Opinion
DOCKET NO. A-2784-11T2
04-30-2015
RENEE A. JURATA, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, ERIC C. JURATA, t/a TROPICAL POOLS and WESTWOOD ORAL SURGERY, Respondents.
Renee A. Jurata, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Tropical Pools and Westwood Oral Surgery respondents, have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Board of Review, Department of Labor, Docket No. 292,306. Renee A. Jurata, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Tropical Pools and Westwood Oral Surgery respondents, have not filed briefs. PER CURIAM
Claimant Renee Jurata appeals from a final decision of the New Jersey Department of Labor Board of Review (Board), affirming the Appeal Tribunal's determination finding her liable for repayment of $28,295 in unemployment benefits. We have considered the arguments raised on appeal in light of the record and applicable legal standards and affirm.
Jurata worked for Westwood Oral Surgery (Westwood) from December 30, 2002, until April 2004. She also worked for her husband's business, Tropical Pools, as an office manager from March 2003, until 2010. At issue are the unemployment benefit claims filed between 2003 and 2010 for her employment with Tropical Pools.
Jurata filed the first claim for unemployment benefits on November 9, 2003, which established a base year period of July 1, 2002, through June 30, 2003. During that period, she worked for Tropical Pools for thirteen weeks and earned $6,841.25 in wages, and she worked for Westwood for twenty-six weeks and earned $7,899.49. Jurata received $4,386 in benefits from this claim.
The second claim for benefits, dated November 28, 2004, was for the base year beginning on July 1, 2003, and ending on June 30, 2004. She worked thirty-three weeks for Tropical Pools, earning $22,920 in wages, and worked forty weeks for Westwood, earning $6,780.53 in wages. She received $4,178 in benefits from this claim.
The claims for unemployment benefits filed on January 1, 2006; December 31, 2006; December 30, 2007; and January 3, 2010 were solely based on employment at Tropical Pools. In each Jurata acknowledged that she was employed by her husband's company.
For the claim dated January 1, 2006, Jurata worked for thirty-eight base weeks and earned $32,052.50 in wages and received $8,096 in benefits. The claim dated December 31, 2006, covered twenty-seven base weeks, for which she earned $24,427.50 in wages. She received $7,559 in unemployment benefits. For the claim dated December 30, 2007, she worked thirty-five base weeks, earned $33,892.50 in wages, and received $9,112 in unemployment benefits. The final claim, dated January 3, 2010, was based on sixteen weeks of work for which she earned $16,128 in wages. She received $9,600 from this claim.
On July 16, 2010, the Director of the Division of Unemployment Disability Insurance (Division) mailed Jurata separate determinations indicating her ineligibility for benefits on the claims related to her employment at Tropical Pools under N.J.S.A. 43:21-19(i)(7)(c). The Division sought refunds of the benefits in question under N.J.S.A. 43:21-16(d) totaling $42,533.
Jurata appealed to the Appeal Tribunal. On August 25, 2010, the Appeals Tribunal affirmed the Director's determinations that the claims based upon employment at Tropical Pools were not eligible. The Appeals Tribunal opined that under N.J.S.A. 43:21-19(i)(7)(C), "employment" did not include "[s]ervice performed by an individual in the employ of his son, daughter, or spouse, and service performed by a child under the age of 18 in the employ of his father or mother." Since the claims were based upon Jurata's employment in her husband's company, she was ineligible to receive benefits and she had to refund those benefits received. The Appeals Tribunal remanded the matter to the Director for recalculation of Jurata's claims based upon her employment with Westwood. Thereafter, upon further appeal, the matter was remanded by the Board to the Appeal Tribunal.
On March 24, 2011, the Appeal Tribunal confirmed Jurata was eligible for benefits under the claims filed in November 2003 and November 2004 based upon her employment with Westwood. In addition, the Appeal Tribunal determined though Jurata was not eligible to receive benefits under the November 28, 2004 claim based upon her employment at Tropical Pools, she was not liable to refund the benefits received because the Director failed to notify her of the liability "before four years [had] elapsed from the time the benefits" were paid. N.J.S.A. 43:21-16(d)(1). The Appeals Tribunal again found the four claims dated January 1, 2006; December 31, 2006; December 30, 2007; and January 30, 2010 invalid under N.J.S.A. 43:21-19(i)(7)(c). Accordingly, Jurata remained liable for the repayment of those benefits. Jurata appealed to the Board.
The Board upheld the Appeal Tribunal determination but reduced Jurata's liability on the January 1, 2006 claim by $6,072 because more than four years had elapsed since she received of those benefits. See N.J.S.A. 43:21-16(d)(1). It found her liable for the remaining $2,024 received on that claim, as well as the remaining three claims for a total amount of $28,295.
Jurata appealed to this court. At the request of the Board, we granted a temporary remand to permit the Board to reconsider its review of the Appeal Tribunal's determination. On March 24, 2014, the Board again found Jurata liable for a total refund of $28,295. Jurata then filed an amended notice of appeal.
The scope of our review of a determination of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion, and the determination of the administrative agency carries a presumption of reasonableness. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm., 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). When we "'review[] the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] 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)). We must "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). For those reasons, "[i]f the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982).
On appeal, Jurata argues that she was entitled to unemployment benefits and denies liability for any refund amount notwithstanding the statutory exemption imposed by N.J.S.A. 43:21-19(i)(7)(C). Jurata relies principally on our decision in Palitto v. Bd. of Review, 312 N.J. Super. 157 (App. Div. 1998) to argue that she is eligible for benefits because she and her husband paid the required contributions for unemployment insurance and she disclosed on her claim applications that she was working for her husband. We reject that contention as contrary to law.
The sole ground for the agency determination that Jurata was not entitled to employment benefits was its legal conclusion that employment by a spouse is automatically exempt from benefits. See N.J.S.A. 43:21-19(i)(7)(C). In Palitto, we recognized that even if the spousal services were exempt,
"N.J.S.A. 43:21-8(c)(2) expressly provides that an 'employing unit for which services are performed that do not constitute employment' as defined by the act may nevertheless and unilaterally effectuate coverage of those services for all purposes under the act by filing a written election in that tenor with the Division of Employment Security."
[Palitto, supra, 312 N.J. Super. at 160.]
In Palitto, we held that a woman who worked for her husband, a sole proprietor, who paid state and federal payroll taxes and made all federal and state contributions, but whose husband failed to file the written election under N.J.S.A. 43:21-8(c)(2), could receive disability benefits, notwithstanding N.J.S.A. 43:21-19(i)(7)(C). Id. at 159-61. We explained that the agency may treat the husband-employer's failure to file the written election under N.J.S.A. 43:21-8(c)(2) as a "purely ministerial act whose omission would not defeat the election." Id. at 161.
However, in direct response to our decision in that case, the Division amended its regulations, enacted under N.J.S.A. 43:21-8(c)(2), to provide that:
(a) An employing unit desiring to elect to become subject to the Unemployment Compensation and Temporary Disability Benefits Laws may request from the Controller or his or her designee forms for voluntary election to become an employer, or to extend its coverage to individuals performing services which do not constitute employment.Pursuant to the current statutory and regulatory scheme, N.J.S.A. 43:21-8(c)(2) permits "an employing unit," such as Tropical Pools, "for which services are performed that do not constitute employment" under the unemployment compensation law, to "file[] with the division its written election that all such services performed by individuals in its employ . . . shall be deemed to constitute employment for all purposes of this chapter . . . ." Therefore, to enable Jurata to benefit from the unemployment compensation fund, Tropical Pools had to file a written election with the Division. See N.J.A.C. 12:16-14.1(b). The Division found that Tropical Pools had not filed a written election. Consequently, it determined that Jurata's employment at Tropical Pools did not constitute employment under N.J.S.A. 43:21-19(i)(7)(C), and she was not entitled to receive unemployment benefits for claims based on wages earned from that employment. We have no basis to disturb the Board's decision to seek a refund of unemployment benefits Jurata received in error.
(b) The forms for voluntary election to become an employer under the Unemployment Compensation and Temporary Disability Benefits Laws or to extend coverage shall be prescribed by the Controller or his or her designee. Election of coverage shall be made in writing, on the forms and in the manner prescribed by the Controller or his or her designee. The payment of contributions does not constitute an application for the election of coverage for otherwise exempt services. Any payment of contributions for an otherwise exempt individual shall be reimbursed to the employer for a period of up to not more than two years from the date of payment.
[N.J.A.C. 12:16-14.1 (emphasis added).]
Jurata contends that she is not at fault because she made payments to the fund, and she should not be held liable for repayment of unemployment benefits. Contrary to her assertions, the regulations are clear that the contributions paid by Jurata and Tropical Pools to the unemployment insurance fund do not satisfy the requirement of a written election of coverage. See Ibid. Accordingly, full repayment of unemployment benefits is required "by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 2 99 N.J. Super. 671, 674 (App. Div. 1997) (citing Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION