Alan Schorr’s Employment Case of The Week ending November 29, 2013

Wileman v. Board of Review, 2013 WL 6169200 (N.J. App. Div., November 26, 2013)

The unemployment case of Jessica Wileman v. Board of Review does not break any new ground, but is interesting in that it highlights the compete dysfunction of the New Jersey Department of Labor, and it is a primer on everything a claimant could possibly do wrong to screw up their own unemployment claim.

Ms. Wileman was employed as Assistant Vice President and Branch Manager by Citizens Bank from 2006 to November 30, 2008. She claims she left her employment that day and subsequently sought a “medical leave” due to “personal health reasons, including work related stress, anxiety, panic attacks, inability to sleep, nausea and migraine headaches.”

The physician whom Ms. Wileman consulted estimated appellant was capable of returning to work sometime in February 2009. According to Ms. Wileman, she was ready and willing to return to work on February 2, 2009. Before she could return to work, however, she received a letter from her employer dated January 29, 2009 terminating her from her position due to unexcused medical absences.

She filed for unemployment and was apparently determined by the D.O.L. to be eligible for benefits because she began receiving benefits on February 1, 2009, apparently without objection from the employer. She collected a total $28,562. On October 24, 2011, more than 2-1/2 years later, she received a deputy’s determination in the mail advising her that she was disqualified for benefits because she “voluntarily left work without good cause”. The Notice advised that she had not been available for a fact-finding in July 2011, and therefore could not demonstrate good cause for leaving. It does not state in the opinion whether she was advised at that time that she would be required to refund the money she had been paid, but in our experience, it usually does not advise the claimant that they will be seeking a refund, so the claimant is often unaware of the severity of not making a timely appeal. Even more importantly, it does not explain in any way why the Department of Labor decided, 2-1/2 years after the fact, that she had quit her job without good cause.

Although receiving notice that she must appeal within seven days of receipt, or no later than November 3, 2011, Ms. Wileman did not appeal until December 7, 2011, more than one month late. The Department of Labor did not get around to holding an Appeal Tribunal hearing until May 14, 2012. It does not appear that the merits of Ms. Wileman’s claim were ever discussed. The opinion only addresses the fact that Ms. Wileman testified that the reason she filed late was because she was “too busy” because she had just opened her own business on October 25, 2011, and also because she was trying to talk to a Division employee to understand what happened. The Department of Labor did not accept her excuse for late filing, and without addressing the merits of her claim, denied her appeal. It was then affirmed by the Board of Review and the Appellate Division.

The Appellate Division found the briefs so clearly demonstrated a lack of good faith on Ms. Wileman’s part that the Appellate Division did not even permit oral argument and decided the matter summarily. Rare for the Appellate Division. I am left scratching my head at how such an unjust result could have happened. After all, Ms. Wileman did not quit her job. She was terminated while on medical leave. That is never a ground for disqualification. There was never a hearing on the merits. Yet, somehow, 2-1/2 years later, after she had collected her benefits and moved on to new employment, her old employer apparently questioned her benefits. No one seems concerned that the employer waited 2-1/2 years to appeal, yet Ms. Wileman was disqualified because she was a month late on her appeal, probably not having been notified of her obligation to refund until shortly before she actually appealed in December 2011.

We, as a society, should be very troubled at the sheer unfairness of an unemployment insurance system that every employee pays his/her own money into, but which so blatantly fails to provide an even playing field and consistently fails to provide adequate due process. When we have properly raised due process arguments with the Appellate Division, they have ruled in our favor each time. The blame here does not lay all with the Department of Labor and the Appellate Division. Ms. Wileman repeatedly failed to recognize the real issues here and failed to understand the urgency of prompt action. On the other hand, it is grossly unfair that employees have 7 days to appeal, but employers can appeal years later. Unfortunately, Ms. Wileman’s sad story is far from unique. This case is a perfect example of why we urge all employees to seek legal advice and representation from an experienced unemployment law firm for all unemployment matters at all levels, and why we urge law firms who do not specialize in unemployment matters to refer to firms who do.

Claimant’s counsel: Steven S. Lubcher, Elkind and DiMento, PA.

Board of Review’s counsel: Lisa A. Puglisi, Assistant Attorney General; Christopher J. Hamner, Deputy Attorney General.

Appellate Division Judges: Fuentes and Haas.