PATRICIA J. MCCLAIN VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2017 )


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  •                    NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
    
                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-4319-15T3
    
    PATRICIA J. MCCLAIN,
    
         Appellant,
                                             APPROVED FOR PUBLICATION
    v.
                                                   August 29, 2017
    BOARD OF REVIEW, DEPARTMENT                   APPELLATE DIVISION
    OF LABOR, LEARNING EDGE ACADEMY,
    INC., and KIDS CHOICE ACADEMY,
    
         Respondents.
    
    ___________________________________
    
             Argued May 31, 2017 – Decided August 29, 2017
    
             Before Judges Ostrer, Vernoia and Moynihan.
    
             On   appeal  from   the      Board     of   Review,
             Department of Labor.
    
             Cassandra Stabbert argued the cause for
             appellant (South Jersey Legal Services,
             Inc.,   attorneys; Ms. Stabbert, on the
             brief).
    
             Melissa Dutton Schaffer, Assistant Attorney
             General, argued the cause for respondent
             Board of Review (Christopher S. Porrino,
             Attorney General, attorney; Ms. Schaffer, of
             counsel;   Patrick  Jhoo,   Deputy  Attorney
             General, on the brief).
    
             Respondents Learning Edge Academy, Inc., and
             Kids Choice Academy have not filed briefs.
    
         The opinion of the court was delivered by
    
    VERNOIA, J.A.D.
           A    recent       amendment     to    the     unemployment        insurance     law
    
    exempts       from      disqualification       for    unemployment        benefits     "an
    
    individual        who    voluntarily      leaves     work    with   one    employer     to
    
    accept from another employer employment which commences not more
    
    than seven days after the individual leaves . . . the first
    
    employer." L. 2015, c. 41, § 1, codified at N.J.S.A. 43:21-5(a).
    
    Appellant left her first employer after accepting new employment
    
    that    was      to     commence    within    seven    days;     her     new    employer,
    
    however, rescinded the offer before she ever began work. Finding
    
    this statute inapplicable -- because appellant hadn't commenced
    
    her new employment within seven days -- the Board found she was
    
    disqualified          from    receiving      benefits.      We   reject    the    Board's
    
    interpretation and reverse, finding a claimant need not actually
    
    start      the    new    employment    to     be   exempt    from   disqualification
    
    under      N.J.S.A. 43:21-5(a).
    
                                                 I.
    
           Appellant Patricia J. McClain began working as a teacher at
    
    Learning         Edge    Academy,     Inc.    in     January     2013.    She    was    on
    
    disability leave commencing in August 2015, and was scheduled to
    
    return to work in October.
    
           On October 12, 2015, McClain accepted an offer from Kids
    
    Choice      Academy          for   full-time       employment.      She     immediately
    
    submitted a letter of resignation to Learning Edge.
    
    
    
    
                                                  2                                  A-4319-15T3
        The     next        day,   the    director     of     Kids     Choice    requested
    
    McClain's permission to contact McClain's former employer and
    
    advised    her     an     appointment      would     be   made     for     her    to     be
    
    fingerprinted. Later in the day, the director rescinded the job
    
    offer to McClain because the person McClain was supposed to
    
    replace decided to return to work at Kids Choice. McClain also
    
    received an email from Learning Edge accepting her resignation.
    
        McClain began looking for other jobs. She did not contact
    
    Learning    Edge        following    its    acceptance       of     her     resignation
    
    because she did not think Learning Edge would want her to return
    
    since she had resigned.
    
        McClain applied for unemployment benefits. Her claim was
    
    denied and she appealed. The Appeal Tribunal held a hearing,
    
    McClain testified, and the Appeal Tribunal affirmed the denial.
    
    The Appeal Tribunal found McClain resigned from her position
    
    with Learning Edge on October 12, 2015 to accept a higher paying
    
    position with Kids Choice, and that on October 13, 2015, Kids
    
    Choice rescinded the offer "because the employee who originally
    
    held the position decided to return to work."
    
        The     Appeal         Tribunal     explained         that     a      claimant       is
    
    disqualified from receiving unemployment compensation benefits
    
    under   N.J.S.A.        43:21-5(a)    where    the      claimant    "has     left      work
    
    voluntarily without good cause attributable to such work." The
    
    
    
    
                                               3                                     A-4319-15T3
    Appeal    Tribunal   also   noted   there         is   an   exemption   from   the
    
    disqualification for
    
                  an individual who voluntarily leaves work
                  with one employer to accept from another
                  employer employment which commences not more
                  than seven days after the individual leaves
                  employment with the first employer, if the
                  employment with the second employer has
                  weekly hours or pay not less than the hours
                  or pay of the employment of the first
                  employer.
    
                  [N.J.S.A. 43:21-5(a).]
    
           The Appeal Tribunal determined McClain was not covered by
    
    the exemption because she did not actually commence employment
    
    with Kids Choice within seven days of her last day of employment
    
    at Learning Edge.        The Appeal Tribunal therefore found McClain
    
    was disqualified from receiving benefits under N.J.S.A. 43:21-
    
    5(a).
    
           McClain appealed to the Board of Review. On April 14, 2016,
    
    the Board issued its final agency decision affirming the Appeal
    
    Tribunal's findings and ruling. The Board subsequently denied
    
    McClain's request for reopening. This appeal followed.
    
                                        II.
    
           Our scope of review of an administrative agency's decision
    
    is limited. In re Stallworth, 
    208 N.J. 182
    , 194 (2011). "In
    
    order to reverse an agency's judgment, an appellate court must
    
    find    the   agency's   decision   to       be   'arbitrary,    capricious,     or
    
    
    
    
                                             4                               A-4319-15T3
    unreasonable,       or    [     ]    not    supported       by   substantial     credible
    
    evidence in the record as a whole.'" Ibid. (quoting Henry v.
    
    Rahway State Prison, 
    81 N.J. 571
    , 579-80 (1980)). A reviewing
    
    court "may not substitute its own judgment for the agency's,
    
    even though the court might have reached a different result." In
    
    re Carter, 
    191 N.J. 474
    , 483 (2007) (quoting Greenwood v. State
    
    Police Training Ctr., 
    127 N.J. 500
    , 513 (1992)).
    
        Generally,           "we    afford      [an]      agency     great    deference"     in
    
    reviewing its "interpretation of statutes within its scope of
    
    authority"     in        recognition            of    the      agency's    "specialized
    
    expertise."     N.J. Soc'y for Prevention of Cruelty to Animals v.
    
    N.J. Dep't of Agric., 
    196 N.J. 366
    , 385 (2008) (quoting In re
    
    Freshwater Wetlands Prot. Act Rules, 
    180 N.J. 478
    , 489 (2004)).
    
    Although an appellate court must give deference to the agency's
    
    findings of facts, "and some deference to its 'interpretation of
    
    statutes and regulations within its implementing and enforcing
    
    responsibility,'"          it       is   "in    no    way   bound   by     the   agency's
    
    interpretation of a statute or its determination of a strictly
    
    legal issue." Utley v. Bd. of Review, 
    194 N.J. 534
    , 551 (2008)
    
    (first quoting In re Appeal by Progressive Cas. Ins. Co., 
    307 N.J. Super. 93
    , 102 (App. Div. 1997); then quoting Mayflower
    
    Sec. Co. v. Bureau of Sec., 
    64 N.J. 85
    , 93 (1973)); see also
    
    Reilly   v.   AAA    Mid-Atl.            Ins.   Co.   of    N.J.,   
    194 N.J. 474
    ,      485
    
    
    
    
                                                    5                                A-4319-15T3
    (2008) ("[I]f an agency's statutory interpretation is contrary
    
    to the statutory language, or if the agency's interpretation
    
    undermines the Legislature's intent, no deference is required."
    
    (quoting N.J. Tpk. Auth. v. AFSCME, Council 73, 
    150 N.J. 331
    ,
    
    351 (1997))). An appellate court reviews legal conclusions de
    
    novo. Lavezzi v. State, 
    219 N.J. 163
    , 172 (2014).
    
          The Board's decision finding McClain was disqualified from
    
    receiving benefits requires that we interpret a 2015 amendment
    
    to   N.J.S.A.    43:21-5(a).     Prior    to    the    amendment,   the   statute
    
    provided   that       an   individual    was   disqualified    from     receiving
    
    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   and   works   eight  weeks   in
               employment, which may include employment for
               the federal government, and has earned in
               employment   at    least    ten  times   the
               individual's   weekly    benefit  rate,   as
               determined in each case.
    
               [N.J.S.A. 43:21-5(a).]
    
    Under the applicable regulation, an individual's separation from
    
    employment      was    deemed   voluntary      where   the   claimant     left   to
    
    accept work at another employer. N.J.A.C. 12:17-9.1.
    
    
    
    
                                             6                                A-4319-15T3
        The   2015   amendment1    to   N.J.S.A.     43:21-5(a)    added    the
    
    following exemption from the disqualification in the statute and
    
    regulation:
    
              This subsection shall not apply to an
              individual who voluntarily leaves work with
              one employer to accept from another employer
              employment which commences not more than
              seven days after the individual leaves
              employment with the first employer, if the
              employment with the second employer has
              weekly hours or pay not less than the hours
              or pay of the employment of the first
              employer, except that if the individual
              gives notice to the first employer that the
              individual   will  leave    employment   on   a
              specified   date  and   the    first   employer
              terminates the individual before that date,
              the seven-day period will commence from the
              specified date.
    
              [N.J.S.A. 43:21-5(a) (emphasis added).]
    
    The Board's interpretation and application of the amendment are
    
    at the center of McClain's appeal.
    
        Our primary purpose in construing a statute is to "discern
    
    the meaning and intent of the Legislature." State v. Gandhi, 
    201 N.J. 161
    , 176 (2010). "There is no more persuasive evidence of
    
    legislative   intent   than   the   words   by   which   the   Legislature
    
    undertook to express its purpose; therefore, we first look to
    
    the plain language of the statute." Perez v. Zagami, LLC, 
    218 N.J. 202
    , 209-10 (2016). "We ascribe to the statutory words
    
    1
      The amendment became effective May 4, 2015. L. 2015, c. 41, §
    1.
    
    
    
                                        7                             A-4319-15T3
    their   ordinary    meaning   and   significance,       and    read    them   in
    
    context    with   related   provisions   so   as   to   give   sense    to    the
    
    legislation as a whole." DiProspero v. Penn, 
    183 N.J. 477
    , 492
    
    (2005) (citations omitted). Where "the plain language leads to
    
    a clear and unambiguous result, . . . our interpretive process
    
    is over." Richardson v. Bd. of Trs., Police & Firemen's Ret.
    
    Sys., 
    192 N.J. 189
    , 195 (2007). When the statutory language
    
    "clearly reveals the meaning of the statute, the court's sole
    
    function is to enforce the statute in accordance with those
    
    terms." McCann v. Clerk of Jersey City, 
    167 N.J. 311
    , 320 (2001)
    
    (quoting SASCO 1997 NI, LLC v. Zudkewich, 
    166 N.J. 579
    , 586
    
    (2001)).
    
         Alternatively, where "there is ambiguity in the statutory
    
    language that leads to more than one plausible interpretation,
    
    we   may   turn    to   extrinsic   evidence,      'including    legislative
    
    history, committee reports, and contemporaneous construction.'"
    
    DiProspero, supra, 183 N.J. at 492-93 (quoting Cherry Hill Manor
    
    Assocs. v. Faugno, 
    182 N.J. 64
    , 75 (2004)). Extrinsic evidence
    
    may also be considered "if a plain reading of the statute leads
    
    to an absurd result or if the overall statutory scheme is at
    
    odds with the plain language." Id. at 493.
    
         The resolution of McClain's application for unemployment
    
    compensation benefits turns on the interpretation of the phrase
    
    
    
    
                                         8                                 A-4319-15T3
    "who voluntarily leaves work with one employer to accept from
    
    another employer employment which commences not more than seven
    
    days   after    the   individual    leaves     employment     with    the       first
    
    employer." N.J.S.A. 43:21-5(a). The Board found the amendment
    
    required that a claimant actually commence employment within the
    
    seven-day      period,   and     that   McClain      was    disqualified         from
    
    receiving benefits because she did not actually commence her
    
    employment at Kids Choice within seven days of her last day of
    
    employment      at    Learning     Edge.      McClain      argues     the       Board
    
    misinterprets the amended statute, and that she was covered by
    
    its plain language because she voluntarily left the employment
    
    of Learning Edge "to accept" employment with Kids Choice that
    
    commenced within the seven-day period.
    
           We   have   carefully     considered    the     amendment    to    N.J.S.A.
    
    43:21-5(a) and are convinced its plain language is inconsistent
    
    with    the    Board's   interpretation.         The    amendment        does     not
    
    expressly require that a claimant actually commence work within
    
    the seven-day period.          To the contrary, the amendment requires
    
    only that a claimant leave work with the first employer "to
    
    accept"     employment   with    the    second    employer    which      commences
    
    within the seven-day period. The Board's interpretation requires
    
    the imposition of a condition the Legislature did not include in
    
    the amendment: that the employee not only leave employment with
    
    
    
    
                                            9                                   A-4319-15T3
    the first employer to accept employment which commences within
    
    the    seven-day          period,     but     also       that        the    claimant       actually
    
    commence the new employment within the seven-day period.
    
           We find nothing in the plain language of the amendment
    
    supporting          the     imposition         of        such    a         condition.       If     the
    
    Legislature intended to impose the requirement that a claimant
    
    actually     commence        employment        within          the    seven-day       period,       it
    
    could have done so directly. Instead, the amendment provides
    
    only    that        there    is    no    disqualification                  where,    as    here,     a
    
    claimant leaves work to accept employment which commences within
    
    the     seven-day           period.      We     therefore             reject         the    Board's
    
    interpretation of the amendment because it is not our function
    
    "to 'rewrite a plainly-written enactment of the Legislature or
    
    presume that the Legislature intended something other than that
    
    expressed by way of the plain language.'" DiProspero, supra, 183
    
    N.J.    at   492      (quoting      O'Connell        v.     State,         
    171 N.J. 484
    ,    488
    
    (2002)).       We    will    not    "'write         in    an    additional          qualification
    
    which    the    Legislature         pointedly            omitted      in     drafting      its    own
    
    enactment,'         or    'engage       in    conjecture         or        surmise    which       will
    
    circumvent the plain meaning of the act.'" Ibid. (first quoting
    
    Craster v. Bd. of Comm'rs of Newark, 
    9 N.J. 225
    , 230 (1952);
    
    then quoting In re Closing of Jamesburg High School, 
    83 N.J. 540
    , 548 (1980)).
    
    
    
    
                                                    10                                          A-4319-15T3
          We need not rely on the legislative history given that the
    
    plain language of the amendment does not require that a claimant
    
    actually    commence   the     new    employment     within     the    seven-day
    
    period.    See   Richardson,   supra,       192   N.J.   at   195;    DiProspero,
    
    supra, 183 N.J. at 492-93.           Moreover, the Board's argument that
    
    the   legislative      history       supports      its    interpretation        is
    
    contradicted by the plain language of the amendment. The Board
    
    relies on the following Senate Sponsor's statement annexed to
    
    the bill that was subsequently enacted as the 2015 amendment to
    
    N.J.S.A. 43:21-5(a):
    
                     This bill provides that an individual
                is   not   disqualified     from    unemployment
                insurance (UI) benefits for voluntarily
                leaving work if the individual leaves work
                with one employer to accept from another
                employer employment which commences not more
                than seven days after the individual leaves
                employment with the first employer, and the
                employment with the second employer has
                weekly hours or pay not less than the hours
                or pay of the employment of the first
                employer, except that if the individual
                notifies   the   first    employer    that    the
                individual   will   leave    employment    on   a
                specified   date   and   the    first   employer
                terminates the individual before that day,
                the seven-day period will commence from the
                specified date.
    
                     Current  law,   [N.J.S.A.]  43:21-5(a),
                disqualifies an individual who voluntarily
                leaves a job from receiving UI benefits and
                requires the individual to become reemployed
                and work at least eight weeks, earning at
                least 10 times the individual's weekly UI
                benefit rate, before again being eligible
    
    
    
                                           11                                A-4319-15T3
                 for   UI  benefits.   This   bill makes  an
                 exception from that requirement for an
                 individual who leaves one job to accept a
                 subsequent job at least equal in hours or
                 pay, but is laid off from the subsequent
                 job. The UI laws of 26 states, and the
                 regulations of five other states, treat
                 accepting other work as good cause for
                 leaving work, and do not disqualify workers
                 for UI benefits for doing so.
    
                 [Sponsor's Statement to S. 2082, 216th Leg.
                 (May 19, 2014) (emphasis added).2]
    
          The    Board   argues   that    the   reference   in    the   sponsor's
    
    statement to a claimant being "laid-off" means the amendment to
    
    N.J.S.A. 43:21-5(a) requires that the claimant actually commence
    
    work with the new employer within the seven-day period because
    
    an employee must begin work in order to be "laid-off." However,
    
    the plain language of the enacted amendment is bereft of any
    
    requirement that the claimant actually commence work, and makes
    
    no reference to the claimant being "laid-off." To the contrary,
    
    the   best   evidence   of    the    Legislature's   intent    –    the   plain
    
    language of the amendment – requires only that a claimant leave
    
    
    
    
    2
      The emphasized language was also included in the Assembly
    Appropriations Committee and Assembly Labor Committee statements
    concerning the bill, and the Bill Description prepared by the
    Office of Legislative Services. See Assem. Appropriations Comm.,
    Statement to S. 2082 (Feb. 5, 2015) (codified at N.J.S.A. 43:21-
    5); Assem. Labor Comm., Statement to S. 2082 (Sept. 11, 2014);
    Office of Legis. Servs., Legis. Fiscal Estimate for S. 2082
    (June 19, 2014).
    
    
    
                                           12                             A-4319-15T3
    work to accept employment which commences within the seven-day
    
    period.
    
          We   are    also      unpersuaded     by   the   Board's    contention     the
    
    sponsor's statement's reference to the unemployment insurance
    
    laws of twenty-six other states supports its interpretation of
    
    the amendment. According to the sponsor's statement, the laws in
    
    the   other      states     do   not   require    that   a   claimant     actually
    
    commence    work     with    the    new   employer.    Instead,    the   sponsor's
    
    statement explains that the laws                 in the other states "treat
    
    accepting     work    as     good   cause   for   leaving    work."      Thus,   the
    
    sponsor's statement describing the laws in the other states is
    
    consistent with the plain language of the amendment; accepting
    
    new employment which commences within the seven-day period is
    
    sufficient.3
    
    
    3
      We also reject the Board's argument that the laws of other
    states support its interpretation of the amendment. Here, we
    interpret only the language in the amendment to N.J.S.A. 43:21-
    5(a), which is different from the statutory language of the
    other states referred to in the Board's brief. The Board relies
    on an Iowa statute exempting an employee from disqualification
    for leaving employment to accept other employment where "the
    individual performed services in the new employment," Iowa Code
    § 96.5(1)(a) (2017), and Ind. Code Ann. § 22-4-15-1(c)(1)(A)
    (West 2017), which provides a claimant is not disqualified from
    benefits where the claimant accepts new full-time employment
    "which offered reasonable expectation of continued covered
    employment and betterment of wages or working conditions and
    thereafter was employed on said job." The Board contends the
    amendment to N.J.S.A. 43:21-5(a) "closely tracks" the language
    of the Iowa and Indiana statutes and argues they provide support
                                                         (continued)
    
    
                                              13                               A-4319-15T3
             "In reading and interpreting a statute, primary regard must
    
    be given to the fundamental purpose for which the legislation
    
    was enacted. Where a literal reading will lead to a result not
    
    in accord with the essential purpose and design of the act, the
    
    spirit of the law will control the letter." State v. Tischio,
    
    
    107 N.J. 504
    ,    511    (1987)    (quoting     N.J.   Builders,     Owners   and
    
    Managers Ass'n v. Blair, 
    60 N.J. 330
    , 338 (1972)). Thus, "the
    
    words of [a statute] are to be accorded a rational meaning in
    
    harmony with the obvious intent and purpose of the law." Ibid.
    
    (quoting State v. Brown, 
    22 N.J. 405
    , 415 (1956)). "Where the
    
    Legislature's     intent    is     remedial,     a   court   should   construe    a
    
    statute     liberally."    Young       v.   Schering   Corp.,   
    141 N.J. 16
    ,     25
    
    (1995).
    
             New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-
    
    1   to    -56,   (the    Act)    "is    social    legislation    that    provides
    
    financial assistance to eligible workers suffering the distress
    
    and      dislocation     caused        by    unemployment."     Utley,    supra,
    
    194 N.J. at 543. "[T]he underlying mission of the Act is 'to
    
    
    
    (continued)
    for the Board's interpretation of the amendment. We are not
    persuaded. The Iowa and Indiana statutes only highlight that
    where a Legislature intends that actual commencement of new
    employment is required for the exemption from disqualification,
    the requirement will be directly expressed in the applicable
    statute. The New Jersey Legislature chose not to expressly
    include such a requirement in the amendment.
    
    
    
                                                14                           A-4319-15T3
    afford protection against the hazards of economic insecurity due
    
    to involuntary unemployment.'" Brady v. Bd. of Review, 
    152 N.J. 197
    , 211 (1997) (quoting Yardville Supply Co. v. Bd. of Review,
    
    
    114 N.J. 371
    , 374 (1989)). "[T]he purpose of the Act is to
    
    provide some income for the worker earning nothing, because he
    
    is out of work through no fault or act of his own." Id. at 212
    
    (quoting Yardville, supra, 114 N.J. at 375). Thus, "[t]he Act
    
    . . . protects not only workers who are involuntarily unemployed
    
    — those who are laid-off or terminated from their jobs by their
    
    employers — but also those who voluntarily quit their jobs for
    
    good        cause    attributable      to        their   work."   Utley,    supra,
    
    194 N.J. at 543-44.
    
            "[T]o further [the Act's] remedial and beneficial purposes
    
    .   .   .    the    [Act]   is   to   be   construed     liberally   in   favor   of
    
    allowance of benefits." Lourdes Med. Ctr. of Burlington Cty. v.
    
    Bd. of Review, 
    197 N.J. 339
    , 364 (2009) (quoting Utley, supra,
    
    194 N.J. at 543). However, "it is also important to preserve the
    
    [unemployment insurance trust] 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." Brady, supra, 152
    
    N.J. at 212 (quoting Yardville, supra, 114 N.J. at 374).
    
    
    
    
                                                15                             A-4319-15T3
         Given that the intent of the Act is to provide income for a
    
    worker who is out of work "through no fault or act of his own,"
    
    ibid., and the Act "is to be construed liberally in favor of
    
    allowance    of       benefits,"    Lourdes,     supra,         197 N.J. at      364,   our
    
    reading of the plain language of the amendment places McClain
    
    within    the     intended       recipients     of     unemployment         compensation
    
    benefits.       The     record    shows,   and       the        Board   found,    McClain
    
    resigned from her position with Learning Edge "to accept" new
    
    employment      at     Kids   Choice   which     was       to    commence      seven    days
    
    later,4   and     had    comparable    hours     and       better       pay.   Under    the
    
    amendment to N.J.S.A. 43:21-5(a), McClain left her employment
    
    with Learning Edge for good cause attributable to the work and
    
    was entitled to benefits without disqualification. See N.J.S.A.
    
    43:21-5(a); Utley, supra, 194 N.J. at 543-44 ("The Act . . .
    
    protects . . . those who voluntarily quit their jobs for good
    
    cause attributable to their work."). The Board's finding to the
    
    contrary was in error.
    
         Reversed.
    
    
    
    
    4
      The Board adopted the Appeal Tribunal's factual finding that
    McClain resigned from her employment with Learning Edge "to
    accept higher paying employment with" Kids Choice. There was no
    evidence presented to the contrary.
    
    
    
                                               16                                     A-4319-15T3