The Denver Post, Inc., a Colorado Corporation, Petitioner,
v.
Department of Labor and
Employment, Industrial Commission of
the State of Colorado (Ex-Officio Unemployment Compensation
Commission of
Colorado), and John A. Abell, et al.,
Respondents.
No. C-1738.
199 Colo. 466, 610 P.2d 1075
Supreme Court of Colorado,
En Banc.
May 12, 1980.
Eiberger, Stacy & Smith, Perry L. Goorman, Carl F.
Eiberger, Denver, for petitioner.
J. D. MacFarlane, Atty. Gen., Richard F.
Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., David Aschkinasi, Asst. Atty. Gen., Denver, Human Resources Section, for
respondents.
LEE, Justice.
Certiorari was granted to review the decision of the court of
appeals in Denver Post v. Dep't of Labor, 41 Colo.App. 275, 586 P.2d
1342 (1978), which affirmed the holding of the Industrial Commission
of Colorado (commission) that thirty-seven claimants for
unemployment compensation benefits were unemployed, either partially
or totally, within the meaning of section 8-73-108(1), C.R.S. 1973.
We modify the holding of the court of appeals.
This proceeding involves thirty-seven consolidated claims for
unemployment compensation benefits by "substitute" printers and stereotypers employed by the Post. Although considered employees,
who receive employee benefits of medical and life insurance and
accrued vacation allowances,1 the substitutes work only on a
day-to-day, shift-by-shift basis.
Substitute printers get work in one of two ways:
(1) "office hire" -- the need of the Post for extra printers on a given
shift is filled on the basis of seniority from the substitute
printers on the premises at the beginning of the shift; or (2)
"personal hire" -- a printer who is employed for a particular shift can
directly designate a substitute without regard to that substitute's
seniority.
Substitute stereotypers get work in the following manner: the
Post notifies the stereotypers' union of its need for substitutes;
the union then fills this need first from its regulars and then from
its citywide substitute list on the basis of seniority; and
stereotypers are informed by the union, in advance of the work
shift, that work is available.
I.
The substitutes, who claimed unemployment benefits for the days
when they did not work, assert that they were either partially or
totally unemployed during the periods at issue. The commission and
the court of appeals agreed with their assertion. The Post argues
that the substitutes, because of their unique employment
relationship with the Post, were not unemployed within the meaning
of the Colorado Employment Security Act, section 8-70-101, et seq., C.R.S. 1973 (the act). Since their status as substitutes was
constant throughout the period at issue, the Post asserts that they
were never partially or totally unemployed. We agree with the Post's
assertion that the substitutes were never totally unemployed.
The act specifically defines the terms "partially employed" and
"totally unemployed." A person is "partially employed" whose "wages
payable to him by his regular employer for any week of less than
full-time work are less than the weekly benefit amount he would be
entitled to receive if totally unemployed and eligible . . . ."
Section 8-70-103(18), C.R.S. 1973.
One is "totally unemployed" "who performs no services in any week
with respect to which no wages are payable to him. Should such week
occur within an established payroll period in which the individual
is not totally separated from his regular employer, he shall be
deemed not totally unemployed, but partially unemployed, as defined
in subsection (18) of this section, and subject to the conditions
pertaining to partial unemployment." Section 8-70-103(21), C.R.S.
1973. (Emphasis added.) Subsection (21) contemplates that a
"partially employed" worker need not be "totally separated from his
regular employer."
The court of appeals held that "the question of whether a
claimant is unemployed in any particular week is a purely
mathematical inquiry: If he performs no services and receives no
compensation, then he is totally unemployed . . . ." Denver Post v.
Dep't of Labor, supra. Accord, Trujillo v. Indust. Comm'n,
Colo.App., 594 P.2d 1065 (1979).
Section 8-70-103(21), however, requires a two-step analysis in
determining the employment status of a claimant, rather than the
single question posed by the court of appeals. The
inquiry into whether the claimant performed services and received
compensation in any particular week must be accompanied by a second
inquiry: Was the claimant "totally separated" from his regular
employer during the established payroll period? Even though the
claimant performed no services in a week with respect to which no
wages were payable to him, if he was not totally separated from his
regular employer during the payroll period, then under subsection
(21) he was only partially unemployed and subject to the regulations
governing partial unemployment.
Because the parties agree that the claimants continued to
receive employee benefits during the periods for which they now
claim unemployment compensation, the claimants were never separated
from employment within the meaning of the statute. The Post's
reliance on Mountain States Telephone & Telegraph Co. v. Dep't of Labor, 38 Colo.App.
298, 559 P.2d 252 (1976), is thus irrelevant to the facts of this
case.
The Post also argues, however, that because the substitutes
received employee benefits medical, life, sickness, and accident
insurance, and pension contributions they were not even partially
unemployed but rather were totally employed during the periods at
issue. We do not agree. Employee benefits such as those provided by
the Post are not indicative of an employee's unemployment status
under the act. Receipt of such benefits does not constitute wages
for purposes of the act. See section 8-70-103(22)(a) and (b)(I),
C.R.S. 1973.
II.
We agree with the conclusion of the court of appeals that the
test applied by the Industrial Commission to determine eligibility
for benefits failed to comply with the mandate of section
8-73-107(1)(g), C.R.S. 1973. The commission has an obligation to
determine whether a claimant is "able to work and is available for
all work deemed suitable . . .," as provided in section
8-73-107(1)(c), and whether the claimant was "actively seeking work
. . .," as provided in section 8-73-107(1)(g), C.R.S. 1973. Such a
determination "must be made within the context of the factual
situation presented by each case." Couchman v. Indust. Comm., 33 Colo.App. 116, 515 P.2d 636 (1973). (Emphasis added.)
Accord, Medina
v. Indust. Comm., 38 Colo.App. 256, 554 P.2d 1360 (1973). We agree
with the statement of the court of appeals that
"(t)he Commission
cannot short-circuit this requirement of a case-by-case eligibility
finding by adopting 'standards' or 'guidelines' for particular
groups of cases." Denver Post v. Dep't of Labor, supra. We hold that
the terms "able to work," "available for all work deemed suitable,"
and "actively seeking work" constitute sufficient guidelines to
enable the commission to properly determine the eligibility of one
seeking unemployment compensation.
We find no merit to petitioner's argument relating to alleged
improper ex parte discussions between certain union officers and
members or staff of the commission.
The cause is returned to the court of appeals with directions to
remand to the Industrial Commission to conduct further hearings in
accordance with the views expressed herein.
Rovira, J., does not participate.
Footnotes
1. Employees are entitled to one day of vacation for every
twenty-five days they work during the year. Under the facts here
before us, substitutes apparently did not receive vacation credits
for days when they did not work. See Ind. Comm. v. Sirokman, 134
Colo. 481, 306 P.2d 669 (1957).
Printer-friendly version