CESAR A. GONZALES SR 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NOT FOR PUBLICATION WITHOUT THE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

CESAR A. GONZALES SR.,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and J & K INGREDIENTS,

INC.,

Respondents.

_________________________________________________________

June 9, 2015

Submitted March 17, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 393,100.

Cesar A. Gonzales, Sr., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

PER CURIAM

Cesar Gonzales appeals from the final decision of the Board of Review (Board), which deemed him ineligible for unemployment benefits based upon the administrative finding that he was terminated from his job for severe misconduct. N.J.S.A. 43:21-5(b). We reverse and remand for the Board to consider whether the grounds for Gonzales' termination constituted severe misconduct under the principles articulated in Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013).

We discern the following facts from the record. Gonzales worked at J&K Ingredients, Inc. (J&K) as a machine operator from November 3, 2011 until May 4, 2012. J&K required employees to work overtime as needed to complete the work. Consequently, while Gonzales' shift started at 3:30 p.m., his ending time fluctuated. J&K used a bio-metric scanner to track attendance and working hours.

According to J&K, on several occasions Gonzales left his shift after working eight hours, but not the required overtime, without receiving permission from his supervisor. In response, J&K gave Gonzales a verbal warning as well as a written warning. During a meeting with his supervisors a few weeks before his termination to discuss his attendance, Gonzales allegedly became "argumentative, abusive, and was insubordinate." On May 4, 2012, Gonzales left work after eight hours without working overtime or notifying his supervisor. J&K terminated Gonzales' employment.

Gonzales filed a claim for unemployment benefits on May 6, 2012. The Deputy Director (Deputy) of the Division of Unemployment Insurance found that Gonzales was disqualified for benefits because he was discharged for simple misconduct connected with his work. Specifically, the Deputy determined that Gonzales left his work "without completing [his] shift and did not notify [the] employer." Gonzales appealed and participated in telephone hearings on November 30, 2012 and January 8, 2013 before the Appeal Tribunal.

In issuing its decision, the Appeal Tribunal found that Gonzales was hired under the expectation that he would "work eight hours [a] day with the possibility of working overtime hours if needed to complete a project." However, the Appeal Tribunal determined that Gonzales "habitually le[ft] early for" several "weeks without notifying his supervisor" and that in response, he "received two prior warnings from the employer regarding his leaving the job early without notification." In modifying the Deputy's determination from simple misconduct to severe misconduct, the Appeal Tribunal found that "[a]s [Gonzales] had received a written warning regarding his attendance, the separation was for severe misconduct." Consequently, the Appeal Tribunal found Gonzales was disqualified for benefits due to severe misconduct pursuant to N.J.S.A. 43:21-5(b).

Specifically, the Appeal Tribunal determined that Gonzales did "not have good cause for" leaving his job early. While noting that Gonzales complained about working overtime, the Appeal Tribunal found that he "did not request a change in his hours of work from the employer" and rejected the employer's offer "to adjust [his] hours of work on several occasions." Moreover, the Appeal Tribunal concluded that Gonzales "failed without justification to take steps necessary to notify the employer of his early departure and the reason thereof" notwithstanding the fact that he "had received a written warning regarding his attendance[.]"

Gonzales appealed the Appeal Tribunal decision to the Board, which issued its final decision on July 9, 2013. The Board affirmed the Appeal Tribunal's decision "[o]n the basis of the record below[.]" This appeal followed.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of the Twp. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations omitted). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence, or inconsistent with the enabling statute or legislative policy. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).

Until 2010, N.J.S.A. 43:21-5(b) identified two types of misconduct that prevented full receipt of benefits, misconduct and gross misconduct. "[G]ross misconduct" is "an act punishable as a crime" and results in a complete disqualification for benefits. Ibid. Misconduct is not defined in the statute but results in an eight-week disqualification from unemployment benefits. N.J.S.A. 43:21-5(b).

In determining what constitutes misconduct, we described the "two-prong standard" as follows: "First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." Silver, supra, 430 N.J. Super. at 53. Misconduct must be "more than simply inadequate job performance that provides good cause for discharge." Parks v. Bd. of Review, 405 N.J. Super. 252, 254 (App. Div. 2009).

In 2010, an intermediate type of misconduct, "severe misconduct," was added to N.J.S.A. 43:21-5(b). L. 2010, c. 37, 2, eff. July 1, 2010. An employee who has been discharged for severe misconduct is disqualified for unemployment benefits until reemployed for at least four weeks and has earned at least six times the employee's weekly unemployment benefit rate. Ibid. The statute does not define "severe misconduct," but does provide examples, such as "repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, . . . abuse of leave" and other "behavior [which] is malicious and deliberate but is not considered gross misconduct as defined in" the statute. Ibid.

However, the threshold of culpability required for severe misconduct, which carries a more stringent disqualification from benefits, cannot be less than that for simple misconduct. Silver, supra, 430 N.J. Super. at 55. As we previously observed, the conduct given as examples under the severe misconduct statute required the same finding of intent, deliberateness, or malice as simple misconduct. Id. at 55-56.

Applying the Silver reasoning here, we are convinced that the Board's decision was not based on the necessary analysis and findings. The Appeal Tribunal apparently inferred that Gonzales' conduct evidenced severe misconduct merely because he left work early without receiving permission from the employer and had previously been given a written warning. However, neither the Appeal Tribunal nor the Board considered whether Gonzales' actions were intentional, deliberate, and malicious, the first prong of the Silver standard. Without this preliminary finding, it is not possible to determine whether an employee was fired for misconduct, let alone severe misconduct.1 Ibid. Accordingly, we reverse and remand this case to the Board to reconsider its decision in light of the principles articulated in Silver and to make the necessary findings and conclusions of law.

Reversed and remanded. We do not retain jurisdiction.

1 On May 18, 2015, the Department of Labor and Workforce Development's new rule, which provided definitions for simple misconduct and severe misconduct to address the Silver analysis, became effective. N.J.A.C. 12:17-2.1. We note that the new definition of severe misconduct requires that the conduct must be "both deliberate and malicious." Ibid.