TIMOTHY A. GRANT v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1238-05T51238-05T5

TIMOTHY A. GRANT,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

Respondent-Respondent,

and

NATIONAL DATA RESOURCES,

Respondent.

_______________________________________

 

Submitted October 10, 2006 - Decided November 2, 2006

Before Judges Lintner and Seltzer.

On appeal from a Final Decision of the Board of Review, Department of Labor, 81,916.

Timothy A. Grant, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent Board of Review (Patrick DeAlmeida, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Timothy Grant, appeals from a final decision of the Board of Review adopting the August 16, 2005, decision of the Appeal Tribunal finding him ineligible for unemployment benefits because he was unavailable for work and requiring him to reimburse $8,551 paid as benefits for the weeks ending February 26, 2005, through June 18, 2005.

Claimant was employed as a private investigator by National Data Resources from July 1995 until February 18, 2005. He was laid off because National Data Resources could no longer afford to pay him. Instead of looking for work with another employer, claimant decided to open Grant Investigation Services, his own private investigation business. He proceeded to apply for required licenses in New Jersey and Pennsylvania. Claimant did not look for other employment while he was waiting to be licensed. Instead, he began actively starting up his business by purchasing equipment, obtaining insurance and necessary bonding, and formulating a marketing plan. Claimant made application to the Division of Unemployment and Temporary Disability Insurance (the Division) for benefits, claiming he was "actively trying to get work." He read the unemployment handbook which indicated that he was required to make three contacts a week to gain re-employment. It did not state in the booklet that participation in the Self Employment Assistance (SEA) Program would be required. Claimant did not make contacts with prospective employers because he believed that starting Grant Investigation Services qualified as seeking employment.

Approximately two weeks after filing for benefits, claimant attended an unemployment orientation session at the One Stop Career Center in Burlington. At that time, he watched a video that contained a segment about becoming self-employed as the equivalent of looking for work. Claimant never filed for the SEA Program. He did, however, contact and speak to an individual at the SEA Program, but never recorded the individual's name. Claimant testified that he "explained to [this individual] what [he] was doing . . . the services that [he] had available to [him] accounting, legal, advertising, marketing . . . through [his] different contacts . . . and [he] asked . . . if the SEA Program [could help him] in any other way." According to claimant, the individual stated that "[t]hey couldn't offer anything more than what [he] already had." Claimant also asked whether he would be taking someone else's position if he signed up for the SEA Program, and the individual told him that he would.

In June 2005, the Division scheduled an information meeting with claimant. Claimant advised that he was starting his own business and rescheduled the meeting for July 5, 2005. On July 5, he called and explained that he would be glad to meet, but he was "starting his own business and . . . was under the impression that . . . re-employment [was] to help [him] find a job" and he was not "looking for a job." He reiterated that he never went in for an interview or signed up for a training session with the SEA Program because he was told "that there was nothing they could do to help [him]."

N.J.S.A. 43:21-4(c)(1) provides that an unemployed individual is eligible to receive benefits if "[t]he individual is able to work, and is available for work, and has demonstrated to be actively seeking work." N.J.S.A. 43:21-4(c)(7) provides:

No individual, who is otherwise eligible, shall be deemed ineligible or unavailable for work with respect to any week because, during that week, the individual fails or refuses to accept work while the individual is participating on a full-time basis in self-employment assistance activities authorized by the division, whether or not the individual is receiving a self-employment allowance during that week.

N.J.S.A. 43:21-4(c)(4)(A) provides:

Subject to such limitations and conditions as the division may prescribe, an individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible because the individual is attending a training program approved for the individual by the division to enhance the individual's employment opportunities or because the individual failed or refused to accept work while attending such program.

In 1995, the Legislature passed the Self-Employment Assistance and Entrepreneurial Training Act. N.J.S.A. 43:21-67 to -71. N.J.S.A. 43:21-69 defines "[s]elf-employment assistance allowance," as an allowance "payable in lieu of regular benefits and from the unemployment compensation fund, to an individual participating in self-employment assistance activities who meets the requirements of [the act]." Under N.J.S.A. 43:21-70a, an unemployed person

who qualifies for regular benefits and is identified through the worker profiling system as likely to exhaust regular benefits may apply to the division for a self-employment assistance allowance. If the individual is selected to receive a self-employment assistance allowance, the Department of Labor may also provide the individual with any available self-employment assistance services it deems appropriate, including services available from the Workforce Development Partnership Program, or the department may refer the individual to any other private or public entity it deems appropriate to provide the services. The department shall provide the individual with appropriate information available to the department regarding possible sources of financing for entrepreneurial activities, including information obtained from the Department of Banking and information regarding suitable "micro-lending" programs.

The amount paid under a weekly self-employment assistance program is equivalent to, and made at the same intervals as, that paid for regular unemployment benefits. N.J.S.A. 43:21-70b and c. "The aggregate number of individuals receiving self-employment assistance . . . shall not exceed one percent of the number of individuals receiving regular benefits." N.J.S.A. 43:21-70d. The Commissioner of Labor is required to "adopt regulations . . . to establish eligibility requirements and procedures for the selection of individuals to receive self-employment assistance allowances and self-employment assistance services." Ibid.

Eligibility for selection into the SEA Program is governed by the provisions of N.J.A.C. 12:17-18.3. Under the applicable statute and administrative code provisions, an individual seeking a self-employment assistance allowance must establish eligibility for selection to the program. See N.J.S.A. 43:21-70a; N.J.A.C. 12:17-18.3. Here, claimant received unemployment benefits under N.J.S.A. 43:21-4(c)(1), which he was ineligible to receive because he was unavailable for work. See Ford v. Bd. of Review, 287 N.J. Super. 281, 285-86 (App. Div. 1996).

We concur with the finding of the Board that claimant was ineligible to receive the benefits he received because he did not seek benefits under the SEA Program. However, we are somewhat troubled by the fact that neither the Board nor the Appeal Tribunal responded to claimant's assertion that the Division's representative never advised him of the necessity to apply for admission into the SEA Program. We are likewise troubled by the fact that neither decision addressed claimant's testimony that the Division's booklet did not mention the same requirement. In its appellate brief, the Board asserts that claimant's failure to participate in the SEA Program was the result of his own neglect as opposed to the receipt of misinformation. However, no such finding was made by either the Board or the Appeal Tribunal. Indeed, claimant's testimony that the Division's handbook and its orientation video did not provide instruction concerning the requirement that he apply to the SEA Program was uncontested.

N.J.A.C. 12:17-14.2(a) permits the Board to waive recovery of benefits overpaid when "the Director has determined that the claimant has not misrepresented or withheld any material fact in obtaining benefits," and the Director, with the Controller's concurrence, determines it "would be patently contrary to the principles of equity." N.J.A.C. 12:17-14.2(b) provides further that a claimant is prohibited from receiving a waiver of recovery where there is "either the willful or the negligent misrepresentation or withholding of any material fact."

The regulation requiring repayment "cannot possibly conflict with the purpose of the law." Vasquez v. Horn, 181 N.J. Super. 529, 534 (App. Div. 1981), certif. denied, 91 N.J. 196 (1982). Thus, repayments are required when money has been improperly paid. Ibid. "It is the purpose of the law to provide benefits to involuntarily unemployed persons who meet the specific eligibility conditions of the law." Ibid. (citing N.J.S.A. 43:21-2; N.J.S.A. 43:21-4). Because "the purpose of the law is not to provide for benefits to ineligible persons, a regulation providing for repayment of such benefits . . . is necessarily in furtherance of the purpose of the law." Ibid. (citations omitted).

The Self-Employment Assistance and Entrepreneurial Training Act specifically recognizes that "[i]n the wake of recent corporate downsizing, it is imperative that ways are found to help unemployed individuals, including professional and technical employees, to re-enter the labor force." N.J.S.A. 43:21-68. Its stated purpose is to help individuals to develop "realistic business plans," so that they can "establish small businesses and become self-employed entrepreneurs." Ibid. This appears to coincide with claimant's situation and what he accomplished, although the benefits he received prior to starting his business were not paid under the SEA Program.

We affirm the Final Decision of the Board insofar as it determined that claimant was not eligible to receive the unemployment benefits paid under N.J.S.A. 43:2-4(c)(1). We, however, remand to permit the Director to determine whether claimant was otherwise eligible for the SEA Program and to reexamine his decision requiring repayment. On remand, consideration should also be given to claimant's uncontested assertion that the Division's handbook did not address the need to apply for the SEA Program and that he did not receive specific instructions to apply to the SEA Program. We do not retain jurisdiction.

Affirmed in part; remanded in part.

 

(continued)

(continued)

9

A-1238-05T5

November 2, 2006