CARLOS VASQUEZ v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1975-05T51975-05T5

CARLOS VASQUEZ,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and NEW JERSEY TRANSIT

BUS OPERATIONS, INC.,

Respondents.

_______________________________________

 

Submitted August 15, 2006 - Decided August 21, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Board of Review, Department of Labor, Docket No. 58,176.

Carlos Vasquez, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Todd A. Wigder, Deputy Attorney General, on the brief).

PER CURIAM

Carlos Vasquez appeals a final decision of the Board of Review issued on December 6, 2005, which sustained the Appeal Tribunal's determination that Vasquez must refund certain unemployment benefits that he received in 2002 and that he also is liable for associated penalties. We affirm.

Appellant applied for unemployment benefits in August 2001 after being discharged from his employment with the County of Somerset. He was approved for benefits and collected $219 weekly from February 9 through December 28, 2002, totaling $10,074. Subsequent investigation revealed that appellant was gainfully employed as a driver for New Jersey Transit approximately sixteen hours per week in 2002 while he was concurrently receiving unemployment benefits.

It is undisputed that appellant did not report his New Jersey Transit earnings on his weekly unemployment claim forms, even though those forms specifically inquired whether he was working and, if so, the amounts he was earning from such work. Appellant contends that he had been advised by a staff member in the local unemployment office that he did not have to report his part-time earnings if they were below thirty hours; however, he has failed to identify that staff member.

In November 2004, the Deputy Director of the Bureau notified appellant that he was accordingly liable to refund $10,074 in improperly-received benefits, and also was subject to a penalty of $2,518.50. Appellant pursued an administrative appeal of that determination. After hearing testimony about these circumstances from appellant and a Bureau investigator, the Appeal Tribunal sustained the Deputy Director's determination of appellant's liability, which, in turn, was upheld by the Board of Review.

Pursuant to N.J.S.A. 43:21-3(b), weekly unemployment benefits payable to a claimant must be reduced by any remuneration, other than remuneration from certain self-employment, that the claimant receives from other employment in excess of twenty percent of his weekly benefit rate. Here, the record reflects that appellant was regularly earning from his part-time work with New Jersey Transit in 2002 well in excess of twenty percent of his $219 weekly benefit rate; indeed, he typically had gross earnings over $300 per week during that timeframe. Appellant clearly was not entitled to receive and retain benefits during that time period.

N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by any person who was not actually entitled to those benefits. The obligation to repay is unaffected by the good faith of the claimant. Bannan v. Board of Review, 299 N.J. Super. 671, 674 (App. Div. 1997); see also Fischer v. Board of Review, 123 N.J. Super. 263, 266 (App. Div. 1973).

Moreover, appellant was obligated to report his earnings from New Jersey Transit on his weekly claim form, notwithstanding the erroneous guidance that he allegedly received from an unidentified staff member suggesting that such earnings need not be reported. Bannan, supra, 299 N.J. Super. at 674-77 (rejecting claimant's argument that the Board was estopped from obtaining a refund from him because of his alleged reliance on incorrect advice from an employee of the unemployment office, holding that such an application of estoppel principles would be "contrary to the legislative purpose underlying the unemployment compensation statute"). We thus affirm the Board's imposition of liability for the $10,074 refund of improperly-received benefits.

We also sustain the agency's imposition of the $2,518.50 penalty upon appellant. The penalty is fully consonant with N.J.S.A. 43:21-16(a), prescribing a fine of 25% of the amount wrongfully collected, in circumstances such as this where the claimant falsely stated his lack of other earnings on his weekly claim forms and knowingly failed to disclose those material sums.

Lastly, we reject appellant's contention that he was not provided with an interpreter in the administrative process, as the transcript of the September 13, 2005 hearing before the Appeal Tribunal clearly reflects that the witnesses' testimony and the colloquy with the hearing examiner was translated by a sworn interpreter.

Affirmed.

 

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5

A-1975-05T5

August 21, 2006