Bill Text: NJ A419 | 2016-2017 | Regular Session | Introduced
Bill Title: Disqualifies individuals for unemployment benefits due to receipt of certain severance payments.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2016-01-27 - Introduced, Referred to Assembly Labor Committee [A419 Detail]
Download: New_Jersey-2016-A419-Introduced.html
STATE OF NEW JERSEY
217th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Sponsored by:
Assemblyman TIM EUSTACE
District 38 (Bergen and Passaic)
Assemblyman TROY SINGLETON
District 7 (Burlington)
Assemblyman JOSEPH V. EGAN
District 17 (Middlesex and Somerset)
Assemblyman JOSEPH A. LAGANA
District 38 (Bergen and Passaic)
SYNOPSIS
Disqualifies individuals for unemployment benefits due to receipt of certain severance payments.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning unemployment insurance benefits and amending R.S.43:21-5.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. R.S.43:21-5 is amended to read as follows:
43:21-5. An individual shall be disqualified for benefits:
(a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment, which may include employment for the federal government, and has earned in employment at least ten times the individual's weekly benefit rate, as determined in each case. This subsection shall apply to any individual seeking unemployment benefits on the basis of employment in the production and harvesting of agricultural crops, including any individual who was employed in the production and harvesting of agricultural crops on a contract basis and who has refused an offer of continuing work with that employer following the completion of the minimum period of work required to fulfill the contract.
(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow that week, as determined in each case.
For the week in which the individual has been suspended or discharged for severe misconduct connected with the work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment, which may include employment for the federal government, and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case. Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.
In the event the discharge
should be rescinded by the employer voluntarily or as a result of mediation or
arbitration, this subsection (b) shall not apply, provided, however, an
individual who is
restored to employment with back pay shall return any benefits received under
this chapter for any week of unemployment for which the individual is
subsequently compensated by the employer.
If the discharge was for gross misconduct connected with the work because of the commission of an act punishable as a crime of the first, second, third or fourth degree under the "New Jersey Code of Criminal Justice," N.J.S.2C:1-1 et seq., the individual shall be disqualified in accordance with the disqualification prescribed in subsection (a) of this section and no benefit rights shall accrue to any individual based upon wages from that employer for services rendered prior to the day upon which the individual was discharged.
The director shall insure that any appeal of a determination holding the individual disqualified for gross misconduct in connection with the work shall be expeditiously processed by the appeal tribunal.
(c) If it is found that the individual has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the director or to accept suitable work when it is offered, or to return to the individual's customary self-employment (if any) when so directed by the director. The disqualification shall continue for the week in which the failure occurred and for the three weeks which immediately follow that week, as determined:
(1) In determining whether or not any work is suitable for an individual, consideration shall be given to the degree of risk involved to health, safety, and morals, the individual's physical fitness and prior training, experience and prior earnings, the individual's length of unemployment and prospects for securing local work in the individual's customary occupation, and the distance of the available work from the individual's residence. In the case of work in the production and harvesting of agricultural crops, the work shall be deemed to be suitable without regard to the distance of the available work from the individual's residence if all costs of transportation are provided to the individual and the terms and conditions of hire are as favorable or more favorable to the individual as the terms and conditions of the individual's base year employment.
(2) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: the position offered is vacant due directly to a strike, lockout, or other labor dispute; the remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or, the individual, as a condition of being employed, would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.
(d) If it is found that this unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which the individual is or was last employed.
(1) No disqualification under this subsection (d) shall apply if it is shown that:
(a) The individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and
(b) The individual does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided that if in any case in which (a) or (b) above applies, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment, or other premises.
(2) For any claim for a period of unemployment commencing on or after December 1, 2004, no disqualification under this subsection (d) shall apply if it is shown that the individual has been prevented from working by the employer, even though the individual's recognized or certified majority representative has directed the employees in the individual's collective bargaining unit to work under the preexisting terms and conditions of employment, and the employees had not engaged in a strike immediately before being prevented from working.
(e) For any week with respect to which the individual is receiving or has received remuneration in lieu of notice.
(f) For any week with respect to which or a part of which the individual has received or is seeking unemployment benefits under an unemployment compensation law of any other state or of the United States; provided that if the appropriate agency of the other state or of the United States finally determines that the individual is not entitled to unemployment benefits, this disqualification shall not apply.
(g) (1) For a period of one year from the date of the discovery by the division of the illegal receipt or attempted receipt of benefits contrary to the provisions of this chapter, as the result of any false or fraudulent representation; provided that any disqualification may be appealed in the same manner as any other disqualification imposed hereunder; and provided further that a conviction in the courts of this State arising out of the illegal receipt or attempted receipt of these benefits in any proceeding instituted against the individual under the provisions of this chapter or any other law of this State shall be conclusive upon the appeals tribunal and the board of review.
(2) A disqualification under this subsection shall not preclude the prosecution of any civil, criminal or administrative action or proceeding to enforce other provisions of this chapter for the assessment and collection of penalties or the refund of any amounts collected as benefits under the provisions of R.S.43:21-16, or to enforce any other law, where an individual obtains or attempts to obtain by theft or robbery or false statements or representations any money from any fund created or established under this chapter or any negotiable or nonnegotiable instrument for the payment of money from these funds, or to recover money erroneously or illegally obtained by an individual from any fund created or established under this chapter.
(h) (1) Notwithstanding any other provisions of this chapter (R.S.43:21-1 et seq.), no otherwise eligible individual shall be denied benefits for any week because the individual is in training approved under section 236(a)(1) of the "Trade Act of 1974," Pub.L.93-618 (19 U.S.C. s.2296 (a)(1)) nor shall the individual be denied benefits by reason of leaving work to enter this training, provided the work left is not suitable employment, or because of the application to any week in training of provisions in this chapter (R.S.43:21-1 et seq.), or any applicable federal unemployment compensation law, relating to availability for work, active search for work, or refusal to accept work.
(2) For purposes of this subsection (h), the term "suitable" employment means, with respect to an individual, work of a substantially equal or higher skill level than the individual's past adversely affected employment, as defined for purposes of the "Trade Act of 1974," Pub.L.93-618 (19 U.S.C. s.2101 et seq.) and wages for this work at not less than 80% of the individual's average weekly wage, as determined for the purposes of the "Trade Act of 1974."
(i) For benefit years commencing after June 30, 1984, for any week in which the individual is a student in full attendance at, or on vacation from, an educational institution, as defined in subsection (y) of R.S.43:21-19; except that this subsection shall not apply to any individual attending a training program approved by the division to enhance the individual's employment opportunities, as defined under subsection (c) of R.S.43:21-4; nor shall this subsection apply to any individual who, during the individual's base year, earned sufficient wages, as defined under subsection (e) of R.S.43:21-4, while attending an educational institution during periods other than established and customary vacation periods or holiday recesses at the educational institution, to establish a claim for benefits. For purposes of this subsection, an individual shall be treated as a full-time student for any period:
(1) During which the individual is enrolled as a full-time student at an educational institution, or
(2) Which is between academic years or terms, if the individual was enrolled as a full-time student at an educational institution for the immediately preceding academic year or term.
(j) Notwithstanding any other provisions of this chapter (R.S.43:21-1 et seq.), no otherwise eligible individual shall be denied benefits because the individual left work or was discharged due to circumstances resulting from the individual being a victim of domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19). No employer's account shall be charged for the payment of benefits to an individual who left work due to circumstances resulting from the individual being a victim of domestic violence.
For the purposes of this subsection (j), the individual shall be treated as being a victim of domestic violence if the individual provides one or more of the following:
(1) A restraining order or other documentation of equitable relief issued by a court of competent jurisdiction;
(2) A police record documenting the domestic violence;
(3) Documentation that the perpetrator of the domestic violence has been convicted of one or more of the offenses enumerated in section 3 of P.L.1991, c.261 (C.2C:25-19);
(4) Medical documentation of the domestic violence;
(5) Certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency that the individual is a victim of domestic violence; or
(6) Other documentation or certification of the domestic violence provided by a social worker, member of the clergy, shelter worker or other professional who has assisted the individual in dealing with the domestic violence.
For the purposes of this subsection (j):
"Certified Domestic Violence Specialist" means a person who has fulfilled the requirements of certification as a Domestic Violence Specialist established by the New Jersey Association of Domestic Violence Professionals; and "designated domestic violence agency" means a county-wide organization with a primary purpose to provide services to victims of domestic violence, and which provides services that conform to the core domestic violence services profile as defined by the Division of Youth and Family Services in the Department of Children and Families and is under contract with the division for the express purpose of providing such services.
(k) Notwithstanding any other provisions of this chapter (R.S. 43:21-1 et seq.), no otherwise eligible individual shall be denied benefits for any week in which the individual left work voluntarily and without good cause attributable to the work, if the individual left work to accompany his or her spouse who is an active member of the United States Armed Forces, as defined in N.J.S.38A:1-1(g), to a new place of residence outside the State, due to the armed forces member's transfer to a new assignment in a different geographical location outside the State, and the individual moves to the new place of residence not more than nine months after the spouse is transferred, and upon arrival at the new place of residence the individual was in all respects available for suitable work. No employer's account shall be charged for the payment of benefits to an individual who left work under the circumstances contained in this subsection (k), except that this shall not be construed as relieving the State of New Jersey and any other governmental entity or instrumentality or nonprofit organization electing or required to make payments in lieu of contributions from its responsibility to make all benefit payments otherwise required by law and from being charged for those benefits as otherwise required by law.
(l) (1) For any week with respect to which severance pay is attributable to the individual. The amount of severance pay attributed to the individual shall be an amount, not less than zero, determined by subtracting 100 percent of the Statewide average annual wage from the total amount of severance pay paid or payable to the individual by his employer.
(2) Severance pay shall be attributed to the week or weeks immediately following the individual's separation from employment. The number of weeks to which severance pay is attributed shall be determined by dividing the amount of severance pay attributed to the individual pursuant to paragraph (1) of this subsection (l) by the portion of the average weekly wage of the individual which does not exceed the Statewide average weekly wage, rounded to the nearest full week.
(3) This subsection (l) shall not apply to severance pay agreements that were agreed to by an employer and employee prior to the effective date of P.L , c. (pending before the Legislature as this bill).
(4) An individual who, after the end of the period of weeks to which severance pay is attributed, is still unemployed and otherwise qualifies for unemployment benefits may begin receiving benefits at the end of that period, and not have the maximum number of weeks of unemployment benefits reduced.
(5) For purposes of this subsection (l):
"Average weekly wage" means the average weekly wage of the individual as determined under subsection (u) of R.S.43:21-19;
"Severance pay" means one or more payments made by an employer to an employee on account of separation from the service of the employer, regardless of whether the employer is legally bound by contract, statute, or otherwise to make such payments, except that "severance pay" does not include payments for pension, retirement, or accrued leave, or payments of supplemental unemployment benefits;
"Statewide average annual wage" means 52 times the Statewide average weekly wage; and
"Statewide average weekly wage" means the Statewide average weekly wage as determined under subsection (c) of R.S.43:21-3.
(cf: P.L.2010, c.37, s.2)
2. This act shall take effect immediately.
STATEMENT
This bill requires that an individual be disqualified for unemployment insurance (UI) benefits for any week in which severance pay is attributable to the individual in the manner provided by the bill. The bill provides that the amount of severance pay to be attributed to an individual is determined by subtracting 100 percent of the Statewide average annual wage from the total amount of severance pay paid to the individual.
The bill provides that any week, or weeks, of disqualification for unemployment benefits due to severance pay will immediately follow an individual's separation from employment. The number of weeks that an individual may be disqualified is determined by dividing the amount of severance pay attributed to the individual by the part of the average weekly wage of the individual which does not exceed the Statewide average weekly wage, rounded to the nearest week.
An individual who is still unemployed, and otherwise qualifies for unemployment benefits, after the end of the period of disqualification due to severance pay may begin receiving benefits at the end of that period, and not have the maximum number of weeks of unemployment benefits reduced.
Finally, the provisions of the bill do not apply to severance pay agreements that were agreed to by an employer and employee prior to the effective date of the bill.
The purpose of the bill is to prevent the payment of UI benefits to individuals who are receiving very large severance payments, that is, severance payments that significantly exceed the average annual pay for all workers in the State. The bill is also designed to avoid reducing the total maximum UI benefits available for those permanently laid-off low and moderate income workers who receive only moderate severance payments, while deferring the payment of the UI benefits for such workers until after the end of the period of disqualification for severance payments, so that no UI benefits would be paid to a laid off worker who is able to find new employment during that period.
