Week Ending 5/31/13: Crean v. Board of Review

Alan Schorr’s Employment Case of The Week ending May 31, 2013

Crean v. Board of Review, 2013 WL 2300937 (App. Div. May 28, 2013) (unpublished)
Sluka v. Board of Review, 2013 WL 1890744 (App. Div. May 8, 2013) (unpublished)

The month of May 2013 has been historical with respect to employment plaintiffs winning numerous consecutive large verdicts. The winning streak also carried over into unemployment appeals at the Appellate Division, where two pro se appellants were successful in reversing their unemployment claims. In both Crean v. Board of Review and Sluka v. Board of Review, the Appellate Division sided with claimants against the Board of Review, even in the absence of an attorney on their behalf.

To give some idea of how impressive that is, prior to the victory this month for Jill Sluka, claimant pro se Appellate Division appellants had lost 33 appeals in a row, going back to February 2012. During that same period of time, our firm had eight Appellate Division appeals, and we won or achieved voluntary remands in seven out of the eight. So for there to be two pro se victories in a row, both in the same month, is impressive indeed. I believe that it also demonstrates that the Board of Review has gotten a bit too zealous in its disqualification of unemployment claimants.

Sean J. Crean was employed by Westinghouse Lighting Company in New Jersey for a number of years before moving to Georgia. While living in Georgia he was laid off. He applied to the Georgia Department of Labor for unemployment benefits, but the Georgia agency denied his claim and told him to apply for benefits in New Jersey. Crean contacted the New Jersey Department of Labor and was likewise told to apply in New Jersey. Accordingly, in March 2009, Crean applied for benefits from the New Jersey agency, which granted his claim and paid him benefits. When those benefits ran out, the New Jersey agency sent Crean a notice dated October 7, 2009, advising him that he was eligible to apply for Extended Unemployment Compensation benefits. Accordingly, Crean applied for and received benefits from the New Jersey agency from October 3, 2009 through March 27, 2010.

However, on April 22, 2010, the New Jersey agency sent Crean a Demand for Refund of the $15,184 in benefits that he had already received. Shortly thereafter, Crean received two contradictory notices from the Georgia agency. The first notice, dated April 28, 2010, once again denied his benefit claim on the basis that he had insufficient earnings attributable to the State of Georgia. The second notice, dated April 30, 2010, showed a revised statement of his alleged Georgia earnings and granted his benefit claim retroactive to September 27, 2009. However, according to Crean, he did not apply for those benefits because he was afraid that Georgia, like New Jersey, would then seek to recoup them. There is no evidence in this record that Crean ever actually received any unemployment benefits from the State of Georgia.

Crean appealed and was denied, and the Board of Review similarly denied his appeal and demanded that he repay the very benefits that it had previously told him to apply for and collect. The Appellate Division found that the Board of Review ignored the issue as to whether it could waive the repayment based upon the equities and made no findings of fact on Crean's claims that he was misled by the Georgia and New Jersey agencies and should not have to repay the $15,184.

It is commonplace for the Board of Review to decline to make its own finding and to simply rubber-stamp the Appeal Tribunal decision. Here, however, the Appellate Division was not so accepting nor willing to defer to the Board of Review’s decision. The Court ruled, at *3:

First, although we ordinarily defer to an agency's decision if it is supported by substantial credible evidence and is consistent with applicable law, In re Taylor, 158 N.J. 644, 656 (1999), we cannot engage in meaningful appellate review of a decision that is devoid of pertinent factual and legal findings. See Bailey v. Bd. of Review, 339 N.J.Super. 29, 32–33 (App.Div.2001). Second, a State agency has an obligation to “turn square corners” in dealing with members of the public who are subject to its regulations. See W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 561–62 (1989).

In reviewing the record, which thus far consists of Crean's unrebutted evidence, we are left with the distinct impression that a miscarriage of justice may have occurred. However, because the agency failed to make appropriate factual and legal findings, the record is inadequate for us to make a definitive ruling on this appeal. Absent appropriate findings of fact and conclusions of law, the agency's decision was arbitrary. Accordingly, we reverse the final decision and remand this case to the agency for further proceedings.

Just a few weeks earlier, Jill L. Sluka, an adjunct College instructor, appearing pro se, also convinced the Appellate Division that the Board of Review acted in error. Even though the employer did not oppose Ms. Sluka’s appeal, the Board of Review still opposed it. Acknowledging the substantial deference generally accorded the Board of Review, the Appellate Division made it plain that its main focus is on whether the Board's determination was arbitrary, unreasonable or capricious, and that it will “not hesitate to set aside the Board’s conclusions where they reflect a misapplication of the unemployment statutes and regulations.”

In Ms. Sluka’s case, she was able to convince the Appellate Division that she had not voluntarily left her teaching position when she took a leave of absence due to her pregnancy. In setting aside the Board of Review’s decision, the Appellate Division cited our recent big victory in Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013) for the proposition that the Board of Review should not expect to automatically get the benefit of the doubt going forward. Two pro se victories in a row is compelling evidence that the Appellate Division means it.

Crean v. Board of Review

Appellant’s counsel: Sean J. Crean, pro se.

Respondent’s counsel: Jeffrey S. Chiesa, A.G.; Lewis A. Scheindlin, Christopher M. Kurek, D.A.G.

Appellate Court Judges: Reisner and Hayden.

Sluka v. Board of Review

Appellant’s counsel: Jill L. Sluka, pro se.

Respondents’ counsel: Jeffrey S. Chiesa, A.G.; Lisa A. Puglisi and Christopher M. Kurek, D.A.G.

Appellate Court Judges: Parrillo and Sabatino.

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