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Tokhtameshev v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 9, 2009

ADAM A. TOKHTAMESHEV, APPELLANT,
v.
BOARD OF REVIEW AND YANKEE PAYROLL SERVICES, INC., RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, Docket No. 170,188.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Sabatino and J. N. Harris.

Appellant, Adam A. Tokhtameshev, appeals the Board of Review's final decision of October 9, 2008, finding him ineligible for unemployment benefits and ordering appellant to refund $4,992 in improperly-received benefits and pay a fine of $1,248. We affirm.

The relevant facts were developed in a telephonic hearing before the Appeal Tribunal, during which appellant testified. The record shows that appellant worked as a food delivery employee for Yankee Payroll Services, Inc. ("Yankee Payroll") through January 8, 2006, when he was laid off. Appellant thereafter applied for and started collecting unemployment benefits. However, it subsequently came to the agency's attention that appellant had resumed working for Yankee Payroll during the same time that he was collecting unemployment benefits. Appellant continued to receive checks from both sources, despite the fact that he was required to report any earnings to the Department of Labor and despite the fact that the back of the unemployment checks that he endorsed contained a certification that he had reported any such earnings. Appellant's earnings were corroborated by wage records from Yankee Payroll.

Appellant's explanation for not reporting his concurrent earnings is that Yankee Payroll, when it re-hired him, was not paying him sufficient wages to cover his living costs, and that he needed the extra income of unemployment benefits to help make ends meet. The Appeal Tribunal rejected that explanation as unavailing under the unemployment laws. It directed appellant to pay a refund covering the weeks ending January 28, 2006 through July 8, 2006, and to pay a fine of $1,248 in light of his false representations of continued unemployment. The Appeal Tribunal also disqualified appellant from collecting benefits for a period of one year from November 2007, the month that his misconduct was discovered. The Board of Review sustained the Appeal Tribunal's findings, and this appeal ensued.

The law is clear. Appellant is ineligible to collect full unemployment benefits at the same time that he is employed and not disclosing that employment to the Division of Unemployment Insurance. See N.J.S.A. 43:21-3(b); Malady v. Bd. of Review, 76 N.J. 527, 529 (1978). In such circumstances, the agency is entitled to collect a refund of the benefits received, plus a fine authorized by statute. See N.J.S.A. 43:21-16(d) (refund); N.J.S.A. 43:21-16(a) (fine). The agency also is authorized to disqualify the claimant from collecting benefits for a full year. See N.J.S.A. 43:21-5(g).

Despite appellant's contentions about his difficult financial circumstances, his failure to report his resumed earnings warrants the sanctions imposed by the agency. N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by any person who was not actually entitled to those benefits. The obligation to repay is unaffected by the good faith of the claimant. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997); see also Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973).

Appellant fails to demonstrate, as a matter of law, that the Board's application of the unemployment statutes was contrary to law, or otherwise arbitrary or capricious. Absent such a demonstration, we must defer to the agency's disposition. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

Affirmed.

20091109

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