EVAN F. AHERNE v. BOARD OF REVIEW DEPARTMENT OF LABOR and KELLY SERVICES, INC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0454-17T1

EVAN F. AHERNE,

          Petitioner-Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR
and KELLY SERVICES, INC.,

     Respondents-Respondents.
_____________________________

                    Submitted December 17, 2018 – Decided January 23, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from the Board of Review, Department of
                    Labor and Workforce Development, Docket No.
                    113,678.

                    Wasch & Ritson, LLC, attorneys for appellant (Daniel
                    C. Ritson, on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Schaffer,
                    Assistant Attorney General, of counsel; Rimma
                    Razhba, Deputy Attorney General, on the brief).
            Respondent Kelly Services, Inc. has not filed a brief.

PER CURIAM

      Claimant Evan Aherne appeals from the August 14, 2017 final agency

decision of the Board of Review (Board), which reversed the decision of the

Appeal Tribunal (Tribunal). The Tribunal found him unavailable for work,

pursuant to  N.J.S.A. 43:21-4(c), and therefore ineligible for benefits from

January 29 to June 10, 2017. In contrast, the Board determined Aherne quit

work voluntarily without good cause attributable to the work and was therefore

disqualified for benefits as of May 15, 2016, pursuant to  N.J.S.A. 43:21- -5(a).

Having reviewed the record in light of the applicable legal principles, we vacate

the Board's decision and remand for further proceedings.

      We glean the following facts from the record.         Aherne applied for

unemployment benefits, and, on March 1, 2017, the Director of Unemployment

Insurance determined he was eligible for benefits from January 29, 2017.

Aherne's employer, Kelly Services, Inc. (Kelly), appealed the Director's

determination, contending that Aherne left work voluntarily without good cause

attributable to the work.    A telephonic hearing before the Tribunal was

postponed from April 7 to June 14, 2017. At the June 14, 2017 hearing, Susan




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Medina, Kelly's Human Resources representative, and Sara Sanders, Kelly's

Operation Manager, testified. Aherne did not participate in the hearing.

      Medina testified that Aherne began working for Kelly as a "talent advisor"

on October 17, 2011, and worked "on-site at one of [their] client[']s" location

from "Monday through Friday[,]" "[t]ypically 8:00 [a.m.] to 5:00 [p.m.]" In

August 2014, he suffered a disabling "back injury" when "[h]e fell off a ladder

. . . [at] his home." Initially, Kelly accommodated him by allowing him to "come

to work late" or "work at a different site . . . a little closer to his house" a "few

days a week" and "then his regular site the remaining days." Ultimately, Kelly

even allowed Aherne to work "from home one to two days a week."

      However, "around mid-April 2016[,]" his doctor restricted his driving,

requiring him "to work from home on a permanent basis." Because his position

required him to have "on-site interfacing" with clients, employees, and

candidates, Kelly was "unable to accommodate that final request." Instead,

Medina encouraged Aherne to apply "for disability" or look for a "virtual 100%"

work-from-home position within the company database. On April 22, 2016,

Aherne applied for two virtual positions but did not qualify for either. Medina

testified Aherne did not apply for any other position at Kelly but acknowledged




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there was no deadline for him to apply. Nonetheless, she stated there were

"several virtual positions that have been available over [the] time frame."

      According to Medina, "[t]he last day [Aherne] actually was on assignment

was May 15[,] 2016." Kelly "terminated [Aherne] in [its] system on January

31[,] 2017[,]"1 because Aherne "was no longer able to perform the essential

functions of the job" and "failed to apply [for] or secure another position." When

asked whether Aherne "was terminated" or "quit," Medina responded that Kelly

"use[d] [those] terms interchangeably," but "believe[d] it was a mutual"

decision. However, she denied that Aherne ever stated he did not want to work

at Kelly anymore. Instead, "[h]e indicated he did want to work but he could

only work from home." She explained the "actual reason" for the separation

noted "in [their] system [was] that [Aherne] was leaving the workforce."

      Following the hearing, the Tribunal determined that, based on "the

employer's uncontested testimony" that Aherne "[stopped], for unjustified

reasons, seeking available work that he knew existed[,]" Aherne was




1
   Although there was no testimony at the hearing about Aherne's disability
application, the record includes e-mail exchanges between Aherne and Kelly
representatives showing that he was placed on disability until January 29, 2017.


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"unavailable for work with the employer[,]" pursuant to  N.J.S.A. 43:21-4(c),2

and "ineligible for benefits from [January 29] through [June 10, 2017.]" The

Tribunal specifically found that Kelly "separated [Aherne] on [January 31,

2017] because he had stopped, as of [April 22, 2016], applying for other

available work" by "not searching in [Kelly's database]." Therefore, according

to the Tribunal, Aherne "did not . . . leave work voluntarily without good cause

attributable to the work and no disqualification [arose] under  N.J.S.A. 43:21-

5(a)."3 Likewise, "[n]o disqualification [arose] . . . under  N.J.S.A. 43:21-5(b)

as [Aherne] was not discharged for misconduct connected with the work." 4 The

Tribunal remanded the matter to the Director for a determination of Aherne's

potential liability to refund any benefits received.



 2 Under N.J.S.A. 43:21-4(c)(1), "[a]n unemployed individual shall be eligible
to receive benefits with respect to any week eligible only if . . . [t]he individual
is able to work, and is available for work, and has demonstrated to be actively
seeking work[.]"
 3 Under N.J.S.A. 43:21-5(a), an individual is disqualified for benefits "[f]or 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 eight weeks in employment[.]"
 4 Under N.J.S.A. 43:21-5(b), an individual is disqualified for benefits "[f]or the
week in which the individual has been suspended or discharged for misconduct
connected with the work, and for the five weeks which immediately follow that
week, as determined in each case."
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      On the remand, the Director determined that Aherne was liable to refund

$7447 for benefits received from February 4 to April 15, 2017. Aherne appealed

to the Board, asserting that after Kelly terminated him, he actively sought

employment, both within the Kelly database and elsewhere, until he accepted a

position elsewhere on April 13, 2017. He asserted further that there was no

stipulation that his employment search had to be confined to the Kelly database,

and his failure to participate in the hearing was caused by his confusion about

confirming the rescheduled hearing date.

      In its August 14, 2017 decision, the Board "affirmed and adopted" the

Tribunal's "[f]indings of [f]act."    However, the Board disagreed with the

Tribunal's "holding that the separation from work . . . was not for disqualifying

reasons." According to the Board, the evidence showed that Kelly "removed

[Aherne] from company records because [he] was unable to secure another

position within his medical restrictions." The Board relied on N.J.A.C. 12:17-

9.3(b), which provides in pertinent part that:

            An individual who leaves a job due to a physical . . .
            condition or state of health which does not have a work-
            connected origin but is aggravated by working
            conditions will not be disqualified for benefits for
            voluntarily leaving work without good cause
            "attributable to such work," provided there was no other
            suitable work available[,] which the individual could
            have performed within the limits of the disability.

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            When a non-work connected physical . . . condition
            makes it necessary for an individual to leave work due
            to an inability to perform the job, the individual shall
            be disqualified for benefits for voluntarily leaving
            work.

      The Board determined that because "[t]he evidence on the record

support[ed] the conclusion that . . . [Aherne] stopped working due to a physical

condition that was not work related, [Aherne] left work voluntarily without good

cause attributable to the work," and was "disqualified for benefits as of May 15,

2016, pursuant to  N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.3(b)." Moreover,

"[i]n view of the period of disqualification imposed," the Board deemed "the

issue of [Aherne's] availability" as "academic."       Accordingly, the Board

reversed the Tribunal, and subsequently denied Aherne's request to reopen and

reconsider the record. This appeal followed.

      On appeal, Aherne argues that because his employment with Kelly "did

not end on May 15, 2016[,]" but rather "January 31, 2017[,]" as found by the

Tribunal, the Board's determination that his employment with Kelly "terminated

effective as of May 15, 2016, whether voluntarily or otherwise[,]" is

unsupported by the record. Aherne argues further that "rather than making its

determination under N.J.A.C. []12:17-9.3(b)[,] the Board should have found




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[him] to be eligible for . . . benefits under N.J.A.C. []12:17-5.6"5 and "N.J.S.A.

43:21-19(c)(2),"6 notwithstanding the fact that he "was approved for disability

benefits by [Kelly's] third party provider" instead of "the State plan." Aherne



 5 Under N.J.A.C. 12:17-5.6(a), "individuals whose employment is not available"
at the conclusion of "a period of disability compensable under the provisions of
the Temporary Disability Benefits Law,  N.J.S.A. 43:21-25 et seq." may "file[]
a claim for benefits" immediately after the disability period and "may have the
option of using an alternative base year . . . to establish eligibility." Under
N.J.A.C. 12:17-5.6(b), "[a]n individual who files a claim under the provisions
of this section shall not be disqualified for benefits for voluntarily leaving work,
provided the individual contacts the employer and his or her employment is not
available." However, "[i]f the previous position is available, but the individual
is no longer able to perform the duties of the position, the alternative base year
provisions of this section shall not apply." N.J.A.C. 12:17-5.6(a).
 6 N.J.S.A. 43:21-19(c)(2) provides:

             With respect to a benefit year commencing on or after
             June 1, 1990[,] for an individual who immediately
             preceding the benefit year was subject to a disability
             compensable under the provisions of the "Temporary
             Disability Benefits Law,". . . [ N.J.S.A. 43:21-25 et
             seq.], "base year" shall mean the first four of the last
             five completed calendar quarters immediately
             preceding the individual's period of disability, if the
             employment held by the individual immediately
             preceding the period of disability is no longer available
             at the conclusion of that period and the individual files
             a valid claim for unemployment benefits after the
             conclusion of that period. . . . An individual who files
             a claim under the provisions of this paragraph . . . shall
             not be regarded as having left work voluntarily for the
             purposes of [N.J.S.A. 43:21-5(a)].
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continues that "[t]he Board's failure to address those statutory and regulatory

provisions, and determination based on [an] incorrect termination date, [were]

arbitrary and unreasonable." Finally, he asserts that "due in some part to [him]

unfairly being prohibited from participating in the . . . hearing," as well as the

Tribunal's and the Board's failure "to seek significant relevant information from

[Kelly,]" regarding "the terms and conditions of [his] disability leave" or his

"qualifications" for "additional virtual jobs available during [his] disability

leave," the matter should be remanded to the Board for further development of

the record.

      Our scope of review of an administrative agency's decision is limited.

Brady v. Bd. of Review,  152 N.J. 197, 210 (1997). Deference is afforded to the

agency's fact-findings if reasonably based on the proofs. Ibid. "[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. (quoting Charatan v. Bd. of

Review,  200 N.J. Super. 74, 79 (App. Div. 1985)). Although we are not bound

by the agency's interpretation of the law, Utley v. Bd. of Review, Dep't of Labor,

 194 N.J. 534, 551 (2008), "we 'defer to an agency's interpretation of both a


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statute and implementing regulation, within the sphere of the agency's authority,

unless the interpretation is plainly unreasonable,'" Ardan v. Bd. of Review,  231 N.J. 589, 604 (2018) (quoting In re Election Law Enf't Comm'n Advisory Op.

No. 01-2008,  201 N.J. 254, 262 (2010)). Thus, we will not disturb or reverse

the agency's decision unless it was "arbitrary, capricious or unreasonable, or

. . . [un]supported by substantial credible evidence." Bailey v. Bd. of Review,

 339 N.J. Super. 29, 33 (App. Div. 2001).

      Here, we agree that based on the Tribunal's finding of fact, which was

"affirmed and adopted" by the Board, that Aherne's separation from employment

with Kelly occurred on January 31, 2017, the Board's determination that Aherne

was disqualified for benefits as of May 15, 2016, was not supported by

substantial credible evidence in the record. Accordingly, we vacate the Board's

decision and remand for further proceedings. In light of our determination to

remand, we need not address Aherne's remaining arguments at this time and

make clear that nothing within this opinion forecasts any views on the merits of

Aherne's claims. We do note, however, that simple fairness compels further

development of the record to address his disability arguments.

      Vacated and remanded for further proceedings.          We do not retain

jurisdiction.


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