                        NOT FOR PUBLICATION WITHOUT THE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-3755-16T4


FRANSCISCA RAMIREZ,

        Claimant-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR and EXECUTIVE HOME
CARE, LLC,

     Respondents-Respondents.
_______________________________

              Argued April 18, 2018 – Decided June 29, 2018

              Before Judges Koblitz, Manahan and Suter.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 098,067.

              Julie   Salwen    (Harrision,    Harrision   &
              Associates,   LTD)   argued   the   cause  for
              appellant; Francisca Ramirez, appellant pro
              se, on the brief).

              Marolhin D. Mendez, Deputy Attorney General,
              argued the cause for respondent Board of
              Review (Gurbir S. Grewal, Attorney General,
              attorney; Melissa Dutton Schaffer, Assistant
              Attorney General, of counsel; Peter H.
              Jenkins, Deputy Attorney General, on the
              brief).

              Respondent Executive Home Care, LLC, has not
              filed a brief.
PER CURIAM

      Claimant Francisca Ramirez appeals from December 12, 2014 and

March 20, 2017 Board of Review (Board) decisions dismissing her

appeal.      A   June   14,   2016    determination      found    that   she   was

ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-

5(c), and liable to repay $4500 under N.J.S.A. 43:21-16(d).                    The

Board dismissed the appeal for lateness pursuant to N.J.S.A. 43:21-

6(b)(1).   After a review of the contentions advanced on appeal in

light of the record before us and the applicable principles of

law, we reverse.

      Three issues concern us in this matter.                    First, we are

concerned about claimant's inability to fully understand the June

14, 2016 determination sent to her, based on her limited English

proficiency (LEP).       Second, we are concerned about the delay of

claimant's appeal caused by issues within New Jersey Legal Services

beyond claimant's control.           Third, we note the irony of holding

claimant to a strict jurisdictional time period to appeal, while

perhaps allowing the employer an extended period of time to object.

      The few facts developed at the hearing regarding the substance

of   claimant's    entitlement       to    benefits   reflect    the   following.

Claimant's employer, Executive Home Care, LLC (EHC), chose not to

participate in the hearing.               Claimant was employed by EHC as a

Certified Nursing Assistant (CNA) from 2012 through November 2015.


                                           2                             A-3755-16T4
     Claimant testified that her car was in an accident and not

repaired for about a week and a half.              She missed two days of

work,   but    informed   her   employer   that    she    could   take     public

transportation,      or   her   brother    would    drive     her   to      work.

Nonetheless, she was replaced with another staff member assigned

to attend to claimant's sole client.          She then repeatedly asked

for work at another site accessible by public transportation, but

work was not available.          The company assisted other CNAs by

providing transportation, but not claimant.              She also sought work

elsewhere unsuccessfully.        She reopened a claim on December 20,

2015 and received benefits from December 26, 2015 through May 7,

2016.

     Claimant was deemed ineligible for benefits because she was

unavailable for work in that she "refused work offered from [EHC]

on Saturdays, Sundays and multiple other occasions."                 Both the

claimant and employer have seven days from receipt of the notice

of eligibility and ten days from the mailing of the notice to

object.   N.J.S.A. 43:21-6(b)(1); N.J.A.C. 12:17-3.3(a).

     Administrative regulation, N.J.A.C. 12:20-4.1(h), discusses

"good cause" delays:

              A late appeal shall be considered on its
              merits if it is determined that the appeal was
              delayed for good cause. Good cause exists in
              circumstances where it is shown that:



                                     3                                   A-3755-16T4
           1. The delay in filing the appeal was due to
           circumstances beyond the control of the
           appellant; or

           2. The appellant delayed filing the appeal for
           circumstances which could not have been
           reasonably foreseen or prevented.

     Claimant does not dispute that her appeal was untimely.             She

argues that she had good cause due to her LEP and delay by her

attorney beyond her control.

                                     I.

     The June 14, 2016 ineligibility notice was written in English,

with two sentences in Spanish that, translated into English, state:

"This determination affects your eligibility for benefits and

describes your rights of appeal.          If you don't know how to read

English,   please   find   someone    who   can   translate   it   for   you

immediately."   29 CFR 38.9(e), effective Jan. 3, 2017, six months

after the notice was sent, requires that if a notice is not

translated into Spanish, the recipient must be notified about

"interpretation and translation services" that "are available free

of charge."

     Claimant was born in the Dominican Republic, came to the

United States before her seventeenth birthday, and stated she is

not completely proficient in English, although she reads and speaks




                                     4                             A-3755-16T4
some English.     She is a CNA and a certified phlebotomist.1                   A

telephonic interpreter assisted at the hearing.2

      The Appeal Tribunal concluded that claimant was proficient

in   English   because    she     answered    some    questions    before    the

interpreter had a chance to interpret them, and because she had

obtained post-high school certification.              29 CFR 38.4(hh) defines

an   LEP   individual    as   a   person     "whose    primary    language   for

communication is not English and who has a limited ability to

read, speak, write, and/or understand English.               LEP individuals

may be competent in English for certain types of communication

(e.g., speaking or understanding), but still be LEP for other

purposes (e.g., reading or writing)."           The record does not contain

the requirements to become a CNA or a certified phlebotomist, so

we cannot determine if written English proficiency is required.

If the agency followed the requirements of the federal regulations

regarding notices for LEP individuals, a method to determine

English proficiency would be required, whether by "self or needs-

assessment."    29 C.F.R. § 38.9 (2017), Appendix.




1
   The transcript repeatedly says the claimant was certified in
"lobotomy," but we assume that the word actually used was
"phlebotomy."
2
  The September transcript is peppered by "(inaudible)" and, when
claimant speaks, "(Speaking Spanish)." The absence of a complete
record necessitated a second hearing on January 5, 2017.     That
transcript had fewer instances of "(inaudible)."
                                       5                               A-3755-16T4
     The Board on appeal acknowledged the holding in Alicea v. Bd.

of Review, 432 N.J. Super. 347, 353 (App. Div. 2013) that a

determination in English was inadequate notice for an individual

who spoke and wrote only Spanish, resided in a rural part of Puerto

Rico, and was poorly educated.    In Rivera v. Bd. of Review, 127

N.J. 578, 587-89 (1992), the Supreme Court established a "good

cause" exception to the twenty-day period for filing appeals under

N.J.S.A. 43:21-6(c), based in part on the claimant's inability to

read English.

                                 II.

     According   to   her   testimony,   claimant   received     the

disqualification notice four or five days after it was sent.     She

immediately began making telephone calls seeking legal assistance.

A week to week-and-a-half later, claimant sought legal assistance

by way of an online application to Legal Services of New Jersey.

Legal Services responded quickly, but was unusually delayed in

affording legal advice due to administrative difficulties and a

large workload, as well as a serious family issue of one of the

two attorneys handling unemployment appeals statewide.     Counsel

filed an appeal on August 30, 2016, the date of claimant's initial

appointment with counsel.




                                 6                         A-3755-16T4
                               III.

      Two hearings were held because the Board remanded the matter

to the Appeal Examiner for a new hearing due to the inability of

the transcriber to hear the first hearing clearly.     The limited

transcript available does reveal that at the beginning of the

first hearing, on September 27, 2016, claimant's attorney objected

to the proceedings because it appeared that the employer had

objected too late to claimant receiving unemployment compensation

benefits. At the beginning of the second, January 5, 2017 hearing,

counsel again objected to the seemingly late objection by the

employer.    The Appeals Examiner stated: "Your objection is noted

for the record sir.    But I don't have jurisdiction over whether

the [e]mployer filed a late protest to the [] Division."

      Legal Services, on behalf of claimant, later sought to reopen

the hearing based on the employer's presumed late objection.     The

Board denied the request in a two-sentence letter that does not

reveal the timeliness of the employer's objection.      On appeal,

claimant raised this issue, which the Board did not respond to in

its brief.   At oral argument,3 the Board attempted to bring to our

attention facts from documents not included in the Statement of

Items Comprising the Record on Appeal, filed pursuant to Rule 2:5-




3
    Oral argument was scheduled at our request.
                                 7                         A-3755-16T4
4(b).    We are thus unable to determine the timeliness of the

employer's objection.

     N.J.S.A. 43:21-6(b)(1) provides, in pertinent part:

           Unless the claimant or any interested party,
           within seven calendar days after delivery of
           notification of an initial determination or
           within   10    calendar   days    after   such
           notification was mailed to his or her last-
           known address . . . files an appeal from such
           decision, such decision shall be final and
           benefits shall be paid or denied in accordance
           therewith, except for such determinations as
           may be altered in benefit amounts or duration
           as provided in this paragraph.

     New Jersey courts have consistently held that the limitation

period proscribed by this statute is of jurisdictional import and

"hence   not   generally    subject   to   either   equitable   tolling   or

enlargement under the so-called discovery rule."           Hopkins v. Bd.

of Review, 249 N.J. Super. 84, 88-89 (App. Div. 1991); see also

Lowden v. Bd. of Review, 78 N.J. Super. 467, 470 (App. Div. 1963)

(explaining    that   the   Unemployment    Compensation   Law,   N.J.S.A.

43:21-1 to -24.30, is social legislation "which should be construed

by the courts to give effect to its beneficent purposes," but does

not authorize courts to extend time limitations intended by the

Legislature to be fixed as an absolute deadline in the statute).

The strict enforcement of the time period has been softened by the

"good cause" exception discussed above.




                                      8                            A-3755-16T4
       While the Board certainly has a duty to protect the integrity

of    the   unemployment    compensation    fund   from   the    payment     of

ineligible claims, Heulitt v. Bd. of Review, 300 N.J. Super. 407,

412   (App.   Div.   1997),   the   Unemployment    Compensation       Law    is

nevertheless     remedial     legislation     entitled    to     a    liberal

construction, Carpet Remnant Warehouse, Inc. v. N.J. Dep't of

Labor, 125 N.J. 567, 581 (1991).         Applicants such as claimant, who

also contribute to the fund, are entitled to be treated fairly by

the Board.

       Our review of administrative agency decisions is limited.               A

reviewing court will not disturb an agency's action unless it was

clearly "arbitrary, capricious, or unreasonable."               Brady v. Bd.

of Review, 152 N.J. 197, 210 (1997) (citation omitted).              Likewise,

judicial review of an agency's factual determination is highly

deferential.     In re Bridgewater, 95 N.J. 235, 245 (1984).                 "If

substantial credible evidence supports an agency's conclusion, a

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

though the court might have reached a different result." Greenwood

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

omitted).

       Claimant had good cause under these circumstances to file a

late appeal, based on her LEP and attorney-caused delay.                     The

Board's decision to the contrary was arbitrary and not supported


                                     9                                A-3755-16T4
by credible evidence.    We also reverse the Board's decision for

lack of proofs presented to support its conclusion that the

employer filed a timely appeal as required under the statute.     If

the employer was late in filing an objection without good cause,

claimant must prevail.    Alternatively, if EHC objected timely,

claimant is entitled to a determination on the merits.

    Reversed and remanded to the agency for a new determination

consistent with this opinion.   We do not retain jurisdiction.




                                10                        A-3755-16T4
