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Schatz v. Board of Review

Decided: February 4, 1981.

ROSEMARY SCHATZ, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY AND UNITED AIRLINES, RESPONDENTS



On appeal from the Board of Review, Department of Labor and Industry.

Allcorn, Kole and Pressler. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

This appeal from a determination of the Board of Review raises a novel question concerning the manner of calculating unemployment compensation benefits where successive employments are involved.

Claimant Rosemary Schatz had been employed by United Airlines for a 13-week period from January 3, 1979 to April 6, 1979 when she was laid off because of lack of work. Her United Airlines salary had been calculated on the basis of an hourly rate and during the 13-week period she earned a total of $2,230.27 for a weekly average of about $171. Her employment immediately preceding the United Airlines employment was as a part-time

waitress, work she had done for about five years and at a substantially lesser salary than she had earned in her United Airlines job. The waitress employment had terminated some three months prior to the commencement of the United Airlines job. It is not disputed that claimant is entitled to unemployment compensation benefits by reason of her loss of the United Airlines job. The question rather is the amount of the weekly compensation to which she is entitled.

It was the view of the Appeal Tribunal, concurred in by the Board of Review, that claimant's benefits were required to be based upon the average weekly salary she had earned in her last 23 weeks in her waitress job, to the complete exclusion of her significantly greater United Airlines salary. The Appeal Tribunal reached this conclusion on the basis of its reading of the applicable statutory provisions and we are convinced, for the reasons hereafter set forth, that that reading was in error.

N.J.S.A. 43:21-3(c) provides generally that the weekly benefit rate for a qualified claimant shall be two-thirds of his average weekly wage, subject to a maximum of 50% of the statewide average weekly remuneration paid to workers as determined by the Commissioner of Labor and Industry.*fn1 N.J.S.A. 43:21-19(u) defines average weekly wage as

Base year is defined by N.J.S.A. 43:21-19(c) as the "52 calendar weeks ending with the second week immediately preceding an individual's benefit year," and base week is defined in N.J.S.A. 43:21-19(t) as any calendar week in the base year in which the employee earns at least $30.

The Appeal Tribunal fixed the claimant's base year as the period from April 2, 1978 to March 31, 1979. During that period, she had worked as a waitress for 23 weeks at an average weekly salary of $57, and thereafter she had worked at her United Airlines job for 13 weeks at an average weekly salary, as noted, of $171. Reading N.J.S.A. 43:21-19(u) literally, the Appeal Tribunal held that since the United Airlines employment had lasted less than 20 weeks, the waitress job constituted the most recent employment during the base year in which at least 20 base weeks were established. Thus, it concluded that the waitress employment was the mandated and exclusive basis for fixing the weekly benefit rate. Accordingly, it fixed that weekly benefit rate at $38, two-thirds of the $57 average weekly wage.

Claimant argues that the weekly benefit rate should have been based on her United Airlines average weekly salary, two-thirds of which is $114. We agree. The basis of claimant's contention is N.J.S.A. 43:21-4(e), which prescribes the performance of a minimum work effort during the base year as a condition of eligibility for the receipt of any unemployment compensation benefits. As originally enacted, that provision required that a claimant establish at least 20 base weeks during the base year as a prerequisite to eligibility. In 1977, the section was amended by L. 1977, c. 307 to add an alternative criterion to the 20-week minimum, namely, total earnings within the base year of at least $2,200. The intendment of the 1977 amendment of N.J.S.A. 43:21-4(e) is self-evident, namely, to confer eligibility on an otherwise eligible claimant who has not worked for 20 base weeks in the base year provided he has earned at least $2,200 during the base year.

As we have noted, claimant earned in excess of $2,200 during her 13-week employment with United Airlines. She urges, therefore, that had she not worked during the previous 23 weeks in the part-time waitress job, she would nevertheless have achieved eligibility for unemployment compensation ...


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