Opinion
DOCKET NO. A-0229-12T3
08-18-2014
RONALD LOMBARDI, Appellant, v. BOARD OF REVIEW, RUTGERS UNIVERSITY and PASSAIC COUNTY COMMUNITY COLLEGE, Respondents.
Cozzarelli Law, LLP, attorneys for appellant (Frank J. Cozzarelli, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief). Respondents Rutgers University and Passaic County Community College have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Hoffman.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. 347,876. Cozzarelli Law, LLP, attorneys for appellant (Frank J. Cozzarelli, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief). Respondents Rutgers University and Passaic County Community College have not filed briefs. PER CURIAM
Appellant, an adjunct faculty professor who has taught at Rutgers University and Passaic County Community College (PCCC), appeals from the final agency decision determining that he was not entitled to unemployment compensation benefits during the summer recess. The Board of Review (Board) found that he had assurances of reemployment, that he was in fact rehired by PCCC, and he was therefore not entitled to receive benefits. On appeal, appellant contends he had no reasonable assurances of employment beyond a single semester for which he was hired and, as such, he is entitled to recover unemployment benefits for the period between academic terms. We disagree and, therefore, affirm.
PCCC employed appellant as an adjunct faculty member for the January-June 2011 spring semester. In May, the Chair of Business Administrative Programs, Tom Cox, advised appellant that he would be hired for the fall semester, provided there was sufficient enrollment. Appellant filed for unemployment benefits in June. Throughout the summer, he maintained contact with Cox, who advised him that PCCC would not know whether there was sufficient enrollment until the end of August. In September, PCCC hired appellant for the fall semester, and for the spring semester, both PCCC and Rutgers hired appellant.
The Appeal Tribunal denied appellant's claim, notifying him by correspondence dated May 29, 2012 that based upon his work history with PCCC "it was implied" he would be reemployed in the same capacity based upon enrollment. The Board adopted the Appeal Tribunal's findings, adding that "reasonable assurance is not a 'promise' of reemployment and when reemployment is dependent on enrollment, the claimant is ineligible for benefits."
On appeal, Lombardi maintains the Board erred in finding he had reasonable assurance of reemployment. He argues the Appeal Tribunal's reasoning that his reemployment was implied makes no sense because he had no work history with PCCC. The objective of the Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, is remedial, namely, to "provide a cushion for the workers of New Jersey 'against the shocks and rigors of unemployment.'" Carpet Remnant Warehouse, Inc. v. N.J. Dep't. of Labor, 125 N.J. 567, 581 (1991) (quoting Provident Inst. for Sav. in Jersey City v. Div. of Emp't Sec., 32 N.J. 585, 590 (1960)). Unemployment benefits are only paid to those who meet the Act's eligibility requirements. Stauhs v. Bd. of Review, 93 N.J. Super. 451, 455 (App. Div. 1967). The "right to unemployment compensation benefits is purely statutory[.]" Lowden v. Bd. of Review, 78 N.J. Super. 467, 469 (App. Div. 1963). A person seeking unemployment compensation must prove his or her entitlement to benefits. Stonco v. Bd. of Review, 106 N.J. Super. 6, 10 (App. Div. 1969).
In its determination, the Board relied on N.J.S.A. 43:21-4(g)(1), which provides an exception to eligibility for unemployment compensation benefits, tailored to meet the unique ten-month term of educational employment. The statute provides in pertinent part:
[B]enefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years . . . to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms[.]
[Ibid.]
Moreover, N.J.A.C. 12:17-12.4(a) provides that an employee of an educational institution is not eligible for benefits for any week that begins during the period between academic years if the employee has a "reasonable assurance" of returning to work "in any such capacity" in the succeeding academic year. The regulation also states:
The term "reasonable assurance" of returning to work means a written, oral, or other implied agreement that the employee shall perform services in any such capacity during the next academic year . . . . "Any such capacity" means the same or similar capacity and refers to the type of services provided, that is, a professional capacity as provided by N.J.S.A. 43:21-4(g)(1) or nonprofessionalDenial of benefits to such persons "conforms with the Legislature's intent not to subsidize the vacation periods of those who know well in advance that they may be laid off for certain specified periods." Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (internal quotation marks omitted).
capacity as provided by N.J.S.A. 43:21-4(g)(2).
[N.J.A.C. 12:17-12.4(a)1.]
The question before us is whether the credible evidence sufficiently supports the finding that appellant's period of unemployment was an anticipated hiatus between academic years because his employment relationship would continue in September. Appellant was given reasonable assurance of reemployment, conditioned solely upon enrollment numbers. In that regard, his reemployment circumstances are similar to that of the substitute teacher in Patrick v. Board of Review, 171 N.J. Super. 425 (App. Div. 1979), where we upheld the denial of unemployment benefits to a substitute teacher who submitted an application to be placed on the on-call list for the upcoming year and, in other words, would be hired on an as-needed basis during the academic year. We found these circumstances gave rise to reasonable assurances of employment during the 1978-1979 school term. Id. at 426.
We are not persuaded, as appellant argues, that application of the "reasonable assurance" to his circumstances required evidence of prior history. We agree that appellant's employment with PCCC for one semester does not reflect a prior long-term relationship with PCCC. However, his one-semester history with PCCC reflected performance, which led to the "reasonable assurance" of reemployment in the upcoming fall semester, provided enrollment was sufficient. Thus, in that regard, his work history was measured qualitatively rather than merely quantitatively. While the presence or absence of a prior history is a relevant consideration, we find Cox's verbal assurance to appellant that he would be reemployed, subject to enrollment, equally relevant. Nor are we persuaded that our decision in Weber Smith v. Board of Review, 337 N.J. Super. 319 (App. Div. 2001) is applicable, because the claimant there was a twelve-month employee, whose lay-off was unanticipated and occasioned by the unforeseen cancellation of her classes. Here, appellant was not hired as a twelve-month employee. Therefore, he had no expectation of employment during the intervening months between the two semesters.
The scope of our review of an appeal from a final determination of an administrative agency is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985)). An agency's decision may not be set aside unless shown to be arbitrary, capricious, or unreasonable. Ibid. (citing In re Warren, 117 N.J. 295, 296 (1989)). We intervene "'only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
The Board's decision holding that appellant was ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-4(g)(1) is supported by substantial, credible evidence in the record and accords with the express legislative intent to except from eligibility for unemployment compensation benefits those persons employed in education on a ten-month basis. N.J.S.A. 43:21-4(g)(3). Measured under our standard of review, we discern no basis for intervention.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION