Mary H. Herrera
v.
Industrial Commission for
the State of Colorado (ex-officio
Unemployment Compensation Commission of Colorado)
and the Denver Public School
Administration
No. 28155
197 Colo. 23; 593 P.2d
329
Supreme
Court of Colorado
En Banc.
January 22, 1979
Frederick P. Charleston, for petitioner.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy,
Edward G. Donovan, Solicitor General, Ann Sayvetz, Assistant, for
respondents.
KELLEY, Justice.
Petitioner Mary H. Herrera appeals from an order of the
Industrial Commission denying her claim for unemployment
compensation benefits. We affirm.
Mary Herrera has been employed as a food service worker by the
Denver Public Schools (DPS). In 1976, she was laid off during the
summer vacation and applied for and received unemployment
compensation benefits. She returned to work for DPS in the fall and
was again laid off during the summer of 1977. She again applied for
unemployment benefits for the time she expected to be out of work.
However, an amendment in the federal law under which she applied
became effective October 20, 1976. The benefits were denied. Herrera
requested a hearing. After listening to her testimony, the referee
determined that Herrera was, due to the amendment, excluded from
coverage and not entitled to compensation. The Industrial Commission
affirmed the referee's decision.
I.
The referee based his decision on the 1976 amendment to the
Emergency Jobs and Unemployment Assistance Act of 1974, P.L. 93-567,
88 Stat. 1845 (hereafter "the Act").1 The
amendment, P.L. 94-566, 90 Stat. 2691, declares nonprofessional
school employees ineligible for Special Unemployment Assistance
(SUA) benefits between school terms when "reasonable assurances" are
given that they will be rehired when the next school term begins.2
The referee specifically found that Herrera intended to return to
work and that she had not been given any notification by her
employer that she would not be rehired in the fall. He concluded she
had a "reasonable assurance" that she would be called back to work
in the fall.
Herrera asserts she did not receive the necessary assurance. Her
employer never appeared at the hearing, and the only evidence in the
record of intent to rehire consisted of a signed form from Herrera's
employer, stating an intent to rehire her "depending on continued
need." Herrera states this is insufficient. We disagree.
The legislative history of the amendment in question reveals that
"reasonable assurance" was intended to mean "a written, verbal, or
implied agreement that the employee will perform services in the
same capacity during the ensuing academic year or term." [1976] U.S.
Code Cong. & Ad. News 6036. Inasmuch as Herrera was a non-tenured
employee, she could only expect to work for DPS during the fall term
if the schools had "continuing need" for her services. The
affirmative answer to the query, "Do you intend to reemploy
[Herrera]?," combined with Herrera's expressed intent to work for
DPS, clearly implied an agreement between employer and employee for
the employee's continued performance as a food services worker.
At the hearing, Herrera stated DPS would inform her by letter,
late in the summer, if they wished her to return. Should Herrera
have become unemployed in fact, she would have then become eligible
for benefits from the time her unemployment actually began.3
Until the time unemployment became a certainty, however, Herrera's
statement and the employer's expressed intent to rehire her
constituted a sufficient factual basis for the referee's decision
that she was excluded from SUA coverage.
II.
Herrera also alleges the SUA program is contrary to state
unemployment laws. Her allegation carries no weight in this case.
The state and federal programs are complementary, designed to cover
different situations.4 The claimant filed for
benefits under federal law because she was ineligible under the
Colorado Employment Security Act. See section 8-70-103(11)(f),
C.R.S. 1973, and section 8-70-103(19.5), C.R.S. 1973 (1976 Supp.).
She then asserts the administration of the SUA program
unconstitutionally distinguishes nonprofessional school employees
from other classes of seasonally employed persons. She fails to
demonstrate that the class to which she belongs (nonprofessional
school employees) is protected, or that the Act impinges on a
fundamental interest. Thus, our inquiry is confined to determining
whether the Act as amended and applied has a rational relation to a
legitimate governmental interest. See Ohio Bureau of Employment
Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513
(1977); Hyde v. Industrial Commission, 195 Colo. 67, 576 P.2d
541 (1978). We hold that the rational relation exists, and thus find
no violation of the petitioner's rights.
The purpose of the SUA program is to provide benefits for workers
during aggravated periods of unemployment. The Act, § 201. The
declaration of legislative intent was examined and amplified by
Judge Flaum in Chicago Teachers U., Local No. 1, AFT/AFL/CIO v.
Johnson, 421 F. Supp. 1261 (N.D. Ill. 1976):
"The very nature of the compensation scheme, its extended
duration and integral relation to prevailing economic factors,
anticipates sustaining an unemployed worker during the search for
re-employment in a locale marked by chronic unemployment and a
depressed job market."
Since available legislative history supports this interpretation,
we accept and adopt Judge Flaum's statement for purposes of this
opinion.
The court in Chicago Teachers, supra, interpreted a 1975
amendment to the Act which provides that persons performing services
for educational institutions in "instructional, research, or
principal administrative capacity" should not receive unemployment
benefits during the gap between school terms.5
The court interpreted the legislative history of the amendment to
reflect "an underlying assumption that teachers with contracts for
the term prior to the summer hiatus and for the term following it
are not in fact unemployed." We agree, and find that this reasoning
was extended by the 1976 amendment to include nonprofessional school
employees.6
Thus, the function of the 1976 amendment in question was not to
unreasonably distinguish school employees from other seasonally
employed workers, but to combine them with another class of
employees to whom they are most similarly situated: professional
school employees who can reasonably expect to be rehired at the
onset of the next school term. As long as Herrera could reasonably
expect to be rehired in the fall, she did not belong to that class
of persons whom the Act was designed to assist. See Williamson v.
Mississippi Employment Security Commission, Miss., 347 So.2d 978
(1977). Since the distinction drawn by the amendment effectuates the
purpose of the Act, it serves a legitimate governmental purpose.
Herrera does not allege that she was seeking reemployment or that
she anticipated termination in the fall. Her allegations of
unfairness are based on her expectation of receiving unemployment
compensation during the summer of 1977, as she had in 1976. She
alleges her "justified" expectation of benefits which never
materialized created a period of "aggravated" unemployment for her.
We find no support for her underlying premise that she was entitled
to have the status quo remain unchanged because she benefited from
it in the past. Since the 1976 amendment excluded her from
unemployment compensation during the summer layoff, she was not
entitled to benefits.
We find the referee correctly interpreted the Act and the
amendment in question, and find no violation of the petitioner's
constitutional rights. We, therefore, affirm the order of the
Industrial Commission.
Carrigan, J., not participating.
Footnotes
1. The Act and its amendments are set
forth in a series of notes following 26 U.S.C., § 3304. Section
numbers referred to will be those of Title II of the 1974 Act.
2. "SEC. 603. DENIAL OF SPECIAL
UNEMPLOYMENT ASSISTANCE TO NONPROFESSIONAL EMPLOYEES OF EDUCATIONAL
INSTITUTIONS DURING PERIODS BETWEEN ACADEMIC TERMS.
"(a) Section 203 of the Emergency Jobs and
Unemployment Assistance Act of 1974 is amended by adding at the
end thereof the following new subsection:
'(c) An individual who performs services for
an educational institution or agency in a capacity (other than
an instructional, research, or principal administrative
capacity) shall not be eligible to receive a payment of
assistance or a waiting period credit with respect to any week
commencing during a period between two successive academic years
or terms if --
'(1) such individual performed such services
for any educational institution or agency in the first of such
academic years or terms; and
'(2) there is a reasonable assurance that
such individual will perform services for any educational
institution or agency in any capacity (other than an
instructional, research, or principal administrative capacity)
in the second of such academic years or terms."
3. [1976] U.S. Code Cong. & Ad. News
6036. See Unemployment Insurance Program Letter No. 21-77, page 5
(February 28, 1977).
4. Thus, § 207 of the Act provides that
the terms and conditions of state unemployment compensation law
apply to claims under the Act except when they are inconsistent with
the SUA provisions.
5. Now § 203(b) of the Act, the 1975
amendment is substantially similar to the 1976 amendment with which
we are concerned. Only the class of excluded employees is different.
6. See Harvey v. Director of Dept. of
Emp. Sec., R.I., 385 A.2d 1057 (1978), for further explication:
"[T]he legislative history [of the 1975 amendment] suggests that
Congress was attempting to provide for similar treatment for all
educational workers who are, in the language of the theater, 'in
between engagements.'"
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