Blake v. Bd. of Review, Dep't of Labor, & Laurel Healthcare, LLC

• Decision Date: 28 September 2017
• Docket Number: Docket No. A-2940-15T3.
• Citation: 452 N.J.Super. 7,170 A.3d 960
• Parties: Cynthia M. BLAKE, Appellant, v. BOARD OF REVIEW, Department of Labor, and Laurel Healthcare, LLC, Respondents.
• Court: New Jersey Superior Court — Appellate Division

452 N.J.Super. 7

170 A.3d 960

Cynthia M. BLAKE, Appellant,

v.BOARD OF REVIEW, Department of Labor, and Laurel Healthcare, LLC, Respondents.

Docket No. A-2940-15T3.

Superior Court of New Jersey, Appellate Division.

Submitted June 6, 2017

Decided September 28, 2017

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.

Before Judges Messano, Suter and Grall.

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, 554 A. 2d 1337 (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, 946 A .2d 1039 (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, 134 A .3d 1018 (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, 160 A .3d 693 (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 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 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 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 , 451 N.J. S uper. 461, 464, 168 A .3d 1214, 2017 WL 3707502 (App. Div. 2017) ("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 , 451 N.J.Super. at 471–73, 168 A .3d 1214. 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. 451 N.J.Super . at 470, 168 A .3d 1214. We disagree. In our view, the plain language of the Amendment fully supports the Board's position.

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 did not." Jersey Cent. Power & Light Co. v. Melcar Util. Co. , 212 N.J. 576, 596, 59 A .3d 561 (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 that every word in a statute has meaning and is not mere surplusage." Jersey Cent. Power & Light , supra , 212 N.J. at 587, 59 A. 3d 561 (quoting Cast Art Indus., LLC v. KPMG LLP , 209 N.J. 208, 222, 36 A .3d 1049 (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. 2082, 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) 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. 4...