NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-6296-03T16296-03T1

ROBERT S. SCHOMBURG,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR
AND PARKWAY PLASTICS, INC.,
Respondents.

Argued November 7, 2005 - Decided
Before Judges Parrillo and Holston, Jr.
On appeal from the Board of Review, Department of Labor, 03-A-25721-000-XO.

Tina Velantzas-Austin argued the cause for appellant.
George H. Cohen, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Michael J. Has, Assistant Attorney General, of counsel and Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Robert Schomburg, filed a complaint for unemployment compensation benefits on August 10, 2003 after initially being denied benefits on the basis that he was discharged from his employment at Parkway Plastics, Inc. for misconduct for being late for his employment. On September 5, 2003, Schomburg filed an appeal with the Appeal Tribunal. After a hearing on October 14, 2003, the Appeal Tribunal held Schomburg's reporting late to work by about an hour and fifteen minutes did not cause him to be ineligible for benefits without disqualification because Schomburg had called his employer the night before. Schomburg was late for work because he had to take his children to a school placement test. The Appeal Tribunal concluded that Schomburg's actions were not a deliberate violation of the employer's rules and standards and found him eligible for benefits without disqualification. Schomburg was awarded twenty-six weeks of regular unemployment compensation in the amount of $345 weekly, totaling $8,970 in benefits.

Schomburg enrolled in the workforce development program and the New Jersey tuition waiver program, which allows a waiver of tuition at public colleges. He enrolled at the New Jersey Institute of Technology toward an eventual master's degree and enrolled in a full semester program to obtain a certificate in information systems implementation. After completing the fall semester in 2003, he enrolled for four courses in the second semester under a second plan prepared by his counselor.

Upon exhausting his maximum benefits, Schomburg applied for additional unemployment benefits during training (ABT). In February 2004, prior to his regular unemployment benefits ending, he was informed that he was ineligible for ABT because pursuant to N.J.S.A. 43:21-60(a), he was not terminated due to a substantial reduction in work opportunities in his job classification. Schomburg subsequently appealed his denial of ABT.

The Appeal Tribunal, after a hearing, determined that Schomburg was ineligible for ABT benefits because he was "not permanently separated from his employment due to a substantial reduction in work opportunities in the claimant's job classification at the former work site." The Board of Review affirmed the Appeal Tribunal's findings. We affirm.

Schomburg contends that N.J.S.A. 43:21-60a is in the disjunctive and requires either that a claimant has received a notice of permanent termination of employment by the individual's employer or that the claimant has been laid off and is unlikely to return to previous employment because work opportunities and the individual's job classification are impaired by a substantial reduction of employment at the work site. Alternatively, Schomburg argues that because the statute is vague, the statute should be interpreted to mean that so long as an employee is permanently terminated for no fault of his own, that he is entitled to receive supplemental benefits.

We are convinced that N.J.S.A. 43:21-60a requires both permanent separation from employment or a layoff and an unlikelihood to return to employment due to a reduction in work force. In Bonilla v. Bd. of Review, 337 N.J. Super. 612, 615-16 (App. Div. 2001), we concluded that the legislative purpose of N.J.S.A. 43:21-60a was to enable individuals who are economically displaced from their employment to be paid benefits while acquiring new skills to enter a more marketable area of the economy. We held that the claimant must be both fired or laid off and also be unlikely to return to his former job because of a substantial reduction at the workplace.

The legislative intent of N.J.S.A. 43:21-60a is, as stated in N.J.S.A. 43:21-57, to assist displaced workers to obtain long-term job retraining and thus permit a retooling of the workforce to better cope with economic change and contribute to long-term economic development. Here, according to Schomburg's own testimony, there was no general reduction in the workforce at his former employer, Parkway Plastics. Although employees came and went, they were always replaced.

We are also convinced that a grammatically correct reading of N.J.S.A. 43:21-60a requires the same result. The statute reads:

Except as provided in section 8 of this act the additional benefits indicated in section 5 of this act shall be provided to any individual who:

a. Has received a notice of a permanent termination of employment by the individual's employer or has been laid off and is unlikely to return to his previous employment because work opportunities in the individual's job classification are impaired by a substantial reduction of employment at the worksite.

[N.J.S.A. 43:21-60a. (emphasis added).]

The phrase "permanent termination" is not set off by any punctuation from the phrase "laid off" and therefore suggests that both phrases are in turn modified by the "substantial reduction" qualification. Likewise, the implementing regulation, N.J.A.C. 12:23-5.1 provides in pertinent part that

(a) An individual will be eligible for additional unemployment benefits during training only if the individual . . . (2) Is permanently separated from employment and is unlikely to return to such employment due to a substantial reduction in work opportunities in the individual's job classification at his or her former worksite;

Reviewing courts generally give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing, although appellate courts are not bound by an agency interpretation of a strictly legal issue. G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999) (citing Mayflower Securities Co. v. Bureau of Securities in Division of Consumer Affairs of Dep't of Law and Public Safety, 64 N.J. 85, 93 (1973)).

As we made clear in Bonilla, N.J.S.A. 43:21-60a is "economically driven legislation." Therefore, in order to obtain ABT benefits, "the claimant must be fired or laid off and be unlikely to return to that job because of a 'substantial reduction of employment at the worksite.'" Bonilla, supra, at 616. (emphasis added).

Thus, the reason for the employee's termination from employment becomes essential to determining eligibility for ABT benefits. Here, the Board correctly found Schomburg disqualified. Schomburg admitted that he was discharged from his employment for being late to work. He was the only employee separated from employment on that day and there was no reduction in work force. Moreover, there was no evidence that the employer was reducing its workforce for economic reasons. On the contrary, claimant's firing was an "isolated discharge" and not part of an overall reduction in job opportunities at Parkway Plastics.

In Bonilla, we recognized that it was undisputed that Bonilla left his job because he suffered numerous health effects from the chemical fumes in the factory where he worked. Although Bonilla was not fired or laid off, what we deemed significant in disqualifying Bonilla for additional benefits under N.J.S.A. 43:21-60 was, as with Schomburg here, the fact that there was no evidence of a "substantial reduction of employment at the worksite" that made him unlikely to return to his former job. Id. at 616-17.

We conclude that Schomburg's contention that N.J.S.A. 43:21-60 is unconstitutional as interpreted because it violates his federal and state constitutional right to equal protection by providing some citizens a better opportunity to improve their employability skills while at the same time denying other citizens is without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(A) and (E), except to note that the statute is clearly rationally based economic legislation with no evident disparate effect.

We are satisfied that the record contains substantial credible evidence supporting the determination of the Board of Review that pursuant to N.J.S.A. 43:21-60a and N.J.A.C. 12:23-5.1(a), Schomburg is ineligible to receive ABT while undergoing training under the workforce development program.

Affirmed.