Opinion
DOCKET NO. A-4994-11T3
03-17-2014
SANDRA A. GAUL, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and CHARLES E. RUE & SONS, INC., t/a RUE INSURANCE, Respondents.
Sandra A. Gaul, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent Charles E. Rue & Sons, Inc., t/a Rue Insurance, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Board of Review, Department of Labor, Docket No. 208,130.
Sandra A. Gaul, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief).
Respondent Charles E. Rue & Sons, Inc., t/a Rue Insurance, has not filed a brief. PER CURIAM
Claimant Sandra A. Gaul appeals from a New Jersey Department of Labor Board of Review (Board) decision affirming the Appeal Tribunal (Tribunal) which disqualified her for unemployment compensation benefits. In reaching its decision, the Board adopted the Tribunal's determination that Gaul had left her employment, in the statutory language, "voluntarily for personal reasons not attributable to such work," N.J.S.A. 43:21-5(a), and was therefore ineligible for the benefits she had sought. We reverse.
I.
For almost thirty years, from October 10, 1978 through September 30, 2008, Gaul worked as a commercial insurance placer, a marketing position, for Rue Insurance (Rue), an insurance agency located in Hamilton. In 1987, Rue required its employees to sign an employment agreement containing a covenant not to compete and a covenant not to reveal information regarding the particulars of Rue's insurance business or clients. Along with Rue's other employees, Gaul signed the agreement at that time.
In July 2008, Rue announced that all of its sixty employees must sign a revised employment agreement (Revised Agreement), explaining the new agreement was necessary to address compliance issues and current business conditions. On July 11, 2008, Rue held a meeting with its employees to review the new agreement; Gaul was not present at that meeting because she was on vacation. When Gaul returned from vacation at the end of July, Rue met with her and several other employees to explain the new agreement. Rue wanted all agreements signed by all employees by August 1, 2008; however, due to reservations Gaul had about the Revised Agreement, Rue afforded her two thirty-day extensions, first until August 30, 2008, and then September 30, 2008, to review and sign the Revised Agreement.
Gaul's principal concern about signing the Revised Agreement was because the language of the confidentiality provision was greatly expanded from the previous agreement. The pertinent language of Section 5(b) of the Revised Agreement read as follows:
(b) During the Term of Employment and at all times thereafter the Employee hereby covenants and agrees that Employee shall keep strictly confidential all information which Employee presently possesses or which Employee may obtain during the course of Employee's employment . . . and not disclose the same, directly or indirectly, to any other person, firm or corporation or utilize the same, except solely in the course of business on behalf of RUE and its Affiliates pursuant to this Agreement.
. . . .
(d) For purposes of this Section 5, the term "Person" shall mean any individual, sole proprietorship, joint venture, partnership, corporation, association, cooperative, trust, estate, government (or any branch, subdivision or agency thereof), governmental administrative or regulatory
authority, or any other entity of any nature whatsoever. (emphasis added).
By the end of September 2008, Gaul still refused to sign the new agreement, claiming that defining "person" to include "government" in the non-disclosure clause of section 5 of the Revised Agreement violated her civil rights. Because of past health issues, Gaul admitted she feared the Revised Agreement was a pretext for Rue to fire her. She based her fear on office conversations she overheard earlier in 2008 that led her to suspect Rue's management was looking for a way to terminate her services. Based upon her concerns relating to her employment and health issues, Gaul consulted with the New Jersey Division of Civil Rights in May of 2008.
Specifically, Gaul testified she overheard William Rue, Jr. "discussing with his father . . . the fact that I had breast cancer[,] [t]hat I was a diabetic. . . . [and] that I had a heart attack[.]"
Notably, in January 2008, Rue completed Gaul's job evaluation and gave her a satisfactory performance review and a raise in salary. Notwithstanding her fear that the provisions of the Revised Agreement could be used to terminate her, Gaul did advise Rue she would sign the Revised Agreement so long as the language barring her from contact with the government or its agencies was deleted. To that end, on September 22, 2008, Gaul gave William Rue, Sr. a signed, edited Revised Agreement, which deleted the portion of the definition of "person" as including the government or its agencies.
Rue refused to accept the edited version, but in an attempt to calm her fears, Rue offered Gaul a letter dated September 26, 2008, indicating its intent to continue employing her through May 31, 2009, the approximate date she intended to retire, provided her performance remained at its current level. Nevertheless, Gaul still refused to sign the new agreement and was terminated four days later.
Gaul then filed a claim for unemployment benefits, which was first heard and approved by the Deputy Director of the Division of Unemployment and Disability Insurance (Division) on November 7, 2008. On November 17, 2008, Rue appealed the Division's determination approving Gaul's benefits to the Tribunal and a hearing was held on February 23, 2009. On February 25, 2009, the Tribunal reversed the determination of the Division, and held Gaul was disqualified for benefits, pursuant to N.J.S.A. 43:21-5(a), on the basis that Gaul had left her employment voluntarily without good cause attributable to such work.
On March 3, 2009, Gaul appealed the Tribunal's decision to the Board. On April 29, 2009 the Board affirmed the Tribunal's decision disqualifying Gaul benefits. After Gaul appealed the Board's decision, we granted Gaul's motion to remand to the Board to supplement the record on November 9, 2010.
On April 19, 2011, the Board remanded the matter to the Tribunal for a new hearing and decision. On August 30, 2011, the Tribunal conducted a second hearing of the matter. At the hearing, Gaul and Liz Allen, a Rue representative, testified. Before testimony began, the hearing examiner noted that "a subpoena was sent out for Mr. Richard Rue[,] the President of the company[,] to participate in the hearing. Is there a reason why he's not participating?" Allen responded, "He's not participating on the advice of our counsel."
On September 6, 2011, the Tribunal again reversed the Division's determination, deciding that Gaul was disqualified for benefits under N.J.S.A. 43:21-5(a) because Gaul had voluntarily left her job without good cause attributable to the work:
[t]he claimant is considered to have left the work voluntarily because she did not want to sign the new employment agreement. She left the work for this reason only. This conclusion is supported by the claimant's own testimony that she would have continued to work if she was not required to sign the new agreement. Therefore, there were no other working conditions or issues which caused her to leave the work.
On September 16, 2011, Gaul appealed the Tribunal's decision to the Board, which was affirmed on April 9, 2012. Gaul then filed this appeal, arguing that she should not have been disqualified from receiving unemployment benefits because she was fired for refusing to sign an employment agreement containing an illegal clause, as opposed to leaving her job voluntarily.
II.
Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to the agency's fact-findings if reasonably based on the proofs. Ibid. "'[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Therefore, the issue is whether the factual findings are supported by sufficient credible evidence. Ibid. In making that determination, we also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).
Nevertheless, a court can intervene if the agency's action was arbitrary, capricious or unreasonable, or "'clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Our state's unemployment compensation law, N.J.S.A. 43:21-1 to - 24.30, is primarily designed to reduce the impact of unemployment that befalls workers without their fault. Id. at 212. "The public policy behind the [Unemployment Compensation] Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989).
As a result, a person who voluntarily quits work for personal reasons, as opposed to causes attributable to work, is ineligible for benefits. See Self v. Bd. of Review, 91 N.J. 453, 456-57 (1982). "An individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work[.]" N.J.S.A. 43:21-5(a). "Under this section, the threshold question is whether an applicant for unemployment compensation benefits left his job 'voluntarily.'" Lord v. Bd. of Review, 425 N.J. Super. 187, 190-191 (App. Div. 2012).
We are mindful of the tension our two conflicting tasks create: to construe the Act liberally to serve the needs of the involuntarily unemployed, and to avoid the award of undeserved benefits that would deplete resources reserved for the Act's intended beneficiaries.
In order to further its remedial and beneficial purposes, the law is to be construed liberally in favor of allowance of benefits. Nonetheless, it is also important to preserve the 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.Consistent with that policy, an employee bears the burden to show entitlement to unemployment benefits. Brady, supra, 152 N.J. at 218. If an employee has voluntarily left work, he or she also has the burden to show that he or she left not for personal reasons, but for "good cause attributable to work." Ibid.
[Yardville Supply Co., supra, 114 N.J. at 374.]
The Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, (CEPA) prohibits an employer from "tak[ing] any retaliatory action against an employee because the employee . . . [d]iscloses, or threatens to disclose . . . any activity, policy or practice which the employee reasonably believes . . . is in violation of a law," or "is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any . . . governmental entity." N.J.S.A. 34:19-3(a)-(c). Our Supreme Court has said that "[b]ecause CEPA is remedial legislation, it should be construed liberally to effectuate its important social goal — to encourage, not thwart, legitimate employee complaints." Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011) (citations and internal quotation marks omitted). To that end, the statute imposes upon employers the obligation of posting notices to alert employees of their rights and protections under CEPA:
An employer shall conspicuously display, and annually distribute to all employees, written or electronic notices of its employees' protections, obligations, rights and procedures under this act, and use other appropriate means to keep its employees so informed. Each notice posted or distributed pursuant to this section shall be in English, Spanish and at the employer's discretion, any other language spoken by the majority of the employer's employees.
[N.J.S.A. 34:19-7.]
It is unclear whether the provision in the Revised Agreement prohibiting contact with governmental agencies was intended to discourage employees from exercising their rights under CEPA or other laws intended to protect workers. Regardless, Gaul appears to have interpreted the language in that manner and we cannot state her view was unreasonable.
As we noted in D'Alia v. Allied-Signal Corp., 2 60 N.J. Super. 1, 9 (App. Div. 1992), a case under the Family Leave Act involving the requirement that an employee must give "advance notice" to the employer to invoke the rights granted by the law, N.J.S.A. 34:11B-4, employees are not required to possess "encyclopedic knowledge of their legal rights." In ruling in favor of the employee, we stated that our result was "mandated by the public policy considerations identified in the Act, N.J.S.A. 34:11B-2, and the express statutory language, N.J.S.A. 34:11B-4f; N.J.S.A. 34:11B-6." Id. at 10.
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If in fact the disputed language was intended to discourage employees from exercising their rights, the provision would be void and unenforceable as against public policy expressed by CEPA. See Donelson, supra, 206 N.J. at 256. The record provides no explanation why Rue steadfastly refused to modify the Revised Agreement so as to address Gaul's legitimate concerns.
Our decision in this case is consistent with the policy that requires employees to act reasonably to protect their own employment. "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Brady, supra, 152 N.J. at 214 (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)). It was neither necessary nor reasonable to expect Gaul to sign a document that she legitimately feared would preclude her from contacting the government or other otherwise exercising her rights.
In Campbell Soup Co. v. Board of Review, 13 N.J. 431, 435 (1953), Justice Brennan noted that an employee's separation from employment will be considered "voluntary" within the intent of N.J.S.A. 43:21-5(a) only if "the decision whether to go or to stay lay at the time with the worker alone . . . ." We are satisfied the facts show the termination of Gaul's employment was the employer's decision. Alternatively, the record also clearly indicates Gaul did not intend to resign from her job, that she genuinely believed she was terminated, and that her belief was not unreasonable under the circumstances. We therefore reverse the Board's decision that she voluntarily left work without good cause attributable to work.
Accordingly, the final decision of the Board of Review is reversed, and the case is remanded to the Division to determine the amount of unemployment compensation benefits to which appellant is entitled.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION