CYNTHIA M. BLAKE VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2940-15T3

CYNTHIA M. BLAKE,

APPROVED FOR PUBLICATION

Appellant,

September 28, 2017

v.

APPELLATE DIVISION

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

and LAUREL HEALTHCARE,

LLC,

Respondents.

_______________________________________________

Submitted June 6, 2017 – Decided September 28, 2017

Before Judges Messano, Suter and Grall.

On appeal from the Board of Review,

Department of Labor, Docket No. 068,871.

South Jersey Legal Services, Inc., attorneys

for appellant (Alan W. Lesso, on the

briefs).

Christopher S. Porrino, Attorney General,

attorney for respondent Board of Review,

Department of Labor (Melissa Dutton

Schaffer, Assistant Attorney General, of

counsel; Lauren J. Zarrillo, Deputy Attorney

General, on the brief).

Respondent Laurel Healthcare, LLC has not

filed a brief.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Nearly six decades ago, the Legislature amended New

Jersey's Unemployment Compensation Law (the UCL), N.J.S.A.

43:21-1 to -56, disqualifying applicants from receiving

unemployment benefits if they "left work voluntarily without

good cause attributable to such work." Yardville Supply Co. v.

Bd. of Review, 114 N.J. 371, 374 (1989) (quoting N.J.S.A. 43:21-

5(a)). "Accordingly, benefits are available to a worker who

voluntarily leaves his job only if it [was] for 'good cause

attributable to [the] work.'" Utley v. Bd. of Review, 194 N.J.

534, 544 (2008) (quoting N.J.S.A. 43:21-5(a)). A worker who

leaves "for personal reasons, however compelling, . . . is

disqualified under the statute." Ibid.; see also Ardan v. Bd.

of Review, 444 N.J. Super. 576, 585 (App. Div. 2016) ("An

employee who leaves work for good, but personal, reasons is not

deemed to have left work voluntarily with good cause."), certif.

granted, 229 N.J. 135 (2017).

The disqualification extends from the week the employee

leaves work, "and for each week thereafter until [she] becomes

reemployed . . . works eight weeks . . . and has earned . . . at

least ten times [her] weekly benefit rate." N.J.S.A. 43:21-

5(a). The current disqualification period represents an

extension, from four to eight weeks and from six to ten times

the benefit rate, which enactment coincided with changes to

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other provisions of the UCL intended to "reduce[] unemployment

insurance (UI) tax rates" imposed on employers. L. 2010, c. 37,

§ 2; Senate Labor Comm., Statement to S. 1813 (May 10, 2010).

This appeal requires us to construe the following language

added to N.J.S.A. 43:21-5(a) in 2015, which provides the

disqualification

shall not apply to an individual who

voluntarily leaves work with one employer to

accept from another employer employment

which commences not more than seven days

after the individual leaves employment with

the first employer, if the employment with

the second employer has weekly hours or pay

not less than the hours or pay of the

employment of the first employer, except

that if the individual gives notice to the

first employer that the individual will

leave employment on a specified date and the

first employer terminates the individual

before that date, the seven-day period will

commence from the specified date.

[N.J.S.A. 43:21-5(a), as amended by L. 2015,

c. 41 § 1 (emphasis added).]

In this case, Cynthia M. Blake provided her employer,

Laurel Healthcare LLC (Laurel), with two weeks' notice that she

was leaving her position to begin working for Alaris Healthcare

(Alaris) at an increased hourly wage. Two days before she was

to start, Alaris told Blake the position was no longer

available. When Blake tried to rescind her resignation, Laurel

informed her it no longer required her in a full-time capacity.

The Deputy denied Blake's application for unemployment benefits

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because she left work voluntarily without good cause

attributable to the work. N.J.S.A. 43:21-5(a).1

The Tribunal affirmed the Deputy's decision, reasoning the

Amendment's exception applied only if Blake actually commenced

her employment with Alaris. In its final decision, the Board of

Review (the Board) agreed with the Tribunal's reasoning and

affirmed Blake's disqualification. This appeal followed.

Blake argues the plain language of the Amendment does not

impose "a commencement requirement."2 She contends the

Legislature intended "to protect a worker against a situation

where . . . she leaves one job for a better job which

subsequently falls through." The Board counters that the

Amendment's plain language required Blake to commence work with

Alaris in order for the exception to apply. It further contends

1

At the time of the hearing before the Appeal Tribunal (the

Tribunal), Blake continued to work for Laurel in a part-time

capacity, had not found full-time employment and had not yet

worked eight weeks earning the minimum of ten times her weekly

benefit rate of $325 which would otherwise requalify her for

unemployment benefits. See N.J.S.A. 43:21-5(a).

2

The Tribunal cited N.J.A.C. 12:17-9.1(e)(9) as supporting its

conclusion. That regulation provides: "An individual's

separation from employment shall be reviewed as a voluntarily

leaving work issue where the separation was for the following

reasons including . . . [t]o accept other work." We agree with

Blake that the Tribunal inexplicably engrafted language on the

regulation that does not exist. The Board concedes this point.

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the legislative history of the Amendment supports that

interpretation.

In a recent opinion, a panel of our colleagues essentially

accepted Blake's interpretation of the Amendment and rejected

the Board's. See McClain v. Bd. of Review, ___ N.J. Super. ___,

___ (App. Div. 2017) (slip op. at 2) ("We reject the Board's

interpretation and reverse, finding a claimant need not actually

start the new employment to be exempt from disqualification

under N.J.S.A. 43:21-5(a)."). We respectfully disagree with our

colleagues and conclude the Amendment's exception does not apply

unless the employee accepts employment with another employer

"which commences not more than seven days after the individual

leaves employment with the first employer." N.J.S.A. 43:21-

5(a). We therefore affirm the Board's decision.

We need not reiterate the applicable standards that guide

our review, which the panel capably explained in McClain.

McClain, supra, slip op. at 5-6. Our colleagues determined

"nothing in the plain language of the [A]mendment support[ed]

the imposition of . . . a condition" that "[the] claimant

actually commence the new employment within the seven-day

period." Id. at 10. We disagree. In our view, the plain

language of the Amendment fully supports the Board's position.

5 A-2940-15T3

The acceptance of a commensurate position with another

employer does not trigger the Amendment's exception to

disqualification. Rather, it is only the employee's acceptance

of "employment which commences not more than seven days after

the individual leaves employment with the first employer,"

N.J.S.A. 43:21-5(a)(emphasis added), that transforms otherwise

disqualifying conduct — tendering a voluntary resignation — into

an insignificant event for purposes of eligibility.

Interpreting the language of the Amendment by giving the words

their "generally accepted meaning, according to the approved

usage," N.J.S.A. 1:1-1, "which" refers to something previously

mentioned — employment accepted from another employer — and

provides further information about that employment — it

commences within seven days. Oxford English Dictionary,

www.oed.com/view/entry/228284 (last visited Sept. 18, 2017)

(defining "which" as, "[i]ntroducing a clause defining or

restricting the antecedent thus completing the sense.").

Blake would have us read the Amendment to apply whenever an

employee resigns to accept employment "which was intended to

commence" within seven days of the effective resignation date,

but never did. Simply put, we will not "insert language that

the Legislature could have included in [the Amendment] -- but

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did not." Jersey Cent. Power & Light Co. v. Melcar Util. Co.,

212 N.J. 576, 596 (2013).

Moreover, our construction gives relevancy to the second

portion of the Amendment, which provides "if the individual

gives notice to the first employer that [she] will leave

employment on a specified date and the first employer terminates

[her] before that date, the seven-day period [in which the job

commences] will commence from the specified date[,]" not the

date of termination. N.J.S.A. 43:21-5(a). Obviously, the

Legislature did not want the first employer's sudden and

unilateral decision to terminate the employee who had given

notice to adversely affect her continued eligibility for

benefits simply because the second job commenced more than seven

days later.

Blake's interpretation of the Amendment, adopted by the

panel in McClain, renders unnecessary this second part of the

Amendment. If an employee resigned, yet remained eligible for

benefits by accepting a position that was intended to commence

within seven days of her resignation date, but never did, she

would become eligible for benefits upon the date of her actual

termination. Any difference between the anticipated resignation

date and the actual termination date would be irrelevant. Basic

principles of statutory interpretation require us to "presume

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that every word in a statute has meaning and is not mere

surplusage." Jersey Cent. Power & Light, supra, 212 N.J. at 587

(quoting Cast Art Indus., LLC v. KPMG LLP, 209 N.J. 208, 222

(2012)). Blake's interpretation of the Amendment renders the

second portion nugatory.

Blake argues in her reply brief, "Logically, the failure of

the second job to commence leaves the worker in the same

position as that which occurs when the worker is laid off

shortly after the second job does commence." That may be so,

but the statement ignores the potential consequences to the two

employers and is inconsistent with the Legislature's purpose in

enacting the Amendment, as the legislative history amply

demonstrates.

The Senate Labor Committee's favorable report on S. 2802,

which became the Amendment, made clear that the bill was

intended to "make an exception" from the usual disqualification

under N.J.S.A. 43:21-5(a), "for a worker who leaves one job to

accept a subsequent job at least equal in hours or pay, but is

laid off from the subsequent job." Senate Labor Comm.,

Statement to S. 2082 (June 5, 2014) (emphasis added); see also

Assembly Labor Comm., Statement to S. 2082 (September 11, 2014)

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and Assembly Appropriations Comm., Statement to S. 2082

(February 5, 2015) (same).3

In all instances, the Committees noted that the bill would

not fiscally affect the first employer's contributions to the

unemployment compensation fund, in particular, future rates of

contribution based upon benefit experience. N.J.S.A. 43:21-

7(c)(1).

Another portion of the current law,

[N.J.S.A.] 43:21-7(c)(1), provides that an

employer's UI account is not charged for UI

benefits paid to a claimant if the

employee's employment . . . ended in any way

3

Without specificity, the Committee statements referenced

similar laws enacted by twenty-six states, and regulations

enacted in five others, that had the same purpose. Senate Labor

Comm., Statement to S. 2082 (June 5, 2014). In this appeal,

neither Blake nor the Board have cited to the laws of our sister

states, but the panel in McClain specifically considered two of

them and found the language of those statutes explicitly

provided that the employee actually commence work with the

second employer. McClain, supra, slip op. at 13 n. 3. We

cannot quarrel with our colleagues' analysis in this regard.

However, contrary to the course taken by our Legislature, a

number of other states have included explicit language that

adopts Blake's position, i.e., that commencement of employment

with the second employer was not necessary for the exemption

from disqualification to apply. See, e.g., Alaska Admin. Code

8, § 85.095 (2017) (providing that "leaving work to accept a

bona fide offer" is considered when determining "the existence

of good cause . . . for voluntarily leaving work."); Ariz.

Admin. Code § R6-3-50365 (2017) ("A worker who . . . quits

because he has prospects of other work, but no definite offer,

leaves voluntarily without good cause in connection with his

work."); Cal. Code Regs. 22 § 1256-19(c) (2017) ("An individual

who leaves work to accept other work has good cause for leaving

the work if there was a definite assurance of employment in

another substantially better job.").

9 A-2940-15T3

which would have disqualified the claimant

from UI benefits if the employee had applied

for benefits at the time when the employment

ended, including if the employee voluntarily

left work with that employer without good

cause attributable to that work. Therefore,

under those provisions of the current law,

that employer's account would not be charged

when the claimant leaves work with that

employer to accept employment from another

employer, and the claimant is, pursuant to

the provisions of this bill, paid UI

benefits after being laid off by the

subsequent employer, even if the first

employer paid wages to the claimant during

the claimant's base year.

[Senate Labor Comm., Statement to S. 2082

(June 5, 2014); Assembly Labor Comm.,

Statement to S. 2082 (September 11, 2014);

Assembly Appropriations Comm., Statement to

S. 2082 (February 5, 2015) (emphasis

added).]4

4

N.J.S.A. 43:21-7(c)(1) provides:

[A]n employer's account shall not be charged

for benefits paid to a claimant if the

claimant's employment by that employer was

ended in any way which, pursuant to

subsection (a), (b), (c), (f), (g) or (h) of

[N.J.S.A.] 43:21-5, would have disqualified

the claimant for benefits if the claimant

had applied for benefits at the time when

that employment ended. Benefits paid under

a given benefit determination shall be

charged against the account of the employer

to whom such determination relates. When

each benefit payment is made, notification

shall be promptly provided to each employer

included in the unemployment insurance

monetary calculation of benefits. Such

notification shall identify the employer

against whose account the amount of such

payment is being charged, shall show at

(continued)

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The sponsor of S. 2802, Senator Fred H. Madden, was more

explicit:

The bill also provides that an employer's

account will not be charged for UI benefits

paid to a claimant even if: the employer

paid wages to the claimant during the

claimant's base year; the claimant leaves

work with that employer to accept employment

from another employer; and the claimant is

paid UI benefits after being laid off by the

subsequent employer.

[Sponsor's Statement to S. 2802 (May 19,

2014) (emphasis added).]

The Office of Legislative Services (OLS) was asked to

consider the fiscal impact of S. 2802 upon the unemployment

insurance trust fund. In recognizing the difficulty of the

task, OLS noted "there is no data available . . . to quantify

the number of these claimants who had secured future employment

and then were subsequently laid off from the new employment."

Office of Legis. Servs., Legislative Fiscal Estimate to S. 2802

(June 19, 2014) (emphasis added).

The Senate Labor Committee's June 5, 2014 hearing makes

clear that committee members intended to protect an employee who

actually "assume[s] . . . new employment within seven days."

(continued)

least the name and social security account

number of the claimant and shall specify the

period of unemployment to which said benefit

payment applies.

11 A-2940-15T3

Senate Labor Comm. Hearing on S. 2082, (June 5, 2014) (statement

by Senator Madden), http://www.njleg.state.nj.us/media/archive_a

udio2.asp?KEY=SLA&SESSION=2014. The legislators wanted that

employee's eligibility for benefits to carry forward, rather

than cause the eligibility "clock" to "reset to zero" once the

employee started work with the second employer. Ibid.

Finally, as a practical matter, the first employer, in this

case, Laurel, who did nothing to cause Blake to quit, is ill-

equipped to rebut any claim for benefits. We logically assume

that most offers of other employment are not reduced to writing.

Therefore, an employer who participates in a hearing before the

Appeal Tribunal can only testify to what is undisputed, i.e.,

that the employee quit her position. It is unlikely that the

employer could call the second employer, who is not a respondent

to the employee's appeal and may be unknown, as a witness to

challenge whether the claimant actually had received an offer of

employment and what were its terms. Despite this disadvantage,

the first employer would bear the financial consequences of any

benefits awarded. N.J.S.A. 43:21-7(c)(1).

In short, we conclude the plain language of the Amendment,

as well as its legislative history, support the conclusion that

it applies only if the employee voluntarily leaves employment

and actually "commences" employment with a second employer.

12 A-2940-15T3

Affirmed.

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