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Espina v. Board of Review

August 1, 2008

DYANA M. ESPINA, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR, AND KEYBANK NATIONAL ASSOCIATION, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 114,984.

The opinion of the court was delivered by: A. A. RODRÍGUEZ, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 4, 2008

Before Judges Stern, A. A. Rodríguez and C. S. Fisher.

An employee who abandons his or her job for five or more consecutive work days is disqualified for unemployment benefits for voluntarily abandoning his or her position absent good cause.

N.J.A.C. 12:17-10.3(c). In this appeal, we hold that pursuant to N.J.A.C. 12:17-9.11(b), an employee cannot be deemed to have abandoned her employment by failing to return to work, until the expiration of five consecutive days from the last day of an approved leave of absence.

Claimant, Dyana Espina, had been employed by Keybank National Association (employer) as a loan processor since July 2000. She went out on maternity disability from November 1, 2005, through January 19, 2006. However, she could not return to work because she could not find childcare for her infant son. She then went on leave pursuant to the Family and Medical Leave Act, 29 U.S.C.A. §§ 2601 to 2654 (1999) (FMLA), from January 20, 2006, through April 13, 2006. On April 14, 2006, the employer granted claimant's request for an additional week of unpaid leave due to her lack of childcare. She was scheduled to return to work on April 24, 2006.

On April 24, 2006, claimant requested an additional week of leave due to a continued lack of childcare. The employer advised claimant that: (1) she was now on an "unauthorized leave of absence"; (2) she was expected to return to work on Wednesday, April 26, 2006; and (3) failure to return to work on that date would be considered a voluntary resignation. Claimant advised her employer that because she continued to have childcare issues, she could only report to work on April 26, 2006, if she was able to bring her infant son with her for the remainder of the week. The employer denied this request due to corporate policy and liability issues. Claimant also requested a change in status from full-time to part-time. This was also denied by her employer. However, claimant's employer did agree to change her workday start time in an effort to accommodate her personal circumstances. Because claimant did not report to work on April 26, the employer terminated her employment that day by sending a certified letter stating:

You did not return to work on Wednesday, April 26, 2006. We accept this as your voluntary resignation from your position effective immediately.*fn1

Claimant was directed to return her office keys to her supervisor.

On Monday, May 1, 2006, claimant advised the employer that she had obtained childcare and asked to come back. However, the following day she was advised that she could not return to her position.

Claimant applied for unemployment benefits. The Deputy initially approved the application. However, the employer appealed.

At the first telephone hearing before the Appeal Tribunal, only the employer's representatives were present. Claimant had called in late to the telephone hearing. The Appeal Tribunal found claimant ineligible for unemployment benefits. Claimant appealed to the Board of ...


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