MICHELE M. JELLEY v. BOARD OF REVIEW, DEPARTMENT OF LABOR
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0583-16T2
MICHELE M. JELLEY,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF
LABOR, NEW JERSEY INSTITUTE OF
TECHNOLOGY and STATE OF NEW JERSEY
DEPARTMENT OF HIGHER EDUCATION
KEAN UNIVERSITY,
Respondents.
___________________________________________
Submitted January 17, 2018 – Decided April 10, 2018
Before Judges Carroll and Leone.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
063,129.
Michele M. Jelley, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Robert M. Strang, Deputy Attorney
General, on the brief).
Respondent New Jersey Institute of Technology
has not filed a brief.
Respondent Kean University has not filed a
brief.
PER CURIAM
Claimant Michele M. Jelley appeals the decision of the Board
of Review (Board) affirming the Appeal Tribunal (Tribunal) and
finding her ineligible for unemployment benefits. We affirm.
I.
For every year beginning in 2008 through 2015, claimant was
employed as an English adjunct professor during the regular spring
and fall terms by the New Jersey Institute of Technology (NJIT).
For every year beginning in 2010 through 2015, she was concurrently
employed as an English adjunct professor by Kean University
(Kean).1 Claimant made a claim for unemployment benefits on May
10, 2015, when the spring term ended for both adjunct positions.
She initially received $2552 in benefits payments for the months
of May through July of 2015.
On July 14, 2015, the Deputy Director of the Division of
Unemployment Insurance (Division) determined claimant was
ineligible for unemployment benefits because she had a reasonable
assurance of employment at both colleges for the next regular
1
Claimant was never employed during the summer and winter sessions
except by NJIT for one summer "two to four years ago."
2 A-0583-16T2
term. The Deputy issued a request for refund for the $2552 she
had received. Claimant appealed to the Tribunal.
The Tribunal held a telephonic hearing during which testimony
was heard from claimant. Claimant testified that over the course
of her seven years with NJIT and five years with Kean, she was
typically called "the day before Labor Day Weekend" by both
employers and offered an English course to teach for that fall
term. Teaching a fall course would also guarantee claimant a
position teaching the second half of the English course during the
spring term.
The Tribunal affirmed the Deputy's determination, finding as
follows. Claimant has worked for NJIT every regular term from
2008 through spring 2015. Claimant has worked for Kean every
regular term from 2010 through spring 2015. Claimant would be
notified a few days prior to the start of any regular term whether
either employer needed her to teach a course dependent on student
enrollment numbers. At the conclusion of the spring 2015 term,
claimant was not notified by either employer that her services
would not be needed in the same capacity for the fall 2015 term.
The Tribunal ruled: "Past practice is given considerable weight,
and in this case indicates that employment is reasonably likely
to continue as it has during every regular school term since her
services initially commenced with both employers."
3 A-0583-16T2
Claimant appealed the Tribunal's decision to the Board. In
a January 20, 2016 decision, the Board affirmed the Tribunal's
findings of fact and opinion. Claimant brings this appeal.
II.
We must hew to our limited standard of review. Brady v. Bd.
of Review,
152 N.J. 197, 210 (1997). "'[I]n reviewing the factual
findings made in an unemployment compensation proceeding, the test
is not whether an appellate court would come to the same conclusion
if the original determination was its to make, but rather whether
the factfinder could reasonably so conclude upon the proofs.'"
Ibid. (citation omitted). "If the Board's factual findings are
supported 'by sufficient credible evidence, courts are obliged to
accept them.'" Ibid. (citation omitted). Our review "is limited
to determining whether the agency acted arbitrarily, capriciously,
or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd.
of Review,
197 N.J. 339, 360 (2009).
III.
Based on the facts, we uphold the Board's conclusion that
claimant was disqualified from receiving unemployment benefits.
The Unemployment Compensation Law,
N.J.S.A. 43:21-1 to -24.30,
provides in relevant part that instructors at educational
institutions may not collect unemployment between regular terms
4 A-0583-16T2
if there is a reasonable assurance they will perform services in
the next regular term:
With respect to service performed after
December 31, 1977, in an instructional
research, or principal administrative
capacity for an educational institution,
benefits shall not be paid based on such
services for any week of unemployment
commencing during the period between two
successive academic years, or during a similar
period between two regular terms, whether or
not successive, . . . to any individual if
such individual performs such services in the
first of such academic years (or terms) and
if there is a contract or a reasonable
assurance that such individual will perform
services in any such capacity for any
educational institution in the second of such
academic years or terms[.]
[
N.J.S.A. 43:21-4(g)(1) (emphasis added).]
The Division's regulations similarly provide that "[a]n
employee of an educational institution shall be ineligible for
benefits for any week that begins during the period between
academic years or terms . . . if the employee has reasonable
assurance of returning to work in any such capacity during the
succeeding academic year or term." N.J.A.C. 12:17-12.4(a). The
regulation defines a "reasonable assurance" as "a written, oral,
or other implied agreement." N.J.A.C. 12:17-12.4(a)(1).
As we have explained,
N.J.S.A. 43:21-4(g)(1)
is tailored to meet the unique ten month term
of educational employment. There is a
predictable hiatus in the period during which
5 A-0583-16T2
actual work is performed, due to the summer
vacation, and as long as the employment
relationship continues, no unemployment
compensation is to be paid. Denial of
benefits to these persons "conforms with the
Legislature's intent not to subsidize the
vacation periods of those who know well in
advance that they may be laid off for certain
specified periods."
[Charatan v. Bd. of Review, 200 N.J. Super.
74, 79 (App. Div. 1985) (citation omitted);
see Weber-Smith v. Bd. of Review, 337 N.J.
Super. 319, 323 (App. Div. 2001).]
Under
N.J.S.A. 43:21-4(g)(1), "claimants must demonstrate that
they did not have a reasonable assurance of employment." Id. at
78-79.
We are guided by the Division's long-standing interpretation
of "reasonable assurance" in N.J.A.C. 12:17-12.4. In 2003, the
Division proposed to amend N.J.A.C. 12:17-12.4(b) "by the addition
of the words '[w]here reasonable assurance is subsequently given
to the individual between school years or terms,' before 'any
ineligibility under this section begins the first calendar week
following the date a school employee received reasonable assurance
of recall.'"
35 N.J.R. 1527(a) (Apr. 7, 2003). The proposal
prompted a comment, and a response by the Division, on what
constitutes "reasonable assurance":
COMMENT: The New Jersey School Boards
Association seeks clarification as to what
would constitute a "reasonable assurance" as
6 A-0583-16T2
referenced in N.J.A.C. 12:17-12.4(b),
concerning school employees. . . .
RESPONSE: The Unemployment Compensation Law
provides that an unemployed individual who
works for an educational institution shall be
ineligible for unemployment insurance
benefits if he or she files a claim for
benefits between academic terms if he or she
has a reasonable assurance of performing such
services in a similar capacity during the next
academic term.
The United States Department of Labor has
provided that "reasonable assurance" exists
when there is a written, oral, or implied
agreement that the employee will perform
services in the same or similar capacity
during the ensuing academic year or term.
Additionally, in those cases where there has
been an established pattern of continuing
employment over the course of the individual's
employment with an educational institution,
absent anything to the contrary, a reasonable
assurance may be construed even though the
individual has not received a written
contract.
[
35 N.J.R. 2874(b) (July 7, 2003) (emphasis
added).]
Having expressed that understanding of "reasonable
assurance," the Division adopted the amended N.J.A.C. 12:17-
12.4(b). Ibid. We infer the Division intended "reasonable
assurance" to have the same meaning in N.J.A.C. 12:17-12.4(a) and
(b), which implements (a).
Thus, "the Board grappled with the question facing us during
the proposal and comment period." See Bedford v. Riello, 195 N.J.
7 A-0583-16T2
210, 223 (2008). We read N.J.A.C. 12:17-12.4(a) "along with the
Department of Labor's interpretive analysis" expressed "during the
comment period." See Utley v. Bd. of Review,
194 N.J. 534, 547-
48 (2008). "Because that interpretation by the agency empowered
to administer the laws governing [unemployment insurance] is a
clear and unequivocal one that does no violence to the words of
the rule, we recognize it here." See Bedford,
195 N.J. at 223.
Courts "defer 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."
Ardan v. Bd. of Review, __ N.J. __, __ (2018) (slip op. at 21).
The Division's interpretation was reasonable, because it
accords with the common-sense understanding of "reasonable
assurance." Moreover, our Legislature adopted
N.J.S.A. 43:21-
4(g)(1) "to achieve compliance with the Federal Unemployment Tax
Act," particularly to meet the very similar requirements of 26
U.S.C. § 3304(a)(6)(A)(i). Sulat v. Bd. of Review,
176 N.J. Super.
584, 586 n.1 (App. Div. 1980). In seeking to comply with that
federal statute, courts throughout the nation have held "[a]
pattern of past employment with a school district and the absence
of any indication that the teacher would not be rehired have been
considered to be important factors in finding that a teacher has
a 'reasonable assurance' of reemployment." Allen v. Dep't of
8 A-0583-16T2
Labor,
658 P.2d 1342, 1345 (Alaska 1983) (citing cases); see also
Patrick v. Bd. of Review,
171 N.J. Super. 424, 426-27 (App. Div.
1979) (following such cases from other states).
Here, the record shows "an established pattern of continuing
employment over the course of the individual's employment with an
educational institution."
35 N.J.R. 2874(b). Claimant has worked
every fall and spring term over her seven years of employment with
NJIT, and over her five years of employment with Kean. That
pattern strongly indicated claimant would be reemployed for the
fall term, even if reemployment was dependent on enrollment
numbers. The Division could construe that pattern as a reasonable
assurance of reemployment for the next fall term "absent anything
to the contrary." Ibid.
In her appellate brief, claimant asserts she "was told by her
Supervisors that she would not be contracted for successive terms."
However, there is no evidence in the record to substantiate this
claim. During her telephonic hearing, the Tribunal asked claimant
if NJIT or Kean had provided her with "any information stating
clearly that you would not be returning in a subsequent term."
Claimant replied, "No. I got nothing from them."
In any event, "an established pattern of continuing
employment" may be construed as a reasonable assurance "even though
the individual has not received a written contract." Ibid. A
9 A-0583-16T2
"reasonable assurance of returning to work" does not require "a
written [or] oral agreement," if there is an "implied agreement."
N.J.A.C. 12:17-12.4(a)(1). Here, the established pattern of
claimant's continuing employment provided ample evidence of an
implied agreement giving her a reasonable assurance she would be
reemployed in the fall term.
Claimant provided the Tribunal with a July 30, 2015 letter
from NJIT stating, "To Whom It May Concern: This letter is to
confirm that Ms. Michele Jelley does not currently have an active
assignment at NJIT. Her last date of employment with the
university was May 23, 2015." However, claimant never had an
active assignment for the fall term from either employer on July
30 of any year. Nonetheless, she has been offered reemployment
for the fall term shortly before Labor Day throughout her seven
and five years of employment with NJIT and Kean respectively.
Thus, not having an active assignment on July 30 was not evidence
that she would not be offered a course to teach for the fall term.
Claimant notes she was not hired for the summer sessions at
NJIT at Kean. However, claimant never taught at Kean during the
summer, and taught several years ago during the summer only once
in her seven years at NJIT. Thus, that she did not teach during
the summer did not break her pattern of continuing employment for
the fall and spring regular terms. In any event, the Board found
10 A-0583-16T2
the condensed summer session is not a "regular term" under
N.J.S.A.
43:211-4(g)(1).
IV.
Claimant argues that the Board's ruling is inconsistent with
previous rulings of the Tribunal on similar matters brought by
claimant. However, the facts of claimant's previous successful
appeals are distinguishable.
In July 2009, claimant applied for unemployment benefits for
July-August 2009. The Deputy determined claimant was ineligible
to receive those benefits because she had a reasonable assurance
of reemployment. Claimant appealed and the Tribunal reversed,
stating that a "reasonable assurance was not established until the
claimant was notified that she would be returning [to work]."
However, in 2009, claimant had only been working for NJIT for
one year and had not yet been employed by Kean. Thus, unlike
here, there was no pattern of continuing employment that would
give claimant a reasonable assurance of continued employment.
In May 2012, claimant applied for unemployment benefits for
May–August 2012. The Deputy determined claimant was ineligible
to receive those benefits because she had a reasonable assurance
of reemployment. Claimant appealed and the Tribunal reversed,
stating that the claimant "did not have any expectation to return
11 A-0583-16T2
to work at all . . . . [u]ntil the claimant was notified" by either
employer.
However, in 2012, claimant had been employed by NJIT for four
years and by Kean for two years. Since then, claimant has worked
three more years at both institutions, establishing a much clearer
pattern of continuous employment. In any event, the Tribunal's
decisions on the facts of claimant's 2009 and 2012 appeals did not
prevent it from reaching a contrary result on the more developed
facts of this case.
The Board's decision was supported by credible evidence in
the record, and was not arbitrary, capricious, or unreasonable.
Affirm.
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