Berland v. Employment Sec. Dept.

• Decision Date: 12 September 1988
• Docket Number: No. 16665-4-I,16665-4-I
• Citation: 760 P.2d 959,52 Wn.App. 401
• Court: Washington Court of Appeals
• Parties: , 49 Ed. Law Rep. 398 Sidney BERLAND, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT, Respondent.

Page 401

52 Wn.App. 401

760 P.2d 959, 49 Ed. Law Rep. 398

Sidney BERLAND, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT, Respondent.

No. 16665-4-I.

Court of Appeals of Washington Division 1.

Sept. 12, 1988.

Sidney Berland, Seattle, pro se.

Shirley Wilson, Asst. Atty. Gen., Olympia, for Employment Sec. Dept. of State.

ANDERSEN, Judge Pro Tem. ^*

FACTS OF CASE

At issue in this case is whether RCW 50.44.050, the statute declaring substitute teachers with assurance of re-employment ineligible for unemployment compensation benefits during holiday periods, is unconstitutional. This issue arises in the context of a substitute teacher who collected $138 in unemployment compensation benefits for a Christmas vacation period contrary to law. He was ordered to repay it and appeals.

Sidney Berland, the plaintiff herein, was employed as a substitute teacher in the Seattle public schools during the 1981-82 academic year. In June 1982 the Seattle School District sent plaintiff an application to continue as a substitute teacher during the 1982-83 academic year. Plaintiff signed and returned the application, and was in fact employed as a substitute teacher during fall 1982.

Notice of the Christmas vacation period of December 17, 1982 to January 3, 1983, was posted on various school bulletin boards. Plaintiff understood that he would remain on the substitute teacher list after the vacation period and was at no time told he would not return to work after the vacation.

Despite this understanding, plaintiff applied for and received unemployment compensation for the weeks ending December 25, 1982 and January 1, 1983, in the amount of $138. Shortly thereafter, the Employment Security Department issued a Determination Notice denying plaintiff's eligibility for unemployment compensation and ordering him to repay the $138. Plaintiff's administrative appeals of that determination, first to the Office of Administrative Hearings and then to the Commissioner of the Employment Security Department, resulted in affirmations of the benefit denial and repayment order.

Plaintiff then appealed to the King County Superior Court, which reviewed the administrative hearings record and in accordance with the law took no further testimony or evidence. The superior court affirmed the Commissioner, and plaintiff timely appealed to this court.

One principal issue is presented.

ISSUE

Does the state statute, RCW 50.44.050, violate the equal protection and due process guaranties of the state or federal constitution?

DECISION

CONCLUSION. We answer the question posed by this issue in the negative. There was a rational basis for the Legislature to declare, as it did, that substitute teachers would be ineligible for unemployment compensation for periods between academic terms if they were reasonably assured of reemployment in the succeeding term. We hold that the state statute so declaring (RCW 50.44.050) is not unconstitutional.

Plaintiff's principal argument is that the Commissioner's decision denying him unemployment compensation during the 1982-83 Christmas vacation was unconstitutional because the statute on which the denial was based, RCW 50.44.050, is unconstitutional. Our review of the constitutionality of that statute is part of the standard of review that we must apply to the Commissioner's decision. The Administrative Procedure Act (RCW 34.04), specifically RCW 34.04.130(6), requires that we determine whether the Commissioner's decision was constitutional, in excess of the agency's authority or jurisdiction, made upon unlawful procedure, affected by other error of law, clearly erroneous, or arbitrary and capricious. ¹

RCW 50.44.050 ² provides that employees of an educational institution may not receive unemployment benefits for the period between academic terms if they are reasonably assured of employment with the institution in the succeeding academic term.

Plaintiff contends that denying substitute teachers unemployment compensation during breaks in the school year violates state and federal equal protection and due process guaranties. Plaintiff does not allege that the Washington State Constitution provides any more protection in this area than the United States Constitution. We thus will analyze his contention under federal constitutional provisions. ³

In Gluck v. Employment Sec. Dep't, 84 Wash.2d 316, 318, 525 P.2d 768 (1974), the Washington State Supreme Court held that the "rational basis" test applies to an equal protection argument involving unemployment compensation:

In analyzing this equal protection issue, we must bear in mind that we are not dealing with a suspect classification such as one based on sex, as was the case of Hanson v. Hutt, 83 Wn.2d 195, 517 P.2d 599 (1973), also involving unemployment compensation. Nor is there a vested right to unemployment compensation. Needham Packing Co. v. Iowa Employment Sec. Comm'n, 255 Iowa 437, 123 N.W.2d 1 (1963).

Under the rational basis test, the challenged classification is given minimal scrutiny. ⁴

The three questions that must be asked under this test are set forth in the recent opinion of Conklin v. Shinpoch, 107 Wash.2d 410, 418, 730 P.2d 643 (1986):

To apply the rational basis test for deciding if there is a denial of equal protection, our court uses a 3-step inquiry. First, does the classification apply alike to all members within the designated class? Second, does some basis in reality exist for reasonably distinguishing between those within and without the designated class? Third, does the challenged classification have any rational relation to the purposes of the challenged statute?

First, all substitute teachers are treated alike under RCW 50.44.050, in that none receive unemployment compensation during a school vacation if they are reasonably assured of employment in the succeeding term. Thus, the first step toward satisfying the rational basis test is met. ⁵

With regard to the second step, plaintiff contends that there is no basis upon which to distinguish substitute teachers from contract teachers. He argues that since contract teachers receive a salary during vacation periods, substitute teachers are entitled to unemployment compensation during those periods. Substitute teachers are paid by the day, whereas contract teachers receive a salary and a panoply of other bargained-for benefits. There is a basis in reality upon which to distinguish one who performs work on a temporary, casual basis from a full-time, permanent, salaried worker. This distinction was highlighted in Jennings v. Department of Empl. Sec., 34 Wash.App. 592, 597, 663 P.2d 849 (1983), which cited a federal memo discussing the "reasonable assurance" requirement as it applies to substitute teachers:

The heart of the problem of "a reasonable assurance" for substitute teachers is the nature of the work. The amount of work available cannot be determined. It is dependent on the number of regular teachers who will be absent during the school year. This is not susceptible to precise prediction.... In our view when an individual applies for and is accepted for work as a substitute teacher, the application and acceptance is made with the full knowledge of the realities of the situation: namely that there is no guarantee of work.

Plaintiff, in effect, is here seeking to escape the realities of his situation as a substitute teacher. He seeks a guaranteed income because he has no guaranteed employment. In any case, plaintiff's comparison of substitute and salaried teachers is irrelevant, since contract teachers, like substitute teachers reasonably assured of employment, cannot receive unemployment compensation during school vacation periods under RCW 50.44.050.

The distinction to be made for equal protection purposes is between substitute teachers who have a reasonable assurance of employment following a school break, thus rendering them ineligible for unemployment compensation, and those who have no such assurance, thus making them eligible for unemployment benefits. There is a valid basis for such a distinction, which, as the following discussion demonstrates, is related to the purposes of the statute in question, RCW 50.44.050.

The purpose of RCW 50.44.050 is to bring Washington into compliance with federal law, specifically 26 U.S.C. § 3304, in order to obtain federal funds for unemployment compensation. ⁶ Those federal funds are intended to provide benefits for workers during aggravated periods of unemployment. ⁷ As a federal court has observed in this connection:

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.

Chicago Teachers Union, Local 1 v. Johnson, 421 F.Supp. 1261, 1264 (N.D.Ill.1976), rev'd on other grounds, 639 F.2d 353 (1980).

Like Washington, the State of Michigan excludes school employees from receiving unemployment compensation during school vacations if they are reasonably assured of employment in the subsequent term. ⁸ The Michigan Court of Appeals recently elaborated on the reasoning in the Chicago Teachers case in explaining the school employees exclusion:

School employees ... are not entitled to unemployment benefits for those periods when they traditionally do not work.... This Court has suggested that the Legislature's exclusion resulted in part because of an opinion that school employees "know of the seasonal layoff well in advance (and may consider it an employment benefit) and are not faced with the same 'economic crunch' as those who are unpredictably laid off during the year."

Rogel v. Taylor Sch. Dist., 152 Mich.App. 418, 424, 394 N.W.2d 32 (1986), citing Michigan State Employees Ass'n v. Michigan Empl. Sec. Comm'n, 94 Mich.App. 677, 692-93, 290 N.W.2d 729, appeal denied, 408 Mich. 952 (1980).

While it is true that substitute...