FANG LIU VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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- 5896-17T3

FANG LIU,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR, and

VINTAGE PHARMACEUTICALS,

LLC,

Respondents.

______________________________

Argued December 9, 2019 – Decided February 10, 2020

Before Judges Sumners and Natali.

On appeal from the Board of Review, Department of

Labor, Docket No. 133,296.

Kevin J. Mahoney argued the cause for appellant

(Kreindler & Kreindler, LLP, attorneys; Fang Liu, on

the pro se briefs).

Jana Rene DiCosmo, Deputy Attorney General, argued

the cause for respondent (Gurbir S. Grewal, Attorney

General, attorney; Melissa Dutton Schaffer, Assistant

Attorney General, of counsel; Jana Rene DiCosmo, on

the brief).

Respondent Vintage Pharmaceuticals, LLC, has not filed

a brief.

PER CURIAM

Appellant Fang Liu challenges the final agency decision of the Board of

Review of the Department of Labor and Workforce Development (Board)

affirming the decision of the Appeal Tribunal disqualifying her for

unemployment benefits from December 6, 2015 to July 16, 2016. Because there

is credible evidence in the record to support the Board's determination that Liu

was ineligible for benefits during that period due to her failure to comply with

reporting requirements in accordance with the Division of Unemployment

Benefits (Division) regulations, we affirm.

I

The administrative record reveals the following relevant procedural

history and facts. Liu, whose primary language is Chinese, worked for Vintage

Pharmaceuticals, LLC, as a full-time Principal Research Scientist from

September 2014 until the company ceased operations on November 13, 2015.

Two days after she became unemployed, Liu filed a claim for unemployment

benefits with the Division over the internet, establishing a weekly benefit rate

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of $646. Liu was notified that before she could collect her benefits, she had to

participate in a telephone interview with a claims examiner. She subsequently

received notice by mail scheduling her telephone interview for December 1 at

1:40 p.m. The notice also instructed her to continue reporting to the Division

even if the interview did not occur.

On December 1, a claims examiner telephoned Liu twice, at 1:45 p.m. and

2:15 p.m. The first attempt went straight to Lui's voice message, so the claims

examiner left a message for her stating he would call her again around thirty to

sixty minutes later. During the second attempt to interview, Liu's phone rang

but there was no answer, so the claims examiner left a second voice message

advising her that she could call the Division at the phone number he provided to

reschedule her interview. Both of the claims examiner's calls were recorded by

the Division. Liu maintains she was talking on the phone around twenty minutes

before the scheduled interview time, and when she hung up, she noticed a voice

message left by the claims examiner stating the interview was cancelled and

would be rescheduled.

According to Liu, she called the phone number left by the claims

examiner, and later received a notice in the mail scheduling another interview

for a date in February 2016. Prior to that scheduled interview, Liu claims she

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received another voice message from the Division cancelling the interview and

giving her instructions on how to reschedule the interview. Liu contends she

followed the instructions, but the interview was not rescheduled. She did not

produce a copy of the notice scheduling an interview in February 2016, claiming

she threw it away. The Appeal Tribunal has no record of a notice scheduling an

interview with Liu in February 2016.1

Between March and June 2016, Liu testified she attempted to contact the

Division by telephone around five or six times but could not reach anyone due

to the high volume of phone calls made to the Division. She also claimed she

tried to contact the Division via its online system to no avail. Liu did not visit

a local Division office during that time because she contended the original notice

she received did not advise her to do so.

Eventually, during the second week of July, Liu went to a local office

where she reopened her dormant claim for benefits. The Deputy Director of the

1

In its written decision, the Appeal Tribunal found Liu contacted the Division

on February 1, 2017 to reschedule a telephone interview for February 24, 2017.

(Emphasis added). At argument, we requested supplemental information to

confirm the accuracy of that date to reconcile it with the record. The Board

advised that Liu scheduled an interview for that date after she had exhausted

benefits from her initial November 15, 2015 claim. At her 2017 interview, Liu

revealed she received a severance package from her employer of approximately

$96,144.23, which prompted the Division to determine whether the

compensation affected Liu's entitlement to benefits.

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Division (Deputy) determined she was ineligible to receive benefits from

November 15, 2015 through July 16, 2016, because she failed to contact the

Division every two weeks during that time period in accordance with Division

regulations. Liu administratively appealed the Deputy's decision to the Appeal

Tribunal arguing she had good cause for failing to report because the agency's

system blocked her telephone and internet access to the Division, and later she

argued language barriers complicated the matter.

During the administrative remand, Liu's counsel contacted the Appeal

Tribunal requesting any notes, instructions, or suggested questions proffered by

the Board to the Appeal Tribunal. The record includes an undated unsigned

response, presumably from the Board, stating:

It has come to our attention that in a matter in which the

Board has issued an order of remand for additional

testimony, you have requested that the appeals

examiner provide you with a copy of the Board . . .

worksheet.

We have gone down this road before. Over the years,

you have raised this issue again and again and our

response has always been the same. The Board, by the

wording of its remand order, indicates in general terms

to the parties the reason for the need for additional

testimony. However, the Board's worksheet, in which

it gives instructions and sometimes suggestions to the

hearing officer as how to proceed is, as you are aware,

off limits to both claimants and employers.

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Pursuant to N.J.S.A. 43:21-10(d), the Board supervises

the work of the . . . Tribunal. Moreover, decisions of

the . . . Tribunal that are not appealed become decisions

of the Board. . . . N.J.S.A. 43:21-6(c). Consequently,

the appeal tribunals are creatures of the Board, and our

instructions to the appeal examiners by means of our

worksheets are directions to our subordinates, and

hence, privileged communications not subject to

disclosure to the parties in a benefit dispute.

The Appeal Tribunal found Liu was eligible for benefits from November

15, 2015 through December 5, 2015, but ineligible from December 6, 2015

through July 16, 2016. After twice ordering the case to be remanded for further

fact finding, the Board eventually adopted the Appeal Tribunal's decision.

Citing N.J.A.C. 12:17-4.1 and N.J.A.C. 12:17-4.3(b), the Appeal Tribunal

determined Liu made an effort to report during the period of November 15, 2015

to December 5, 2015, but lacked good cause for failing to report from December

6, 2015 through July 16, 2016. In finding Liu ineligible for that period, the

Appeal Tribunal stated:

The evidence presented in this matter does not show

that [Liu] had good cause for failure to claim benefits

as instructed. [Liu] admitted she received the telephone

interview notice from the Division prior to the

scheduled interview time. She also testified that she

read the interview notice. The interview notice clearly

states the individual must continue claiming benefits

while awaiting the telephone interview.

....

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[Liu] contended that she attempted to call the . . .

Division from [March 2016] through [June 2016], but

her contention is rejected. There was no record or proof

provided that attempts were made. Therefore, [Liu] is

ineligible for benefits from [December 6, 2015] through

[July 16, 2016], as she failed to comply with the

reporting requirements of the Division, in accordance

with N.J.A.C. 12:17-4.1.

[Liu] was given an opportunity to provide her phone

records as evidence that she attempted to claim benefits

during the period in question. [She] did not provide

these records and has not met her burden of proof.

[Liu's] contention is that there was an English barrier

and [she] had difficulty understanding the procedure to

claim benefits via phone or internet. It was [her]

responsibility to report to the unemployment office and

seek assistance in order to remain in reporting status.

This appeal ensued.

II

Before us, Liu contends she is entitled to benefits from December 6, 2015

through July 16, 2016 because the Board failed to apply the correct test for

finding she had not established good cause for failing to report to the Division.

She contends her uncontradicted testimony meets her burden of proof to show

that she attempted to report during this time period but was thwarted by the

agency's reporting system. To support her good cause claim that she was

substantially prevented from reporting through no act of her own, Liu cites

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Rivera v. Bd. of Review, 127 N.J. 578, 580-81, 589-90 (1992) (holding the

Department of Labor's repayment notification process was inadequate to protect

the due process right to appeal the denial of unemployment benefits of a non-

English speaking migrant farmworker who lived in Puerto Rico five months a

year) and Garzon v. Bd. of Review, 370 N.J. Super. 1, 7-8,10 (App. Div. 2004)

(remanding to the Board to allow claimant to show good cause why she filed a

late appeal of the Board's dismissal of her claim given the inadequate notice to

her that she could present good cause for her late filing).2 Liu further claims the

finding that it was her responsibility to obtain assistance was unlawful because

she is a native Chinese speaker and claims to have Limited English Proficiency

(LEP). Finally, she argues the Board's use of confidential communications to

the Appeal Tribunal violated state law and her constitutional rights.

In opposition, the Board argues it was unreasonable for Liu to wait six

months without receiving benefits to finally report to the Division in person in

July 2016, and her language proficiency argument is undercut by her own

testimony that she read the interview notices, followed all the instructions, and

was not confused about the reporting process. As to Liu's argument regarding

2

Liu also relies on an unpublished decision, which in accordance with our rules

has no precedential value. R. 1:36-3.

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confidential communications between the Board and the Appeal Tribunal, the

Board contends her assertions are based on documents which may be privileged

and therefore are outside the scope of this appeal.

The unemployment benefits sought by Liu are pursuant to the

Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -24.30, social

legislation enacted to provide benefits to qualified individuals for periods of

unemployment so they can maintain purchasing power and limit the serious

social consequences of poor relief assistance. N.J.S.A. 43:21-2. In order to be

eligible for benefits under the UCL, an unemployed person must file a claim

with the Division and continue to report to the Division "in accordance with

such regulations as the [D]ivision may prescribe." N.J.S.A. 43:21-4.

After a person has filed a claim for benefits, the Division is directed to

examine the claim and contact the claimant's last employer in order to determine

eligibility under the UCL. N.J.S.A. 43:21-6(b)(1). If an employer fails to

respond, the Division "shall rely entirely on information from other sources,

including an affidavit to the best of the knowledge and belief of the claim ant

with respect to his wages and time worked." Ibid. The Division is directed to

withhold making an initial determination until "all necessary information" is

obtained. Ibid. "If an initial determination cannot be made due to the lack of

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documentation, notification will be sent to the claimant providing a status of the

claim." Ibid.

The Division's regulations prescribe initial interviews with the claimant

for benefits in order to provide:

(1) Notice of the benefits and services available

pursuant to the provisions of this . . . [UCL] . . . ; and

(2) A review of the individual's rights and

responsibilities with respect to the unemployment

compensation, including an explanation of the appeal

process and of the worker profiling system and its

possible impact on the individual.

[N.J.S.A. 43:21-4.1(b)(1)-(2).]

Thereafter, it is required that:

(a) Individuals shall report as directed by the Division

as to date, time, and place in person, by telephone, by

mail, via an Internet application or as the Division may

otherwise prescribe.

(b) An individual who fails to report as directed will be

ineligible for benefits unless, pursuant to a fact-finding

hearing, it is determined that there is "good cause" for

failing to comply. For the purposes of this subchapter,

“good cause” means any situation which was

substantial and prevented the claimant from reporting

as required by the Division.

[N.J.A.C. 12:17-4.1.]

Additionally, N.J.A.C. 12:17-4.3 provides:

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(e) An individual must be in continuous reporting status

to be eligible for unemployment benefits. Once an

individual is ineligible for benefits because of his or her

failure to comply with reporting requirements for a

designated benefit period, he or she may reassert his or

her claim for later weeks of unemployment only if the

individual contacts the Division within 14 days of the

subsequent two-week designated benefit period. An

individual who is ineligible for the second designated

benefit period for failure to comply shall continue to be

ineligible for benefits until such calendar week in

which he or she reports or otherwise contacts the

Division to claim benefits.

....

(h) A claimant who fails to comply with reporting

requirements by any method directed by the Division

shall report to the Division to claim benefits. Unless the

claimant has "good cause," as defined in N.J.A.C.

12:17-4.1, for failing to report timely by the method

directed by the Division, the claimant shall be ineligible

for benefits for the designated benefit period.

We discern no reason to conclude the Board misapplied these guidelines,

or its ruling was not supported by credible evidence that Liu was ineligible for

benefits from December 6, 2015 through July 16, 2016, because she failed to

show good cause for not reporting to the Division during this period . See Ardan

v. Bd. of Review, 231 N.J. 589, 605 (2018) (ruling we are "in no way bound by

the agency's interpretation of a statute or its determination of a strictly legal

issue," quoting In re Election Law Enf't Comm'n Advisory Op. No. 001-2008,

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201 N.J. 254, 262 (2010)); see also, Brady v. Bd. of Review, 152 N.J. 197, 210

(1997) (holding "[i]f the Board's factual findings are supported 'by sufficient

credible evidence, courts are obliged to accept them,'" quoting Self v. Bd. of

Review, 91 N.J. 453, 459 (1982), and the agency's decision may not be disturbed

unless shown to be arbitrary, capricious, or unreasonable). Liu's failure to report

was not the result of any lack of information provided by the Division as was

the situation in Rivera and Garzon. Nor was she misinformed by the Division.

There was nothing to stop her from making continued efforts to report via

telephone, mail, or personal visits to a Division local office.

We agree with the Division that Liu's language proficiency argument lacks

credibility based on her first telephonic hearing testimony before the Appeal

Tribunal when she testified in English that she read the Division's notices,

followed all the instructions, and was not confused. At no point does she

indicate that she needed an interpreter, or for that matter, requested one. We

find nothing arbitrary, capricious, or unreasonable concerning the rejection of

Liu's good cause explanations, which the Board determined was inconsistent and

not credible.

Lastly, we do not address Liu's argument that the Board made confidential

communications to the Appeal Tribunal in violation of state law and her

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constitutional rights because they lack sufficient merit to warrant discussion in

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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