BELINDA MENDEZ-AZZOLLINI VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1154-17T3

BELINDA MENDEZ-AZZOLLINI,

Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and IRVINGTON BOARD OF
EDUCATION,

Respondents.
____________________________

Submitted December 5, 2018 – Decided March 15, 2019

Before Judges Fuentes and Moynihan.

On appeal from the Board of Review, Department of
Labor, Docket No. 125,174.

Caruso Smith Picini, PC, attorneys for appellant
(Timothy R. Smith, of counsel; Steven J. Kaflowitz, on
the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
 Assistant Attorney General, of counsel; Aaron J. Creuz,
Deputy Attorney General, on the brief).

Respondent Irvington Board of Education has not filed
a brief.

PER CURIAM

Belinda Mendez-Azzollini appeals from the Board of Review's (Board)

final administrative decision affirming the Appeal Tribunal's August 14, 20171

determination. Appellant argues the Board's statutory interpretation –

concluding that, although appellant was paid by her employer, she was also

required "to perform the necessary service for remuneration in order to requalify

[for unemployment benefits], in accordance with N.J.S.A. 43:21-4(e)(6)" – was

erroneous. We agree the Board's interpretation of the eligibility requirements

was erroneous and reverse.

Appellant was employed as a guidance counselor for the Irvington Board

of Education (employer) until she was removed from her position in June 2016.

The employer pursued tenure revocation charges against appellant and during

the ensuing arbitration process she was reinstated to her position on January 4,

2017. After the arbitrator rendered her decision, appellant was terminated in

1
The date we refer to is the "mailing date" for the Appeal Tribunal's decision.

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2
late May 2017.2 She filed a transitional claim for benefits in late June 2017.

Appellant's prior June 2016 unemployment claim established a weekly benefit

rate of $657.

In affirming the determination of the Deputy Director of the New Jersey

Department of Labor and Workforce Development – Division of Unemployment

and Disability Insurance, the Appeal Tribunal concluded appellant was

ineligible for benefits under N.J.S.A. 43:21-4(e)(6) which sets forth the

eligibility requirements for a claimant who applies for benefits in a successive

benefit year after collecting benefits:

The individual applying for benefits in any successive
benefit year has earned at least six times his previous
weekly benefit amount and has had four weeks of
employment since the beginning of the immediately
preceding benefit year. This provision shall be in
addition to the earnings requirements specified in
paragraph (4) or (5) of this subsection, as applicable.

It is not disputed that appellant's earnings during her reinstatement from January

to May met the statutory requirement or that she was paid for more th an four

2
Various termination dates or dates of last-pay appear in the record: May 25,
27 and 28, 2017. The discrepancy does not impact our analysis.

A-1154-17T3
3
weeks.3 The Appeal Tribunal considered the statutory definitions of

"employment," N.J.S.A. 43:21-19(i)(1)(A); "wages," N.J.S.A. 43:21-19(o); and

"remuneration," N.J.S.A. 43:21-19(p) and held "[i]n order to requalify for the

successive claim, [appellant] must have 'had four weeks of employment,' which

in accordance with [the statutory definition of employment] means she had to

have performed service for remuneration."

Appellant, during the period of her reinstatement, was placed on, what

was referred to during the Appeal Tribunal hearing as "administrative

reassignment." While the tenure arbitration proceedings were pending, the

employer directed appellant not to report in accordance with her regular

schedule: Monday through Friday from 8:00 a.m. until 3:00 p.m.; she was told

not to report to school at all, although she received full pay and made all payroll

contributions. The Appeal Tribunal concluded appellant did not perform any

service for the remuneration paid by the employer and as such, she did not

requalify under N.J.S.A. 43:21-4(e)(6).

Our review of an administrative agency decision is limited. Brady v. Bd.

of Review, 152 N.J. 197, 210 (1997). Administrative agency decisions are

3
Appellant earned over $28,000 from January to May 2017 based on her annual
salary of just under $70,000, far in excess of six times her $657 weekly benefit
amount.
A-1154-17T3
4
sustained unless they are arbitrary, capricious, or unreasonable; unsupported by

substantial credible evidence in the record; or contrary to express or implied

legislative policies. Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219

N.J. 369, 380 (2014); Lavezzi v. State, 219 N.J. 163, 171 (2014). "[A]n

appellate court should give considerable weight to a state agency's interpretation

of a statutory scheme that the [L]egislature has entrusted to the agency to

administer." In re Election Law Enf't Comm'n Advisory Op. 01-2008, 201 N.J.

254, 262 (2010). Although we "defer[] to an administrative agency's findings

of fact," we owe no deference to an agency's conclusions of law and are "not

'bound by [the] agency's interpretation of a statute or its determination of a

strictly legal issue.'" Lavezzi, 219 N.J. at 172 (quoting Norfolk S. Ry. Co. v.

Intermodal Props., LLC, 215 N.J. 142, 165 (2013)).

At issue is whether appellant "had four weeks of employment" during her

period of reinstatement. N.J.S.A. 43:21-4(e)(6). "Employment" is defined in

N.J.S.A. 43:29-19(i)(1)(A) as: "service performed on or after January 1, 1972

. . . for remuneration or under any contract of hire, written or oral, express or

implied." Although "'[w]ages' means remuneration paid by employers for

employment," N.J.S.A. 43:21-19(o), and "'[r]emuneration' means all

compensation for personal services," N.J.S.A. 43:21-19(p), "services" is not

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defined by the unemployment compensation law (the Act), N.J.S.A. 43:21-1 to

-71.

We follow the familiar statutory-interpretation polestar enunciated by our

Supreme Court:

In construing any statute, we must give words
"their ordinary meaning and significance," recognizing
that generally the statutory language is "the best
indicator of [the Legislature's] intent." DiProspero v.
Penn, 183 N.J. 477, 492 (2005); see also N.J.S.A. 1:1-
1 (stating that customarily "words and phrases shall be
read and construed with their context, and shall . . . be
given their generally accepted meaning"). Each
statutory provision must be viewed not in isolation but
"in relation to other constituent parts so that a sensible
meaning may be given to the whole of the legislative
scheme." Wilson ex rel. Manzano v. City of Jersey
City, 209 N.J. 558, 572 (2012). We will not presume
that the Legislature intended a result different from
what is indicated by the plain language or add a
qualification to a statute that the Legislature chose to
omit. DiProspero, 183 N.J. at 493.

On the other hand, if a plain reading of the
statutory language is ambiguous, suggesting "more than
one plausible interpretation," or leads to an absurd
result, then we may look to extrinsic evidence, such as
legislative history, committee reports, and
contemporaneous construction in search of the
Legislature's intent. Id. at 492-93.

[Tumpson v. Farina, 218 N.J. 450, 467-68 (2014)
(alterations in original).]

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 Inasmuch as our analysis involves more than one section of the Act, we

heed the Court's prescription that

[s]tatutes must be read in their entirety; each part or
section should be construed in connection with every
other part or section to provide a harmonious whole.
When reviewing two separate enactments, the Court
has an affirmative duty to reconcile them, so as to give
effect to both expressions of the lawmakers' will.
Statutes that deal with the same matter or subject should
be read in pari materia and construed together as a
unitary and harmonious whole.
[In re Petition for Referendum on Trenton Ordinance
09-02, 201 N.J. 349, 359 (2010) (citations omitted).]

The language of N.J.S.A. 43:29-19(i)(1)(A) does not limit "employment"

to only those situations involving services if the employee was under any

contract. The Board did not consider, nor is the record clear, that appellant was

under a contract with the employer. Although it seems obvious she was, in light

of her defined days, hours and school year, and from the prosecution of tenure

charges, our review is limited by the record. See, e.g., Berk Cohen Assocs. at

Rustic Vill., LLC v. Borough of Clayton, 199 N.J. 432, 448 (2009) (refusing to

consider possibilities and recognizing the Court is "constrained by the record

before" it).

Nonetheless, the record does reveal that appellant was "ready, willing and

able to" report for duty; indeed, she desired to work. The only reason she did

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not render service to the employer was its decision that she should not. Under

those circumstances, we do not read the statutes to require a claimant actually

work in order to qualify for benefits. Our unemployment compensation

jurisprudence is replete with holdings that recognize that a paid employee need

not provide service in order to be considered an employee. In Battaglia v. Board

of Review, 14 N.J. Super. 24, 26-27 (App. Div. 1951), we held that an employee

who received vacation pay for time he did not work was considered engaged in

full-time work and was not unemployed, N.J.S.A. 43:21-19(m). Our Supreme

Court recognized similar holdings:

Our law is well settled that an employee on paid
vacation for a definite time, who is to return to his job
at the conclusion thereof, remains in "service" and so in
employment during the vacation period and
consequently is not entitled to claim unemployment
benefits therefor. As we said in DiMicele v. General
Motors Corporation, 29 N.J. 427, 435 (1959): "And no
one would suggest that those receiving vacation pay
would also be entitled to unemployment benefits
because no service was rendered during the vacation
period – in the science of logic and correct reasoning,
reductio ad absurdum." To hold otherwise would be
completely at variance with the basic purpose of the law
to provide some income for the worker earning nothing
because he is out of work through no fault or act of his
own.

[Butler v. Bakelite Co., 32 N.J. 154, 164-65 (1960).]

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 We are convinced that an employee need not provide services in order to

be considered employed, especially in cases such as this where the employer

opts to prohibit the employee from reporting for work. An employer's choice to

keep an able-bodied worker from rendering service cannot deprive the worker

from benefits. See Myerson v. Bd. of Review, 43 N.J. Super. 196, 201 (App.

Div. 1957) ("Unemployment compensation is not to be denied persons merely

because the employer or the collective bargaining agreement designates a period

of unemployment as a leave of absence."); see also Teichler v. Curtiss-Wright

Corp., 24 N.J. 585, 597 (1957) (concluding a ready, willing and able worker left

without work and pay because of the employer's decision to temporarily shut

down is entitled to benefits).

We are unpersuaded by the Board's argument that our holding in Bartholf

v. Board of Review, 36 N.J. Super. 349 (App. Div. 1955) should inform our

decision that appellant is disqualified from benefits because she did not earn the

remuneration which the employer paid. In Bartholf we concluded that disability

benefits paid to a worker did not constitute remuneration so as to impact an

employee's unemployment claim. Id. at 355, 357, 359. Instead, we held the

benefits were compensation for wage loss during a disability designed "to fill

the gap left by the [Act]." Id. at 357; see also id. at 354. We pointed out that,

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unlike wages – from which deductions were made as required by law, including

those related to funds that pay benefits – disability payments were free from

such deductions. Id. at 359. Bartholf is inapposite to this matter. Indeed, the

position the Board took in that case supports our holding in this case:

"remuneration may be paid for services either actually performed or which the

individual must be available to perform even though he is not actually called

upon to do so." Id. at 353. The same outcome applies to these facts.

The Act is remedial in nature and must be liberally construed. Teichler,

24 N.J. at 592. In Bartholf, we recognized the legislative objectives of N.J.S.A.

43:21-2

which include the need for protecting unemployed
workers by "the systematic accumulation of funds
during periods of employment to provide benefits for
periods of unemployment," and to that end to require
"the compulsory setting aside of unemployment
reserves to be used for the benefit of persons
unemployed after qualifying periods of employment."

[36 N.J. Super. at 359-60.]

Construing the statutes in that light, we conclude appellant was employed during

her period of reinstatement – during which she was ready, willing and able to

report for work – and contributed to the benefits fund from her wages, thus

protecting its solvency. The employer's decision to keep her from employment

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was certainly within its prerogative. Like a coach, employers can, in most

instances, pick who plays and who sits the bench. We take no issue with its

choice. That choice, however, did not render appellant ineligible for benefits.

Reversed and remanded for proceedings not inconsistent with this

decision, if necessary to determine appellant's entitlement. We do not retain

jurisdiction.

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