NOT FOR PUBLICATION WITHOUT THE

 APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4973-17T2

CLARENCE HALEY,

Appellant,

v. 

BOARD OF REVIEW,

and GARDEN STATE

LABORATORIES, INC.,

Respondents.

_____________________________

Argued October 17, 2019 – Decided

Before Judges Alvarez, Nugent and Suter.

On appeal from the Board of Review, Department of 

Labor, Docket No. 143,935.

Jennifer B. Condon argued the cause for appellant 

(Seton Hall University School of Law, Center for 

Social Justice, attorneys; Jennifer B. Condon, of 

counsel and on the briefs; Jenna Passerino, Jennifer A. 

Cacchioli, and Andrew N. Koske, on the briefs).

Andy Jong, Deputy Attorney General, argued the cause 

for respondent Board of Review (Gurbir S. Grewal, 

Attorney General, attorney; Melissa Dutton Schaffer

and Donna Sue Arons, Assistant Attorneys General, of 

counsel; Andy Jong, on the briefs).

APPROVED FOR PUBLICATION

January 24, 2020

APPELLATE DIVISION

January 24, 2020
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A-4973-17T2

Tess Meiling Borden argued the cause for amicus

curiae American Civil Liberties Union of New Jersey 

Foundation (American Civil Liberties Union of New 

Jersey Foundation, attorneys; Tess Meiling Borden and 

Jeanne M. LoCicero, on the brief).

Respondent Garden State Laboratories, Inc., has not 

filed a brief.

The opinion of the court was delivered by

SUTER, J.A.D.

Clarence Haley appeals the May 24, 2018 final decision of the Board of 

Review (Board), affirming the decision of the Appeal Tribunal that denied his 

claim for unemployment compensation. We affirm.

I.

Haley was employed as a maintenance worker from May 2, 2017, until he 

was arrested on December 14, 2017, and charged with five separate criminal 

warrants.1 His request for pretrial release was not granted.

2 His mother 

1 The warrants were for kidnapping, robbery, burglary, unlawful possession of 

a weapon and possession of a weapon for an unlawful purpose.

2 The Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, became effective 

on January 1, 2017. "[T]he Act replaced the system's prior heavy reliance on 

monetary bail. The law instead calls for an objective evaluation of each 

defendant's risk level and consideration of conditions of release . . . . In that 

way, low-level offenders will not be penalized because they cannot afford to 

post bail." State v. Robinson, 229 N.J. 44, 54 (2017). "A defendant may be 
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contacted his employer because he wanted to keep his job, but the position was 

filled after December 21, 2017. Haley was released from custody on February 

7, 2018, after a grand jury returned a "[no-b]ill," meaning it "did not find

sufficient evidence to sustain the return of an [i]ndictment." The prosecutor 

dismissed all the criminal warrants against Haley.

Haley applied for unemployment compensation shortly thereafter. The 

Deputy Director denied the claim. Haley appealed to the Appeal Tribunal. 

Following a hearing, it denied his claim on April 13, 2018. Haley was 

disqualified for unemployment benefits because he was "separated due to his 

absence from work, which was a direct result of his incarceration." Haley was 

"considered to have left the job voluntarily in accordance with N.J.A.C. 12:17-

9.1." The Appeal Tribunal noted there was "no evidence that the claimant was 

falsely imprisoned nor was he involved in a case of mistaken identity."

Although Haley had a "compelling reason for leaving work," the Appeals 

Tribunal found his "reason is personal." He was "considered to have left 

voluntarily without good cause attributable to such work and is disqualified for 

detained pretrial only if, after a hearing, a judge finds 'by clear and convincing 

evidence that no release conditions would reasonably assure the defendant's 

appearance in court, the safety of the community, or the integrity of the criminal 

justice process.'" State v. Pinkston, 233 N.J. 495, 503 (2018) (quoting State v. 

Ingram, 230 N.J. 190, 200-01 (2017)).
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benefits." Haley appealed to the Board. On May 24, 2018, it affirmed the

decision of the Appeal Tribunal.

On appeal, Haley argues he should have been granted unemployment 

compensation because the criminal charges were dismissed. He contends it was

an error to treat pretrial incarceration, where all the charges were dismissed, as

a "voluntary" separation from employment under N.J.S.A. 43:21-5(a). He 

asserts this is inconsistent with the remedial purpose of the unemployment laws,

is unreasonable, wrongly disregards the "vital role" of the grand jury and is outof-step with a majority of other states. Haley argues the Board relied on legally 

irrelevant factual assumptions not supported by the record.

Amicus curiae, the American Civil Liberties Union of New Jersey (the 

ACLU), argues Haley cannot be said to have voluntarily quit his employment in 

these circumstances. The "threshold question" should be whether the departure 

from work was voluntary, not whether it was work-related. The ACLU asks us 

to set aside N.J.A.C. 12:17-9.1(e)(10).

3

 It contends the remedial purpose of the 

3 Because this issue was not raised by Haley, it is not properly before us. See

State v. J.R., 227 N.J. 393, 421 (2017) (providing that an appeals court "does 

not consider arguments that have not been asserted by a party, and are raised for 

the first time by an amicus curiae").
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unemployment legislation is disserved, and that by denying benefits, persons of 

color are disproportionately impacted.4

II.

Review of an administrative agency's final decision is limited. Kadonsky 

v. Lee, 452 N.J. Super. 198, 201-02 (App. Div. 2017). "We will not reverse an 

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

unreasonable, or [ ] not supported by substantial credible evidence in the record 

as a whole.'" Id. at 202 (alteration in original) (quoting In re Stallworth, 208 

N.J. 182, 194 (2011)). We "defer to an agency's interpretation of both a statute 

and implementing regulation, within the sphere of the agency's authority, unless 

the interpretation is plainly unreasonable." Ardan v. Bd. of Review, 231 N.J.

589, 604 (2018) (quoting In re Election Law Enf't Comm'n Advisory Op. No. 

01–2008, 201 N.J. 254, 262 (2010)). The court is not "bound by an unreasonable 

or mistaken interpretation of that scheme, particularly one that is contrary to 

legislative objectives." McClain v. Bd. of Review, 237 N.J. 445, 456 (2019)

(citing Russo v. Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).

4 There was no evidence of the latter point in the record before the Appeal 

Tribunal or Board.
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The Unemployment Compensation Law (the UCL), N.J.S.A. 43:21-1 to -

24.30, is remedial in purpose. McClain, 237 N.J. at 457. "The essential 

objective of the Act 'is to provide some income for the worker earning nothing, 

because [that worker] is out of work through no fault or act of [the employee].'" 

Ibid. (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)). Although the 

UCL is to be liberally construed to allow for benefits, at the same time "the 

unemployment insurance trust fund must be protected against the payment of 

claims to those ineligible for [unemployment insurance] benefits." Ibid. (citing 

Brady v. Bd. of Review, 152 N.J. 197, 212 (1997)). "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." Ardan, 231 N.J. at 602 (quoting Brady, 152 N.J. 

at 212).

The UCL "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." Utley, 194 N.J. at 543-44. Under N.J.S.A. 43:21-5(a), a claimant is 

disqualified from unemployment compensation "[f]or the week in which the 

individual has left work voluntarily without good cause attributable to such 

work." In applying the UCL, "a court must 'differentiate between (1) a voluntary 
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quit with good cause attributable to the work and (2) a voluntary quit without 

good cause attributable to the work.'" Ardan, 231 N.J. at 602 (quoting Brady, 

152 N.J. at 213-14).

A person seeking benefits under the UCL bears the burden of proving 

entitlement. Brady, 152 N.J. at 218. The claimant who "leaves work 

voluntarily, [also] . . . bears the burden to prove [the person] did so with good 

cause attributable to work." Ibid. (citing Zielenski v. Bd. of Review, 85 N.J. 

Super. 46, 52 (App. Div. 1964)). "[A]ll relevant factors" are to be considered 

in this analysis. Utley, 194 N.J. at 548.

Haley contends that because his termination from employment was 

involuntary, there is no need to consider whether the cause was attributable to 

his work. We do not agree. This construction is not consistent with the 1961 

amendment of the statute. See DiProspero v. Penn, 183 N.J. 477, 492 (2005) 

(providing that "[o]ur duty is to construe and apply the statute as enacted") 

(quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)).

The original UCL "disqualified an employee from receiving 

unemployment benefits if [the worker] 'ha[d] left work voluntarily without good 

cause.'" Utley, 194 N.J. at 544 (quoting L. 1936, c. 270, §5). Quitting "for a 

personal reason that constituted 'good cause' entitled a worker to unemployment 
8

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benefits." Ibid. The statute was amended in 1961 to "disqualify claimants who 

left work for purely personal reasons." Brady, 152 N.J. at 213. Thus, under the 

UCL, an individual now is disqualified for unemployment benefits "[f]or the 

week in which the individual has left work voluntarily without good cause 

attributable to such work" until reemployed as set forth in the statute. N.J.S.A. 

43:21-5(a).

We considered the same issue presented here in Fennell v. Board of 

Review, 297 N.J. Super. 319 (App. Div. 1997). Fennell was arrested in 

September and was not able to post bail. Id. at 320-21. Although he made 

reasonable efforts to keep his job, he was terminated from employment in 

January. Id. at 321. He was not rehired after his release from incarceration in 

June. Ibid. On appeal, we affirmed the denial of his unemployment benefits 

claim because the "reason for leaving work was his personal problem, 

incarceration on criminal charges and his inability to raise enough money to post 

bail. These unfortunate economic and legal problems were not related to his 

employment." Id. at 324. We noted disqualification was consistent with the 

1961 change in our unemployment statute "to eliminate the eligibility of persons 

who leave work for good but personal reasons." Id. at 321 (citing Self v. Bd. of 
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Review, 91 N.J. 453, 457 (1982)). Thus "[n]o matter how sympathetic the facts, 

[the loss of his job] . . . bore no relationship to his work." Id. at 325.

White v. Board of Review, 146 N.J. Super. 268 (App. Div. 1977), reached 

a similar result. White left her work release employment because she was 

required as a condition of her parole to reside with her mother, who lived thirtyeight miles away from her job. Id. at 269. White did not have a vehicle. Ibid. 

Any requested change to her parole would have required a longer period of 

incarceration. Ibid. We affirmed the Board's decision disqualifying her for 

unemployment benefits. Id. at 271. Since 1961, "we have consistently held that 

causes personal to the claimant and not attributable to the work come within the 

disqualification of the statute." Id. at 270. This was the case even though the 

claimant was "on parole and subjected to conditions of that parole." Ibid.

In Self, 91 N.J. at 457, the Supreme Court considered terminations based 

on personal circumstances not related to the employment as "voluntary" rather 

than "involuntary." Two employees were terminated from employment based 

on a lack of transportation and denied unemployment benefits. Id. at 455. Both 

were required as a condition of employment to commute twenty miles from 

Trenton to Skillman. Ibid. Public transportation was not available. Ibid. The

two commuted together until the car broke down, then rode with another 
10 A-4973-17T2

employee until that employee quit. Ibid. They reported to their employer they 

could not come to work due to transportation issues and eventually were told 

they were being replaced. Ibid. The employer's "termination report" said they 

"quit" because of "no transportation." Ibid. The Supreme Court reversed the 

Appellate Division, which would have allowed unemployment compensation, 

and reinstated the Board's decision finding it was "compelled by the statute and 

the findings of the administrative agency to recognize the termination of their 

employment as voluntary." Id. at 457-58.

The Court observed that although the UCL originally did not disqualify a 

claimant from benefits who left employment for good personal reasons, "[t]he 

effect of the 1961 amendment was to eliminate the eligibility of persons who 

leave work for good, but personal, causes." Id. at 457. Notably, the Court did 

not treat the loss of employment as involuntary even though they were 

terminated; it was voluntary without good cause attributable to the job because 

the lack of transportation was a personal reason. Id. at 460.

In Yardville Supply Co. v. Board of Review, 114 N.J. 371, 372-73 (1989), 

the employee truck driver lost his job after his license was suspended for driving 

while intoxicated during his non-working hours. Although the driver wanted to 

continue to work in a non-driving capacity, his employer did not have that kind 
11 A-4973-17T2

of work for him. Id. at 373. He applied for and was granted unemployment 

benefits. Ibid. The Appellate Division affirmed, but the Supreme Court 

reversed, finding the driver had left work voluntarily without good cause. Id. at 

375. The Court considered the employee was "not the sort of 'involuntarily' 

unemployed worker that the Act is designed to protect." Ibid.

The Department's regulations address general principles regarding the 

disqualification from unemployment benefits for voluntarily leaving 

employment. See N.J.A.C. 12:17-9.1. The "burden of proof is on the claimant 

to establish good cause attributable to such leaving work." N.J.A.C. 12:17-

9.1(c). Subsection "e" of the regulation addresses when an individual's 

separation from employment is reviewed as voluntary. N.J.A.C. 12:17-9.1(e). 

Under subsection "(e)(10)", separation from employment due to incarceration 

"shall be reviewed as a voluntarily leaving work issue[.]" N.J.A.C. 12:17-

9.1(e)(10). We accord some deference to the Department in its interpretation of

the statute and implementing regulation. Ardan, 231 N.J. at 604. The Board's 

determination that Haley was disqualified for unemployment benefits was 

consistent with this regulation. There was nothing arbitrary, capricious or 

unreasonable in the Board's decision. See Mazza v. Bd. of Trs., 143 N.J. 22, 25 

(1995).
12 A-4973-17T2

Haley urges that pretrial incarceration followed by the dismissal of 

charges should not be reviewed by the Board as "voluntary" even though the 

incarceration was personal to Haley and had nothing to do with his employment. 

Haley cites DeLorenzo v. Board of Review, 54 N.J. 361 (1969). In DeLorenzo, 

the employee became ill for reasons not related to her employment. Id. at 362. 

She was ordered to refund the unemployment benefits she received. Ibid. The 

Supreme Court reversed and remanded to the Board. Ibid. It agreed that under 

the UCL "the disqualification [from unemployment benefits] arises only upon a 

finding that the employee, in fact, decided to terminate the employment because 

the work duties are detrimental to an existing physical condition or state of 

health which did not have a work connected origin." Id. at 364. There is no 

indication this decision extended beyond health-related issues.

The UCL has been amended to provide that certain individuals are not 

disqualified from benefits who have quit or been terminated for personal reasons 

not connected to the work. This includes persons in "training approved under 

section 236(a)(1) of the 'Trade Act of 1974,' Pub.L.93-618 (19 U.S.C. § 2296 

(a)(1))," N.J.S.A. 43:21-5(h)(1), or who have "left work or [were] discharged 

due to circumstances resulting from the individual being a victim of domestic 

violence as defined in section 3 of P.L.1991, c. 261 (C.2C:25-19)," N.J.S.A. 
13 A-4973-17T2

43:21-5(j), or following a transfer "if the individual left work to accompany his 

or her spouse who is an active member of the United States Armed Forces, as 

defined in N.J.S.A. 38A:1-1(g), to a new place of residence outside the State,"

under certain circumstances. N.J.S.A. 43:21-5(k). Under Haley's interpretation 

of the statute, there would have been no reason for the legislature to amend the 

UCL to make provisions for these exceptions because all of them presented 

grounds for leaving that had nothing to do with the employer, and certainly in 

the case of domestic violence victims, could not be said to be voluntary.

Haley argues that New Jersey is an "outlier" because other states allow for 

unemployment compensation benefits in situations involving incarceration 

without convictions. However, that statement does not consider New Jersey's 

1961 amendment to the UCL that "disqualif[ies] claimants who left work for 

purely personal reasons." Brady, 152 N.J. at 213.

In Parker v. Department of Labor and Employment Security, 440 So. 2d 

438, 439-40 (Fla. Dist. Ct. App. 1983), the court ruled that the claimant, who 

was incarcerated for a month on criminal charges that subsequently were 

dropped, was entitled to unemployment. We rejected Parker's analysis in 

Fennell based on the 1961 amendment of our UCL. See Fennell, 297 N.J. Super. 

at 324-25.
14 A-4973-17T2

In Irving v. Employment Appeal Board, 883 N.W.2d 179, 210 (Iowa 

2016), the Supreme Court of Iowa acknowledged its law was different from New 

Jersey's. It reviewed a rule that provided "an irrebuttable presumption that the 

employee is disqualified from receiving unemployment benefits on the ground 

that the employee voluntarily quit employment." Id. at 205. That court

distinguished Fennell, finding that our interpretation of the phrase "attributable 

to the employer" was different than under Iowa law. Id. at 210. For the quit to 

be nonvoluntary under Fennell, the reasons had to be attributable to the 

employer "with very few and narrow exceptions." Ibid. (citing Fennell, 297 

N.J. Super. at 323). That was not the case under Iowa law. Ibid.5

In State, Employment Security Division v. Murphy, 371 P.3d 991, 994 

(Nev. 2016), the court considered whether incarceration was "misconduct" to 

deny unemployment compensation. This is not how the issue is treated under 

the UCL. Also, Murphy pleaded guilty to the charges. Id. at 995. The court 

acknowledged "when an employee is convicted of a crime, it is the employee's 

criminal behavior that prevents him or her from returning to work, and the 

5 Although cited by Haley, the case of Ford v. Labor & Industrial Relations 

Commission, 841 S.W.2d 255 (Mo. Ct. App. 1992), was remanded for further 

development of the record.
15 A-4973-17T2

employee is disqualified from receiving unemployment benefits." Ibid. That 

was not the situation here.

The statutes in California and Pennsylvania cited by Haley are dissimilar 

from the UCL. In California, "[i]f the employment of an individual is terminated 

due to his absence from work for a period in excess of [twenty-four] hours 

because of his incarceration and he is convicted of the offense for which he was 

incarcerated or of any lesser included offense, he shall be deemed to have left 

his work voluntarily without good cause." Cal. Unemp. Ins. Code § 1256.1(a). 

In Pennsylvania, "[a]n employee shall not be eligible for payment of 

unemployment compensation benefits for any weeks of unemployment during 

which the employee is incarcerated after a conviction." 43 Pa. Cons. Stat. § 

802.6(a). New Jersey's UCL does not include similar language.

By separating "voluntary" from whether it was "attributable to the 

employment," Haley's interpretation allows for an expansion of benefits to any 

non-work-related reason an employee is terminated from employment. If the 

worker were to resign, under Haley's analysis, the same worker would be 

disqualified from benefits unless attributable to the employment. This was not 

the approach followed in Fennell. The legislature has not amended the statute 

to address this issue since our decision in Fennell. "[W]e presume that the 
16 A-4973-17T2

Legislature is familiar with existing judicial statutory interpretations." Chase 

Manhattan Bank v. Josephson, 135 N.J. 209, 227 (1994) (citing Brewer v. Porch, 

53 N.J. 167, 174 (1969)). We conclude, therefore, that the Board's decision was 

not contrary to the UCL. Haley did not meet his burden of showing there were 

circumstances about his case that showed the decision to deny benefits was 

arbitrary, capricious or unreasonable.

Affirmed.