STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT
-------------------------------------------------------------- : SIXTH DIVISION

ADELITA S. OREFICE, in her capacity as :
Acting Director of the RHODE ISLAND DEPARTMENT OF LABOR AND TRAINING :

V. : No. A.A. 04-16

THE RHODE ISLAND DEPARTMENT OF LABOR AND TRAINING :BOARD OF REVIEW and
CHRISTINE M. FUSS :




DECISION

CENERINI. J The matter before this Court is the Department of Labor and Training's petition for review (hereinafter DLT), filed pursuant to R.I.G.L. 1956 § 42-35-15, challenging the January 21, 2004 decision of the Board of Review (hereinafter Board), which affirmed the Referee's November 6, 2003 decision, reversing the Director's October 3, 2003 decision, thus finding Christine M. Fuss (hereinafter Fuss), eligible for unemployment benefits.

Facts and Travel

The claimant was employed part-time by DB Marketing, Inc for approximately five months. She was employed on a part-time basis because she is disabled by Multiple Sclerosis and other physical disabilities. Claimant receives social security benefits from the Federal Government for these disabilities.
Claimants last day of work was April 24, 2003. She left for good cause and filed a claim for Employment Security benefits on August 8, 2003. When applying for unemployment benefits, the claimant indicated that she was actively seeking employment, but since she was not able to work full-time as a result of her medical conditions, her availability was limited to part-time hours not exceeding twenty-four hours per week.
On October 3, 2003, the Director determined the claimant did not meet the availability requirements under R.I.G.L. 1956 §28-44-12 of the Rhode Island Employment Security Act. Claimant timely appealed the Director's determination.
A Referee heard the matter on October 28, 2003, at which time the claimant, represented by counsel, appeared and testified. The Referee issued a decision on November 6, 2003, reversing the Director's determination.
An appeal was requested before the Board of Review, who after consultation of the hearing before the Referee, issued its decision on January 21, 2004. The Board dismissed the appeal and affirmed the Referee's decision. DLT timely appealed this matter to this Court.
Standard of Review
The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the Administrative Procedures Act, which provides as follows:

42-35-15. Judicial review of contested cases.

(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Thus, on questions of fact, the District Court "…may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are clearly erroneous." Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410, A.2d 425 (1980) (citing Rhode Island General Laws § 42-35-15 (g)(5)). The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a different result. Cahoone, 246 A.2d at 215. See also, D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041(R.I. 1986).
The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:
…eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls on the unemployed worker and his family." G. L. 1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not, intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act. Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597 (1964).

Argument

Plaintiff Director argues that the Board incorrectly and improperly decided the claimant was able to collect unemployment benefits based on her non-availability for full-time employment pursuant to R.I.G.L. § 28-44-12. Plaintiff also argues the Referee's conclusion that claimant had not restricted herself in hours or duties is legally erroneous. Further, Plaintiff acknowledges that claimant can work up to 24 hours a week without jeopardizing her social security disability benefits, but suggests, without any medical evidence in the record, that she can work in excess of 24 hours, even with her physical impairments. (Tr. of 10/28/03 at 24-8.) Plaintiff maintains the Referee failed to consider this in reaching his decision regarding her availability.
The Board adopted the following findings of fact from the Referee:

"The claimant had worked for her previous employer for a period of approximately five months. The claimant left that job due to harassment by certain members of the staff and a change in her work hours. Since her termination the claimant has been actively seeking employment, not restricting to hours or job duties, however, due to her Multiple Sclerosis and Social Security benefits she can only work up to twenty-four hours per week."

The Board adopted the following conclusions of the Referee:
"From the credible testimony presented at the hearing, the claimant [has] actively been seeking employment, not restricting herself to either hours or job duties. In fact, the claimant has worked intermittently as work has become available. Therefore, it must be held that the claimant is able and available and actively engaged in a work search and cannot be denied benefits if otherwise eligible."

Decision

The issue in this case is whether or not claimant is subject to disqualification under the provisions of R.I.G.L. §28-44-12 of the Rhode Island Employment Security Act. Section 28-44-12 of the General Laws of the State of Rhode Island provides:

"Section 28-44-12 Availability and registration for work. -(a) An individual shall not be eligible for benefits for any week of his or her partial or total unemployment unless during that week he or she is physically able to work and available for work. To prove availability for work, every individual partially or totally unemployed shall register for work and shall:
(1) File a claim for benefits within any time limits, with any frequency, and in any manner, in person or in writing, as the director may prescribe;
(2) Respond whenever duly called for work through the employment office; and
(3) Make an active, independent search for suitable work.
(b) If an unemployed individual has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the director, the individual shall be eligible to receive benefits with respect to any week only if the individual participates in reemployment services, such as job search assistance services, unless the director determines that:
(1) The individual has completed those services; or
(2) There is justifiable cause for the individual's failure to participate in those services."

In Chaharyn v. Department of Employment Security, the Rhode Island Supreme Court opined the Legislature did not intend to leave the possibility or discretion of whether claimant was available for work to the claimant. 85 R.I. 75, 80, 125 A.2d 241, 243 (1956). Rather, the Court interpreted "available for work" as requiring a claimant to "register as able and willing to work and be ready to accept any suitable work whenever offered to him or her without attaching thereto any restrictions or conditions other than those specifically provided for in the statute." Id.
More recently, the Rhode Island Supreme Court has held that
"{t}here is nothing in the statute to justify the conclusion that the legislature intended that a claimant might limit or restrict his availability for work to certain hours of the day, at least where the work he is qualified to perform is not likewise limited. To permit a claimant to place such restrictions on his availability, other than as specifically provided for in the statute, would violate the spirit and purpose of the act." Rhode Island Temps, Inc. v. Department of Labor and Training, Board of Review et al, 749 A.2d 1121, 1127 (R.I. 2000) (citing Chaharyn, 85 R.I. at 80, 125 A.2d at 243-44.

Here, claimant has actively sought employment. She has applied to many restaurants in an effort to secure part-time employment. (Tr. of 10/28/03 at 25-9.) Although she has not secured long-term employment; she has worked intermittently as work has become available. Her intermittent employment is supportive of the claimant's willingness to work and readiness to accept any suitable work whenever offered.
The Rhode Island Supreme Court established a two-step inquiry for determining the availability for work in Huntley v. Department of Employment Security
"First: are these restrictions bottomed upon good cause? If the answer is negative, the inquiry ends and the claimant is ineligible for benefits under the Employment Security Act. If the answer is affirmative, the second stage of the inquiry must be made: do the restrictions, albeit with good cause, substantially impair the claimant's attachment to the labor market? If the answer to this inquiry is affirmative, then the claimant is still ineligible for benefits under the Act." 121 R.I. 284, 397 A.2d 902, 907 (1979).

Further, R.I.G.L. § 28-44-12 does not require a 24-hour per day availability. Huntley, 121 R.I. at 292-93, 397 A.2d at 902. In Huntley, the Rhode Island Supreme Court found an unemployed mother of four children under the age of 13 was not necessarily "unavailable for work," for unemployment compensation purposes, because she would not accept first shift employment. Id. The Court noted that:
"The personal circumstances of a claimant who has to devote full time to the care of a sick member of the family, and who can therefore not leave him to accept work, do not leave him free to undertake any work. He is removed from any labor market and is not available for work. On the other hand, if he has the care of the sick person only at night so that he is free to accept full-time work during the day, he should be considered available for work. There is no doubt as to claimant's readiness and willingness to work during the hours designated by him. Reduced to its basic issue, then, the question is whether the availability of a claimant whose availability is limited to specific hours is so reduced that in fact he is no longer available for work. The test in such cases is whether there is a market for his services during the hours that he offers them in the locality. If there is such a market, claimant should be regarded as available for work." 121 R.I. at 292-93, 397 A.2d at 906 (citing Freeman, Able to Work and Available for Work, 55 Yale L.J. at 129-30).

Accordingly, if good cause exists for a person who must care for children or a sick family member, good cause should also exist for a claimant who is also limited through disability. In this case, there is no question the restrictions placed on claimant's availability due to her disability are based upon good cause. Here, the record evidences that claimant is ready, willing and able to work for the hours she is able. Claimant has not voluntarily refused a part-time job opportunity. Thus, under the two step inquiry in Huntley, the answer to step one is affirmative and part two must be considered.
The next question is whether the restrictions, albeit with good cause, substantially impair the claimant's attachment to the labor market. Here, it is Plaintiff's argument that the claimant materially impairs her attachment to the labor market by limiting herself to part-time, twenty four hours per week. Plaintiff argues claimants limitation substantially limits and impairs her ability to seek suitable available employment as is required under R.I.G.L. § 28-44-12.
Claimant had originally been working 24 hours as a deli associate at the D.B. Mart. (Tr. of 01/13/04 at 6-7.) Her shifts were from 2:00 to 8:00, four times a week. (Tr. of 10/28/03 at 13.) Her duties included: making sandwiches; cooking on and cleaning the grill; preparing salads; and ensuring freshness of ingredients. (Tr. of 01/13/03 at 10.) At the January 13, 2004 hearing, the original DLT representative, refused to admit for consideration, the existence of part-time baker and/or restaurant jobs which would have impacted on whether the claimant was available for work within that segment of the economy. (Tr. at 4.) Claimant's counsel suggested during the October 28, 2003 hearing, that claimant has worked successfully "those hours both for D.B. and other employers," referring to a 24 hour work week. (Tr. at 25.) A part-time position that would accommodate the claimant's physical limitations within the restaurant and/or fast food trade is common within the local job market. Id. Thus, this Court finds the test whether there is a market for her services during the hours she is available is satisfied.
Moreover, "partial unemployment" is provided for in the statute, as follows:
"An employee shall be deemed partially unemployed in any week of less than full-time work if he or she fails to earn in wages for that week an amount equal to the weekly benefit rate for total unemployment to which he or she would be entitled if totally unemployed and eligible." R.I.G.L. § 28-42-3(25)(i).

Thus, part-time employment is included in the Rhode Island statute and is likewise recognized elsewhere.

Finally, the State of Rhode Island serves as a statutory agent of the federal government for purposes of administering the state unemployment program. See 26 U.S.C.S. §§ 3301 et seq. The federal government has determined claimant to be disabled, and that she cannot work more than 24 hours per week. See generally 42 USCS §§ 401 et seq. Furthermore, where state statutes follow a federal scheme, it is proper to look to the federal law for strong guidance regarding statute interpretation and application. See Belanger v. Arthur B. Matteson et al., 115 R.I. 332; 346 A.2d 124 (1975). As a matter of law, since our state unemployment program is delegated to DLT by the federal and state law, in acceptance of that statutory delegation, the state agency is bound by the federal determinations of the reasonable work availability of a disabled person in accord with the social security disability program. Such an affirmative obligation upon DLT is clearly reasonable within these circumstances, given the board effect of the humanitarian purpose of our state statute as ratified in Harraka, supra. The DLT should not be permitted to defeat or handicap the valid national objective of providing social security benefits to disabled persons, by forcing those persons to choose between collecting their federal benefits or state unemployment benefits.
After review of the entire record, this Court finds the decision of the Board allowing the claimant benefits under R.I.G.L. §28-44-12 of the Rhode Island General Laws is not clearly erroneous. The Board determined that claimant has actively sought employment, and had not impermissibly restricted herself to either hours or job duties without legal justification. This Court finds that the Board's determination that claimant is available for work was supported by the reliable, probative and substantial evidence on the whole record, and further that its decision is not arbitrary or capricious or an abuse of discretion. Accordingly, the decision of the Board is affirmed.

2. See Morris v. Dept. of Labor and Training, Bd. of Rev., No. 00-58 (R.I. Dist. Ct. May 17, 2001) (holding disabled claimant available for part-time work may collect employment security benefits); For contra, see Lannigan v. Dept. of Labor and Training, Bd. of Rev., No. 03-050 (R.I. Dist. Ct. Oct. 14, 2003) (holding disabled claimant ineligible to receive employment security benefits because she is only available part-time, which DLT herein relies upon).