New Jersey employees who have been terminated often fail to realize that no unemployment benefits can be paid to them for any week before they actually file their unemployment claim. Some employees mistakenly believe that they can wait a few weeks after their termination, and then file for benefits retroactive to their termination date, or that the benefit period begins when they file. Still other employees are simply so emotionally devastated by the termination that they delay in claiming unemployment benefits. However, the unemployment clock starts running from the date of termination. Therefore, if an employee does not claim benefits in the first few weeks following termination, the employee waives the right to benefits for those weeks.
Nor does an employer’s appeal of an award of employment benefits mean that the employee is relieved from continuing to claim benefits every week during the appeal process. Despite that the employer may have appealed the award of benefits, an employee must continue to claim benefits each week, or will not be paid unemployment for any week that he or she does not actually claim unemployment benefits. Employees also are often unaware that if their award of unemployment benefits is reversed on appeal, they remain liable to pay back any benefits received to the State.
Employees may also not know that they may be entitled to unemployment benefits even when they accept a severance package, as long as the severance is paid in a lump sum, rather than continued payroll payments. See N.J.A.C. §12:17-8.7(b) (“The receipt of severance or separation pay in periodic payments or in a lump sum shall not be a bar to eligibility for unemployment benefits. However, the payments do not extend the individual’s employment period and such weeks and payments may not be used to establish or increase his or her monetary eligibility for benefits for any claim filed after the period for which they are made.”). However, employees should also realize that if they participate in a voluntary layoff and/or early retirement incentive policy or program, they will not be eligible to receive unemployment, unless they can show that their termination was imminent (within 90 days) if they did not accept the package. In re N.J.A.C. 12:17-9.6 ex rel. State Dept. of Labor, 395 N.J. Super. 394 (App. Div. 2007).
By Francine Foner, Esq. and Ty Hyderally, Esq.
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