WEBER-SMITH v. Bd. of Review

• Citation: 766 A.2d 1200,337 N.J. Super. 319
• Parties: Linda WEBER-SMITH, Plaintiff-Appellant, v. BOARD OF REVIEW, Department of Labor and Somerset County, Defendants-Respondents.
• Decision Date: 22 February 2001
• Court: Superior Court of New Jersey

766 A.2d 1200

337 N.J. Super. 319

Linda WEBER-SMITH, Plaintiff-Appellant, v. BOARD OF REVIEW, Department of Labor and Somerset County, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Submitted February 6, 2001.

Decided February 22, 2001.

John J. Farmer, Jr., Attorney General, attorney for respondent Board of Review, Department of Labor (Michael J. Haas, Assistant Attorney General, of counsel; Pamela E. Schneider, Deputy Attorney General, on the brief).

No brief has been filed on behalf of respondent Somerset County.

Before Judges PRESSLER, CIANCIA and ALLEY.

The opinion of the court was delivered by CIANCIA, J.A.D.

This is an appeal from a decision of the Board of Review finding Linda Weber Smith ineligible for unemployment benefits because she had been employed by an educational institution and had reasonable assurances that she would be reemployed the following term. We now reverse the denial of benefits upon a determination that there was no statutory preclusion applicable to appellant on the facts presented.

The Board of Review found Weber Smith ineligible based upon the provisions of N.J.S.A. 43:21-4(g)(2). On appeal, the Attorney General's brief states that the correct precluding portion of the statute is actually N.J.S.A. 43:21-4(g)(1). For present purposes this discrepancy is not material. The statutory provisions provide in relevant part:

(1) With respect to service performed after December 31, 1977, in an instructional research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

(2) With respect to weeks of unemployment beginning after September 3, 1982, on the basis of service performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms,....

[N.J.S.A. 43:21-4(g)(1) and (2).]

At the telephone hearing conducted by an appeals examiner, the facts were largely undisputed. Weber Smith had been employed by the Somerset County Vocational Board of Education and had worked at the Somerset County Technical Institute since 1988. She had been an adjunct professor, but over the most recent five-year period her status had changed. She became a year-round, part-time employee working twenty to perhaps thirty-four hours a week. She taught computer classes and also served as a "lab administrator." Her non-instructional duties included buying equipment, installing it and advising her supervisors of appropriate upgrades. The Technical Institute has a summer session and Weber Smith worked during the summer terms, with the exception of one month in the summer of 1998. It is unclear from the record whether she received unemployment benefits for that month.

The present claim concerns the summer of 1999. Weber Smith testified that an academic session ended in early May. She continued to work past that date in her non-instructional capacity. She was scheduled to teach classes starting on June 6 or 7. Shortly before then, she was told the courses were canceled because they were undersubscribed. Her last day of employment was June 4, 1999. She did not have an employment contract as such, but the record certainly supports the agency's determination that at some point during the summer Weber Smith...