Cape Cod Collaborative v. Director of the Department of Unemployment Assistance ( 2017 )

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15-P-436 Appeals Court
CAPE COD COLLABORATIVE vs. DIRECTOR OF THE DEPARTMENT OF
UNEMPLOYMENT ASSISTANCE & another.1
No. 15-P-436.
Barnstable. January 7, 2016. - May 4, 2017.
Present: Hanlon, Sullivan, & Maldonado, JJ.
Employment Security, Partial unemployment, Eligibility for
benefits, School bus driver, Judicial review.
Civil action commenced in the Barnstable Division of the
District Court Department on April 29, 2013.
The case was heard by W. James O'Neill, J.
David A. Guberman, Special Assistant Attorney General, for
the defendant.
Kevin F. Bresnahan for the plaintiff.
MALDONADO, J. In this case, we consider whether Stephanie
Hennis, a full-time bus driver for the Cape Cod Collaborative
1
Stephanie Hennis.
2
(collaborative),2 is entitled to partial unemployment
compensation benefits for the three days she did not work and
was not paid during the week ending Saturday, November 24, 2012,
which included the Thanksgiving recess. Because we conclude
that G. L. c. 151A, § 28A(c), does not bar the payment of such
benefits in the circumstances of this case, we reverse the
judgment of the Barnstable Division of the District Court
Department (District Court), which reached a contrary
conclusion.
1. Statutory framework. We begin with a brief overview of
the Unemployment Insurance Law, G. L. c. 151A, so as to put the
underlying facts in context. The fundamental purpose of the
statute is to "afford benefits to [individuals] who are out of
work and unable to secure work through no fault of their own."
Connolly v. Director of the Div. of Unemployment Assistance, 460
Mass. 24, 25 (2011), quoting from LeBeau v. Commissioner of the
Dept. of Employment & Training, 422 Mass. 533, 538 (1996). We
are required to construe G. L. c. 151A "liberally in aid of its
purpose, which purpose is to lighten the burden which now falls
2
The Cape Cod Collaborative is an education collaborative
established by written agreement among the school committees of
nineteen school districts on Cape Cod pursuant to G. L. c. 40,
§ 4E. It provides educational programs and services, including
transportation, to the students of its member school districts.
The parties have assumed that the collaborative falls within
G. L. c. 151A, § 28A(d), thus bringing the case within the
purview of § 28A(a)-(c).
3
on the unemployed worker and [her] family." G. L. c. 151A,
§ 74, as appearing in St. 1990, c. 177, § 340.
With respect to employees of educational organizations,
however, the Legislature has carved out certain exceptions to
the general availability of unemployment compensation benefits.
As pertinent here, G. L. c. 151A, § 28A(c), as appearing in St.
1977, c. 720, § 29, provides that, with respect to services
performed for an educational institution, "benefits shall not be
paid to any individual on the basis of such services for any
week commencing during an established and customary vacation
period or holiday recess if such individual performs such
services in the period immediately before such vacation period
or holiday recess, and there is a reasonable assurance that such
individual will perform such services in the period immediately
following such vacation period or holiday recess" (emphasis
added). A "week" is defined as "seven consecutive days
beginning on Sunday." G. L. c. 151A, § 1(t), as appearing in
St. 1941, c. 685, § 1.
2. Factual and procedural background. The essential facts
of this case are not in dispute. Since April 27, 2009, Hennis
has been employed by the collaborative as a school bus driver,
transporting students to and from their educational programs.
She typically works approximately forty-five hours per week, one
shift in the morning and another shift in the afternoon, from
4
Monday through Friday. Under the terms of Hennis's employment,
she did not receive holiday pay for time off when school was not
in session.3 In 2012, Thanksgiving was on Thursday, November 22.
During that week of Thanksgiving, schools were closed on
Wednesday, Thursday, and Friday. Consequently, Hennis worked
only two days, for approximately fifteen hours. The
collaborative did not pay her for the remaining three days when
schools were closed, even though she was ready and available for
work. Following the Thanksgiving recess, Hennis resumed her
regular schedule as a school bus driver for the collaborative.
Not having been paid for the three days she did not work,
Hennis filed an application for unemployment compensation
benefits for the week ending Saturday, November 24, 2012. The
Department of Unemployment Assistance (department) approved her
claim, stating that Hennis was partially unemployed, see G. L.
c. 151A, § 1(r)(1), and not subject to any statutory
disqualification where the collaborative was unable to provide
her a full-time schedule of work for the week ending November
24, 2012.
The collaborative appealed the determination and requested
a hearing before a review examiner, at which its personnel
3
The record does not include either Hennis's employment
contract or the schedule that was given to employees at the
beginning of the school year setting forth their hours and bus
routes.
5
coordinator asserted that, pursuant to G. L. c. 151A, § 28A,
employees of the collaborative were precluded from collecting
unemployment compensation benefits during school vacations and
any days not included in their contracts. The review examiner
affirmed the department's decision, finding that § 28A(c) did
not preclude Hennis from collecting unemployment compensation
benefits because she had worked Monday and Tuesday during the
week ending November 24, 2012, and § 28A(c) bars claims only
"for any week which begins during a vacation week" (emphasis
supplied). See G. L. c. 151A, § 1(t) (defining "Week" as "seven
consecutive days beginning on Sunday"); G. L. c. 151A, § 28A(c)
("[B]enefits shall not be paid to any individual on the basis of
. . . services for any week commencing during an established and
customary vacation period or holiday recess" [emphasis
supplied]).
Pursuant to G. L. c. 151A, § 1(r)(1), as appearing in St.
1976, c. 473, § 2, "an individual shall be deemed to be in
partial unemployment if in any week of less than full-time
weekly schedule of work [s]he has earned or has received
aggregate remuneration in an amount which is less than the
weekly benefit rate to which [s]he would be entitled if totally
unemployed during said week; provided, however, that certain
earnings as specified in [G. L. c. 151A, § 29(b),] shall be
disregarded." Having determined that Hennis was precluded from
6
receiving total unemployment benefits, the review examiner
considered whether she had experienced a period of partial
unemployment under the statute. Given that Hennis's gross
earnings for this particular week were less than her weekly
benefit rate plus her disregarded earnings, the review examiner
determined that Hennis was partially unemployed during that week
and, therefore, was eligible to receive partial unemployment
compensation benefits pursuant to G. L. c. 151A, § 29(b).4
The collaborative appealed the review examiner's decision
to the department's board of review (board) in accordance with
G. L. c. 151A, § 40. The board denied the application for
further review, thereby rendering the review examiner's decision
the final decision of the board for purposes of judicial review.
See G. L. c. 151A, § 41(c).
The collaborative then filed a complaint for judicial
review in the District Court. Relying on G. L. c. 151A,
§ 28A(c), it alleged that, because Hennis performed services for
the collaborative during the period immediately before the
Thanksgiving recess, and had a reasonable assurance of
performing services for the collaborative immediately following
the Thanksgiving recess, she was not eligible to receive partial
unemployment compensation benefits for the week ending November
4
Hennis's gross earnings for the week ending November 24,
2012, were $293. Her weekly unemployment compensation benefit
rate was $358, with disregarded earnings of $119.
7
24, 2012.5 In the collaborative's view, the board erred when it
determined that G. L. c. 151A, § 28A, was not applicable to the
facts of this case.
Following a hearing, a judge of the District Court reversed
the board's decision. He found that, because the day before and
after Thanksgiving must be considered a customary vacation
period or holiday recess, the language of § 28A(c) precluded
Hennis from receiving unemployment compensation benefits. The
judge stated that it should have been clear to Hennis that she
would not be working over the Thanksgiving recess and,
consequently, would not be getting paid for those days.
Further, he continued, any suggestion that § 28A(c) was not
applicable because the vacation period did not begin on Sunday
of the relevant week would constitute a tortured interpretation
of the statute.6 The department filed the present appeal.
5
See G. L. c. 151A, § 28A(c), providing in pertinent part:
"[B]enefits shall not be paid . . . if such individual
performs such services in the period immediately before
such vacation period or holiday recess, and there is a
reasonable assurance that such individual will perform such
services in the period immediately following such vacation
period or holiday recess."
6
A different judge allowed the department's motion for
entry of judgment and ordered the entry of a final judgment, but
none appears on the docket or in the record appendix.
Nonetheless, it is clear that the parties reasonably considered
the matter to be final and appealable, so we address the merits.
See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995);
Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 14 n.5 (2003).
8
3. Standard of review. Our review of the board's decision
is governed by the standards set out in G. L. c. 30A, § 14(7).
See G. L. c. 151A, § 42. The board's decision "may only be set
aside if the court determines that the decision is unsupported
by substantial evidence or is arbitrary or capricious, an abuse
of discretion, or not in accordance with law." Coverall N.
America, Inc. v. Commissioner of the Div. of Unemployment
Assistance, 447 Mass. 852, 857 (2006). We "give due weight to
the experience, technical competence, and specialized knowledge
of the agency, as well as to the discretionary authority
conferred upon it." G. L. c. 30A, § 14(7), as appearing in St.
1973, c. 1114, § 3. However, where an agency determination is
based on a question of law, we review the matter de novo. See
Raytheon Co. v. Director of the Div. of Employment Security, 364
Mass. 593, 595 (1974).
4. Discussion. The department contends that G. L.
c. 151A, § 28A(c), does not disqualify Hennis from receiving
unemployment compensation benefits for the week ending November
24, 2012, because the week commenced before, not during, the
Thanksgiving recess. We agree.
"It is a fundamental canon of statutory construction that
'statutory language should be given effect consistent with its
plain meaning and in light of the aim of the Legislature unless
to do so would achieve an illogical result.'" Boston Hous.
9
Authy. v. National Conference of Firemen & Oilers, Local 3, 458
Mass. 155, 162 (2010), quoting from Sullivan v. Brookline, 435
Mass. 353, 360 (2001). Although "[t]he duty of statutory
interpretation is for the courts . . . the details of
legislative policy, not spelt out in the statute, may
appropriately be determined, at least in the first instance, by
an agency charged with administration of the statute." Cleary
v. Cardullo's, Inc., 347 Mass. 337, 344 (1964). See Attorney
Gen. v. Commissioner of Ins., 450 Mass. 311, 319 (2008). The
party challenging an agency's interpretation of a statute has
the burden of proving that such interpretation is unreasonable.
See ibid.The plain meaning of G. L. c. 151A, § 28A(c), precludes the
payment of benefits for "any week commencing during an
established and customary vacation period or holiday recess"
(emphasis supplied). Hennis sought benefits for the week ending
Saturday, November 24, 2012. Given that the week commenced on
Sunday, November 18, that Hennis worked her regular hours on
Monday and Tuesday, and that the Thanksgiving recess did not
start until Wednesday, November 21, she is not precluded from
receiving unemployment compensation benefits by the exclusion
set forth in § 28A(c). Simply put, the week did not commence
during a holiday recess where such recess did not begin until
Wednesday. See, e.g., North Penn Sch. Dist. v. Unemployment
10
Compensation Bd. of Review, 662 A.2d 1161, 1163 (Pa. Commw. Ct.
1995) (State statute denying unemployment compensation benefits
for any week which "commences during an established and
customary vacation period or holiday recess" did not apply to
school bus drivers who did not work for five days due to Monday
holiday and snow emergency that closed school for subsequent
four days because week began on Sunday, which was not vacation
period).
Our interpretation of G. L. c. 151A, § 28A(c), is
consistent with relevant Federal law. We note that "[a]ll
federal-state cooperative unemployment insurance programs are
financed in part by grants from the United States pursuant to
the Social Security Act, 42 U.S.C. §§ 501-503. No grant may be
made to a State for a fiscal year unless the Secretary of Labor
certifies the amount to be paid, 42 U.S.C. § 502(a). The
Secretary of Labor may not certify payment of federal funds
unless [the Secretary] first finds that the State's program
conforms to federal requirements." California Dept. of Human
Resources Dev. v. Java, 402 U.S. 121, 125 (1971). See 42 U.S.C.
§ 503(a)(1) (2012) (State unemployment compensation law must,
among other provisions, "insure full payment of unemployment
compensation when due"). See also 26 U.S.C. § 3304(a) (2012)
(listing requirements for State unemployment compensation law
approval by Secretary of Labor under Federal Unemployment Tax
11
Act). When the Legislature amended G. L. c. 151A in 1977
(including § 28A[c]), it did so for the purpose of providing
that "the employment security law of the commonwealth shall
conform with the federal employment security law." St. 1977,
c. 720, preamble. Consequently, our interpretation of § 28A(c)
should comport with Federal law, thereby ensuring the ongoing
payment of Federal funds that underwrite the administration of
the Massachusetts unemployment compensation system. Cf. Rosen
v. Rosen, 90 Mass. App. Ct. 677, 682-683 & nn.7-9 (2016) (G. L.
c. 119A, §§ 1 et seq., enacted to maintain eligibility for
certain Federal grants).
The language of G. L. c. 151A, § 28A(c), corresponds to 26
U.S.C. § 3304(a)(6)(A)(iii) (2012), which provides that with
respect to services for an educational institution,
"[unemployment] compensation payable on the basis of such
services shall be denied to any individual for any week which
commences during an established and customary vacation period or
holiday recess if such individual performs such services in the
period immediately before such vacation period or holiday
recess, and there is a reasonable assurance that such individual
will perform such services in the period immediately following
such vacation period or holiday recess" (emphasis added). In
response to an inquiry from the department, the State Conformity
12
and Compliance Team of the United States Department of Labor
opined that
"Federal law only permits the denial of a week[] which
commences during an established and customary vacation
period. Benefits cannot be denied under the holiday
provision unless the week of unemployment commences during
the holiday recess.
"If a Thanksgiving vacation began on a Thursday and
continued through the following Tuesday, the holiday denial
would not be applicable to the week that included the first
two days of the vacation (since that week commenced on the
Sunday prior to the vacation period, rather than during the
vacation period)."7
This interpretation of Federal law is persuasive and supports
our construction of § 28A(c), particularly where the Legislature
specifically sought to conform the Massachusetts unemployment
compensation law to Federal law. See generally Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944) ("rulings, interpretations
and opinions of the [responsible agency have] . . . power to
persuade, if lacking power to control"); School Comm. of
Wellesley v. Labor Relations Commn., 376 Mass. 112, 116 (1978).
7
This informal opinion from the State Conformity and
Compliance Team is consistent with a response issued by the
Employment and Training Administration of the United States
Department of Labor to a question regarding "Draft Language and
Commentary to Implement the Unemployment Compensation Amendments
of 1976, P.L. 94-566," 90 Stat. 2667 (1976). In its response,
the Department of Labor explained that a statutory provision
denying benefits to school employees during a vacation period or
holiday recess could not be applied with respect to a week that
included a vacation or holiday, but did not begin during a
vacation or holiday.
13
Given the clear and unambiguous language in other
provisions of G. L. c. 151A, § 28A, the Legislature has
determined that the unemployment compensation law is not
intended to provide benefits for employees during a school
vacation "week" beginning on a Sunday if there is a reasonable
assurance of reemployment once the vacation period is over.
Compare G. L. c. 151A, § 28A(b), as appearing in St. 1977,
c. 720, § 29 (with respect to services performed for educational
institution, "benefits shall not be paid on the basis of such
services to any individual for any week commencing during a
period between two successive academic years or terms if such
individual performs such services in the first of such academic
years or terms and there is a reasonable assurance that such
individual will perform such services in the second of such
academic years or terms"). However, it is also apparent from
the plain language of § 28A(c) that the Legislature did not
intend to prohibit the payment of unemployment compensation
benefits to individuals such as Hennis, who experience a period
of partial unemployment during a vacation period that covers
only a portion of a "week," where the "week" did not commence
during the vacation recess. The Legislature has balanced
competing concerns, and carved out a clear policy that comports
with a Federal mandate. Benefits are not provided for school
vacations that cover a complete week as defined in the statute.
14
Other periods of partial unemployment may be covered, depending
on the circumstances, as set forth in § 28A(c).8
We are required to construe § 28A(c) liberally, G. L.
c. 151A, § 74, and are mindful of the fact that the fundamental
purpose of G. L. c. 151A is "to provide temporary relief for
those who are realistically compelled to leave work through no
'fault' of their own, whatever the source of the compulsion,
personal or employer-initiated." Raytheon Co. v. Director of
the Div. of Employment Security, 364 Mass. at 596. Accordingly,
8
The collaborative argues for the first time on appeal that
Mattapoisett v. Director of the Div. of Employment Security, 392
Mass. 546, 548-549 (1984), precludes Hennis's claim for benefits
because she was not in "partial unemployment" under G. L.
c. 151A, § 1(r)(1), during the week ending November 24, 2012.
Because the collaborative did not raise this argument before the
administrative agency, it is waived on appeal. See Rivas v.
Chelsea Hous. Authy., 464 Mass. 329, 336 (2013); Lincoln
Pharmacy of Milford, Inc. v. Commissioner of the Div. of
Unemployment Assistance, 74 Mass. App. Ct. 428, 436 (2009).
Even if we were to consider the collaborative's argument, we are
not persuaded that Mattapoisett is applicable to the present
case. There, the court concluded that "the Legislature did not
intend a part-time [police officer] whose hours vary from week
to week to be considered in partial unemployment for any week in
which he does not work as many hours as a full-time employee."
Mattapoisett, supra at 549. Here, Hennis is a full-time bus
driver whose eligibility for benefits during the Thanksgiving
holiday is governed by a statutory provision applying to
employees of educational institutions. Construing the pertinent
provisions of G. L. c. 151A, as a harmonious whole, see
Commissioners of the Bristol County Mosquito Control Dist. v.
State Reclamation & Mosquito Control Bd., 466 Mass. 523, 529
(2013), we are not of the view that, were Mattapoisett
applicable to the facts of this case, it should be read to
override either the explicit statutory scheme governing holiday
pay for employees of educational institutions, or the Federal
mandate with which this statutory scheme complies.
15
while we recognize that it may appear to be counterintuitive
that Hennis should receive unemployment benefits here,
notwithstanding that, under the terms of her employment, it was
agreed she would not receive holiday pay for time off when
school was not in session, we conclude that, applying the
statutory scheme to the circumstances presented here, Hennis is
entitled to partial unemployment compensation benefits for the
days she was out of work during the week ending Saturday,
November 24, 2012, which included the Thanksgiving recess.
5. Conclusion. The judgment of the District Court is
reversed, and a new judgment shall enter affirming the decision
of the board.
So ordered.