New Jersey Woman Who Quit In Order to Avoid Being Fired Finally Granted Unemployment Benefits

March 30, 2018

Ty Hyderally, Esq., and Jennifer, Esq.

In a March 29, 2018, decision, the Appellate Division reversed the Board of Review and held that an employee who quit her job because she was told she “might” be fired was not disqualified for unemployment benefits. Cottman v. Board of Review, et al., No. A-1908-16T-2, slip op.

Tamyra Cottman has three special needs children. In 2016, she was working for Quality Management Associates., Inc., as a residential counselor. She began working there in April 2016, and had just completed her probationary period when her babysitter quit without notice. On August 24, 2016, Cottman was scheduled to work from 11:00pm to 9:00am, but her babysitter quit before Cottman’s shift began.

Cottman followed company policy and tried to find a replacement. She contacted all the employees on her contact list, but could not find anyone who was able to cover her shift. Cottman then called her supervisor, who told her that she could either, “come in or you might be fired.”  The supervisor mentioned that Cottman had just finished probation, and said, “I wouldn’t play with your time.” The Appellate Division opined that Cottman had interpreted the threat of termination as a “near-certainty.” New Jersey employees who quit their jobs under an imminent threat of termination are not seen as leaving work voluntarily without good cause attributable to the work, and thus are not disqualified for unemployment benefits for resigning.

When Cottman applied for unemployment benefits, she was denied. She appealed to the Appeal Tribunal, which affirmed her denial of benefits. She then appealed to the Board of Review of the Department of Labor and Workforce Development, which also affirmed the denial. Cottman appealed yet again, to the Appellate Division. The Appellate Division noted that, even though it reviews Board of Review decisions with deference, it may set aside an agency’s decision if the agency overlooked or under-evaluated crucial evidence. The Appellate Division stated that neither the Appeal Tribunal nor the Board of Review had addressed Cottman’s assertion that she had resigned in the face of imminent termination.

Rather, the Appeal Tribunal held that Cottman had voluntarily left her job without good cause attributable to the work. The Appeal Tribunal apparently found that Cottman had quit work to care for her children, as it cited N.J.A.C. 12:17-9.1(e)(2), which specifically provides that doing so “shall be reviewed as a voluntarily leaving work issue.” Because the law is clear on that issue, the Board of Review affirmed the Appeal Tribunal’s decision.

However, the Appellate Division reframed the issue and focused on the fact that Cottman had, in the face of imminent termination, resigned her job in order to save her future job prospects. In such a situation, N.J.A.C. 12:17-9.5 provides that the employee is not subject to disqualification, if the upcoming separation is to occur within 60 days. Here, the Appellate Division held that Cottman reasonably believed that her job was imminently threatened, and therefore she was not disqualified for benefits. The Court went on to state that Cottman would not have been ineligible for benefits if she had been fired after failing to show up to work because she had to stay home and take care of her children.

Future unemployment claimants can thank Tamyra Cottman for hanging in there and fighting the good fight through multiple appeals. A year and a half later, she is now eligible for unemployment benefits…and New Jersey employees who find themselves in similar circumstances in the future have a clear statement of their rights.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.