( Goodman )
( Kingfisher County - Richard M. Berry )
REVERSED AND REMANDED WITH INSTRUCTIONS
Teresa Thomas Keller, OKLAHOMA EMPLOYMENT SECURITY COMMISSION Oklahoma City, Oklahoma, For Appellant
Frank E. Walta, WALTA & WALTA, Hennessey, Oklahoma, For Appellee
OPINION
Oklahoma Employment Security Commission (OESC) appeals from the trial court's October 26, 2004, order reversing OESC's decision that Debra A. Gaither (Claimant) was eligible for unemployment benefits.
Based upon our review of the facts and applicable law, we reverse and remand with instructions.
FACTS
In May of 2003, the Town of Hennessey (Town) hired Claimant to manage and lifeguard its town pool, which is typically open from Memorial Day through Labor Day. Claimant had managed the pool during the summer for a number of years. At the time Claimant was hired, she was drawing unemployment compensation from Love's Country Stores.
At the conclusion of the pool season, Claimant sought unemployment benefits against Town. OESC allowed Claimant benefits, noting her "separation was due to a lack of work and not due to misconduct." Town appealed OESC's decision to the Appeal Tribunal. Town asserted Claimant knew her employment was of a seasonal nature and therefore she was ineligible for benefits.
After a telephonic hearing, the Hearing Officer found the benefit wages were properly charged against Town. The Hearing Officer, in affirming OESC's decision, made findings of fact and conclusions of law set forth, in part, as follows:
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"The employer asserts that the claimant was a seasonal worker and ineligible for benefits under the provisions of Section 40 O.S. 2-404(B)(a). However, that section states that "if a worker is employed for a limited duration of time specified by the employer, the worker is considered to have been laid off due to lack of work at the end of the time period set by the employer, provided that the worker's separation was due only to the completion of the work or the expiration of the time period." In this case, the claimant was hired for the summer only and left only after there was no more work for her. Therefore, the claimant was laid off due to lack of work."
Town appealed this decision to the Board of Review on January 13, 2004, asserting Claimant was ineligible for benefits because 40 O.S. 2-404(B) (2003) did not become law until November 1, 2003, after Claimant's employment ended. Town asserted 40 O.S. 2-404B created a new liability for employers and therefore, must be applied prospectively. The Board of Review affirmed and adopted the Appeal Tribunal's findings of facts and conclusions of law in an opinion mailed on March 15, 2004.
Town appealed to the district court on March 25, 2004. In an order filed on October 26, 2004, the trial court, acting in an appellate capacity, reversed OESC's decision and denied Claimant benefits. The order provides, in part:
"Claimant was employed for a specific period of time . . . . With full understanding of all parties that at the conclusion of the swimming season there would be no further employment by Town for Claimant, the Court further finds the Oklahoma Statutes Title 40 O.S. 2-404B did not become effective until November 1, 2003. The Court further finds that Wright & Edwards v. Oklahoma Employment Security Commission, 934 P.2d 1088, provides that an employee who knows the term of their employment and there is no other position available with that employer at the conclusion of the temporary employment that said employee is not eligible for benefits."
OESC appeals.
STANDARD OF REVIEW
In reviewing the actions of the Board of Review, the trial court sits as an appeal tribunal and its jurisdiction is limited to the consideration of the transcript and the argument of the respective attorneys thereon. Vaster v. Board of Review of Okla. Employment Sec. Comm'n, 1985 OK 21, 10, 697 P.2d 533, 536. The trial court is limited to determining whether an error of law was committed in the hearing and whether the findings are supported by the evidence introduced. Id. The findings, decisions, and orders of an administrative body are presumptively correct absent valid competent evidence to the contrary. Banking Bd. of the State of Okla. v. Walkerton, 1982 OK 33, 642 P.2d 1141. Our analysis begins with the presumption that the findings, decisions, and orders of an administrative body are presumptively correct and valid, absent competent evidence to the contrary. Walkerton, 1982 OK 33, 642 P.2d 1141.
ANALYSIS
The underlying purpose of the Oklahoma Employment Security Act, 40 O.S. 1-101 (2001) et seq., is to avoid the "economic insecurity due to unemployment" by "setting aside compulsory reserves to be used for the benefit of persons unemployed through no fault of their own." See Uniroyal Goodrich Tire Co. v. Oklahoma Employment Sec. Comm'n, 1996 OK CIV APP 7, 8, 913 P.2d 1377, 1380, citing Vaster, 1985 OK 21, 697 P.2d 533. An employee is disqualified from receiving unemployment benefits if he leaves work voluntarily without good cause connected to the work or is terminated because of misconduct. 40 O.S. 2-404 and 40 O.S. 2-406 (2001).
In the present case, there are no allegations of misconduct on Claimant's part and the parties agree that Claimant was hired for a set period of time. Therefore, the issue on appeal is whether an individual hired for a specific term of employment voluntarily leaves that employment at the end of the term so as to disqualify him from unemployment benefits under 40 O.S. 2-404.
In 2003, the Legislature enacted 40 O.S. 2-404B (2003). Section 40 O.S. 2-404B(a) provides "when an employer employs a worker for a limited duration of time specified by the employer, the worker is considered to have been laid off due to lack of work at the end of the time period set by the employer, provided that the worker's separation was due only to the completion of the work or the expiration of the time period." Town asserts since 40 O.S. 2-404B's effective date was November 1, 2003, after Claimant's employment ended, it is inapplicable and Claimant is not entitled to unemployment benefits.
While we agree with Town that 42 O.S. 2-404B has only prospective application, we disagree that this fully resolves the issue on appeal. See Forest Oil Corp. v. Corporation Comm'n of Okla., 1990 OK 58, 11, 807 P.2d 774, 781 (the general rule is that new legislation will be given only prospective effect unless the enacting body clearly expresses otherwise). We disagree because we find, as OESC argues, that 40 O.S. 2-404B was only a continuation of existing law.
In Wright & Edwards v. Oklahoma Employment Sec. Comm'n, 1997 OK 163, 934 P.2d 1088, the Supreme Court discussed the difference between what it termed a "substitute" employee and a "temporary" employee. With respect to a temporary employee, the Court noted that when an employee accepts a job that he knows in advance to be temporary, the employee does not voluntarily leave when the job ceases to exist, citing Anthony Adams AIA Architect v. Dept. of Employment Sec., 430 A.2d 446 (VT. 1981). Wright & Edwards, 1997 OK 163, at 17, 934 P.2d at 1091.
The Court also cited Kentucky Unemployment Ins. Comm'n v. American Nat'l Bank & Trust Co., 367 S.W.2d 260 (Ky. 1963). In American National, the bank, while undergoing remodeling at its permanent location, moved into a temporary location and hired a temporary security guard to patrol at that location. When the bank moved back to its original building, the temporary guard's position was no longer needed. The court awarded unemployment benefits finding the reason for termination was lack of work.
The Court in Wright & Edwards distinguished a substitute employee as one who is hired to fill-in for a worker and who does not desire any additional employment beyond the fill-in work agreed to. Wright & Edwards, 1997 OK 163, at 21-22, 934 P.2d at 1091, citing Calkins v. Board of Review of Dept. of Employment Sec., 489 N.E.2d 920 (Ill. App. 1986). In Calkins, the claimant was hired as a replacement secretary while the regular secretary was on vacation. The court denied benefits finding the employment was knowingly entered into with the understanding it would be for a short period of time, claimant did not desire additional work beyond the fill-in work, and she was not laid off because of lack of work. Id. at 922.
The Supreme Court ultimately held the claimant in Wright & Edwards to be a substitute employee because she was hired to fill-in for a worker who was on leave. Id. at 19, at 1092. The Court found the claimant was not hired in a temporary position that ended because of lack of work or unavailability of work. Id. The Court noted the claimant had not sought permanent employment because the employer did not offer health insurance, but rather had agreed to work as a substitute employee for the period of time the regular employee was on leave. Id. Under these facts, the Court held the claimant left employment voluntarily and was not entitled to unemployment compensation benefits. Id. at 24, at 1092.
Although the Supreme Court did not expressly approve unemployment benefits for temporary workers in Wright & Edwards, we believe such a finding was implicit in the Court's opinion and is consistent with the purpose of the Oklahoma Employment Security Act, "to avoid the economic insecurity due to unemployment" and to compensate those employees who through no fault of their own lose their job. See 40 O.S. 1-101 (2001) et seq.; Uniroyal Goodrich, 1996 OK CIV APP 7, at 8, 11, 913 P.2d at 1380-81, citing Vaster, 1985 OK 21, 697 P.2d 533.
In the present case, the record establishes Claimant was hired for a specific term which ended when Town no longer had available work. This situation is readily distinguishable from the substitute employee in Wright & Edwards who was merely filing in for an employee on leave and who would return to the position. The Claimant in this matter is unemployed, through no fault of her own, solely because of a lack of work.1
Accordingly, there was no error in the Board of Review's determination that Claimant was entitled to unemployment compensation benefits. The trial court's decision is reversed and this matter is remanded with instructions to reinstate the March 15, 2004, decision of the Board of Review finding Claimant was entitled to unemployment benefits.
REVERSED AND REMANDED WITH INSTRUCTIONS.
RAPP, V.C.J., and STUBBLEFIELD, J., concur.
(FOOTNOTES):
1 This issue was previously addressed by this court in Indian Lodge v. Oklahoma Employment Sec. Comm'n, No. 98,015 (September 23, 2003, Court of Civil Appeals, unpublished opinion). We adopt the reasoning therein.