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Cipolla v. Board of Review

April 28, 2009

ANNA C. CIPOLLA, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND VERIZON, RESPONDENTS.



On appeal from a Final Decision of the Board of Review, Department of Labor, No. 155,447.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2008

Before Judges Wefing and LeWinn.

Claimant appeals from a Final Decision of the Board of Review affirming a decision of the Appeal Tribunal denying her request for a waiver of a determination that she was responsible for refunding $12,532 in unemployment compensation benefits she had received. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Claimant was employed by Verizon, New Jersey, for thirty-three years. She resigned effective November 22, 2003, under an Enhanced Income Security Plan ("Plan") Verizon had announced to its employees. Verizon's efforts to reduce its workforce through such early retirement programs have spawned a number of appeals to this court with respect to the eligibility of participating employees to collect unemployment compensation benefits. Heller-Follin v. Bd. of Review, No. A-4315-05 (App. Div. June 18, 2008); Lukaszewski v. Bd. of Review, No. A-4052-05 (App. Div. June 18, 2008); Hallaert v. Bd. of Review, No. A-3720-05 (App. Div. June 18, 2008); Gourley v. Bd. of Review, No. A-3701-05, (App. Div. June 18, 2008) (consolidating the issue with respect to twenty former employees of Verizon).

At the time of claimant's resignation in accordance with Verizon's announced Plan, N.J.A.C. 12:17-9.6 was in effect. This regulation provided:

(a) Notwithstanding any other provision of this subchapter, when an employer has a written voluntary layoff and/or early retirement incentive policy or program in effect during a reduction-in-force that permits or induces an employee to leave work so that another employee may continue to work, the following applies:

1. The individual who participates in the program will not be subject to disqualification for voluntarily leaving work in accordance with N.J.S.A. 43:21- 5(a); and

2. The individual must otherwise meet all of the other eligibility requirements of the Unemployment Compensation Law to be eligible to receive unemployment insurance benefits.

Claimant applied for unemployment compensation benefits following her resignation from Verizon and by notice dated January 2, 2004, was informed that she had been found eligible for benefits. She received a total of $12,532 in unemployment compensation benefits.

At some point a determination was made that claimant was not eligible for those benefits. The record before us does not contain a copy of the notification to claimant to that effect. According to the Department's brief, in July 2005 it demanded claimant refund the benefits she had received. Claimant filed a request for a waiver of refund. She has appealed from a denial of that waiver.

The record before us is entirely unclear as to the basis upon which claimant was declared ineligible for unemployment compensation benefits. We are aware that this court struck down as invalid the regulation permitting an employee who resigned as part of an early retirement incentive program to collect unemployment compensation benefits. In re Adoption of N.J.A.C. 12:17-9.6, 395 N.J. Super. 394, 410 (App. Div. 2007). That decision, however, was not issued until several years after claimant was apparently declared ineligible. It thus could not have served as the basis for her ineligibility.

Our decision in Gourley, supra, contains a detailed history with respect to the claims for unemployment compensation benefits of twenty former Verizon employees who had sought unemployment compensation benefits following their resignation under Verizon's retirement incentive program. No. A-3701-05 (slip op. at 25-41). That decision refers to a July 28, 2005, decision of the Appeal Tribunal which concluded that those Verizon employees were not entitled to unemployment compensation benefits despite the language of N.J.A.C. 12:17-9.6. Id. (slip op. at 22-24). The Board of Review affirmed the Appeal Tribunal in 2006. Id. (slip op. at 24-25). Neither the decision of the Appeal Tribunal nor that of the ...


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