                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2940-15T3

CYNTHIA M. BLAKE,
                                        APPROVED FOR PUBLICATION
     Appellant,
                                              September 28, 2017
v.
                                              APPELLATE DIVISION
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and LAUREL HEALTHCARE,
LLC,

     Respondents.
_______________________________________________

         Submitted June 6, 2017 – Decided September 28, 2017

         Before Judges Messano, Suter and Grall.

         On   appeal  from   the   Board  of   Review,
         Department of Labor, Docket No. 068,871.

         South Jersey Legal Services, Inc., attorneys
         for appellant (Alan W. Lesso, on the
         briefs).

         Christopher S. Porrino, Attorney General,
         attorney for respondent Board of Review,
         Department   of    Labor   (Melissa   Dutton
         Schaffer, Assistant Attorney General, of
         counsel; Lauren J. Zarrillo, Deputy Attorney
         General, on the brief).

         Respondent Laurel      Healthcare,    LLC   has   not
         filed a brief.

     The opinion of the court was delivered by

MESSANO, P.J.A.D.
       Nearly      six     decades   ago,       the    Legislature          amended        New

Jersey's     Unemployment        Compensation         Law     (the    UCL),        N.J.S.A.

43:21-1      to     -56,     disqualifying         applicants         from        receiving

unemployment        benefits    if   they   "left      work       voluntarily      without

good cause attributable to such work."                    Yardville Supply Co. v.

Bd. of Review, 114 N.J. 371, 374 (1989) (quoting N.J.S.A. 43:21-

5(a)).       "Accordingly, benefits are available to a worker who

voluntarily leaves his job only if it [was] for 'good cause

attributable to [the] work.'"               Utley v. Bd. of Review, 194 N.J.

534, 544 (2008) (quoting N.J.S.A. 43:21-5(a)).                             A worker who

leaves    "for     personal     reasons,        however     compelling,       .    .   .    is

disqualified under the statute."                  Ibid.; see also Ardan v. Bd.

of    Review,      444   N.J.   Super.   576,      585      (App.    Div.    2016)     ("An

employee who leaves work for good, but personal, reasons is not

deemed to have left work voluntarily with good cause."), certif.

granted, 229 N.J. 135 (2017).

       The   disqualification        extends       from     the    week    the     employee

leaves work, "and for each week thereafter until [she] becomes

reemployed . . . works eight weeks . . . and has earned . . . at

least ten times [her] weekly benefit rate."                           N.J.S.A. 43:21-

5(a).        The     current    disqualification            period        represents        an

extension, from four to eight weeks and from six to ten times

the   benefit      rate,    which    enactment        coincided      with    changes        to




                                            2                                      A-2940-15T3
other provisions of the UCL intended to "reduce[] unemployment

insurance (UI) tax rates" imposed on employers.                   L. 2010, c. 37,

§ 2; Senate Labor Comm., Statement to S. 1813 (May 10, 2010).

     This appeal requires us to construe the following language

added     to    N.J.S.A.   43:21-5(a)         in    2015,   which   provides         the

disqualification

               shall not apply to an individual who
               voluntarily leaves work with one employer to
               accept from another employer employment
               which commences not more than seven days
               after the individual leaves employment with
               the first employer, if the employment with
               the second employer has weekly hours or pay
               not less than the hours or pay of the
               employment of the first employer, except
               that if the individual gives notice to the
               first employer that the individual will
               leave employment on a specified date and the
               first employer terminates the individual
               before that date, the seven-day period will
               commence from the specified date.

               [N.J.S.A. 43:21-5(a), as amended by L. 2015,
               c. 41 § 1 (emphasis added).]

     In    this    case,   Cynthia   M.       Blake    provided     her    employer,

Laurel Healthcare LLC (Laurel), with two weeks' notice that she

was leaving her position to begin working for Alaris Healthcare

(Alaris) at an increased hourly wage.                  Two days before she was

to   start,      Alaris    told   Blake       the    position     was     no    longer

available.       When Blake tried to rescind her resignation, Laurel

informed her it no longer required her in a full-time capacity.

The Deputy denied Blake's application for unemployment benefits



                                          3                                    A-2940-15T3
because     she     left    work     voluntarily           without     good      cause

attributable to the work.          N.J.S.A. 43:21-5(a).1

    The Tribunal affirmed the Deputy's decision, reasoning the

Amendment's exception applied only if Blake actually commenced

her employment with Alaris.          In its final decision, the Board of

Review    (the    Board)   agreed   with     the    Tribunal's       reasoning      and

affirmed Blake's disqualification.            This appeal followed.

    Blake argues the plain language of the Amendment does not

impose     "a     commencement       requirement."2         She      contends       the

Legislature intended "to protect a worker against a situation

where . . . she       leaves   one     job     for     a     better     job      which

subsequently      falls    through."    The        Board     counters    that       the

Amendment's plain language required Blake to commence work with

Alaris in order for the exception to apply.                  It further contends




1
  At the time of the hearing before the Appeal Tribunal (the
Tribunal), Blake continued to work for Laurel in a part-time
capacity, had not found full-time employment and had not yet
worked eight weeks earning the minimum of ten times her weekly
benefit rate of $325 which would otherwise requalify her for
unemployment benefits. See N.J.S.A. 43:21-5(a).
2
  The Tribunal cited N.J.A.C. 12:17-9.1(e)(9) as supporting its
conclusion. That    regulation  provides:     "An   individual's
separation from employment shall be reviewed as a voluntarily
leaving work issue where the separation was for the following
reasons including . . . [t]o accept other work." We agree with
Blake that the Tribunal inexplicably engrafted language on the
regulation that does not exist. The Board concedes this point.



                                       4                                      A-2940-15T3
the     legislative        history       of        the   Amendment       supports     that

interpretation.

      In a recent opinion, a panel of our colleagues essentially

accepted Blake's interpretation of the Amendment and rejected

the Board's.       See McClain v. Bd. of Review, ___ N.J. Super. ___,

___ (App. Div. 2017) (slip op. at 2) ("We reject the Board's

interpretation and reverse, finding a claimant need not actually

start    the    new     employment      to    be     exempt     from    disqualification

under N.J.S.A. 43:21-5(a).").                 We respectfully disagree with our

colleagues and conclude the Amendment's exception does not apply

unless    the    employee       accepts       employment       with    another   employer

"which commences not more than seven days after the individual

leaves employment with the first employer."                             N.J.S.A. 43:21-

5(a).    We therefore affirm the Board's decision.

      We need not reiterate the applicable standards that guide

our   review,      which    the     panel       capably        explained    in    McClain.

McClain,       supra,    slip     op.   at     5-6.      Our    colleagues      determined

"nothing in the plain language of the [A]mendment support[ed]

the     imposition       of . . . a          condition"        that    "[the]     claimant

actually       commence     the    new       employment        within    the     seven-day

period."        Id. at 10.         We disagree.            In our view, the plain

language of the Amendment fully supports the Board's position.




                                               5                                  A-2940-15T3
      The   acceptance       of   a    commensurate          position        with     another

employer     does     not     trigger         the     Amendment's            exception     to

disqualification.        Rather, it is only the employee's acceptance

of "employment which commences not more than seven days after

the   individual      leaves      employment         with        the   first     employer,"

N.J.S.A. 43:21-5(a)(emphasis added), that transforms otherwise

disqualifying conduct — tendering a voluntary resignation — into

an      insignificant        event       for        purposes           of      eligibility.

Interpreting the language of the Amendment by giving the words

their    "generally     accepted       meaning,       according         to   the    approved

usage," N.J.S.A. 1:1-1, "which" refers to something previously

mentioned    —   employment       accepted         from     another      employer      —   and

provides     further     information              about     that       employment      —    it

commences    within      seven        days.          Oxford       English       Dictionary,

www.oed.com/view/entry/228284             (last           visited      Sept.    18,    2017)

(defining    "which"        as,   "[i]ntroducing             a    clause       defining    or

restricting the antecedent thus completing the sense.").

      Blake would have us read the Amendment to apply whenever an

employee resigns to accept employment "which was intended to

commence" within seven days of the effective resignation date,

but never did.        Simply put, we will not "insert language that

the Legislature could have included in [the Amendment] -- but




                                              6                                     A-2940-15T3
did not."       Jersey Cent. Power & Light Co. v. Melcar Util. Co.,

212 N.J. 576, 596 (2013).

       Moreover, our construction gives relevancy to the second

portion    of    the    Amendment,       which         provides      "if    the    individual

gives    notice    to    the        first    employer         that     [she]      will     leave

employment on a specified date and the first employer terminates

[her] before that date, the seven-day period [in which the job

commences] will commence from the specified date[,]" not the

date      of     termination.         N.J.S.A.             43:21-5(a).       Obviously, the

Legislature       did    not    want        the       first    employer's         sudden      and

unilateral      decision       to    terminate         the    employee      who    had     given

notice    to     adversely          affect       her       continued       eligibility        for

benefits simply because the second job commenced more than seven

days later.

       Blake's    interpretation            of       the   Amendment,      adopted       by   the

panel in McClain, renders unnecessary this second part of the

Amendment.       If an employee resigned, yet remained eligible for

benefits by accepting a position that was intended to commence

within seven days of her resignation date, but never did, she

would become eligible for benefits upon the date of her actual

termination.       Any difference between the anticipated resignation

date and the actual termination date would be irrelevant.                                  Basic

principles of statutory interpretation require us to "presume




                                                 7                                   A-2940-15T3
that    every      word    in     a   statute    has    meaning    and    is   not    mere

surplusage."        Jersey Cent. Power & Light, supra, 212 N.J. at 587

(quoting Cast Art Indus., LLC v. KPMG LLP, 209 N.J. 208, 222

(2012)).        Blake's interpretation of the Amendment renders the

second portion nugatory.

       Blake argues in her reply brief, "Logically, the failure of

the    second      job     to    commence    leaves     the     worker    in   the    same

position      as    that    which      occurs    when     the   worker    is   laid     off

shortly after the second job does commence."                         That may be so,

but the statement ignores the potential consequences to the two

employers and is inconsistent with the Legislature's purpose in

enacting      the      Amendment,       as      the    legislative       history     amply

demonstrates.

       The Senate Labor Committee's favorable report on S. 2802,

which    became      the        Amendment,   made      clear     that    the   bill     was

intended to "make an exception" from the usual disqualification

under N.J.S.A. 43:21-5(a), "for a worker who leaves one job to

accept a subsequent job at least equal in hours or pay, but is

laid    off     from      the     subsequent      job."         Senate    Labor    Comm.,

Statement to S. 2082 (June 5, 2014) (emphasis added); see also

Assembly Labor Comm., Statement to S. 2082 (September 11, 2014)




                                             8                                    A-2940-15T3
and   Assembly     Appropriations     Comm.,   Statement   to   S.     2082

(February 5, 2015) (same).3

      In all instances, the Committees noted that the bill would

not fiscally affect the first employer's contributions to the

unemployment compensation fund, in particular, future rates of

contribution     based   upon   benefit   experience.   N.J.S.A.     43:21-

7(c)(1).

           Another   portion    of   the   current  law,
           [N.J.S.A.] 43:21-7(c)(1), provides that an
           employer's UI account is not charged for UI
           benefits   paid   to    a  claimant   if  the
           employee's employment . . . ended in any way

3
   Without specificity, the Committee statements referenced
similar laws enacted by twenty-six states, and regulations
enacted in five others, that had the same purpose. Senate Labor
Comm., Statement to S. 2082 (June 5, 2014).      In this appeal,
neither Blake nor the Board have cited to the laws of our sister
states, but the panel in McClain specifically considered two of
them and found the language of those statutes explicitly
provided that the employee actually commence work with the
second employer.    McClain, supra, slip op. at 13 n. 3.      We
cannot quarrel with our colleagues' analysis in this regard.
     However, contrary to the course taken by our Legislature, a
number of other states have included explicit language that
adopts Blake's position, i.e., that commencement of employment
with the second employer was not necessary for the exemption
from disqualification to apply.    See, e.g., Alaska Admin. Code
8, § 85.095 (2017) (providing that "leaving work to accept a
bona fide offer" is considered when determining "the existence
of good cause . . . for voluntarily leaving work."); Ariz.
Admin. Code § R6-3-50365 (2017) ("A worker who . . . quits
because he has prospects of other work, but no definite offer,
leaves voluntarily without good cause in connection with his
work."); Cal. Code Regs. 22 § 1256-19(c) (2017) ("An individual
who leaves work to accept other work has good cause for leaving
the work if there was a definite assurance of employment in
another substantially better job.").



                                     9                             A-2940-15T3
            which would have disqualified the claimant
            from UI benefits if the employee had applied
            for benefits at the time when the employment
            ended, including if the employee voluntarily
            left work with that employer without good
            cause attributable to that work. Therefore,
            under those provisions of the current law,
            that employer's account would not be charged
            when the claimant leaves work with that
            employer to accept employment from another
            employer, and the claimant is, pursuant to
            the provisions of this bill, paid UI
            benefits after being laid off by the
            subsequent employer, even if the first
            employer paid wages to the claimant during
            the claimant's base year.

            [Senate Labor Comm., Statement to S. 2082
            (June   5,  2014);   Assembly  Labor   Comm.,
            Statement to S. 2082 (September 11, 2014);
            Assembly Appropriations Comm., Statement to
            S.   2082  (February    5,  2015)   (emphasis
            added).]4

4
    N.J.S.A. 43:21-7(c)(1) provides:

            [A]n employer's account shall not be charged
            for benefits paid to a claimant if the
            claimant's employment by that employer was
            ended   in   any   way   which,   pursuant   to
            subsection (a), (b), (c), (f), (g) or (h) of
            [N.J.S.A.] 43:21-5, would have disqualified
            the claimant for benefits if the claimant
            had applied for benefits at the time when
            that employment ended.     Benefits paid under
            a given benefit determination shall be
            charged against the account of the employer
            to whom such determination relates. When
            each benefit payment is made, notification
            shall be promptly provided to each employer
            included   in    the   unemployment   insurance
            monetary   calculation    of   benefits.   Such
            notification shall identify the employer
            against whose account the amount of such
            payment is being charged, shall show at
                                                          (continued)


                                  10                         A-2940-15T3
The   sponsor   of   S.   2802,   Senator   Fred     H.    Madden,     was   more

explicit:

            The bill also provides that an employer's
            account will not be charged for UI benefits
            paid to a claimant even if:     the employer
            paid wages to the claimant during the
            claimant's base year; the claimant leaves
            work with that employer to accept employment
            from another employer; and the claimant is
            paid UI benefits after being laid off by the
            subsequent employer.

            [Sponsor's Statement to         S.   2802     (May   19,
            2014) (emphasis added).]

      The   Office   of   Legislative     Services      (OLS)    was   asked   to

consider the fiscal impact of           S. 2802 upon the unemployment

insurance trust fund.         In recognizing the difficulty of the

task, OLS noted "there is no data available . . . to quantify

the number of these claimants who had secured future employment

and then were subsequently laid off from the new employment."

Office of Legis. Servs., Legislative Fiscal Estimate to S. 2802

(June 19, 2014) (emphasis added).

      The Senate Labor Committee's June 5, 2014 hearing makes

clear that committee members intended to protect an employee who

actually "assume[s] . . . new employment within seven days."



(continued)
          least the name and social security account
          number of the claimant and shall specify the
          period of unemployment to which said benefit
          payment applies.



                                     11                                 A-2940-15T3
Senate Labor Comm. Hearing on S. 2082, (June 5, 2014) (statement

by Senator Madden), http://www.njleg.state.nj.us/media/archive_a

udio2.asp?KEY=SLA&SESSION=2014.         The    legislators    wanted      that

employee's   eligibility   for   benefits     to   carry   forward,    rather

than cause the eligibility "clock" to "reset to zero" once the

employee started work with the second employer.            Ibid.

    Finally, as a practical matter, the first employer, in this

case, Laurel, who did nothing to cause Blake to quit, is ill-

equipped to rebut any claim for benefits.            We logically assume

that most offers of other employment are not reduced to writing.

Therefore, an employer who participates in a hearing before the

Appeal Tribunal can only testify to what is undisputed, i.e.,

that the employee quit her position.           It is unlikely that the

employer could call the second employer, who is not a respondent

to the employee's appeal and may be unknown, as a witness to

challenge whether the claimant actually had received an offer of

employment and what were its terms.           Despite this disadvantage,

the first employer would bear the financial consequences of any

benefits awarded.   N.J.S.A. 43:21-7(c)(1).

    In short, we conclude the plain language of the Amendment,

as well as its legislative history, support the conclusion that

it applies only if the employee voluntarily leaves employment

and actually "commences" employment with a second employer.




                                   12                                 A-2940-15T3
Affirmed.




            13   A-2940-15T3
