Sanchez v. Board of Review

• Decision Date: 14 January 1986
• Citation: 503 A.2d 381,206 N.J.Super. 617
• Parties: , 1986-1987 O.S.H.D. (CCH) P 27,503 Juan S. SANCHEZ, Appellant, v. BOARD OF REVIEW and Chan and Son Oriental Products, Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 617

206 N.J.Super. 617

503 A.2d 381, 1986-1987 O.S.H.D. (CCH) P 27,503

Juan S. SANCHEZ, Appellant, v. BOARD OF REVIEW and Chan and Son Oriental Products, Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 17, 1985.

Decided Jan. 14, 1986.

Julio M. Lopez Keelan, pro hac vice, of the Puerto Rico Legal Services and Patrick N. Budd, Legal Aid Soc. of Mercer County represented appellant (Mr. Keelan and Mr. Budd, on brief).

Irwin I. Kimmelman, Atty. Gen., represented Bd. of Review (Michael S. Bokar, Deputy Atty. Gen., of counsel; Todd A. Wigder, Deputy Atty. Gen., on the brief).

No brief was timely filed by respondent Chan and Son Oriental Products.

Before Judges PRESSLER, DREIER and BILDER.

The opinion of the court was delivered by

DREIER, J.A.D.

Claimant, Juan Sanchez, has appealed from an adverse determination of the Board of Review in the Division of Unemployment and Disability Insurance. The Board had affirmed the decision of the Appeals Tribunal which in turn had sustained the deputy who initially heard the case. A trial de novo before the appeals examiner was conducted by a three-way telephone conference in which claimant testified from Puerto Rico through an interpreter. Neither party was represented by counsel.

The facts are relatively simple. Claimant is a migrant worker who had been employed as a farmhand in New Jersey by Chan and Son Oriental Products. He picked vegetables such as lettuce, radishes and garlic and also did some planting. He was paid the minimum wage of $3.35 per hour. After working from approximately July 5 to October 20, 1983, he quit, stating as his reasons:

Because I asked him to buy us some boots, gloves and something to kneel on when we were cutting the lettuce and he said no that we should buy it out of our own money. And he was also deducting 5 or 6 hours worth of work every week.

He obviously had discussed this practice with his employer, since according to claimant the employer justified the deduction as follows:

He said the deductions were made because he gave some time during the break at 9 o'clock in the morning. And that was costing him money.

Claimant further stated that he did not complain to a farm workers' association because a neighboring farmer had fired other employees who had complained. He also had discussed the issue of the protective clothing, but the employer told claimant that he "should buy them out of [his] own money. And the rest should also do so."

Mr. Chan, the employer, testified that claimant took "care of vegetables, oriental vegetables, planting cabbage, ... like a radish, all kinds of stuff." In response to the claim of improper deductions the employer stated:

No. We got proof paper here. And at that time, I think, maybe he signed on the paper is it true and that everything is true and before we issued checks, and he signed the paper.

He denied that the employee asked for boots and gloves. He claimed the employee just ran away. The employer further explained why he provided no gloves, boots or knee pads or mats:

This is a personal property. When he work, he have to get boots, whatever, shoes, whatever, clothes. He has to prepare to work. I have no responsibility to buy for them clothes and the shoes, boots, anything. Except, we supply, furnish to him, lodging, housing--that's it.

Claimant responded that the "clothes were necessary because it was very painful to work without them--our hand were [sic ] already bruised all the time and it was very painful."

The Appeals Tribunal found that claimant left the job voluntarily and without notice, and that "the employer was not responsible for providing the claimant with work clothes, gloves or boots." In the opinion of the Tribunal:

The claimant left his job voluntarily in order to leave the area. He did not attempt to resolve his problems with the employer and there is no credible evidence that the working conditions were so bad as to provide good cause attributable to the work for leaving. The employer's failure to provide gloves and boots was not good cause for quitting. A worker could reasonably be expected to provide his own work clothing.

This decision was affirmed on the basis of the record below by the Board of Review.

We find two deficiencies with the decision reached. First, there was an insufficient inquiry into the allegations of an unwarranted deduction from claimant's pay. The claimant already was working for the minimum wage and, therefore, any such unwarranted deduction brought his net pay below that required by law. Such an employment practice is contrary to the declared public policy of this State. N.J.S.A. 34:11-56a3. If approximately one hour's wages per day had been deducted from claimant's pay and thus he was not being paid the required wage for his work, his leaving would have been for cause attributable to the work. Cf. Johns-Manville Products Corp. v. Bd. of Review, 122 N.J.Super. 366, 370, 300 A.2d 572 (App.Div.1973). We do not require adjustment of the wage under the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a et seq, as the sole remedy of an underpaid employee. Since the Wage and Hour Law recognizes a civil suit as a cumulative remedy, N.J.S.A. 34:11-56a25, we find no bar to an employee raising this issue in an unemployment compensation case by way of a claim that underpayment motivated his quitting.

The employer's explanation that he had a "proof paper" and that "maybe" claimant had signed the paper left the issue still unresolved. This issue should have been further explored by the examiner. If the hearing had to be continued until copies of the employer's records could be submitted as exhibits or claimant could have obtained corroborative testimony, this should have been accomplished. There was no positive testimony rebutting claimant's assertions of the improper deductions.

The second problem we see with this record concerns the alleged failure of the employer to provide protective clothing such as special boots or gloves or protective equipment such as a kneeling mat or knee pads. The Worker Health and Safety Act, N.J.S.A. 34:6A-1 et seq., provides in N.J.S.A. 34:6A-3:

Every employer shall furnish a place of employment which shall be reasonably safe and healthful for employees. Every employer shall install, maintain and use such employee protective devices and safeguards including methods of sanitation and hygiene and where a substantial risk of physical injury is inherent in the nature of a specific work operation shall also with respect to such work operation establish and enforce such work methods, as are reasonably necessary to protect the life, health and safety of employees, with due regard for the nature of the work required.

This Act has yet to be construed except for one reference in Finnegan v. Havir Mfg. Corp., 60 N.J. 413, 420, 290 A.2d 286 (1972), alluding to a factory operator's duty to provide safety guards on a punch press. The statute, however, is not so limited. It encompasses all cases where there might be "a substantial risk of physical injury ... inherent in the nature of a specific work operation." In such cases "employee protective devices and safeguards" are required to be supplied by the employer. There are no specific State regulations which require supplying special boots, gloves or kneeling pads or mats. In fact all regulations issued pursuant to the Act were replaced by the federal regulations hereafter discussed. These federal regulations have by State regulation also been made applicable to New Jersey public employees, N.J.A.C. 12:100-4.2(a).

The federal regulations promulgated under the Occupational Safety and Health Act (OSHA) 29 U.S.C.A. § 651 et seq., 29 C.F.R. § 1910.132 et seq., require specific...