NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2940-15T3
CYNTHIA M. BLAKE,
APPROVED FOR PUBLICATION
Appellant,
September 28, 2017
v.
APPELLATE DIVISION
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and LAUREL HEALTHCARE,
LLC,
Respondents.
_______________________________________________
Submitted June 6, 2017 – Decided September 28, 2017
Before Judges Messano, Suter and Grall.
On appeal from the Board of Review,
Department of Labor, Docket No. 068,871.
South Jersey Legal Services, Inc., attorneys
for appellant (Alan W. Lesso, on the
briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review,
Department of Labor (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Lauren J. Zarrillo, Deputy Attorney
General, on the brief).
Respondent Laurel Healthcare, LLC has not
filed a brief.
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Nearly six decades ago, the Legislature amended New
Jersey's Unemployment Compensation Law (the UCL), N.J.S.A.
43:21-1 to -56, disqualifying applicants from receiving
unemployment benefits if they "left work voluntarily without
good cause attributable to such work." Yardville Supply Co. v.
Bd. of Review, 114 N.J. 371, 374 (1989) (quoting N.J.S.A. 43:21-
5(a)). "Accordingly, benefits are available to a worker who
voluntarily leaves his job only if it [was] for 'good cause
attributable to [the] work.'" Utley v. Bd. of Review, 194 N.J.
534, 544 (2008) (quoting N.J.S.A. 43:21-5(a)). A worker who
leaves "for personal reasons, however compelling, . . . is
disqualified under the statute." Ibid.; see also Ardan v. Bd.
of Review, 444 N.J. Super. 576, 585 (App. Div. 2016) ("An
employee who leaves work for good, but personal, reasons is not
deemed to have left work voluntarily with good cause."), certif.
granted, 229 N.J. 135 (2017).
The disqualification extends from the week the employee
leaves work, "and for each week thereafter until [she] becomes
reemployed . . . works eight weeks . . . and has earned . . . at
least ten times [her] weekly benefit rate." N.J.S.A. 43:21-
5(a). The current disqualification period represents an
extension, from four to eight weeks and from six to ten times
the benefit rate, which enactment coincided with changes to
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other provisions of the UCL intended to "reduce[] unemployment
insurance (UI) tax rates" imposed on employers. L. 2010, c. 37,
§ 2; Senate Labor Comm., Statement to S. 1813 (May 10, 2010).
This appeal requires us to construe the following language
added to N.J.S.A. 43:21-5(a) in 2015, which provides the
disqualification
shall not apply to an individual who
voluntarily leaves work with one employer to
accept from another employer employment
which commences not more than seven days
after the individual leaves employment with
the first employer, if the employment with
the second employer has weekly hours or pay
not less than the hours or pay of the
employment of the first employer, except
that if the individual gives notice to the
first employer that the individual will
leave employment on a specified date and the
first employer terminates the individual
before that date, the seven-day period will
commence from the specified date.
[N.J.S.A. 43:21-5(a), as amended by L. 2015,
c. 41 § 1 (emphasis added).]
In this case, Cynthia M. Blake provided her employer,
Laurel Healthcare LLC (Laurel), with two weeks' notice that she
was leaving her position to begin working for Alaris Healthcare
(Alaris) at an increased hourly wage. Two days before she was
to start, Alaris told Blake the position was no longer
available. When Blake tried to rescind her resignation, Laurel
informed her it no longer required her in a full-time capacity.
The Deputy denied Blake's application for unemployment benefits
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because she left work voluntarily without good cause
attributable to the work. N.J.S.A. 43:21-5(a).1
The Tribunal affirmed the Deputy's decision, reasoning the
Amendment's exception applied only if Blake actually commenced
her employment with Alaris. In its final decision, the Board of
Review (the Board) agreed with the Tribunal's reasoning and
affirmed Blake's disqualification. This appeal followed.
Blake argues the plain language of the Amendment does not
impose "a commencement requirement."2 She contends the
Legislature intended "to protect a worker against a situation
where . . . she leaves one job for a better job which
subsequently falls through." The Board counters that the
Amendment's plain language required Blake to commence work with
Alaris in order for the exception to apply. It further contends
1
At the time of the hearing before the Appeal Tribunal (the
Tribunal), Blake continued to work for Laurel in a part-time
capacity, had not found full-time employment and had not yet
worked eight weeks earning the minimum of ten times her weekly
benefit rate of $325 which would otherwise requalify her for
unemployment benefits. See N.J.S.A. 43:21-5(a).
2
The Tribunal cited N.J.A.C. 12:17-9.1(e)(9) as supporting its
conclusion. That regulation provides: "An individual's
separation from employment shall be reviewed as a voluntarily
leaving work issue where the separation was for the following
reasons including . . . [t]o accept other work." We agree with
Blake that the Tribunal inexplicably engrafted language on the
regulation that does not exist. The Board concedes this point.
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the legislative history of the Amendment supports that
interpretation.
In a recent opinion, a panel of our colleagues essentially
accepted Blake's interpretation of the Amendment and rejected
the Board's. See McClain v. Bd. of Review, ___ N.J. Super. ___,
___ (App. Div. 2017) (slip op. at 2) ("We reject the Board's
interpretation and reverse, finding a claimant need not actually
start the new employment to be exempt from disqualification
under N.J.S.A. 43:21-5(a)."). We respectfully disagree with our
colleagues and conclude the Amendment's exception does not apply
unless the employee accepts employment with another employer
"which commences not more than seven days after the individual
leaves employment with the first employer." N.J.S.A. 43:21-
5(a). We therefore affirm the Board's decision.
We need not reiterate the applicable standards that guide
our review, which the panel capably explained in McClain.
McClain, supra, slip op. at 5-6. Our colleagues determined
"nothing in the plain language of the [A]mendment support[ed]
the imposition of . . . a condition" that "[the] claimant
actually commence the new employment within the seven-day
period." Id. at 10. We disagree. In our view, the plain
language of the Amendment fully supports the Board's position.
5 A-2940-15T3
The acceptance of a commensurate position with another
employer does not trigger the Amendment's exception to
disqualification. Rather, it is only the employee's acceptance
of "employment which commences not more than seven days after
the individual leaves employment with the first employer,"
N.J.S.A. 43:21-5(a)(emphasis added), that transforms otherwise
disqualifying conduct — tendering a voluntary resignation — into
an insignificant event for purposes of eligibility.
Interpreting the language of the Amendment by giving the words
their "generally accepted meaning, according to the approved
usage," N.J.S.A. 1:1-1, "which" refers to something previously
mentioned — employment accepted from another employer — and
provides further information about that employment — it
commences within seven days. Oxford English Dictionary,
www.oed.com/view/entry/228284 (last visited Sept. 18, 2017)
(defining "which" as, "[i]ntroducing a clause defining or
restricting the antecedent thus completing the sense.").
Blake would have us read the Amendment to apply whenever an
employee resigns to accept employment "which was intended to
commence" within seven days of the effective resignation date,
but never did. Simply put, we will not "insert language that
the Legislature could have included in [the Amendment] -- but
6 A-2940-15T3
did not." Jersey Cent. Power & Light Co. v. Melcar Util. Co.,
212 N.J. 576, 596 (2013).
Moreover, our construction gives relevancy to the second
portion of the Amendment, which provides "if the individual
gives notice to the first employer that [she] will leave
employment on a specified date and the first employer terminates
[her] before that date, the seven-day period [in which the job
commences] will commence from the specified date[,]" not the
date of termination. N.J.S.A. 43:21-5(a). Obviously, the
Legislature did not want the first employer's sudden and
unilateral decision to terminate the employee who had given
notice to adversely affect her continued eligibility for
benefits simply because the second job commenced more than seven
days later.
Blake's interpretation of the Amendment, adopted by the
panel in McClain, renders unnecessary this second part of the
Amendment. If an employee resigned, yet remained eligible for
benefits by accepting a position that was intended to commence
within seven days of her resignation date, but never did, she
would become eligible for benefits upon the date of her actual
termination. Any difference between the anticipated resignation
date and the actual termination date would be irrelevant. Basic
principles of statutory interpretation require us to "presume
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that every word in a statute has meaning and is not mere
surplusage." Jersey Cent. Power & Light, supra, 212 N.J. at 587
(quoting Cast Art Indus., LLC v. KPMG LLP, 209 N.J. 208, 222
(2012)). Blake's interpretation of the Amendment renders the
second portion nugatory.
Blake argues in her reply brief, "Logically, the failure of
the second job to commence leaves the worker in the same
position as that which occurs when the worker is laid off
shortly after the second job does commence." That may be so,
but the statement ignores the potential consequences to the two
employers and is inconsistent with the Legislature's purpose in
enacting the Amendment, as the legislative history amply
demonstrates.
The Senate Labor Committee's favorable report on S. 2802,
which became the Amendment, made clear that the bill was
intended to "make an exception" from the usual disqualification
under N.J.S.A. 43:21-5(a), "for a worker who leaves one job to
accept a subsequent job at least equal in hours or pay, but is
laid off from the subsequent job." Senate Labor Comm.,
Statement to S. 2082 (June 5, 2014) (emphasis added); see also
Assembly Labor Comm., Statement to S. 2082 (September 11, 2014)
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and Assembly Appropriations Comm., Statement to S. 2082
(February 5, 2015) (same).3
In all instances, the Committees noted that the bill would
not fiscally affect the first employer's contributions to the
unemployment compensation fund, in particular, future rates of
contribution based upon benefit experience. N.J.S.A. 43:21-
7(c)(1).
Another portion of the current law,
[N.J.S.A.] 43:21-7(c)(1), provides that an
employer's UI account is not charged for UI
benefits paid to a claimant if the
employee's employment . . . ended in any way
3
Without specificity, the Committee statements referenced
similar laws enacted by twenty-six states, and regulations
enacted in five others, that had the same purpose. Senate Labor
Comm., Statement to S. 2082 (June 5, 2014). In this appeal,
neither Blake nor the Board have cited to the laws of our sister
states, but the panel in McClain specifically considered two of
them and found the language of those statutes explicitly
provided that the employee actually commence work with the
second employer. McClain, supra, slip op. at 13 n. 3. We
cannot quarrel with our colleagues' analysis in this regard.
However, contrary to the course taken by our Legislature, a
number of other states have included explicit language that
adopts Blake's position, i.e., that commencement of employment
with the second employer was not necessary for the exemption
from disqualification to apply. See, e.g., Alaska Admin. Code
8, § 85.095 (2017) (providing that "leaving work to accept a
bona fide offer" is considered when determining "the existence
of good cause . . . for voluntarily leaving work."); Ariz.
Admin. Code § R6-3-50365 (2017) ("A worker who . . . quits
because he has prospects of other work, but no definite offer,
leaves voluntarily without good cause in connection with his
work."); Cal. Code Regs. 22 § 1256-19(c) (2017) ("An individual
who leaves work to accept other work has good cause for leaving
the work if there was a definite assurance of employment in
another substantially better job.").
9 A-2940-15T3
which would have disqualified the claimant
from UI benefits if the employee had applied
for benefits at the time when the employment
ended, including if the employee voluntarily
left work with that employer without good
cause attributable to that work. Therefore,
under those provisions of the current law,
that employer's account would not be charged
when the claimant leaves work with that
employer to accept employment from another
employer, and the claimant is, pursuant to
the provisions of this bill, paid UI
benefits after being laid off by the
subsequent employer, even if the first
employer paid wages to the claimant during
the claimant's base year.
[Senate Labor Comm., Statement to S. 2082
(June 5, 2014); Assembly Labor Comm.,
Statement to S. 2082 (September 11, 2014);
Assembly Appropriations Comm., Statement to
S. 2082 (February 5, 2015) (emphasis
added).]4
4
N.J.S.A. 43:21-7(c)(1) provides:
[A]n employer's account shall not be charged
for benefits paid to a claimant if the
claimant's employment by that employer was
ended in any way which, pursuant to
subsection (a), (b), (c), (f), (g) or (h) of
[N.J.S.A.] 43:21-5, would have disqualified
the claimant for benefits if the claimant
had applied for benefits at the time when
that employment ended. Benefits paid under
a given benefit determination shall be
charged against the account of the employer
to whom such determination relates. When
each benefit payment is made, notification
shall be promptly provided to each employer
included in the unemployment insurance
monetary calculation of benefits. Such
notification shall identify the employer
against whose account the amount of such
payment is being charged, shall show at
(continued)
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The sponsor of S. 2802, Senator Fred H. Madden, was more
explicit:
The bill also provides that an employer's
account will not be charged for UI benefits
paid to a claimant even if: the employer
paid wages to the claimant during the
claimant's base year; the claimant leaves
work with that employer to accept employment
from another employer; and the claimant is
paid UI benefits after being laid off by the
subsequent employer.
[Sponsor's Statement to S. 2802 (May 19,
2014) (emphasis added).]
The Office of Legislative Services (OLS) was asked to
consider the fiscal impact of S. 2802 upon the unemployment
insurance trust fund. In recognizing the difficulty of the
task, OLS noted "there is no data available . . . to quantify
the number of these claimants who had secured future employment
and then were subsequently laid off from the new employment."
Office of Legis. Servs., Legislative Fiscal Estimate to S. 2802
(June 19, 2014) (emphasis added).
The Senate Labor Committee's June 5, 2014 hearing makes
clear that committee members intended to protect an employee who
actually "assume[s] . . . new employment within seven days."
(continued)
least the name and social security account
number of the claimant and shall specify the
period of unemployment to which said benefit
payment applies.
11 A-2940-15T3
Senate Labor Comm. Hearing on S. 2082, (June 5, 2014) (statement
by Senator Madden), http://www.njleg.state.nj.us/media/archive_a
udio2.asp?KEY=SLA&SESSION=2014. The legislators wanted that
employee's eligibility for benefits to carry forward, rather
than cause the eligibility "clock" to "reset to zero" once the
employee started work with the second employer. Ibid.
Finally, as a practical matter, the first employer, in this
case, Laurel, who did nothing to cause Blake to quit, is ill-
equipped to rebut any claim for benefits. We logically assume
that most offers of other employment are not reduced to writing.
Therefore, an employer who participates in a hearing before the
Appeal Tribunal can only testify to what is undisputed, i.e.,
that the employee quit her position. It is unlikely that the
employer could call the second employer, who is not a respondent
to the employee's appeal and may be unknown, as a witness to
challenge whether the claimant actually had received an offer of
employment and what were its terms. Despite this disadvantage,
the first employer would bear the financial consequences of any
benefits awarded. N.J.S.A. 43:21-7(c)(1).
In short, we conclude the plain language of the Amendment,
as well as its legislative history, support the conclusion that
it applies only if the employee voluntarily leaves employment
and actually "commences" employment with a second employer.
12 A-2940-15T3
Affirmed.
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