Week Ending 2/5/16: Washington v. Board of Review

Schorr & Associates’ Employment Case of The Week ending February 5, 2016

By Alan Schorr

Washington v. Board of Review, 2016 N.J. Super. Unpub.  LEXIS 218 (App. Div., February 3, 2016)

A rare reversal of an unemployment disqualification for voluntarily leaving work without good cause attributable to the work merits discussion as this week’s Case of the Week.  While misconduct disqualifications are sometimes reversed on appeal, it is much rarer to see a voluntarily leaving case reversed by the Appellate Division.  Thus, this case merits discussion as this week's Case of the Week.

Ms. Shawn Washington was a property manager for an apartment complex.  In the course of her duties, she was sexually assaulted by a resident who walked up behind her and grabbed her while he had an erection.  She pressed criminal charges, but the assailant ultimately was not convicted because his mother had committed him to a mental facility.  Ms. Washington complained to management and expressed fear about working alone.  Management agreed to install a panic button, but never did.

A few months later, Ms. Washington took a medical leave of absence as a result of car accident.  Upon being cleared to return to work, she advised management that she would not be returning because she still felt uncomfortable working there because of the prior assault.

Ms. Washington filed for unemployment benefits.  The Deputy, the Appeal Tribunal, and the Board of Review all concluded that Ms. Washington was disqualified for benefits for leaving work voluntarily without good cause attributable to the work.  But the Appellate Division reversed.  The Court cited N.J.A.C. 12:17-9.4 (page 56 of the PDF) which excuses a claimant from disqualification if she can establish that working conditions are “so unsafe, unhealthful or dangerous as to constitute good faith attributable to the work”.  Also, “an employee cannot reasonably be expected to stay on the job where such threats of physical violence have been made to him”. Domenico v. Bd. of Review, 192 N.J. Super. 284, 289 (App. Div. 1983).

The Board of Review argued that Ms. Washington had waited six months to resign, but the Appellate Division pointed out that it was only a few months in between the incident and her leave of absence and that the employer took no steps whatsoever to make the workplace safer.  The Court also made clear that Ms. Washington was not required to make continuous complaints.  The Court also chided the Board of Review for simply adopting the findings of the Appeal Tribunal, holding that the Board acted “arbitrarily and capriciously.”

One of the reasons why claimants have a harder time reversing disqualifications for quitting is because the burden of proof is upon the claimant in a quit situation, whereas in a misconduct disqualification case, the burden of proof is upon the employer.  Since employers do not always participate in the unemployment proceedings, it is much easier to reverse a misconduct than it is to reverse a quit disqualification.  This case does not present a threshold quite as high as a “constructive discharge” in a discrimination case, and therefore this is a very helpful case for unemployment practitioners.

Attorneys for Claimant/appellant :  Sarah Hymowitz, Melville D. Miller and Anisa Rahim, Legal Services of New Jersey, Inc.

Attorneys for respondent Board of  Review: Christopher M. Kurek and Melissa H. Raska,  Deputy Attorneys General.

Appellate Judges:  HAAS and MANAHAN (per curiam).

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