Week Ending 9/11/15: El-Abbasi v. Board of Review

Adam Schorr's Employment Case of the Week ending September 11, 2015

El-Abbasi v. Board of Review, 2015 N.J. Super. Unpub. LEXIS 2166 (App.Div. Sept. 10, 2015)

A pro se unemployment appellant has won another victory at the New Jersey Appellate Division, this time regarding what qualifies as suitable work.

Hani El-Abbasi worked as an instructor of phlebotomy at the New Jersey Institute of Allied Health (NJIAH).  His contracts were on a course-by-course basis for $20 per hour, for somewhere between 48 and 100 hours per course.  Courses consisted of two portions, a lecture portion and a practical portion.  In July 2013, Mr. El-Abbasi finished his contract for one course and was offered a new course for the same salary but for only 20 hours, as he would only be instructing the lecture portion.  Mr. El-Abbasi rejected this contract and applied for unemployment.

Mr. El-Abbasi was initially granted unemployment, but was thereafter ruled ineligible for failing to accept suitable work.  Mr. El-Abbasi appealed to the Appeal Tribunal, who upheld the finding.  He appealed to the Board of Review, which upheld the finding on February 19, 2014.  There is no indication in the record as to when Mr. El-Abbasi appealed to the Appellate Division.  The Appeal was heard June 1, 2015 and the decision rendered September 10, 2015.

The Appellate Division's analysis focused on the difference in pay between the contracts NJIAH typically offered Mr. El-Abbasi and the contract Mr. El-Abbasi refused.  Neither party argued that any previous contract was less than $800, and neither party argued that the contract refused would have been more than $400.  The only difference between the contracts were the hours worked.  The Appellate Division specifically found that the "hourly wage earned by an employee is a meaningless metric unless it is viewed in conjunction with the number of hours the employee can expect to work".  Finding that the reduction in salary was at least 50%, "far greater than the twenty percent threshold for unsuitability of wages codified", the Appellate Division found in favor of Mr. El-Abbasi.

The Appellate Division also made two other relevant dicta.  First, removal of a major job duty does qualify as a different type of work, even if half of the job remains the same.  Second, the outcome in this case may have been different if Mr. El-Abbasi had quit an existing contract or employment due to the reduction in hours rather than failed to accept a new contract.  It is not entirely clear how this panel would have ruled if this were a voluntary quit.

All three findings here are worthy of note for voluntary quit and refusal of suitable work claimants alike.  When arguing that offered work is unsuitable, it can be argued that either the hourly salary OR the total salary will be more than twenty percent lower than the previous employment.  NJAC 12:17-11.2(a)(2) provides: "suitability in terms of wages means eighty percent of the claimant's average weekly wage (including the value of employee benefits) during the base year."

For claimants who voluntarily quit due to a reduction in salary, however, reduction in hourly salary will still be the stronger arguments.  Additionally, a job can potentially become unsuitable due to a removal of job duties, especially if it leads to a reduction in salary.

When there is potentially an argument that an employee did not voluntarily quit his or her employment but refused a new job offer from that employer, this case certainly suggests that arguing the latter will give a greater chance of obtaining unemployment benefits.  The Appellate Division found that giving up partial employment for none is still unacceptable, but refusing partial employment for none may be acceptable.  It is also important to note that while the penalty for a voluntary quit is complete denial of benefits, a failure to accept suitable work is only a four week disqualification, so it is always to a claimant's benefit to argue that there was simply a failure to accept suitable work.

It is always great to see a pro se claimant win at the Appellate Division, and this decision should help many claimants moving forward.

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