On appeal from the Board of Review, Department of Labor, Docket No. 321,246.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013 -
Before Judges Reisner and Yannotti.
Claimant appeals from an October 24, 2011 decision of the Board of Review denying his application for unemployment benefits. We affirm.
Claimant, an attorney, was a non-equity partner in a law firm. At the end of December 2010, claimant resigned from the law firm after working there for about ten years. There is no dispute that he resigned by agreement with the firm, which would otherwise have terminated his employment. As part of their agreement, the firm permitted him to work for an additional three and one-half months. Claimant applied for unemployment benefits, which were initially granted by the claims deputy. The employer appealed, contending that claimant was an independent contractor, not an employee, and that his employment was terminated for misconduct. Claimant responded to the appeal by denying any misconduct, asserting that his planned termination was due to lack of work at the firm, and contending that the firm mischaracterized him as an independent contractor.
During the appeals hearing, the employer presented testimony and documentary evidence that claimant had inflated his billing records. For example, the employer asserted that on several occasions, claimant billed ten hours for preparing a two-page form complaint. The employer also presented testimony that on several occasions, claimant wrote down hours on his time sheet for work that was not actually performed until months later. While the clients were not billed for any extra time, the employer contended that claimant was misrepresenting to the firm the amount of time he was working.
Claimant testified that he did not falsify any time records. However, he admitted that when the senior partner told him he was about to be fired, the partner mentioned "two time entries" where excessive hours were billed. Understanding that he had no future with the firm, claimant agreed to resign.
After a two-day hearing, the appeals examiner determined that claimant was an employee, not an independent contractor. However, based on the examiner's evaluation of witness credibility, she also determined that claimant was terminated for misconduct, N.J.S.A. 43:21-5(b), and was therefore disqualified from receiving unemployment benefits. The Board of Review affirmed the decision of the Appeal Tribunal.
On this appeal, claimant argues that the employer should not have been permitted to raise before the Appeal Tribunal an issue (employee misconduct) not raised before the claims examiner. However, the claims examiner's notes indicate that the firm's senior partner told her, in her telephone interview with him, that there were problems with claimant's work performance. In its appeal, the employer provided more specific information about those problems.
Claimant's reliance on N.J.S.A. 43:21-6(2)(b)(1), which he cites for the first time in his reply brief, is misplaced. That provision states that if an employer fails to timely respond to an information request from the deputy, the employer is responsible for any payments made to the employee prior to the time that the employer finally submits the information to the deputy. If the Board were to find that the employer gave the deputy insufficiently specific information about claimant's work performance, that provision might preclude the agency from recouping payments already made to claimant. However, neither the Appeal Tribunal nor the Board addressed the issue of recoupment.
Claimant further asserts that he was denied the opportunity to cross-examine the senior partner on the stated reasons for his termination and other issues. However, we have reviewed the transcript and it does not reveal that claimant sought to cross-examine the employer's witness. Further, we find no abuse of the appeals examiner's discretion in focusing the hearing on whether claimant committed misconduct, as opposed to extraneous issues concerning the firm's employment practices.
Claimant also contends that the Board's decision is arbitrary and against the weight of the evidence. We cannot agree. The employer introduced its billing records and presented testimony explaining the reasons for claimant's termination. The hearing examiner found that testimony credible. The Board's decision was supported by sufficient credible evidence and was not arbitrary or capricious. R. 2:11-3(e)(1)(D); Brady v. Board of Review, 152 N.J. 197, 210 (1997). Claimant's ...