# Yardville Supply Co. v. Board of Review, Dept. of Labor

> Supreme Court of New Jersey · March 23, 1989 · 114 N.J. 371

URL: https://www.frixlaw.com/law-library/cases/9717441

## Case

- **Full name:** Yardville Supply Company, Appellant, v. Board of Review, Department of Labor, Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** March 23, 1989
- **Citations:** 114 N.J. 371; 554 A.2d 1337; 1989 N.J. LEXIS 29
- **Precedential status:** Published
- **Opinion:** Dissent by O'Hern
- **Judges:** Garibaldi, O'Hern
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

O’HERN, J.,
dissenting.
The majority’s decision to deny unemployment benefits to a truck driver who loses his license due to a driving under the influence violation may undoubtedly be good policy, but in *379 reaching its result the Court departs from the language of the act and leaves us without an organizing principle for future decisions.
I hold no brief for drunk drivers. But as judges we do not have the power to punish their conduct more than has the Legislature. To say that this driver “quit” work is to say that words mean what we want them to mean. Rather, the Court should state clearly that it has determined in its judgment that this additional penalty should flow from a drunk driving conviction: if you lose your license and your boss fires you, you will receive no unemployment benefits.
As noted, this is undoubtedly a policy to be well received. Drunk driving is an abhorrent social malady. But courts are expected to apply legislative policy, not to enact it. I look first to the declaration of state public policy in our unemployment compensation law, N.J.S.A. 43:21-1 to -56. That policy is declared as follows:
Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. [N.J.S.A. 43:21-2]
Not every unemployed worker is entitled to benefits, however. The Legislature has set forth benefit-eligibility conditions, N.J.S.A. 43:21-4, and has specifically set forth the statutory disqualifications.
So far as is pertinent, the statute reads:
43:21-5. Disqualification for benefits
An individual shall be disqualified for benefits:
(a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment, which may include employment for the federal government, and has earned in employment at least six times the individual’s weekly rate, as determined in each case.
(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immedi *380 ately follow that week (in addition to the waiting period), as determined in each case. * * *
These are generically referred to as the “voluntary quit” and the “misconduct connected with work” provisions. Broderick v. Board of Review, Div. of Employment Sec., 133 N.J.Super. 30, 33 (App.Div.1975).
The distinction between (a) and (b), between “voluntary quit” and “misconduct” discharge, is significant. If the “voluntary quit” provisions apply, the claimant is disqualified at least until he has earned at least six times his weekly rate. In effect, this can be an indefinite disqualification if other work is not available. In contrast, under the “misconduct” subsection, no new job requirement is specified, and a worker is disqualified only for the week in which he or she has been discharged and the five weeks immediately following such week (in addition to the waiting period).
In this case, the Court holds that the worker has quit his job. Ante at 375. Even the Unemployment Compensation Board would not do that in this case, noting that there was other available work at the plant for this worker. I could understand an agency determination that a truck driver who has lost his license due to such an infraction has so disregarded reasonable requirements of his employment as to conclude that he was terminated for misconduct connected with the work. That is the approach of the Maine Unemployment Commission. See Look v. Maine Unemployment Ins. Comm’n, 502 A.2d 1033 (Me.1985); see also Goudy v. Commonwealth, Unemployment Comp. Bd. of Review, 86 Pa.Cmwlth. 435 , 485 A. 2d 848 (1984) (professional driver is ineligible for unemployment insurance when discharged for off-duty violation which only results in loss of driver’s license). Claimant was fired. Consequently, the Court should decide this case under section 5(b), which is intended for cases where the employee is discharged. See Broderick, supra, (claimant does not voluntarily quit work when the employer discharges the employee for refusal to comply with the employer’s reasonable direction).
*381 Although it may be tempting to decide this case against Sparks on the narrow ground that he committed a serious criminal violation, I search for the organizing principle of the majority’s opinion. Is it creating a “constructive voluntary quit” doctrine? See Steinberg v. California Unemployment Ins. Appeals Bd., 151 Cal.Rptr. 133 , 87 Cal.App.2d 582 (1978) (outlining the requirements for such a doctrine). How far does the Court’s policy go? Is it the voluntariness of the offense? Would speeding that causes a loss of license disqualify a worker from unemployment benefits? Would engaging in a touch football game that causes a driver to break his hand be disqualifying? Or is it the stigmatic nature of the offense? If so, what sort of misconduct outside of work disqualifies one from benefits?
Is it better policy that the worker’s family be made to pay indefinitely to advance the enforcement of drunk-driving laws, or is the policy against drunk driving sufficiently advanced by the criminal sanctions without the additional loss of the breadwinner’s contribution? These are questions that courts should best leave to the Legislature or the agencies entrusted with their administration.
When courts enact social policy, they lack the informational resources that legislatures have and the ability to balance competing social interests. For example, California’s unemployment code provides that if employment is terminated due to absence from work because of incarceration, the worker “shall be deemed to have left his work voluntarily without good cause * * Kaylor v. Department of Human Resources, 108 Cal.Rptr. 267, 269 , 32 Cal.App.2d 732, 734 (1973) (quoting Cal. Unemployment Ins.Code § 1256.1(a)). .
Is it not anomalous to observe that if the incident had occurred while Sparks was driving for his employer and had been terminated for that as misconduct under 43:21-5(b), he would have been disqualified for benefits for only five weeks? The greater his relative fault, (i.e., being drunk on the job), the *382 less his disqualification under the majority’s theory. I have no doubt that the Legislature would not want to condone a drunk-driving violation by a truck driver, but I doubt that it would intend such an anomalous result.
In this case, although the Division of Employment Review suggests, in a brief filed in our Court, that such misconduct is a “voluntary quit,” it would not apply that disqualification in this case in which it found that there was other available work for the employer. See Flick v. Review Bd. of Indiana Employment Sec. Div., 443 N.E.2d 84 (Ind.App.1982) (disqualification for failure to hold a valid driver’s license could not be reasonably concluded without a determination of whether there was available work). Hence, I would affirm the judgment of the Appellate Division.
Justice STEIN joins in this opinion.
For reversal and remandment—Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK and GARIBALDI—5.
For affirmance—Justices O’HERN and STEIN—2.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9717441. Public record. Not legal advice.