NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4319-15T3

PATRICIA J. MCCLAIN,

Appellant, APPROVED FOR PUBLICATION v. August 29, 2017 BOARD OF REVIEW, DEPARTMENT APPELLATE DIVISION OF LABOR, LEARNING EDGE ACADEMY, INC., and KIDS CHOICE ACADEMY,

Respondents.

___________________________________

Argued May 31, 2017 – Decided August 29, 2017

Before Judges Ostrer, Vernoia and Moynihan.

On appeal from the Board of Review, Department of Labor.

Cassandra Stabbert argued the cause for appellant (South Jersey Legal Services, Inc., attorneys; Ms. Stabbert, on the brief).

Melissa Dutton Schaffer, Assistant Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Ms. Schaffer, of counsel; Patrick Jhoo, Deputy Attorney General, on the brief).

Respondents Learning Edge Academy, Inc., and Kids Choice Academy have not filed briefs.

The opinion of the court was delivered by

VERNOIA, J.A.D. A recent amendment to the unemployment insurance law

exempts from disqualification for unemployment benefits "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 . . . the first

employer." L. 2015, c. 41, § 1, codified at N.J.S.A. 43:21-5(a).

Appellant left her first employer after accepting new employment

that was to commence within seven days; her new employer,

however, rescinded the offer before she ever began work. Finding

this statute inapplicable -- because appellant hadn't commenced

her new employment within seven days -- the Board found she was

disqualified from receiving benefits. 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).

I.

Appellant Patricia J. McClain began working as a teacher at

Learning Edge Academy, Inc. in January 2013. She was on

disability leave commencing in August 2015, and was scheduled to

return to work in October.

On October 12, 2015, McClain accepted an offer from Kids

Choice Academy for full-time employment. She immediately

submitted a letter of resignation to Learning Edge.

2 A-4319-15T3 The next day, the director of Kids Choice requested

McClain's permission to contact McClain's former employer and

advised her an appointment would be made for her to be

fingerprinted. Later in the day, the director rescinded the job

offer to McClain because the person McClain was supposed to

replace decided to return to work at Kids Choice. McClain also

received an email from Learning Edge accepting her resignation.

McClain began looking for other jobs. She did not contact

Learning Edge following its acceptance of her resignation

because she did not think Learning Edge would want her to return

since she had resigned.

McClain applied for unemployment benefits. Her claim was

denied and she appealed. The Appeal Tribunal held a hearing,

McClain testified, and the Appeal Tribunal affirmed the denial.

The Appeal Tribunal found McClain resigned from her position

with Learning Edge on October 12, 2015 to accept a higher paying

position with Kids Choice, and that on October 13, 2015, Kids

Choice rescinded the offer "because the employee who originally

held the position decided to return to work."

The Appeal Tribunal explained that a claimant is

disqualified from receiving unemployment compensation benefits

under N.J.S.A. 43:21-5(a) where the claimant "has left work

voluntarily without good cause attributable to such work." The

3 A-4319-15T3 Appeal Tribunal also noted there is an exemption from the

disqualification for

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.

[N.J.S.A. 43:21-5(a).]

The Appeal Tribunal determined McClain was not covered by

the exemption because she did not actually commence employment

with Kids Choice within seven days of her last day of employment

at Learning Edge. The Appeal Tribunal therefore found McClain

was disqualified from receiving benefits under N.J.S.A. 43:21-

5(a).

McClain appealed to the Board of Review. On April 14, 2016,

the Board issued its final agency decision affirming the Appeal

Tribunal's findings and ruling. The Board subsequently denied

McClain's request for reopening. This appeal followed.

II.

Our scope of review of an administrative agency's decision

is limited. In re Stallworth,

(2011). "In

order to reverse an agency's judgment, an appellate court must

find the agency's decision to be 'arbitrary, capricious, or

4 A-4319-15T3 unreasonable, or [ ] not supported by substantial credible

evidence in the record as a whole.'"

(quoting Henry v.

Rahway State Prison,

(1980)). A reviewing

court "may not substitute its own judgment for the agency's,

even though the court might have reached a different result." In

re Carter,

(2007) (quoting Greenwood v. State

Police Training Ctr.,

(1992)).

Generally, "we afford [an] agency great deference" in

reviewing its "interpretation of statutes within its scope of

authority" in recognition of the agency's "specialized

expertise." N.J. Soc'y for Prevention of Cruelty to Animals v.

N.J. Dep't of Agric.,

(2008) (quoting In re

Freshwater Wetlands Prot. Act Rules,

(2004)).

Although an appellate court must give deference to the agency's

findings of facts, "and some deference to its 'interpretation of

statutes and regulations within its implementing and enforcing

responsibility,'" it is "in no way bound by the agency's

interpretation of a statute or its determination of a strictly

legal issue." Utley v. Bd. of Review,

(2008)

(first quoting In re Appeal by Progressive Cas. Ins. Co.,

(App. Div. 1997); then quoting Mayflower

Sec. Co. v. Bureau of Sec.,

(1973)); see also

Reilly v. AAA Mid-Atl. Ins. Co. of N.J.,

, 485

5 A-4319-15T3 (2008) ("[I]f an agency's statutory interpretation is contrary

to the statutory language, or if the agency's interpretation

undermines the Legislature's intent, no deference is required."

(quoting N.J. Tpk. Auth. v. AFSCME, Council 73,

(1997))). An appellate court reviews legal conclusions de

novo. Lavezzi v. State,

(2014).

The Board's decision finding McClain was disqualified from

receiving benefits requires that we interpret a 2015 amendment

to N.J.S.A. 43:21-5(a). Prior to the amendment, the statute

provided that an individual was disqualified from receiving

unemployment compensation 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, which may include employment for the federal government, and has earned in employment at least ten times the individual's weekly benefit rate, as determined in each case.

[N.J.S.A. 43:21-5(a).]

Under the applicable regulation, an individual's separation from

employment was deemed voluntary where the claimant left to

accept work at another employer. N.J.A.C. 12:17-9.1.

6 A-4319-15T3 The 2015 amendment1 to N.J.S.A. 43:21-5(a) added the

following exemption from the disqualification in the statute and

regulation:

This subsection 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) (emphasis added).]

The Board's interpretation and application of the amendment are

at the center of McClain's appeal.

Our primary purpose in construing a statute is to "discern

the meaning and intent of the Legislature." State v. Gandhi,

(2010). "There is no more persuasive evidence of

legislative intent than the words by which the Legislature

undertook to express its purpose; therefore, we first look to

the plain language of the statute." Perez v. Zagami, LLC,

(2016). "We ascribe to the statutory words

1 The amendment became effective May 4, 2015. L. 2015, c. 41, § 1.

7 A-4319-15T3 their ordinary meaning and significance, and read them in

context with related provisions so as to give sense to the

legislation as a whole." DiProspero v. Penn,

(2005) (citations omitted). Where "the plain language leads to

a clear and unambiguous result, . . . our interpretive process

is over." Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys.,

(2007). When the statutory language

"clearly reveals the meaning of the statute, the court's sole

function is to enforce the statute in accordance with those

terms." McCann v. Clerk of Jersey City,

(2001)

(quoting SASCO 1997 NI, LLC v. Zudkewich,

(2001)).

Alternatively, where "there is ambiguity in the statutory

language that leads to more than one plausible interpretation,

we may turn to extrinsic evidence, 'including legislative

history, committee reports, and contemporaneous construction.'"

-93 (quoting Cherry Hill Manor

Assocs. v. Faugno,

(2004)). Extrinsic evidence

may also be considered "if a plain reading of the statute leads

to an absurd result or if the overall statutory scheme is at

odds with the plain language." Id. at 493.

The resolution of McClain's application for unemployment

compensation benefits turns on the interpretation of the phrase

8 A-4319-15T3 "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." N.J.S.A. 43:21-5(a). The Board found the amendment

required that a claimant actually commence employment within the

seven-day period, and that McClain was disqualified from

receiving benefits because she did not actually commence her

employment at Kids Choice within seven days of her last day of

employment at Learning Edge. McClain argues the Board

misinterprets the amended statute, and that she was covered by

its plain language because she voluntarily left the employment

of Learning Edge "to accept" employment with Kids Choice that

commenced within the seven-day period.

We have carefully considered the amendment to N.J.S.A.

43:21-5(a) and are convinced its plain language is inconsistent

with the Board's interpretation. The amendment does not

expressly require that a claimant actually commence work within

the seven-day period. To the contrary, the amendment requires

only that a claimant leave work with the first employer "to

accept" employment with the second employer which commences

within the seven-day period. The Board's interpretation requires

the imposition of a condition the Legislature did not include in

the amendment: that the employee not only leave employment with

9 A-4319-15T3 the first employer to accept employment which commences within

the seven-day period, but also that the claimant actually

commence the new employment within the seven-day period.

We find nothing in the plain language of the amendment

supporting the imposition of such a condition. If the

Legislature intended to impose the requirement that a claimant

actually commence employment within the seven-day period, it

could have done so directly. Instead, the amendment provides

only that there is no disqualification where, as here, a

claimant leaves work to accept employment which commences within

the seven-day period. We therefore reject the Board's

interpretation of the amendment because it is not our function

"to 'rewrite a plainly-written enactment of the Legislature or

presume that the Legislature intended something other than that

expressed by way of the plain language.'"

(quoting O'Connell v. State,

(2002)). We will not "'write in an additional qualification

which the Legislature pointedly omitted in drafting its own

enactment,' or 'engage in conjecture or surmise which will

circumvent the plain meaning of the act.'"

(first quoting

Craster v. Bd. of Comm'rs of Newark,

(1952);

then quoting In re Closing of Jamesburg High School,

(1980)).

10 A-4319-15T3 We need not rely on the legislative history given that the

plain language of the amendment does not require that a claimant

actually commence the new employment within the seven-day

period. See

;

. Moreover, the Board's argument that

the legislative history supports its interpretation is

contradicted by the plain language of the amendment. The Board

relies on the following Senate Sponsor's statement annexed to

the bill that was subsequently enacted as the 2015 amendment to

N.J.S.A. 43:21-5(a):

This bill provides that an individual is not disqualified from unemployment insurance (UI) benefits for voluntarily leaving work if the individual 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, and 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 notifies the first employer that the individual will leave employment on a specified date and the first employer terminates the individual before that day, the seven-day period will commence from the specified date.

Current law, [N.J.S.A.] 43:21-5(a), disqualifies an individual who voluntarily leaves a job from receiving UI benefits and requires the individual to become reemployed and work at least eight weeks, earning at least 10 times the individual's weekly UI benefit rate, before again being eligible

11 A-4319-15T3 for UI benefits. This bill makes an exception from that requirement for an individual who leaves one job to accept a subsequent job at least equal in hours or pay, but is laid off from the subsequent job. The UI laws of 26 states, and the regulations of five other states, treat accepting other work as good cause for leaving work, and do not disqualify workers for UI benefits for doing so.

[Sponsor's Statement to S. 2082, 216th Leg. (May 19, 2014) (emphasis added).2]

The Board argues that the reference in the sponsor's

statement to a claimant being "laid-off" means the amendment to

N.J.S.A. 43:21-5(a) requires that the claimant actually commence

work with the new employer within the seven-day period because

an employee must begin work in order to be "laid-off." However,

the plain language of the enacted amendment is bereft of any

requirement that the claimant actually commence work, and makes

no reference to the claimant being "laid-off." To the contrary,

the best evidence of the Legislature's intent – the plain

language of the amendment – requires only that a claimant leave

2 The emphasized language was also included in the Assembly Appropriations Committee and Assembly Labor Committee statements concerning the bill, and the Bill Description prepared by the Office of Legislative Services. See Assem. Appropriations Comm., Statement to S. 2082 (Feb. 5, 2015) (codified at N.J.S.A. 43:21- 5); Assem. Labor Comm., Statement to S. 2082 (Sept. 11, 2014); Office of Legis. Servs., Legis. Fiscal Estimate for S. 2082 (June 19, 2014).

12 A-4319-15T3 work to accept employment which commences within the seven-day

period.

We are also unpersuaded by the Board's contention the

sponsor's statement's reference to the unemployment insurance

laws of twenty-six other states supports its interpretation of

the amendment. According to the sponsor's statement, the laws in

the other states do not require that a claimant actually

commence work with the new employer. Instead, the sponsor's

statement explains that the laws in the other states "treat

accepting work as good cause for leaving work." Thus, the

sponsor's statement describing the laws in the other states is

consistent with the plain language of the amendment; accepting

new employment which commences within the seven-day period is

sufficient.3

3 We also reject the Board's argument that the laws of other states support its interpretation of the amendment. Here, we interpret only the language in the amendment to N.J.S.A. 43:21- 5(a), which is different from the statutory language of the other states referred to in the Board's brief. The Board relies on an Iowa statute exempting an employee from disqualification for leaving employment to accept other employment where "the individual performed services in the new employment,"

(1)(a) (2017), and

(c)(1)(A) (West 2017), which provides a claimant is not disqualified from benefits where the claimant accepts new full-time employment "which offered reasonable expectation of continued covered employment and betterment of wages or working conditions and thereafter was employed on said job." The Board contends the amendment to N.J.S.A. 43:21-5(a) "closely tracks" the language of the Iowa and Indiana statutes and argues they provide support (continued)

13 A-4319-15T3 "In reading and interpreting a statute, primary regard must

be given to the fundamental purpose for which the legislation

was enacted. Where a literal reading will lead to a result not

in accord with the essential purpose and design of the act, the

spirit of the law will control the letter." State v. Tischio,

(1987) (quoting N.J. Builders, Owners and

Managers Ass'n v. Blair,

(1972)). Thus, "the

words of [a statute] are to be accorded a rational meaning in

harmony with the obvious intent and purpose of the law."

(quoting State v. Brown,

(1956)). "Where the

Legislature's intent is remedial, a court should construe a

statute liberally." Young v. Schering Corp.,

(1995).

New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-

1 to -56, (the Act) "is social legislation that provides

financial assistance to eligible workers suffering the distress

and dislocation caused by unemployment."

. "[T]he underlying mission of the Act is 'to

(continued) for the Board's interpretation of the amendment. We are not persuaded. The Iowa and Indiana statutes only highlight that where a Legislature intends that actual commencement of new employment is required for the exemption from disqualification, the requirement will be directly expressed in the applicable statute. The New Jersey Legislature chose not to expressly include such a requirement in the amendment.

14 A-4319-15T3 afford protection against the hazards of economic insecurity due

to involuntary unemployment.'" Brady v. Bd. of Review,

(1997) (quoting Yardville Supply Co. v. Bd. of Review,

(1989)). "[T]he purpose of the Act is to

provide some income for the worker earning nothing, because he

is out of work through no fault or act of his own."

at 212

(quoting

). Thus, "[t]he Act

. . . protects not only workers who are involuntarily unemployed

— those who are laid-off or terminated from their jobs by their

employers — but also those who voluntarily quit their jobs for

good cause attributable to their work."

.

"[T]o further [the Act's] remedial and beneficial purposes

. . . the [Act] is to be construed liberally in favor of

allowance of benefits." Lourdes Med. Ctr. of Burlington Cty. v.

Bd. of Review,

(2009) (quoting

). However, "it is also important to preserve the

[unemployment insurance trust] fund against claims by those not

intended to share in its benefits. The basic policy of the law

is advanced as well when benefits are denied in improper cases

as when they are allowed in proper cases."

(quoting

).

15 A-4319-15T3 Given that the intent of the Act is to provide income for a

worker who is out of work "through no fault or act of his own,"

ibid., and the Act "is to be construed liberally in favor of

allowance of benefits,"

, our

reading of the plain language of the amendment places McClain

within the intended recipients of unemployment compensation

benefits. The record shows, and the Board found, McClain

resigned from her position with Learning Edge "to accept" new

employment at Kids Choice which was to commence seven days

later,4 and had comparable hours and better pay. Under the

amendment to N.J.S.A. 43:21-5(a), McClain left her employment

with Learning Edge for good cause attributable to the work and

was entitled to benefits without disqualification. See N.J.S.A.

43:21-5(a);

("The Act . . .

protects . . . those who voluntarily quit their jobs for good

cause attributable to their work."). The Board's finding to the

contrary was in error.

Reversed.

4 The Board adopted the Appeal Tribunal's factual finding that McClain resigned from her employment with Learning Edge "to accept higher paying employment with" Kids Choice. There was no evidence presented to the contrary.

16 A-4319-15T3