Alicea v. Board of Review, Department of Labor, A-4163-10T1; Appellate Division; opinion by Koblitz, J.A.D.; decided and approved for publication August 28, 2013. Before Judges Grall, Simonelli and Koblitz. On appeal from the Board of Review, Department of Labor, No. 263,431. DDS No. 01-2-1140 [10 pp.]

Appellant Genaro Alicea appeals from the final decision of respondent Board of Review, which affirmed for the second time the decision of the Appeal Tribunal dismissing Alicea's appeal based on untimely filing and failure to show good cause for the late filing. On appeal, Alicea argues that the board's failure to allow him to present the merits of his appeal denied him due process.

The appeal of a determination that a person has illegally received unemployment benefits and must refund the benefits must be filed within seven calendar days after delivery or within 10 calendar days after the mailing of the determination, for any determination made on or before Dec. 1, 2010. Late filing can be excused only on a showing of good cause, which is defined as circumstances that are either beyond the control of the appellant or "circumstances which could not have been reasonably foreseen or prevented."

Alicea, who speaks only Spanish, worked as a roofer for Jottan Inc. in New Jersey. On Nov. 5, 2009, the Division of Unemployment Insurance mailed him four determinations assessing $17,802.50 in purportedly fraudulently obtained unemployment compensation and penalties dating from 2004 through 2008. The determinations were addressed to his home address, a post office box on a rural route in Bayamon, Puerto Rico. They were written in English. Only one paragraph in the middle of each determination titled "Appeal Procedure" was translated into Spanish. Alicea testified that he thought the entire determination was in English and did not see the paragraph written in Spanish, which explained the deadline for filing an appeal. An additional sentence was added to the Spanish version stating, "Si no habla Inglés por favor pida que le traduzcan este formulario inmediatamente." In English this sentence means, "If you do not speak English, please ask someone to translate this form immediately."

Alicea filed his appeal in a letter 34 days after the four determinations were mailed to him.

Held: Because appellant was not afforded the due process set forth in Rivera v. Board of Review, the dismissal of his appeal because it was filed too late is reversed. To comply with the Rivera due process requirement of a notice written in Spanish to be sent to Puerto Rican seasonal workers, a translation of the substantive determination as well as a translation of the appeal time line must be provided. An exhortation in Spanish to find someone to translate the determination is not sufficient.

The appellate panel agrees with Alicea that the procedures used here violated his due process rights as delineated in Rivera v. Board of Review. Rivera concerned a similar situation involving a migrant farm worker who lived in Puerto Rico. The New Jersey Supreme Court stated that English-only notices sent to migrant farm workers in Puerto Rico failed to provide those persons with adequate notice.

The Farmworkers Bilingual Rights Amendment provides that the Department of Labor shall make bilingual forms available for all Spanish-speaking agricultural workers applying for or receiving benefits. The statute does not expressly mention former recipients. This legislation clearly indicates a state policy that the due process afforded to residents of a U.S. commonwealth where Spanish is the predominant language should include bilingual notification.

Here, Alicea is a roofer rather than a farmworker, but both occupations are composed of seasonal workers who are often poorly educated and poorly paid. The court in Rivera used a balancing test to determine the cost of the procedural improvements as weighed against the rights of the individual and the state. As the court stated in Rivera, the interests in avoiding a wrongful order to repay are substantial. Given the nature of migrant temporary labor, there is little doubt that Alicea has spent these funds and repaying them would constitute a serious hardship.

On the other hand, little explains the inflexible application of the 10-day time limit on appeals. The department has four years within which to recoup payments that were wrongly made. Moreover, the general need to expedite eligibility decisions does not apply to recoupment. The cost of the hearing on the merits that the department denied to Rivera is reimbursed by the federal government. Claimants who file late appeals receive hearings but are then not allowed to raise substantive issues. No fewer administrative resources would have been expended had the department allowed Rivera an appeal on the merits.

Alicea was accorded two hearings. Neither hearing addressed the merits of his appeal. Unlike Rivera, Alicea's determinations contained one paragraph in Spanish delineating the time frame to appeal and encouraging him to have the remainder of the determination translated. The board points to no case that stands for the proposition that encouraging an individual in Spanish to have the remainder of an English form translated into Spanish constitutes sufficient notice of the form's content to a Spanish-speaking recipient.

The Board relies on Alfonso v. Board of Review for the holding that a determination written in English is sufficient. After the holding in Rivera, that proposition does not apply to an individual who speaks only Spanish, lives in Puerto Rico and has seasonal employment in New Jersey. Rivera protects Puerto Rican roofers as well as Puerto Rican farmworkers.

Here, the practice of only translating information about the time line for filing an appeal, without translating the underlying substantive decision, is contrary to a requirement of fairness. A fundamental underpinning of fairness in any appellate system is the communication of the actual decision made. Appellant was sent determinations assessing more than $17,000 in purportedly illegally collected unemployment benefits and penalties. These determinations were written in English, with only the appeal procedure translated into Spanish. The appellate panel reverses and remands for a hearing on the merits of the appeal.

For appellant — Zachary R. Wall (Alan H. Schorr & Associates). For respondent Board of Review, Department of Labor — Ellen A. Reichart, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel). Respondent Jottan Inc. has not filed a brief.