Futterman v. Board of Review, 421 N.J. Super. 281 (App. Div. 2011). This case arose out of the 2009 agreement between the Christie administration and the union that represents state workers, in which the State agreed not to lay off bargaining unit employees for a period of time and the employees agreed to take ten “furlough days,” on which they they would not be paid. As to some of those furlough days, however, the employees would be compensated with paid leave days.
Some of the furlough days were to be “self-directed.” That is, the employees could choose when those furlough days occurred. One goal of the agreement, as it recited, was “the achievment of substantial budgetary savings” for the State.
A memo from the Governor’s Office of Employee Relations emphasized that taking not more than one self-directed furlough day in the same week would “spread[ ] out the economic impact and generally should be better for operations.” Nonetheless, employees had the right to to choose to take more than one self-directed furlough day in the same week. A policy issued by the Division of Unemployment Insurance made clear, however, that “scheduling of multiple furlough days within one work week is not involuntary employment as contemplated by the [unemployment] statute, and the individual would not be eligible for unemployment benefits based on multiple furlough days being taken in a one week period.”
Plaintiff, an “appellate specialist” at the New Jersey Department of Labor and a union member, sought to take five consecutive self-directed furlough days, from Monday to Friday in the same week. That request was approved. The day before her self-directed furlough days began, she applied for unemployment benefits. That request was denied at every level of agency review. Plaintiff then appealed to the Appellate Division. In an opinion by Judge Graves that contains a detailed recitation of the standard of review applicable to administrative agency decisions, the panel affirmed the denial of unemployment benefits.
First, Judge Graves concluded that by voluntarily concentrating self-directed furlough days “in order to advance a claim for unemployment benefits,” plaintiff had not “done everything necessary and reasonable to stay employed,” as is required in order to collect such benefits. Second, plaintiff’s argument overlooked her membership in the union, which had negotiated the agreement in order to promote “vital governmental policies and objectives,” including budgetary savings, as the agreement stated. Paying unemployment benefits would have “eviscerated” the savings from the furlough days. Regardless of whether plaintiff agreed with her union’s decision, she was bound by it.
Finally, since plaintiff was compensated with some paid leave days, and the value of those paid leave days exceeded her “weekly benefit rate,” she was not “unemployed” within the meaning of the Unemployment Compensation Law, N.J.S.A. 43:21-19. The paid leave was “remuneration” under that statute, which defined that term as including “all compensation for personal services,” including “compensation in any medium other than cash.”