Ronald Sands v. Board of Review

• Court: New Jersey Superior Court Appellate Division
• Decided: April 5, 2024
• Docket: A-0413-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0413-22

RONALD SANDS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and RG REALTY INVESTORS, LLC,

Respondents. ___________________________

Argued March 18, 2024 – Decided April 5, 2024

Before Judges Marczyk and Vinci.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 216821.

Sarah Shaver Hymowitz argued the cause for appellant (Legal Services of New Jersey, attorneys; Sarah Shaver Hymowitz, on the briefs).

Ian Michael Fiedler, Deputy Attorney General, argued the cause for respondent Board of Review (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Ian Michael Fiedler, on the brief).

PER CURIAM

Petitioner Ronald Sands appeals from the August 26, 2022 final agency

decision of the Board of Review, Department of Labor ("Board"), disqualifying

him for unemployment benefits. Because the Board did not consider petitioner's

argument that he had good cause to leave his position based on his employer's

alleged violation of the New Jersey Wage Payment Law ("WPL"), N.J.S.A.

34:11-4.1 to -4.14, we reverse in part and remand to the Board for further fact-

finding and a decision on that claim. We also affirm in part as discussed herein.

Petitioner was employed by RG Realty Investors, LLC ("RG") as a

maintenance technician at a large residential housing complex managed by RG

from February 11, 2019, until January 14, 2020. On January 15, 2020, he called

out sick and never returned. On February 9, 2020, petitioner applied for

unemployment benefits contending he was forced to leave his position because

RG failed to comply with its promise to provide a golf cart for him to use to

traverse the housing complex. As a result, petitioner was required to use his

personal vehicle for work without reimbursement.

A-0413-22 2 After the Division of Unemployment and Disability Insurance

("Division") found petitioner eligible for unemployment benefits, RG appealed.

On July 28, 2020, the appeal tribunal of the Division conducted a telephonic

hearing at which only a representative of RG, Andrew Weissman, testified

because the appeals examiner was unable to contact petitioner. On July 29,

2020, the appeal tribunal reversed the Division's initial decision and determined

petitioner was disqualified for benefits. Petitioner appealed to the Board, which

remanded the case to the appeal tribunal, finding he established good cause for

his failure to participate in the July 28, 2020 hearing.

On January 12, 2021, the appeals examiner conducted a second telephonic

hearing at which petitioner and Weissman testified. Petitioner testified he "was

told when [he] got hired . . . [he] would only use [his] car temporarily for

transportation around the complex. [He] ended up using [his] vehicle for a

whole year with[out] reimbursement." He used his car to take materials and

tools from "the shop to the job site." Petitioner testified it was not possible to

walk around the complex carrying tools and equipment because the property is

so large. According to petitioner, he would not have been able to complete his

work in a timely manner if he did not use his car.

A-0413-22 3 Petitioner testified he asked about the status of the golf cart "every three

months" and "was told they[ were] looking into it." He told his manager paying

for the gas and wear and tear on his car, including new tires and brakes, was

"costing [him] too much money," and he could not "afford to be working

[there]." Petitioner contended he was paying an additional sixty dollars per

week for gas to drive around the property. When asked by the appeals examiner

if he was ever told when he would get the golf cart, petitioner responded, "[n]o,

all I got told was it was temporarily. That[ i]s what I was told. I would use my

car temporarily." Petitioner "assumed . . . temporary was a couple of

months . . . ."

Weissman testified RG does have golf carts and tries "to accommodate

[all the technicians] with [a golf cart], but it is not a guaranteed part of the

agreement." He testified RG has several employees, some of whom use their

personal vehicle onsite without reimbursement. Weissman contended petitioner

never complained about expenses relating to use of his personal vehicle at work.

Rather, he complained about the cost of traveling to and from work and

Weissman attempted, unsuccessfully, to find petitioner a position closer to his

home.

A-0413-22 4 According to Weissman, if a golf cart is not available, the maintenance

technicians "either . . . walk or . . . use their own vehicle." Weissman explained

a "[m]aintenance [t]echnician is not traveling around on the property constantly

all day. They[ are] given . . . a couple of tickets and they[ will] be in one or two

or three apartments throughout the day." Weissman testified the technicians are

assigned "to work on a number of buildings that are next to each other. So, . . .

they can just walk from one to the other and do[ not] have to travel around the

property." Weissman contended if petitioner "asked for some kind of push[c]art

because he did[ not] want to use his vehicle and wanted to use a pushcart to

carry his tools around the property, that was something [RG] could have easily

accommodated" and does at other properties.

Weissman disputed petitioner's claim regarding the size of the property,

but conceded it is a large property. According to Weissman, it "[t]akes about

[ten] minutes to walk from one side of the property to the other side." Weissman

testified RG "do[es] request and . . . hire employees that have a vehicle. If they

do[ not] have a vehicle . . . it would[ not] make sense for them really to work on

this property."

On January 22, 2021, the appeal tribunal again reversed the Division's

initial decision and determined petitioner was disqualified for benefits because

A-0413-22 5 he voluntarily left his position without good cause attributable to the work. The

appeal tribunal found RG "provided golf carts onsite for the employees to utilize

around the residential complex to complete their assigned tasks. In the event

that the golf carts became inoperable, the employees were required to utilize

their personal vehicles." The appeal tribunal also found petitioner "left the job

voluntarily because [RG] did not reimburse him for gasoline and the wear and

tear on his personal vehicle" and "[a]t the time of hire, [petitioner] was aware

that he would have to utilize his personal vehicle to perform tasks around the

employer's complex, [to] which he agreed."

On February 5, 2021, petitioner appealed to the Board. On May 20, 2021,

the Board affirmed the decision of the appeal tribunal. On January 26, 2022,

petitioner, who was then represented by counsel, requested the Board reconsider

its decision arguing, in part, he had good cause to leave his position because RG

violated the WPL.

On August 26, 2022, the Board reopened the matter and, after review of

the record below, again affirmed the appeal tribunal's decision that petitioner

was disqualified for benefits. The Board determined his "contention that he

refused an offer of unsuitable work is rejected as he continued to work under the

same conditions for almost one year." It also found he "was made aware, at the

A-0413-22 6 time of hire, that he would have to use his own vehicle for work until the

employer was able to get him a golf cart. He was never given any specific

[timeframe] of when this would occur." The Board did not address petitioner's

argument that RG violated the WPL. This appeal followed.

On appeal, petitioner argues he had good cause to leave his position

because RG violated the WPL by requiring he use his personal vehicle to do his

job and failing to reimburse him for associated out-of-pocket expenses. He also

argues he had good cause to leave his position because RG breached its promise

to provide him with a golf cart within "a couple of months," and the Board's

determination that RG did not make such a commitment was arbitrary,

capricious, and unreasonable.

The Board argues petitioner left work voluntarily without good cause.

More particularly, the Board contends RG did not violate the WPL because

petitioner was not required to use his personal vehicle. According to the Board,

petitioner chose to use his vehicle rather than walk around the complex using a

pushcart. The Board also argues petitioner was never promised a golf cart within

any specific timeframe and was merely dissatisfied with his lack of a golf cart.

Our review of decisions by administrative agencies is limited, with

petitioners carrying a substantial burden of persuasion. In re Stallworth, 208

A-0413-22 7 N.J. 182, 194 (2011); Brady v. Bd. of Rev., 152 N.J. 197, 218 (1997). An

agency's determination must be sustained "unless there is a clear showing that it

is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27

(2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).

"[I]f substantial evidence supports the agency's decision, 'a court may not

substitute its own judgment for the agency's even though the court might have

reached a different result.'" In re Carter, 191 N.J. 474, 483 (2006) (quoting

Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). "However,

the exercise of such deference is premised on our confidence that there has been

a careful consideration of the facts in issue and appropriate findings addressing

the critical issues in dispute." Bailey v. Bd, of Rev., 339 N.J. Super. 29, 33

(App. Div. 2001).

The burden of proof rests with the employee to establish a right to collect

unemployment benefits. Brady, 152 N.J. at 218. Under N.J.S.A. 43:21-5(a), a

person is ineligible for unemployment benefits if they leave work voluntarily,

without good cause attributable to the work. N.J.A.C. 12:17-9.1(b) defines

"good cause attributable to such work" as "a reason related directly to the

individual's employment, which was so compelling as to give the individual no

A-0413-22 8 choice but to leave the employment." "The decision to leave employment must

be compelled by real, substantial and reasonable circumstances not imaginary,

trifling and whimsical ones." Domenico v. Bd. of Review, 192 N.J. Super. 284,

288 (App. Div. 1983). "Mere dissatisfaction with working conditions which are

not shown to be abnormal or do not affect health, does not constitute good cause

for leaving work voluntarily." Ibid. (quoting Medwick v. Bd. of Rev., 69 N.J.

Super. 338, 345 (App. Div. 1961)). A petitioner who leaves work for a personal

reason, no matter how compelling, is subject to disqualification. Self v. Bd. of

Rev., 91 N.J. 453, 460 (1982).

The WPL "was designed to protect employees' wages and to guarantee

receipt of the fruits of their labor. Generally, unless expressly provided by the

[WPL], employers may not withhold or divert any portion of an employee's

wages." Rosen v. Smith Barney, Inc., 393 N.J. Super. 578, 585 (App. Div.

2007), aff'd, 195 N.J. 423 (2008). "No employer may withhold or divert any

portion of an employee's wages unless . . . required or empowered to do so by

New Jersey or United States law" or such deduction falls within one of the

eleven exemptions found in the WPL. Ibid. (quoting N.J.S.A. 34:11-4.4).

The appeal tribunal and the Board did not consider petitioner's claim that

he had good cause to leave his position because RG violated the WPL. Neither

A-0413-22 9 the parties nor the court located any binding authority construing the provisions

of the WPL in this context. We turn, therefore, to the applicable rules of

statutory interpretation.

"The overriding goal of all statutory interpretation 'is to determine as best

we can the intent of the Legislature, and to give effect to that intent.'" State v.

S.B., 230 N.J. 62, 67 (2017) (quoting State v. Robinson, 217 N.J. 594, 604

(2014)). "To determine the Legislature's intent, we look to the statute's language

and give those terms their plain and ordinary meaning because 'the best indicator

of that intent is the plain language chosen by the Legislature.'" State v. J.V.,

242 N.J. 432, 442–43 (2020) (citation omitted) (first citing DiProspero v. Penn,

183 N.J. 477, 492 (2005); and then quoting Johnson v. Roselle EZ Quick, LLC,

226 N.J. 370, 386 (2016)).

The plain language of the WPL prohibits an employer from diverting any

portion of an employee's wages except in certain situations that do not apply

here. In this case, petitioner set forth a viable claim that RG diverted a portion

of his wages in violation of the WPL by requiring he use his personal vehicle

and not reimbursing him for costs associated with that use. If petitioner was, in

fact, required to use his personal vehicle without reimbursement, RG effectively

A-0413-22 10 transferred its own operating expenses to petitioner and diverted his wages to

pay those costs.

The appeal tribunal and the Board limited their inquiry to whether

petitioner was promised a golf cart within any specific timeframe. As a result,

the record neither demonstrates a careful consideration of the relevant facts, nor

does it include appropriate findings addressing the critical issues in dispute. On

remand, these facts and critical issues include, without limitation: (1) whether

petitioner was required to use his personal vehicle or, as the Board contends, he

could have performed his job on foot and opted to use his vehicle as a

convenience; (2) if he was required to use his personal vehicle, the amount of

the out-of-pocket expenses, if any, he actually incurred for gas and wear and

tear; (3) whether the expenses incurred were sufficient to establish good cause

to leave the position; and (4) whether RG violated the WPL and, if so, whether

the violation separately established good cause to leave the position.

We are not persuaded by petitioner's claim that the Board incorrectly

determined he was never promised a golf cart within "a couple of months."

When asked if RG made such a promise, petitioner responded, "[n]o, all I [was]

told was it was temporarily. That's what I was told. I would use my car

temporarily." The Board's determination that petitioner was not promised a golf

A-0413-22 11 cart within any specific timeframe was supported by credible evidence in the

record and was not arbitrary, capricious, or unreasonable.

Reversed in part and remanded for further proceedings consistent with this

opinion. Affirmed in part as to petitioner's claim that he had good cause to leave

his position because RG breached its agreement to provide a golf cart within a

specific timeframe. We do not retain jurisdiction.

A-0413-22 12