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​​​​​​​​Welcome to the LSNJLAWSM website, provided by Legal Services of New Jersey (LSNJ). LSNJ is a 501(c)(3) nonprofit offering free legal advice to low-income people in New Jersey. Find legal information by clicking on a legal topic or typing a few words into the search box. ​

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Jobs and Employment
Tips for Preparing Your Unemployment Claim

Are you applying for unemployment benefits? The following suggestions may help you to understand the process and prepare your case.

  1. Prepare Your Case
    Being prepared for your first call with the New Jersey Department of Labor for the claims examiner interview can make a big difference in presenting your case and in getting benefits. Preparation is even more important at an Appeal Tribunal Hearing and the Board of Review. For all stages, have your list of important points in front of you, so you can get them all in at the call or hearing. The following tips will help you prepare for each step of the process:
    • You are entitled to representation for the initial interview.
    • Write down your most important points to show that you did not commit misconduct or that you had a good reason for leaving the job. If you voluntarily left your job after experiencing problems on the job, explain how you tried to resolve the problems in the workplace before leaving. If you had health issues as a good cause reason, you will need to provide medical documentation.
    • For the initial claims interview, you can ask to fax documents after the interview.
    • For Appeal Tribunal and Board of Review appeals, you can request and get the audio record of the prior proceeding.
    • The Appeal Tribunal hearing will focus on testimony. You will have the opportunity to present your points. The Appeals Examiner will ask you questions, and then you can request to testify to points that help you that are not covered. If the employer participates in the hearing, the employer will have the right to cross-examine you (ask questions). You will also be able to cross-examine the employer and can ask to give rebuttal testimony (evidence to contradict the employer’s statements).
    • The Board of Review appeal is a written appeal. There will not be a new hearing, so you should submit a letter or brief with your points and, if needed, new documentary evidence, especially if you did not have such evidence for the Appeal Tribunal hearing, such as medical documentation.
    • At the Appeal Tribunal, submit the documents you want to discuss beforehand, and call the appeals examiner in advance to get the employer’s documents so you are not surprised at the hearing. If an employer submits documents at the Appeal Tribunal hearing and you want time to prepare, you can ask for an adjournment (postponement).
    • The Board of Review will listen to the audio record of the Appeal Tribunal hearing, so you should try to get all your evidence in at the Appeal Tribunal stage. At all stages, you can call Legal Services for advice and assistance. In some cases, Legal Services may be able to represent you.

  2. Appeal on Time
    If you are denied benefits in a written determination, appeal on time. From the deputy decision, the appeal time is 10 days from mailing or seven days from receipt of the decision. The agency does not easily allow late appeals, and you could be prevented from getting benefits due to a late appeal. To file your appeal, you just need to say you disagree with the determination or decision. You can do that by email or regular mail. You can also show good cause for late appeal by showing that there were very good reasons beyond your control for the delay. The agency also has responsibility to assist on language issues, so if your primary language is not English, and your appeal was delayed because it needed to be translated, this may be good cause for late appeal. Medical reasons, such as depression or hospitalization, will also be significant reasons to show good cause for late appeal.

  3. Understand Your Case Issues
    The notice of hearing will contain the issues that may be considered. It’s very important that you understand the issues that will be addressed in your case. If your case involves misconduct, understand the different impact and standards, and the risks. For simple misconduct, there is an eight-week delay in getting benefits, but you will get benefits then. In some cases, it may be better not to appeal, if you think the employer will state that you were warned about the reasons you were fired. The Appeal Tribunal will consider increasing the sanction from simple to severe misconduct if you appeal. Severe misconduct, which employers will try to get especially if you have received warnings about your job performance, requires malicious action and is a total disqualification from benefits. For a voluntary quit, you must show good cause for leaving, but this standard is difficult. Before leaving, you should address in writing the issues that are causing problems. Medical good cause requires documentation from a medical provider, and submission of documents to the agency and to the employer before leaving, if this is possible. With regard to your reasons for leaving, you should write down efforts to request a change of job, if your health is aggravated by your current job. If you submitted a resignation letter and did not include a description of the problems, you should explain why you did not do this, such as not burning your bridges for a reference, if that was the case.

  4. Continue to Report!
    Continue to report online or by phone while your appeal is pending, even if your benefits are being withheld. If your reporting is not in the system, you may not get benefits, even if you win your case. You can show good cause for not reporting (such as being locked out of the system), but even then it is best to correct the problem as quickly as possible.

  5. Know Who Carries the Burden of Proof in Your Case
    You will need to show you are eligible, especially in good cause for voluntary leaving cases. Employers have the burden of proof on misconduct, but claimants have the burden of proof on voluntary quit. Employers should not be able to win a case on hearsay about events at work. Hearsay statements involve testimony about which a person has no first-hand knowledge—for example, a human resources supervisor testifies about what a floor supervisor told to them. You can object to this hearsay to make the point, although the hearing officer may allow it, even though it cannot be the sole basis for the decision.

  6. Work Changes /Suitability of New Work
    In many cases, the agency will decide that you have a total disqualification for voluntary quit, when a four-week sanction is more appropriate. If you have had your hours reduced or had significant job changes, and you leave the job because of this, this may be considered as an issue of suitability of work or new work. If the employer changes your shift, substantially reduces your pay or your job duties, this can then be considered under a new work sanction. The sanction for refusal of new work is only four weeks, compared to the complete denial of benefits for a voluntary quit sanction. More detailed information about these issues is available in the Voluntary Quit and Misconduct​ section on LSNJLAW.

  7. Work Availability and Disability
    To be eligible for unemployment benefits, you have to be able to work. Even if you cannot do your old job, as long as you can potentially do some type of work, you can be eligible. If you are temporarily disabled and cannot do your old job, you may be eligible for temporary disability. If you become disabled while unemployed, you can let the agency know and get disability benefits during unemployment. During unemployment, keep a record of your job searches. You will need to show you are attached to the job market. There is also a special program called family leave benefits. Although work protections may protect your right to unpaid leave for a birth, or a serious medical problem, or to take care of a family member, there are six weeks of benefits provided by the program for care for a seriously ill family member or to bond with a newborn or newly adopted child. If you are terminated because of a disability or because of leave, you may file a complaint about violation of those rights under the Family and Medical Leave Act (FMLA), or the New Jersey Law Against Discrimination, which can also be combined, even if you have exhausted your FMLA rights. For example, if you exhaust your FMLA rights but have a date certain to return to work within one month, that may be considered a reasonable accommodation to allow you to return to work. Complaints regarding discrimination on the basis of disability can be filed with the Equal Employment Opportunity Commission, the New Jersey Division on Civil Rights, or in court.

  8. Refunds
    If you are found ineligible after receiving benefits, the agency may issue a refund notice, but they need to give you an opportunity to address the issue before making that decision. If the error was due to an agency mistake, there are limits on the way they can recover the refund. If your employer appealed or protested your benefits late in the process, that might also be improper. If the recovery of the refund would be unfair, and especially if you are disabled, you may be eligible for a waiver of recovery of the refund.

  9. Protection Against Retaliation
    If the employer is focusing on you because you are complaining about wages or working conditions, taking leave protected by law, or mistreatment based on race, age, disability, national origin, sex, or other protected category, then you may have job protections. Such complaints are protected under many laws. If you are talking with other workers about improving wages and working conditions and your employer retaliates against you for doing this, there is protection for this activity. Such activity is also protected under employment law and should not be considered misconduct.

  10. Call for advice!
    The Workers Legal Rights Project at LSNJ can advise you and represent you in wage and unemployment matters. Apply online or call 1-888-LSNJ-LAW (1-888-576-5529).
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3/27/2020