Alan Schorr’s Case of The Week ending April 25, 2013

Lin v. Board of Review, 2014 N.J. Super. Unpub. LEXIS 940 (App. Div. April 25, 2014) (unpublished)=

Our firm won another big appellate victory against the Board of Review. This is our second victory this month (seeRadich v. Bd. of Review, 2014 N.J. Super. Unpub. LEXIS 737 (App. Div. April 3, 2014). The Lin case is especially important because the Appellate Division held that the Board of Review may not upgrade a disqualification without giving written notice within 10 days of the decision by the Appeal Tribunal that they intend to consider other possible disqualifications.

Jimmy Lin worked at Wegmans. It was alleged by Wegmans that Mr. Lin got in an argument with a co-worker and was shouting at him in Mandarin. Mr. Lin spoke very little English, which led to several misunderstandings with his co-workers. Mr. Lin was terminated by Wegmans, which claimed that Lin had been previously warned about similar behavior. Mr. Lin was initially partially disqualified for unemployment benefits for eight weeks for simple misconduct and appealed. At the Appeal Tribunal hearing, the third-party representative for Wegmans stated that Mr. Lin had raised his fist at the co-worker, but her proffer was disregarded by the examiner because she was not an eyewitness. The eyewitness for Wegmans testified only that Mr. Lin was excitedly waving his arms.

The Appeal Tribunal upheld the finding of simple misconduct and provided Mr. Lin the decision in English. They also provided Mr. Lin with the Notice of his appeal rights, which was written only in English and Spanish. Although the disqualification was only an eight week delay in payment, Mr. Lin did not believe that he had engaged in misconduct, and not fully understanding the Notice of Appeal, which was incomprehensible even to someone speaking English, he appealed to the Board of Review.

The Board of Review accepted the factual findings made by the Appeal Tribunal, but then decided to accept the proffer of the non-witness third party representative. Based upon their additional factual finding that Lin has raised his fist and further finding that Lin had a previous write-up, the Board of Review decided to upgrade the disqualification to severe misconduct. This meant that Mr. Lin’s continuing benefits stopped, and he received a notice from the Department of Labor demanding that he refund the entirety of what he had collected to date. Mr. Lin then hired us to file his Appellate Division appeal.

The Appellate Division reversed. The per curiam decision by Judges Waugh and Accurso reversed on the basis that, although Mr. Lin was argumentative, there was no testimony that would support a finding that Mr. Lin’s actions were “malicious”, a requirement for a finding of misconduct. The Appellate Division found the Board’s decision to be arbitrary and capricious and reinstated the original finding of simple misconduct. The Appellate Division did not explain why, if there was no evidence of malice, Mr. Lin was still assessed the partial disqualification of simple misconduct, which also requires a finding a malice.

The news in this case appeared in the concurring opinion. It is rare to see a concurring opinion in a two judge opinion, but Judge Waugh wrote separately to address the due process arguments. First, the Judge found that the Board of Review’s Notice was deficient because it was not provided in Mr. Lin’s language of Mandarin. In addition, the opinion takes issue with whether the Board of Review had the authority to sua sponte upgrade the penalty at all. The Court pointed out that, pursuant to N.J.S.A. 43:21-6(c) and N.J.A.C. 12:20-4.5(a), the Board of Review, must, within ten days of the Appeal Tribunal decision, notify a Claimant if it will be considering a different issue than that decided by the Appeal Tribunal. That means that the Board of Review must make this Notice ten days before the Claimant is required to even file his or her appeal.

This decision follows a line of recent cases holding the Board of Review responsible for not providing due process and for not treating claimants fairly. Hopefully, these opinions will cause the Board of Review to finally adopt regulations properly defining “severe misconduct” and to provide proper appeal notices, but we are not holding our breath.

Claimant/Appellant’s counsel: Zachary R. Wall and Alan H. Schorr, Alan H. Schorr & Associates, P.C.

Board of Review’s counsel: Peter H. Jenkins, Deputy Attorney General, John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General.

Appellate Judges: Accurso and Waugh (on the concurring opinion).