PATRICIA J. MCCLAIN VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR) , 451 N.J. Super. 461 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4319-15T3
PATRICIA J. MCCLAIN,
Appellant,
APPROVED FOR PUBLICATION
v.
August 29, 2017
BOARD OF REVIEW, DEPARTMENT APPELLATE DIVISION
OF LABOR, LEARNING EDGE ACADEMY,
INC., and KIDS CHOICE ACADEMY,
Respondents.
___________________________________
Argued May 31, 2017 – Decided August 29, 2017
Before Judges Ostrer, Vernoia and Moynihan.
On appeal from the Board of Review,
Department of Labor.
Cassandra Stabbert argued the cause for
appellant (South Jersey Legal Services,
Inc., attorneys; Ms. Stabbert, on the
brief).
Melissa Dutton Schaffer, Assistant Attorney
General, argued the cause for respondent
Board of Review (Christopher S. Porrino,
Attorney General, attorney; Ms. Schaffer, of
counsel; Patrick Jhoo, Deputy Attorney
General, on the brief).
Respondents Learning Edge Academy, Inc., and
Kids Choice Academy have not filed briefs.
The opinion of the court was delivered by
VERNOIA, J.A.D.
A recent amendment to the unemployment insurance law
exempts from disqualification for unemployment benefits "an
individual who voluntarily leaves work with one employer to
accept from another employer employment which commences not more
than seven days after the individual leaves . . . the first
employer." L. 2015, c. 41, § 1, codified at N.J.S.A. 43:21-5(a).
Appellant left her first employer after accepting new employment
that was to commence within seven days; her new employer,
however, rescinded the offer before she ever began work. Finding
this statute inapplicable -- because appellant hadn't commenced
her new employment within seven days -- the Board found she was
disqualified from receiving benefits. We reject the Board's
interpretation and reverse, finding a claimant need not actually
start the new employment to be exempt from disqualification
under N.J.S.A. 43:21-5(a).
I.
Appellant Patricia J. McClain began working as a teacher at
Learning Edge Academy, Inc. in January 2013. She was on
disability leave commencing in August 2015, and was scheduled to
return to work in October.
On October 12, 2015, McClain accepted an offer from Kids
Choice Academy for full-time employment. She immediately
submitted a letter of resignation to Learning Edge.
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The next day, the director of Kids Choice requested
McClain's permission to contact McClain's former employer and
advised her an appointment would be made for her to be
fingerprinted. Later in the day, the director rescinded the job
offer to McClain because the person McClain was supposed to
replace decided to return to work at Kids Choice. McClain also
received an email from Learning Edge accepting her resignation.
McClain began looking for other jobs. She did not contact
Learning Edge following its acceptance of her resignation
because she did not think Learning Edge would want her to return
since she had resigned.
McClain applied for unemployment benefits. Her claim was
denied and she appealed. The Appeal Tribunal held a hearing,
McClain testified, and the Appeal Tribunal affirmed the denial.
The Appeal Tribunal found McClain resigned from her position
with Learning Edge on October 12, 2015 to accept a higher paying
position with Kids Choice, and that on October 13, 2015, Kids
Choice rescinded the offer "because the employee who originally
held the position decided to return to work."
The Appeal Tribunal explained that a claimant is
disqualified from receiving unemployment compensation benefits
under N.J.S.A. 43:21-5(a) where the claimant "has left work
voluntarily without good cause attributable to such work." The
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Appeal Tribunal also noted there is an exemption from the
disqualification for
an individual who voluntarily leaves work
with one employer to accept from another
employer employment which commences not more
than seven days after the individual leaves
employment with the first employer, if the
employment with the second employer has
weekly hours or pay not less than the hours
or pay of the employment of the first
employer.
[N.J.S.A. 43:21-5(a).]
The Appeal Tribunal determined McClain was not covered by
the exemption because she did not actually commence employment
with Kids Choice within seven days of her last day of employment
at Learning Edge. The Appeal Tribunal therefore found McClain
was disqualified from receiving benefits under N.J.S.A. 43:21-
5(a).
McClain appealed to the Board of Review. On April 14, 2016,
the Board issued its final agency decision affirming the Appeal
Tribunal's findings and ruling. The Board subsequently denied
McClain's request for reopening. This appeal followed.
II.
Our scope of review of an administrative agency's decision
is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In
order to reverse an agency's judgment, an appellate court must
find the agency's decision to be 'arbitrary, capricious, or
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unreasonable, or [ ] not supported by substantial credible
evidence in the record as a whole.'" Ibid. (quoting Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980)). A reviewing
court "may not substitute its own judgment for the agency's,
even though the court might have reached a different result." In
re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State
Police Training Ctr., 127 N.J. 500, 513 (1992)).
Generally, "we afford [an] agency great deference" in
reviewing its "interpretation of statutes within its scope of
authority" in recognition of the agency's "specialized
expertise." N.J. Soc'y for Prevention of Cruelty to Animals v.
N.J. Dep't of Agric., 196 N.J. 366, 385 (2008) (quoting In re
Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)).
Although an appellate court must give deference to the agency's
findings of facts, "and some deference to its 'interpretation of
statutes and regulations within its implementing and enforcing
responsibility,'" it is "in no way bound by the agency's
interpretation of a statute or its determination of a strictly
legal issue." Utley v. Bd. of Review, 194 N.J. 534, 551 (2008)
(first quoting In re Appeal by Progressive Cas. Ins. Co., 307
N.J. Super. 93, 102 (App. Div. 1997); then quoting Mayflower
Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)); see also
Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485
5 A-4319-15T3
(2008) ("[I]f an agency's statutory interpretation is contrary
to the statutory language, or if the agency's interpretation
undermines the Legislature's intent, no deference is required."
(quoting N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331,
351 (1997))). An appellate court reviews legal conclusions de
novo. Lavezzi v. State, 219 N.J. 163, 172 (2014).
The Board's decision finding McClain was disqualified from
receiving benefits requires that we interpret a 2015 amendment
to N.J.S.A. 43:21-5(a). Prior to the amendment, the statute
provided that an individual was disqualified from receiving
unemployment compensation benefits
[f]or the week in which the individual has
left work voluntarily without good cause
attributable to such work, and for each week
thereafter until the individual becomes
reemployed and works eight weeks in
employment, which may include employment for
the federal government, and has earned in
employment at least ten times the
individual's weekly benefit rate, as
determined in each case.
[N.J.S.A. 43:21-5(a).]
Under the applicable regulation, an individual's separation from
employment was deemed voluntary where the claimant left to
accept work at another employer. N.J.A.C. 12:17-9.1.
6 A-4319-15T3
The 2015 amendment1 to N.J.S.A. 43:21-5(a) added the
following exemption from the disqualification in the statute and
regulation:
This subsection shall not apply to an
individual who voluntarily leaves work with
one employer to accept from another employer
employment which commences not more than
seven days after the individual leaves
employment with the first employer, if the
employment with the second employer has
weekly hours or pay not less than the hours
or pay of the employment of the first
employer, except that if the individual
gives notice to the first employer that the
individual will leave employment on a
specified date and the first employer
terminates the individual before that date,
the seven-day period will commence from the
specified date.
[N.J.S.A. 43:21-5(a) (emphasis added).]
The Board's interpretation and application of the amendment are
at the center of McClain's appeal.
Our primary purpose in construing a statute is to "discern
the meaning and intent of the Legislature." State v. Gandhi, 201
N.J. 161, 176 (2010). "There is no more persuasive evidence of
legislative intent than the words by which the Legislature
undertook to express its purpose; therefore, we first look to
the plain language of the statute." Perez v. Zagami, LLC, 218
N.J. 202, 209-10 (2016). "We ascribe to the statutory words
1
The amendment became effective May 4, 2015. L. 2015, c. 41, §
1.
7 A-4319-15T3
their ordinary meaning and significance, and read them in
context with related provisions so as to give sense to the
legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492
(2005) (citations omitted). Where "the plain language leads to
a clear and unambiguous result, . . . our interpretive process
is over." Richardson v. Bd. of Trs., Police & Firemen's Ret.
Sys., 192 N.J. 189, 195 (2007). When the statutory language
"clearly reveals the meaning of the statute, the court's sole
function is to enforce the statute in accordance with those
terms." McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001)
(quoting SASCO 1997 NI, LLC v. Zudkewich, 166 N.J. 579, 586
(2001)).
Alternatively, where "there is ambiguity in the statutory
language that leads to more than one plausible interpretation,
we may turn to extrinsic evidence, 'including legislative
history, committee reports, and contemporaneous construction.'"
DiProspero, supra, 183 N.J. at 492-93 (quoting Cherry Hill Manor
Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). Extrinsic evidence
may also be considered "if a plain reading of the statute leads
to an absurd result or if the overall statutory scheme is at
odds with the plain language." Id. at 493.
The resolution of McClain's application for unemployment
compensation benefits turns on the interpretation of the phrase
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"who voluntarily leaves work with one employer to accept from
another employer employment which commences not more than seven
days after the individual leaves employment with the first
employer." N.J.S.A. 43:21-5(a). The Board found the amendment
required that a claimant actually commence employment within the
seven-day period, and that McClain was disqualified from
receiving benefits because she did not actually commence her
employment at Kids Choice within seven days of her last day of
employment at Learning Edge. McClain argues the Board
misinterprets the amended statute, and that she was covered by
its plain language because she voluntarily left the employment
of Learning Edge "to accept" employment with Kids Choice that
commenced within the seven-day period.
We have carefully considered the amendment to N.J.S.A.
43:21-5(a) and are convinced its plain language is inconsistent
with the Board's interpretation. The amendment does not
expressly require that a claimant actually commence work within
the seven-day period. To the contrary, the amendment requires
only that a claimant leave work with the first employer "to
accept" employment with the second employer which commences
within the seven-day period. The Board's interpretation requires
the imposition of a condition the Legislature did not include in
the amendment: that the employee not only leave employment with
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the first employer to accept employment which commences within
the seven-day period, but also that the claimant actually
commence the new employment within the seven-day period.
We find nothing in the plain language of the amendment
supporting the imposition of such a condition. If the
Legislature intended to impose the requirement that a claimant
actually commence employment within the seven-day period, it
could have done so directly. Instead, the amendment provides
only that there is no disqualification where, as here, a
claimant leaves work to accept employment which commences within
the seven-day period. We therefore reject the Board's
interpretation of the amendment because it is not our function
"to 'rewrite a plainly-written enactment of the Legislature or
presume that the Legislature intended something other than that
expressed by way of the plain language.'" DiProspero, supra, 183
N.J. at 492 (quoting O'Connell v. State, 171 N.J. 484, 488
(2002)). We will not "'write in an additional qualification
which the Legislature pointedly omitted in drafting its own
enactment,' or 'engage in conjecture or surmise which will
circumvent the plain meaning of the act.'" Ibid. (first quoting
Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225, 230 (1952);
then quoting In re Closing of Jamesburg High School, 83 N.J.
540, 548 (1980)).
10 A-4319-15T3
We need not rely on the legislative history given that the
plain language of the amendment does not require that a claimant
actually commence the new employment within the seven-day
period. See Richardson, supra, 192 N.J. at 195; DiProspero,
supra, 183 N.J. at 492-93. Moreover, the Board's argument that
the legislative history supports its interpretation is
contradicted by the plain language of the amendment. The Board
relies on the following Senate Sponsor's statement annexed to
the bill that was subsequently enacted as the 2015 amendment to
N.J.S.A. 43:21-5(a):
This bill provides that an individual
is not disqualified from unemployment
insurance (UI) benefits for voluntarily
leaving work if the individual leaves work
with one employer to accept from another
employer employment which commences not more
than seven days after the individual leaves
employment with the first employer, and the
employment with the second employer has
weekly hours or pay not less than the hours
or pay of the employment of the first
employer, except that if the individual
notifies the first employer that the
individual will leave employment on a
specified date and the first employer
terminates the individual before that day,
the seven-day period will commence from the
specified date.
Current law, [N.J.S.A.] 43:21-5(a),
disqualifies an individual who voluntarily
leaves a job from receiving UI benefits and
requires the individual to become reemployed
and work at least eight weeks, earning at
least 10 times the individual's weekly UI
benefit rate, before again being eligible
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for UI benefits. This bill makes an
exception from that requirement for an
individual who leaves one job to accept a
subsequent job at least equal in hours or
pay, but is laid off from the subsequent
job. The UI laws of 26 states, and the
regulations of five other states, treat
accepting other work as good cause for
leaving work, and do not disqualify workers
for UI benefits for doing so.
[Sponsor's Statement to S. 2082, 216th Leg.
(May 19, 2014) (emphasis added).2]
The Board argues that the reference in the sponsor's
statement to a claimant being "laid-off" means the amendment to
N.J.S.A. 43:21-5(a) requires that the claimant actually commence
work with the new employer within the seven-day period because
an employee must begin work in order to be "laid-off." However,
the plain language of the enacted amendment is bereft of any
requirement that the claimant actually commence work, and makes
no reference to the claimant being "laid-off." To the contrary,
the best evidence of the Legislature's intent – the plain
language of the amendment – requires only that a claimant leave
2
The emphasized language was also included in the Assembly
Appropriations Committee and Assembly Labor Committee statements
concerning the bill, and the Bill Description prepared by the
Office of Legislative Services. See Assem. Appropriations Comm.,
Statement to S. 2082 (Feb. 5, 2015) (codified at N.J.S.A. 43:21-
5); Assem. Labor Comm., Statement to S. 2082 (Sept. 11, 2014);
Office of Legis. Servs., Legis. Fiscal Estimate for S. 2082
(June 19, 2014).
12 A-4319-15T3
work to accept employment which commences within the seven-day
period.
We are also unpersuaded by the Board's contention the
sponsor's statement's reference to the unemployment insurance
laws of twenty-six other states supports its interpretation of
the amendment. According to the sponsor's statement, the laws in
the other states do not require that a claimant actually
commence work with the new employer. Instead, the sponsor's
statement explains that the laws in the other states "treat
accepting work as good cause for leaving work." Thus, the
sponsor's statement describing the laws in the other states is
consistent with the plain language of the amendment; accepting
new employment which commences within the seven-day period is
sufficient.3
3
We also reject the Board's argument that the laws of other
states support its interpretation of the amendment. Here, we
interpret only the language in the amendment to N.J.S.A. 43:21-
5(a), which is different from the statutory language of the
other states referred to in the Board's brief. The Board relies
on an Iowa statute exempting an employee from disqualification
for leaving employment to accept other employment where "the
individual performed services in the new employment," Iowa Code
§ 96.5(1)(a) (2017), and Ind. Code Ann. § 22-4-15-1(c)(1)(A)
(West 2017), which provides a claimant is not disqualified from
benefits where the claimant accepts new full-time employment
"which offered reasonable expectation of continued covered
employment and betterment of wages or working conditions and
thereafter was employed on said job." The Board contends the
amendment to N.J.S.A. 43:21-5(a) "closely tracks" the language
of the Iowa and Indiana statutes and argues they provide support
(continued)
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"In reading and interpreting a statute, primary regard must
be given to the fundamental purpose for which the legislation
was enacted. Where a literal reading will lead to a result not
in accord with the essential purpose and design of the act, the
spirit of the law will control the letter." State v. Tischio,
107 N.J. 504, 511 (1987) (quoting N.J. Builders, Owners and
Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972)). Thus, "the
words of [a statute] are to be accorded a rational meaning in
harmony with the obvious intent and purpose of the law." Ibid.
(quoting State v. Brown, 22 N.J. 405, 415 (1956)). "Where the
Legislature's intent is remedial, a court should construe a
statute liberally." Young v. Schering Corp., 141 N.J. 16, 25
(1995).
New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-
1 to -56, (the Act) "is social legislation that provides
financial assistance to eligible workers suffering the distress
and dislocation caused by unemployment." Utley, supra,
194 N.J. at 543. "[T]he underlying mission of the Act is 'to
(continued)
for the Board's interpretation of the amendment. We are not
persuaded. The Iowa and Indiana statutes only highlight that
where a Legislature intends that actual commencement of new
employment is required for the exemption from disqualification,
the requirement will be directly expressed in the applicable
statute. The New Jersey Legislature chose not to expressly
include such a requirement in the amendment.
14 A-4319-15T3
afford protection against the hazards of economic insecurity due
to involuntary unemployment.'" Brady v. Bd. of Review, 152 N.J.
197, 211 (1997) (quoting Yardville Supply Co. v. Bd. of Review,
114 N.J. 371, 374 (1989)). "[T]he purpose of the Act is to
provide some income for the worker earning nothing, because he
is out of work through no fault or act of his own." Id. at 212
(quoting Yardville, supra, 114 N.J. at 375). Thus, "[t]he Act
. . . protects not only workers who are involuntarily unemployed
— those who are laid-off or terminated from their jobs by their
employers — but also those who voluntarily quit their jobs for
good cause attributable to their work." Utley, supra,
194 N.J. at 543-44.
"[T]o further [the Act's] remedial and beneficial purposes
. . . the [Act] is to be construed liberally in favor of
allowance of benefits." Lourdes Med. Ctr. of Burlington Cty. v.
Bd. of Review, 197 N.J. 339, 364 (2009) (quoting Utley, supra,
194 N.J. at 543). However, "it is also important to preserve the
[unemployment insurance trust] fund against claims by those not
intended to share in its benefits. The basic policy of the law
is advanced as well when benefits are denied in improper cases
as when they are allowed in proper cases." Brady, supra, 152
N.J. at 212 (quoting Yardville, supra, 114 N.J. at 374).
15 A-4319-15T3
Given that the intent of the Act is to provide income for a
worker who is out of work "through no fault or act of his own,"
ibid., and the Act "is to be construed liberally in favor of
allowance of benefits," Lourdes, supra, 197 N.J. at 364, our
reading of the plain language of the amendment places McClain
within the intended recipients of unemployment compensation
benefits. The record shows, and the Board found, McClain
resigned from her position with Learning Edge "to accept" new
employment at Kids Choice which was to commence seven days
later,4 and had comparable hours and better pay. Under the
amendment to N.J.S.A. 43:21-5(a), McClain left her employment
with Learning Edge for good cause attributable to the work and
was entitled to benefits without disqualification. See N.J.S.A.
43:21-5(a); Utley, supra, 194 N.J. at 543-44 ("The Act . . .
protects . . . those who voluntarily quit their jobs for good
cause attributable to their work."). The Board's finding to the
contrary was in error.
Reversed.
4
The Board adopted the Appeal Tribunal's factual finding that
McClain resigned from her employment with Learning Edge "to
accept higher paying employment with" Kids Choice. There was no
evidence presented to the contrary.
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