BENJAMIN TRAN VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4949-16T4
BENJAMIN TRAN,
Petitioner-Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR, MARINA DISTRICT
DEVELOPMENT CO., HARD ROCK
HOTEL & CASINO HOLLYWOOD,
and RIO HOTEL & CASINO,
Respondents-Respondents.
_____________________________________
Submitted October 9, 2018 – Decided December 6, 2018
Before Judges Sabatino and Sumners.
On appeal from the Board of Review, Department of
Labor, Docket No. 112,830.
Benjamin Tran, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Rimma
Razhba, Deputy Attorney General, on the brief).
Respondents Marina District Development Co., Hard
Rock Hotel & Casino Hollywood, and Rio Hotel &
Casino, have not filed a brief.
PER CURIAM
The sole issue presented in this appeal is whether the Board of Review,
Department of Labor and Workforce Development (the Board), misapplied the
law in its final agency decision, which denied petitioner Benjamin Tran's
combined-wage claim for unemployment benefits arising from his employment
in Florida and Nevada because it determined that it had no jurisdiction over the
claim given his dispute with the weeks reported for his out-of-state employment.
We affirm because we conclude the Board properly applied the law governing
combined-wage claims.
Tran filed a combined wage claim for unemployment benefits asserting
$28,278 in wages earned from three employers in New Jersey, Florida, and
Nevada, during the base year period of October 1, 2015, through September 30,
2016. The Deputy Director of the Division of Unemployment and Disability
Insurance (Deputy) determined his weekly benefit rate was $361 with maximum
benefits of $9,025 based upon forty-three weeks. Following Tran's appeal to the
Appeal Tribunal, the Deputy re-determined his decision and increased the
weekly benefit rate to $395 and maximum benefits to $10,270.
A-4949-16T4
2
After the Appeal Tribunal initially dismissed his appeal,1 it was re-opened
for good cause. At the subsequent telephonic hearing, Tran agreed with his
award pertaining to his New Jersey employment but argued that his benefits
should be increased to a weekly rate of $652 and maximum benefits of $16,966
because his former employers in Florida and Nevada had misreported his weeks
worked.2 The Appeal Tribunal declined to address the merits of Tran's
contention; determining that it did not have jurisdiction in a combined wage
claim over the disputed reporting of out-of-state employment, and dismissed the
appeal.
Tran appealed to the Board, which agreed with the Appeal Tribunal that
New Jersey did not have jurisdiction over the disputed out-of-state employment.
The Board stated that Tran's recourse was to seek relief in those respective
states. This appeal followed.
The scope of our review of an administrative agency's final determination
is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We accord
1
Tran failed to participate in a scheduled telephone hearing.
2
Tran submitted supporting paystubs to prove that Florida and Nevada
misreported his actual weeks of work; evidencing ten weeks in Florida, not the
reported eighteen weeks, and nine weeks in Nevada, not the reported eighteen
weeks.
A-4949-16T4
3
substantial deference to the agency's interpretation of a statute it is charged with
enforcing. Bd. of Educ. of the Twp. of Neptune v. Neptune Twp. Educ. Ass'n,
144 N.J. 16, 31 (1996). Despite affording "considerable weight to a state
agency's interpretation of a statutory scheme that the legislature has entrusted to
the agency to administer," In re Election Law Enf't Comm'n Advisory Op. No.
01-2008, 201 N.J. 254, 262 (2010), we give deference "to an agency's
interpretation of both a statute and implementing regulation, within the sphere
of the agency's authority, unless the interpretation is 'plainly unreasonable.'"
Ibid. Nevertheless, our review is de novo where an agency "determination
constitutes a legal conclusion." Lavezzi v. State, 219 N.J. 163, 172 (2014). We
overturn an agency determination only if it inconsistent with the enabling statute
or legislative policy. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div.
2001).
Without citing any law in support, Tran's sole argument before us is that
the Board erred in determining that it did not have jurisdiction over the out-of-
state employment claims to correct alleged misreporting of his weeks worked.
We disagree.
Because this dispute involves a combined-wage claim, we must adhere to
the applicable federal legislative and regulatory scheme. In accordance with the
A-4949-16T4
4
Federal Unemployment Tax Act, the Secretary of Labor may approve
arrangements, which allows the Board to determine a worker's unemployment
benefits based on combined-wage claims from more than one state in order to
qualify for benefits or to receive more benefits. 26 U.S.C. § 3304(a)(9)(B); 20
C.F.R. § 616.1; N.J.S.A. 43:21-21(b). A combined-wage claimant is defined as
"[a] claimant who has covered wages under the unemployment compensation
law of more than one State and who has filed a claim under this arrangement."
20 C.F.R. § 616.6(d). A combined wage claim may be filed by "[a]ny
unemployed individual who has had employment covered under the
unemployment compensation law of two or more States, whether or not the
individual is monetarily qualified under one or more of them." 20 C.F.R. §
616.7(a).
Since Tran filed his claim in New Jersey, the paying state, the Board
shall request the transfer of a Combined-Wage
Claimant's employment and wages in all States during
its base period, and shall determine the claimant's
entitlement to benefits (including additional benefits,
extended benefits and dependents' allowances when
applicable) under the provisions of its law based on
employment and wages in the paying State, and all such
employment and wages transferred to it hereunder. The
paying State shall apply all the provisions of its law to
each determination made hereunder, except that the
paying State may not determine an issue which has
previously been adjudicated by a transferring State.
A-4949-16T4
5
[20 C.F.R. § 616.8(a).]
In this matter, Nevada and Florida are the "transferring" states as defined by 20
C.F.R. § 616.6(f), which provides "[a] State in which a Combined-Wage
Claimant had covered employment and wages in the base period of a paying
State, and which transfers such employment and wages to the paying State for
its use in determining the benefit rights of such claimant under its law."
Tran disputes the amount of weeks reported for his employment in Nevada
and Florida. However, federal law dictates that where a combined-wage claim
appeal involves "a dispute as to . . . the amount of employment and wages subject
to transfer, the protest, request for redetermination or appeal shall be decided by
the transferring State in accordance with its law." 20 C.F.R. § 616.8(d)(3)
(emphasis added).
Accordingly, the Board's decision that it lacks jurisdiction to determine
Tran's challenge to the employment weeks reported by his former employers in
Nevada and Florida is not contrary to the express directive of the controlling
law.
Affirmed, without prejudice to appellant seeking recourse in the
transferring states.
A-4949-16T4
6