Week Ending 4/18/14: Behn v. Board of Review

Alan Schorr’s Employment Case of The Week ending April 18, 2014

Behn v. Board of Review, 2014 N.J. Super. Unpub. LEXIS 865 (App. Div. April 17, 2014)

Randolph A. Behn scored a rare victory for a claimant trying to overturn an unemployment disqualification for voluntarily leaving work. These are consistently the most difficult types of claims to reverse on appeal, but in Behn v. Board of Review, the Appellate Division provided a valuable compendium of research and applied with approval some old cases that have been all but ignored in recent years. This case is not only applicable to unemployment cases, but for CEPA cases and other cases where constructive discharge is at issue. For that reason, this is a case that should be filed away and is well worth review as the Case of the Week.

Mr. Behn was the executive chef at the Oak Hill Golf Club. He was basically in charge of everything having to do with the kitchen, including hiring and firing. A contentious relationship developed between Mr. Behn and the bar manager, who was in charge of everything outside the kitchen. The bar manager engaged in a series of intimidating and defamatory acts against Mr. Behn, including allegedly falsely advising club members that Mr. Behn used marijuana, changing the wording and prices of menus and threatening to kill Mr. Behn. Mr. Behn reported these problems to the new clubhouse chairman, but his concerns were not addressed.

Instead, the bar manager was placed in charge of the entire clubhouse, including the kitchen. This included ordering the food and making menu selections. Mr. Behn would now be required to punch in and out every day and report to the manager before leaving. The manager did not provide any deficiency in Mr. Behn’s performance, and never explained why Mr. Behn was suddenly required to punch in and out. Based on Mr. Behn’s 30 years of experience and the nature of an executive chef, this was a substantial demotion of position. On his last day of work, the bar manager confronted Mr. Behn, cursed at him and screamed at him “almost at the top of his lungs”. Mr. Behn advised the clubhouse chairman that he was resigning.

Mr. Behn filed for unemployment benefits, which were initially granted. At the Appeal Tribunal, the examiner refused to order the testimony of witnesses that Mr. Behn requested. The Appeal Tribunal reversed. While finding that Mr. Behn was threatened, the examiner ruled that it must not have been that serious because Mr. Behn did not resign immediately. The Board of Review affirmed for the same reasons.

This is the type of “damned if you do, damned if you don’t” reasoning that has become so common in unemployment matters. If Mr. Behn had left immediately he would have been disqualified for not trying hard enough to work things out to try to preserve employment. In this case, however, the Appellate Division realized that the Board of Review had improperly disqualified Mr. Behn. Among the important points made by the Appellate Division:

  • ·“The public policy behind the Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment.”
  • ·“Threats of physical violence directed at the employee from which he may reasonably conclude that his personal safety is endangered constitute good cause for that employee to voluntary leave his employment.”
  • ·“Intentional harassment of an employee is an abnormal working condition and constitutes good cause for leaving work voluntarily.”
  • ·“An employee is entitled to benefits after quitting in the face of a substantial downgrade in responsibilities and pay.”
  • ·Citing CEPA law, “even if an employee’s pay and titled are unchanged, he or she may be subject to an adverse employment consequence.”
  • ·The Court cites cases from Minnesota and New York to support its decision that quitting due to a demotion, even if without a reduction in pay can justify quitting with good cause.
  • ·“[t]he cumulative effect of an employer’s actions may make an employee’s resignation justified.”
  • ·“[t]he agency must consider the totality of circumstances in determining whether a voluntary quit was for ‘good cause attributable to the work.’”
  • ·“Under the circumstances, plaintiff was not obliged to give the position a good faith effort. The club decided to place plaintiff in a position inferior to the person who threatened him with physical harm, defamed him and harassed him.”

I note again with frustration that, despite having good cause for leaving, Mr. Behn had to wait 2.5 years to get the unemployment benefits that should have been there for him as a safety net when he became unemployed. New Jersey’s unemployment appeal process is unfairly long and violates due process. A much better and faster appeal process is desperately needed.

Claimant/Appellant’s attorney: Robin Sammer Behn, Marc D. Mory, Dvorak & Associates.

Respondent Board of Review’s attorneys: John J. Hoffman, Acting Attorney General, Lewis A. Scheindlin, Assistant Attorney General, Christopher M. Kurek, Deputy Attorney General.

Appellate Panel: Judges Alvarez and Ostrer.

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