GREGORY MACK v. BOARD OF REVIEW and S & S CREDIT COMPANY, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1758-08T11758-08T1

GREGORY MACK,

Appellant,

v.

BOARD OF REVIEW and S & S

CREDIT COMPANY, INC.,

Respondents.

_________________________________

 

Submitted October 27, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from a Final Decision of the Board of

Review, Department of Labor and Workforce Development, Docket No. 196, 417.

Gregory Mack, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent, Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Respondent S & S Credit Company, Inc. has not filed a brief.

PER CURIAM

Claimant Gregory Mack appeals from a final order of the Board of Review (Board) finding him ineligible for emergency unemployment compensation (EUC) benefits. We affirm.

The EUC program provides that to be eligible for such benefits, an individual must have at least twenty base weeks or have been paid wages which equaled or exceeded forty times the weekly benefit rate during the base year. Emergency Unemployment Compensation Act of 2008, Pub. L. No. 110-252, Title IV, 122 Stat. 2323, 2353-58 (2008) and 26 U.S.C.A. 3304 note, Federal-State Extended Unemployment Compensation Act of 1970 (26 U.S.C.A. 3304 note). "Base week" is defined as any calendar week during which the individual earned in employment from an employer remuneration not less than an amount twenty times the minimum wage. N.J.S.A. 43:21-19(t)(3). For the applicable base year, a base week would be any week where a minimum of $103 was earned. See 38 N.J.R. 3487(a); 38 N.J.R. 5389(a), codified at N.J.A.C. 12:15-1.5. These qualifying wages are "insured wages" for purposes of the Emergency Unemployment Compensation Act of 2008, Pub. L. No. 110-252, 202(a)(5), 122 Stat. 2323, 2354, 26 U.S.C.A. 3304 note.

Claimant was employed by S & S Credit Company, Inc. (Stop & Shop) as an overnight stock clerk from August 1, 2005 to October 22, 2005. Thereafter, he was employed by Ranstad North America, L.P. (Ranstad) from June 12, 2006 to October 8, 2006. On his last day of work at Ranstad, claimant filed a claim for benefits with an established weekly benefit rate of $331 for the base year period beginning October 1, 2005 and ending September 30, 2006.

The Department of Labor and Workforce Development (Department), Division of Unemployment Insurance (Division), determined that claimant worked for Ranstad for fifteen base weeks within the base year, earning $9117.02, and worked for Stop & Shop for three base weeks within the base year, earning $841.14. Because claimant had total earnings of only $9958.16 which was less than forty times his weekly benefit rate during the base year and worked a total of only eighteen base weeks during the October 1, 2005 - September 30, 2006 base year, the deputy to the Division Director denied the claim, concluding that claimant did not establish twenty base weeks or earn forty times the weekly benefit rate.

Claimant appealed, and the Appeal Tribunal dismissed the appeal as being filed untimely without good cause. The Board reversed that decision finding good cause, but further held claimant ineligible for EUC benefits because he failed to establish twenty base weeks or earn at least forty times the weekly benefit rate during the base year period. This appeal follows.

Claimant contends he is eligible for EUC benefits because he worked sixteen weeks with Ranstad (earning $9539.42), and four weeks with Stop & Shop, for a total of twenty weeks. However, it is undisputed that claimant only worked fifteen base weeks for Ranstad within the base year, as his final week of employment there for which he presented a pay stub of $422.40 for the pay period ending October 8, 2006 fell outside the base year (ending October 1, 2006) on his unemployment claim. Moreover, even though claimant may have worked four weeks for Stop & Shop, in his last pay period ending October 22, 2005, he grossed only $63, which is less than the statutory minimum of $103 to qualify as a "base week." See 38 N.J.R. 3487(a); 38 N.J.R. 5389(a), codified at N.J.A.C. 12:15-1.5. In other words, because claimant's final week of employment at Ranstad ending October 8, 2006, fell outside the base year and his final week at Stop & Shop did not earn him the minimum amount to qualify as a base week, claimant only worked a total of eighteen base weeks during the base year, rather than the twenty weeks required for EUC benefits eligibility.

Nor did claimant satisfy the alternative requirement for eligibility, namely that he earn wages equal to or exceeding forty times the weekly benefit rate during the base year. That amount here, based on claimant's weekly benefit rate of $331, would total $13,240. In contrast, claimant earned at most only $9958.16 from his combined employment at Ranstad and Stop & Shop. Consequently, since claimant only worked eighteen base weeks and earned in the aggregate less than forty times his weekly benefit rate, the Board properly determined that he was ineligible for EUC benefits.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n., 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

Applying these principles, we conclude the Board's determination of claimant's ineligibility for EUC benefits is supported by sufficient credible evidence in the record, Barry v. Arrow Pontiac, 100 N.J. 57, 71 (1985), and fully comports with applicable law.

 
Affirmed.

The notice of benefit determination lists claimant's weekly benefit rate as $312.00, however, the Board's decision found claimant's weekly benefit rate to be $331.00. Claimant did not dispute the Board's finding nor does the lesser amount substantively change the court's analysis in determining this appeal.

If the lower figure of $312 (reflected in the notice of determination) is used, the total would be $12,480. In either case, claimant's actual earnings do not exceed forty times the weekly benefit rate during the base year period.

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A-1758-08T1

November 12, 2009