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Swindell v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2007

MELISSA A. SWINDELL, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND AMERICAN ASPHALT CO., RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor, 112,187.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2007

Before Judges Axelrad and Winkelstein.

Appellant, Melissa Swindell, had been employed by American Asphalt for six months when she was terminated on October 21, 2005. After receiving unemployment benefits from October 23, 2005 until they were exhausted, she applied for additional benefits under the Work Force Development Partnership Act, N.J.S.A. 43:21-57 to -65 (the Act). She appeals from a final decision of the Board of Review dated July 14, 2006, affirming a May 31, 2006 decision of the Department of Labor Appeal Tribunal denying her claim for additional unemployment benefits. On appeal, she raises one legal point:

POINT I

BY REQUIRING PERMANENTLY TERMINATED EMPLOYEES TO DEMONSTRATE THAT THERE HAS BEEN A JOB REDUCTION IN THEIR PLACE OF EMPLOYMENT, N.J.A.C. 12:23-5.1 FLOUTS THE PLAIN STATUTORY LANGUAGE OF N.J.S.A. 43:21-60 AND IS THEREFORE INVALID AND UNDER THE PLAIN LANGUAGE OF THE STATUTE THE CLAIMANT WAS ENTITLED TO ADDITIONAL BENEFITS DURING TRAINING.

Having carefully considered appellant's arguments in light of the facts and the controlling law, we affirm.

At a telephonic hearing on May 31, 2006, appellant testified that until October 21, 2005, she performed contract administration for American Asphalt as a full-time employee earning $21 per hour. When asked to explain why she no longer worked for her employer, her response was less than clear, but it appears she was terminated because another employee was uncomfortable with her. No other employee was terminated.

Appellant's claim is governed by N.J.S.A. 43:21-60(a), which states, in pertinent part, that eligibility for benefits may be demonstrated if the employee has "received a notice of a permanent termination of employment by the individual's employer or has been laid off and is unlikely to return to his previous employment because work opportunities in the individual's job classification are impaired by a substantial reduction of employment at the worksite." To obtain additional benefits while acquiring new skills to re-enter a more marketable area of the economy, "the claimant must be fired or laid off and be unlikely to return to the job because of a 'substantial reduction of employment at the worksite.'" Bonilla v. Bd. of Review, 337 N.J. Super. 612, 615-16 (App. Div. 2001) (statute is "economically driven legislation" intended to aid "economically displaced" individuals).

On appeal, appellant argues that the provision of N.J.S.A. 43:21-60(a), which requires that she demonstrate that it is unlikely that she would return to her "previous employment because work opportunities in . . . [her] job classification are impaired by a substantial reduction of employment at the worksite," is only applicable when an employee is laid off, not when the employee is otherwise terminated by the employer, and that the word "or" disjoins the clause referring to permanent termination from the rest of the sentence. We disagree.

The challenged statute requires more than mere notice of termination; both causes of termination, by layoff or otherwise, while disjunctive from one another, are conjunctive with the statutory requirement of "reduction of employment at the worksite." See Bonilla, supra, 337 N.J. Super. at 616. The Assembly Labor Committee Statement is consistent with the specific language of the statute. Assemb. Labor Comm. Statement No. 1406, L. 1992, c. 47 (reprinted at N.J.S.A. 43:21-57) (providing for the payment of extended benefits only when the employee "has been notified of a permanent termination of employment or has been laid off and is unlikely to return to his previous employment"). According to both the statute and the Committee Statement, mere notice of termination is insufficient to warrant benefits; the requirement of termination, by layoff or otherwise, is conjoined with the requirement that the individual be unable to return to work as a result of a substantial reduction of employment at the work site.

Affirmed.

20070720

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