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Harris v. Board of Review

September 9, 2009

JOHN L. HARRIS, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND EFK GROUP, LLC, RESPONDENTS.



On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 40,900.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2009

Before Judges Payne and Waugh.

Claimant, John L. Harris, appeals from the final decision of the Board of Review denying his claim for unemployment insurance benefits on the ground that he left work voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). On appeal, Harris argues:

Claimant's leaving his job with employer due to employer changing job responsibilities, from a %50 %50 balance of account management work (non-commissionable) and new business development work (commissionable) to exclusively account management work, resulting in greatly reduced income which constitutes good cause attributable to work and, therefore, he should not have been disqualified for benefits.

We affirm.

Harris was hired as Vice President, Director of Client Services by the EFK Group, an advertising agency, on July 18, 2003. The company's job offer provided the following terms:

Base Salary $50,000 per year 2 weeks vacation Health benefits (single coverage) 15 % commission on all new business brought in by you (on net - determined by a formula developed by EFK and approved by you) 50% of the job client management and EFK business 50% New Business Harris was assured by the company's president, Eleanor Kubacki, that the person who had previously held Harris's job had earned $120,000 per year.

At the time that he was hired, Harris was assigned three accounts to manage, and was later assigned two additional accounts. Harris testified that he was entitled to commissions on all accounts because he had increased the billings on the original accounts and had assisted in securing the new business. However, other evidence demonstrated that the largest of the accounts had been lost and Kubacki, not Harris, had initially brought in the two new clients. At the time of the hearings in the matter, Harris was unable to quantify the amount of commissions that he alleged he was owed.

Harris claimed additionally that, because of the amount of time required to service the accounts assigned to him, he was unable to attract new business. Harris did not address the additional time available to him as the result of the loss of his largest account. In an attempt to renegotiate his salary, Harris utilized monster.com to establish that the median salary for a senior account executive in his field was approximately $100,000 and that the seventy-fifth percent quartile earned approximately $134,000. Harris showed this evidence to Kubacki on February 16, 2004, but she replied that his pay would be increased only if he attracted new business. Kubacki testified that Harris never attempted to secure such business and expressed no interest in doing so.

Harris also testified that, without his knowledge, Kubacki had been advertising for and interviewing candidates for the positions of senior account executive and new business development. Kubacki admitted that fact, stating that she sought a person to assist Harris in his account management duties, and that it was her prerogative to do the interviewing. She testified further that she had no intention of replacing Harris.

Harris resigned from his position on May 10, 2004, approximately ten months after he had been hired. In his letter of resignation, Harris complained that he had been hired primarily to develop new business, and that a substantial portion of his income was to have been generated in this fashion, but that his job responsibilities had been unilaterally changed to eliminate new business development and to focus entirely on account management, thereby reducing his earning capacity. Harris stated additionally that it was evident that Kubacki planned to replace him, because she had been surreptitiously running advertisements and interviewing for the positions of senior account executive and new business development without involving him in either. He stated: "The account executive was to have reported to me. You never even discussed with me your intentions of hiring a new business development individual despite your repeated insistence that I was management." As a final matter, Harris stated that Kubacki had failed to discuss his responsibilities and compensation with him, despite his requests that she do so, whereas she had reviewed all other employees of the firm.

Following Harris's resignation, he applied for unemployment insurance benefits and was found disqualified on the ground that he had left work voluntarily without good cause attributable to the work. Following an appeal to the Appeal Tribunal, telephonic hearings were conducted on November 22. 2004 and January 5, 2005 in which both Harris and Kubacki participated. By decision dated ...


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