In Re Interrogatories by
the Industrial Commission of
the State
of Colorado (Ex-officio Unemployment
Compensation Commission of
Colorado)
No. 72-062
30 Colo. App. 599, 496
P.2d 1064
Colorado
Court of Appeals,
Div. I.
May 2, 1972.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert
L. Harris, Assistant, for The Industrial Commission of the State of
Colorado (Ex-officio Unemployment Compensation Commission of
Colorado).
DWYER, Judge.
Pursuant to 1969 Perm. Supp., C.R.S. 1963, 82-5-11, The
Industrial Commission of the State of Colorado (Ex-Officio
Unemployment Compensation Commission of Colorado) has certified to
this court two questions of law involved in a decision it entered in
an unemployment compensation case.
The Commission has also certified to this court the record of the
proceedings in which the decision was entered. Claimant was employed
as a cook at a private school. The school term was nine months, and
on June 11, 1971, the school closed for the summer. Claimant then
filed her claim for unemployment compensation, and it was initially
allowed by a deputy of the Division of Employment. This award was
affirmed by a referee who found that claimant "was laid off for lack
of work" and that she was entitled to a full award of benefits under
C.R.S. 1963, 82-4-8(4) (b), during the period of her unemployment,
which terminated July 5, 1971, when she found another job.
On appeal, the Commission found that claimant "accepted the job
with this employer with the agreement and understanding that the job
was for a fixed term of approximately nine months. When the
nine-month period ended, the claimant had no job with the employer."
On the basis of this finding, the Commission ordered that "no award
of benefits" be granted claimant. Claimant did not appeal. The
Commission, however, has asked this court to rule on two questions
of importance which were involved in its decision.
First Interrogatory:
"Is a claimant for unemployment
compensation benefits entitled to such benefits when she
accepts a job with the agreement and understanding that it
was for a fixed term, when, at the end of such term, the
claimant becomes unemployed in accordance with such
understanding and agreement?
Answer: Yes. Assuming that the claimant meets all other
requirements for benefits under the Act, 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.
Second Interrogatory:
"In the instant case, claimant was
advised there was to be no work during the school summer
vacation, but there would be renewed work in the fall. In
prior years, she had not applied for benefits, and this year
did find new work within twenty day, (sic) after becoming
unemployed. Is she entitled to benefits, subject to other
eligibility, for the twenty days?"
Answer: Yes.
There are many industries in which it is customary to operate
only during a regularly recurring period or periods of less than one
year in length. Workers employed in such industries are entitled to
benefits under the Unemployment Compensation Act unless their right
to such benefits is limited by express provisions in the Act. Thus,
it was held in the case of In Re Leshner, 268 App. Div. 582,
52 N.Y.S.2d 587, that the manager of a summer resort hotel was not
barred from unemployment insurance benefits by the fact that he was
a seasonal worker in an occupation of a seasonal nature. In
Studley v. Board of Review of Department of Employment Security,
88 R.I. 298, 147 A.2d 912, it was held that a school lunch worker,
whose term of employment commenced with the opening of school in
September and ended with the closing of school in June, was entitled
to employment security benefits if she was otherwise qualified under
the Act.
The Colorado Employment Security Act limits the benefits
available to workers employed in a "seasonal industry." 1969 Perm.
Supp., C.R.S. 1963, 82-4-6(1) (a), provides:
"As used in this chapter, 'seasonal
industry' means an industry or establishment or occupation
within an industry in which, because of climatic conditions
or the seasonal nature of the employment, it is customary to
operate only during a regularly recurring period or periods
of less than twenty-five weeks in a calendar year, but any
employee of a religious, scientific, educational, or
cultural organization, no part of the net earnings of
which inures to the benefit of any private shareholder or
individual, and whose principal function is performed
for an aggregate period of less than thirty-six weeks in any
calendar year, is a 'seasonal worker' within the meaning of
this chapter. . . ." (Emphasis added.)
Neither the facts in the question certified to us nor the facts
in the record place claimant within the statutory definition of
"seasonal worker."
Claimant's right to benefits under the Act cannot be denied on
the basis of any agreement she entered into in connection with her
employment. C.R.S. 1963, 82-10-1, provides that: "Any agreement by
an individual to waive, release, or commute his rights to benefits
or any other rights under this chapter shall be void."
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