TANYA S. VIALET 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NOT FOR PUBLICATION WITHOUT THE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-1226-11T2

TANYA S. VIALET,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

LUNDBECK RESEARCH USA,

Inc.,

Respondents.

________________________________________

October 26, 2012

Argued October 17, 2012 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from the Board of Review,

Department of Labor, Docket No. 321,823.

Tanya S. Vialet, appellant, argued the

cause pro se.

Lisa N. Lackay, Deputy Attorney General,

argued the cause for respondent Board of

Review (Jeffrey S. Chiesa, Attorney

General, attorney; Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Ms. Lackay, on the brief).

Respondent Lundbeck Research USA, Inc.,

has not filed a brief.

PER CURIAM

Appellant Tanya S. Vialet appeals from a final decision of the Board of Review which found that she was ineligible to receive unemployment compensation benefits during the period of time in which she was out of the country on a preplanned family vacation. We affirm.

Vialet was employed as a senior research associate at Lundbeck Research U.S. , Inc., from March 26, 2003, to September 22, 2010. After separating from her employment, she applied for and was found eligible to receive unemployment compensation benefits. She received $600 per week in benefits from October 10, 2010, until December 11, 2010. On December 15, 2010, Vialet traveled to Jamaica to attend her sister's wedding, where she was the maid of honor. After the wedding, she flew to the United States Virgin Islands to visit her husband's parents, who had not "been feeling very well." Although she planned to return on December 27, 2010, inclement weather delayed her departure, and she did not return to this country until December 31, 2010.

On these facts, the Board of Review found Vialet ineligible to receive unemployment compensation benefits from December 12, 2010 to January 1, 2011, pursuant to N.J.S.A. 43:21-4(c)(1), which provides that an unemployed individual may receive benefits for any week in which "[t]he individual is able to work, and is available for work, and has demonstrated to be actively seeking work." Vialet argues that the Board's strict interpretation of the "availability" requirement under the statute, construing it to require her physical presence in the country, is arbitrary, capricious, and unreasonable. According to Vialet, the Board's decision ignores the modern capacity of the internet to provide individuals with an electronic means of both searching for jobs and responding to inquiries from prospective employers. She also asserts that, although she did not receive an offer of employment during the relevant period of time, she would have been available to start work in January 2011.

In response, the Board of Review notes that a voluntary vacation to attend a family wedding or to visit ailing relatives is not one of the statutorily recognized exceptions to the "availability" requirement under N.J.S.A. 43:21-4(c)(1). The exceptions recognized by the Legislature are: compulsory, unpaid vacation, N.J.S.A. 43:21-4(c)(3); participation in approved, training programs, N.J.S.A. 43:21-4(c)(4); jury duty, N.J.S.A. 43:21-4(c)(5); attending an immediate family member's funeral, N.J.S.A. 43:21-4(c)(6); and participation in an approved, self-employment program, N.J.S.A. 43:21-4(c)(7). Finally, the Board argues that under the "availability to work" test, first articulated by the Supreme Court of New Jersey in Krauss v. A & M Karagheusian, Inc., 13 N.J. 447, 457-58 (1953), Vialet must show that while she was on vacation she was willing, able, and ready to accept suitable work that she would not have had "good cause to refuse," and that during the period in question she was "genuinely attached to the labor market." See also Vasquez v. Bd. of Review, Dep't of Labor & Indus., 127 N.J. Super. 431, 434 (App. Div.), certif. denied, 65 N.J. 559 (1974).

Our scope of review of an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging an agency's decision, the claimant carries a substantial burden of persuasion, and a presumption of correctness is afforded to the administrative agency's determination. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also accord substantial deference to an agency's interpretation of a statute that the agency is charged with enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will uphold an agency determination, unless it is arbitrary, capricious, unreasonable, unsupported by substantial, credible evidence in the record, or inconsistent with either legislative policy or the agency's enabling statute. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (citing Gloucester Cnty., supra, 93 N.J. at 391).

Mindful of this standard of review, we discern no reason to overturn the Board of Review's decision denying Vialet's unemployment compensation benefits during the period of time in which she was out of the country, unavailable pursuant to N.J.S.A. 43:21-4(c)(1). Although the modern marketplace and the environment in which employment opportunities arise may have dramatically changed since Krauss and Vazquez were decided, the principles, articulated in those decisions, defining "availability" under N.J.S.A. 43:21-4(c)(1) remain legally viable and are readily applicable to this case. Vialet's voluntary decisions to attend a family wedding in Jamaica and to visit her relatives in the United States Virgin Islands left her unavailable to accept suitable employment during the period of time in which she was not in the country. Her efforts to remain electronically linked to the marketplace did not overcome her physical absence because, by her own admission, she would not have been able to start any prospective job until January 2011.

A