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Sussman v. Board of Review


July 10, 2008


On appeal from the Board of Review, Department of Labor, 154,159.

Per curiam.


Submitted May 29, 2008

Before Judges Sapp-Peterson and Messano.

Appellant Miriam Sussman appeals from the final decision of the Board of Review (the Board) that affirmed the decision of the Appeal Tribunal denying her application for unemployment benefits. We have considered the arguments raised on appeal in light of the record and applicable legal standards. We affirm.

The undisputed record reveals that Sussman filed her claim for unemployment benefits on June 19, 2007, the day following her dismissal as pre-school director for Temple Beth Ahm, a synagogue located in Springfield. On June 22, 2007, the Department of Labor and Workforce Development determined her claim was "invalid" because "[d]uring the base year, there were fewer than twenty [] base weeks," and she "earned less than $7200 in wages covered by the Unemployment Compensation Law [UCL] []."

Sussman appealed that decision to the Appeal Tribunal, and a hearing was held on July 13, 2007, before the appeals examiner. Sussman testified that she had worked at Temple Beth Ahm since July 1991, and was "fired" on June 18, 2007. Sussman worked as director of the pre-school at the synagogue, though she also earned some money at "Saturday Services." The examiner explained that "the only issue here [is] whether you worked in covered employment in order to receive unemployment benefits."

After requesting further documentation from Sussman, and adjourning the hearing, the examiner reconvened the proceedings via telephone. The following exchange took place:

Examiner: Q: You're being paid . . . by the Synagogue, right?

Sussman: A: Yes.

Q: Okay. And the daycare is a part of that Synagogue?

A: Actually, the daycare is the . . . . Yeah. Yeah . . . I used to do Saturday Services.

Q: Okay.

A: Okay. That wasn't part of the day . . . the childcare.

Q: No. I just want to know about the childcare now, because that's where you earn the bulk of your money, right?

A: Yes.

Q: Childcare is part of the Synagogue?

A: Yes.

Q: So it appears that you were paid by the Synagogue and they didn't elect to cover you for unemployment. That's what it appears to be.

A: Yes.

On July 27, 2007, the Appeal Tribunal issued its decision denying Sussman's claim for benefits. In particular, citing N.J.S.A. 43:21-19(i)(1)(D)(i), the Tribunal determined that Sussman's service was "performed in the employ of a church or organization operated primarily for religious purposes." Because her service was "in exempt employment and those wages can not be used to establish a valid claim for unemployment benefits[,]" the Tribunal determined Sussman's claim was "invalid." Sussman appealed the Tribunal's decision to the Board, which affirmed in its final decision issued September 7, 2007, the subject of this appeal.

Our review of an administrative agency's final action is quite limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (citations omitted). "Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

The legislative purpose of the UCL, N.J.S.A. 43:21-1 to -56, is "to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Board of Review, 114 N.J. 371, 374 (1989). And, while the statute's provisions are read liberally to effectuate its broad remedial purposes, "[t]he basic policy of the law is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Ibid.

The intricate legislative scheme of the UCL need not be explored at great length, except to say that it envisions contributions to the Unemployment Compensation Trust Fund from both employers and employees, N.J.S.A. 43:21-7, and anticipates the deduction of benefits paid to unemployed workers from the employer's account, thereby affecting the employer's contribution rate in any given calendar year. To be eligible for benefits, a claimant must meet several statutory criteria, but, for purposes of this case, we focus only upon the requirement that she be "employed," as that term is used under the UCL. Pursuant to N.J.S.A. 43:21-19(i)(1)(C), "employment" means

Service performed after December 31, 1971 by an individual in the employ of a religious, charitable, educational, or other organization . . . if such service is not excluded from "employment" under paragraph (D) below.

However, paragraph (D) then provides that

[T]the term "employment" does not apply to services performed

(i) In the employ of (I) a church or convention or association of churches, or

(II) an organization, or school which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches . . . .

[N.J.S.A. 43:21-19(i)(1)(D)(i).]

Based upon the unequivocal evidence she offered at the hearing, Sussman's services at Temple Beth Ahm were not "employment" for purposes of the UCL.

On appeal, she argues that pursuant to N.J.S.A. 43:21-7.2, Temple Beth Ahm, as a non-profit agency, was required to fund her claim for benefits. However, that section sets forth the procedure by which non-profit employers must contribute to pay benefits "to individuals in the employ" of the organization. Since Sussman's services were exempt from the definition of employment, that section does not apply.

Rather, N.J.S.A. 43:21-8(c)(2) applies because that section permits "an employing unit," such as Temple Beth Ahm, "for which services are performed that do not constitute employment" under the UCL, to "file[] with the division its written election that all such services performed by individuals in its employ . . . shall be deemed to constitute employment for all purposes of this chapter . . . ." Thus, under the statutory scheme, it was Sussman's employer that had the option to subject itself and its employees to the costs and benefits of the UCL. From the factual findings made at the hearing, it is clear that the synagogue made no such election.

Sussman alternatively argues that the pre-school was "a sufficiently separate entity on the premises of Temple Beth Ahm" such that her services were in the employ of a "non[-]sectarian entity" and "outside the intent of N.J.S.A. 43:21-19(i)(1)(D)(i). We overlook the fact that Sussman did not raise the issue below and consider the issue on the merits.

In her testimony before the Appeal Tribunal, Sussman clearly indicated that she was paid by the synagogue and the documentary evidence she introduced, in particular her W-2 income statements, demonstrate that the synagogue was her employer. There was no evidence that the pre-school operated separately from the synagogue or that some other corporation or unincorporated association was responsible for the school's operation and Sussman's employment. Therefore, since she was "[i]n the employ of a church," it does not matter that the school was non-sectarian or not "operated primarily for religious purposes." See De Santis v. Board of Review, 149 N.J. Super. 35, 39 (App. Div. 1977) (finding eligibility for benefits because applicant worked neither in a church nor an organization operated primarily for religious purposes). Statements that Sussman now makes in her brief, attempting to disassociate the school from the synagogue, were simply not evidence before the Appeal Tribunal. In short, a claimant bears the burden of proving entitlement to benefits under the UCL. Brady, supra, 152 N.J. at 218. And, with respect to the alternate argument she now raises, Sussman failed to carry that burden.

Lastly, while Sussman argues the Board's determination is contrary to the public policy that supports the UCL, as we have already noted, the public purposes of the statute are also served when ineligible claims are denied.



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