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Kaiser v. Board of Review

June 24, 2008


On appeal from a Final Decision of the Board of Review, Department of Labor, Docket Nos. 110,061 and 127,879.

Per curiam.


Submitted May 29, 2008

Before Judges Lisa and Lihotz.

These back-to-back appeals are consolidated for the purpose of this opinion. Lawrence Kaiser appeals from the final decisions of the Board of Review (Board), which affirmed determinations by appeal tribunals finding him ineligible for the receipt of unemployment benefits, N.J.S.A. 43:21-5(a), and requiring him to refund benefits deemed to have been improperly paid. N.J.S.A. 43:21-16(d)(1). In light of our standard of review, we conclude that the final decisions of the Board were properly premised upon facts in the record and that its determinations were consonant with relevant statutory provisions.

Kaiser is an adjunct professor, who worked part-time at William Paterson University, Passaic County Community College, and Bergen County Community College. Kaiser was included on the colleges' "to-call" list of professors available to teach classes. Each sixteen week school semester, he received a contract to teach one or two classes. Before the conclusion of a semester, Kaiser was offered an assignment for the upcoming semester. The offer was subject to cancellation due to limited enrollment or assignment of the class to a senior faculty member. During the periods under examination, Kaiser worked during the fall and spring semesters and at times, in the summer.

Beginning in December 2001 through December 2004, Kaiser applied for and received unemployment benefits for the weeks between the close of the fall semester until the commencement of the spring semester, and during the summer months following the conclusion of the spring semester.

On April 10, 2006, Kaiser received notices from the Division of Unemployment Insurance (Division) stating he was ineligible to receive benefits, which were previously paid in 2001-2004. The Division explained it rejected Kaiser's claim for benefits between academic terms because he had "a contract or reasonable assurance" of continued employment enabling him to perform services in the subsequent academic term. See N.J.S.A. 43:21-4(g)(1) and N.J.A.C. 12:17-12.4(a) (educator with reasonable assurance of future employment is ineligible for benefits for period between academic years or terms and during vacation periods and holiday recesses). Kaiser also received four requests from the Division to refund a total of $9,458.

Kaiser appealed. Following a hearing, an appeal tribunal denied his eligibility for benefits and affirmed his obligation to refund the benefits previously paid. Kaiser appealed to the Board, which issued a final decision modifying the amount subject to refund, but otherwise adopting the findings and conclusions of the appeal tribunal.

The Board referred Kaiser's request for a waiver of his obligation to refund the benefits paid to the Director. Upon review, a Deputy Director denied Kaiser's waiver request because "the amount you were overpaid is not patently contrary to the principles of equity as defined by N.J.A.C. 12:17-14.2." An appeal tribunal affirmed, as did the Board. Kaiser was required to repay $7,204 at the rate of $180 per month. These appeals followed.

Kaiser challenges the Board's finding of "reasonable assurance" of continued employment, arguing his contracts provided for a specific period of employment and thereafter, he was unemployed until a new contract commenced. Additionally, he maintains he properly applied for benefits and relied on the Division's repeated determinations of his eligibility for unemployment benefits. Additionally, he states the denial of his request for waiver will cause him "undue hardship."

The limited nature of our review of administrative decisions is well established. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In analyzing the Board's determination, we remain mindful that "[t]he grant of authority to an administrative agency is to be liberally construed to enable the agency to accomplish the Legislature's goals." Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). A "strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility," ibid., such that we defer to "[t]he agency's [statutory] interpretation . . . provided it is not plainly unreasonable." Merin v. Maglaki, 126 N.J. 430, 437 (1992).

"The burden is on claimant to establish the right to unemployment compensation benefits." Bastas v. Bd. of Review, 155 N.J. Super. 312, 315 (App. Div. 1978). N.J.S.A. 43:21-4(g)(1) prohibits the payment of unemployment benefits during the period between two successive academic years, two regular terms, or during a period of sabbatical leave if there is a contract or reasonable assurance of employment at the educational institution. Patrick v. Bd. of Review, 171 N.J. Super. 424, 426 (App. Div. 1979). Furthermore, N.J.S.A. 43:21-4(g)(3) states: benefits shall not be paid on the basis of such services to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such period or holiday recess.

The statute defines "reasonable assurance" of returning to work as "a written, oral, or other implied agreement that the employee shall perform services in any such capacity during the next academic year, term, or remainder of a term." N.J.A.C. 12:17-12.4(a)(1); Sulat v. Bd. of Review, 176 N.J. Super. 584, 586 n.1 (App. Div. 1980). Here, despite the specific ...

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