Seyfarth Synopsis: Though the New Jersey Unemployment Compensation Law amendments took effect as of July 31, 2023, the Department of Labor has not yet published the required submission documents and instructions. Nonetheless, the state recently published clarifying guidance and underscored it will take an equitable approach to enforcement and appeals determinations while the rollout of its submission documents and instructions remains a work in progress.
The New Jersey Department of Labor ("Department") has released more guidance regarding the steps employers need to take to comply with the amended unemployment insurance law's requirements (outlined previously here and here) and, importantly, indicated it will act fairly and equitably in enforcing the amended law given the delayed rollout of the necessary information for employers.
Acknowledging that it "has not yet provided to employers the 'directions' that would instruct them what information an employer must provide to the Division [of Unemployment Insurance] immediately upon an individual's separation from employment," the Department states that "employers will not be expected to provide information to the Division immediately upon an employee's separation from employment" until such instructions are provided to employers. The Department states that it "is at work preparing the 'directions' to employers and is also in the process of creating an online form for use by employers to submit the required information." In the meantime, the Department states that it has already "communicat[ed] to all employers the need for them to register with Employer Access and provide an email address to the Division" which in turn will satisfy – for the time being – an employer's requirement to communicate with the Division only through electronic means per the amended law. ?
The Department helpfully clarifies that "the new law does not require that an employer send the completed BC-10 form to the Division immediately upon the employee's separation from employment." The FAQs explain instead that, "under the new law, the only information from the BC-10 form that the employer is required to provide to the Division immediately upon the employee's separation from employment is the date upon which the unemployment will begin." Bear in mind however that, as stated above, employers are not yet expected to provide such information until the Department provides submission directions to employers.
In welcome news, the Department is taking a practical approach to enforcing the amended laws in noting that it "will exercise its discretion under the law to neither assess penalties against employers, nor bar them from obtaining relief of benefit charges, for failure to provide information immediately upon an individual's separation from employment" while the directions and revised forms are being developed. As expected, "employers will continue to be required to respond in a timely manner, as they had previously, to all requests from the Division for separation and wage information" while awaiting the submission directions and revised form.
Similarly, the Department indicates it will exercise its discretion when considering employers' appeals under the amended and shortened 7-day deadline (down from 10 days). "Since the Department is in the process of implementing the full transition from postal to electronic communication with employers, in the interest of equity and fairness, the Department is exercising its discretion until the transition from postal to electronic communication is complete to accept appeals from employers that are submitted within [the previous 10-day appeal] time limits" even though such an appeal may technically be untimely under the amended law's 7-day limit.
We expect the Department to continue updating its guidance and forms as more information and materials become available. In the meantime, feel free to reach out to any of the authors of this alert – or your regular Seyfarth contact – with any questions.
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