NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2250-23
YISROEL PICK,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, and PANDEMIC UNEMPLOYMENT ASSISTANCE,
Respondents. ____________________________
Argued September 16, 2025 – Decided October 8, 2025
Before Judges DeAlmeida and Torregrossa-O'Connor.
On appeal from the Board of Review, Department of Labor, Docket No. 307625.
Larry S. Loigman argued the cause for appellant.
Gina Labrecque, Deputy Attorney General, argued the cause for respondents (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Gina Labrecque, on the brief). PER CURIAM
Claimant Yisroel Pick appeals from the February 14, 2024 final agency
decision of the Board of Review, New Jersey Department of Labor (Board),
affirming a decision of the Appeal Tribunal finding claimant disqualified for
Pandemic Unemployment Assistance (PUA) under the Coronavirus Aid, Relief,
and Economic Security (CARES) Act, 15 U.S.C. §§ 9001-9141, and, as a
consequence, required to refund the $11,730 in benefits already received. After
reviewing the record in light of claimant's argument that he was deprived of due
process, we affirm.
I.
The following procedural summary is undisputed. Claimant, self-
described as an unemployed "gig worker," filed for PUA on September 13, 2020.
He was thereafter provided benefits for the weeks ending September 19, 2020,
through September 4, 2021. By notice mailed to claimant on August 29, 2022,
the Director of the Division of Unemployment Insurance advised claimant's
benefits had been adjusted as he was not eligible for unemployment benefits and
provided direction concerning the "Appeal Procedure." 1
1 The copy of the notice provided in claimant's appellate appendix reflects only the front of the document, which states that information concerning the ineligibility determination was "listed on the back of th[e] form." A-2250-23 2 Counsel for claimant sent a letter appealing the ineligibility
determination, requesting a "complete copy" of claimant's file, and advising that
claimant could not determine the basis for the ineligibility decision. Counsel
also requested a hearing before the Office of Administrative Law (OAL).
On October 20, 2022, the hearing proceeded before the Appeal Tribunal,
telephonically, with claimant and his counsel appearing. The hearing examiner
advised that he would conduct an inquiry of claimant, after which claimant could
provide any additional testimony or information and claimant's counsel could
ask questions. Before testimony commenced, claimant's counsel indicated he
had not received "discovery," and the hearing examiner responded that there was
"no discovery" other than the "unemployment determination which the claimant
appealed from."
Counsel requested "the factual basis for that determination," and the
hearing examiner indicated that information had been sent to claimant who
"should have this determination in his possession." After offering to read from
the determination decision, the hearing officer clarified that there was a second
notice sent on August 29, 2022, in addition to the "non-fraud refund notice."2
2 The second notice was not included in the record on appeal; however, counsel for the Board represented at argument before us that the second notice was "in the record " before the Appeal Tribunal. A-2250-23 3 When claimant indicated he did not believe he received the second notice,
the hearing examiner offered to "mail" the notice to counsel and claimant and
stated "that's not a problem at all if you want to look at it." Claimant's counsel
indicated he did "not know that . . . establishe[d] anything," and "[a] computer
generated form . . . is not evidential."
In response, the hearing examiner again expressly inquired, "[w]e're going
back and forth there. I mean, do you want me to . . . dismiss the hearing without
prejudice or postpone, so you can look at the determination? That's all I can do
at this point. Or do you want to have the claimant move forward?" Claimant's
counsel declined an adjournment and instead indicated, "[t]he claimant is going
to testify that he does not owe anything to the [S]tate, and that is the only
testimony you will have before you. . . . [T]here is no evidence before you to
sustain the [S]tate's position." The hearing examiner then clarified, "[s]o do you
want to move forward today?" to which counsel responded, "I want to move
forward on the basis that this claim by the [S]tate for a refund has to be
dismissed."
Before claimant testified, the hearing examiner made clear that the notice
had advised that claimant was ineligible for PUA "on the ground that the
claimant was considered not attached to the labor market."
A-2250-23 4 Claimant then testified that at the time he filed for PUA in September
2020, he was not employed full time, but "was doing jobs here and there," in
what he termed "odd jobs" and "gig working." When asked, he could not provide
the date of his last job before filing his claim and offered no names of employers
or specific instances of work performed. Although he stated he would "deliver
things to people," "driv[e]," or "work[] when people need[ed] an extra hand," he
could not estimate his earnings and, when pressed, indicated "some jobs are
smaller, some were bigger," arriving at "a couple hundred." He added that he
worked "in warehouses before." Claimant testified he did not "work for any
actual companies in 2019 or 2020 under a W-2 tax status," and "was not sure" if
he filed taxes for that time period. Although he indicated he filed his claim in
2020 because it was "much harder to find work," he once again asserted he could
not estimate the last time he worked before filing the claim.
Claimant's counsel then indicated he had no questions of claimant other
than to ask whether he received a second notice that reflected the reasons for his
ineligibility. Claimant responded that "it was a few months ago" and he
"guess[ed he did not] remember ever seeing anything despi[t]e that one letter."
In closing, counsel explained that claimant was "not even employed on a part-
time basis," working only "intermittent[ly]," but offered no evidence of that
A-2250-23 5 employment, the employer, or the dates claimant performed that work, and
requested no opportunity to supplement the record with such information.
The Appeal Tribunal issued its decision on October 20, 2022, and found
claimant [could] not recall the approximate date that he most recently performed any type of work as a delivery driver. The claimant ha[d] no recollection if he filed taxes while performing this type of work. The claimant chose to file his PUA claim because he was having difficulty finding employment.
The Tribunal further recognized:
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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-2250-23
YISROEL PICK,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, and PANDEMIC UNEMPLOYMENT ASSISTANCE,
Respondents. ____________________________
Argued September 16, 2025 – Decided October 8, 2025
Before Judges DeAlmeida and Torregrossa-O'Connor.
On appeal from the Board of Review, Department of Labor, Docket No. 307625.
Larry S. Loigman argued the cause for appellant.
Gina Labrecque, Deputy Attorney General, argued the cause for respondents (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Gina Labrecque, on the brief). PER CURIAM
Claimant Yisroel Pick appeals from the February 14, 2024 final agency
decision of the Board of Review, New Jersey Department of Labor (Board),
affirming a decision of the Appeal Tribunal finding claimant disqualified for
Pandemic Unemployment Assistance (PUA) under the Coronavirus Aid, Relief,
and Economic Security (CARES) Act, 15 U.S.C. §§ 9001-9141, and, as a
consequence, required to refund the $11,730 in benefits already received. After
reviewing the record in light of claimant's argument that he was deprived of due
process, we affirm.
I.
The following procedural summary is undisputed. Claimant, self-
described as an unemployed "gig worker," filed for PUA on September 13, 2020.
He was thereafter provided benefits for the weeks ending September 19, 2020,
through September 4, 2021. By notice mailed to claimant on August 29, 2022,
the Director of the Division of Unemployment Insurance advised claimant's
benefits had been adjusted as he was not eligible for unemployment benefits and
provided direction concerning the "Appeal Procedure." 1
1 The copy of the notice provided in claimant's appellate appendix reflects only the front of the document, which states that information concerning the ineligibility determination was "listed on the back of th[e] form." A-2250-23 2 Counsel for claimant sent a letter appealing the ineligibility
determination, requesting a "complete copy" of claimant's file, and advising that
claimant could not determine the basis for the ineligibility decision. Counsel
also requested a hearing before the Office of Administrative Law (OAL).
On October 20, 2022, the hearing proceeded before the Appeal Tribunal,
telephonically, with claimant and his counsel appearing. The hearing examiner
advised that he would conduct an inquiry of claimant, after which claimant could
provide any additional testimony or information and claimant's counsel could
ask questions. Before testimony commenced, claimant's counsel indicated he
had not received "discovery," and the hearing examiner responded that there was
"no discovery" other than the "unemployment determination which the claimant
appealed from."
Counsel requested "the factual basis for that determination," and the
hearing examiner indicated that information had been sent to claimant who
"should have this determination in his possession." After offering to read from
the determination decision, the hearing officer clarified that there was a second
notice sent on August 29, 2022, in addition to the "non-fraud refund notice."2
2 The second notice was not included in the record on appeal; however, counsel for the Board represented at argument before us that the second notice was "in the record " before the Appeal Tribunal. A-2250-23 3 When claimant indicated he did not believe he received the second notice,
the hearing examiner offered to "mail" the notice to counsel and claimant and
stated "that's not a problem at all if you want to look at it." Claimant's counsel
indicated he did "not know that . . . establishe[d] anything," and "[a] computer
generated form . . . is not evidential."
In response, the hearing examiner again expressly inquired, "[w]e're going
back and forth there. I mean, do you want me to . . . dismiss the hearing without
prejudice or postpone, so you can look at the determination? That's all I can do
at this point. Or do you want to have the claimant move forward?" Claimant's
counsel declined an adjournment and instead indicated, "[t]he claimant is going
to testify that he does not owe anything to the [S]tate, and that is the only
testimony you will have before you. . . . [T]here is no evidence before you to
sustain the [S]tate's position." The hearing examiner then clarified, "[s]o do you
want to move forward today?" to which counsel responded, "I want to move
forward on the basis that this claim by the [S]tate for a refund has to be
dismissed."
Before claimant testified, the hearing examiner made clear that the notice
had advised that claimant was ineligible for PUA "on the ground that the
claimant was considered not attached to the labor market."
A-2250-23 4 Claimant then testified that at the time he filed for PUA in September
2020, he was not employed full time, but "was doing jobs here and there," in
what he termed "odd jobs" and "gig working." When asked, he could not provide
the date of his last job before filing his claim and offered no names of employers
or specific instances of work performed. Although he stated he would "deliver
things to people," "driv[e]," or "work[] when people need[ed] an extra hand," he
could not estimate his earnings and, when pressed, indicated "some jobs are
smaller, some were bigger," arriving at "a couple hundred." He added that he
worked "in warehouses before." Claimant testified he did not "work for any
actual companies in 2019 or 2020 under a W-2 tax status," and "was not sure" if
he filed taxes for that time period. Although he indicated he filed his claim in
2020 because it was "much harder to find work," he once again asserted he could
not estimate the last time he worked before filing the claim.
Claimant's counsel then indicated he had no questions of claimant other
than to ask whether he received a second notice that reflected the reasons for his
ineligibility. Claimant responded that "it was a few months ago" and he
"guess[ed he did not] remember ever seeing anything despi[t]e that one letter."
In closing, counsel explained that claimant was "not even employed on a part-
time basis," working only "intermittent[ly]," but offered no evidence of that
A-2250-23 5 employment, the employer, or the dates claimant performed that work, and
requested no opportunity to supplement the record with such information.
The Appeal Tribunal issued its decision on October 20, 2022, and found
claimant [could] not recall the approximate date that he most recently performed any type of work as a delivery driver. The claimant ha[d] no recollection if he filed taxes while performing this type of work. The claimant chose to file his PUA claim because he was having difficulty finding employment.
The Tribunal further recognized:
The individual must meet the requirements under Section 2102 (a)(3)(A)(ii)(I) of the CARES Act and have an attachment to the labor market and experienced a loss of wages and hours or was unable to start employment following a bona fide job offer due to COVID-19. In this case, the claimant has not met the burden of proof to show that he was genuinely attached to the labor market. Without specifics regarding his tax documents as a gig worker, or the potential dates of his delivery driving payroll records, it is apparent that the claimant was not involved in the labor market prior to his claim being filed. Hence,[ ]the claimant is ineligible for PUA benefits from 09/13/20 through 09/04/21, under section 2102 of the . . . [CARES] Act.
Thus, the Tribunal affirmed the claimant's ineligibility determination and found
him liable for a refund in the amount of "$11,730[] received as benefits for the
weeks ending 09/19/20 through 09/04/21, in accordance with N.J.S.A. 43:21 -
16(d)."
A-2250-23 6 Claimant, through counsel, filed an administrative appeal, reprising the
due process argument made before the Appeal Tribunal. On February 14, 2024,
the Board affirmed the ineligibility determination. The Board determined
claimant was afforded "a full and fair impartial hearing," finding "no valid
ground for a further hearing." It added:
Claimants who have no earnings (in either covered or self-employment) in 2019/2020 (prior to the pandemic), or did not have a bona fide offer of work that was disrupted due to the pandemic, are ineligible for PUA. Since no evidence of the claimant's attachment to the labor market has been presented as required, the claimant does not meet the eligibility requirement for eligibility for . . . [PUA] benefits.
II.
Claimant now appeals arguing he "was denied procedural due process."
He contends the procedure was flawed as he "was ordered to return [benefits
already paid to him] without any factual or legal basis being articulated." 3
"We review a decision made by an administrative agency entrusted to
apply and enforce a statutory scheme under an enhanced deferential standard."
3 To the extent claimant argues his administrative appeal should have been transmitted to the OAL, his contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only N.J.S.A. 43:21-6(d) expressly directs appeals from the denial of benefits to the Appeal Tribunal.
A-2250-23 7 E. Bay Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493
(2022). Accordingly, "we will disturb an agency's adjudicatory decision only
upon a finding that the decision is 'arbitrary, capricious or unreasonable,' or is
unsupported 'by substantial credible evidence in the record as a whole.'"
Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Super. 147, 155-56 (App. Div.
2022) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The
burden to show an agency's abuse of discretion "is on the challenger." Parsells
v. Bd. of Educ., 472 N.J. Super. 369, 376 (App. Div. 2022).
"[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." Brady v.
Bd. of Rev., 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Rev., 200 N.J.
Super. 74, 79 (App. Div. 1985)). Further, we afford "[w]ide discretion . . . to
administrative decisions because of an agency's specialized knowledge." In re
Request to Modify Prison Sentences, 242 N.J. 357, 390 (2020); see also
Sullivan, 471 N.J. Super. at 156.
"Claimants bear the burden of proof to establish their right to
unemployment benefits." Brady, 152 N.J. at 218. Congress enacted the CARES
A-2250-23 8 Act as a vehicle to afford PUA benefits to certain "covered individual[s]"
otherwise ineligible for regular unemployment benefits during the pandemic,
but who can establish they have become unemployed for one of the COVID-19-
related reasons listed in the statute. Sullivan, 471 N.J. Super. at 153; see also
15 U.S.C. § 9021. A covered individual is one who:
(i) is not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation under section 9025 . . . including an individual who has exhausted all rights to regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation under section 9025 . . . .
(ii) provides self-certification that the individual—
(I) is otherwise able to work and available for work within the meaning of applicable State law, except the individual is unemployed, partially unemployed, or unable or unavailable to work because—
(aa) the individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
(bb) a member of the individual's household has been diagnosed with COVID-19;
(cc) the individual is providing care for a family member or a member of the
A-2250-23 9 individual's household who has been diagnosed with COVID-19;
(dd) a child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;
(ee) the individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
(ff) the individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
(gg) the individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency;
(hh) the individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19;
(ii) the individual has to quit his or her job as a direct result of COVID-19;
A-2250-23 10 (jj) the individual's place of employment is closed as a direct result of the COVID-19 public health emergency; or
(kk) the individual meets any additional criteria established by the Secretary for unemployment assistance under this section. [15 U.S.C. § 9021(a)(3)(A).]
N.J.S.A. 43:21-16(d) expressly provides that, absent waiver in certain
circumstances, any person having received benefits when ineligible "shall be
liable to repay those benefits in full." When a claimant is determined ineligible
for benefits and liable for repayment, that decision will not be disturbed unless
it is "'arbitrary, capricious or unreasonable,' or is unsupported 'by substantial
credible evidence in the record as a whole.'" Sullivan, 471 N.J. Super. at 155-
56.
It is well-settled that due process requires that a claimant seeking
unemployment benefits "must be given a real chance to present his or her side
of the case before a government decision becomes final." Rivera v. Bd. of Rev.,
127 N.J. 578, 583 (1992). This includes "notice defining the issues and an
adequate opportunity to prepare and respond." McKeown-Brand v. Trump
Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (citing Nicoletta v. N. Jersey
Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978)).
A-2250-23 11 "Administrative hearings in contested cases must 'operate fairly and
conform with due process principles.'" In re Kallen, 92 N.J. 14, 25 (1983)
(quoting Laba v. Bd. of Educ. of Newark, 23 N.J. 364, 382 (1957)). However,
such hearings "may conform to procedural due process standards that are less
restrictive than those imposed in court proceedings." Id. at 26. "As long as
principles of basic fairness are observed and adequate procedural protections
afforded, the requirements of administrative due process have been met." Kelly
v. Sterr, 62 N.J. 105, 107 (1973); see also In re Freshwater Wetlands Statewide
Gen. Permits, 185 N.J. 452, 466-67 (2006) (recognizing in State actions, "due
process is a flexible and fact-sensitive concept," and "a function of what reason
and justice require under the circumstances").
We are not persuaded that claimant was deprived of notice and an
opportunity to prepare and respond to the PUA ineligibility determination and
demand for repayment. Claimant was provided notice of his ineligibility
determination and his right to appeal that determination. He was then afforded
a hearing with respect to the question of his eligibility for unemployment
compensation benefits. Claimant was represented by counsel and offered the
opportunity to present evidence of claimant's eligibility but declined to do so.
A-2250-23 12 Although claimant's counsel repeatedly contended claimant had not
received the notice detailing the basis for the Board's determination that
claimant did not qualify for PUA benefits, he neither requested an adjournment
in advance of the hearing nor accepted the offer by the hearing examiner to
postpone or dismiss the appeal to afford claimant the opportunity to review the
ineligibility decision and prepare for the hearing. Instead, claimant and his
counsel insisted the proceeding move forward, even after they were advised at
the hearing that claimant's ineligibility derived from his failure to establish a
sufficient prior connection to the workforce. Claimant considered and declined
the hearing examiner's offer to postpone the proceeding to provide a meaningful
opportunity to review and prepare for the hearing at a later date. In these
circumstances, we are satisfied claimant received the process to which he was
due.
Claimant elected to proceed and provide testimony devoid of any
specificity as to his last date of employment, his last employer, or his taxes filed
or paid, if any. He presented no proof of prior employment at the hearing or at
any stage of the process. Accordingly, we will not disturb the Board's
determination, sufficiently rooted in the record, as we discern nothing arbitrary,
capricious, or unreasonable about the Board's determination that claimant was
A-2250-23 13 not entitled to PUA benefits and liable for return of the payments improperly
received.
Affirmed.
A-2250-23 14