NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Appellant Sally Grossman appeals from a final agency decision of the Board of Review upholding the Appeal Tribunal's determination that Barbara Drew (Drew) was her employee and entitled to unemployment benefits at the time she was fired. Grossman argues that both she and Drew were employees of the Jewish Federation of Southern New Jersey (JFS) and that the
Board erred in finding otherwise.1 We disagree and affirm.
Grossman does not challenge the Board's fact-finding, but rather the legal conclusions reached by the Board on the basis of those facts. We briefly set forth the facts based upon the record before us.
JFS is a not-for-profit corporation that publishes a number of periodicals, including The Voice, a bi-weekly newspaper; Attitudes, a Jewish lifestyle magazine; and directory of persons who are active in the Jewish community. Although JFS has employees, for over twenty-five years all its advertising was handled by Grossman. Harriet Kessler, former general manager of The Voice, testified that the solicitation of advertising was a function "outside the scope of [JFS's] regular operations." Grossman's services were provided pursuant to a series of contracts between her and the JFS in which she was explicitly identified as an "independent contractor."
In their most recent contract, which we infer was fairly typical of their contracts over time, Grossman was engaged as the "exclusive independent sales representative" for JFS publications for a period of twenty-two months and received a commission based on a percentage of "gross advertising revenues generated by" her. Paragraph Five of the contract provided, in part, as follows:
Nature of Relationship; Allocation of Expenses. The parties acknowledge that Grossman is an independent contractor and is in no way to be deemed an employee, partner or joint venture of Federation or any of its agencies (including but not limited to The Voice). Neither Grossman nor any of her sales representatives shall hold themselves out to be employees of Federation or any of its agencies, nor shall they have the authority to bind Federation in any way, except as specifically permitted in connection with the services to be provided under this Agreement. As an independent contractor, Grossman will have sole discretion in determining how her sales personnel are compensated, and the manner in which the services are to be performed (subject to certain standards set by The Voice). Grossman shall be responsible for all costs and expenses incurred in the performance of her services hereunder, including but not limited to automobile and travel expenses, and insurance, except as otherwise specifically provided for below.
The contract also prevented Grossman and "her sales personnel" from soliciting any JFS advertisers for other print or on-line publications during the contract term and for a specified period of time thereafter.
During the period of time that she performed services for JFS, Grossman wished to remain an independent contractor, and repeatedly rebuffed any JFS effort to convince her to become an employee. During this period, Grossman hired, paid and occasionally fired her own staff; supervised and directed their sales efforts; set their hours and sales goals; and occasionally reimbursed their expenses.
Conversely, JFS never paid anything to Grossman's staff, including Drew, respondent herein; never provided employee benefits to Grossman and her staff; did not provide training to them and did not participate in determining to hire them or their rate of pay; and did not reimburse them for any expenses they incurred in their sales efforts.
Grossman hired Drew in 1997 as a sales representative; trained her; assigned her to a sales territory; determined her compensation; supervised and paid her. While Drew was permitted as a matter of convenience to utilize a desk and a computer at JFS's offices, she was not required by JFS to be at the site at any particular time, and no one at JFS monitored her attendance. All the compensation and reimbursements paid by Grossman to Drew were taken as deductions on Grossman's income tax returns under "Schedule C."
Grossman discharged Drew in November 2010, following her negotiation of a new contract with JFS which reduced Grossman's sales territory. Grossman argued that JFS mandated Drew's discharge. However, the JFS correspondence upon which she based that assertion merely advised Grossman that after November 30, 2010, the servicing of accounts in a certain area "will no longer be the responsibility of . . . Barbara Drew."
Drew thereafter filed for unemployment benefits on November 28, 2010, and identified JFS as her employer, based upon her "assumption" that JFS was the responsible party, despite knowing that Gross had hired, paid and, later, fired her. After Drew appealed an initial determination by the Deputy Director rejecting her application on the ground that there was no record she had received compensation from JFS, and thus did not have sufficient base period earnings from employment, the Appeal Tribunal reversed the Deputy's determination. JFS appealed that decision to the Board of Review, which remanded the matter to the Appeal Tribunal for a new hearing and decision.
Following a second hearing at which all parties were present and testified, the Appeal Tribunal found the facts established that Drew was employed by Grossman, not by the JFS. Grossman appealed the decision to the Board which affirmed the
Appeal Tribunal's determination. This appeal followed.
We exercise a limited role in reviewing agency decisions involving unemployment benefits. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. We also afford considerable deference to, although we are not bound by, an agency's interpretation of its governing statute and its own regulations. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). We may intervene when the agency's action is arbitrary, capricious, or unreasonable, or "`clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion, and the determination of the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983).
Applying these principles, we discern no basis to disturb the Board's decision. After careful consideration of Grossman's contentions and a thorough review of the record on appeal, we are satisfied there is adequate, substantial and credible evidence to support the Board's determination. Grossman's arguments, which mainly consist of her disagreement with the conclusions of the Board, do not present a ground upon which it could be concluded that she was not Drew's employer. See Philadelphia Newspapers, Inc. v. Bd. of Review, 397 N.J.Super. 309 (App. Div. 2007), certif. denied, 195 N.J. 420 (2008). The record clearly supports the Board's conclusion that Drew was employed by Grossman, when the facts are analyzed in light of the three-prong standard of N.J.S.A. 43:21-19(i)(6) (the ABC test). Her arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
