Yisroel Pick v. Board of Review

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2250-23

YISROEL PICK,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR, and

PANDEMIC UNEMPLOYMENT

ASSISTANCE,

Respondents.

____________________________

Argued September 16, 2025 – Decided October 8, 2025

Before Judges DeAlmeida and Torregrossa-O'Connor.

On appeal from the Board of Review, Department of

Labor, Docket No. 307625.

Larry S. Loigman argued the cause for appellant.

Gina Labrecque, Deputy Attorney General, argued the

cause for respondents (Matthew J. Platkin, Attorney

General, attorney; Janet Greenberg Cohen, Assistant

Attorney General, of counsel; Gina Labrecque, on the

brief).

PER CURIAM

Claimant Yisroel Pick appeals from the February 14, 2024 final agency

decision of the Board of Review, New Jersey Department of Labor (Board),

affirming a decision of the Appeal Tribunal finding claimant disqualified for

Pandemic Unemployment Assistance (PUA) under the Coronavirus Aid, Relief,

and Economic Security (CARES) Act, 15 U.S.C. §§ 9001-9141, and, as a

consequence, required to refund the $11,730 in benefits already received. After

reviewing the record in light of claimant's argument that he was deprived of due

process, we affirm.

I.

The following procedural summary is undisputed. Claimant, self-

described as an unemployed "gig worker," filed for PUA on September 13, 2020.

He was thereafter provided benefits for the weeks ending September 19, 2020,

through September 4, 2021. By notice mailed to claimant on August 29, 2022,

the Director of the Division of Unemployment Insurance advised claimant's

benefits had been adjusted as he was not eligible for unemployment benefits and

provided direction concerning the "Appeal Procedure." 1

1

The copy of the notice provided in claimant's appellate appendix reflects only

the front of the document, which states that information concerning the

ineligibility determination was "listed on the back of th[e] form."

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2

Counsel for claimant sent a letter appealing the ineligibility

determination, requesting a "complete copy" of claimant's file, and advising that

claimant could not determine the basis for the ineligibility decision. Counsel

also requested a hearing before the Office of Administrative Law (OAL).

On October 20, 2022, the hearing proceeded before the Appeal Tribunal,

telephonically, with claimant and his counsel appearing. The hearing examiner

advised that he would conduct an inquiry of claimant, after which claimant could

provide any additional testimony or information and claimant's counsel could

ask questions. Before testimony commenced, claimant's counsel indicated he

had not received "discovery," and the hearing examiner responded that there was

"no discovery" other than the "unemployment determination which the claimant

appealed from."

Counsel requested "the factual basis for that determination," and the

hearing examiner indicated that information had been sent to claimant who

"should have this determination in his possession." After offering to read from

the determination decision, the hearing officer clarified that there was a second

notice sent on August 29, 2022, in addition to the "non-fraud refund notice."2

2

The second notice was not included in the record on appeal; however, counsel

for the Board represented at argument before us that the second notice was "in

the record " before the Appeal Tribunal.

A-2250-23

3

When claimant indicated he did not believe he received the second notice,

the hearing examiner offered to "mail" the notice to counsel and claimant and

stated "that's not a problem at all if you want to look at it." Claimant's counsel

indicated he did "not know that . . . establishe[d] anything," and "[a] computer

generated form . . . is not evidential."

In response, the hearing examiner again expressly inquired, "[w]e're going

back and forth there. I mean, do you want me to . . . dismiss the hearing without

prejudice or postpone, so you can look at the determination? That's all I can do

at this point. Or do you want to have the claimant move forward?" Claimant's

counsel declined an adjournment and instead indicated, "[t]he claimant is going

to testify that he does not owe anything to the [S]tate, and that is the only

testimony you will have before you. . . . [T]here is no evidence before you to

sustain the [S]tate's position." The hearing examiner then clarified, "[s]o do you

want to move forward today?" to which counsel responded, "I want to move

forward on the basis that this claim by the [S]tate for a refund has to be

dismissed."

Before claimant testified, the hearing examiner made clear that the notice

had advised that claimant was ineligible for PUA "on the ground that the

claimant was considered not attached to the labor market."

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4

Claimant then testified that at the time he filed for PUA in September

2020, he was not employed full time, but "was doing jobs here and there," in

what he termed "odd jobs" and "gig working." When asked, he could not provide

the date of his last job before filing his claim and offered no names of employers

or specific instances of work performed. Although he stated he would "deliver

things to people," "driv[e]," or "work[] when people need[ed] an extra hand," he

could not estimate his earnings and, when pressed, indicated "some jobs are

smaller, some were bigger," arriving at "a couple hundred." He added that he

worked "in warehouses before." Claimant testified he did not "work for any

actual companies in 2019 or 2020 under a W-2 tax status," and "was not sure" if

he filed taxes for that time period. Although he indicated he filed his claim in

2020 because it was "much harder to find work," he once again asserted he could

not estimate the last time he worked before filing the claim.

Claimant's counsel then indicated he had no questions of claimant other

than to ask whether he received a second notice that reflected the reasons for his

ineligibility. Claimant responded that "it was a few months ago" and he

"guess[ed he did not] remember ever seeing anything despi[t]e that one letter."

In closing, counsel explained that claimant was "not even employed on a part-

time basis," working only "intermittent[ly]," but offered no evidence of that

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5

employment, the employer, or the dates claimant performed that work, and

requested no opportunity to supplement the record with such information.

The Appeal Tribunal issued its decision on October 20, 2022, and found

claimant [could] not recall the approximate date that he

most recently performed any type of work as a delivery

driver. The claimant ha[d] no recollection if he filed

taxes while performing this type of work. The claimant

chose to file his PUA claim because he was having

difficulty finding employment.

The Tribunal further recognized:

The individual must meet the requirements under

Section 2102 (a)(3)(A)(ii)(I) of the CARES Act and

have an attachment to the labor market and experienced

a loss of wages and hours or was unable to start

employment following a bona fide job offer due to

COVID-19. In this case, the claimant has not met the

burden of proof to show that he was genuinely attached

to the labor market. Without specifics regarding his tax

documents as a gig worker, or the potential dates of his

delivery driving payroll records, it is apparent that the

claimant was not involved in the labor market prior to

his claim being filed. Hence,[ ]the claimant is

ineligible for PUA benefits from 09/13/20 through

09/04/21, under section 2102 of the . . . [CARES] Act.

Thus, the Tribunal affirmed the claimant's ineligibility determination and found

him liable for a refund in the amount of "$11,730[] received as benefits for the

weeks ending 09/19/20 through 09/04/21, in accordance with N.J.S.A. 43:21 -

16(d)."

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Claimant, through counsel, filed an administrative appeal, reprising the

due process argument made before the Appeal Tribunal. On February 14, 2024,

the Board affirmed the ineligibility determination. The Board determined

claimant was afforded "a full and fair impartial hearing," finding "no valid

ground for a further hearing." It added:

Claimants who have no earnings (in either covered or

self-employment) in 2019/2020 (prior to the

pandemic), or did not have a bona fide offer of work

that was disrupted due to the pandemic, are ineligible

for PUA. Since no evidence of the claimant's

attachment to the labor market has been presented as

required, the claimant does not meet the eligibility

requirement for eligibility for . . . [PUA] benefits.

II.

Claimant now appeals arguing he "was denied procedural due process."

He contends the procedure was flawed as he "was ordered to return [benefits

already paid to him] without any factual or legal basis being articulated." 3

"We review a decision made by an administrative agency entrusted to

apply and enforce a statutory scheme under an enhanced deferential standard."

3

To the extent claimant argues his administrative appeal should have been

transmitted to the OAL, his contention lacks sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only N.J.S.A.

43:21-6(d) expressly directs appeals from the denial of benefits to the Appeal

Tribunal.

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7

E. Bay Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493

(2022). Accordingly, "we will disturb an agency's adjudicatory decision only

upon a finding that the decision is 'arbitrary, capricious or unreasonable,' or is

unsupported 'by substantial credible evidence in the record as a whole.'"

Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Super. 147, 155-56 (App. Div.

2022) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The

burden to show an agency's abuse of discretion "is on the challenger." Parsells

v. Bd. of Educ., 472 N.J. Super. 369, 376 (App. Div. 2022).

"[I]n reviewing the factual findings made in an unemployment

compensation proceeding, the test is not whether an appellate court would come

to the same conclusion if the original determination was its to make, but rather

whether the factfinder could reasonably so conclude upon the proofs." Brady v.

Bd. of Rev., 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Rev., 200 N.J.

Super. 74, 79 (App. Div. 1985)). Further, we afford "[w]ide discretion . . . to

administrative decisions because of an agency's specialized knowledge." In re

Request to Modify Prison Sentences, 242 N.J. 357, 390 (2020); see also

Sullivan, 471 N.J. Super. at 156.

"Claimants bear the burden of proof to establish their right to

unemployment benefits." Brady, 152 N.J. at 218. Congress enacted the CARES

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Act as a vehicle to afford PUA benefits to certain "covered individual[s]"

otherwise ineligible for regular unemployment benefits during the pandemic,

but who can establish they have become unemployed for one of the COVID-19-

related reasons listed in the statute. Sullivan, 471 N.J. Super. at 153; see also

15 U.S.C. § 9021. A covered individual is one who:

(i) is not eligible for regular compensation or extended

benefits under State or Federal law or pandemic

emergency unemployment compensation under section

9025 . . . including an individual who has exhausted all

rights to regular unemployment or extended benefits

under State or Federal law or pandemic emergency

unemployment compensation under section 9025 . . . .

(ii) provides self-certification that the individual—

(I) is otherwise able to work and available for

work within the meaning of applicable State law,

except the individual is unemployed, partially

unemployed, or unable or unavailable to work

because—

(aa) the individual has been diagnosed with

COVID-19 or is experiencing symptoms of

COVID-19 and seeking a medical

diagnosis;

(bb) a member of the individual's

household has been diagnosed with

COVID-19;

(cc) the individual is providing care for a

family member or a member of the

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individual's household who has been

diagnosed with COVID-19;

(dd) a child or other person in the

household for which the individual has

primary caregiving responsibility is unable

to attend school or another facility that is

closed as a direct result of the COVID-19

public health emergency and such school

or facility care is required for the

individual to work;

(ee) the individual is unable to reach the

place of employment because of a

quarantine imposed as a direct result of the

COVID-19 public health emergency;

(ff) the individual is unable to reach the

place of employment because the

individual has been advised by a health

care provider to self-quarantine due to

concerns related to COVID-19;

(gg) the individual was scheduled to

commence employment and does not have

a job or is unable to reach the job as a direct

result of the COVID-19 public health

emergency;

(hh) the individual has become the

breadwinner or major support for a

household because the head of the

household has died as a direct result of

COVID-19;

(ii) the individual has to quit his or her job

as a direct result of COVID-19;

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(jj) the individual's place of employment is

closed as a direct result of the COVID-19

public health emergency; or

(kk) the individual meets any additional

criteria established by the Secretary for

unemployment assistance under this

section.

[15 U.S.C. § 9021(a)(3)(A).]

N.J.S.A. 43:21-16(d) expressly provides that, absent waiver in certain

circumstances, any person having received benefits when ineligible "shall be

liable to repay those benefits in full." When a claimant is determined ineligible

for benefits and liable for repayment, that decision will not be disturbed unless

it is "'arbitrary, capricious or unreasonable,' or is unsupported 'by substantial

credible evidence in the record as a whole.'" Sullivan, 471 N.J. Super. at 155-

56.

It is well-settled that due process requires that a claimant seeking

unemployment benefits "must be given a real chance to present his or her side

of the case before a government decision becomes final." Rivera v. Bd. of Rev.,

127 N.J. 578, 583 (1992). This includes "notice defining the issues and an

adequate opportunity to prepare and respond." McKeown-Brand v. Trump

Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (citing Nicoletta v. N. Jersey

Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978)).

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"Administrative hearings in contested cases must 'operate fairly and

conform with due process principles.'" In re Kallen, 92 N.J. 14, 25 (1983)

(quoting Laba v. Bd. of Educ. of Newark, 23 N.J. 364, 382 (1957)). However,

such hearings "may conform to procedural due process standards that are less

restrictive than those imposed in court proceedings." Id. at 26. "As long as

principles of basic fairness are observed and adequate procedural protections

afforded, the requirements of administrative due process have been met." Kelly

v. Sterr, 62 N.J. 105, 107 (1973); see also In re Freshwater Wetlands Statewide

Gen. Permits, 185 N.J. 452, 466-67 (2006) (recognizing in State actions, "due

process is a flexible and fact-sensitive concept," and "a function of what reason

and justice require under the circumstances").

We are not persuaded that claimant was deprived of notice and an

opportunity to prepare and respond to the PUA ineligibility determination and

demand for repayment. Claimant was provided notice of his ineligibility

determination and his right to appeal that determination. He was then afforded

a hearing with respect to the question of his eligibility for unemployment

compensation benefits. Claimant was represented by counsel and offered the

opportunity to present evidence of claimant's eligibility but declined to do so.

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Although claimant's counsel repeatedly contended claimant had not

received the notice detailing the basis for the Board's determination that

claimant did not qualify for PUA benefits, he neither requested an adjournment

in advance of the hearing nor accepted the offer by the hearing examiner to

postpone or dismiss the appeal to afford claimant the opportunity to review the

ineligibility decision and prepare for the hearing. Instead, claimant and his

counsel insisted the proceeding move forward, even after they were advised at

the hearing that claimant's ineligibility derived from his failure to establish a

sufficient prior connection to the workforce. Claimant considered and declined

the hearing examiner's offer to postpone the proceeding to provide a meaningful

opportunity to review and prepare for the hearing at a later date. In these

circumstances, we are satisfied claimant received the process to which he was

due.

Claimant elected to proceed and provide testimony devoid of any

specificity as to his last date of employment, his last employer, or his taxes filed

or paid, if any. He presented no proof of prior employment at the hearing or at

any stage of the process. Accordingly, we will not disturb the Board's

determination, sufficiently rooted in the record, as we discern nothing arbitrary,

capricious, or unreasonable about the Board's determination that claimant was

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not entitled to PUA benefits and liable for return of the payments improperly

received.

Affirmed.

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