On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No, 83,092.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2007
Before Judges Parker and C.S. Fisher.
Claimant Charles M. Adams appeals from a Board of Review (Board) decision affirming an Appeal Tribunal (Tribunal) decision that claimant is not eligible for unemployment compensation because he left work voluntarily without good cause related to his employment. We reverse.
Claimant was employed by the New Jersey Foundation for the Blind (Foundation) as a facility coordinator from May 3, 2003 to May 13, 2005. On May 9, 2005, claimant informed the Executive Director, Donna Meade-Pendley, that he needed time off to care for his wife because she was suffering from a Lupus "flare-up." The Director inquired whether plaintiff could work part-time, to which he responded, "No." The Director indicated that claimant had to submit a letter of resignation for payroll purposes, and on May 5, 2005, claimant submitted the letter of resignation effective May 13, 2005. Claimant, however, "believed that there was a mutual agreement that he would be able to return to work at a future date; as soon as his wife recovered."
On July 5, 2005, claimant advised the Director that he was ready to return to work. The Director responded "that his job had been dismantled and that she would need a week to reassemble it." The Director testified that although the Foundation thought about rehiring claimant, it was unable to do so. Claimant was so notified on July 12, 2005.
After the Director declined to rehire claimant, he applied for unemployment benefits, which were denied on July 28, 2005 because he was deemed to have left work voluntarily without good cause attributable to the work. Claimant appealed and the Tribunal conducted a hearing on August 25, 2005. The Tribunal affirmed the earlier decision.
On August 31, 2005, claimant appealed to the Board. The Board remanded the matter to the Tribunal for additional testimony, specifically related to whether the Foundation was required to provide Family Medical Leave and whether plaintiff left with good cause attributable to the work.
On October 21, 2005, the Tribunal conducted a second hearing. During this hearing, the Foundation's director provided a document allegedly signed by claimant, acknowledging receipt of the employee handbook, which specifies procedures for taking a leave of absence from the Foundation. Claimant, however, disputed the legitimacy of the signature on the document because it was dated December 7, 2001 and plaintiff did not begin working for the Foundation until May 3, 2003. Claimant contended that he never received an employee handbook and was unaware of the leave policy, even though he was responsible for distributing them to newly hired employees and collecting the acknowledgement forms.
The Foundation presented evidence regarding the number of its employees and demonstrated that it is not required to provide Family Medical Leave. 29 C.F.R. § 825.104(a); N.J.S.A. 34:11B-3(f)(3).
The Tribunal once again affirmed the original decision, noting that claimant voluntarily left his job to care for his spouse, that he failed to request a leave of absence and that the Foundation was not statutorily required to provide Family Medical Leave because it has less than fifty employees for forty-two weeks of the year. N.J.S.A. 43:21-5(a); N.J.A.C. 12:17-9.1(e).
Claimant appealed the Tribunal's second decision to the Board on January 9, 2006, and the Board affirmed on February 22, 2006. On April 25, 2006, claimant filed his appeal in which he argues:
CLAIMANT'S LEAVING HIS JOB WITH EMPLOYER TO CARE FOR HIS ILL SPOUSE WAS A MUTUAL AGREEMENT WHEREIN THE DOOR WAS LEFT OPEN FOR HIS RETURN TO WORK. WHEN CLAIMANT TRIED TO RETURN, HE WAS TOLD BY THE EMPLOYER HE COULD NOT RETURN TO WORK BECAUSE IT WAS ONLY A MATTER OF TIME BEFORE HIS SPOUSE WOULD HAVE A RELAPSE AND THE EMPLOYER COULD NOT TAKE A CHANCE THAT CLAIMANT ...