Alan Schorr’s Employment Case of The Week ending August 30, 2013

This week, our firm achieved its fourth big appellate victory this year and second published unemployment opinion in a row. Zachary Wall, our unemployment maven, wrote the briefs on both appeals and argued this week’s Case of the Week, Alicea v. Board of Review.

Genaro Alicea, who speaks only Spanish, worked seasonally in the U.S. as a roofer. In November 2009, the Division of Unemployment Insurance mailed him a notice assessing $17,802.50 in purportedly fraudulently obtained benefits dating from 2004-2008. The notices were sent to his home address, a post office box on a rural route in Bayamon, Puerto Rico. The entire notice was in English except for one paragraph titled “Appeal Procedure”, which was translated into Spanish. The notice also stated in Spanish a sentence that translates to, “ If you do not speak English, please ask someone to translate this form immediately.”

A week after receiving the notice, Mr. Alicea traveled to New Jersey where he was assisted by two people who translated for him and immediately prepared an appeal, which was sent 34 days after the determinations had been mailed from New Jersey and only a few days later than the 10 day time limit from the date of receipt imposed by the Department of Labor. The Department of Labor held an Appeal Tribunal hearing, which only focused on why the appeal was filed late. The examiner determined that there was not good cause for the late filing and refused to take any testimony on the merits of Mr. Alicea’s appeal. The rest of the tortured procedural history is not included in the Appellate opinion, but we can reveal it here.

Mr. Alicea appealed to the Board of Review, which simply rubber-stamped the Appeal Tribunal’s rejection. Ms. Alicea hired our firm to file the Appellate Division appeal. After the appeal and Mr. Alicea’s brief was filed, the Board of Review relented and filed a motion requesting a remand so that Mr. Alicea could be afforded a second hearing. We thought everything would be rectified. Wrong. The Appellate remanded, retaining jurisdiction. The Board of Review remanded to the Appeal Tribunal, which assigned the case to the same examiner, Michael Grande. At the second hearing, Mr. Grande again refused to take any testimony on the merits, again ruling that the appeal was untimely. It went back up to the Appellate Division.

The Appellate Division ruled that the procedures used by the Board of Review had denied Mr. Alicea due process. First, the Court followed the N.J. Supreme Court case of Rivera v. Board of Review, 127 N.J. 578, 588-89 (1992), which held that “English-only notices sent to migrant farm workers in Puerto Rico [are not] reasonably calculated to provide those persons with a[n] adequate notice.” Furthermore, the Appellate Division cited a passage of Rivera which scolded the Board of Review for its unnecessarily strict adherence to time limits, especially under such circumstances:

On the other hand, little explains the inflexible application of the ten-day time limit on appeals. The Department has four years within which to recoup payments that were wrongly made. Moreover, the general need to expedite eligibility decisions does not apply to recoupment. The cost of the hearing on the merits that the Department denied to Rivera is reimbursed by the federal government. 26 U.S.C. § 3301–09. And as the procedural history of this case illustrates, claimants who file late appeals receive hearings but are then not allowed to raise substantive issues. No fewer administrative resources would have been expended had the Department allowed Rivera an appeal on the merits. Id.

The Appellate reversed and remanded for a hearing on the merits, holding that, “the practice of only translating information about the timeline for filing an appeal, without translating the underlying substantive decision, is contrary to a requirement of fairness.” The Appellate Division concluded:

A fundamental underpinning of fairness in any appellate system is the communication of the actual decision made. How can a litigant decide whether to file an appeal if he does not know what was decided? It would have been simple enough to translate the determinations entirely into Spanish. Each determination may have then become two pages rather than one, but what a small price to pay to ensure comprehension by the affected party.

The ultimate results of this ruling remain to be seen. The Board of Review did not follow the direction of the Supreme Court in 1992, and this opinion is unlikely to have much effect either. The Board of Review will likely interpret the case to mean that if they have another Spanish roofer living in Puerto Rico, they should translate into Spanish. But the Department of Labor knows that unemployed people rarely have the resources to retain counsel for unemployment appeals, and there are very few law firms that handle such matters.

I believe that we are the busiest unemployment law firm in the State, handling such claims every day. But we only handle a fraction of one percent of the unemployment claims filed. I believe that the Department of Labor views it as more cost-efficient to lose a few of these claims a year rather than incur the expense to actually provide due process to New Jersey’s unemployed workers. Such an attitude is contrary to the fundamental purposes of government and directly at odds with our Constitutional rights. I believe that the Appellate Division understands exactly what is happening, and that is why this opinion was published. In the meantime, we will continue to fight for due process rights for the unemployed.

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

Respondent’s counsel: Ellen A. Reichart, D.A.G., for the Attorney General.

Appellate Division Judges: Grall, Simonelli and Koblitz (opinion by Koblitz).