DIANE BRUYNELL v. BOARD OF REVIEW DEPARTMENT OF LABOR and BRUYNELL ELECTRIC, L.L.C

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DIANE BRUYNELL,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and BRUYNELL

ELECTRIC, L.L.C.,

Respondents.

____________________________

February 12, 2016

Submitted February 1, 2016 Decided

Before Judges Accurso and Suter.

On appeal from the Board of Review, Department of Labor, Docket No. 009,315.

Thompson Becker & Bothwell, L.L.C., attorneys for appellant (Kevin M. Bothwell, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Anthony DiLello, Deputy Attorney General, on the brief).

Respondent Bruynell Electric, LLC has not filed a brief.

PER CURIAM

Diane Bruynell appeals from a final determination of the Department of Labor's Board of Review that she is disqualified from receiving unemployment compensation benefits because her work as the office manager of her husband's sole proprietorship does not qualify as "employment" pursuant to N.J.S.A. 43:21-19(i)(7)(C). Because we can find no error in the Board's application of the controlling law to the facts of Bruynell's situation, we affirm.

Bruynell worked as the office manager for Bruynell Electric, L.L.C. for fourteen years. She claims the company paid all required federal and state payroll taxes throughout her tenure "as if she were an employee eligible for unemployment and disability benefits" and withheld from her pay her required federal and state contributions. The Board does not dispute those facts, and we accept them as true.

Following her last day of work in December 2013, Bruynell filed a claim for unemployment benefits. The Division of Unemployment Insurance denied the claim on the basis that Bruynell was employed by her spouse, who is considered a sole proprietor because he is the only member of Bruynell Electric. See N.J.A.C. 12:16-11.2(c) ("An LLC consisting of one member shall be classified as a sole proprietorship unless the LLC elected a corporate classification for Federal income tax purposes by completing IRS Form 8832; or if the member is a corporation.").

Bruynell appealed the decision. The Appeal Tribunal affirmed, finding because Bruynell was employed by her husband, N.J.S.A. 43:21-19(i)(7)(C) exempts her services from the definition of employment.1 Bruynell further appealed to the Board, which found she had been afforded a full and impartial hearing and it "agree[d] with the decision reached" on "the basis of the record below." Addressing Bruynell's contention that she paid all "taxes and contributions as if her employment was considered covered employment," the Board concluded "voluntary payments do not constitute an application for the election of coverage."

In her appeal to this court, Bruynell does not contest the applicability of N.J.S.A. 43:21-19(i)(7)(C). She contends, however, that the Board failed to consider N.J.S.A. 43:21-8(c)(2), which permits an employer to elect coverage for a person providing services otherwise exempt from the definition of employment by filing a written election of coverage. Relying on our decision in Palitto v. Bd. of Review, 312 N.J. Super. 157 (App. Div. 1998), she argues that the payment and reporting of all required federal and state employment taxes should be considered "substantial compliance with the requirements of N.J.S.A. 43:21-8(c)(2)." Bruynell contends that the Board's denial of unemployment benefits after she made all required payroll contributions for fourteen years "is patently unfair" and contrary to our direction to the Board in Palitto.

Bruynell is correct that we determined in Palitto that a woman who worked for her husband in a sole proprietorship, who paid all state and federal payroll taxes and made all required contributions, but whose husband failed to file the written election under N.J.S.A. 43:21-8(c)(2), might still be eligible for benefits notwithstanding N.J.S.A. 43:21-19(i)(7)(C). Palitto, supra, 312 N.J. Super. at 160. We held that

"if the employer had done, by way of payment and reporting, everything that he would have been required to do had he filed the written election, the act of filing may well be regarded as a purely ministerial act whose omission would not defeat the election." Id. at 161. We also suggested to the agency that "the payment and reporting may be deemed to be substantial compliance with the written-election opportunity." Ibid. Because the matter was one of first impression, however, we did not direct the award of benefits. We instead remanded the case to "the agency whose responsibility it is to administer and implement the statute, to make the first determination and to marshal and evaluate the relevant facts." Ibid.

The Department of Labor responded to our decision in Palitto by promptly amending N.J.A.C. 12:16-14.1(b), the regulation governing applications for elections of coverage under N.J.S.A. 43:21-8(c)(2), "to clarify that an employer shall not elect coverage for an individual performing otherwise exempt services solely by virtue of making contributions to the Unemployment Compensation and State Disability Benefits Funds on behalf of that individual."2 See 31 N.J.R. 4218(a) (Dec. 20, 1999). Accordingly, it has been the law of this State since the regulation took effect on February 22, 2000, that election of coverage must be made in writing on the Department's forms, and that the payment of contributions does not constitute an application for the election of coverage for otherwise exempt services. Simply stated, our holding in Palitto is of no avail to Bruynell here.

As determined by the Board, the only relief available to Bruynell is a refund of her contributions for the last two years of her employment. See N.J.A.C. 12:16-14.1(b) ("Any payment of contributions for an otherwise exempt individual shall be reimbursed to the employer for a period of up to not more than two years from the date of payment.").

Affirmed.

1 (i)

(1) "Employment" means

. . . .

(7) Provided that such services are also exempt under the Federal Unemployment Tax Act, as amended, or that contributions with respect to such services are not required to be paid into a state unemployment fund as a condition for a tax offset credit against the tax imposed by the Federal Unemployment Tax Act, as amended, the term "employment" shall not include

. . . .

(C) Service performed by an individual in the employ of his son, daughter or spouse, and service performed by a child under the age of 18 in the employ of his father or mother.

[N.J.S.A. 43:21-19(i)(7)(C).]

Bruynell does not dispute the agency's contention that her services were exempt from the definition of employment under 3306(c)(5) of the Federal Unemployment Tax Act (FUTA), 26 U.S.C.A. 3301 to 3311. See generally Brambila v. Bd. of Review, 124 N.J. 425, 431 (1991) (explaining that eligibility requirements for unemployment benefits in New Jersey mirror those of FUTA).

2 The Department's rule proposal provided

The Department is proposing that N.J.A.C. 12:16-14.1(b) be amended to provide that an election of coverage must be made in writing, on the forms and in the manner prescribed by the Controller or his or her designee. The proposed amendment also provides that the payment of contributions does not constitute an application for the election of coverage for otherwise exempt services, adding that any payment of contributions for an otherwise exempt individual shall be reimbursed to the employer for a period of up to not more than two years from the date of payment. This suggested change is prompted by the decision of the New Jersey Superior Court, Appellate Division, in Palitto v. Board of Review, 312 N.J. Super. 157 (App. Div. 1998). . . . With the proposed amendment to N.J.A.C. 12:16-14.1(b), the Department intends to establish as a rule an uncodified long-standing practice of requiring that voluntary elections of coverage be made by written application, consistent with N.J.S.A. 43:21-8(c)(2) . . . .

[ 31 N.J.R. 4218(a) (Dec. 20, 1999).]