Harding v. Industrial Commission, No. 25970

• Docket Nº: No. 25970
• Citation: 183 Colo. 52, 515 P.2d 95
• Case Date: October 09, 1973
• Court: Supreme Court of Colorado

Page 95

515 P.2d 95 183 Colo. 52 Gary C. HARDING, Petitioner,
v.
The INDUSTRIAL COMMISSION of the State of Colorado et al.,
Respondents. No. 25970. Supreme Court of Colorado, En Banc. Oct. 9, 1973.

[183 Colo. 55]

Page 96

Edward J. Scheunemann, Denver, for petitioner.

John P. Moore, Atty. Gen., John Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondents.

LEE, Justice.

This is an unemployment compensation case in which Gary G. Harding (claimant) was denied unemployment compensation benefits. The appeal concerns the statutory construction and constitutionality of 1969 Perm.Supp., C.R.S.1963, 82--4--8(4)(g) et seq., commonly referred to as the 'better job' provision of the Colorado Employment Security Act. The controversy centers around the definition of the phrase 'better job.'

Claimant asserts the statute was misapplied as to him under the facts hereinafter set forth, or, in the alternative, he [183 Colo. 56] contends that the provision violates Article II, Section 25, of the Colorado Constitution and the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.

We conclude that the provision herein involved was properly applied to disqualify claimant from an award of unemployment compensation, and that as so construed it does not violate the constitutional guarantees of due process and equal protection of the laws.

The record of the hearing before the referee of the division of employment reveals

Page 97

that claimant, a steel worker, was employed at Midwest Steel Company from December 14, 1971, through February 7, 1972, where he averaged twenty-five hours of work per week. He voluntarily terminated his employment with Midwest to accept a better job with Pittsburgh Plate Glass Company, where he was to receive the same pay but would work more hours per week. On February 23, 1972, however, he voluntarily terminated the Pittsburgh job to work with Stearns-Roger, Incorporated, a job which he felt would be of longer duration. The claim for unemployment insurance arose out of a three-week period when Stearns-Roger was shut down during a carpenters strike.

The referee made the following pertinent findings and conclusions:

'He quit Pittsburgh Plate Glass Company after approximately two and a half weeks in order to accept another job which he felt would be of longer duration.

'In view of the reduced hours that the claimant was working at Midwest Steel, it is concluded that he had ample reason to quit this job in order to accept employment which would offer more hours of work each week. However, in view of the fact that he worked only two and a half weeks at his new employment, and in view of the fact that the law specifically provides that the job which the claimant accepts must last at least 90 calendar days, the Referee finds that the statutory requirements providing for an Award of benefits have not been met.

'DECISION: It is determined that the provisions of Section [183 Colo. 57] 82--4--8(6)(b)(vii) are applicable to this case and No Award is granted. The claimant is disqualified from the receipt of benefits for a period of 13 weeks from February 6, 1972, to May 6, 1972, and his maximum benefits payable are reduced by $1,014.00.'

This decision was subsequently affirmed by the Colorado industrial commission. Claimant then commenced this appeal, which, because of the constitutional challenge presented, was transferred from the Court of Appeals to this Court pursuant to C.A.R. 50.

I.

The statutory provisions effective January 1, 1972, relevant to this case provide that a worker who voluntarily separates from a job to accept a better job, as defined by the statute, shall be eligible for a full award of benefits in the event of subsequent unemployment by reason of statutorily defined conditions. The specific provisions, the application and construction of which are here challenged, are Sections 82--4--8(4)(g)(i) and (ii), which provide:

'(i) Accepting a better job. In determining whether or not the job accepted is a better job, the division of employment shall consider, but shall not be limited to a consideration of, the rate of pay, the hours of work, and the probable permanency of the job quit as compared to the job accepted, the cost to the worker in getting to the job quit and to the job accepted, the distance from the worker's place of residence to the job accepted in comparison to the distance from the worker's residence to the job quit, and whether or not such worker acted as a reasonably prudent individual would have acted under the same or similar conditions. In addition to the above stated conditions, no job shall be considered better unless it is offered to and accepted by the worker prior to the date of his quitting and meets the following conditions set forth in subparagraphs (ii) and (iii) of this paragraph:

'(ii) It does not have a definite termination date of less than one year and it lasts at least ninety calendar days from the first date of employment on the job accepted unless sooner [183 Colo. 58] terminated under conditions of which, in the judgment of the division, the worker had no knowledge at the time he accepted the job and over which he had no control, but a job shall not be considered better if it lasts

Page 98

less than ninety days due to a lack of work, the absence of said knowledge and control notwithstanding.' ¹

Section 82--4--8(6)(b)(vii) provides that the worker shall be given no award if he quits to accept other employment which could not be construed as a better job, as defined by the statute.

Claimant challenges the requirement that, in order to qualify as a better job, the new job must last at least ninety days from the first date of employment. No other statutory requirements are in dispute in this case.

Claimant's first argument is that the ninety-day provision only applies when the new and better job lasts less than ninety days 'due to lack of work'; therefore, it cannot disqualify him since he did not terminate with Pittsburgh due to lack of work. The lack-of-work provision is no longer pertinent, having been declared unconstitutional longer pertinent, having been declared unconstitutional supra, and claimant's argument predicated on this provision has no merit.

Next, he contends that the ninety-day provision should be interpreted as applying to the duration of the job rather than the employee's occupancy of the job. The contention ignores the specific language of Section 82--4--8(4)(g) (iv), which provides that the better job 'shall be considered to exist only for so long as the worker is actually in employment.' Adams v. Indust. Comm., 31 Colo.App. 340, 501 P.2d 1334.

Also, claimant argues that the ninety-day provision as applied to him would arbitrarily require the disqualification of other employees who might accept what is clearly a better job but who were subsequently compelled to quit...