JESSICA SILLER v. BOARD OF REVIEW DEPARTMENT OF LABOR and SMITH & NEPHEW INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2844-09T2

JESSICA SILLER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and SMITH & NEPHEW,

INC.

Respondents.

___________________________________

December 22, 2010

Submitted December 15, 2010 - Decided

Before Judges Axelrad and J. N. Harris.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 235,074.

Jessica Siller, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent, Smith & Nephew, Inc., has not filed a brief.

PER CURIAM

This is an appeal from the final administrative decision of the Board of Review, dated December 18, 2009, which affirmed the Appeal Tribunal's denial of appellant Jessica Siller's application for unemployment benefits. The Appeal Tribunal concluded that claimant "left work voluntarily without good cause attributable to the work" and was therefore "disqualified for benefits as of [April 26, 2009] under N.J.S.A. 43:21-5(a)." We affirm.

The facts of this matter are not in dispute. Siller, a New Jersey resident, was employed by Smith & Nephew, Inc. in New York City as a medical sales representative from May 2005 until May 1, 2009. Thereafter, she "had to leave [her job] because [her] husband was promoted and [he] had to do a management position in Kalamazoo, Michigan." By the time of the telephone hearing with the Appeal Tribunal in August 2009, Siller was planning to relocate instead to the District of Columbia, where her husband's position had moved.

Both the Appeal Tribunal and Board of Review determined that appellant had left her employment voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a) (providing that an individual shall be disqualified for unemployment benefits beginning in the week "in which the individual has left work voluntarily without good cause attributable to such work"). Appellant admittedly quit because she intended to relocate with her spouse. Given those findings, based upon the deference we must give to the administrative agency, and our limited scope of review, we must affirm the final administrative determination. See Brady v. Bd. of Review, 152 N.J. 197, 210, 213-14, 218 (1997); N.J.A.C. 12:17-9.1(e)(7) (defining "voluntarily leaving work" as including "[r]elocating to another area to accompany a spouse").

"[I]n reviewing the factual findings made in an unemployment proceeding, the 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 fact finder could reasonably so conclude upon the proofs." Brady, supra, 152 N.J. at 210 (internal quotation and citations omitted). Accordingly, if there is "substantial credible evidence" to support the agency's determination, we must not substitute our own judgment for that of the agency even if we "might have reached a different result." Ibid. We are to uphold the Board of Review's decision when there is substantial credible evidence in the record as a whole to support its factual findings. Self v. Bd. of Review, 91 N.J. 453, 459 (1982). In our limited review, unless we find an agency's action was arbitrary, capricious, or unreasonable, we will not disturb it. Brady, supra, 152 N.J. at 210. No such finding is warranted here.

Notwithstanding these firmly-embedded principles of law, Siller argues that she is nonetheless entitled to unemployment benefits due to New Jersey's recent receipt of federal funds. She asserts that such funding was conditioned upon New Jersey's enactment or continuance of certain allegedly federally-mandated provisions relating to extended unemployment benefits, including a provision permitting the payment of unemployment benefits if a person leaves work to relocate with a spouse. We disagree.

Pursuant to Title II of Division B (entitled Assistance for Unemployed Workers and Struggling Families Act) of the historic American Recovery and Reinvestment Act of 2009 (the Stimulus Act), Pub. L. No. 111-5, 123 Stat. 155 (2009), states become eligible for the infusion of federal funds for additional unemployment benefits called "unemployment compensation modernization incentive payments" (incentive payments) provided that the state's laws meet certain criteria. 42 U.S.C.A. 1103(f). The incentive payments were set up to be paid in two installments, 42 U.S.C.A. 1103(f)(1)(C); it is only the second of those incentive payments, and the eligibility requirements to obtain them, that are implicated in this appeal.

According to the Stimulus Act, in order for a state to receive the second installment of incentive payments, it must conform its laws to carry out at least two of four statutory alternatives related to unemployment benefits. 42 U.S.C.A. 1103(f)(3). The first alternative that may be enacted is found in 42 U.S.C.A. 1103(f)(3)(A), which provides that individuals cannot be denied regular unemployment compensation because they are seeking part-time work. The second allows states to adopt laws prohibiting the denial of unemployment benefits to a person who leaves employment due to a "compelling family reason." 42 U.S.C.A. 1103(f)(3)(B). A compelling family reason is explained in the Stimulus Act as a separation from work due to sexual assault or domestic violence, illness or serious injury of a family member, or the need to accompany a spouse due to the spouse's change in employment where commuting would be impractical. 42 U.S.C.A. 1103(f)(3)(B)(i), (ii), (iii). The third provides unemployment benefits for individuals enrolled in certain training programs after exhaustion of other employment benefits. 42 U.S.C.A. 1103(f)(3)(C). Finally, the fourth relates to providing certain dependents' allowances. 42 U.S.C.A. 1103(f)(3)(D).

Siller claims that the Stimulus Act requires New Jersey to award her unemployment benefits, notwithstanding its voluntarily-leaving-work-without-good-cause doctrine, N.J.S.A. 43:21-5(a), because she had a federally-endorsed "compelling family reason" for separating from her employment. We do not concur, because New Jersey complied with the Stimulus Act through its satisfactory adoption of two alternative statutes, neither of which provided unemployment benefits for a person who leaves work voluntarily to relocate with a spouse, whose job is located out of state, and where the commute would be impractical.

Notwithstanding some confusion engendered by respondent's brief, which argues that New Jersey complies with the Stimulus Act because (1) N.J.S.A. 43:21-20.1 provides eligibility for unemployment benefits during part-time work searches, and (2) N.J.S.A. 43:21-5(j) does not disqualify someone from unemployment benefits who left work voluntarily due to domestic violence, our research reveals that this State was entitled to the federal incentive payments, and is in compliance with federal law, for other reasons.

New Jersey applied for incentive payments pursuant to the Stimulus Act and qualified therefor by dint of the existence of N.J.S.A. 43:21-20.1 and N.J.S.A. 43:21-61.1 These statutory provisions satisfy the Stimulus Act, as reflected in the letter that accompanied New Jersey's application to the United States Department of Labor:

Public Law No. 111-5, Section 2003(a), as explained in UIPL No. 14-09, indicates that to be eligible for the two-thirds incentive payment, a State unemployment compensation law must include provisions to carry out at least two of the following:

(1) Unemployment compensation is payable to certain individuals seeking only part-time work.

(2) An individual is not disqualified from unemployment compensation for separations due to certain compelling family reasons.

(3) An additional 26 weeks of unemployment compensation is paid to exhaustees who are enrolled in and making satisfactory progress in certain training programs.

(4) Dependents' allowances of at least $15 per dependent, per week, subject to a minimum aggregation, are paid to eligible beneficiaries.

I hereby certify that both New Jersey State law and the administrative practices of our state Unemployment Insurance program include provisions to carry out requirements number 1 and number 3, listed above, and accordingly, I respectfully request that you determine that New Jersey qualifies for a full distribution of the remaining two-thirds of the Unemployment Modernization Incentive payment.

[See http://www.doleta.gov/Recovery/pdf/

NJ20090318acc.pdf.]

Because the Stimulus Act only obliges states to adopt two of the four alternatives to obtain incentive payments, New Jersey was permitted to not provide for the expansive definition of "compelling family reasons." Accordingly, Siller is not entitled to receive unemployment benefits due to her voluntary resignation when she relocated with her spouse out of state.2

Affirmed.

1 The application for the first one-third installment was filed on March 5, 2009. See http://www.doleta.gov/Recovery/pdf/

NJ20090305acc.pdf. The second two-thirds installment was applied for two weeks later, on March 18, 2009. See http://www.doleta.gov/Recovery/pdf/NJ20090318acc.pdf.

2 We note that unlike New Jersey, when New York applied for its second installment of Stimulus Act incentive payments in June 2009, it modified its unemployment benefits law to fully embrace the "compelling family reasons" definition, including permitting unemployment benefits to be paid if the voluntary job separation was due to relocation to be with a spouse out of state. See http://www.doleta.gov/Recovery/pdf/NY2-3.pdf; New York Labor Law 593(1)(b)(iii).