NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2523-18T4 SINALY SYLLA, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and FORWARD AIR SERVICES, LLC, Respondents. _____________________________ Submitted January 21, 2020 – Decided February 3, 2020 Before Judges Sabatino and Geiger. On appeal from the Board of Review, Department of Labor, Docket No. 160,946. Sinaly Sylla, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondent Board of Review (Donna Sue Arons, Assistant Attorney General, of counsel; Christopher W. Weber, Deputy Attorney General, on the brief). Respondent Forward Air Services, LLC, has not filed a brief. PER CURIAM In this appeal from the denial of unemployment benefits, the Board of Review found claimant Sinaly Sylla was ineligible for such benefits under N.J.S.A. 43:21-5(a), because he left work voluntarily without good cause attributable to the work. The Board's final agency decision, dated November 28, 2018, followed a telephonic hearing before an Appeal Tribunal in October 2018. Appellant was a forklift driver. He had been employed by Forward Air Services for four years. His last day of work was May 17, 2018. He was arrested and incarcerated on a drug charge the following day. He also faced immigration issues. Appellant was unable to post bail and remained incarcerated until he was released from custody on July 27, 2018. Work was available for him at the time he was arrested and separated from employment. Regardless of whether appellant's incarceration was justified, his inability to perform his duties for his employer was not attributable to his work. Pursuant to the applicable statute, N.J.A.C. 12:17-9.1(e)(10), separation from employment shall be considered voluntary where the separation is for incarceration. Accordingly, appellant did not meet his burden of proof under A-2523-18T4 2 the statute. See also Haley v. Bd. of Review, ___ N.J. Super. ___ (App. Div. 2020). Affirmed. A-2523-18T4 3 A-2523-18T4 New Jersey Superior Court njsuperctappdiv N.J. Super. Ct. App. Div. SINALY SYLLA VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) 3 February 2020 Unpublished 30ab9ae8a1dfbb077b17ca3d37a32248beda00e4
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