Her prior June 2016 unemployment claim established a weekly benefit rate of $657.

After her June 2017 claim was rejected, an appeal tribunal upheld that decision. It found that Ms. Mendez-Azzollini, during the period of her reinstatement, had been placed on “administrative reassignment.” The appeal tribunal added that while the tenure arbitration proceedings were pending, the school board directed Ms. Mendez-Azzollini not to report in accordance with her regular schedule, Monday through Friday from 8:00 a.m. until 3:00 p.m., and that she was told not to report to school at all, although she received full pay and made all payroll contributions.

The appeal tribunal concluded that Ms. Mendez-Azzollini had not performed any service for the remuneration paid by the school and, therefore, that she did not requalify for unemployment benefits.

The Board of Review affirmed and Ms. Mendez-Azzollini went to court. She argued that the board's statutory interpretation – concluding that, although she had been paid by the school board, she also was required “to perform the necessary service for remuneration in order to requalify [for unemployment benefits]” – was erroneous.

The Court's Decision

The court reversed.

In its decision, the court explained that New Jersey's unemployment compensation law defined “employment” as “service performed . . . for remuneration,” but that the law did not define the term “service.”

It then pointed out that New Jersey courts often had ruled that a “paid employee need not provide service in order to be considered an employee.” For example, the court continued, it was “well settled” that an employee on paid vacation for a definite time, who was to return to work at the conclusion of vacation, remained in “service” and in employment during the vacation period and consequently was not entitled to claim unemployment benefits for the vacation time.

The court then stated that it was “convinced” that an employee “need not provide services in order to be considered employed, especially in cases such as this where the employer opts to prohibit the employee from reporting for work.” In the court's opinion, an employer's choice to keep an able-bodied worker from rendering service could “not deprive the worker” of benefits.

Accordingly, the court ruled that Ms. Mendez-Azzollini was employed during her period of reinstatement – during which she was ready, willing, and able to report for work and contributed to the benefits fund from her wages. The school board's decision to keep her from employment, the court continued, was “certainly within its prerogative.” That choice, the court concluded, did not render Ms. Mendez-Azzollini ineligible for benefits.

The case is Mendez-Azzollini v. Board of Review, No. A-1154-17T3 (N.J. Super. Ct. March 15, 2019). Attorneys involved include: Caruso Smith Picini, PC, attorneys for appellant (Timothy R. Smith, of counsel; Steven J. Kaflowitz, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Aaron J. Creuz, Deputy Attorney General, on the brief).