( Rapp )
( Wagoner County - Bruce Sewell )
REVERSED AND REMANDED WITH INSTRUCTIONS
F. Wes Owens, M. Scott Landon, OWENS LAW OFFICE, Wagoner, Oklahoma, For Plaintiff/Appellee
Margaret R. Dawkins, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Oklahoma City, Oklahoma, For Defendant/Appellant
OPINION
1/ Trial court defendant, State of Oklahoma ex rel. Oklahoma Employment Security Commission, (OESC) appeals the trial court's Order finding the unemployment compensation claimant (Claimant) voluntarily left her employment and reversing the OESC's decision to award her unemployment benefits and to charge benefit wages to the account of plaintiff, Indian Lodge, L.L.C. (Plaintiff).
BACKGROUND
2/ The OESC mailed the Initial Notice of Application for Unemployment Compensation to Plaintiff on December 8, 2000, notifying it that a former employee had filed a claim for unemployment benefits. Plaintiff responded by letter dated December 27, 2000, stating that it is a seasonal resort business that operates from April 1 through October 31. It also stated the Claimant was hired to work for the seven-month season, and "she was aware that the extent of her employment was for the length of the season, seven months."1
3/ The OESC issued a notice, pursuant to Title 40 O.S. 3-106 (2001), to Plaintiff that its state unemployment insurance compensation account incurred a charge due to an unemployment claim filed by the Claimant, one of its former employees. Plaintiff filed its objection to being charged benefit wages on January 26, 2001. The OESC issued to Plaintiff a Notice of Determination to Base Period Employer on February 23, 2001, denying Plaintiff's appeal pursuant to Title 40 O.S. 3-106 (2001).
The OESC stated:
"Plaintiff's response to the Notice of Initial Application for Unemployment Compensation was that the claimant was laid off due to lack of work or other non-disqualifying reasons and the claimant was allowed benefits.
"It is the determination of the Commission that your failure to establish that this claimant either left your employ voluntarily without good cause connected to the work or was discharged for misconduct connected with the work at the time the initial claim was filed constitutes a bar from granting relief from the benefit wage charge. The protest is denied."
4/ Plaintiff appealed the OESC's decision to the OESC's Assessment Board. After a telephonic hearing, the Hearing Officer found that the benefit wages were properly charged against Plaintiffs account and affirmed the OESC's decision. The Hearing Officer, in affirming the OESC's decision, made findings of fact and conclusions of law, set forth in part as follows:
"-2-
"The Commission mailed the Initial Notice of Application for Unemployment Compensation to the employer's address of record on December 8, 2000. The employer responded with a letter dated December 27. The letter stated that the lodge was a seasonal resort that has been open from April 1 to October 31 for over 20 years. The letter said that the claimant was hired for the seven-month season, and that she was aware that was the length of time she would be working when she accepted the job.
"-3 -
"When the employer received the Notice of Benefit Wages in mid-January 2001, he responded with another copy of his letter dated December 27. Since he did not show that the claimant quit voluntarily while work was still available to her, or that she was discharged due to misconduct, benefit wages were charged to his account.
"-4-
"The Oklahoma Employment Security Act provides that an employer's benefit wages shall not include wages paid to an employee who voluntarily quits without good cause connected to the work or was discharged for misconduct connected to the work. OKLA. STAT. tit. 40 O.S. 3-106 (G)(1)(2).
"-5-
"The charging or non-charging of benefit wages is determined by the reason for separation from employment immediately prior to the filing of the initial claim for benefits. In this case, the claimant did not voluntarily quit without good cause while continuing work was available, nor was she discharged due to misconduct. Her job ended when the employer closed the business for the season. Since the claimant was separated under non-disqualifying conditions, benefit wages are properly charged."
5/ Plaintiff appealed the Assessment Board's decision to the District Court of Wagoner County, which reversed the Assessment Board's determination. The trial court found:
"1. That there was no substantial evidence in the record to support the findings and conclusions set out under paragraph number five (5) of the subject order of decision.
"2. The record on appeal shows the claimant voluntarily resigned on a specified date by agreement which was a term of her contract of temporary employment. The evidence was uncontradicted. The record shows the voluntary nature of the resignation implicit in the terms of the contract of temporary employment."
The OESC appeals the trial court's order.
STANDARD OF REVIEW
6/ The standard of review is set forth in Title 40 O.S. 3-404 (2001):
"In any judicial review under this part the findings of the Commission, or its duly-authorized representative, as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law."
7/ Statutory construction presents a question of law. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 5, 895 P.2d 731, 733 (approved for publication by the Oklahoma Supreme Court). "Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 14, 859 P.2d 1081, 1084 (quoting Salve Regina College v. Russell, 499 U. S. 225, 231 (1991)). If a statute is unambiguous and its meaning clear and there is no reason to apply rules of statutory construction, this Court will apply the meaning expressed by the language used. TRW/Reda Pump v. Brewington, 1992 OK 31, 5, 829 P.2d 15, 20.
ANALYSIS
8/ The sole issue on appeal is whether the trial court's Order reversing the Assessment Board's denial of Plaintiff's request for relief of a benefit wage charge was contrary to Title 40 O.S. 3-106 (2001). To reach this determination, this Court must first determine whether a person hired for a specific term voluntarily leaves employment at the end of that term so as to disqualify him or her from unemployment benefits under Title 40 O.S. 2-404 (2001).
9/ Title 40 O.S. 3-106 (G) (2001)2 provides in pertinent part:
"G. The benefit wages charged to an employer for a given calendar year shall be the total of the benefit wages stated in the notices given to the employer by the Commission. Provided, that an employer's benefit wages shall not include wages paid by the employer to any employee or former employee, who:
"1. Left employment with that employer, or with his or her last employer, voluntarily without good cause connected to the work . . . ."
10/ An employee is disqualified from receiving unemployment benefits if he or she leaves work voluntarily without good cause pursuant to Title 40 O.S. 2-404 (2001), or if he or she is terminated because of misconduct under Title 40 O.S. 2-406 (2001).3
11/ Although the Oklahoma Supreme Court has not directly addressed this issue, it has addressed a similar issue. In Wright & Edwards v. Oklahoma Employment Sec. Comm'n, 1997 OK 163, 934 P.2d 1088, the Oklahoma Supreme Court held that an unemployment compensation claimant who was hired as a substitute employee for a secretary who was on maternity leave left,work voluntarily and was not entitled to receive benefits. The Court reasoned the claimant was hired to fill in temporarily and did not seek permanent employment upon the regular secretary's return because the employer did not offer insurance benefits. The claimant subsequently filed for unemployment benefits.
12/ The OESC hearing officer found the employer discharged the claimant because of lack of work and held she was entitled to unemployment benefits. The Oklahoma Supreme Court disagreed and found "that the claimant left voluntarily because she had agreed to work only during the pregnancy leave of a regular employee and no longer." Id., 1997 OK 163 at 12, 934 P.2d at 1091. The Supreme Court noted the Wright & Edwards claimant "was not hired in a temporary position that ended because of lack of work or unavailability of work . . . ." Id., 1997 OK 163 at 19, 934 P.2d at 1092. The Court also emphasized the claimant was not seeking permanent employment with the employer law firm because it did not offer health benefits, which she required as a condition of employment. Id., 1997 OK 163 at 23, 934 P.2d at 1092. The Court, under these facts, held the claimant left employment voluntarily and was not entitled to unemployment compensation benefits. Id., 1997 OK 163 at x24, 934 P.2d at 1092.
13/ The Oklahoma Supreme Court in Wright& Edwards also discussed that "courts in other jurisdictions have stated as a rule that an employee who accepts a job that he knows in advance to be temporary does not voluntarily leave when the job ceases to exist." Wright & Edwards, 1997 OK 163 at 17, 934 P.2d at 1091 (citing Anthony Adams AIA Architect v. Dept. of Employment Sec., 430 A.2d 446 (Vt. 1981)). As noted in Wright & Edwards, the Vermont court qualified this holding so as to distinguish when the employee is the one to limit the term of employment:
"We now hold that an employee who accepts a temporary position does not leave that position involuntarily at the end of the agreed period if it is shown that the employee requested temporary employment in light of his or her needs or availability."
Wright v. Edwards, 1997 OK 163 at 17, 934 P.2d at 1091 (citing Lincoln v. Dept. of Employment and Training, 592 A.2d 885, 888 (Vt. 1991)). In Lincoln, the court held that where an employee has requested employment for a limited term "because of unwillingness or unavailability to serve longer," the employee at the conclusion of the temporary work leaves the work voluntarily. Lincoln, 592 A.2d at 888.
14/ Other states have determined that an employee hired for a specific term, with knowledge that the employment will terminate on a certain date, does not voluntarily leave employment and is therefore entitled to unemployment compensation benefits. In City of Lakin v. Kansas Employment Sec. Bd. of Review, 865 P.2d 223 (Kan. Ct. App. 1993), a claimant was employed by the City of Lakin from June 3, 1991, through September 20, 1991. He worked for another business for a short time and then filed for unemployment benefits. The claimant knew that the City's employment would be for a short period of time.
15/ The Kansas Court of Appeals was required to interpret a statute' similar to the Oklahoma statute to determine whether to charge the employer's account. The Kansas Court of Appeals framed the issue as follows: "The narrow issue remaining for decision is whether an employee whose fixed-term job has ended, as a matter of law, has voluntarily left work without good cause attributable to the work or employer." Id. at 224. As with Plaintiff here, the City of Lakin argued its account should not be charged because the claimant voluntarily entered into short-term employment and was therefore "not unemployed involuntarily." The Kansas Court of Appeals stated:
"Most courts considering this question have ruled that, where a claimant had no realistic choice in determining the duration of employment, claimant is eligible for unemployment benefits at the end of the limited-term employment because he or she is out of work through no fault of his or hers."
Id. at 225. Thus, the Kansas Court of Appeals found the claimant did not voluntarily leave work pursuant to the applicable statutory language and granted the claimant's request for unemployment benefits.
16/ In In re Interrogatories, 496 P.2d 1064 (Colo. Ct. App. 1972), the Colorado Court of Appeals awarded a cook at a private school, which was open for only nine months of the year, unemployment benefits. The Colorado court stated: "Neither the fact that claimant was employed for a fixed term nor the fact that claimant agreed and understood that the employment would end at the expiration of the fixed term is a basis for denying claimant benefits under the Act." Id. at 1065. The Court of Appeals of Kentucky in Churchill Downs, Inc. v. Kentucky Unemployment Ins. Comm'n, 454 S.W.2d 347 (Ky. 1970), addressed the question of whether employees of a race track, a seasonal operation, became involuntarily unemployed at the conclusion of the racing season so as to qualify for unemployment benefits. The Kentucky court held the employees had not voluntarily left their work and were entitled to unemployment benefits. The court stated:
"The most plain and simple reason why the workmen in the instant case cannot be considered to have left their most recent work is that the work left them; the work simply ceased to exist; the employer discontinued the furnishing of work to be done. To leave' something contemplates that the thing is left behind; here no jobs were left behind."
Id. at 349.
17/ "Unemployment legislation is remedial in nature and entitled to a liberal construction and interpretation." Anthony Adams AIA Architect v. Dept. Of Employment Sec., 430 A.2d 446, 447 (Vt. 1981). The purpose of the Oklahoma Employment Security Act "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."' Uniroyal Goodrich Tire Co. v. Oklahoma Employment Sec. Comm'n, 1996 OK CIV APP 7, 8, 913 P.2d 1377, 1380 (citing Vester v. Bd. of Review of Oklahoma Employment Sec. Comm'n, 1985 OK 21, 697 P.2d 533, 536).
18/ Here, the record indicates the Claimant knowingly accepted employment offered by Plaintiff for the period April 1 through October 31. Her employment ended on October 31 because Plaintiff closed the business for the season and terminated the availability of work to Claimant. In addition, there is no evidence in the record that the parties discussed future employment. As in Churchhill Downs, Inc., the Claimant here did not actually "leave" her employment; instead Claimant's employment position ended because of lack of work or unavailability of work. The facts here are readily distinguishable from those in Wright & Edwards, where the claimant was hired to fill-in for a regular employee who was on leave. Unlike the Claimant in the present case, the Wright & Edwards claimant "was not hired in a temporary position that ended because of lack of work or unavailability of work . . . ." The Claimant in this matter is unemployed through no fault of her own.
19/ Moreover, it is to be noted that had the Legislature intended seasonal workers to be ineligible for unemployment benefits, it would have excluded such workers by specific statutory language. "As unemployment compensation is remedial legislation, no person shall be excluded from its benefits unless the law demonstrates an intent to make such exclusion."' Anthony Adams AIA Architect, 430 A.2d at 448.
20/ This Court concludes the Claimant did not leave her "employment . . . voluntarily without good cause connected to the work" pursuant to Title 40 O.S. 3-106 (G) (2001). This Court finds Claimant is therefore entitled to unemployment benefits. Such finding is consistent with the underlying purpose of the Oklahoma Employment Security Act - to compensate those employees who through no fault of their own lose their job.
21/ The trial court erred in finding Claimant voluntarily resigned and in reversing the May 15, 2002, decision of the Board. The trial court's decision is reversed and this matter is remanded with instructions to reinstate the May 15, 2002, decision of the Board finding Claimant was entitled to unemployment benefits and charging the account of Plaintiff/Employer.
22/ REVERSED AND REMANDED WITH INSTRUCTIONS.
GOODMAN, P.J., concurs, REIF, J., dissents.
(FOOTNOTES):
1 The parties do not argue that claimant employee is a temporary employee under Title 40 O.S. 2-404A (2001), nor does she meet the Section 2-404A definition of one. Section 40 O.S. 2-404 . defines a "temporary employee" as "an employee assigned to work for the clients of a temporary help firm." A "temporary help firm" is defined as "a firm that hires its own employees and assigns them to clients to support or supplement the client's work force in work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects." Moreover, Section 40 O.S. 2-404A does not except temporary employment from application of the Act.
2 Although Section 40 O.S. 3-106 (G) sets forth several other reasons that preclude an employee from being entitled to unemployment benefits, the parties agree that the applicable provision is the one set forth above.
3 Neither party alleges the unemployment claimant was terminated because of misconduct. Section 404 is the applicable statute here.
4 K.S.A.1992 Supp. 44-710(c)(2)(A) provided:
"Benefits paid in benefit years established by valid new claims shall not be charged to the account of a contributing employer or rated governmental employer who is a base period employer if the examiner finds that claimant was separated from the claimant's most recent employment with such employer under any of the following conditions: (i) Discharged for misconduct or gross misconduct connected with the individual's work; or (ii) leaving work voluntarily without good cause attributable to the claimant's work or the employer." (Emphasis added).
REIF, J., dissenting,
1/ The majority opinion holds that an employee for a seasonal business does not voluntarily leave such work at the end of business season, so as to be disqualified from unemployment compensation benefits under 40 O.S. 2-404 (2001). The majority's holding is consistent with the holdings of a respectable body of cases that have decided this issue. Even though the majority opinion is well reasoned and well supported, I nonetheless dissent, because termination or separation from employment that is known and agreed to from the outset of the employment relationship has been termed voluntary for purposes of unemployment benefits. Wright & Edwards v. Oklahoma Employment Security Commission, 1997 OK 163, 934 P.2d 1088.
2/ The Wright & Edwards case involved a claimant/employee who had been hired on a temporary basis to replace another employee who was going on maternity leave. "It was understood at the time of hire . . . the claimant's job would end when the employee on maternity leave returned to work." Id. at 10, 934 P.2d at 1090 (emphasis added). The employer did not have work available for the claimant after the other employee returned. The court noted that the Employment Security Commission concluded that because there was no work upon return of the regular employee, claimant's termination was due to unavailability of work. The Commission further concluded that it was not possible for an employee to leave voluntarily under such circumstances. The court disagreed, noting "the claimant left voluntarily because she had agreed to work only during the pregnancy leave of a regular employee and no longer." Id. at 12, 934 P.2d at 1091.
3/ Employees who take seasonal work similarly understand at the time of hire that the job will end upon a particular event that signals an end to further work. In other words, seasonal employees leave seasonal work voluntarily because they agree to work only during the business season and no longer.
4/ The view expressed by the majority is certainly in keeping with the policy of a liberal interpretation of unemployment compensation law. However, the unemployment compensation law was not intended to protect employees from all circumstances where employment is lost due to unavailability of work, but rather was intended to protect employees where the loss of employment is unforeseen or unexpected. Employment relationships in businesses that operate on a seasonal basis involve known periods in which work is unavailable by the very nature of the business, and employees who voluntarily accept such employment necessarily voluntarily accept separation from such employment in the off season. They are certainly not the victim of the unforeseen or unexpected consequences of unemployment.
5/ For the foregoing reasons, I would affirm the trial court's determination that the employee/claimant herein is disqualified from unemployment compensation.