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Joan B. Futterman v. Board of Review

July 25, 2011


On appeal from the Board of Review, Department of Labor, Docket No. 251,160.

The opinion of the court was delivered by: Graves, J.A.D.



Submitted May 24, 2011 -

Before Judges Carchman, Graves and Waugh.

The opinion of the court was delivered by GRAVES, J.A.D.

Joan B. Futterman appeals from a final decision of the Board of Review (the Board) that found her ineligible for unemployment insurance benefits under the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30. The principal issue on appeal is whether an employee who is obligated to take several self-directed furlough days may qualify for unemployment compensation by scheduling the days consecutively. For the reasons that follow, we affirm the Board's decision.

Futterman is employed by the New Jersey Department of Labor as an "appellate specialist" earning approximately $96,000 per year. She is also a member of the Communication Workers of America, AFL-CIO (CWA), an employee union.

On June 3, 2009, the CWA concluded a Memorandum of Agreement (MOA) with the State to address the impact of "an unforeseen and unprecedented" reduction in State revenues caused by "the current economic crisis." The parties acknowledged that the negotiated agreement would "facilitate the accomplishment of vital government policies and objectives, including the avoidance of layoffs, the delivery of needed public services, and the achievement of substantial budgetary savings." The State pledged not to lay off any bargaining unit employees before January 1, 2011, and in exchange, the CWA agreed to defer a scheduled "across-the-board" raise until the first full pay period in January 2011. Additionally, the MOA required each bargaining unit employee to take ten unpaid furlough days before July 1, 2010. Seven of these furlough days were to be "self- directed," or chosen by the employees themselves, in fiscal year 2010.

"In recognition" of these concessions by the CWA, the State agreed "to establish a Paid Leave Bank (PLB) for each unit member" and to credit each PLB with seven paid leave days. Employees were to receive one paid leave day on both July 1, 2009, and June 30, 2010, and the remaining five days were to be credited at a rate of one paid leave day for every two self-directed furlough days utilized.

In a July 27, 2009 memorandum, the Governor's Office of Employee Relations provided guidance to all State departments and agencies regarding the self-directed furlough days. The memorandum noted that "the scheduling of such days cannot result in additional overtime, as the State will not receive the cost savings needed." It further stated:

Some employees may request to take multiple [self-directed furlough] days in a work week. That is their right to make such a request. Agency managers and supervisors cannot suggest or require that any employee take more than one furlough day in a week. The expectation is that the majority of days taken will be for a single day in a week, even a pay period, because that spreads out the economic impact and generally should be better for operations. But, each situation is different. When a request for multiple days is made, the manager or supervisor needs to look at operational needs, other leave days that have been scheduled or requested and make sure such a request can be accommodated before it is approved. [(Emphasis omitted).]

On August 21, 2009, the Division of Unemployment Insurance released a "policy regarding New Jersey State employee self-directed furloughs." After providing a background on the purpose of the Unemployment Compensation Law, the policy stated:

Under the MOA, there is no requirement that individuals take more than one day per week, and have until July 1, 2010 to utilize all unpaid furlough days. While the requirement that an employee schedules the seven self-directed days is mandatory, the accumulation of more than one such day in a given work week is a voluntary choice made by the individual employee. By voluntarily choosing to schedule multiple furlough days within one week, the individual is not doing what is reasonable and necessary to remain employed, and is turning down available gainful employment. Domenico v. Board of Review, 192 N.J. Super. 284 (App. Div. 1983). Thus the individual's decision has the effect of extending her period of unemployment, which may result in the collection of unemployment benefits. Accordingly, scheduling of multiple furlough days ...

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