On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, Docket No. 158,312.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges A. A. Rodríguez, Payne and Waugh.
Catherine Alexander, discharged by Union County from her employment as an environmental engineer, appeals from a final decision by the Board of Review upholding an appeal tribunal's ruling that she was not entitled to extended unemployment benefits during training (ABT) because she had not demonstrated that there was a reduction in work opportunities at her former work site. On appeal, Alexander argues that the regulation relied upon by the Board in denying benefits is worded in a manner that is contrary to the governing statute, and that the regulation should be construed as the statute dictates, so as to award her ABT payments as an eligible individual.
The record discloses that Alexander was employed by Union County as its only environmental engineer from March 17, 2001 until April 20, 2007, when she was discharged. To Alexander's knowledge, her position has not been refilled. After unsuccessfully seeking employment elsewhere and while receiving unemployment compensation, Alexander applied to and was accepted as a student at Rutgers University, commencing in the fall of 2007. Tuition was waived pursuant to the Workforce Development Partnership Act. See N.J.S.A. 18A:64-13.2. Alexander also sought extended unemployment benefits during training pursuant to N.J.S.A. 43:21-60 and -61. However, her application was denied in a Workforce Development Partnership Program Notice of Ineligibility for Additional Benefits During Training that stated: "You were not permanently separated from employment due to a substantial reduction in work opportunities in your job classification at your former worksite." Alexander appealed the ruling, a hearing occurred, and benefits were again denied by an appeal tribunal for the same stated reason. The appeal tribunal's determination was affirmed by the Board of Review,*fn1 and this appeal followed.
N.J.S.A. 43:21-60 authorizes the payment of ABT benefits to eligible individuals during education and training pursuant to N.J.S.A. 43:21-61. To be deemed eligible, the individual must demonstrate that he or she:
Has received a notice of a permanent termination of employment by the individual's employer or has been laid off and is unlikely to return to his previous employment because work opportunities in the individual's job classification are impaired by a substantial reduction of employment at the worksite.
[N.J.S.A. 43:21-60a (emphasis supplied).]
The implementing regulation, N.J.A.C. 12:23-5.1, provides:
(a) An individual will be eligible for additional unemployment benefits during training only if the individual:
2. Is permanently separated from employment and is unlikely to return to such employment due to a substantial reduction in work opportunities in the individual's job classification at his or her former worksite.
[Ibid. (emphasis supplied).]
The regulation thus eliminates the phrase "or has been laid off" that preceded "and" in the statute. Reading this language literally, the Board required Alexander, who was permanently terminated from her employment by Union County and had no expectation of re-employment by the County, to also demonstrate a reduction of work opportunities in the relevant job classification at her former workplace.*fn2
On appeal, Alexander argues that this demonstration is required only by those who are laid off, so as to exclude from receipt of ABT benefits those persons who lack the need for additional training because they expect to return to their prior employment. The Department contends that Alexander's separation from work was an isolated occurrence, caused by her discharge.
It then argues that, because no mass layoffs occurred and "there is no evidence in the record to suggest that Alexander is unlikely to return to the worksite solely because work opportunities in her job classification there 'are impaired by a substantial ...