Opinion
DOCKET NO. A-0848-13T2
04-08-2015
TRANS-ED, INC. Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and YANET VELEZ, Respondents.
The Levine Law Firm, LLC, attorneys for appellant (Glenn M. Finkel, on the brief). Somers & Malay, attorneys for respondent Yanet Velez (Janet B. Malay, of counsel; Daniel E. Somers, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from the Board of Review, Department of Labor, Docket No. 386,277. The Levine Law Firm, LLC, attorneys for appellant (Glenn M. Finkel, on the brief). Somers & Malay, attorneys for respondent Yanet Velez (Janet B. Malay, of counsel; Daniel E. Somers, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief). PER CURIAM
Trans-Ed, Inc. appeals from a final decision of the Board of Review, finding a former employee was not disqualified pursuant to N.J.S.A. 43:21-5(b). Since we find the Board's decision was rooted in facts in the record and consistent with relevant statutory provisions, we affirm.
Yanet Velez was hired by Trans-Ed on February 6, 2010. Trans-Ed is a school bus company and operates as a Department of Education contractor. Velez worked full-time as an Administrative Assistant processing disability and workers' compensation forms for bus drivers and aides. On November 9, 2011, Velez left work on maternity leave. Shortly thereafter, Trans-Ed received notification that Velez filed a disability claim.
On December 1, 2011, Trans-Ed sent a letter to the Division of Temporary Disability Insurance disputing the submitted claim, alleging that the employer signature on the form was not valid and the reported wages for the week ending November 11, 2011 were not accurate. A police report was filed alleging Velez forged another employee's signature on the form.
Shortly after Velez left for maternity leave, it was discovered that driver abstracts and filed fingerprints for employees were missing from files Velez oversaw. Additionally, Velez failed to send three employee physicals to the Motor Vehicle Commission. These deficiencies were brought to the attention of Trans-Ed management. As a result of her "violation of company policies and substandard work," Velez was terminated on February 3, 2012, prior to her return from maternity leave.
Velez filed a claim for unemployment benefits. The Deputy of the Division of Unemployment and Disability Insurance imposed a disqualification for benefits on the ground that Velez was discharged for severe misconduct connected with her work. Velez appealed.
The Tribunal analyzed Velez's misconduct and determined that the employer failed to demonstrate that these deficiencies were "willful or deliberate." Rather, the Tribunal found Velez's actions to be "inadvertent or unintentional . . . ." It further found Velez's inaccurately reported wage earnings was an "understandable error not worthy of consideration as misconduct connected with the work." As to the authenticity of the signature, the Tribunal found:
the signatory denial of having signed the document versus the claimant's version cannot be verified with certainty, this hearing officer lacking competence in assessing signature accuracy. However, it is illogical to believe that the claimant would forge the signature of another on an otherwise legitimate and accurate document. She was aware that she could always obtain a proper signature so why deliberately fail to do so. This Tribunal believes that the claimant did obtain the signature of another in processing her disability application, the employer's contentions to the contrary.
The Tribunal reversed the determination of the Deputy and held that no disqualification arose under N.J.S.A. 43:21-5(b), as Velez was not discharged for misconduct arising from her work. The Board affirmed the decision of the Tribunal, finding "the appellant was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there is no valid ground for a further hearing."
Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to factual findings where supported by sufficient credible evidence. Ibid. "'[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).
A reviewing court will intervene only if the challenged action was arbitrary, capricious or unreasonable, or "clearly inconsistent with [the agency's] statutory mission or with other State policy." Ibid. (citations and internal quotation marks omitted). In sum, the scope of appellate review is confined to determining whether the agency decision offends the State or Federal Constitution; whether such action violates legislative policies; whether the record contains substantial evidence to support the agency's factual findings; and, lastly, whether the agency, in applying legislative policies to the facts, clearly erred in reaching a conclusion that could not reasonably have been made. Id. at 210-11.
Our decision is guided by fundamental principles of law governing unemployment compensation. The Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30 (the Act), is designed primarily to lessen the impact of unemployment that befalls workers without their fault. Brady, supra, 152 N.J. at 212. "The public policy behind the Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989) (emphasis omitted) (citing N.J.S.A. 43:21-2).
The Act addresses grounds for disqualification for benefits. An individual shall be disqualified for benefits:
For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow that week, as determined in each case.
For the week in which the individual has been suspended or discharged for severe misconduct connected with the 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 benefit rate, as determined in each case. Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.
[N.J.S.A. 43:21-5(b)]
"[M]isconduct has been held to include deliberate refusal to comply with an employer's reasonable work rules." Smith v. Bd. of Review, 281 N.J. Super. 426, 431 (App. Div. 1995) (citing Broderick v. Bd. of Review, 133 N.J. Super. 30 (App. Div. 1975)). The agency rule defines misconduct.
For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.
[N.J.A.C. 12:17-10.2(a)]
In Silver v. Board of Review, 430 N.J. Super. 44, 53 (2013), we held this rule "constitutes the controlling authority for disposition of claims based on misconduct." In the absence of the adoption of new regulations distinguishing simple misconduct from severe misconduct we construe the examples of severe misconduct as requiring acts done intentionally, deliberately and with malice. Id. at 54-55. Misconduct is not "mere mistakes, errors in judgment or in the exercise of discretion, or minor but casual or unintentional carelessness or negligence, and similar minor peccadilloes." Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 182 (App. Div. 1956) (internal quotation marks omitted) certif. denied, 2 3 N.J. 579 (1957).
Here, the Board's decision granting Velez unemployment benefits was not arbitrary or capricious. Velez was an employee who did not perform her job adequately and caused difficulty for her employer, a Department of Education contractor. While Velez did not perform her job in accordance with the job requirements, she did not exhibit the level of intent required to support a finding of misconduct so as to deny her benefits for her termination. Applying our standard of review, we conclude the Board's decision was not erroneous.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION