On appeal from a decision of the Board of Review, Department of Labor, Docket No. 166,705.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Gilroy and Chambers.
Appellant Washington Township Board of Education (School Board) appeals from that portion of the decision of the Board of Review that found its employee Maria A. DeSimone eligible for unemployment benefits for the weeks ending September 16, 2006, and June 16, 2007, and that set aside a determination that she was ineligible for benefits from September 27, 2007.*fn1 We affirm.
DeSimone worked as a substitute teacher for the School Board since September 1986. When she was not called back to work at the commencement of the 2006-2007 school year on September 4, 2006, she filed a claim for unemployment benefits and received $205 of partial unemployment benefits for the week ending September 16, 2006. Because she then returned to work, DeSimone received no further benefits until the week ending June 16, 2007, when she received $242 in unemployment benefits. She had not worked that week, which was the last week of the school year. DeSimone continued to receive unemployment benefits during the summer break from June 23, 2007, through September 1, 2007, totaling the sum of $2,662. She returned to work when the school year began on September 4, 2007. On September 23, 2007, she filed another claim for unemployment benefits, but apparently no payments were received because she had returned to work within one or two days.
The Director of the Division of Unemployment Insurance issued two determinations dated October 17, 2007, one finding DeSimone ineligible for benefits from September 10, 2006, and the second finding her ineligible for benefits from September 23, 2007. DeSimone appealed these determinations to the Appeal Tribunal. On November 21, 2007, the Appeals Examiner held a telephonic hearing, and DeSimone and the payroll secretary for the School Board testified. On November 23, 2007, the Appeal Tribunal affirmed the decision of the Director and required DeSimone to refund the unemployment benefits she had received. DeSimone appealed to the Board of Review.
The Board of Review modified the decision of the Appeal Tribunal. In reaching its decision, the Board of Review distinguished between the times DeSimone was out of work in the summer period between school terms and the times she was out of work during the school year. It held that from the weeks ending June 23, 2007, through September 1, 2007, she was ineligible for unemployment benefits. The Board of Review required that she refund $2,662 in benefits received during this time period. This portion of the decision of the Board of Review has not been appealed.
The Board of Review found that DeSimone was eligible for benefits for the weeks ending September 16, 2006, and June 16, 2007, since these two weeks fell within a school term. The Board of Review also set aside that portion of the Appeal Tribunal decision that found DeSimone ineligible for benefits from September 23, 2007,*fn2 since this time period also fell within the school year, although, as noted above, no benefits were paid under that application. In this appeal, the School Board contends that DeSimone failed to prove her eligibility for unemployment benefits for these three weeks, and that the Board of Review's decision regarding these weeks must be reversed.
The distinction that the Board of Review made between the weeks that fell within the school year and those that fell within the period between school terms is valid. Teachers are not entitled to unemployment benefits "during the period between two successive academic years, or during a similar period between two regular terms" or "during an established and customary vacation period or holiday recess" provided they have "reasonable assurance" that they will be returning to work once the period has lapsed. N.J.S.A. 43:21-4(g)(1), (3); N.J.A.C. 12:17-12.4. This law applies to substitute teachers. Patrick v. Bd. of Review, 171 N.J. Super. 424, 426 (App. Div. 1979). A substitute teacher is considered to have "reasonable assurance" of returning to work if his or her name is placed on the substitute list for the next academic year or term. N.J.A.C. 12:17-12.4(a)(3). The record indicates that DeSimone's name was placed on the list of substitute teachers for the 2007-2008 academic year. As a result, the Board of Review properly held that DeSimone was not entitled to unemployment benefits during the period between the 2006-2007 and 2007-2008 school years.
The School Board contends that DeSimone failed to establish that the weeks of September 16, 2006, June 16, 2007, and September 23, 2007, fell within the school year for substitute teachers. Noting that the claimant has the burden of proving entitlement for unemployment benefits citing Bastas v. Bd. of Review in the Dep't of Labor & Indus., 155 N.J. Super. 312, 315 (App. Div. 1978), the School Board argues that DeSimone failed to prove that the weeks in question fell outside the period between terms or a customary vacation period or holiday. It maintains that the vacation period and school year for substitute teachers is not necessarily coterminous with the school year.
At the hearing below, the Appeals Examiner questioned the payroll secretary appearing for the School Board as follows:
Q: Okay. And can you please verify the dates of employment of Ms. DeSimone for the school year 2005-2006? Was ...