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Heller-Follin v. Board of Review


June 18, 2008


On appeal from the Board of Review, Department of Labor 16,403.

Per curiam.


Submitted February 26, 2008

Before Judges Fuentes, Grall and Chambers.

Petitioner Gail Heller-Follin appeals the denial of her application for unemployment compensation benefits. In denying her application, the Board concluded that she was among the group of Verizon employees who accepted a voluntary separation benefits package.*fn2 After reviewing the particular facts surrounding Heller-Follin's claim for unemployment benefits, we reverse the Board's decision denying benefits, and remand this matter for further proceedings. We are satisfied that the Board failed to consider evidence showing that petitioner's decision to accept the Enhanced Income Security Package ("EISP") may have been caused by the employer's action in closing down petitioner's long-established worksite.

Heller-Follin was a member of the Communications Workers of America ("CWA"); she worked for Verizon as a directory assistance operator and as a service assistant from February 1987 to November 2003 in the Ewing Township Office. On October 10, 2003, Verizon sent a letter informing its Live Source employees, which includes Heller-Follin, that it would be closing its Ewing and Morristown offices "in the January 2004 timeframe."

Confronted with this news, Heller-Follin claims that her only option would have been to transfer to Verizon's Mount Laurel Office, a location that significantly extended her commuting time. She also claims that no public transportation was available to her, and she did not own an "operable" car. In this light, she decided to accept the EISP. She applied for, and was initially awarded unemployment benefits on November 23, 2003. On appeal, the Appeal Tribunal reversed her award of benefits and the Board of Review affirmed, but did not consider this issue.

Employees are disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a), if "their employment is terminated because personal transportation problems prevent them from getting to work." Self v. Bd. of Review, 91 N.J. 453, 460 (1982). However, not all employees who leave work because of commuting problems are disqualified from receiving benefits. Rolka v. Bd. of Review, 332 N.J. Super. 1, 5 (App. Div. 2000). Rather, a claimant may be eligible for benefits if his or her commute was substantially increased by an employer's relocation and this caused the claimant significant personal inconveniences. Ibid. "[A] discrete balancing and evaluation of all factors is required" to determine whether the claimant left for personal reasons or reasons attributable to work, such as the employer's relocation. Id. at 5-6.

Utley v. Board of Review is the most recent expression of the legal principles applicable to determining whether an employee is eligible for benefits when he/she resigns due to a lack of transportation. __ N.J. __ (2008) (slip op. at 4). In Utley, a visually impaired employee sought unemployment benefits after his shift hours were changed, making him unable to commute to work during a two-week period of time. Ibid. When his employer denied his request for vacation time during this two-week period, Utley resigned. Ibid.

In reversing the Appellate Division's denial of benefits, the Supreme Court held that, when an employee's reason for resignation includes a lack of transportation, the Department must conduct a fact-sensitive analysis to determine whether the employee left for good cause attributable to the work. Id. at 20. The Court emphasized that "[t]he term 'lack of transportation' is not talismanic; it does not dispel the need to assess whether the employee left for work-related reasons." Ibid.

We are satisfied that the evidence presented by HellerFollin raises a sufficient issue of fact, triggering the fact-sensitive analysis required under Utley and Rolka. HellerFollin may have a compensable claim if she is able to prove that: (1) her job in Ewing Township was eliminated by Verizon; (2) the only option available to her was to accept a position in Mount Laurel; (3) the Mount Laurel location significantly increased her commuting time; and (4) there is no public transportation or other reasonable means available to her to travel to Mount Laurel from her place of residence. These and any other relevant facts need to be developed and established at an evidentiary hearing.

The balance of the arguments raised by petitioner lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded. We do not retain jurisdiction.

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