                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4319-15T3

PATRICIA J. MCCLAIN,

     Appellant,
                                         APPROVED FOR PUBLICATION
v.
                                               August 29, 2017
BOARD OF REVIEW, DEPARTMENT                   APPELLATE DIVISION
OF LABOR, LEARNING EDGE ACADEMY,
INC., and KIDS CHOICE ACADEMY,

     Respondents.

___________________________________

         Argued May 31, 2017 – Decided August 29, 2017

         Before Judges Ostrer, Vernoia and Moynihan.

         On   appeal  from   the      Board     of   Review,
         Department of Labor.

         Cassandra Stabbert argued the cause for
         appellant (South Jersey Legal Services,
         Inc.,   attorneys; Ms. Stabbert, on the
         brief).

         Melissa Dutton Schaffer, Assistant Attorney
         General, argued the cause for respondent
         Board of Review (Christopher S. Porrino,
         Attorney General, attorney; Ms. Schaffer, of
         counsel;   Patrick  Jhoo,   Deputy  Attorney
         General, on the brief).

         Respondents Learning Edge Academy, Inc., and
         Kids Choice Academy have not filed briefs.

     The opinion of the court was delivered by

VERNOIA, J.A.D.
       A    recent       amendment     to    the     unemployment        insurance     law

exempts       from      disqualification       for    unemployment        benefits     "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 . . . the first

employer." L. 2015, c. 41, § 1, codified at N.J.S.A. 43:21-5(a).

Appellant left her first employer after accepting new employment

that    was      to     commence    within    seven    days;     her     new    employer,

however, rescinded the offer before she ever began work. Finding

this statute inapplicable -- because appellant hadn't commenced

her new employment within seven days -- the Board found she was

disqualified          from    receiving      benefits.      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).

                                             I.

       Appellant Patricia J. McClain began working as a teacher at

Learning         Edge    Academy,     Inc.    in     January     2013.    She    was    on

disability leave commencing in August 2015, and was scheduled to

return to work in October.

       On October 12, 2015, McClain accepted an offer from Kids

Choice      Academy          for   full-time       employment.      She     immediately

submitted a letter of resignation to Learning Edge.




                                              2                                  A-4319-15T3
    The     next        day,   the    director     of     Kids     Choice    requested

McClain's permission to contact McClain's former employer and

advised    her     an     appointment      would     be   made     for     her    to     be

fingerprinted. Later in the day, the director rescinded the job

offer to McClain because the person McClain was supposed to

replace decided to return to work at Kids Choice. McClain also

received an email from Learning Edge accepting her resignation.

    McClain began looking for other jobs. She did not contact

Learning    Edge        following    its    acceptance       of     her     resignation

because she did not think Learning Edge would want her to return

since she had resigned.

    McClain applied for unemployment benefits. Her claim was

denied and she appealed. The Appeal Tribunal held a hearing,

McClain testified, and the Appeal Tribunal affirmed the denial.

The Appeal Tribunal found McClain resigned from her position

with Learning Edge on October 12, 2015 to accept a higher paying

position with Kids Choice, and that on October 13, 2015, Kids

Choice rescinded the offer "because the employee who originally

held the position decided to return to work."

    The     Appeal         Tribunal     explained         that     a      claimant       is

disqualified from receiving unemployment compensation benefits

under   N.J.S.A.        43:21-5(a)    where    the      claimant    "has     left      work

voluntarily without good cause attributable to such work." The




                                           3                                     A-4319-15T3
Appeal    Tribunal   also   noted   there         is   an   exemption   from   the

disqualification for

              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.

              [N.J.S.A. 43:21-5(a).]

       The Appeal Tribunal determined McClain was not covered by

the exemption because she did not actually commence employment

with Kids Choice within seven days of her last day of employment

at Learning Edge.        The Appeal Tribunal therefore found McClain

was disqualified from receiving benefits under N.J.S.A. 43:21-

5(a).

       McClain appealed to the Board of Review. On April 14, 2016,

the Board issued its final agency decision affirming the Appeal

Tribunal's findings and ruling. The Board subsequently denied

McClain's request for reopening. This appeal followed.

                                    II.

       Our scope of review of an administrative agency's decision

is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In

order to reverse an agency's judgment, an appellate court must

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




                                         4                               A-4319-15T3
unreasonable,       or    [     ]    not    supported       by   substantial     credible

evidence in the record as a whole.'" Ibid. (quoting Henry v.

Rahway State Prison, 81 N.J. 571, 579-80 (1980)). A reviewing

court "may not substitute its own judgment for the agency's,

even though the court might have reached a different result." In

re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State

Police Training Ctr., 127 N.J. 500, 513 (1992)).

    Generally,           "we    afford      [an]      agency     great    deference"     in

reviewing its "interpretation of statutes within its scope of

authority"     in        recognition            of    the      agency's    "specialized

expertise."     N.J. Soc'y for Prevention of Cruelty to Animals v.

N.J. Dep't of Agric., 196 N.J. 366, 385 (2008) (quoting In re

Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)).

Although an appellate court must give deference to the agency's

findings of facts, "and some deference to its 'interpretation of

statutes and regulations within its implementing and enforcing

responsibility,'"          it       is   "in    no    way   bound   by     the   agency's

interpretation of a statute or its determination of a strictly

legal issue." Utley v. Bd. of Review, 194 N.J. 534, 551 (2008)

(first quoting In re Appeal by Progressive Cas. Ins. Co., 307

N.J. Super. 93, 102 (App. Div. 1997); then quoting Mayflower

Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)); see also

Reilly   v.   AAA    Mid-Atl.            Ins.   Co.   of    N.J.,   194 N.J. 474,      485




                                                5                                A-4319-15T3
(2008) ("[I]f an agency's statutory interpretation is contrary

to the statutory language, or if the agency's interpretation

undermines the Legislature's intent, no deference is required."

(quoting N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331,

351 (1997))). An appellate court reviews legal conclusions de

novo. Lavezzi v. State, 219 N.J. 163, 172 (2014).

      The Board's decision finding McClain was disqualified from

receiving benefits requires that we interpret a 2015 amendment

to   N.J.S.A.    43:21-5(a).     Prior    to    the    amendment,   the   statute

provided   that       an   individual    was   disqualified    from     receiving

unemployment compensation benefits

           [f]or the week in which the individual has
           left work voluntarily without good cause
           attributable to such work, and for each week
           thereafter until the individual becomes
           reemployed   and   works   eight  weeks   in
           employment, which may include employment for
           the federal government, and has earned in
           employment   at    least    ten  times   the
           individual's   weekly    benefit  rate,   as
           determined in each case.

           [N.J.S.A. 43:21-5(a).]

Under the applicable regulation, an individual's separation from

employment      was    deemed   voluntary      where   the   claimant     left   to

accept work at another employer. N.J.A.C. 12:17-9.1.




                                         6                                A-4319-15T3
    The   2015   amendment1    to   N.J.S.A.     43:21-5(a)    added    the

following exemption from the disqualification in the statute and

regulation:

          This subsection 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) (emphasis added).]

The Board's interpretation and application of the amendment are

at the center of McClain's appeal.

    Our primary purpose in construing a statute is to "discern

the meaning and intent of the Legislature." State v. Gandhi, 201

N.J. 161, 176 (2010). "There is no more persuasive evidence of

legislative   intent   than   the   words   by   which   the   Legislature

undertook to express its purpose; therefore, we first look to

the plain language of the statute." Perez v. Zagami, LLC, 218

N.J. 202, 209-10 (2016). "We ascribe to the statutory words

1
  The amendment became effective May 4, 2015. L. 2015, c. 41, §
1.



                                    7                             A-4319-15T3
their   ordinary    meaning   and   significance,       and    read    them   in

context    with   related   provisions   so   as   to   give   sense    to    the

legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492

(2005) (citations omitted). Where "the plain language leads to

a clear and unambiguous result, . . . our interpretive process

is over." Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys., 192 N.J. 189, 195 (2007). When the statutory language

"clearly reveals the meaning of the statute, the court's sole

function is to enforce the statute in accordance with those

terms." McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001)

(quoting SASCO 1997 NI, LLC v. Zudkewich, 166 N.J. 579, 586

(2001)).

     Alternatively, where "there is ambiguity in the statutory

language that leads to more than one plausible interpretation,

we   may   turn    to   extrinsic   evidence,      'including    legislative

history, committee reports, and contemporaneous construction.'"

DiProspero, supra, 183 N.J. at 492-93 (quoting Cherry Hill Manor

Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). Extrinsic evidence

may also be considered "if a plain reading of the statute leads

to an absurd result or if the overall statutory scheme is at

odds with the plain language." Id. at 493.

     The resolution of McClain's application for unemployment

compensation benefits turns on the interpretation of the phrase




                                     8                                 A-4319-15T3
"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." N.J.S.A. 43:21-5(a). The Board found the amendment

required that a claimant actually commence employment within the

seven-day      period,   and     that   McClain      was    disqualified         from

receiving benefits because she did not actually commence her

employment at Kids Choice within seven days of her last day of

employment      at    Learning     Edge.      McClain      argues     the       Board

misinterprets the amended statute, and that she was covered by

its plain language because she voluntarily left the employment

of Learning Edge "to accept" employment with Kids Choice that

commenced within the seven-day period.

       We   have   carefully     considered    the     amendment    to    N.J.S.A.

43:21-5(a) and are convinced its plain language is inconsistent

with    the    Board's   interpretation.         The    amendment        does     not

expressly require that a claimant actually commence work within

the seven-day period.          To the contrary, the amendment requires

only that a claimant leave work with the first employer "to

accept"     employment   with    the    second    employer    which      commences

within the seven-day period. The Board's interpretation requires

the imposition of a condition the Legislature did not include in

the amendment: that the employee not only leave employment with




                                        9                                   A-4319-15T3
the first employer to accept employment which commences within

the    seven-day          period,     but     also       that        the    claimant       actually

commence the new employment within the seven-day period.

       We find nothing in the plain language of the amendment

supporting          the     imposition         of        such    a         condition.       If     the

Legislature intended to impose the requirement that a claimant

actually     commence        employment        within          the    seven-day       period,       it

could have done so directly. Instead, the amendment provides

only    that        there    is    no    disqualification                  where,    as    here,     a

claimant leaves work to accept employment which commences within

the     seven-day           period.      We     therefore             reject         the    Board's

interpretation of the amendment because it is not our function

"to 'rewrite a plainly-written enactment of the Legislature or

presume that the Legislature intended something other than that

expressed by way of the plain language.'" DiProspero, supra, 183

N.J.    at   492      (quoting      O'Connell        v.     State,         171   N.J.      484,    488

(2002)).       We    will    not    "'write         in    an    additional          qualification

which    the    Legislature         pointedly            omitted      in     drafting      its    own

enactment,'         or    'engage       in    conjecture         or        surmise    which       will

circumvent the plain meaning of the act.'" Ibid. (first quoting

Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225, 230 (1952);

then quoting In re Closing of Jamesburg High School, 83 N.J.

540, 548 (1980)).




                                                10                                          A-4319-15T3
      We need not rely on the legislative history given that the

plain language of the amendment does not require that a claimant

actually    commence   the     new    employment     within     the    seven-day

period.    See   Richardson,   supra,       192   N.J.   at   195;    DiProspero,

supra, 183 N.J. at 492-93.           Moreover, the Board's argument that

the   legislative      history       supports      its    interpretation        is

contradicted by the plain language of the amendment. The Board

relies on the following Senate Sponsor's statement annexed to

the bill that was subsequently enacted as the 2015 amendment to

N.J.S.A. 43:21-5(a):

                 This bill provides that an individual
            is   not   disqualified     from    unemployment
            insurance (UI) benefits for voluntarily
            leaving work if the individual 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, and 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
            notifies   the   first    employer    that    the
            individual   will   leave    employment    on   a
            specified   date   and   the    first   employer
            terminates the individual before that day,
            the seven-day period will commence from the
            specified date.

                 Current  law,   [N.J.S.A.]  43:21-5(a),
            disqualifies an individual who voluntarily
            leaves a job from receiving UI benefits and
            requires the individual to become reemployed
            and work at least eight weeks, earning at
            least 10 times the individual's weekly UI
            benefit rate, before again being eligible



                                       11                                A-4319-15T3
             for   UI  benefits.   This   bill makes  an
             exception from that requirement for an
             individual who leaves one job to accept a
             subsequent job at least equal in hours or
             pay, but is laid off from the subsequent
             job. The UI laws of 26 states, and the
             regulations of five other states, treat
             accepting other work as good cause for
             leaving work, and do not disqualify workers
             for UI benefits for doing so.

             [Sponsor's Statement to S. 2082, 216th Leg.
             (May 19, 2014) (emphasis added).2]

      The    Board   argues   that    the   reference   in    the   sponsor's

statement to a claimant being "laid-off" means the amendment to

N.J.S.A. 43:21-5(a) requires that the claimant actually commence

work with the new employer within the seven-day period because

an employee must begin work in order to be "laid-off." However,

the plain language of the enacted amendment is bereft of any

requirement that the claimant actually commence work, and makes

no reference to the claimant being "laid-off." To the contrary,

the   best   evidence   of    the    Legislature's   intent    –    the   plain

language of the amendment – requires only that a claimant leave




2
  The emphasized language was also included in the Assembly
Appropriations Committee and Assembly Labor Committee statements
concerning the bill, and the Bill Description prepared by the
Office of Legislative Services. See Assem. Appropriations Comm.,
Statement to S. 2082 (Feb. 5, 2015) (codified at N.J.S.A. 43:21-
5); Assem. Labor Comm., Statement to S. 2082 (Sept. 11, 2014);
Office of Legis. Servs., Legis. Fiscal Estimate for S. 2082
(June 19, 2014).



                                       12                             A-4319-15T3
work to accept employment which commences within the seven-day

period.

      We   are    also      unpersuaded     by   the   Board's    contention     the

sponsor's statement's reference to the unemployment insurance

laws of twenty-six other states supports its interpretation of

the amendment. According to the sponsor's statement, the laws in

the   other      states     do   not   require    that   a   claimant     actually

commence    work     with    the    new   employer.    Instead,    the   sponsor's

statement explains that the laws                 in the other states "treat

accepting     work    as     good   cause   for   leaving    work."      Thus,   the

sponsor's statement describing the laws in the other states is

consistent with the plain language of the amendment; accepting

new employment which commences within the seven-day period is

sufficient.3


3
  We also reject the Board's argument that the laws of other
states support its interpretation of the amendment. Here, we
interpret only the language in the amendment to N.J.S.A. 43:21-
5(a), which is different from the statutory language of the
other states referred to in the Board's brief. The Board relies
on an Iowa statute exempting an employee from disqualification
for leaving employment to accept other employment where "the
individual performed services in the new employment," Iowa Code
§ 96.5(1)(a) (2017), and Ind. Code Ann. § 22-4-15-1(c)(1)(A)
(West 2017), which provides a claimant is not disqualified from
benefits where the claimant accepts new full-time employment
"which offered reasonable expectation of continued covered
employment and betterment of wages or working conditions and
thereafter was employed on said job." The Board contends the
amendment to N.J.S.A. 43:21-5(a) "closely tracks" the language
of the Iowa and Indiana statutes and argues they provide support
                                                     (continued)


                                          13                               A-4319-15T3
         "In reading and interpreting a statute, primary regard must

be given to the fundamental purpose for which the legislation

was enacted. Where a literal reading will lead to a result not

in accord with the essential purpose and design of the act, the

spirit of the law will control the letter." State v. Tischio,

107   N.J. 504,    511    (1987)    (quoting     N.J.   Builders,     Owners   and

Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972)). Thus, "the

words of [a statute] are to be accorded a rational meaning in

harmony with the obvious intent and purpose of the law." Ibid.

(quoting State v. Brown, 22 N.J. 405, 415 (1956)). "Where the

Legislature's     intent    is     remedial,     a   court   should   construe    a

statute     liberally."    Young       v.   Schering   Corp.,   141 N.J. 16,     25

(1995).

         New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-

1   to    -56,   (the    Act)    "is    social    legislation    that    provides

financial assistance to eligible workers suffering the distress

and      dislocation     caused        by    unemployment."     Utley,    supra,

194 N.J. at 543. "[T]he underlying mission of the Act is 'to



(continued)
for the Board's interpretation of the amendment. We are not
persuaded. The Iowa and Indiana statutes only highlight that
where a Legislature intends that actual commencement of new
employment is required for the exemption from disqualification,
the requirement will be directly expressed in the applicable
statute. The New Jersey Legislature chose not to expressly
include such a requirement in the amendment.



                                            14                           A-4319-15T3
afford protection against the hazards of economic insecurity due

to involuntary unemployment.'" Brady v. Bd. of Review, 152 N.J.

197, 211 (1997) (quoting Yardville Supply Co. v. Bd. of Review,

114 N.J. 371, 374 (1989)). "[T]he purpose of the Act is to

provide some income for the worker earning nothing, because he

is out of work through no fault or act of his own." Id. at 212

(quoting Yardville, supra, 114 N.J. at 375). Thus, "[t]he Act

. . . 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,    supra,

194 N.J. at 543-44.

        "[T]o further [the Act's] remedial and beneficial purposes

.   .   .    the    [Act]   is   to   be   construed     liberally   in   favor   of

allowance of benefits." Lourdes Med. Ctr. of Burlington Cty. v.

Bd. of Review, 197 N.J. 339, 364 (2009) (quoting Utley, supra,

194 N.J. at 543). However, "it is also important to preserve the

[unemployment insurance trust] fund against claims by those not

intended to share in its benefits. 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." Brady, supra, 152

N.J. at 212 (quoting Yardville, supra, 114 N.J. at 374).




                                            15                             A-4319-15T3
     Given that the intent of the Act is to provide income for a

worker who is out of work "through no fault or act of his own,"

ibid., and the Act "is to be construed liberally in favor of

allowance    of       benefits,"    Lourdes,     supra,         197 N.J. at      364,   our

reading of the plain language of the amendment places McClain

within    the     intended       recipients     of     unemployment         compensation

benefits.       The     record    shows,   and       the        Board   found,    McClain

resigned from her position with Learning Edge "to accept" new

employment      at     Kids   Choice   which     was       to    commence      seven    days

later,4   and     had    comparable    hours     and       better       pay.   Under    the

amendment to N.J.S.A. 43:21-5(a), McClain left her employment

with Learning Edge for good cause attributable to the work and

was entitled to benefits without disqualification. See N.J.S.A.

43:21-5(a); Utley, supra, 194 N.J. at 543-44 ("The Act . . .

protects . . . those who voluntarily quit their jobs for good

cause attributable to their work."). The Board's finding to the

contrary was in error.

     Reversed.




4
  The Board adopted the Appeal Tribunal's factual finding that
McClain resigned from her employment with Learning Edge "to
accept higher paying employment with" Kids Choice. There was no
evidence presented to the contrary.



                                           16                                     A-4319-15T3
