Jorge Feliciano v. Board of Review
CourtNew Jersey Superior Court Appellate Division
Date FiledOctober 26, 2026
DocketA-0491-25
StatusPublished
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Full Opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0491-25
JORGE FELICIANO,
APPROVED FOR PUBLICATION
Appellant,
October 26, 2026
v. APPELLATE DIVISION
BOARD OF REVIEW,
DEPARTMENT OF LABOR
AND WORKFORCE
DEVELOPMENT, and
KITCHENALL, LLC,
Respondents.
Argued September 22, 2026 β Decided October 26, 2026.
Before Judges Gooden Brown, Vanek and Bergman.
On appeal from the Board of Review, Division of
Unemployment, Department of Labor and Workforce
Development, Docket No. 372626.
Sarah Hymowitz argued the cause for appellant (Legal
Services of New Jersey, attorneys; Sarah Hymowitz, on
the briefs).
Kevin K.O. Sangster, Deputy Attorney General, argued
the cause for respondent Board of Review, Department
of Labor and Workforce Development (Jennifer
Davenport, Attorney General, attorney; Sookie Bae-
Park, Assistant Attorney General, of counsel; Kevin
K.O. Sangster, on the briefs).
Kevin J. Stawicki argued the cause for respondent
Kitchenall, LLC (Genova Burns LLC, attorneys; Kevin
J. Stawicki, on the brief).
Adam L. Schorr argued the cause for amicus curiae
National Employment Lawyers Association β New
Jersey (Schorr Law, PC, attorneys; Adam L. Schorr, of
counsel and on the brief).
The opinion of the court was delivered by
BERGMAN, J.A.D.
Petitioner Jorge Feliciano appeals from the August 27, 2025 final decision
of the Board of Review, Department of Labor and Workforce Development
(Board) affirming the Department of Labor Appeal Tribunal's (Tribunal)
dismissal of his appeal from an initial unemployment determination as untimely.
The Tribunal concluded petitioner's appeal was barred by N.J.S.A. 43:21-6(b)(1)
solely because it was filed twenty-two days after the mailing date of the initial
determination, one day beyond the twenty-one-day statutory period set forth in
the statute. The Board affirmed.
Having considered the arguments in light of the record and the governing
legal principles, we vacate the Board's decision and remand for further
proceedings consistent with this opinion. We hold, although the 2022
amendment to N.J.S.A. 43:21-6(b)(1) enlarged the appeal filing period for
claimants from ten days to twenty-one days after mailing, neither the
amendment's plain language nor its legislative history demonstrate the
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legislature intended to displace the due process "good cause" principles
recognized by the Court in Rivera v. Board of Review, 127 N.J. 578 (1992), or
to eliminate consideration of whether a late filing resulted from circumstances
beyond the petitioner's control. Here, although the Tribunal permitted and
received testimony concerning petitioner's limited English proficiency and his
efforts to secure translation assistance as reasons for his late filing, neither the
tribunal nor the Board rendered dispositive findings concerning petitioner's
request to accept his late appeal. Because the agency decisions did not
determine whether petitioner established good cause for the one-day filing delay
on the merits, we vacate the Board's final agency decision and remand for
consideration as to whether petitioner demonstrated "good cause" for his late
filing, and if so, direct the agency to decide petitioner's appeal on its merits.
I.
We recite the facts and procedural history relevant to our opinion from the
administrative record. On April 7, 2024, petitioner filed a claim for
unemployment benefits with the New Jersey Department of Labor (NJDOL).
On May 7, 2024, the NJDOL mailed a Notice of Determination to petitioner,
holding him ineligible for benefits because he had insufficient base weeks or
earnings to establish a valid claim. Petitioner, who claimed his primary
language is Spanish and has limited English proficiency, received the
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determination but claimed he did not understand its contents. He asserts within
five to seven days of receiving the notice, he sought translation assistance at his
local Board of Social Services office, which then referred him to Legal Services
of New Jersey (LSNJ) for further assistance. Petitioner contacted LSNJ, and on
May 29, 2024, with their assistance, filed an appeal of the initial determination.
The appeal was filed twenty-two days after the date the determination was
mailed, making it one day late under the statutory twenty-one-day deadline set
forth in N.J.S.A. 43:21-6(b)(1).
On January 24, 2025, the Tribunal conducted a telephonic hearing, at
which petitioner appeared with counsel and testified regarding both the
timeliness of his appeal and the circumstances of his termination from
employment. During the hearing, petitioner explained he did not understand the
determination due to the language barrier and described the steps he took to seek
assistance and to file his appeal. Stephen Rahavy, the president of Kitchenall,
LLC (Kitchenall), also participated in the hearing and testified regarding the
reasons for petitioner's termination from employment.
Rahavy recounted Scott Stevens, the director of Warehouse Operations,
terminated petitioner because he smelled alcohol on petitioner's breath and
petitioner admitted to having a few beers during lunch. Rahavy testified
although he was unsure whether there was a written company policy prohibiting
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alcohol consumption during work hours, he considered it to be "common sense,"
but admitted petitioner had not received prior warnings. Bulinski, a partner at
the company, also testified he smelled alcohol on petitioner's breath, reported it
to Stevens, and later spoke to petitioner by phone after his discharge, during
which petitioner allegedly acknowledged drinking. Petitioner denied drinking
on the job or being told he was discharged for that reason, asserting instead he
was simply told he was no longer needed. He also denied violating any company
policies or receiving prior warnings.
Following the hearing, the Tribunal issued a written decision on January
24, 2025, dismissing petitioner's appeal as untimely, finding the appeal was not
filed within the time period as required by N.J.S.A. 43:21-6(b)(1). The
Tribunal's findings of fact were limited to two sentences: "The Deputy mailed
a determination to the appellant's address of record on May 7, 2024. The
claimant filed an appeal on May 29, 2024." The decision did not mention
petitioner's testimony about his limited English proficiency, his efforts to obtain
translation assistance, or the sequence of events leading to the one-day delay.
Nor did it make any finding concerning good cause.
Petitioner appealed the dismissal to the Board of Review, arguing his late
filing was due to circumstances beyond his control, specifically his limited
English proficiency and the need to seek translation assistance. On August 27,
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2025, the Board of Review issued a decision affirming the Tribunal 's dismissal.
The Board's decision stated "[s]ince the appellant was given a full and impartial
hearing and a complete opportunity to offer any and all evidence, there is no
valid ground for a further hearing." It also stated: "On the basis of the record
below, we agree with the decision reached." The Board did not discuss
claimant's language-related explanation for the late filing and, like the Tribunal,
did not address whether petitioner had established good cause.
Petitioner appealed, and we granted the National Employment Lawyers
Association's motion to appear as Amicus Curiae. On appeal, petitioner
contends: 1) the agency's interpretation of the 2022 statutory amendment
compromises due process and fundamental fairness in the unemployment
adjudication system; 2) the agency's summary dismissal of petitioner's appeal
contravenes the Supreme Court's recognition of "good cause" exceptions to late
unemployment appeals in Rivera v. Board Of Review, 127, N.J. 578 (1992); 3)
the legislature cannot alter the requirements of constitutional due process; 4) the
agency's interpretation of N.J.S.A. 43:21-6(b)(1) to preclude consideration of
"good cause" exceptions violates constitutional guarantees of equal protection
because there is no rational basis for requiring notice for employers but not
claimants; 5) the New Jersey Department of Labor adopted regulations requiring
actual receipt of initial determinations and authorizing "good cause" exceptions
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for late appeals, and those regulations cannot be repealed outside of the
mandatory notice and comment process; and 6) our jurisprudence has long
recognized "good cause" exceptions for late appeals where the delay was due to
limited English proficiency.
II.
"We review a decision made by an administrative agency entrusted to
apply and enforce a statutory scheme under an enhanced deferential standard."
E. Bay Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493
(2022). Accordingly, "we will disturb an agency's adjudicatory decision only
upon a finding the decision is 'arbitrary, capricious or unreasonable,' or is
unsupported 'by substantial credible evidence in the record as a whole.'"
Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Super. 147, 155-56 (App. Div.
2022) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The
burden of showing an agency's abuse of discretion "is on the challenger."
Parsells v. Bd. of Educ. of Somerville, 472 N.J. Super. 369, 376 (App. Div.
2022), aff'd as modified, 254 N.J. 152, 168 (2023).
In determining whether an agency's action is arbitrary, capricious, or
unreasonable, we must examine:
(1) [W]hether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;
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(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
[Sullivan, 471 N.J. Super. at 156 (alteration in original)
(quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]
N.J.A.C. 12:20-3.1(i), which was in effect at the time of petitioner's appeal
of the initial denial remains in effect, and provides:
A late appeal shall be considered on its merits if it is
determined that the appeal was delayed for good cause.
Good cause exists in circumstances where it is shown
that:
1. The delay in filing the appeal was due to
circumstances beyond the control of the appellant; or
2. The appellant delayed filing the appeal for
circumstances which could not have been reasonably
foreseen or prevented.
III.
Petitioner principally contends the agency's summary dismissal of his
appeal contravenes Rivera and violates due process because the agency
interpreted N.J.S.A. 43:21-6(b)(1) to bar any consideration of good cause, even
where the delay may have been justified based on petitioner's language barriers.
Amicus supports claimant's position and likewise argues the 2022 amendment
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did not overrule Rivera or extinguish due process-based good cause exceptions.
Amicus emphasizes Rivera grounded good cause relief in constitutional due
process rather than statutory text, and the legislative materials do not show an
intent to displace Rivera.
The Board, joined by Kitchenall, contend the 2022 amendment created a
firm and unqualified appeal filing deadline and the agency properly enforced the
statute as written. The Board contends because the Legislature had the
opportunity to amend the statute to include "good cause," but declined, it no
longer is required to consider good cause, and adding more time to the statutory
appeal period created a hard filing deadline. The Board cites to the legislative
history of the amendment, specifically section eight of the Statement to Senate
Committee Substitute for Senate, No.2357, which stated:
Increasing the times in which a claimant may appeal an
initial benefit determination to 21 days, while leaving
the time for employers at seven days, and expressly
prohibiting the filing of an appeal of an initial benefit
determination by either an employer or claimant after
the applicable time periods.
[S. Labor Comm. Statement to S. 2357 (May 9, 2022).]
The basic requirements of procedural due process in an unemployment
benefit context include adequate notice, an opportunity for a fair hearing, the
availability of administrative and appellate review, and notification of the
sanction which might result. See Malady v. Bd. of Rev., 166 N.J. Super. 523,
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528-32 (App. Div. 1979); see also Garzon v. Bd. of Rev., 370 N.J. Super. 1, 5
(App. Div. 2004) (analyzing these due process concerns and balancing the
individual's and the government's interests relative to the procedures at issue).
After consideration of the parties' and Amicus's arguments, we conclude
although the Legislature may have created a new expanded filing period for
appeals of initial determinations, the question before us is whether the
Legislature intended to supersede Rivera's constitutional due process "good
cause" standard and create a strict twenty-one day deadline when it enacted
N.J.S.A. 43:21-6(b)(1). Based on our review of the statute and the legislative
history accompanying its enactment, we conclude it did not.
Initially, we have no quarrel with both agencies' finding claimant's appeal
was filed twenty-two days after the May 7 mailing date, as this fact is undisputed
and clearly supported by the record. We part ways with the agencies in their
treatment of the statutory deadline as an absolute bar foreclosing any inquiry
into whether claimant's one-day delay was excused by circumstances
constituting good cause under Rivera and the NJDOL's own regulation set forth
at N.J.A.C. 12:20-3.1(i), which continues to utilize the "good cause" standard
concerning a claimant's late filing.
The record before the Tribunal shows petitioner presented a specific, fact-
based explanation for the late filing. He testified Spanish is his primary
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language, and he did not understand the determination and instructions because
they were in English. He further testified within five to seven days after
receiving the initial determination, he sought assistance from the Board of Social
Services, which referred him to Legal Services of New Jersey. He contacted
Legal Services and filed the instant appeal the same day counsel explained the
determination to him. We conclude this testimony was directly relevant to
"good cause" as to whether "[t]he delay in filing the appeal was due to
circumstances beyond the control of the appellant" or to "circumstances which
could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-3.1(i).
Yet neither the Tribunal nor the Board considered or decided this issue on
its merits despite permitting petitioner to testify in depth at the hearing
concerning his "good cause" reasons justifying his one-day late filing. The
Tribunal's written decision recited only the mailing and filing dates and rendered
no substantive findings related to the "good cause" late filing exception under
Rivera and as set forth its own administrative rule. The Board's affirmance
added only that petitioner had been afforded a full and impartial hearing, making
no determination as to the "good cause" issue raised by petitioner. Neither
decision rendered any findings regarding claimant's language limitations, his
efforts to secure assistance, his diligence once he obtained assistance, or whether
those facts established good cause. In short, the agency held a hearing wherein
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the timeliness explanation was addressed by petitioner but, nonetheless, strictly
enforced the twenty-one-day time period contained in N.J.S.A. 43:21-6(b)(1),
barring petitioner's claims on procedural grounds without considering the
circumstances surrounding the one-day filing delay.
The Board contends this approach was required by the 2022 amendments
to N.J.S.A. 43:21-6(b)(1) which states an appeal "shall not be filed" after the
applicable period and further bolstered its arguments through citation to the
Senate Labor Committee statement which describes the amendment as
"expressly prohibiting" late appeals.
We are not persuaded those materials, standing alone, establish a
legislative intent to overrule Rivera or extinguish constitutionally compelled due
process considerations of good cause. We conclude Rivera did not rest on an
implied statutory exception. It rested on due process. The Court made clear
although statutory time limits on appeals are not "per se defective," such limits
cannot be applied in a manner which deprives a claimant of a meaningful
opportunity to exercise the right to appeal. See Rivera, 127 N.J. at 587-90. We
conclude a constitutional due process inquiry is not answered simply by pointing
to mandatory statutory language. We note the prior appeal deadline in the statute
was already mandatory before the 2022 amendment. Nevertheless, Rivera
required accommodation where due process so demanded.
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In addition, the legislative history of N.J.S.A. 43:21-6(b)(1) does not
demonstrate the Legislature specifically considered and abrogated the Court's
holding in Rivera, as it did not take any affirmative measures to displace its
consideration of due process concerning untimely filings. None of the
legislative history mentions Rivera, or the good-cause regulations in the
Administrative Code, nor does it specifically address a procedure when late
notice is provided to claimants which fails to provide adequate time to appeal.
Instead, the legislative historical materials focus on administrative efficiency
and the timely payment of benefits to claimants, not on the strict enforcement
of appeal time periods.
"[T]he Legislature is presumed to be aware of judicial construction of its
enactments." DiProspero v. Penn, 183 N.J. 477, 494 (2005) (quoting N.J.
Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002)). Furthermore,
"[t]he Legislature is [also] presumed to be familiar, with judicial declarations
relating to [its enactments], and to have passed or preserved cognate laws with
the intention that they be construed to serve a useful and consistent purpose. "
State v. Federanko, 26 N.J. 119, 129 (1958) (citing Appeal of N.Y. State Realty
& Terminal Co., 21 N.J. 90 (1956)) (emphasis added). We conclude neither the
statutory language nor the legislative history establishes an express legislative
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determination to eliminate constitutionally required due process rights in
appropriate cases as compelled by Rivera.
Lastly, we note N.J.A.C. 12:20-3.1(i) remains in effect, which is
consistent with the understanding the agency remains obligated to consider
"good cause" as to whether a late filing was caused by circumstances beyond a
claimant's control. We note although the Board argues "an agency may not
adopt regulations that contravene the enabling statute," and when a regulation
"is plainly at odds with the statute . . . [it] must [be] set aside," the above
regulation has not been abrogated or repealed and it directly addresses the
factual scenario before us, which provides us guidance concerning the agency's
obligation to consider "good cause."
Further, we are unmoved by the Board's attempts to distinguish Rivera on
the ground it involved a petitioner who allegedly did not receive notice until
after the appeal period had expired, whereas here, petitioner had received the
notice before the deadline. We conclude Rivera's holding was broader and
emphasized due process depends on whether the petitioner had a "real chance"
to act before the decision became final. 127 N.J. at 583.
The Court, in Rivera, also specifically recognized English-only notices
may fail to provide adequate notice to non-English speakers. Id. at 588.
Subsequent legal precedent addressing this issue was similar in nature and
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effect. In Alicea v. Board of Review, 432 N.J. Super. 347, 353 (App. Div. 2013),
we emphasized fairness requires communication of "the actual decision made"
in a language the petitioner can understand. Similarly, in Garzon v. Board of
Review, Dep't of Labor, 370 N.J. Super. 1, 9 (App. Div. 2004), we explained
fairness principles and procedural due process coincide in unemployment
appeals. Thus, physical possession of the notice before the deadline does not,
by itself, establish a petitioner had meaningful notice and a practical opportunity
to act.
We determine claimant's asserted inability to understand the notice
because of language barriers, combined with his testimony he promptly sought
assistance and filed once he received it, squarely raised the type of "good cause"
issue the agency was required to address on its merits. This was especially
significant because the delay was minimal: a single day. We do not suggest the
brevity of the delay itself excuses noncompliance, nor do we determine on this
record petitioner has established good cause as a matter of law. In this instance,
the delay was minimal and the petitioner presented unrebutted testimony
alleging he acted diligently once he was able to understand the initial
determination. Under these circumstances, we conclude the Board must
consider and apply the due process considerations set forth in Rivera to
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determine whether petitioner has shown "good cause" to permit his claim to be
heard on its merits.
We conclude the agency decisions dismissing claimant's appeal as
untimely were arbitrary and unreasonable because both the Tribunal and Board
were obligated to apply and consider the good cause standard consistent with
Rivera prior to dismissal on timeliness grounds. Additionally, because the
agency erred by failing to consider if petitioner established good cause for his
late filing, we need not reach claimant's remaining constitutional and
administrative challenges in full. Therefore, we do not reach his equal
protection claim, nor whether the agency violated the Administrative Procedure
Act, N.J.S.A. 52:14B-1 to -15, by effectively abandoning its regulations without
rulemaking. We also do not reach Amicus's separate argument concerning proof
of actual mailing. We direct these issues to be addressed on remand if material
to the agency's determination at that time.
Vacated and remanded. We do not retain jurisdiction.
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