On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 255,320.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...