ALAINE M. KRAJICEK v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and CATAMARAN MEDIA COMPANY, LLC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5135-16T2

ALAINE M. KRAJICEK,

           Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR, and CATAMARAN MEDIA
COMPANY, LLC,

     Respondents.
_____________________________________

                    Argued September 20, 2018 – Decided October 11, 2018

                    Before Judges Nugent and Reisner.

                    On appeal from Board of Review, Department of Labor,
                    Docket No. 112,164.

                    Alaine M. Krajicek, appellant, argued the cause pro se.

                    Daniel Pierre, Deputy Attorney General, argued the
                    cause for respondent Board of Review (Gurbir S.
                    Grewal, Attorney General, attorney; Melissa Dutton
                    Schaffer, Assistant Attorney General, of counsel;
                    Daniel Pierre, Deputy Attorney General, on the brief).
            Respondent Catamaran Media Company, LLC, has not
            filed a brief.

PER CURIAM

      Claimant Alaine M. Krajicek appeals from a June 9, 2017 final decision

of the Board of Review, affirming a decision of the Appeal Tribunal finding her

disqualified for benefits, because she was fired for simple misconduct connected

with the work.     See  N.J.S.A. 43:21-5(b) (disqualification for misconduct);

N.J.A.C. 12:17-10.5(a)(3) (simple misconduct includes violation of "a

reasonable" workplace rule).      We remand this case to the Board for

reconsideration.

      Claimant's alleged misconduct consisted of violating the employer's

policy requiring that employee salary information be kept confidential. The

employer did not appear at the hearing before the appeals examiner and did not

submit legally competent evidence concerning the policy. At the hearing, the

employee testified that there was no formal rule against disclosing salary

information, an assertion she supported by providing a copy of the company

handbook.    However, claimant admitted that she and other supervisors

understood they were not to disclose "anything specific" about an employee's

salary.



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      Claimant admitted that, in the course of trying to encourage a female

subordinate to pursue a salary increase, she disclosed that the subordinate, who

had been working for the company for more than a year, was being paid less

than newly-hired employees. According to claimant's testimony, she did not

believe that giving such general information, without "an actual [salary]

number" violated the company's policy. It is inferable from the record that at

least one of the newly-hired employees was a male named Tom.

      The appeals examiner rejected claimant's assertion that giving general

information, with no salary numbers, was not a violation of the non-disclosure

rule. In appealing that decision to the Board, claimant asserted, for the first

time, that she never discussed salaries with the subordinate at all. She claimed

that she was "distraught" at the time of the hearing, and was mistaken in making

that admission to the examiner. She apparently attached statements from the

subordinate and a male former employee, which she claimed supported her

contention. The Board declined to consider this new information and adopted

the examiner's decision. On this appeal, claimant argues that there was no

evidence that she actually violated a company policy.

      We are bound to decide this case based on the record before the Board of

Review, and we will not disturb the agency's factual findings as long as they are


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                                       3
supported by substantial credible evidence. See Barry v. Arrow Pontiac, Inc.,

 100 N.J. 57, 71 (1985). We cannot say here that the Board's factual findings,

concerning what claimant told the subordinate, were unsupported by the record.

However, after the Board rendered its decision, the Legislature adopted the New

Jersey Equal Pay Act of 2018 (the EPA). L. 2018, c. 9 (effective July 1, 2018);

see  N.J.S.A. 10:5-12(t). In the EPA, the Legislature recognized that workplace

rules against disclosure of salary information can conceal wage discrimination.

To that end, the Legislature amended the Law Against Discrimination to

specifically prohibit an employer from retaliating against an employee for

sharing salary information with other employees. See  N.J.S.A. 10:5-12 (r); L.

2018, c. 9, §2.

      The EPA was not in effect at the time this incident occurred, and while

claimant asserts the employer acted unfairly toward the female subordinate, she

does not specifically assert that the employer was engaged in equal pay

discrimination. Nonetheless, in light of the Legislature's recent strong policy

statement, embodied in the EPA, we believe the Board should reconsider

whether its current interpretation of the unemployment statute can be

harmonized with the EPA, and whether the rule claimant allegedly violated was

"a reasonable rule of the employer which the individual knew or should have


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                                      4
known was in effect."      N.J.A.C. 12:17-10.5(a)(3) (emphasis added).         In

remanding, we give the Board an opportunity to reconsider its decision; we do

not infer what the Board should decide on remand. We do not retain jurisdiction.

        Remanded.




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