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The New Jersey Supreme Court has agreed to hear the state’s appeal in the case of a worker who was granted unemployment benefits after she left one job for a better-paying one, only to find later that the second job disappeared.

The Appellate Division’s August 2017 decision in McClain v. Board of Review granting the petitioner unemployment benefits stands in direct contrast to a separate, earlier appeals court ruling that denied benefits to a petitioner in similar circumstances.

Because of the conflicting Appellate Division rulings, it was expected that the Supreme Court would weigh in on the issue. The court granted certification March 9.

Each case required the court to address whether a worker who voluntarily leaves a job on the promise of a better-paying one loses unemployment benefits if the second job doesn’t pan out.

In the McClain ruling last August, an Appellate Division panel made up of Judges Francis Vernoia, Mitchel Ostrer and Scott Moynihan granted unemployment benefits. Vernoia, writing for that panel, said the worker doesn’t lose out on benefits if, for a reason not of his or her fault, the second job disappears or is no longer available.

“A claimant need not actually start the new employment to be exempt from disqualification” from benefits, Vernoia said in McClain.

According to court documents, petitioner Patricia McClain was a teacher at Learning Edge Academy, a school in Galloway Township. On Oct. 12, 2015, she accepted an offer to teach at another school, the Kids Choice Academy in Egg Harbor, within seven days. However, a day after McClain quit the Learning Edge job, Kids Choice rescinded its offer since the teacher McClain was slated to replace decided to return, thus eliminating the open position.

That left McClain unemployed, and she applied for unemployment benefits. The state Department of Labor’s Board of Review denied her application for benefits.

According to an amendment to the unemployment compensation statute, she would have been eligible for unemployment benefits if the new job began within a seven-day period.

Several weeks after McClain, a separate Appellate Division panel in Blake v. Board of Review reached a different conclusion, holding that a petitioner cannot be awarded benefits unless he or she actually begins working at the second job. Judge Carmen Messano, joined by Judges Karen Suter and Jane Grall, said the New Jersey Unemployment Compensation Law plainly states the employee must begin work no later than seven days after leaving the first in order to collect benefits.

Messano said in Blake: “In our view, the plain language of the amendment fully supports the board’s decision” to deny benefits.

Vernoia had said in McClain that at least 26 other states had adopted a more liberal reading of the compensation statute.

McClain’s attorney, Cassandra Stennert, did not return a call Tuesday. The Attorney General’s Office, which represents the board of review, declined to comment through a spokesman.

Michael Booth

Trenton Bureau Chief New Jersey Law Journal American Lawyer Media mbooth@alm.com Twitter: @mboothnjlj

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