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Joan I. Silver v. Board of Review

March 21, 2013

JOAN I. SILVER, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND COUNTY OF MIDDLESEX, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 327,102.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

March 21, 2013

Argued January 16, 2013

Before Judges Ashrafi,*fn1 Hayden and Lisa.

The opinion of the court was delivered by LISA, J.A.D. (retired and temporarily assigned on recall).

This appeal requires us to determine whether "severe misconduct," within the meaning of New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, disqualified appellant from receiving unemployment compensation benefits. The Legislature added the term by a 2010 amendment to N.J.S.A. 43:21-5(b).

Appellant Joan I. Silver appeals from a final decision of the Board of Review (Board), which affirmed an Appeal Tribunal determination that she was disqualified for benefits under N.J.S.A. 43:21-5(b) because her discharge from employment was for severe misconduct connected with the work. Appellant argues that the Board applied an incorrect legal standard and that, under the correct standard, her conduct did not constitute "misconduct," and therefore could not constitute "severe misconduct."*fn2 We agree with appellant and reverse.

I.

From February 2002 to February 2011, appellant was a full-time teacher at the Middlesex County Youth Facility. At the beginning of classes, teachers handed out pens to the students.

Each pen contained a number and was checked out by a student with the corresponding number identified. At the end of the class, the teacher was required to collect all of the pens and return them to the designated container. As each student returned a pen, the student checked off the number corresponding to the student's name. The teacher was required to account for all of the pens before the students were released from the classroom. This was important for security purposes because the pens could be used as weapons. It was not uncommon for students to steal or attempt to steal the pens. If it were discovered that a pen was missing, the teacher was required to report this immediately to a security officer.

On February 23, 2011, appellant had two classes scheduled in the morning. The pen container had places for twelve pens. At the end of her second class, appellant watched the students return their pens and check off their names. She believed every student did so. Because a security officer was anxious to move the students to their next class in order to keep up with the schedule, appellant allowed the students to leave the room before she returned the pens to the container and counted them. When she did so, she realized that one pen was missing. She immediately notified security. The missing pen was never found.

Over the years, appellant had committed this same infraction six previous times, most recently approximately six months before this incident. The record does not reveal the dates of the earlier infractions. After the sixth infraction, she was warned that if it happened one more time, she would be terminated, which she was for the February 23, 2011 infraction.

The deputy*fn3 determined that appellant was disqualified for benefits because her discharge was for severe misconduct. Appellant filed an administrative appeal, and a hearing was conducted by an Appeal Tribunal, at which appellant was the only witness. The appeals examiner upheld the deputy's determination. Appellant sought further administrative review before the Board. Without discussion, the Board expressed its agreement with the Appeal Tribunal based upon the record and affirmed its decision.

II.

Before setting forth the factual findings of the appeals examiner and the legal standard utilized for finding appellant guilty of severe misconduct, we emphasize that our discussion of the term "misconduct" applies to unemployment compensation law.

We are not defining the scope of "misconduct," "good cause," or other standard of behavior that may be relevant to termination of employment or other disciplinary action in public or private employment disputes. We deem some historical information necessary as the analytical basis for determining the correct legal standard by which "misconduct" and "severe misconduct" should be defined.

From its inception in 1936 until 2010, New Jersey's Unemployment Compensation Law has provided for disqualification for benefits for employees discharged for "misconduct" or "gross misconduct" connected with the work. N.J.S.A. 43:21-5(b); see L. 1936, c. 270, ยง 5. The statute defines "gross misconduct" as "an act punishable as a crime of the first, second, third or fourth degree," but it does not define the term ...


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