September 9, 2013
DAVID TARNOWSKI, Appellant,
BOARD OF REVIEW, DEPARTMENT OF LABOR and NEW NGC, INC., Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2013
On appeal from the Board of Review, Department of Labor, Docket No. 298, 207.
Law Offices of William B. Hildebrand, L.L.C., attorneys for appellant (Mr. Hildebrand, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
Respondent New NGC, Inc., has not filed a brief.
Before Judges Harris and Hayden.
Claimant David Tarnowski appeals from the final decision of the Board of Review, which deemed him ineligible for unemployment benefits, based upon the administrative determination that he was terminated from his job for severe misconduct. N.J.S.A. 43:21-5(b). We reverse and remand for the Board to consider whether the grounds for Tarnowski's termination constituted severe misconduct under Silver v. Board of Review, 430 N.J.Super. 44 (App. Div. 2013).
We discern the following facts from the record. Tarnowski worked as a Production Technician at National Gypsum Company, Inc., from March 1989 until his termination on July 2, 2010. National Gypsum used a point system to track attendance, which provided for termination of an employee who accumulated twelve points from attendance violations within a rolling one-year period. Tarnowski received written warnings advising him of the attendance policy on February 23, April 6, and April 12, 2010. Failure to call in prior to the start of an employee's shift on two separate occasions within a one-year period was also grounds for termination.
On June 27, 2010, early into his shift, Tarnowski received an emergency call informing him that his cousin in South Carolina was on life support. He left work immediately, telling his coworker to tell his foreman that he was leaving the state. He traveled to South Carolina and, after his cousin died, stayed for the funeral, returning to New Jersey on July 3, 2010. Tarnowski called his employer on the morning of June 28, but could not reach anyone who could authorize a leave of absence. Between June 28 and July 3, he also "could not get ahold of anybody, " even though the Human Resources department was open during regular business hours.
National Gypsum terminated Tarnowski's employment, effective July 2, 2010, and sent a letter via certified mail the same day to inform him. Tarnowski immediately filed a claim for unemployment benefits. On September 1, 2010, a Deputy in the Division of Unemployment Insurance for the New Jersey Department of Labor held that Tarnowski was disqualified for benefits from June 27, 2010 because he abandoned his job. The Deputy also demanded repayment of the benefits he had been paid to date.
Tarnowski appealed the determination and participated in a telephone hearing on October 7, 2010. After the hearing, the Appeals Examiner affirmed the Deputy's determination. Tarnowski then appealed to the Board of Review. In a May 31, 2011 decision, the Board disagreed that Tarnowski abandoned his job and instead concluded that he had been terminated for "severe misconduct." Tarnowski appealed to this court. We reversed and remanded the case for reconsideration by the Board of Review to determine whether Tarnowski's "conduct, which occurred prior to July 1, 2010, permitted application of the penalty for severe misconduct."
On October 24, 2011, the Board of Review again concluded that Tarnowski was appropriately disqualified for severe misconduct, reasoning that "while his unauthorized absence commenced in June, it continued into July." This appeal followed.
In reviewing this final agency decision, the court gives substantial deference to the Board of Review. The main focus is whether the Board's determination was arbitrary, unreasonable or capricious, Brady v. Bd. of Review, 152 N.J. 197, 210 (1997), or unsupported by the record. Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App. Div. 1985). However, the Court may reject the Board's conclusions where they reflect a misapplication of the unemployment statutes and regulations. Silver, supra, 430 N.J.Super. at 58. The deference to an agency's findings of fact "is premised on [the court's] confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Bailey v. Bd. of Review, 339 N.J.Super. 29, 33 (App. Div. 2001).
On appeal, Tarnowski argues that the Board cannot consider if his termination was for "severe misconduct" under N.J.S.A. 43:21-5(b) because the amendment which added the term "severe misconduct" was not effective until after his period of absences began. He also argues that the Board did not consider the threshold issue of whether his actions were intentional, malicious or deliberate as set forth in Silver, supra, 430 N.J.Super. at 55-56.
Until 2010, N.J.S.A. 43:21-5(b) identified two types of misconduct that prevented full receipt of benefits. "[G]ross misconduct" is "an act punishable as a crime" and results in a complete disqualification for benefits. Ibid. "[M]isconduct" is found where an employee's act is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." N.J.A.C. 12:17-10.2(a). It results in an eight-week disqualification from unemployment benefits. N.J.S.A. 43:21-5(b).
We described this "two-prong standard" for misconduct as follows: "First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." Silver, supra, 430 N.J.Super. at 53. Misconduct must also be "more than simply inadequate job performance that provides good cause for discharge." Parks v. Bd. of Review, 405 N.J.Super. 252, 254 (App. Div. 2009).
In 2010, an intermediate type of misconduct, severe misconduct, was added to N.J.S.A. 43:21-5(b). L. 2010, c. 37, § 2, eff. July 1, 2010. Tarnowski argues that since the actions that led to his termination began before the new law became effective, his termination was controlled by the former law.
Courts favor interpretations of statutes that afford prospective application only. Oberhand v. Dir., Div. of Taxation, 193 N.J. 558, 570 (2008). New Jersey does not allow a statutory amendment to be applied retroactively when doing so would alter antecedent rights. Street v. Universal Maritime, 300 N.J.Super. 578, 581 (App. Div. 1997). Interpretation of a statute begins with consideration of the plain language of the statute. Oberhand, supra, 193 N.J. at 568.
We agree with Tarnowski that no legislative intent to apply the amendment retroactively has been shown. However, we do not perceive that the amendment is being applied retroactively here. The amendment stated that the law was effective July 1, 2010. Tarnowski was not terminated until July 2, 2010, after he again failed to call and failed to show up for work. As the Board found, "if the claimant returned to work on July 2, 2010 or earlier and pled his case, he might have kept his job." The record supports the Board's finding that as his misconduct continued and his termination occurred after the amendment went into effect, Tarnowski's termination can be reviewed under the "severe misconduct" standard.
An employee who has been discharged for severe misconduct is disqualified for unemployment benefits until reemployed for at least four weeks and has earned at least six times the employee's weekly unemployment benefit rate. N.J.S.A. 43:21-5(b). The statute does not define severe misconduct, but does provide examples, such as "repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, " and "abuse of leave." Ibid.
However, the threshold of culpability required for severe misconduct, which carries a more stringent disqualification from benefits, cannot be less than that for simple misconduct. Silver, supra, 430 N.J.Super. at 55. As we previously observed, the conduct given as examples under the severe misconduct statute required the same finding of intent, deliberateness, or malice as simple misconduct. Id. at 55-56.
The Board's decision failed to consider whether Tarnowski's actions were intentional, deliberate, or malicious, pursuant to the first prong of the Silver standard. We recognize that the Board made its determination prior to our decision in Silver, which clarified the standard of culpability for severe misconduct. Accordingly, we remand this case to the Board to reconsider its decision in light of the two-prong standard in Silver.
Reversed and remanded. We do not retain jurisdiction.