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Borromeo v. Board of Review

Decided: October 30, 1984.


On appeal from the Final Determination of the Board of Review, Department of Labor.

Pressler, Brody and Havey. The opinion of the court was delivered by Pressler, P.J.A.D.


Claimant Leonard Borromeo appeals from a decision of the Appeal Tribunal, affirmed by the Board of Review, requiring him to repay $1,150 he had received in unemployment compensation benefits for the period from December 8, 1982 to February 12, 1983. We reverse.

Claimant had been employed for some seven years by Road Machinery, Inc., as an inventory control specialist prior to his lay-off on August 31, 1982. He was then earning about $380 per week. He filed a claim for unemployment benefits several days later and received his full benefit rate of $145 per week through the first week of December, having been totally unemployed during that period.

On December 4, 1982 claimant obtained employment as a commission salesman for Luxor Lighting Products. He testified before the Appeal Tribunal that he worked between 30 and 40 hours at this employment. His weekly routine was to spend 4 or 5 hours a day, 4 days a week, on the road attempting to sell the product and to spend several hours, 5 days a week, making telephone calls seeking business. He also testified that during the period of his employment by Luxor Lighting, he was seeking other employment and, in fact, had applied for an inside job to the prospective buyers of the product he was trying to sell.

His salesman's employment was indeed singularly unsuccessful. In the three months of its duration, he succeeded in earning weekly commissions in excess of his weekly benefit rate only once. His total earnings for the period in which he received $1,150 in benefits was $495. Significantly, he reported this job to his local office and kept the office apprised each week of his earnings therefrom. There is no suggestion in this record that he withheld any material fact. To the contrary, he made regular and full disclosure respecting the Luxor employment.

Early in March 1983 claimant was terminated by Luxor Lighting because of its reappraisal of the "economics of the area." Several days prior to that termination, the local office redetermined claimant's benefits and reached the conclusion that he had been ineligible for benefits while employed by Luxor Lighting because that employment was full-time. The local office accordingly requested repayment, and claimant appealed to the Appeal Tribunal. The Appeal Tribunal affirmed the repayment order on the ground that claimant was ineligible for benefits during the period of his Luxor Lighting employment because he was then "fully employed, working 30-40 hours per week." While neither the Appeal Tribunal decision nor the Board of Review affirmance expressly so state, it is clear that both relied on N.J.S.A. 43:21-19(m)(1). That section defines unemployment for purposes of entitlement to benefits as "any week during which the claimant * * * is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate * * *." The question raised by this appeal is whether the circumstances surrounding claimant's employment by Luxor Lighting was full-time work within the statutory intendment, disqualifying him from benefits.

The statutory definition of unemployment contains two elements, namely, that the claimant is not engaged in full-time work and that any remuneration he earns is less than his weekly benefit rate. It is true, as the State argues, that the two prongs of this definition have been construed to be conjunctive

with the consequence that both must be met in order for a claimant to be deemed unemployed. This is the holding of Battaglia v. Board of Review, 14 N.J. Super. 24 (App.Div.1951), and Caldwell v. Div. of Unemployment Dis. Ins., 145 N.J. Super. 206 (App.Div.1976). Both of these opinions focus, however, on the remuneration condition rather than on the full-time employment condition. Battaglia held that the payment by an employer of vacation pay for weeks in which the employee did not work and received no other income constituted remuneration disqualifying the employee from eligibility for benefits. And Caldwell held that back-pay paid to an employee in settlement of a termination dispute constituted remuneration for the period to which it was referable even though the employee was not then working. No reported decision of this State has been brought to our attention in which the import of the full-time employment component of the definition was considered in circumstances, as here, in which the remuneration for the work effort is less than the benefit rate. Thus, while it is clear that the Legislature did not intend an unemployed worker receiving remuneration in excess of the weekly benefit rate also to receive unemployment compensation benefits, the issue here is whether it intended a "full-time" worker whose remuneration is less than the weekly benefit rate to receive partial benefits.

The meaning which the Legislature intended to ascribe to the "full-time work" component of the unemployment definition is not readily apparent in view of its failure to have accorded any specific definition to that term. Our review of the Unemployment Compensation Law, N.J.S.A. 43:21-1, et seq., and its implementing regulations satisfies us, however, that the real distinction between full employment and partial employment was not intended to be based on the quantum of hours worked but rather on the amount of remuneration earned.

As a matter of custom and usage, it is clear that the number of hours one must work in order to be deemed a full-time worker depends on the ...

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