GLENDINABEL DELIMA v. BOARD OF REVIEW (DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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-2386-20
GLENDINABEL DELIMA,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR
and NUTRABIO LABS, INC.,
Respondents.
__________________________
Submitted June 2, 2022 – Decided July 18, 2022
Before Judges Mitterhoff and Alvarez.
On appeal from the Board of Review, Department of
Labor, Docket No. 204501.
Forman, Cardonsky & Tsinman, LLC, attorneys for
appellant (Juan C. Cervantes, of counsel and on the
briefs; Samuel Tsinman, on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent Board of Review (Donna Arons,
Assistant Attorney General, of counsel; Bryce K. Hurst,
Deputy Attorney General, on the brief).
Connell Foley LLP, attorneys for respondent Nutrabio
Labs, Inc. (Leo J. Hurley, Jr., on the brief).
PER CURIAM
Glendinabel Delima appeals from a March 18, 2021 order of the Board of
Review affirming the Appeal Tribunal's decision to disqualify her from
unemployment benefits. We affirm the Appeal Tribunal's decision that Delima
left her employment at Nutrabio Labs, Inc. voluntarily without good cause
attributable to the work, with one exception. We remand for the Tribunal to take
additional testimony on whether the manner in which she was compensated for
overtime violated the Wage and Hour Law, N.J.S.A. 34:11-56a4(b)(1), within
ninety days of this decision.
An employee who resigns is entitled to unemployment benefits so long as
the resignation was for "good cause attributable to" the work. N.J.S.A. 43:21 -
5(a). The employee bears the burden of establishing good cause. See Brady v.
Bd. of Review, 152 N.J. 197, 218 (1997); N.J.A.C. 12:17-9.1(c). "Good cause"
means "cause sufficient to justify an employee's voluntarily leaving the ranks of
the employed and joining the ranks of the unemployed." Condo v. Bd. of
Review, 158 N.J. Super. 172, 174 (App. Div. 1978). N.J.A.C. 12:17-9.1(b)
defines it as "a reason related directly to the individual's employment, which
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was so compelling as to give the individual no choice but to leave the
employment."
At the hearing, Delima testified about a number of reasons that caused her
to resign: the change in her earnings from an hourly wage to a salary, a work
load so heavy it caused her sleepless nights and anxiety, dangerous work
conditions including a faulty machine that injured the hand of a co-worker,
harassment from her manager, and the company's failure to compensate her for
overtime. Although Delima explained her dissatisfaction with her work
conditions, she offered no specifics to support her complaints, at times failing
to provide even approximate dates for the alleged incidents. As to the bulk of
her claims, the Appeal Tribunal's action was supported by the record—or the
absence of evidence in the record—and was not "arbitrary, capricious[,] or
unreasonable." See Burris v. Police Dep't of W. Orange, 338 N.J. Super. 493,
496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580
(1980)). With the exception of the overtime issue, we find her points on appeal
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
However, "[u]nder unemployment benefit law, the underpayment of
wages in violation of the Wage and Hour Law can constitute . . . good cause."
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Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 168 (App. Div. 2005) (citing
Casciano v. Bd of Review, 300 N.J. Super. 570, 572 (App. Div. 1997); Sanchez
v. Bd. of Review, 206 N.J. Super. 617 (App. Div. 1986)). But we cannot discern
if Delima was indeed underpaid for overtime in violation of state law. A salaried
employee is not statutorily entitled to receive overtime compensation. N.J.A.C.
12:56-7.1. An hourly wage earner must be compensated for overtime. See
N.J.S.A. 34:11-56a4(b)(1). Assuming when Delima worked the overtime she
was not compensated at the required rate, this may be good cause entitling her
to benefits.
It is undisputed that the employer engaged in renovations to the workplace
in June 2019, initially scheduled to last only two weeks. The closure of the
plant, in some intermittent fashion, extended up to a month. The employer
offered his workers a variety of options to make up for that lost work time: to
receive no income for the periods the plant was closed and use accrued vacation
or sick leave, or to be paid as if a full work week had passed and make up the
time as uncompensated overtime in the future. The last option, which violated
N.J.S.A. 34:11-56a4(b)(1), was the one Delima apparently selected. We do not
know how and when the overtime began for Delima.
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It is also undisputed that Delima's employer in December 2019 intended
to make her a salaried manager. It is unclear from the references in the record
whether the overtime she worked to make up for the hours in June was served
prior to December. We cannot determine if the overtime hours were
compensated at time and a half as required by statute, how many overtime hours
Delima was expected to work each day or how many hours she actually worked,
or how many hours of uncompensated hours of overtime she worked in total. In
other words, we lack the information necessary to determine if the manner in
which overtime was "compensated," assuming she was then an hourly wage
employee, met the requirements of New Jersey's statutory scheme.
Thus, we remand the matter to allow both parties to establish whether the
employer's decision to allow Delima to work overtime to make up for salary
paid when the plant was closed violated the Wage and Hour Law. If it did, then
that would constitute good cause justifying her resignation and hence her
collection of unemployment benefits. Once the record is further developed at a
hearing, the Appeal Tribunal can determine whether any violation of State Wage
and Hour Law occurred, and whether Delima's resignation for that reason, which
took place months later, nonetheless constituted good cause attributable to the
work.
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Rolka v. Board of Review, Department of Labor, 332 N.J. Super. 1, 5
(App. Div. 2000), is enlightening on this subject. The overtime issue must be
assessed in the context of Delima's other reasons for her departure. That is, the
extent to which a violation of the Wage and Hour Law controlled her decision
should be determined. We trust that in addressing this question, the Appeal
Tribunal will exercise "common sense and prudence." Ibid. (citing Gerber v.
Bd. of Review, 313 N.J. Super. 37, 43-44 (App. Div. 1998)).
Affirmed in part; reversed and remanded in part. We do not retain
jurisdiction.
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