As we reported HERE, New Jersey employers are required to electronically report employee separation information to the New Jersey Department of Labor and Workforce Development (NJDOL) within seven days of an employee’s separation from employment.
The NJDOL’s Employer Response Portal (Portal) is now operational, giving employers greater insight into the information and supporting documentation they may be asked to provide when reporting a separation. Depending on the circumstances, the Portal may request workplace policies, disciplinary records, complaint and leave-related documentation, medical information, or records concerning retirement or other post-separation payments.
Let’s take a closer look at these document requests and what employers should consider before hitting “upload.”
What Documents Are Requested?
For terminations and resignations in lieu of termination, the Portal requests relevant policies, warnings, and other supporting documentation regarding the final incident leading to the separation.
- DO NOT: Upload an employee’s entire personnel file or unrelated disciplinary history.
- DO: Consider materials that support the reason for separation, such as relevant written warnings or disciplinary notices, documentation of the final incident, or a final investigation report or other nonprivileged summary of the investigation.
For voluntary resignations, the Portal requests documentation supporting prior complaints, resolution efforts, leave-of-absence requests, medical documentation, or other supporting documentation.
- DO NOT: Upload an employee’s entire medical file or unrelated medical information.
- DO: Consider materials that support the reason for leaving, such as a resignation letter, relevant complaints and resolution efforts, or relevant leave and accommodation communications. Where medical information is relevant, consider documentation that can establish the relevant facts without unnecessarily disclosing sensitive medical information.
For retirements, the Portal requests supporting documentation regarding any retirement pay arrangements.
- DO NOT: Submit an entire retirement plan document or other materials that contain unnecessary personal or financial information.
- DO: Consider materials identifying the type, amount, source, and timing of retirement payments relevant to the NJDOL’s unemployment determination, such as a benefit statement, payment record, or plan summary.
For post-separation payments, the Portal requests supporting documentation regarding any payments made after an employee’s last day of work.
- DO NOT: Assume this requires uploading an entire separation or severance agreement.
- DO: Consider whether payroll records, a payment summary, or an appropriately redacted excerpt of an agreement can substantiate the post-separation payments without disclosing unrelated terms.
What Happens if an Employer Fails to Provide the Required Information?
Employers that willfully fail or refuse to provide the required information may be subject to penalties of the greater of $500 or 25% of any amount “fraudulently withheld,” with each day constituting a separate violation. In addition, the NJDOL may determine the employee’s eligibility for unemployment benefits based on the information available.
Is Information Submitted Through the Portal Confidential?
The New Jersey Unemployment Compensation Law provides that information submitted is confidential, except to the extent necessary to administer the law, and that the information is not open to public inspection, subject to subpoena, or admissible in civil proceedings unrelated to the Unemployment Compensation Law. However, employers should not assume the information will remain confidential from the former employee. The NJDOL may provide the information to the claimant in connection with an unemployment claim to allow them an opportunity to respond. Accordingly, employers should carefully consider the relevance and scope of any documents before uploading sensitive or confidential information.
Employer Takeaways
As employers navigate these document requests, they should carefully weigh what information may assist the NJDOL in evaluating the separation and what information is actually necessary to provide. Employers should tailor each submission to the circumstances of the separation, provide documentation that is relevant and sufficient to support the information reported, and consider the sensitivity of the information before submission.
- Prepare before reporting a separation. Gather the relevant policies, disciplinary records, resignation documentation, payment information, and other materials that may be needed before beginning the Portal submission.
- Provide relevant, targeted documentation. Avoid automatically uploading an employee’s entire personnel, disciplinary, medical, or benefits file when narrower documentation can support the reported reason for separation.
- Exercise caution with sensitive information. Review medical information, investigation materials, financial records, and other confidential documents for relevance, confidentiality, and privilege concerns before uploading them.
- Do not assume a separation agreement must be uploaded. When reporting severance or other post-separation payments, consider whether payroll records, a payment summary, or an appropriately redacted excerpt can establish the relevant payment information without disclosing unrelated agreement terms.
- Review separation-reporting procedures. Ensure that HR and other personnel responsible for separations understand the seven-day reporting deadline, know how to access and use the Portal, and understand what documentation should be considered before completing a submission.
If you have any questions related to the Portal or need assistance responding to document requests, please reach out to the Nukk-Freeman & Cerra Attorney with whom you typically work or call us at 973.665.9100.