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Mollica v. Board of Review

December 22, 2009

RAYMOND F. MOLLICA, APPELLANT,
v.
BOARD OF REVIEW AND JACK DANIELS OF UPPER SADDLE RIVER, INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 200,563.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2009

Before Judges Cuff and C.L. Miniman.

Appellant Raymond F. Mollica appeals the final agency action by the Board of Review affirming the determination of the Deputy Director, Division of Unemployment Insurance, that Mollica was disqualified for benefits from May 11, 2008. Under our limited scope of review, we affirm.

At the hearing conducted by the Appeals Examiner on November 17, 2008, only Mollica testified. The issue to be resolved was whether Mollica voluntarily left his employment with Jack Daniels Motors of Upper Saddle River, Inc. (Jack Daniels Motors). Mollica began to work for Jack Daniels Motors in February 2008, and his last day of employment was May 14, 2008. He worked about fifty hours per week and earned $250 per week plus commissions. He testified that he quit for cause.

Mollica explained that he had eighteen years experience selling cars and that he worked for Bravo between 1998 and 2006 earning $85,000 per year. He then worked for Landrover in Paramus where he earned $1,100 to $1,200 per week. When he took the job with Jack Daniels Motors, he was told that he could earn $50,000 to $60,000 the first year, which was what he used to make. However, once he had been on the job for two months, he realized he was never going to earn $50,000 in his first year because of the number of cars and salespeople they had and the preference given to longer-term salespeople.

Mollica explained that the dealership was selling fifteen to fifty cars at retail per month and, although it sold used and leased cars, the dealership did not tell him that these sales were handled in separate departments, lowering his opportunity to sell cars. Also, they had six to eight salespeople, one who had been there twenty-seven years and another who had been there four to eight years, and they were selling twenty to twenty-five cars per month between them. This left only thirty cars available for the other four to six salespeople and all the bonuses were based on selling eleven cars per month. None of the salespeople made the kind of money represented to him. He had been making $600 to $1700 commissions on Range Rovers and was only earning $100 to $200 commissions on Audis.

Because he could not pay his bills and had three young children to support, he was forced to quit and had to take an early retirement and find another part-time job. He asked Jack Daniels Motors to put him on part-time employment, but his employer refused. He admitted to the Appeals Examiner that working part-time allowed him to spend more time with his family, but denied that was a reason for quitting and claimed that he would have continued working if he had been earning what he was accustomed to earn.

Mollica also related that Jack Daniels Motors had agreed that he could work his own deals, i.e., negotiate price with the customer without having to secure price approval from a manager. However, his employer breached that promise once he was working for it. He also expressed that he did not think it was fair for a person who had been earning $85,000 to only be earning $30,000-especially when one of the other salesman who had only one year of experience was earning $24,000.

On September 15, 2008, the Deputy Director found that Mollica "voluntarily quit [his] job on [May 15, 2008,] for personal reason. [He] wanted to restrict [his] hours to working part-time to spend more time with [his] family[.] Also [he] was given a pay plan and being paid in accordance with [his] terms of hire." The Deputy Director therefore concluded Mollica's "reason for leaving does not constitute good cause attributable to the work." Mollica was disqualified for benefits under N.J.S.A. 43:21-5 from May 11, 2008, until he "worked in four or more weeks in employment and [had] earned at least six times [his] weekly benefit rate."

Mollica timely appealed to the Appeal Tribunal and the Appeals Examiner found that "the claimant left the work voluntarily because the employer would not grant his request for a part-time schedule to allow him to look for other work. The claimant was dissatisfied with his opportunity to earn commissions." The Appeals Examiner issued the following opinion:

N.J.S.A. 43:21-5(a) provides that a claimant will be indefinitely disqualified for benefits if someone voluntarily leaves work without good cause attributable to such work.

In order to avoid disqualification under N.J.S.A. 43:21-5(a), a claimant must demonstrate that the reason for leaving was work connected. A claimant who leaves work for a personal reason, no matter how compelling, is subject to ...


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