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November 21, 2014


Submitted August 6, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Board of Review, Department of Labor, Docket No. 393,414.

Perry A. Hemingway, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief).

Respondent Waste Management of New Jersey has not filed a brief.


Perry Hemingway appeals from a final determination of the Department of Labor's Board of Review finding that he is disqualified from unemployment compensation benefits for severe misconduct related to his work. Hemingway argues that his infractions do not constitute either "misconduct" or "severe misconduct." We agree and reverse.

Hemingway worked for Waste Management of New Jersey for over twenty-three years driving a sanitation truck. Over a period of six months, he engaged in four instances of clearly careless conduct, two with a colleague rolling a dumpster and two driving his truck. Following the last of these incidents, in which Hemingway got his truck stuck under a garage overhang, Waste Management terminated his employment.

Hemingway filed a claim for unemployment benefits, and a deputy in the Division of Unemployment Insurance determined that Hemingway was disqualified for benefits under N.J.S.A. 43:21-5(b) because he was discharged for severe misconduct related to the work. Specifically, the deputy found that Hemingway was "discharged for causing [a] preventable motor vehicle accident" after having been warned previously and suspended "for violation of safety rules regarding proper operation of your truck." The deputy concluded: "Your negligence constitutes a willful and deliberate disregard of the standards of behavior your employer had a right to expect. Therefore, your discharge was for severe misconduct connected with the work." Hemingway sought review of the deputy's determination by the Appeal Tribunal.

At the hearing before the appeals examiner, a representative of Waste Management testified that Hemingway worked as a driver from 3 a.m. until 1 p.m. Monday through Friday. The employer's witness briefly described the incidents leading to Hemingway's termination and produced copies of the four employee disciplinary reports he received. While the witness asserted that Hemingway was provided the company's policies at the time he was hired and that "all [drivers] received rule books which they attended classes for and signed documents," those documents were not produced.

The evidence presented revealed that the first of the four incidents occurred in December 2011 in Bayonne. Hemingway and a co-worker were rolling a three-cubic-yard trash receptacle on casters out of a building to the street when they lost control of it and it struck the rear bumper of a parked car. No one testified that the car suffered any damage. Hemingway testified the container was heavy and had to be moved by hand from inside the building to the street.1 Waste Management issued Hemingway a written warning following the incident, noting that it was his "first incident this year . . . . Future incidents will result in additional discipline up to and including termination."

The following month, Hemingway apparently made an improper turn on a red light in Newark, which was captured on a traffic camera. Waste Management received a citation, which Hemingway paid, and it issued him a one-day suspension. Hemingway testified that he made what he believed to be a lawful right turn on a red light. Noting that New Jersey allows right turns on red lights, Hemingway claimed not to have seen any indication that such turns were not allowed at that intersection. In serving Hemingway with the disciplinary report, Waste Management again noted that "[f]uture incidents will result in additional discipline up to and including termination."

Three months later, Hemingway and his colleague again lost control of the same heavy three-cubic-yard trash receptacle they lost control of in January. This time, the container struck the customer's building. Hemingway testified that the container scraped the building, leaving a one-inch mark of which Waste Management has pictures. Hemingway was again suspended for one day without pay.

The final incident took place two months later in June at 8:45 a.m. in Hoboken. Hemingway explained that he was on his way to a stop near New Jersey Transit's bus compound when he got caught up in the bus traffic making its way into the terminal. He testified that

when I went to go to a stop . . . the buses had me blocked up. I couldn't move. So, when the buses started moving I couldn't turn. So I had to go inside of the bus terminal, [although it was marked "Buses Only" and "Low Clearance"] and I didn't really see the height on the building, and when I made the turn to come back underneath the building the truck struck the building, but it didn't hurt nothing. It didn't even hurt the truck. It didn't even hurt the building. Just a little scrape.

Transit police at the scene issued Hemingway summonses for careless driving and failure to observe a signal. Waste Management terminated him for "Safety Rules," noting "Termination progressive discipline associated with previous incidents identified within the last 12 months."

The Appeal Tribunal issued its decision on December 21, 2012. The appeals examiner determined that Hemingway was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b) for severe misconduct connected with the work. After reviewing the facts, the examiner found that Hemingway's "repeated actions of safety violations were not in the best interest of the employer and a violation of company policy."

Hemingway appealed the appeals examiner's decision to the Board, which issued its final decision in the matter on February 7, 2013. The Board found that Hemingway had been afforded a full and impartial hearing and "agree[d] with the decision reached" on "the basis of the record below." No further explanation or analysis was provided.

Our role in reviewing the decision of an administrative agency is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Ibid. We "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. v. Tpk. Auth., 137 N.J. 8, 27 (1994)).

The underlying mission of the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, is "to afford protection against the hazards of economic insecurity due to involuntary unemployment." Brady, supra, 152 N.J. at 211 (quoting Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989)). To that end, the statute has, since inception, provided for degrees of disqualification for benefits for employees discharged for "misconduct" or "gross misconduct" connected with the work. N.J.S.A. 43:21-5(b). Although "misconduct" is not defined in the statute, our courts have long held that "misconduct 'must be more than simply inadequate job performance that provides good cause for discharge.'" Silver v. Bd. of Review, 430 N.J. Super. 44, 52 (App. Div. 2013), quoting Parks v. Bd. of Review, 405 N.J. Super. 252, 254 (App. Div. 2009). Instead, we have held that

[m]isconduct within the meaning of [N.J.S.A. 43:21-5(b)] . . . must be an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.

[Parks, supra, 405 N.J. Super. at 254 (quoting Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956)) (quoting 48 Am. Jur. Soc. Sec., Unemployment Comp. 38 at 541 (1943)), certif. denied, 23 N.J. 579, 130 A.2d 89 (1957).]

Thus we have concluded that a period of "disqualification [for misconduct] under N.J.S.A. 43:21-5(b) is warranted only when the employee's conduct . . . had 'the ingredients of willfulness, deliberateness and intention.'" Ibid. (quoting Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979)). The Department's regulation defining misconduct reflects our holdings. Silver, supra, 430 N.J. Super. at 52-53, 55 n.6; N.J.A.C. 12:17-10.2(a) ("For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.")

N.J.S.A. 43:21-5(b) was amended in 2010 to add "severe misconduct" as a third intermediate category of misconduct, falling between "misconduct" and "gross misconduct," defined as "an act punishable as a crime of the first, second, third or fourth degree." Silver, supra, 430 N.J. Super. at 48-49. Although the Legislature did not define the new term, it offered examples of the conduct that would qualify.

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.

[N.J.S.A. 43:21-5(b).]

Noting that the Department has failed as yet to adopt a regulation defining "severe misconduct," we held in Silver that "misconduct" should have the same meaning throughout N.J.S.A. 43:21-5(b) and the implementing regulation. Silver, supra, 430 N.J. Super. at 55. Accordingly, we held that to constitute severe misconduct, "repeated violations of an employer's rule or policy" must be done "intentionally, deliberately, and with malice." Ibid. We further expressed our understanding that "intentional" and "malicious" as used in the regulation to include deliberate disregard of the employer's rules or policies, or deliberate disregard of the standards of behavior that the employer has the right to expect of an employee. Id. at 56.

Applying those standards here, it is plain that the Board's decision cannot stand. The appeals examiner found that Waste Management had proved "severe misconduct" because Hemingway's "repeated actions of safety violations were not in the best interest of the employer and a violation of company policy." The company, however, never produced the safety rules Hemingway was alleged to have violated. Even were we to assume that the two incidents in which Hemingway and a colleague lost control of a heavy trash receptacle, his illegal turn and getting his truck stuck in New Jersey Transit's bus depot violated the employer's safety rules, there is no proof in this record that Hemingway did any of those things deliberately, intentionally or maliciously.

Hemingway testified that losing control of the trash receptacle was unintentional and a result of having to move the heavy container by hand. He was not aware that his right turn on a red light, captured on a traffic camera, was at all improper. Even the incident at the bus depot he explained was unavoidable after he got caught up in the line of buses entering the depot as he was attempting to depart from a nearby stop. While these incidents may indicate inadequate job performance justifying his discharge, none evidences a deliberate disregard of the employer's rules.2 The evidence shows that Hemingway may have driven his truck negligently and been careless on two occasions moving a trash receptacle, but his conduct does not constitute "misconduct" as that term is defined in the Department's regulation, or "severe misconduct" as we defined that term in Silver. Accordingly, we reverse.


1 Hemingway claims that employees are no longer required to roll those containers to the street.

2 Our view is consistent with N.J.A.C. 12:17-10.7, which provides that "[a]n individual's discharge for failure to meet the employer's standard(s) relating to quantity or quality of work shall not be considered misconduct unless it is established that he or she deliberately performed below the standard(s), in a manner that is consistent with N.J.A.C. 12:17-10.2, and that the standard(s) was reasonable." As previously noted, Waste Management failed to produce a copy of the work rules it alleged Hemingway transgressed.