When one loses one's job, being unemployed certainly can free up some time to take a trip or visit people that one otherwise would not have the time to do due to employment constraints. Taking such trips, however, may have the unintended, and perhaps unexpected, consequence of having one's unemployment benefits discontinued, as happened in the recent New Jersey case of Vialet v. Board of Review, Superior Court of New Jersey, Case No. A-1226-11T2.

The claimant in Vialet, Tanya S. Vialet, was unemployed and eligible for benefits under the applicable unemployment compensation law. She collected benefits for about two months, from early October 2010 to early December 2010, according to the opinion. Coincidentally to her termination from employment, Vialet was to travel to Jamaica on December 15, 2010, to be the maid of honor in her sister's destination wedding. Vialet's trip to Jamaica was originally scheduled to be a rather short trip. As it turned out, however, Vialet's parents were of ill health and living in the Virgin Islands, and, since Vialet was in the Caribbean neighborhood, she flew there to pay her parents a visit after the wedding. Vialet planned to stay in the Virgin Islands until December 27 but could not return home until December 31, due to inclement weather, the opinion said. Vialet asserted that she would not have been able to start new employment, were she to have received an offer for the same, until January 2011, presumably due to her 16-day trip to parts of the Caribbean.

When reviewing the facts of the case, as described above, the Unemployment Compensation Board of Review ruled that Vialet rendered herself ineligible for benefits when she decided to take a trip through the Caribbean, regardless of her reason. The logic employed was this: Eligibility requires a claimant to be able and available for work, as well as actively seeking employment. The board of review believed that being thousands of miles from her home and being absent until January meant that Vialet was not able and available for suitable work, because potential employers could not contact her, and she could not appear at potential job interviews. The board of review did not believe that Vialet was "genuinely attached to the labor market" and did not have "good cause to refuse" employment, the opinion said. If Vialet was asked to start at a new job on, say, December 20, 2010, she would have had to refuse, due to being in the Caribbean for what the board of review believed to be something other than "good cause." The New Jersey Superior Court noted that there were some exceptions to the requirement to be able and available for work, such as a close family member's funeral or jury duty, but international travel to a wedding was not among them.

Vialet appealed the board of review's decision, arguing that modern communication and Internet technology made her job search possible anywhere in the country, if not the world. Vialet also argued that the board of review failed to consider possible employment opportunities that could be performed through electronic means. In essence, Vialet argued that there was some sort of parity between being electronically linked to the marketplace and being physically present in it.

In order to successfully appeal the board of review decision, Vialet bore a burden that is rather substantial. Specifically, Vialet had to overcome the presumption of correctness the board of review enjoys. Furthermore, the court "accords substantial deference to an agency's interpretation of a statute that the agency is charged with enforcing," and such an interpretation can only be overcome if it can be shown to be "arbitrary, capricious, unreasonable, unsupported by substantial, credible evidence in the record, or inconsistent with either legislative policy or the agency's enabling statute."

After a review of the matter, the court did not believe Vialet's arguments overcame the burden articulated above. The court ruled that requiring a physical presence in the marketplace was not unreasonable or arbitrary, but was consistent with existing case law. Indeed, perhaps critical to Vialet's inability to succeed on appeal, the court refused to account for the influence of modern technology in interpreting existing law (which predates much of this new technology). The court upheld the board of review's decision that Vialet's trip made her unavailable and unable for employment, which detached her link from her local marketplace, was consistent with the facts presented and applicable law, and Vialet's arguments could not overcome her burden to demonstrate otherwise. As a result, Vialet was ruled to be ineligible for receipt of benefits while she was out of the country upon leaving for the Caribbean.

The message the court is sending is pretty clear: A claimant for unemployment compensation benefits must at virtually all times be ready to accept a job offer if one were to come his or her way. A claimant should be leery of taking any extended trips anywhere of a relatively long distance that could impair the ability to interview for a job or accept employment almost immediately. Until the court incorporates or recognizes the advancement of modern communication technology and/or telecommuting, a claimant should stay close to home while collecting benefits.

James W. Cushing is an associate with the Law Office of Faye Riva Cohen and practices unemployment compensation law. He can be reached at 215-563-7776 and jwc@fayerivacohen.com.