PATRICIA MAHER v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0167-16T3

PATRICIA MAHER,

        Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT, and HACKENSACK
UNIVERSITY MEDICAL CENTER,

     Respondents.
__________________________________

              Submitted January 16, 2018 – Decided February 2, 2018

              Before Judges Ostrer and Whipple.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              089,382.

              Law Offices of Charles Shaw, PC, attorneys for
              appellant (Karilyn M. Ward, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Jason W.
              Rockwell, Assistant Attorney General, of
              counsel; Adam K. Phelps, Deputy Attorney
              General, on the brief).

              Respondent   Hackensack  University             Medical
              Center has not filed a brief.

PER CURIAM
     Patricia Maher appeals from the Board of Review's decision

finding her ineligible to receive unemployment benefits for the

weeks ending January 16, 2016, through April 2, 2016, and requiring

her to refund the $7752 in benefits she received for that period.

The Board adopted the reasoning of the Appeal Tribunal. We affirm.

     Maher testified before the Appeal Tribunal that Hackensack

University     Medical   Center    terminated       her   employment     as     a

registered nurse in August 2015.         She began receiving unemployment

benefits soon thereafter.          After unsuccessfully searching for

another nursing position, she decided to change careers.                       In

November 2015, she earned a real estate license, and, on January

12, 2016, she began working as a real estate agent for a licensed

broker.   She stated she was an independent contractor and relied

solely on commissions for compensation.

     However, Maher testified she had earned no commissions as of

the June 2016 hearing, although she worked "full-time hours."                 She

participated    in   training,    trailed   other    agents,   reviewed       the

multiple listing service and tried to secure clients. She admitted

that she had not searched or applied for any other job since

September 2015, when she was still looking for a nursing position.

Her nursing license was deactivated a few months later.

     As the Board adopted the Tribunal's decision as its own

without elaboration, we focus on the Tribunal's reasoning.                    The

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Tribunal found that Maher was ineligible for unemployment benefits

beginning with the January 16, 2016 week because she was no longer

available for work, or actively seeking work.    The Tribunal relied

on 
N.J.S.A. 43:21-4(c)(1), which states that an individual is

eligible for benefits "only if . . . [t]he individual is able to

work, and is available for work, and has demonstrated to be

actively seeking work . . . ."       As Maher "dedicate[d] full-time

hours to her self-employment endeavor and has not sought any other

work," she was not available for work.    Relying on 
N.J.S.A. 43:21-

16(d), the Tribunal found that Maher was responsible for refunding

the benefits that were paid to her while she was not available for

work.

     On appeal, Maher contends the Board's decision was arbitrary,

capricious, and unreasonable because she was available for work

and actively seeking work. She also contends that she was eligible

for benefits because she participated in real estate training.

The first argument lacks support in the record.       The second is

based on a misreading of the statute.

     We exercise limited review of the Board's decision.          See

Brady v. Bd. of Review, 
152 N.J. 197, 210 (1997).     We will affirm

the Board's decision if it is supported by substantial credible

evidence, ibid., and, upon our de novo review, we discern no



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mistakes of law, McClain v. Bd. of Review, 
451 N.J. Super. 461,

467 (App. Div. 2017).

     Maher's argument that she was available for work is simply

unsupported by her testimony.         She searched unsuccessfully for

nursing jobs in September 2015 and stopping looking for any jobs

after that.    Instead, she embarked on her career as a real estate

agent, which was a full-time endeavor beginning in January 2016.

Thus,   she   was   not   available   to   work   elsewhere,    which    is   a

requirement of benefit eligibility.         
N.J.S.A. 43:21-4(c)(1).

     It is of no moment in this case that Maher received no

compensation for her work during the period at issue.                   We are

aware that in Borromeo v. Bd. of Review, 
196 N.J. Super. 576, 582-

83 (App. Div. 1984), we held that full-time work did not bar a

claimant's entitlement to unemployment benefits.               But, in that

case, the claimant contended he was using his current job, where

he earned virtually nothing, as a platform to find more appropriate

work and that he was "free to leave [his job] at any time."                Id.

at 582. Maher made no comparable assertion. Rather, she testified

she ceased looking for other employment, focusing instead on her

real estate career.

     Maher also misreads the statute that preserves eligibility

for benefits if a person attends a training program.                The law

requires that the training program be approved by the Division,

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and Maher presented no evidence that her real estate training

program was so approved.         See 
N.J.S.A. 43:21-4(c)(4)(A) (stating

that   a   person    "shall   not   be    deemed    unavailable     for   work    or

ineligible because the individual is attending a training program

approved    for     the   individual     by   the   division   to   enhance      the

individual's employment opportunities") (emphasis added).

       Finally, Maher contends that unemployment compensation should

be available to support the income of a person like herself who

has taken the initiative to start a new career, after a previous

one had reached an end, but has yet to reap any benefits.                        She

makes a policy argument, perhaps one with heightened resonance

with the growth of the so-called "gig economy."                Cf. Gil v. Clara

Maas Med. Ctr., 
450 N.J. Super. 368, 391-92 (App. Div. 2017)

(discussing the changing nature of employment relationships in the

"so-called 'gig economy'") (Ostrer, J., concurring).                  Increasing

numbers of persons who are terminated from traditional employment

may be constrained to resort to independent contracting, despite

compensation that falls short of the unemployment benefits they

would receive if they continued to engage in the futile search for

a traditional job like the one they lost.

       However, it is not our role to consider such policy arguments,

however compelling they may be.               In order to be eligible for

benefits, an individual must be available for work and searching

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for   work,   as    we   have   discussed;    and     an   individual     must    be

"unemployed," which means an individual must earn less than the

amount of his or her weekly benefit, and work less than full-time.

See   
N.J.S.A.     43:21-19(m)(1)(A)       (stating    that    "[a]n individual

shall be deemed 'unemployed' for any week during which . . . [t]he

individual is not engaged in full-time work and with respect to

which his remuneration is less than his weekly benefit rate").

Outside of cases like Borromeo, the law disqualifies a person

engaged in full-time employment, even if that full-time employment

produces no income.

      Finally,     Maher   presents   no    meritorious       challenge    to    the

Division's order that she refund the benefits she was ineligible

to receive.        See Bannan v. Bd. of Review, 
299 N.J. Super. 671,

674-76 (App. Div. 1997); 
N.J.S.A. 43:21-16(d)(1).1

      Affirmed.




1
  We recognize that the agency is empowered to waive a refund
demand when recovery of benefits "would be patently contrary to
the principles of equity."      N.J.A.C. 12:17-14.2(a)(3).  The
Division "shall consider whether the terms of a reasonable
repayment schedule would result in economic hardship to the
claimant." N.J.A.C. 12:17-14.2(d). However, the record does not
reflect that Maher requested a refund waiver, which should be
decided by the Division as a threshold matter. See Mullarney v.
Bd. of Review, 
343 N.J. Super. 401, 410 (App. Div. 2001).


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