                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2523-18T4

SINALY SYLLA,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and FORWARD AIR SERVICES,
LLC,

     Respondents.
_____________________________

                   Submitted January 21, 2020 – Decided February 3, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Board of Review, Department of
                   Labor, Docket No. 160,946.

                   Sinaly Sylla, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent Board of Review (Donna Sue Arons,
                   Assistant Attorney General, of counsel; Christopher W.
                   Weber, Deputy Attorney General, on the brief).
              Respondent Forward Air Services, LLC, has not filed a
              brief.

PER CURIAM

        In this appeal from the denial of unemployment benefits, the Board of

Review found claimant Sinaly Sylla was ineligible for such benefits under

N.J.S.A. 43:21-5(a), because he left work voluntarily without good cause

attributable to the work. The Board's final agency decision, dated November

28, 2018, followed a telephonic hearing before an Appeal Tribunal in October

2018.

        Appellant was a forklift driver. He had been employed by Forward Air

Services for four years. His last day of work was May 17, 2018. He was arrested

and incarcerated on a drug charge the following day. He also faced immigration

issues. Appellant was unable to post bail and remained incarcerated until he

was released from custody on July 27, 2018. Work was available for him at the

time he was arrested and separated from employment. Regardless of whether

appellant's incarceration was justified, his inability to perform his duties for his

employer was not attributable to his work.

        Pursuant to the applicable statute, N.J.A.C. 12:17-9.1(e)(10), separation

from employment shall be considered voluntary where the separation is for

incarceration. Accordingly, appellant did not meet his burden of proof under

                                                                            A-2523-18T4
                                         2
the statute. See also Haley v. Bd. of Review, ___ N.J. Super. ___ (App. Div.

2020).

     Affirmed.




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                                     3
