( Kay County - Robert H. Galbraith )

Not Published REVERSED

David R. Garrison, Ponca City, Oklahoma, Appellee Pro Se

Tracy D. Baldwin, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Oklahoma City, Oklahoma, For Appellant

OPINION

This is the Oklahoma Employment Security Commission's (OESC) appeal from the trial court's May 11, 2005, order reversing OESC's order assessing David R. Garrison's (Employer) employer account a benefit wage charge. Based upon our review of the facts and applicable law, we reverse.

FACTS

Employee M.F. Gee was hired by Employer, a sole practitioner of law, as a temporary secretary from February 9 to February 20, 2004. She was hired to fill the only legal assistant position in Employer's office. The position was temporarily open because the regular legal assistant was on a two-week vacation. Employee left the position on February 20 as agreed, and has not returned to work for Employer.

OESC subsequently assessed Employer's labor account with a Benefit Wage Charge (Charge) for the two weeks wages paid to Employee by Employer. Employer protested the Charge on December 16, 2004.

OESC reviewed Employer's protest and sent a letter to Employer, mailed January 4, 2005, denying the protest. OESC stated that unless Employee left voluntarily without good cause connected to the work, or was discharged for misconduct, there was no exception to the rule requiring assessment of the Charge to Employer's account, even though an employee was part-time or temporary.

On January 10, 2005, Employer appealed OESC's decision letter to OESC's Assessment Board. He contends Employee's limited work for him did not justify the assessment of a Charge.

A telephonic hearing was conducted on February 25, 2005. Employer and his regular legal assistant testified. Employee did not. The Hearing Officer issued a decision affirming OESC's assessment. The Hearing Officer found that Employee did not quit voluntarily without good cause nor was she discharged for misconduct. Therefore, the Hearing Officer concluded that Employer was subject to the Charge.

On March 4, 2005, Employer filed an appeal in Kay County District Court, appealing the decision of OESC's Assessment Board. Citing Wright and Edwards v. Oklahoma Employment Security Commission, 1997 OK 163, 934 P.2d 1088, he argued Employee voluntarily left his employ as agreed and did not return to work after the two-week employment period. OESC responded, contending that Employer has no basis for his appeal, and that Wright and Edwards was overruled by the subsequent enactment of 40 O.S. 2-404B (2003).

The trial court, in an order filed May 11, 2005, reviewed the record presented and held that 40 O.S. 2-404B only applied to temporary help firms hired to place their own employees in temporary jobs for the help firm's clients. Therefore, Wright and Edwards applied, and the Charge assessed against Employer was improper, and the trial court reversed the Board's order. OESC appeals.

STANDARD OF REVIEW

OESC correctly sets out the standard of review applicable to a district court reviewing the decision of OESC or its Board. As this court recently restated in Baldridge v. Express Temporary Services, 2005 OK CIV APP 100, 125 P.3d 709.

"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. Vester 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. Wilkerson, 1982 OK 33, 6, 642 P:2d 1141, 1142."

Baldwin, at 7, 125 P.3d at 711.

However, the narrow issue framed by the pleadings presented to this court is one of law. The question is which authority applies: Wright and Edwards or 40 O.S. 2-404B? The application of law is a legal question which we will review de novo.

ANALYSIS

In Wright and Edwards, the Oklahoma Supreme Court held:

"In the case at bar it is unrefuted that the claimant id not seek permanent employment with Wright & Edwards. Claimant had previously made it clear that she could not work unless health insurance was offered. right & Edwards had made clear that they did not offer health insurance, but they offered to let claimant fill-in r their secretary who was on leave, and to continue her search for permanent employment while filling-in at their offices. We cannot find that claimant left this particular employment other than voluntarily.

"We stated, in Oklahoma Employment Security Commission v. Sanders, 272 P.2d 379 (Okla.1954), that the function of the employment security commission is to weigh the evidence on matters properly before it and make findings thereon, and where such findings are supported by substantial evidence or are not clearly erroneous, they must be accepted, but that the commission may not arbitrarily discredit and disregard unimpeached competent and relevant testimony that is uncontradicted. It is clear from the uncontroverted evidence in the case at bar that the position was a temporary one and that the temporary employee left voluntarily, just as she had come voluntarily for a three-month term. We agree with the district court that the Commission erred in awarding benefits to Ms. Hicks under the circumstances of this case."

Wright and Edwards, at 23, 24, 934 P.2d at 1092.

The facts in the case under review are analogous to those in Wright and Edwards. This is the position taken by Employer, i.e., that since Employee would be ineligible for unemployment benefits, it stands to reason that Employer should not be assessed a Charge.

However, subsequent to Wright and Edwards, the Oklahoma Legislature enacted 40 O.S. 2-404B (2003).1 That section, effective November 1, 2003, states:

"A. 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.

"B. When an employer employs a worker for a limited duration of time specified by the worker, the worker is considered to have voluntarily quit work at the end of the time period set by the worker, provided that the worker's separation was due only to the expiration of the time period." (Emphasis added.)

We agree with the OESC that under these facts, 2-404B(A) applies. This is not a situation wherein Employer contacted a temporary help firm and asked to be sent a temporary worker. The record supports OESC's contention that Employee's name was given to Employer by a mutual friend; it was Employer who specified the limited duration of employment; and it was Employer who specified the work was to begin on February 9 and end on February 20. Further, when asked by the Hearing Officer if it was Employer's idea to have Employee work only two weeks, his witness replied in the affirmative. Since Employee did not testify at the hearing,2 we conclude first that the trial court incorrectly applied the law to the facts of this case, and secondly, that the record supports the decision of OESC. By statutory definition, Employee did not voluntarily leave her employment, or was not discharge for misconduct, but rather was deemed to have been laid off due to lack of work. She would be entitled to unemployment benefits, and the corresponding Charge against Employer's account is supported by law.

We hold 40 O.S. 2-404B(A) applies in this case, that the record amply supports the OESC's decision, and the trial court's order is reversed.

REVERSED.

WISEMAN, .J., and RAPP, V.C.J. (sitting by designation), concur.

(FOOTNOTES):

1 Employer incorrectly suggests a conflict exists between 40 O.S. 2-404A (1991) and 40 O.S. 2-404B (2003). We disagree. Section 40 O.S. 2-404A specifically addresses a "temporary employee" employed by a "temporary help firm," as those terms are defined in 40 O.S. 2-404A(A)(1) and (2). That section addresses a fact situation unlike that in this appeal.

2 Employer attempts to argue in his brief that he was prevented from confronting Employee at the hearing, presumably to determine her understanding of the duration of employment. This argument has no merit for the reason that Employer had the opportunity to subpoena Employee to the hearing to compel her attendance, but did not do so.