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Borowinski v. Board of Review

A-217-00T2, 2001 WL 1636904 (N.J. Super. App. Div. 2001)

EMPLOYER-EMPLOYEE; UNEMPLOYMENT—An associate attorney who refuses to work late when required to do so is ineligible for unemployment benefits because such behavior constitutes insubordination.

An associate at a law firm was fired after ten months’ employment. He filed a claim for unemployment benefits and was disqualified on the ground that he left work voluntarily without good cause attributable to the work. On appeal, the Appeal Tribunal held that he had been discharged from his employment for misconduct connected with his work. According to his employer, he was discharged solely because of his refusal to attend a municipal court hearing one evening. “When he asked the senior partner if another associate could attend the proceedings because he was tired, he was instructed that failure to appear at court, as assigned, would result in his termination.” The associate said this was an “unacceptable” assignment and he “packed up his stuff and left.” He was not under medical care at the time and there were no pressing obligations or other reasons for his refusing to accept the assignment. Employee misconduct has been defined as “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 of the employee’s duties and obligations to the employer.” According to the Appellate Division, the associate “knew from the outset that his employment as an associate in [his] law firm, as common in this profession, required more than a 9-to-5 commitment.” He conceded that he knew he was required to work two late nights per week. This particular assignment would have been his second evening assignment during that week. The Court found it irrelevant that the fired associate was assigned to handle municipal court matters while an associate hired after him was not. “The bottom line is that associates were required to work a certain number of evenings, whether in the office or elsewhere, this is the real world. Division of duties is up to the senior partners of the firm, not an associate who has been with the firm less than a year.” In sum, the associate’s behavior “constituted insubordination and was in clear disregard of his employer’s interests and in clear disregard of the standards of behavior which the employer law firm had the right to expect from its associate.”

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