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Arail v. Board of Review


May 17, 2010


On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 197,345.

Per curiam.


Submitted April 27, 2010

Before Judges Parrillo and Ashrafi.

Claimant Marina Arail appeals from a final decision of the Board of Review, Department of Labor, dismissing her claim for Emergency Unemployment Compensation benefits. We affirm.

On July 8, 2008, the Department of Labor notified Arail that she was not eligible for unemployment benefits she had claimed. Eligibility under the Emergency Unemployment Compensation program required twenty base weeks of employment or, alternatively, earnings of at least forty times her weekly benefit rate of $536, that is, $21,440. Her employment record for the base year, from July 1, 2006, through June 30, 2007, showed fifteen base weeks of employment and $16,905 in earnings.

Arail appealed the decision denying her claim. The Appeal Tribunal conducted a telephone hearing on September 26, 2008, and, by written decision denied her appeal. The decision stated that Arail lacked the requisite base weeks or earnings to qualify for the benefits she claimed. Attached to the decision was a notice stating: "IMPORTANT: This decision will become final, unless, within ten (10) days of the date of mailing or notification, a written appeal is filed with the Board of Review, Department of Labor...." The date the Appeal Tribunal's decision was mailed to Arail, October 1, 2008, was clearly indicated on the front page.

By letter postmarked October 20, 2008, Arail filed an appeal to the Board of Review, stating that she had received the decision of the Appeal Tribunal on October 4, 2008, and that, because of the economy, she had not been able to find a job in the travel industry despite her twenty-three-year career in that field. Her statement gave no reason for filing her appeal beyond the ten-day time period indicated in the notice. The Board of Review issued a written decision on November 24, 2008, dismissing Arail's appeal as untimely filed. She filed a notice of appeal to this court.

The procedure for applying for unemployment benefits and appealing an adverse decision is stated in N.J.S.A. 43:21-6. In relevant part, subsection (c) of that statute provides:

The parties shall be duly notified of [the Appeal] tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the board of review, unless within 10 days after the date of notification or mailing of such decision, further appeal is initiated [to the board of review].

The ten-day deadline for filing an appeal is mandatory. Lowden v. Bd. of Review, 78 N.J. Super. 467 (App. Div. 1963); see also Von Ouhl v. Bd. of Review, 254 N.J. Super. 147, 151 (App. Div.), certif. denied, 130 N.J. 10 (1992) (decision of Appeal Tribunal is final if appeal is not initiated within ten days). However, in Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992), the Supreme Court held that exceptions to the deadline must be permitted to protect a claimant's right to due process. After Rivera, the Department of Labor promulgated a regulation allowing a good cause exception for late appeals. N.J.A.C. 12:20-3.1(i) provides:

A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:

1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or

2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

In this case, Arail has made no attempt to show good cause for delay in filing her appeal.

The date of the postmark on Arail's letter to the Board of Review is deemed to be the date of her filing the appeal.

N.J.A.C. 12:20-4.1c. The record shows clearly the postmark of October 20, 2008, which was nine days beyond the deadline of October 11. Without a showing of good cause, the Board of Review correctly dismissed Arail's appeal as untimely.

In her two-page letter before us, Arail has written only generally about her work and career history. Again, she has not addressed the late filing of her appeal to the Board of Review. She has also not shown any error in the reason for denying her claim under the applicable law.

Our standard of review is whether the decision of the Board of Review was arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We find no such error in the ruling dismissing Arail's appeal.



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