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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 length of each semester contract, Kaiser received contracts to teach in each successive semester.

The disqualification for eligibility to receive benefits in an instance such as the one presented is tailored to meet the unique ten-month term of educational employment. Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985).

There is a predictable hiatus in the period during which actual work is performed, due to the summer vacation, and as long as the employment relationship continues, no unemployment compensation is to be paid.

Denial of benefits to these persons "conforms with the Legislature's intent not to subsidize the vacation periods of those who know well in advance that they may be laid off for certain specified periods."

Ibid. (quoting Davis v. Commonwealth, Unemployment Compensation Bd., 394 A.2d 1320, 1321 (Pa. Commw. 1978)). (citations omitted).

The Board's decision to deny Kaiser's eligibility for benefits was in accordance with the governing law, was supported by the record, and was reasonable. We, therefore, have no occasion to interfere.

As to the Board's denial of Kaiser's request to waive his liability for refund based upon an assertion of an undue hardship, "N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997) (citing Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973)). Specifically, 42 U.S.C. § 503(a)(9) requires states to recoup funds erroneously distributed in order to maintain the proper and efficient administration of the unemployment compensation laws. Bannan, supra, 299 N.J. Super. at 675. "The public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an untitled recipient, however blameless he or she may have been." Id. at 674.

In specific instances, the Director may waive repayment of erroneously paid benefits.

Upon request of the claimant or the claimant's representative, the Director may grant the claimant a full waiver of recovery of an overpayment of benefits only after the Director has determined that the claimant has not misrepresented or withheld any material fact in obtaining benefits and only under the following circumstances:

1. Where the claimant is deceased;

2. Where the claimant is disabled and no longer able to work; or

3. Where the recovery of the overpayment, as determined by the Director with the Controller's concurrence, would be patently contrary to the principles of equity. [N.J.A.C. 12:17-14.2.]

The director "shall consider whether the terms of a reasonable repayment schedule would result in economic hardship to the claimant." N.J.A.C. 12:17-14.2(a)(3)(d).

After analyzing Kaiser's income, expenses, assets, liabilities, and medical needs, the Board concluded Kaiser "is not disabled, and it has not been shown that the payment of $180 per month would be contrary to the principle of equity. Thus, the claimant's request for a waiver of refund is denied in accordance with N.J.A.C. 12:17-14.2." We determine the record supports the Board's findings and its result, which is not plainly unreasonable. Merin, supra, 126 N.J. at 437.



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