NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3128-13T1

PREETI GUNDECHA,

Appellant,

v.

BOARD OF REVIEW and

DB SERVICES NEW JERSEY, INC.,

Respondents.

___________________________________________

Submitted May 12, 2015 – Decided

Before Judges Reisner, Higbee, and Currier.

On appeal from the Board of Review, 

Department of Labor and Workforce 

Development, Docket No. 417,546.

Preeti Gundecha, appellant pro se.

John J. Hoffman, Acting Attorney General, 

attorney for respondent Board of Review 

(Lewis A. Scheindlin, Assistant Attorney 

General, of counsel; Robert M. Strang, 

Deputy Attorney General, on the brief).

Respondent DB Services New Jersey, Inc., has 

not filed a brief.

The opinion of the court was delivered by

CURRIER, J.S.C. (temporarily assigned).

In this case of first impression, claimant Preeti Gundecha 

(Gundecha) appeals from the February 18, 2014 final decision of 

June 26, 2015

APPROVED FOR PUBLICATION

June 26, 2015

APPELLATE DIVISION
2 A-3128-13T1

the Board of Review (Board) affirming the decision of the Appeal 

Tribunal denying her claim for New Jersey unemployment benefits 

pursuant to N.J.S.A. 43:21-19(i)(2). We affirm, because 

although Gundecha was employed by the company's New Jersey 

office, she performed all of her work in North Carolina. 

Therefore, she was entitled to unemployment benefits in North 

Carolina, not New Jersey.

Gundecha began working for Deutsche Bank (DB) in 1999. 

After working briefly in DB's London office, she was transferred

to New York and worked there until 2007. In 2008 Gundecha began 

working in a New Jersey office but left on maternity leave in 

April 2009. The next month she moved to North Carolina. She

remained on maternity leave until December 2009. At that time, 

Gundecha returned to work for DB, telecommuting out of her home 

in North Carolina. She worked in that manner throughout 2010. 

In January 2011 Gundecha became ill and was unable to work 

for the next eighteen months. She was released by her doctor to 

return to work in July 2012. She was laid off by DB in 

September 2012 and given a year of severance pay.

In February 2013 Gundecha applied to New Jersey for 

unemployment benefits.1 Her claim was denied. Claimant 

 

1 Claimant alleges that she contacted the North Carolina 

Department of Labor and checked its website in September 2012 

(continued)
3 A-3128-13T1

appealed the agency's determination. After a telephone 

interview, the Appeal Tribunal affirmed the prior decision 

noting that claimant had not established the required base weeks 

or earnings within New Jersey and was therefore not eligible for 

benefits under N.J.A.C. 12:17-5.1.

Gundecha appealed the Tribunal's decision on the grounds 

that she had followed the instructions she had received from a 

North Carolina representative to file for benefits in New 

Jersey. The Board remanded the matter to the Appeal Tribunal 

"for additional testimony from the claimant . . . as to whether 

the claimant's services were localized in the state of New 

Jersey or in the state of North Carolina . . . ."

Gundecha participated in a second telephone hearing, 

following which the Appeal Tribunal rendered its decision. 

Citing to N.J.S.A. 43:21-19 and the definition of "employment" 

therein, the Tribunal found that "claimant worked most recently 

for the above named employer [DB] out of her residence in North 

Carolina as a project manager from 12/2009 until 1/28/11. The 

claimant's regular work was in North Carolina. Therefore, the 

employee's service was localized in North Carolina, the 

 

(continued)

after being laid off. She states she was told that she had to 

wait for her severance benefits to be exhausted before she could 

file for unemployment benefits and that she should apply for 

benefits in New Jersey.
4 A-3128-13T1

claimant's work was not in [']employment['] in accordance with 

N.J.S.A. 43:21-19(i)(2) and the claim dated 2/17/13 is invalid."2 

Gundecha appealed from that decision, and on February 18, 2014, 

the Board affirmed the decision of the Appeal Tribunal. This 

appeal followed.

On appeal, Gundecha argues that she was employed by a New 

Jersey company and therefore should be considered a New Jersey 

employee for purposes of unemployment benefits. She states she 

was temporarily telecommuting from North Carolina and intended 

to return to physically work in New Jersey.3

Our review of legal issues is de novo. Manalapan Realty, 

L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). However, we 

generally defer to an agency's reasonable interpretation of its 

enabling statute. See GE Solid State, Inc. v. Dir., Div. of 

Taxation, 132 N.J. 298, 306 (1993); SJC Builders, LLC v. N.J. 

Dep't of Envirl. Prot., 378 N.J. Super. 50, 54 (App. Div. 2005).

Historically, Congress encouraged the states to create 

their own unemployment systems when it passed the Social 

Security Act in 1935. In response, states set up systems where 

 

2 The Appeal Tribunal also considered whether claimant qualified 

for benefits under the alternate base year after disability 

option but determined she did not under the same statutory

analysis. N.J.S.A. 43:21-19(c)(2).

3 As of the time she filed her appeal, claimant continued to 

reside in North Carolina.
5 A-3128-13T1

employers contribute to the states' unemployment funds and under 

the Federal Unemployment Tax Act, the excise tax paid by an 

employer to a state unemployment fund is credited toward the 

employer's tax liability. Beverly Reyes, Note, Telecommuters 

and Their Virtual Existence in the Unemployment World, 33 

Hofstra L. Rev. 785, 789 (2004). 

As the systems expanded, it became important for uniform 

definitions to be used throughout the nation on the theory that 

only one state would be liable for a claimant's unemployment 

compensation benefits. Vale v. Gaylords Nat'l Corp., 127 N.J. 

Super. 45, 47 (App. Div. 1974). A uniform definition of 

"employment" was ultimately adopted by forty-six states

(including New Jersey) and the District of Columbia. Reyes, 

supra, 33 Hofstra L. Rev. at 790. That definition remains in 

effect today in N.J.S.A. 43:21-19(i)(2).

N.J.S.A. 43:21-19 requires that a claimant have employment 

in New Jersey to be eligible for benefits. "Employment" is 

defined at Section 43:21-19(i)(2) as:

[A]n individual's entire service performed 

within or both within and without this State 

if:

(A) The service is localized in this State; 

or 

(B) The service is not localized in any 

state but some of the service is performed 

in this State, and (i) the base of 
6 A-3128-13T1

operations, or, if there is no base of 

operations, then the place from which such 

services is directed or controlled, is in 

this State; or (ii) the base of operations 

or place from which such service is directed 

or controlled is not in any state in which 

some part of the service is performed, but 

the individual's residence is in this State. 

[N.J.S.A. 43:21-19(i)(2).]

The statute thus contains four tests to be applied 

successively to determine the appropriate state for the filing 

of unemployment benefits. The first test is the localization 

test. It is defined at N.J.S.A. 43:21-19(i)(5) as:

[s]ervice shall be deemed to be localized 

within a state if:

(A) The service is performed entirely within 

such state; or

(B) The service is performed both within and 

without such state, but the service 

performed without such state is incidental 

to the individual's service within the 

state; for example, is temporary or 

transitory in nature or consists of isolated 

transactions.

[Ibid.]

If the first test reveals a single state in which the 

services are performed, then the state unemployment agency need 

not apply the other tests. See Vale, supra, 127 N.J. Super. at 

48.

Thus, the primary issue before us is whether claimant's 

services were "localized" in New Jersey. New Jersey courts have 
7 A-3128-13T1

not considered the "localization" requirement in over forty 

years. See Vale, supra, 127 N.J. Super. 45. Telecommuting was 

not a part of the employment landscape until recently but it has 

become a normal way of working for many employees.4 Thus, the 

issue before us is how the localization rule should be applied 

to telecommuters.

One jurisdiction that has addressed the issue of 

"localization" as it respects telecommuters is New York. In In 

re Claim of Allen, 794 N.E. 2d 18 (N.Y. 2003), a case with 

similar circumstances, the claimant employee worked in the 

employer's New York office for several years. When she 

relocated to Florida she was permitted to "telecommute" to her 

office in New York. After her employer ended the telecommuting 

arrangement, the claimant filed for unemployment benefits in New 

York.

The New York court applied the localization test and held 

that "physical presence determines localization for purposes of 

 

4 Between 2005 and 2010 there was an increase in home-based work. 

"During this time, the number of home-based workers went from 

7.8 percent of all workers to 9.5 percent, an increase of about 

2 million." Peter J. Mateyka, Melanie A. Rapino, and Liana 

Christin Landivar, Home-based Workers in the United States: 

2010, U.S. Census Bureau 3 (2012), available at

http://www.census.gov/prod/2012pubs/p70-132.pdf.
8 A-3128-13T1

interpreting and applying Section 5115 to an interstate 

telecommuter. Because the claimant was regularly physically 

present in Florida when she worked for her employer in New York, 

her work was localized in one state — Florida." Id. at 22. 

Accordingly the claimant was found ineligible for unemployment 

benefits from New York.

As was explained by the New York Court of Appeals, "the 

uniform rule was intended to promote efficiency, and to ensure 

that unemployment benefits are paid by the state where an 

unemployed individual is physically present to seek new work. 

Unemployment has the greatest economic impact on the community 

in which the unemployed individual resides . . . . In our view, 

physical presence is the most practicable indicium of 

localization for the interstate telecommuter who inhabits 

today's 'virtual' workplace linked by Internet connections and

data exchanges." Ibid. We agree.

The localization rule continues to be the simplest and most 

efficient method for determining jurisdiction for unemployment 

benefits. And despite the modern technology advances that could 

not have been imagined when the states adopted the localization 

test, the theory behind the definition of "employment" still 

holds true today. It remains feasible and most practicable for 

 

5 This is identical to N.J.S.A. 43:21-19(i)(2).
9 A-3128-13T1

the employee's physical presence to be the determinative factor 

in determining "localization." It continues to be a 

straightforward solution for an employee to know where to file 

for benefits and for each state to know its responsibilities. 

Of course, if the employee's service does not fit within the 

definition, the remaining tests set forth in the statute are 

analyzed. See Vale, supra, 127 N.J. Super. at 48.

In this case claimant lives in North Carolina. Although 

she was employed by and provided services to the DB office 

located in New Jersey, she was physically present in North 

Carolina at all times that she was working. Therefore her work 

and employment was localized in North Carolina and that is the 

state responsible for her benefits.

If claimant was given advice by North Carolina's Labor 

Department that she should pursue her benefits in New Jersey 

that advice was incorrect. Gundecha must pursue her remedies in 

North Carolina. We find that the Board's decision holding 

claimant ineligible for unemployment benefits under N.J.S.A. 43-

21-19(i)(2) is correct.

We affirm.