SILENT TYPE, INC. v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ROSEANNE GENUARDI SCHULTZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0403-07T30403-07T3

SILENT TYPE, INC.,

Appellant,

vs.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and ROSEANNE GENUARDI

SCHULTZ,

Respondents.

__________________________________

 

Argued: October 8, 2008 - Decided:

Before Judges Cuff and Fisher.

On appeal from the Board of Review, Department of Labor, 148,737.

Randi W. Kochman argued the cause for appellant (Cole, Schotz, Meisel, Forman & Leonard, P.A., attorneys; Ms. Kochman, of counsel and on the brief; Peter E. Lembesis, on the brief).

Brady Montalbano Connaughton, Deputy Attorney General, argued the cause for respondent, Board of Review, Department of Labor (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Connaughton, on the brief).

PER CURIAM

Appellant Silent Type, Inc., the employer of claimant Roseanne Genuardi Schultz, appeals from a final order of the Board of Review (the Board) that found claimant eligible to receive unemployment benefits. The Board held that the employer's unilateral alteration of claimant's work hours was related to her work and her resignation was founded on good cause attributable to her work. We affirm.

Claimant left her work as an administrative assistant at Silent Type on March 26, 2007. She applied for unemployment benefits and her employer protested the application. Following a hearing, the Appeal Tribunal found that claimant commenced her employment in January 2001. Her hours of work were 8:30 a.m. to 4:30 p.m. She was chronically late due to traffic encountered during her commute from her home in Clifton to her place of employment in Fort Lee. Although her employer was upset by her chronic tardiness, claimant was not disciplined.

The Appeal Tribunal also found that Silent Type moved in mid-February 2007 from Fort Lee to Englewood. For the first two weeks, claimant arrived on time. Thereafter, she began to arrive fifteen to twenty minutes late three or four times a week. On March 19, 2007, claimant's supervisor requested her to think about altering her hours from 8:30 a.m. to 4:30 p.m. to 9 a.m. to 5 p.m. Claimant resisted the change because the change gave her insufficient time to arrive at her child's after-school program by 5:30 p.m. On March 23, 2007, claimant's supervisor informed claimant that her hours of work would be changed effective March 26 to 9 a.m. to 5 p.m. Claimant protested because her daughter's after-school program closed at 5:30 p.m. Claimant proposed a compromise whereby she would arrive at 8:45 a.m. and depart at 4:45 p.m.

On Monday, March 26, claimant arrived at 8:45 a.m. Her supervisor informed her that claimant's compromise was not acceptable and that she could not make an exception to accommodate claimant's child care needs. Claimant left her employment that morning.

The Appeal Tribunal concluded that claimant's child care arrangements and needs were a personal reason for leaving her employment. Therefore, it found that she was disqualified from receiving unemployment benefits in accordance with the terms of N.J.S.A. 43:21-5(a).

The Board disagreed with the legal conclusion of the Appeal Tribunal. Moreover, while adopting the Appeal Tribunal findings as substantially correct, the Board supplemented the findings of fact. It expressly found that the after-school program in which claimant's child participated ends at 5:30 p.m. and the program expects the child to be picked up no later than 5:30 p.m. Therefore, the Board rejected the Appeal Tribunal finding that the unilateral alteration of work hours was insubstantial.

The Board proceeded to hold that "[w]henever the cause for a resignation arises as a result of some change in the working conditions initiated by the employer, the cause is attributable to such work. Whether or not the resignation is with or without good cause attributable to such work must be determined by the facts in each case." The Board found claimant left her employment due to the change of hours, the change in work hours was a cause attributable to the work, the change in work hours was substantial, and provided claimant good cause within the meaning of the statute.

N.J.S.A. 43:21-5(a) governs disqualification from receipt of unemployment benefits when a person leaves employment without good cause attributable to the work; it provides

For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . .

Claimant bore the burden of proof that she left work for good cause attributable to her work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997); Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962).

"Good cause" is not defined, but the term has been construed to mean "'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Trupo v. Bd. of Review, 268 N.J. Super. 54, 57 (App. Div. 1993) (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)). "Good cause" is defined in the regulations as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).

Recently, in Utley v. Board of Review, 194 N.J. 534 (2008), the Supreme Court provided guidance in evaluating whether an employer-initiated change of terms and conditions of employment constitutes good cause attributable to the work that will allow an employee who leaves employment due to the change to receive unemployment benefits. Utley had taken public transportation to his job for years. Due to impaired vision, he could not drive a car. Id. at 537-38. After thirteen years, the employer unilaterally changed his shift. The employee could get to work by bus but no bus operated at the end of his shift at midnight. Id. at 538. The employee made alternate arrangements for a ride home with another employee. Ibid. When that employee took a two week leave to care for an ill family member, the employee's efforts to arrange alternative transportation failed. When the employer denied the employee's request to take accrued vacation time, he left his job. Id. at 538-39. Concluding that the employee's inability to get to work was a personal problem not attributable to his work, the employee was denied unemployment benefits. Id. at 539-40.

The Court observed that the New Jersey Compensation Act protects only those employees who are involuntarily unemployed. Id. at 543-44. Employees who are terminated by their employers or who leave their positions for good cause attributable to the work are eligible to receive unemployment benefits. Ibid. The Court reiterated that "when 'commuting problems' arise solely from the personal circumstances of the worker, unrelated to an alteration in the terms or conditions of employment, the worker who voluntarily quits his job cannot show 'good cause' qualifying him for benefits." Id. at 544-45 (citing Self v. Bd. of Review, 91 N.J. 453, 460 (1982)).

On the other hand, the Court held that when the transportation problem is caused by a unilateral change in working conditions initiated by the employer, eligibility for benefits is determined on a careful balancing and evaluation of all factors. Id. at 549-50. Thus, a person who leaves employment due to a transportation problem is not automatically ineligible for benefits. Id. at 551. When an employer causes or exacerbates a transportation problem, the cause for separation may be considered good cause attributable to the work. Ibid.

Here, the change of hours did not create a transportation problem. It did, however, create a child care problem. The arrangements made by an employee for child care are personal, and a child care problem that arises due to program changes or personnel changes with child care that precipitates a person to leave their job is a cause that is not attributable to the work. See Rolka v. Bd. of Review, 332 N.J. Super. 1, 4-6 (App. Div. 2000) (remanding for determination whether separation was caused by employer's relocation or due to personal reasons including child care). On the other hand, when an employer unilaterally changes an employee's hours and that change directly effects established child care arrangements, that alteration may be regarded as good cause for leaving employment attributable to the work.

Here, the Board found that the after-school program selected by claimant for her child closed at 5:30 p.m. The unilateral alteration of claimant's hours created a considerable obstacle to claimant. The child care arrangements had been in place for a prolonged period of time, claimant had been provided little time to procure alternate arrangements, and the employer rejected out-of-hand a reasonable compromise on working hours. Under these circumstances, we affirm the decision of the Board that the cause of separation was attributable to the employee's work. We do not retreat from the rule that generally child care arrangements are not considered work-related. However, where the employer suddenly and unilaterally changes work hours that significantly impair an employee's child care arrangements, and the employer rejects a reasonable compromise on hours, an employee who leaves employment in such circumstances may establish good cause attributable to the work.

Affirmed.

 

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A-0403-07T3

November 5, 2008