Opinion
DOCKET NO. A-1344-13T1
04-07-2015
STEVEN J. PHILLIPS, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and HVM, INC., d/b/a HAMILTON MOTORS, Respondents.
Lenahan & Rockwell, P.A., attorneys for appellant (Thomas E. Lenahan, Jr., on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent HVW, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from the Board of Review, Department of Labor, Docket No. 404,649. Lenahan & Rockwell, P.A., attorneys for appellant (Thomas E. Lenahan, Jr., on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent HVW, Inc. has not filed a brief. PER CURIAM
Claimant Steven J. Phillips appeals from an October 16, 2013 decision of the Board of Review upholding the dismissal of his appeal as untimely and finding him liable for repayment of the $21,740 in unemployment benefits provided to him from June 2011 through March 2012. Although claimant did not provide sufficient evidence of good cause for his delayed appeal, the Board's complete lack of explanation for its after-the-fact decision to retroactively deny him unemployment benefits dictates a remand for a full fact-finding hearing prior to any requirement that he repay benefits.
On July 24, 2013, an appeal hearing was conducted by the appeal tribunal at which only the claimant and the claimant's attorney were heard by the appeals examiner. The sworn testimony revealed the following information. Claimant worked for Hamilton Motors as a car salesman from May 2007 until February 28, 2011. At the time he left, he was earning approximately $1500 per week. In prior years he had earned as much as $150,000 a year selling cars. After his employer approved a medical leave of absence, claimant left the job, at sixty-four years of age, to have reconstructive shoulder surgery. Claimant's doctor cleared him for part-time work in April 2011, but his supervisor told him the only job available was as a "lot boy" or "lot man, moving around cars, washing cars and doing menial work around the dealership[.]" The job paid $7.50 an hour. Its strenuous physical duties were not compatible with recovering from shoulder surgery so claimant did not accept the part-time job.
He applied for unemployment benefits in April and was denied in May because he was not available for full-time work. Claimant was released by his doctor for full-time work in June 2011. At that time no job was available from the dealership, and he began receiving unemployment benefits. Thereafter he began working part-time as a flagman for another company for $12.50 an hour. When that job was no longer available, he began another part-time job at Freehold Ford for $9 an hour as a Parts Delivery Driver. Claimant's lawyer maintained that his payments for part-time work were deducted from his benefits, as provided by regulation. N.J.S.A. 43:21-3(b). Claimant continues to look for full-time employment, thus far unsuccessfully.
He is a high school graduate who served in the United States Navy. He had to sell his house due to his lack of full-time employment. Born in 1946, claimant is currently sixty-eight years old.
The Board first told claimant in April 2011 that he was not eligible for benefits because he was not available for full-time work. Two months later, claimant was cleared for full-time work by his doctor, but was unable to secure a full-time job at his prior employer or elsewhere and began receiving unemployment benefits. He found one part-time job and when that one was no longer available found another part-time job at a lower hourly pay rate. More than a year after he began receiving benefits, claimant received a notice dated August 23, 2012, indicating he was disqualified for benefits dating back to April 7, 2011. The notice states, in all capital letters:
YOU LEFT WORK VOLUNTARILY ON 04/10/11.The notice does not specify what "evidence" was discovered more than a year after benefits began. Another August 23, 2012 notice disqualified claimant for benefits received after September 5, 2011, because it "was determined" that he left work voluntarily on that date. This was when claimant was forced to leave one part-time job for a second, lower-paying, part-time job. Again, the notice does not explain how claimant's change of part-time employment belatedly came to the attention of the Department of Labor. Although the notices informed claimant on the reverse side that he was liable to repay any benefits that he received while ineligible, he testified that he did not realize he might have to repay the benefits, and consequently did not appeal. When claimant received the October 2, 2012 request for refund of unemployment benefits he appealed immediately, filing on October 8, 2012, with the assistance of an attorney.
EVIDENCE INDICATES YOU VOLUNTARILY QUIT YOUR JOB WITH HAMILTON IMPORTS ON 04/07/11 WHEN YOU REFUSED TO COME BACK TO WORK AFTER A MEDICAL LEAVE OF ABSENCE. YOU SUPPLIED YOUR EMPLOYER YOUR RESTRICTIONS WORKING ONLY IN A PART TIME POSITION AND THEY ACCOMMODATED YOUR RESTRICTIONS FOR YOU. YOU ADVISED THEM YOU WERE QUITTING TO RETIRE.
SINCE YOUR REASON FOR LEAVING WAS PERSONAL, IT DOES NOT CONSTITUTE GOOD CAUSE ATTRIBUTABLE TO THE WORK. YOU ARE DISQUALIED FOR BENEFITS.
The Appeal Tribunal rejected claimant's appeal as an untimely appeal of the denial of benefits, but only after giving him a hearing. Although addressing the merits of his appeal at the hearing, the Appeal Tribunal did not explain the reason why claimant was initially approved for unemployment benefits and then disapproved a year later, finding only that claimant had filed his appeal of the denial of benefits untimely. On appeal, the Board also confines its argument to the timeliness of claimant's appeal.
Clearly, claimant was not obligated to take a part-time minimum wage job as a lot boy, in lieu of his $1500 a week job as a salesman. N.J.S.A. 43:21-5(c); Goodman v. Bd. of Review, 245 N.J. Super. 551, 560 (App. Div. 1991) ("A substantial reduction in salary in itself has been ruled determinative that work is not 'suitable' within the meaning of N.J.S.A. 43:21-5(c) and a refusal to accept such a position does not disqualify the individual from unemployment benefits."). By the end of June he was ready to go back to his prior job full-time, but the employer refused to take him back. He was able to work but could not find full-time employment.
At the bottom of the page of the belated 2012 determination, the form states in large-print capital letters "APPEAL RIGHTS ON REVERSE." The following notice was in large-print capital letters in a black box on the reverse side:
A DETERMINATION BECOMES FINAL UNLESS A WRITTEN APPEAL IS FILED WITHIN SEVEN CALENDAR DAYS AFTER DELIVERY OR WITHIN TEN CALENDAR DAYS AFTER THE MAILING OF THE DETERMINATION. YOUR APPEAL MUST BE RECEIVED OR POSTMARKED WITHIN ONE OF THE APPEAL PERIODS. . . . THE APPEAL PERIOD WILL BE EXTENDED IF GOOD CAUSE FOR LATE FILING IS SHOWN. GOOD CAUSE EXISTS IN SITUATIONS WHERE IT CAN BE SHOWN THAT THE DELAY WAS DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE APPELLANT WHICH COULD NOT HAVE BEEN REASONABLY FORESEEN OR PREVENTED.Beneath this notice was the address to send an appeal, with instructions that if the appeal is filed late the reason for the delay should be set forth. On the upper right-hand corner of the front of the determination the time-frame for filing an appeal was also set forth, underlined, under the capitalized heading "RIGHT OF APPEAL" and specifying the exact date that was ten days from mailing.
Our Supreme Court opined in Utley v. Board of Review, 194 N.J. 534, 543 (2008), that New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, "provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment." Although the purpose of our unemployment law is to provide financial assistance to those unemployed, an individual shall not receive unemployment compensation benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work and for each week thereafter until the individual becomes reemployed." N.J.S.A. 43:21-5(a). Pursuant to N.J.A.C. 12:17-9.1(b) "'good cause attributable to such work' means a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment."
The time to appeal for claimant, the employer, or any interested party — seven calendar days after delivery or ten calendar days after mailing, which was set forth twice in the determination claimant received — is governed by N.J.S.A. 43:21-6(b)(1). The definition of a good cause exception to those time requirements is provided in N.J.A.C. 12:20.3-1(i):
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause
exists in circumstances where it is shown that:
1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or
2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.
We recognized the importance of adequate procedural safeguards to insure due process protections in the agency appeal process for unemployment benefits in Garzon v. Board of Review, 370 N.J. Super. 1 (App. Div. 2004). Noting the agency's determinations at that time lacked sufficient instruction informing the applicant of the appellate deadline, we indicated that "an analysis under fairness principles [coincides] with a procedural due process analysis, since at its core, due process calls for those procedural protections that fairness demands." Id. at 9 (citations omitted). The agency has since modified the instructions.
Claimant did not demonstrate good cause for his late appeal. He testified that he received the determination within the month of August 2012, after the mailing date. He did not appeal until approximately two months after he received the determination. Claimant did not allege any particular disability beyond a lack of advanced education to excuse his failure to understand the appeal rights.
However, the Board provided no reason whatsoever why it belatedly changed its mind as to claimant's entitlement to unemployment benefits, and we can determine no such reason. If claimant's initial employer objected to his receipt of these benefits, such objection should have taken the form of a timely appeal by the employer, in which claimant would have had a right to participate. N.J.S.A. 43:21-6(c). The agency's acceptance of an ex parte informal objection from the employer, in lieu of a timely formal appeal filed pursuant to the statute, would also raise serious due process concerns. We therefore remand for a full hearing to determine claimant's entitlement to the benefits that he received. Claimant's lack of a timely appeal should certainly not serve to reward the employer, who appears to have prevailed without formally appealing at all.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION