JOHN A. RUSSELL, Appellant,
BOARD OF REVIEW and HEALTH RESOURCES PUBLISHING, Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2013
On appeal from the Board of Review, Department of Labor, Docket No. 323, 873.
John A. Russell, appellant pro se.
John J. Hoffman, Acting 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 Health Resources Publishing has not filed a brief.
Before Judges Ostrer and Carroll.
The Director of the Division of Unemployment Insurance (Director) charged that John A. Russell obtained unemployment benefits through false or fraudulent misrepresentation. The Director sought the return of $6720 in benefits, pursuant to N.J.S.A. 43:21-16(d)(1); disqualified him from future benefits for one year, pursuant to N.J.S.A. 43:21-5(g)(1); and imposed a fine of $1680, equal to twenty-five percent of the benefits, pursuant to N.J.S.A. 43:21-16(a). Russell now appeals from a Board of Review final decision, affirming the Appeal Tribunal, which, after an evidentiary hearing, affirmed the Director's initial determination. We reverse in part and affirm in part.
The record reflects that Russell had worked full-time as an editor for Health Resources Publishing, LLC. In late 2008, his employer experienced economic difficulty and converted Russell's status to part-time. Russell applied for benefits based on his partial unemployment. See N.J.S.A. 43:21-3(b), -19(m)(1)(a) (providing for benefits notwithstanding receipt of part-time wages).
Russell testified that for twelve weeks during the course of a twenty-six-week period between December 27, 2008 and June 20, 2009, his employer did not timely pay him at all for the weeks worked. Russell testified, "[H]e [his employer] was undergoing financial difficulties and he would just postpone paying people to the point where he would tell people[, ']I don't know whether I can make payroll or not. I don't know when you'll get paid.['] Some of the checks were almost a month late."
Consequently, for the weeks in which Russell worked but was not timely paid, he reported to the Division through its automated telephone reporting system, that he had worked for the particular week, but had received no wages. As a result, Russell received benefits as if he were fully unemployed. For those weeks in which Russell was timely paid, he dutifully reported that he was working, and he reported the earnings. Those weeks are not at issue.
Russell never reported to the Division that he ultimately received late payment of the wages for those weeks in which he initially reported he earned zero. Russell claimed he attempted to do so a number of times, but was unable to reach a staff person. He admitted he ultimately stopped trying and failed to write to the ...