RAUL ACEVEDO 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NOT FOR PUBLICATION WITHOUT THE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-0T4

RAUL ACEVEDO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

and THE HERTZ CORPORATION,

Respondents.

_______________________________________

April 13, 2015

Submitted October 28, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from the Board of Review, Department of Labor, Docket No. 369,534.

Romero Firm, LLC, attorneys for appellant (Custodio A. Romero, of counsel and on the brief; Clarissa R. Cartagena, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Jabobine K. Dru, Deputy Attorney General, on the brief).

Respondent The Hertz Corporation has not filed a brief.

PER CURIAM

Raul Acevedo appeals from the Board of Review's January 13, 2013, order that he was disqualified for unemployment compensation benefits; and he was liable to refund in full the $9987 in benefits he received while he was employed part-time, and to pay a fine in the amount of $2496.75.. For the reasons that follow, we affirm.

On July 15, 2009, Acevedo was laid off from his job at Marjam Supply Company. He applied for unemployment benefits with the Department of Labor's Division of Unemployment and Disability Insurance (Division) and received weekly benefits of $521 for the weeks ending July 19, 2009 through December 26, 2009. Acevedo did not inform the Division that he was working part-time during that time period for respondent The Hertz Corporation. Approximately two years later, the Division learned of Acevedo's part-time employment through its computer cross-match. In responding to the Division's inquiry regarding his undisclosed employment, Acevedo claimed that this was the first time he received benefits and he was confused about what he was supposed to report.

Acevedo appealed the Division Director's January 9, 2012 determination that he refund the benefits he received and pay a fine. At a telephonic hearing, prior to the appeals tribunal, Acevedo contended that he was unaware of his obligation to report his part-time employment. He received the Division's Rights and Responsibilities booklet, which details his obligation to report his part-time employment. However, he contended that he is not fluent in English as Spanish is his native language, and did not read or have someone translate the booklet. Acevedo also contended that when he applied for benefits he told a Division employee of his part-time employment and expected the employment was considered by the Division in determining the benefits he received. However, according to the Division, its computer system did not reflect a report that Acevedo was working part-time at the time he applied for benefits. In addition, for every two weeks while he was receiving benefits, Acevedo reported through the Division's automated telephone system in Spanish that he had not received wages. Acevedo claimed a clerk told him he did not have to report his part-time wages.

In a decision dated November 28, 2012, the Appeal Tribunal determined Acevedo failed to report his part-time earnings in violation of N.J.S.A. 43:21-16(d)(1), which provides in pertinent part

When it is determined . . . that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact (whether or not such nondisclosure or misrepresentation was known or fraudulent), or (ii) for any other reason, has received any sum as benefits under this chapter . . . while any conditions for the receipt of benefits imposed by this chapter . . . were not fulfilled in his case, or while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person, unless the director (with the concurrence of the controller) directs otherwise by regulation, shall be liable to repay those benefits in full.

[(Emphasis added).]

In light of Acevedo's four prior unemployment claims and his admission that he did not read his Rights and Responsibilities booklet, the Appeal Tribunal rejected Acevedo's testimony that a clerk told him he did not have to report his part-time wages. The Tribunal found that Acevedo falsely or fraudulently misrepresented his employment. Acevedo was ordered to refund $9,987, the full amount of benefits he received for the weeks ending July 25, 2009 through December 26, 2009. The Tribunal did not give a credit to Acevedo for the benefits he would otherwise have received for partial unemployment, apparently because he falsely or fraudulently represented his unemployment. He was also fined $2,496.75 pursuant to N.J.S.A. 43:21-16(a) for making false or fraudulent statements that he was not earning wages while he was receiving benefits. See N.J.S.A. 43:21-16(a) (stating a fine may be imposed where a claimant "makes a false statement or representation, knowing it to be false, or knowingly fails to disclose a material fact."). In addition, Acevedo was disqualified for benefits for one year. See N.J.S.A. 43:21-5(g)(1) (stating a claimant may be disqualified from receiving benefits for one year if the claimant has received benefits "as the result of any false or fraudulent representation").

On January 13, 2012, the Board of Review agreed with the Appeal Tribunal's decision and rejected Acevedo's appeal. This appeal followed.

We exercise a limited role in reviewing agency decisions involving unemployment benefits. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. We also afford some deference to, although we are not bound by, an agency's interpretation of its governing statute and its own regulations. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). We may intervene when the agency's action is arbitrary, capricious, or unreasonable, or "'clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Applying these principles, we discern no basis to disturb the Board's decision. Acevedo's appeal is based upon the premise that there is no evidence he committed fraud in receiving benefits. We disagree. The Tribunal and the Board determined Acevedo's testimony that he advised a clerk he was working part-time and was told he did not have to report his earnings was not believable. Acevedo presents no persuasive argument that such finding lacked sufficient factual proof. We are satisfied that the agency's findings are supported by substantial credible evidence in the record.

Acevedo also argues that based upon Hay v. Bd. of Review, 282 N.J. Super. 117 (App. Div. 1995), he is only required to refund the amount of benefits that constitute an overpayment because he may collect benefits while employed part-time pursuant to N.J.S.A. 43:21-3(b). In Hay we held that an employee who commits fraud or fraudulent misrepresentation to obtain benefits must pay back all benefits received. Id. at 199-20. If an employee obtains benefits fraudulently, the consequences include more than repayment. An employee may be required to refund all benefits received, including those to which the employee was otherwise entitled, such as benefits for partial unemployment. See Malady v. Bd. of Review, 76 N.J. 527, 531 (1978) (interpreting N.J.S.A. 43:21-16(d)); cf. Orzel v. Bd. of Review, 386 N.J. Super. 338, 342-43 (App. Div. 2006) (absent a showing of fraud, refund obligation pertains only to overpayment of what was otherwise payable to claimant based on part-time employment). However, given our conclusion that there is sufficient evidence to support the Board's finding that Acevedo made false or fraudulent statements to obtain benefits, this argument is without merit.

Affirmed.