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Nicole Fredericks v. Board of Review


September 15, 2011


On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 255,320.

Per curiam.


Submitted August 24, 2011

Before Judges Simonelli and Espinosa.

Appellant Nicole Fredericks appeals from a decision of the Board of Review, Department of Labor, affirming a decision of the Appeal Tribunal that she was ineligible for extended emergency unemployment compensation (EUC) benefits under the Emergency Unemployment Compensation Act of 2008 (the Act)*fn1 because she qualified for an unemployment claim in the State of New York and was eligible for benefits as of February 8, 2009. Appellant also appeals from the Board's decision affirming the Appeal Tribunal's decision that she is liable for a refund pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2. We affirm.

Appellant was employed by Authentidate Holding Corporation in New Jersey until January 2008. Thereafter, she was employed by Nine West in New York from January to August 2008. On August 10, 2008, she filed a regular claim for unemployment benefits in New Jersey. The claim established a weekly benefit rate of $560 and a maximum benefit amount of $14,560. Appellant exhausted those benefits in New Jersey as of February 7, 2009, totaling $14,500.

Thereafter, the Division of Unemployment (the Division) found appellant eligible under the Act for EUC benefits as of February 8, 2009. It established a weekly benefit rate of $560 and a maximum benefit amount of $11,200. Appellant received EUC benefits from the week ending February 14, 2009 through the week ending September 19, 2009, totaling $11,150.

While she collected EUC benefits, appellant was employed part-time by the United Way of Morris County in New Jersey from May 5, 2009 to September 17, 2009, and earned total wages of $6,750. On September 20, 2009, she filed another claim for unemployment benefits in New Jersey. She was advised that she should have filed a claim in New York.

Appellant filed a claim for unemployment benefits in New York, effective February 9, 2009. She received $405 in weekly benefits from February 2009 through January 3, 2010. Appellant received these benefits at the same time she was receiving EUC benefits.

In order to be eligible for EUC benefits, an individual may not have any rights to regular or extended compensation under any state or federal law. Pub. L. No. 110-252, § 4001(b)(2), 122 Stat 2353. The Division's Director mailed a determination on October 5, 2009, finding appellant ineligible for EUC benefits from February 8, 2009, because she qualified for a valid unemployment claim in New York as of that date. The Director also mailed a request for a refund holding appellant liable to refund the sum of $11,150 she had received as EUC benefits from the week ending February 14, 2009 through the week ending September 19, 2009, as required by N.J.S.A. 43:21-16(d)(1).

Appellant appealed to the Appeal Tribunal. Following a hearing, the Appeal Tribunal affirmed the Director's decision. Appellant appealed to the Board, which affirmed the Appeal Tribunal's decision. This appeal followed.

On appeal, appellant contends N.J.S.A. 43:21-16(d) does not apply because she cooperated and acted in good faith and on the misguided advice of the Division's representatives. Also, for the first time on appeal she seeks a waiver of the request for a refund, which she did not request below.

Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "Moreover, '[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (first alteration in original) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (citations omitted). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). Unless "the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210. Applying these standards, we affirm.

Under the Act, EUC benefits will be paid to individuals who have exhausted all rights to regular unemployment benefits under federal or state law in any benefit year that commenced after May 1, 2007, and who "have no rights to regular compensation or extended compensation . . . under . . . any other State . . . or . . . Federal law . . . ." Pub. L. No. 110-252, §§ 4001(b)(1)-(2). Appellant did not qualify for EUC benefits because she was eligible for and received regular unemployment benefits in New York.

Federal law requires an individual who receives EUC benefits to which he or she was not entitled to repay the amounts of such benefits to the State agency. Id. § 4005(b). Similarly, the New Jersey Unemployment Compensation Law mandates a full refund when the Division determines that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact . . . or (ii) for any other reason, has received any sum as benefits . . . while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits[.] [N.J.S.A. 43:21-16(d)(1).]

In Bannan v. Board of Review, we affirmed the proposition that full repayment of benefits is required from anyone "who, for any reason, regardless of good faith, was not actually entitled to those benefits." 299 N.J. Super. 671, 674 (App. Div. 1997). Recovery of such benefits "furthers the purpose of the unemployment compensation laws[,]" and we emphasized that the Unemployment Trust Fund must be preserved "for the payment of benefits to those individuals entitled to receive them." Ibid. We stressed that "[t]he public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may have been." Ibid.

We acknowledged that any resulting hardship suffered by some claimants who are required to repay benefits is unfortunate, but we nevertheless found recoupment to be crucial to the preservation of "the ongoing integrity of the unemployment compensation system." Id. at 675. We also observed that "federal law requires that a state recover improperly paid unemployment compensation benefits." Ibid. For example, federal law requires the Secretary of Labor to certify that all federal moneys given to each State is "necessary for the proper and efficient administration of" the State's unemployment compensation law. 42 U.S.C.A. § 502(a); see also Bannan, supra, 299 N.J. Super. at 675. Federal law also requires that benefits be paid "when due." 42 U.S.C.A. § 503(a)(1); see also Bannan, supra, 299 N.J. Super. at 675. "This latter provision usually results in payments being made upon an initial determination of eligibility" which, as here, "may subsequently be overturned." Bannan, supra, 299 N.J. Super. at 675; see also Brewer v. Cantrell, 622 F. Supp. 1320, 1323-24 (W.D. Va. 1985), aff'd, 796 F.2d 472 (4th Cir. 1986). Such overpayments are not "unemployment compensation," and the moneys are not being used for the administration of the unemployment compensation laws and must be recouped. Bannan, supra, 299 N.J. Super. at 675.

The Division is also required, by regulation, to issue a demand for a refund of improperly paid unemployment benefits "whenever a determination of overpayment is made." N.J.A.C. 12:17-14.1. Except in instances of fraud, the Division is directed to seek refunds "before four years have elapsed from the time the benefits in question were paid." N.J.S.A. 43:21-16(d)(1); see also N.J.A.C. 12:17-14.1. Here, the Division clearly acted within the statutory time limit. Appellant collected $11,150 in EUC benefits while she was receiving unemployment benefits in New York. The Director timely sought a refund from her on October 5, 2009. The refund demand was timely, and appellant is liable to refund the EUC benefits she collected.

The State allows waivers of repayment of an overpayment of unemployment benefits under certain limited circumstances. N.J.A.C. 12:17-14.2. The record contains no evidence that appellant has pursued remission of the debt.

Having admitted receipt of the EUC benefits, having failed to overturn the disqualification order on appeal, and having presented no evidence that she sought a waiver of the refund, appellant is not entitled to the relief sought.


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