A Square Conflict in Recent Appellate Division Decisions Regarding the Unemployment Statute

Blake v. Board of Review, 452 N.J. Super. 7 (App. Div. 2017).  In McClain v. Board of Review, 451 N.J. Super. 461 (App. Div. 2017), discussed here, a panel of the Appellate Division recently addressed an amendment to N.J.S.A. 43:21-5(a) that allows persons who leave a job voluntarily to receive unemployment benefits where the person “accept[ed] from another employer employment which commences not more than seven days after the individual leaves … the first employer.”  There, after the new employer rescinded the offer, and the employee could not go back to her old employer, she sought unemployment benefits.  After she was denied benefits because she did not “commence” the new employment, the Appellate Division reversed and found the employee entitled to benefits.  The court held that an employee need not actually commence the new job within seven days; her departure from the first job for a job that was to commence within seven days sufficed, given the remedial purpose and liberal construction of the unemployment statute.

Today, in a factually comparable case, a different panel disagreed with McClain.  Writing for the panel, Judge Messano applied the same standard of review as in McClain, but reached the opposite result.  “The acceptance of a commensurate position with another employer doe snot trigger the Amendment’s exception to disqualification.”  Rather, the new job must actually begin within seven days of the employee’s departure from the old job.  The view of McClain, Judge Messano said, improperly rewrites the statute to say that benefits are available where the new employment “was intended to commence” within seven days, which the amendment did not say.  Judge Messano noted that statutes in other states contain such language, but New Jersey’s does not.  He also offered other rationales for differing with McClain.

Given the direct conflict between these two Appellate Division decisions, which were decided within four weeks of each other, the employee here seems to have a clear path to the Supreme Court.  The conflict should be resolved there.  Stay tuned.