waiting on an appeal hearing to be docketed, I only know of a DOLETA guideline .. not a legal limit to the amount of time to docket and hear appeals.

Generally speaking, an unemployment appeal section is supposed to get it all done in 30 days from the date the appeal is received.

However, this is a guideline that the amount of hearings has made almost impossible to meet in many states, but I don't know that a state wouldn't take advantage of a certain amount of opportunity to slow the hearing of appeals .. just because they are trying to keep the level of their UI fund below any triggers which may force them to borrow money. (Insolvency)

My suggestion for trying to speed up the process is the same for you as anyone else that have asked. Call your attorney general office or at least the unemployment board's office and see if they can't assist you in getting some action on your appeal .. such as contacting the appeal section which might bump your appeal so it will be docketed.

Which in turn, should result in you, receiving an NOH (Notice of Hearing) so you can start preparing for the hearing.

As far as you now being a dependent of a veteran (is this vs. the spouse of an active service member's?) I do not know of anything that would would automatically approve you for benefits.

Although quitting to follow a military spouse is widely approved as qualifying, there are conditions which vary by state. You didn't provide enough additional or relevant information for me to answer you specifically on the subject.

You can find some important info on this quitting to follow a spouse in a chartbook at the USDOL

Chris

Mar 25, 2011
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Glad I could be of help
by: Anonymous

Glad I could be of help! I am going through unemployment hell right now. Denied initially for severe misconduct, now in the appeal process and my former employer is not at all making things easy for me. Its just one big waiting game now! Denied for same reasons. Excessive internet usage. I will keep you updated.

Mar 25, 2011
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Getting through to unemployment NJ
by: Anonymous

If you hit number 2 for spanish you will at least be put on hold for a while and then when someone comes on, you say English and BAM you get through! It worked for me!




Perfect idea!! I've heard this little trick works in all states, as the bilingual lines are never as busy.

Chris

Jan 18, 2011
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Response
by: Bill

Chris.
Thank you for your quick responses. They have been helpfull. I claim my first week after the 7 week gap tomorrow. All my previous claims have been held and not sent due to what I guess was because the simply misconduct. I am hoping tomorrow I will be able to know if my first claim can go through now. I don't want to appeal if it will jeopardize me claiming all together. I can not pay my bills or survive without being able to collect benifits until I can get a job. My issue is I can't get a hold of anyone at UI. The phone always says to many calls at this time and disconnects. I call everyday all times of the day even before they open and wait on hold and nothing. I can't confirm with them if I am able to simply move forward now that the 7 weeks are up. If I could confirm i would drop the appeal. It's not worth the risk. My question to you is can I drop the appeal and I if so how far in advance do I need to do it? My appeal hearing is Friday. I feel like I'm playing Russian roulette with my future by appealing. If I lose and the invoke severe misconduct and can't collect anything. Game Over. Have you seen this scenario before. Don't appeal and just claim moving forward or roll the dice and appeal and gamble it al? Let me now what you think. Thanks again.


Bill,

As I said, the "severe" part is new, so I have not seen this specifically, but I do understand how an appeal of a determination which the disqualification does not require a return to work to purge the disqualification and only must be served through weeks without benefits can change if the hearing decision finds that it was not the first level of misconduct NJ has and is actually found to be severe misconduct.

Without seeing your determination .. I can't really say anymore.

It is your appeal and you do have the right to request the appeal be withdrawn.

Jan 18, 2011
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Cont'd
by: Chris - Unemployment-tips

What is of primary concern to the average person is this part:

"repeated violations of a company rule, repeated lateness or absences after receiving a written warning from your employer"

It is this language that leads me to believe the majority of people now being fired will have to deal with this new type of misconduct .. because that is usually what employers defend a discharge for misconduct with. Written stuff.

I could go out on a limb and say that the initial determination found you guilty only of simple misconduct and that you might want to withdraw your appeal which you hope will get you those weeks of benefits you have been denied to avoid a finding of severe misconduct at a hearing .. but like I said .. I haven't been able to read all you have received from the department so I don't know for sure.

Severe misconduct would not prevent you from ever collecting again .. but it does require you to find another job to purge the disqualification .. just as if you had quit your job in NJ.

This is what has always been odd about NJ unemployment benefits when compared to the rest of the states .. you could get fired from your job for misconduct and simply wait 6 weeks and start collecting.

Now .. NJ has added a separate type of misconduct that is really just middle ground and the norm and it carries that additional penalty of having to return to work too.

Gross misconduct is the only type of misconduct that carries the possibility of an indefinite length of time for the DQ.

Jan 18, 2011
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New Jersey is now almost like all other states when it comes to work related misconduct.
by: Chris - Unemployment-tips



Hi Bill,

First, you need to understand that when any law is new .. it takes time to define the intent of the law precisely. This is done through appeals .. some of which will end up as precedents that interpret the intent meant by the legislature that changed the law.

Secondly, an appeal isn't a request for backpay .. it indicates disagreement with a departmental determination or a decision rendered by a hearing examiner, board of review .. After the final appeal to a board of review, the entire appeal process moves to the some state appellate court and the matter is no longer "administrative", but in the realm of "civil court". But I am no lawyer and I only provide information for you to consider .. not count on. If you want real legal answers you need to talk to a NJ lawyer.

Without being able to read the documents and issues you are reading .. the most I can say about the addition of "severe misconduct" is that it's not the employer that added the issue .. it's the state and most likely because an issue usually needs to be present on a hearing notice so the hearing officer has the jurisdiction to consider it .. at least this is my understanding.

If you were a state that had recently changed your misconduct law that used to have only misconduct and gross misconduct and you added "severe miscondcut" which sat right in the middle and carried a stiffer disqualification that required the claimant to "return to work and work for a minimum length of weeks and earn x amount times their weekly benefits amount before attempting "requalifying" .. wouldn't you add it?

As far as I can tell, only "gross misconduct" in NJ carries and "indefinite" DQ.

Severe misconduct has been broken out as separate because the DQ is different and stiffer than a finding of simple misconduct.

It is the hearing examiner that decides what level you are guilty of .. if in fact you are guilty.

What I have noticed is that "severe" includes language such as "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."

Jan 17, 2011
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Thanks, 1 more question
by: Bill

Chris, I called the phone number on the appeal hearing letter and spoke to a women there very briefly. It is impossible to get anyone on the phone directly at unemployment office in NJ. I asked her about the letter I just received from them stating "issues involved misconduct" "severe misconduct". I advised her this is the first of anything I have been told or in writing about severe misconduct. I asked what does that mean. She said it meant they will need to determine if it is a 6 week or 8 week penalty. Not sure how to read this situation. Since I received a letter in December (prior to me getting any info on the appeal) it stated I could start claiming as of 1/10/11. Can my employer modify the charge after the fact once they are advised I have filed an appeal. From misconduct to severe misconduct to be spiteful and try and block all benefits all together. Also do you know if unemployment sends me a letter stating I can re-apply for benefits can my hearing change that if I lose. I was under the impression the hearing was for me to try and claim back benefits from the previous 6 weeks and would not affect me moving forward on claiming.


Jan 14, 2011
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New Jersey Disqaulification For Misconduct
by: Chris

Hi Bill,

Give me a moment, and I promise to get to the severe misconduct disqualification in NJ

No worries about the rant .. It's just that one of my new year resolutions is attempting to keep things this part of the site focused on .. unemployment benefit talk, vs. unemployed talk ..

I'm the last one to tell someone they can't rant and rave .. it's better than whining, but I also don't like unruliness .. I use to have a tab in the left hand nav that said "Rant-n-rave, but it was hardly ever used and when it was .. I usually had to delete it because I like words with more than four letters .. I'm thinking of putting it back up again .. for water cooler talk:)

NJ's "severe" misconduct disqualification and descriptions of what that is, is now more in line with what other states just call misconduct misconduct and so is the disqualification.

It has also caused the percentage of people that used to get unemployment in NJ to drop like a rock to levels also more in line with the rest of the country ..

I can't think of one other state that has a DQ for misconduct that doesn't require a person to return to work and earn x amount times their WBA and then have another qualifying separation from work to requalify. This is called "purging" the DQ.

Therefore, it would be important to win that unemployment hearing otherwise you will have to return to work .. and let's face it .. if you find another job .. you'd want to keep it .. because the same rules will apply to the separation.

All I can do is tell you that with the written warnings .. it looks sketchy for you, but claimants do have success if they find the weaknesses in the the employers case of misconduct.

One thing mentioned was with the first warning .. they stepped you right on up to a final written warning .. so explore the employee handbook's "progressive discipline policy" .. pick apart the internet usage policy and above all remember that for an employer to be as weighted as possible, an employer is wise to enforce the rule uniformly .. not arbitrarily, but also remember that just you saying it wasn't .. is not usually enough to convince anyone .. that's why I mentioned a "witness" .. to corroborate.

It's all a legal argument.

It is almost always impossible to find a former co-worker willing to testify on your behalf .. because they will of course be afraid of losing their own job .. so think .. former employees.

I just realized that this question should be in the unemployment appeal Q&A's .. so if you can't find it later .. it's because I moved it there.

I'd recommend an affordable hearing rep, but NJ requires paid representation to be an attorney and I haven't found a NJ attorney to add to my new referral list .. another New Year goal of mine.


Jan 14, 2011
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Response to your question
by: Bill

Chris. Thank you for the response. Sorry about rant not sure how postings worked. I recieved a letter in December that stated declined to due misconduct. The letter stated I could re-apply on 1/10/11 (7 week gap from initial eligabilty) in NJ for simply misconduct . What scared me was I got my letter with my appeal hearing time and date (telephone hearing). It stated " the issues involved. Discharge for misconduct discharge for severe misconduct ". This is the first I have seem or been told of anything related to severe misconduct. I panicked. Starting doing research on Internet (found your website) and read on others that in July 2010 they changed the law to now include misconduct (7 week gap),Severe Misconduct (complete denial of benifits until you work 4 weeks at a new place and make 6 times the amount of what you would claim weekly) and gross misconduct (when what you did can be deemed illegal and be prosecuted by the law). What worries me is if I lose my appeal will that supersede me collecting base on the letter stating I could apply as of 1/10/11. Also can a charge be modified by the employer once they are notified I am appealing. Like from misconduct to severe misconduct.

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