On appeal from the Board of Review, Department of Labor, Docket No. 270,271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Axelrad and Ostrer.
This is an appeal from a denial of unemployment benefits. Claimant Peter Van Eck had worked continuously for the Newark Morning Ledger Co., publisher of the Newark Star-Ledger newspaper, for over thirty-seven years when he was laid off for one week in July 2009, after which he returned to work. He sought and received unemployment benefits for that week.
He was notified of a lay-off again on December 18, 2009. On December 28, 2009, he returned to work after one week off the job. Van Eck waited until December 29, 2009 to reopen his unemployment claim to obtain benefits for his second week-long layoff. The Division of Unemployment Insurance denied the claim for the week of December 20 to 26, 2009, because it was untimely.
The Appeal Tribunal and the Board of Review (Board) affirmed that decision. The Board relied on N.J.A.C. 12:17-4.2(c), which requires a claimant to report his or her unemployment during the week for which benefits are sought:
A claimant who returns to full-time work for more than one calendar week and then becomes unemployed shall report by telephone or via an Internet application to the Reemployment Call Center, or as the Division may otherwise prescribe, to reopen the claim. The claim shall be reopened as of the week in which the claimant first reports to claim benefits.
Inasmuch as Van Eck first reported to claim benefits on December 29, 2009, the week after he was laid off, the Board concluded he was ineligible for benefits for the week of December 20 to 26, 2009 - the only period he was out of work. The Board also affirmed the Appeal Tribunal's finding that Van Eck's ignorance of the law did not constitute good cause for failing to comply with the reporting requirement.
Van Eck appealed. He argues he was unaware that the regulation required such prompt reporting of unemployment. He asserts that the various informational materials the agency provided to him did not adequately disclose the regulatory requirements.
It is undisputed that but for his late reporting, Van Eck would have received the benefits for which he was otherwise eligible. Consequently, his dissatisfaction with the Board's decision is understandable. However, our scope of review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We can intervene only if the agency's action was arbitrary, capricious or unreasonable, or it was "'clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
It is not disputed that under N.J.A.C. 12:17-4.2(c), Van Eck reported too late to receive benefits for the week of December 20 to 26, 2009. Timely filing for benefits, in compliance with the agency's regulations, is a statutory prerequisite to benefits. See N.J.S.A. 43:21-4(a)(stating that an individual shall be eligible to receive benefits "only if [t]he individual has filed a claim . . . and thereafter continues to report . . . as directed by the division in accordance with such regulations as the division may prescribe. . . .").
The Board also reasonably determined that Van Eck's ignorance of the law under the circumstances was not good cause for his untimely reporting. See N.J.A.C. 12:17-4.1(b) (stating that "good cause" means "any situation which was substantial and prevented the claimant from reporting as required by the Division."). Van Eck points to no affirmative misstatement of his reporting obligations in the agency materials that he received when he claimed benefits in July 2009. At most, he argues that the agency omitted clear directions in those materials. Cf. Garzon v. Bd. Of Review, 370 N.J. Super. 1, 9 (App. Div. 2004) (remanding for determination whether employee could demonstrate good cause for filing late appeal where agency materials misled employee as to nature of information required); Meaney v. Bd. of Review, 151 N.J. Super. 295 (App. Div. 1977) (permitting an application to be predated when the late filing was due solely to misinformation from agency personnel).
He does not dispute that the agency's regulations were available on the internet and that an informational booklet routinely provided to claimants advised, "No benefits can be paid to you for any week before you actually file your unemployment claim." Although Van Eck denies receiving the booklet in July 2009, his "Unemployment Insurance Instructions" letter dated July 20, 2009 directed him to refer to the booklet for information he needed to ...