Legal Issues and Recent Developments, Published by the Law Office of Mark D Lurie

Unemployment Compensation – Be Careful What You Say at Work

In the past few days, the New Jersey Appellate Division handed down two separate unpublished opinions, which should serve as a stark reminder to employees that, based on ill-considered and rash words, they may be subject to termination and denial of unemployment benefits, even if they didn’t mean what they had said.

In Rooth v Board of Review, Docket No. A-2761-08T3 (February 25, 2010), the employee voluntarily quit her job as a disciplinary audit financial specialist for the Office of Attorney Ethics on June 20, 2008.  In a formal resignation letter, she advised that July 4 would be her last day of employment, to move to Florida.  Four days later, on June 24, she decided to rescind her resignation, after realizing that her application for a mortgage in Florida might be at risk if she was unemployed.  Her employer denied her request, but allowed her to work for an extra two weeks.   The employee then sought unemployment benefits, claiming that she was willing to work, but that her employer didn’t allow her to rescind her resignation, in effect, terminating her employment. The Appellate Division affirmed the denial, noting that the employer had no obligation to accept her decision not to resign, particularly in light of her stated decision to relocate to Florida as soon as her financing was in place.

In DeBari v. Board of Review, Docket No. A-4544-08T2 (March 1, 2010), the employee was fired after it was reported that he told a co-worker:

I will wait by the door at 6:00 am and shoot the first person with buckshot, then drag the body into the file room and wait for the next guy. A few employees, I wouldn’t shoot them in the chest, I’ll shoot them in the knees and watch them suffer. I got a gun in my f___g car now. You guys are f____g lucky I got my meds. It doesn’t matter anyway, because I’ll get off.

Employee was charged with a disorderly person offense, which was dropped after he successfully completed a pre-trial intervention program.  In applying for unemployment benefits, the employee denied making that statement, and noted that he was never convicted of the crime.  Other employees testified that, while he made “some generalized threats, which were a way he commonly speaks,” this was “just Joe running his mouth.”  The court affrirmed the denial of benefits, noting that a criminal conviction is not necessary, and that, based on all the evidence, there was credible evidence that the employee engaged in gross misconduct in the workplace by making threats against co-workers.

Tags: gross misconduct,

One Response to “Unemployment Compensation – Be Careful What You Say at Work”

  1. [email protected] Says:

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