London v. Board of Review of Dept. of Employment Sec.

Decision Date16 May 1978
Docket NumberNo. 13984,13984
Citation244 S.E.2d 331,161 W.Va. 575
CourtWest Virginia Supreme Court
PartiesAlberta LONDON et al. v. BOARD of REVIEW OF the W. Va. DEPT. OF EMPLOYMENT SECURITY et al.

Syllabus by the Court

W.Va.Code, 21A-6-1(3) requires only that a claimant for unemployment compensation register with the state employment office to establish prima facie proof that he or she is available for work.

Charles R. Garten, Jr., Charleston, for appellants.

Jack O. Friedman, Charleston, for appellees.


Appellants are 86 employees of a Headstart (pre-school education) program operated by the non-profit, federally funded Council of the Southern Mountains, Inc. They are teachers, classroom aides, social workers, drivers and cooks, and have no employment tenure or continuing contracts. The Council terminates its Headstart employees at the end of each school year and then re-hires them the next fall if funds are available.

Appellants' employment ended in June, 1975 and they applied for unemployment benefits. They were denied compensation by a ruling that found them " . . . ineligible indefinitely in that they were not available for full-time work for which fitted by prior training or experience, as provided in Chapter 21A-6-1, subsection 3 of the W.Va. Unemployment Compensation Law." The basis for this ruling was evidence that appellants had not been job-hunting except by registering at the employment office. 1

This decision was affirmed by the Unemployment Compensation Board of Review and Circuit Court of Kanawha County, from which appeal was taken here.

The legislative intent in enacting the Unemployment Compensation Law is expressed in Article 1, Section 1, as follows:

The purpose of this chapter is to provide reasonable and effective means for the promotion of social and economic security by reducing as far as practicable the hazards of unemployment. In the furtherance of this objective, the legislature establishes a compulsory system of unemployment reserves in order to

(1) Provide a measure of security to the families of unemployed persons.

(2) Guard against the menace to health, morals, and welfare arising from unemployment.

(3) Maintain as great purchasing power as possible, with a view to sustaining the economic system during periods of economic depression.

(4) Stimulate stability of employment as a requisite of social and economic security.

(5) Allay and prevent the debilitating consequences of poor relief assistance.

The Act should be liberally construed in order to effectuate its purpose of conserving the public good and preserving the general welfare. Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954).

The liability to pay and the right to receive unemployment compensation benefits rests upon the Unemployment Compensation Act. And such Act, being remedial in nature, its beneficent provisions should be liberally applied. Bennett v. Hix, 139 W.Va. 75 at 83, 79 S.E.2d 114 at 118 (1953).

Accord: Bowen v. Review Board of Indiana Employment Security Division, Ind.App., 362 N.E.2d 1178 (1977); Michigan Employment Security Comm. v. Wayne State University, 66 Mich.App. 26, 238 N.W.2d 191 (1975); Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976); Gesualdi v. Board of Review of Dept. of Employment Security, R.I., 374 A.2d 102 (1977); Daily Herald Co. v. Employment Security Dept., 17 Wash.App. 865, 566 P.2d 929 (1977).

The statutory conditions for eligibility are found in W.Va.Code, 21A-6-1.

An unemployed individual shall be eligible to receive benefits only if the commissioner finds that:

(1) He has registered for work at and thereafter continues to report at an unemployment office in accordance with the regulations of the commissioner.

(2) He has made a claim for benefits in accordance with the provisions of article seven ( § 21A-7-1 et seq.) of this chapter.

(3) He is able to work and is available for full-time work for which he is fitted by prior training or experience.

(4) He has been totally unemployed during his benefit year for a waiting period of one week prior to the week for which he claims benefits for total unemployment.

(5) He has within his base period earned wages for employment equal to not less than seven hundred dollars.

"Regulations of the Commissioner", section 13.03, states that an individual's claim for benefits shall be on a form that " . . . includes, but is not limited to, the following eligibility provisions, determining that the individual:

(A) Has registered for work and claims benefits.

(B) Was unemployed, able and available for fulltime work and was seeking work.

(C) Has refused no suitable job offered him and did not fail to apply for any suitable job to which he was referred by a public employment office.

(D) Has reported all work performed and wages earned. . . . " (Emphasis added.)

A booklet issued by the department, entitled "Unemployment Compensation for West Virginians" and sub-titled, "An Explanation of Your Rights and Duties under the West Virginia Unemployment Compensation Law" (July, 1976), describes causes of ineligibility:

You are ineligible to receive benefits under the following conditions:

(1) If you are not registered at an employment office (unless you are partially unemployed).

(2) If you fail to report to an Employment Security office in accordance with regulations.

(3) If you are not able to work.

(4) If you are not available for full-time work for which you are fitted by prior training or experience.

Availability. You are not considered available for work:

1. If you reside in or move to a community where there is normally no employment for which you are fitted or if you do not have means of transportation to employment.

2. If you are unable or unwilling to accept suitable work in one or more types of jobs found in your community.

3. If after a long period of unemployment you are unwilling to accept a job in a type of work other than that for which you may have a preference.

4. If you have failed to look for employment on your own behalf.

5. If you have failed several times to accept suitable work to which you have been referred by the employment office.

So by regulation, the West Virginia Employment Security Department has required that applicants for benefits be actively job-hunting in order to be "available for work", a necessary prerequisite in turn, to eligibility for benefits.

Other states have adopted the active work-seeking requirement by statute; 2 and still others, by judicial decision. 3

The courts that have found personal work-seeking to be a necessary ingredient of availability, generally have reasoned that availability for work means that a claimant is genuinely attached to the labor market; that an objective proof (beyond an unemployed person's signed application for benefits) of the genuineness of an unemployed person's attachment to the labor market is required of claimants; and that such proof is only supplied by his or her search for other work. Without expressly stating so, these courts imply that the statement signed by the claimant attesting to his or her availability for work, is not trustworthy.

So eminent an authority as the Michigan Court, in Dwyer v. Appeal Board, 321 Mich. 178, 32 N.W.2d 434, 438 (1948), wrote:

"The basic purpose of the requirement that a claimant must be available for work to be eligible for benefits is to provide a test by which it can be determined whether or not the claimant is actually and currently attached to the labor market. To be available for work within the meaning of the act, the claimant must be genuinely attached to the labor market, i. e., he must be desirous to obtain employment, and must be willing and ready to work. * * *

"The test suggested is subjective in nature. Whether or not a claimant is in fact available for work depends to a great extent upon his mental attitude, i. e., whether he wants to go to work or is content to remain idle. Indicative of such mental attitude is evidence as to efforts which the person has made in his own behalf to obtain work. A person who is genuinely attached to the labor market and desires employment will make a reasonable attempt to find work, and will not wait for a job to seek him out. * * * "

Dwyer is often referred to approvingly by courts in other jurisdictions. See, Texas Employment Commission v. Holberg, supra, in which the quotation above was used to support a requirement that an unemployed Texan must personally make a reasonably diligent search for work. Also see, McCormick v. Henry Koerber, Inc., Fla.App., 252 So.2d 599 (1971); Florida Industrial Comm. v. Ciarlante, Fla., 84 So.2d 1 (1955); Claim of Sapp, 75 Idaho 65, 266 P.2d 1027 (1954); Stricklin v. Annunzio, 413 Ill. 324, 109 N.E.2d 183 (1952); Mohler v. Department of Labor, 409 Ill. 79, 97 N.E.2d 762 (1951); Kentucky Unemp. Ins. Com'n. v. Henry Fischer Pack. Co., Ky., 259 S.W.2d 436 (1953); Bingham v. American Screw Products Co., 398 Mich. 546, 248 N.W.2d 537 (1976); Capra v. Carpenter Paper Company, 258 Minn. 456, 104 N.W.2d 532 (1960); Mills v. Mississippi Employment Security Commission, 228 Miss. 789, 89 So.2d 727 (1956); Worsnop v. Bd. of Rev., Div. of Emp. Sec., 92 N.J.Super. 260, 223 A.2d 38 (1966); In re Thomas, 13 N.C.App. 513, 186 S.E.2d 623 (1972) (opinion of Judge Graham, concurring in part and dissenting in part); Hyman v. South Carolina Employment Security Commission, 234 S.C. 369, 108 S.E.2d 554 (1959); Redd v. Texas Employment Commission, Tex.Civ.App., 431 S.W.2d 16 (1968).

But there are many problems of fair and equal treatment of unemployed persons that arise from a blanket requirement that all who seek the benefits of the act must be personally job-hunting.

Those of our unemployed who reside in industrial areas may have dozens of businesses to call upon each day; and those who live in less developed areas, none. A strict rule requiring personal job-seeking, therefore, can not be applied...

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