BENJAMIN TRAN v. BOARD OF REVIEW, DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4949-16T4

BENJAMIN TRAN,

          Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR, MARINA DISTRICT
DEVELOPMENT CO., HARD ROCK
HOTEL & CASINO HOLLYWOOD,
and RIO HOTEL & CASINO,

     Respondents-Respondents.
_____________________________________

                   Submitted October 9, 2018 – Decided December 6, 2018

                   Before Judges Sabatino and Sumners.

                   On appeal from the Board of Review, Department of
                   Labor, Docket No. 112,830.

                   Benjamin Tran, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent Board of Review (Melissa Dutton Schaffer,
                   Assistant Attorney General, of counsel; Rimma
                   Razhba, Deputy Attorney General, on the brief).
            Respondents Marina District Development Co., Hard
            Rock Hotel & Casino Hollywood, and Rio Hotel &
            Casino, have not filed a brief.

PER CURIAM

      The sole issue presented in this appeal is whether the Board of Review,

Department of Labor and Workforce Development (the Board), misapplied the

law in its final agency decision, which denied petitioner Benjamin Tran's

combined-wage claim for unemployment benefits arising from his employment

in Florida and Nevada because it determined that it had no jurisdiction over the

claim given his dispute with the weeks reported for his out-of-state employment.

We affirm because we conclude the Board properly applied the law governing

combined-wage claims.

      Tran filed a combined wage claim for unemployment benefits asserting

$28,278 in wages earned from three employers in New Jersey, Florida, and

Nevada, during the base year period of October 1, 2015, through September 30,

2016. The Deputy Director of the Division of Unemployment and Disability

Insurance (Deputy) determined his weekly benefit rate was $361 with maximum

benefits of $9,025 based upon forty-three weeks. Following Tran's appeal to the

Appeal Tribunal, the Deputy re-determined his decision and increased the

weekly benefit rate to $395 and maximum benefits to $10,270.


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        After the Appeal Tribunal initially dismissed his appeal,1 it was re-opened

for good cause. At the subsequent telephonic hearing, Tran agreed with his

award pertaining to his New Jersey employment but argued that his benefits

should be increased to a weekly rate of $652 and maximum benefits of $16,966

because his former employers in Florida and Nevada had misreported his weeks

worked.2     The Appeal Tribunal declined to address the merits of Tran's

contention; determining that it did not have jurisdiction in a combined wage

claim over the disputed reporting of out-of-state employment, and dismissed the

appeal.

        Tran appealed to the Board, which agreed with the Appeal Tribunal that

New Jersey did not have jurisdiction over the disputed out-of-state employment.

The Board stated that Tran's recourse was to seek relief in those respective

states. This appeal followed.

        The scope of our review of an administrative agency's final determination

is strictly limited. Brady v. Bd. of Review,  152 N.J. 197, 210 (1997). We accord



1
    Tran failed to participate in a scheduled telephone hearing.
2
  Tran submitted supporting paystubs to prove that Florida and Nevada
misreported his actual weeks of work; evidencing ten weeks in Florida, not the
reported eighteen weeks, and nine weeks in Nevada, not the reported eighteen
weeks.
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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). Despite affording "considerable weight to a state

agency's interpretation of a statutory scheme that the legislature has entrusted to

the agency to administer," In re Election Law Enf't Comm'n Advisory Op. No.

01-2008,  201 N.J. 254, 262 (2010), we give deference "to an agency's

interpretation of both a statute and implementing regulation, within the sphere

of the agency's authority, unless the interpretation is 'plainly unreasonable.'"

Ibid. Nevertheless, our review is de novo where an agency "determination

constitutes a legal conclusion." Lavezzi v. State,  219 N.J. 163, 172 (2014). We

overturn an agency determination only if it inconsistent with the enabling statute

or legislative policy. Bailey v. Bd. of Review,  339 N.J. Super. 29, 33 (App. Div.

2001).

      Without citing any law in support, Tran's sole argument before us is that

the Board erred in determining that it did not have jurisdiction over the out-of-

state employment claims to correct alleged misreporting of his weeks worked.

We disagree.

      Because this dispute involves a combined-wage claim, we must adhere to

the applicable federal legislative and regulatory scheme. In accordance with the


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Federal Unemployment Tax Act, the Secretary of Labor may approve

arrangements, which allows the Board to determine a worker's unemployment

benefits based on combined-wage claims from more than one state in order to

qualify for benefits or to receive more benefits. 26 U.S.C. § 3304(a)(9)(B); 20

C.F.R. § 616.1;  N.J.S.A. 43:21-21(b). A combined-wage claimant is defined as

"[a] claimant who has covered wages under the unemployment compensation

law of more than one State and who has filed a claim under this arrangement."

20 C.F.R. § 616.6(d).     A combined wage claim may be filed by "[a]ny

unemployed individual who has had employment covered under the

unemployment compensation law of two or more States, whether or not the

individual is monetarily qualified under one or more of them." 20 C.F.R. §

616.7(a).

      Since Tran filed his claim in New Jersey, the paying state, the Board

            shall request the transfer of a Combined-Wage
            Claimant's employment and wages in all States during
            its base period, and shall determine the claimant's
            entitlement to benefits (including additional benefits,
            extended benefits and dependents' allowances when
            applicable) under the provisions of its law based on
            employment and wages in the paying State, and all such
            employment and wages transferred to it hereunder. The
            paying State shall apply all the provisions of its law to
            each determination made hereunder, except that the
            paying State may not determine an issue which has
            previously been adjudicated by a transferring State.

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             [20 C.F.R. § 616.8(a).]

In this matter, Nevada and Florida are the "transferring" states as defined by 20

C.F.R. § 616.6(f), which provides "[a] State in which a Combined-Wage

Claimant had covered employment and wages in the base period of a paying

State, and which transfers such employment and wages to the paying State for

its use in determining the benefit rights of such claimant under its law."

       Tran disputes the amount of weeks reported for his employment in Nevada

and Florida. However, federal law dictates that where a combined-wage claim

appeal involves "a dispute as to . . . the amount of employment and wages subject

to transfer, the protest, request for redetermination or appeal shall be decided by

the transferring State in accordance with its law." 20 C.F.R. § 616.8(d)(3)

(emphasis added).

       Accordingly, the Board's decision that it lacks jurisdiction to determine

Tran's challenge to the employment weeks reported by his former employers in

Nevada and Florida is not contrary to the express directive of the controlling

law.

       Affirmed, without prejudice to appellant seeking recourse in the

transferring states.



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