AMY B. WEINBERGER 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NOT FOR PUBLICATION WITHOUT THE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-0

AMY B. WEINBERGER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and KEATING WEINBERGER,

C.P.A.,

Respondents.

_______________________________

February 7, 2014

Submitted January 28, 2014 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Board of Review, Department of Labor, Docket No. 282,733.

Amy B. Weinberger, appellant pro se.

John J. Hoffman, Acting 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).

Keating Weinberger, C.P.A., respondent pro se.

PER CURIAM

Claimant Amy B. Weinberger appeals from a February 9, 2012 decision of the Board of Review, which in turn affirmed an October 27, 2011 decision of the Appeal Tribunal. For the reasons that follow, we affirm.

This appeal is controlled by N.J.S.A. 43:21-19(i)(7)(C), which precludes an employee from qualifying for unemployment benefits based on services performed while employed by his or her spouse. See Lazar v. Board of Review, 77 N.J. Super. 251, 257 (App. Div. 1962). To qualify for benefits, an unemployed person must have previously worked for a certain number of weeks that qualified as "employment" under the statute and/or must have earned at least a certain amount in wages performing qualifying employment. See N.J.S.A. 43:21-4(e)(4)(A), (B). The majority of the employment weeks on which claimant based her claim were weeks during which she worked as an office manager for her husband, an accountant.1 Hence, under N.J.S.A. 43:21-19(i)(7)(C), those weeks could not be considered in the eligibility calculation and, without those weeks, she could not qualify for benefits.

Claimant also managed the accounting office for a relatively short period of time before the marriage, from October 2005 to January 15, 2006. However, she did not earn enough during that time to qualify for benefits based on a calculation of her wages. At an unemployment hearing on February 14, 2011, she claimed that during the first quarter of 2006, she also worked at a restaurant in Philadelphia. However, although the hearing examiner gave claimant an opportunity to fax in proof of her earnings at the restaurant, she did not do so.

Because claimant applied for and received $25,940 in benefits between September 30, 2006 and January 2, 2010, she was ordered to refund those benefits. See N.J.S.A. 43:21-16(d). She was not accused of fraud in the receipt of benefits, but only receipt due to error. Therefore, no penalties were assessed.

On this appeal, claimant only challenges the refund order for $7248, attributable to her receipt of benefits during the first quarter of 2006.2 She concedes that she did not qualify for benefits based on her employment by her husband after their marriage, and that she did not have sufficient earnings from that job prior to the marriage. She asserts that she "feel[s] extremely certain" that she earned enough from the restaurant to qualify for benefits. However, she did not list the restaurant as an employer in her initial benefit application and, despite being offered additional time to submit evidence, she did not provide the hearing examiner with any W-2 forms or tax returns to document her restaurant earnings.

On this appeal, we will not disturb the Board's decision so long as it is supported by sufficient credible evidence and is consistent with applicable law. See Brady v. Board of Review, 152 N.J. 197, 210-11 (1997). In light of that very deferential standard, we find no basis to reverse the Board's determination that claimant did not earn enough during the relevant employment period to qualify for unemployment benefits. It was claimant's burden to establish her entitlement to benefits. Id. at 218. She had an opportunity to document her qualifying earnings at other employment but did not do so. Accordingly, even if she received the benefits in error and with no wrongful intent, we find nothing arbitrary in the Board's decision to require claimant to repay the benefits. See Bannan v. Board of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).

Affirmed.

1 The husband, Keating Weinberger C.P.A., was a sole proprietor. It appears that claimant may initially have obtained benefits due to the agency's mistaken belief that she was employed by an accounting firm that was a corporation.

2 Claimant's husband, who is nominally a respondent, filed a brief in support of her appeal. The Board filed a brief opposing the appeal.