The opinion
NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3680-20
A-3684-20
DONNA B. ESSICK,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF
LABOR AND WORKFORCE
DEVELOPMENT, and EQUITY
COMMUNICATIONS, L.P.,
Respondents.
____________________________
Submitted September 19, 2022 – Decided October 11, 2022
Before Judges Mayer and Enright.
On appeal from the Board of Review, Division of
Unemployment Insurance, Department of Labor and
Workforce Development, Docket Nos. 222241 and
215849.
Donna B. Essick, appellant pro se.
Matthew J. Platkin, Acting Attorney General, attorney
for respondent Board of Review (Donna Arons,
Assistant Attorney General, of counsel; Roger M.
Castillo, Deputy Attorney General, on the brief).
PER CURIAM
In these consolidated appeals, petitioner Donna B. Essick challenges two
decisions from respondent Board of Review dated January 27, 2021, which
collectively deemed her ineligible to receive unemployment benefits from April
5, 2020 through October 3, 2020. We affirm.
Essick worked for respondent Equity Communications, L.P. (Equity),
starting in 1996. As Equity's Senior Account Executive, she sold "radio and
digital advertising" and was compensated solely on a commission basis. Due to
business closures during COVID-19, Essick's commissions were "drastically
reduced."
Relative to Essick's appeal under No. A-3684-20,1 the record reflects she
first filed for partial unemployment benefits in April 2020 and received $1,426
for the weeks ending April 25, through May 9, 2020. In June 2020, a Deputy
with the Board of Review found Essick was: (1) ineligible for benefits as of
April 12, 2020 because she was employed full time; (2) ineligible for
1
This appeal flows from the Board's January 27 decision under its docket
number DKT00215849; the second appeal, No. A-3680-20, relates to the Board's
January 27 decision under its docket number DKT00222241.
A-3680-20
2
unemployment benefits for the weeks starting May 17, 2020 and May 24, 2020
because she worked more than eighty percent of the normal hours for her
occupation, meaning she was "considered to have worked full time"; and (3)
liable to refund the $1,426 in benefits she previously received.
Essick appealed from the Deputy's determinations. The Appeal Tribunal
conducted a telephonic hearing on August 6, 2020. Essick and Equity's
Controller, Timothy Knight, provided sworn testimony at the hearing. When
the examiner questioned Essick about what days of the week she worked after
April 5, 2020, she replied, "I work seven days a week." Asked about the number
of hours she worked, Essick stated, "Monday through Friday I'm probably . . .
starting my day at 7:00; 8:00 at the latest, and working till 6, 7, 8:00 at night.
No lie." She added, "I'm forced to work weekends" and "I work more than 40
hours a week on a regular basis. I mean, that's just the nature of the animal."
The examiner probed further and asked Essick if she was "working less
hours because of the pandemic or more." Importantly, Essick answered,
"[m]ore. . . . I have to make up for lost business." Further, Essick acknowledged
that "pre-pandemic, a regular week was 50 hours." Asked by the examiner if
between April 5 and August 5, 2020, she was "still working about 50 hours a
week." Essick responded, "I feel, yes." Knight did not dispute Essick's
A-3680-20
3
testimony; he also verified Essick's statements about her compensation
arrangements with Equity.
On August 8, 2020, the Appeal Tribunal affirmed the Deputy's
determinations. It found Essick worked "more than her normal hours of work
since [April 5,] 2020 . . . [so she was] considered to have worked more than 80
percent of the normal hours each week for [her] occupation from" April 5
through August 1, 2020. Accordingly, the Appeal Tribunal deemed her
ineligible for unemployment benefits for the period between April 5 through
August 1, 2020, explaining she "was considered to be employed full-time in
accordance with N.J.A.C. 12:17-6.2(b),2 and N.J.S.A. 43:21-19(m)(1)."3
Having reached these conclusions, the Appeal Tribunal determined the issue of
Essick's eligibility for benefits for the weeks of May 17 and May 24, 2020 was
2
In distinguishing between full-time and part-time employment, N.J.A.C.
12:17-6.2(b) states: "[t]he number of hours which constitutes less than full-time
work shall mean not more than 80 percent of the hours worked according to the
norm or custom associated with the individual's occupation, profession, trade,
or industry during the week of employment."
3
Under N.J.S.A. 43:21-19(m)(1):
"An individual shall be deemed 'unemployed' for any week during which:
(A) The individual is not engaged in full-time work and with respect to which
[the individual's] remuneration is less than [the] weekly benefit rate, including
any week during which [the individual] is on vacation without pay[.]"
A-3680-20
4
"academic." Additionally, the Appeal Tribunal concurred with the Deputy and
found Essick liable for refunding the $1,426 in benefits she received.
On January 27, 2021, the Board affirmed the Appeal Tribunal's
determinations, stating, "we agree with the decision reached, except the
[o]pinion and [d]ecision paragraphs of the Appeal Tribunal decision should read
that the claimant's liability for weeks ending May 17 . . . through May 30, 2020
is academic . . . as to her eligibility for partial unemployment benefits."
Regarding Essick's second appeal, No. A-3680-20, the record reflects she
filed for unemployment benefits in April 2020 and the Deputy imposed a period
of ineligibility for benefits from June 14, 2020. The Deputy reasoned Essick
was employed full time and had "worked more than 80 percent of the normal
hours for [her] occupation" such that she was "considered to have worked full
time."
Essick appealed the Deputy's determination. Therefore, the Appeal
Tribunal conducted another telephonic hearing in October 2020. At this hearing,
only Essick testified. The examiner asked her, "post-pandemic, how many hours
a week are you working?" Contrary to her statements during the August 6
hearing, Essick testified she had "been reporting 40 hours, which is less than
what [she] typically worked . . . pre-pandemic."
A-3680-20
5
The examiner advised Essick he reviewed her testimony from the August
6 hearing; he reminded her that she previously testified she was "working even
more hours now to make up for lost commissions." Essick responded that her
prior testimony "was a little bit misinterpreted" and she was "working 40 hours
in this pandemic." She added, "if I didn't convey it properly, then that's a
mistake on my part, but since the beginning of time I've been reporting . . . 40
hours." Essick also testified, "my current fight is . . . proving that those 40 hours
are 80% of my regular hours worked," adding, "I'm just learning the laws of the
[u]nemployment system."
That day, the Appeal Tribunal affirmed the Deputy's determination,
finding Essick worked full-time from June 14, 2020 through October 3, 2020.
It also found Essick challenged the denial of benefits for a period of time that
"was previously ruled on by the Appeals Tribunal" on August 6, 2020 , so it had
"no jurisdiction to rule on the time period already ruled on by the Appeals
Tribunal." The Appeal Tribunal deemed Essick ineligible for benefits for the
period from August 2, 2020 through October 3, 2020, again citing N.J.S.A.
43:21-19(m)(1) and N.J.A.C. 12:17-2.1.
On January 27, 2021, the Board affirmed the Appeal Tribunal's decision,
adopting the Tribunal's findings of fact and concluding Essick was ineligible for
A-3680-20
6
benefits between August 2 and October 3, 2020 because "she was employed full-
time in accordance with N.J.S.A. 43:21-19(m)(1)." And because the Appeal
Tribunal previously addressed Essick's eligibility for benefits for the period
running from June 4, 2020 through August 1, 2020, the Board considered any
resolution for that period under the second appeal was "null and void, and . . .
set aside."
Before us, Essick contends the Board wrongfully deemed her ineligible
for benefits. And she renews her argument that because she worked less than
eighty percent of the standard work hours in her occupation, she was not
employed full-time. She states the Board "plainly misunderstood [her]
testimony," and "the fact remains that she did in fact work less than 80% of a
normal workweek in her industry." We are not convinced.
When a claimant challenges an agency conclusion, the claimant carries a
substantial burden of persuasion, while the determination of the administrative
agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v.
N.J. Civ. Serv. Comm'n, 93 N.J. 384, 390-91 (1983) (citing City of Newark v.
Nat. Res. Council, 82 N.J. 830, 839 (1980)). Accordingly, we exercise limited
review of the Board's decision. See Brady v. Bd. of Rev., 152 N.J. 197, 210
(1997). We will affirm its decision if it is supported by substantial credible
A-3680-20
7
evidence, ibid., and if, upon our de novo review, we discern no mistakes of law,
McClain v. Bd. of Rev., Dep't of Lab., 451 N.J. Super. 461, 467 (App. Div.
2017).
We also accord substantial deference to the agency's interpretation of a
statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp.
Educ. Ass'n, 144 N.J. 16, 31 (1996). In short, we overturn an agency
determination only if it is arbitrary, capricious, unreasonable, unsupported by
substantial credible evidence as a whole, or inconsistent with the enabling
statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985)
(citing Gloucester Cnty. Welfare Bd., 93 N.J. at 391).
Governed by these principles, we are persuaded there is sufficient credible
evidence in the record to support the Board's finding Essick was ineligible for
benefits on the dates specified, pursuant to N.J.S.A. 43:21-19(m)(1)(A) and
N.J.A.C. 12:17-6.2(b). We also are convinced that under N.J.S.A. 43:21-16(d),4
she was required to refund the benefits she was ineligible to receive. See Bannan
v. Bd. of Rev., 299 N.J. Super. 671, 674-76 (App. Div. 1997). In that vein, we
note Essick presents no meritorious challenge to the Board's order that she
4
N.J.S.A. 43:21-16(d)(1) provides for recovery of benefits paid to an individual
who, for any reason, has received benefits to which the person was not entitled.
A-3680-20
8
refund these benefits; instead, she claims "those benefits were paid back 'in
full.'"
In sum, we perceive no basis to disturb either of the Board's January 27
decisions. Essick's remaining arguments do not warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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9