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Rivera v. Board of Review

Decided: June 2, 1992.


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.


This case concerns a migrant farmworker who received unemployment benefits from the Department of Labor but was later determined to have been ineligible. Notice of the determination and demand for the repayment of benefits was sent to

plaintiff during the farming season at his off-season address and as a result did not reach him until the period for an appeal had expired. The question raised by the case is what minimum-notice rules are necessary to assure that a recipient of unemployment benefits knows that an initial determination of ineligibility has been made and has sufficient time to exercise his or her right to appeal before that determination becomes final.


Angel Rivera is a migrant farm worker. Like thousands of other temporary farm workers he is hired in the spring and laid off in the fall. Each April for fifteen years, Rivera traveled from Puerto Rico to New Jersey to work as a laborer at the same farm in Vineland. When the season ended in November, his employment would terminate and he would return to his home in Puerto Rico. During the eight months each year that Rivera worked in New Jersey, he contributed a portion of his wages to the unemployment insurance system.

In November, when the 1988 season had ended, Rivera applied for unemployment benefits from the New Jersey Department of Labor (Department). During the fall and winter, he received benefits totaling $2,030. The checks were sent to his address in Puerto Rico. When his benefits expired in March, Rivera, then aged sixty-six, moved to Pennsylvania to visit his ill mother and search for seasonal farm work. Because the Department had a policy of not updating addresses after benefits ran out, Rivera did not provide them with his temporary address. He did, however, arrange for his daughter to forward his mail from Puerto Rico to his temporary address in Pennsylvania.

On May 25, 1989, one month after the 1989 farm season in New Jersey had begun, the Department sent three forms to Rivera at his Puerto Rico address: a "Demand for Repayment," a "Schedule of Overpayments," and an "Important Information notice." The latter notice informed Rivera that he had been

ineligible for benefits since November 1988 on the grounds that he was "unavailable for work." The notices were sent to Rivera because the Department came to believe that he had refused to seek full-time employment in order to preserve his social security benefits. The import of the notices was that absent a timely appeal, Rivera would be obligated to return all funds he had received since November 1988. All three notices were written in English. They were accompanied by a fourth notice in Spanish, which stated (inaccurately) that he had been declared ineligible for benefits due to having been out of the area travelling to another state.

In the right corner of the Important Information notice was the warning:

Any appeal from the determination must be submitted in writing within 10 days from the date of mailing. Final date to file appeal is 6/05/89.

When the notice arrived, Rivera's daughter telephoned him in Pennsylvania and at his request immediately forwarded the papers to him. Rivera is illiterate -- he neither reads nor writes Spanish -- and cannot understand English. He received the forwarded notice on June 12, 1989. Two days later, on June 14, 1989, after having the notice translated into Spanish, Rivera filed an appeal asserting that the Department's eligibility determination was incorrect. Rivera asserted that contrary to the determination of the Department, he had sought full time employment and would accept such work even if it meant a reduction in his social-security payments.

An administrative hearing on Rivera's appeal was held before the Appeal Tribunal of the Department on January 30, 1990. The Appeal Tribunal declined to hear the appeal on the merits because it had not been filed in a timely manner as required by N.J.S.A. 43:21-16(d). N.J.S.A. 43:21-16(d) provides:

Unless such a person [who allegedly improperly receives unemployment benefits], within seven calendar days after the delivery of such determination [that he has improperly received benefits], or within 10 calendar days after such notification was mailed to his last-known address, files ...

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