The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
May 13, 2015
No. 14-0315 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LARRY MYERS,
Petitioner Below, Petitioner
v.
OUTDOOR EXPRESS, INC., and
WORKFORCE WEST VIRGINIA,
Respondents Below, Respondents
Appeal from the Circuit Court of Kanawha County
The Honorable Paul Zakaib, Jr., Judge
Civil Action No. 13-AA-71
AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED
Submitted: April 22, 2015
Filed: May 13, 2015
Steven Brett Offutt, Esq. Mary Blaine McLaughlin, Esq.
Law Office of Brett Offutt WorkForce West Virginia / Legal Section
Harpers Ferry, West Virginia Charleston, West Virginia
Counsel for the Petitioner Counsel for Respondent
WorkForce West Virginia
Brian M. Peterson, Esq.
Bowles Rice LLP
Martinsburg, West Virginia
Counsel for Respondent
Outdoor Express, Inc.
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The findings of fact of the Board of Review of the West Virginia Department of
Employment Security are entitled to substantial deference unless a reviewing court believes
the findings are clearly wrong. If the question on review is one purely of law, no deference
is given and the standard of judicial review by the court is de novo.” Syl. pt. 3, Adkins v.
Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994).
2. This State’s statutory eligibility and disqualification provisions concerning the
receipt of unemployment compensation benefits constitute a two-step process. The first step
requires determining whether the claimant is eligible to receive benefits. The second step
requires determining whether the claimant is disqualified from receiving benefits.
3. “‘Generally the words of a statute are to be given their ordinary and familiar
significance and meaning, and regard is to be had for their general and proper use.’ Syl. pt.
4, State v. General Daniel Morgan Post No. 548, VFW, 144 W.Va. 137, 107 S.E.2d 353
(1959).” Syl. pt. 3, State ex rel. Smith v. W.Va. Crime Victims Compensation Fund, 232
W.Va. 728, 753 S.E.2d 886 (2013).
Justice Ketchum:
The petitioner, Larry Myers (“Myers”), appeals from the February 25, 2014, order of
the Circuit Court of Kanawha County affirming the administrative decision of the
respondent, Workforce West Virginia (“Workforce”), that Myers was ineligible to receive
unemployment compensation benefits for various periods between November 29, 2008, and
March 17, 2012.1 The circuit court directed that Myers pay back $39,713.00 in benefits he
received from Workforce for those periods.
Upon review, this Court affirms the conclusion that Myers was ineligible to receive
unemployment compensation benefits. Myers was ineligible for benefits because he was
neither totally nor partially unemployed during the periods in question. However, we further
conclude that the $39,713.00 was improperly calculated, as Myers contends, based on the
statute of limitations pertaining to the overpayments in this case. Consequently, this Court
reverses that aspect of the case and remands this matter to the circuit court for a
determination of the amount of Myers’s repayment, consistent with this Opinion.
1
Workforce, which includes the Division of Unemployment Compensation, is part
of the West Virginia Department of Commerce. See W.Va. Code, 5F-2-1(b)(7) [2011].
1
I.
Factual Background
Outdoor Express, Inc. (“Outdoor Express”), a recreational vehicle dealership, sold and
provided service for travel trailers and truck campers. Myers, a sales associate, worked at
Outdoor Express’s location in Falling Waters, West Virginia. Sales of such vehicles
normally occurred on a seasonal basis, with higher sales in the summer and warmer months
and significantly fewer sales during the winter and colder months.
Myers was paid bi-weekly on a commission basis (3% to 4% of the sales price), but
only when his sales were finalized by Outdoor Express during the preceding two-week
period. Myers received no pay if no sales were finalized during such period. Due to the
seasonal nature of the business and downturns in the economy, sales associates like Myers
would occasionally go for weeks without a sale and, thus, without income.
With advice from the local unemployment office in Martinsburg, West Virginia,
which was subsequently questioned by Workforce, Outdoor Express issued Low Earnings
Reports (“LERs”) to Myers for periods when Myers did not receive commission checks for
sales of recreational vehicles.2 Myers filed claims for, and received, unemployment
2
Pursuant to this State’s unemployment compensation regulations, W.Va. C.S.R.,
21A-2-11.01 (1991), Employer’s Report of Low Earnings:
In any week in which an employee is partially unemployed, each
2
compensation benefits for those periods. He did not file claims for periods when he received
commission checks.
This case specifically involves twenty-two separate claims for unemployment
compensation benefits filed by Myers, and benefits paid, over the period November 29, 2008,
to March 17, 2012.3
II.
Procedural Background
A. The Administrative Proceedings
On November 13, 2012, and November 16, 2012, the deputy commissioner issued
decisions on each of the twenty-two claims. In each claim, the deputy found that Myers was
neither totally nor partially unemployed during the periods in question and was, therefore,
ineligible for unemployment compensation benefits. The deputy determined that
overpayments of benefits had been made in the claims and that the benefits were to be repaid
by Myers.
employing unit is required to deliver to such employee on or before the
payday for the week in which the low earnings occurred . . . a report of
low earnings on a prescribed form furnished by the West Virginia Division
of Employment Security.
3
According to Myers, for periods in which he did not receive a commission
check, he filed claims and was paid unemployment compensation benefits between
$339.00 and $424.00 per week.
3
Myers appealed the deputy’s decisions, and a hearing was conducted before the
administrative law judge. On February 28, 2013, the administrative law judge affirmed the
decisions of the deputy in the twenty-two claims on the basis that Myers was neither totally
nor partially unemployed during the periods in question. Among the administrative law
judge’s findings of fact were the following:
1. The claimant is not entitled to a “draw” upon anticipating
commissions.
2. For all relevant time periods, the employer reported the claimant
worked forty hours per week for the employer, and paid no compensation.
3. The claimant’s sales commissions are and have been adversely
affected by both the seasonal nature of sales, and the recent extended downturn
in the economy.
4. For all relevant time periods for which LERs were issued by the
employer to the claimant, said claimant was performing some services for the
company for which the claimant was eventually compensated by commissions.
5. Between the third quarter of 2009, and the third quarter of 2012, the
claimant was paid approximately $164,000 in commissions by the employer.
6. During said time period, the employer reported all compensation paid
to the claimant on a quarterly basis to the Unemployment Compensation
Office.
7. During said time period, the claimant reported no compensation in
the form of commissions received to Unemployment Compensation on his
continued claim forms.
Affirming Myers’s ineligibility to receive benefits, the administrative law judge
provided the following analysis:
4
Whereas seasonal workers in construction or landscaping would
normally be laid off at the end of the season, or issued LERs when work was
scarce, the commission-based employee in this case, Mr. Myers, being a
recreational vehicle salesman, was handled differently. Apparently with the
misunderstood blessing of the local office, the employer began issuing LERs
to the claimant for any slow time during which the claimant did not “earn”
(actually physically receive) a commission, even though perhaps a day or two
later the claimant would receive a commission check. The employer believed
this was a “program” to help companies and employees through lean sales
periods without the need to be in conformance with the requirements of the
statute regarding total and partial unemployment.
However, one of the striking facts here is that over the relevant time
period (late 2008 to late 2012), the claimant was paid more than $164,000 of
commissions[.] * * * Bottom line, the claimant was not totally or partially
unemployed for any period for which he received Low Earnings Reports by
this employer, and, therefore, is ineligible for such periods. During all relevant
time periods the claimant was performing services for this employer, and,
therefore, does not meet the requirement of being totally or partially
unemployed.
No fraud was intended here, and none is being alleged by the
Department.
The administrative law judge’s findings and conclusions concerning the twenty-two
claims were summarily affirmed by the Board of Review on May 15, 2013. Myers appealed
the Board’s decision to the circuit court.
B. The Circuit Court Appeal
On February 25, 2014, the circuit court entered an order affirming the decision of the
Board of Review. The circuit court concluded that Myers was neither totally nor partially
5
unemployed during the periods in question. Focusing on the issue of partial unemployment,
the circuit court stated:
[Myers’s] case was discovered in a cross-match audit comparing the
inconsistencies between what the employer reported as the compensation
received by [Myers] as well as the fact that [Myers] worked forty (40) hours
a week, and the failure of [Myers] to report any compensation on his claim
form. * * *
[Myers] is ineligible for unemployment compensation benefits due to
the fact that he worked forty (40) hours a week, and, therefore, [was] not
partially unemployed.
The circuit court determined that the overpayments of benefits to be repaid by Myers
totaled $39,713.00. Myers’s appeal to this Court followed.
III.
Standards of Review
This Court’s standards of review for unemployment compensation cases are
axiomatic. Syllabus point 3 of Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994),
states:
The findings of fact of the Board of Review of the West Virginia
Department of Employment Security are entitled to substantial deference
unless a reviewing court believes the findings are clearly wrong. If the
question on review is one purely of law, no deference is given and the standard
of judicial review by the court is de novo.
6
Accord syl. pt. 1, Childress v. Muzzle, 222 W.Va. 129, 663 S.E.2d 583 (2008); syl. pt. 1,
Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981). See W.Va. Code, 21A-7-21
[1943] (The Board’s findings of fact “shall have like weight to that accorded to the findings
of fact of a trial chancellor or judge in equity procedure.”).
Moreover, we note that this State’s statutory eligibility and disqualification provisions
concerning the receipt of unemployment compensation benefits constitute a two-step process.
The first step requires determining whether the claimant is eligible to receive benefits. The
second step requires determining whether the claimant is disqualified from receiving
benefits. Univ. of W.Va. Bd. of Trustees v. Aglinsky, 206 W.Va. 180, 182, 522 S.E.2d 909,
911 (1999); Private Indus. Council of Kanawha Co. v. Gatson, 199 W.Va. 204, 207, 483
S.E.2d 550, 553 (1997).
In this case, no disqualification issues have been raised. Consequently, our review
concerns Myers’s eligibility for unemployment compensation benefits and the question of
overpayments.
IV.
Discussion
Eligibility for unemployment compensation in West Virginia is largely statutory.
Under W.Va. Code, 21A-6-1(4) [2009], a claimant shall be eligible to receive benefits only
7
if he or she “has been totally or partially unemployed during his or her benefit year for a
waiting period of one week prior to the week for which he or she claims benefits for total or
partial unemployment.” Total and partial unemployment are defined in W.Va. Code, 21A
1A-27 [1996], as follows:
(1) An individual is totally unemployed in any week in which such
individual is separated from employment for an employing unit and during
which he or she performs no services and with respect to which no wages are
payable to him or her.
(2) An individual who has not been separated from employment is
partially unemployed in any week in which due to lack of full-time work
wages payable to him or her are less than his or her weekly benefit amount
plus sixty dollars: Provided, That said individual must have earnings of at least
sixty-one dollars.
The definition of total and partial unemployment, thus expressed, is further refined
in W.Va. Code, 21A-1A-24 [1996], which states that “separated from employment” means
“the total severance, whether by quitting, discharge or otherwise, of the employer-employee
relationship,” and in W.Va. Code, 21A-1A-28(a) [2009], which states that “wages” means
all remuneration for personal service, “including commissions.” (Emphasis added) Finally,
under W.Va. Code, 21A-1A-30 [1996], the phrase “weekly benefit rate” is defined as “the
maximum amount of benefit an eligible individual will receive for one week of total
unemployment.”4
4
An additional statute, W.Va. Code, 21A-1A-16(1) [1997], states that
“employment” means service “performed for wages or under any contract of hire, written
8
In this case, it is undisputed that Myers did not qualify for unemployment
compensation benefits under the total unemployment portion of W.Va. Code, 21A-1A-27
[1996]. He was never separated from his employment with Outdoor Express by quitting,
discharge or otherwise, between November 2008 and March 2012. As the administrative law
judge found, for the periods for which LERs were issued, Myers was performing some
services for the company. As Myers states, he was “meeting his obligation to do whatever
was reasonable and necessary to remain employed.” Therefore, the issue is whether Myers
was eligible to receive benefits under the partial unemployment portion of W.Va. Code, 21A
1A-27 [1996].
While the statutory provisions in this State concerning unemployment compensation
are relatively straightforward, this Court is of the opinion that, from a factual standpoint,
contested claims for benefits must ordinarily be resolved on a case-by-case basis. The
extensive indices in the annotations on the subject attest to that conclusion.5
or oral, express or implied.” In that regard, although Myers was paid on a commission
basis and could not draw upon anticipated income from sales, nothing in this case
suggests that he was an independent contractor engaged in his own business enterprise.
As an employee of Outdoor Express, Myers was, therefore, under the protection of this
State’s unemployment compensation laws, but only eligible to receive benefits if he was
totally or partially unemployed. See J. T. W., Annotation, Who is an Independent
Contractor rather than an Employee within Social Security Acts or Unemployment
Compensation Acts, 124 A.L.R. 682 (1940); 76 Am. Jur. 2d Unemployment
Compensation § 49 (2005).
5
See, e. g., J. C. Williams, Annotation, Part-Time or Intermittent Workers as
Covered by or as Eligible for Benefits Under State Unemployment Compensation Act, 95
9
In Tom’s Convenient Food Mart v. W.Va. Human Rights Comm’n., 206 W.Va. 611,
613, 527 S.E.2d 155, 157 (1999), this Court noted that, because river rafting is a seasonal
industry, employees “are eligible for ‘low earnings’ unemployment compensation in the off
season.” That case, however, concerned a claim of age discrimination litigated before the
West Virginia Human Rights Commission, rather than a question of eligibility to receive
unemployment benefits.
With regard to seasonal industries, W.Va. Code, 21A-6-1a [1963], states:
An individual working less than one hundred days during his base
period in an industry recognized as seasonal, such as food processing and
canning, shall not be eligible for benefits unless he has earned wages during
his base period in other covered employment equal to not less than one
hundred dollars.
As stated in State by Davis v. C. H. Musselman Co., 134 W.Va. 209, 217, 59 S.E.2d
472, 476 (1950), that provision was designed to relieve seasonal employers, in such
industries as food processing and canning, from the unfair requirement of being charged with
the payment of benefits on a regular basis, from year to year, as the unemployment of its
seasonal employees ensues.
A.L.R.3d 891 (1979), and L. S. Tellier, Annotation, Salesman on Commission as Within
Unemployment Compensation or Social Security Acts, 29 A.L.R.2d 751 (1953).
10
W.Va. Code, 21A-6-1a [1963], is not dispositive in the present case. Although
Myers’s sales of recreational vehicles were seasonal in the sense that there were fewer sales
during the winter and colder months, his employment relationship with Outdoor Express was
not seasonal within the meaning of the statute. Outdoor Express did not reduce Myers’s
hours during the periods in question, and, during those downtimes, Myers worked
approximately forty hours per week. Moreover, during the downtimes, the possibility of a
sale was always present.
Due to his employment relationship with Outdoor Express, Myers’s assertion of
eligibility for unemployment compensation benefits based on seasonal employment is
without merit. See Homer Laughlin China Co. v. Hix, 128 W.Va. 613, 625, 37 S.E.2d 649,
655-56 (1946) (The primary purpose of unemployment compensation law is to promote
social and economic security and “not to regulate or control the relationship of employer and
employee.”).
With regard to Myers’s wages in the form of commissions, the administrative law
judge found that Myers was paid approximately $164,000 over the years from 2009 to 2012.6
6
During the hearing before the administrative law judge, Outdoor Express’s
representative, Frank Subasic, explained:
Q. But there were times at least during the summer when a
commission - when a specific period was not earned by Mr. Myers that you
11
Myers, however, correlates “services” with wages “payable” and contends that he met the
eligibility requirement for unemployment compensation benefits because, during the periods
for which he filed a claim, he did not sell a recreational vehicle. Myers, therefore, asserts
that, for those periods, he did not perform a service for which wages were payable even
though he was present on the premises of Outdoor Express. Nevertheless, according to the
findings of the administrative law judge, while Outdoor Express reported Myers’s income
to the unemployment office on a quarterly basis, Myers never reported his income on the
unemployment office’s claim forms. Consequently, Workforce is warranted in suggesting
that Myers’s commissions, while paid on occasion, were garnered or “payable” for services
over preceding weeks. According to Workforce, Myers should have reported all income
earned, even if he had not received payment.
We have consistently held that this State’s unemployment compensation statutes
should be liberally construed in favor of the claimant, but not when such a construction
would conflict with plain and unambiguous statutory language. Adkins v. Gatson, supra, 192
W.Va. at 564-65, 453 S.E.2d at 398-99; Davenport v. Gatson, 192 W.Va. 117, 119, 451
were giving him a low earnings report and he was collecting unemployment
benefits and maybe a week later he would get a fairly large commission
after selling a couple of vehicles?
A. That’s possible that happened yes. But I don’t - without referring
to all the documents - that’s possible that could happen, yes.
12
S.E.2d 57, 59 (1994). Moreover, in syllabus point 3 of State ex rel. Smith v. W.Va. Crime
Victims Compensation Fund, 232 W.Va. 728, 753 S.E.2d 886 (2013), we confirmed the
following principle:
“Generally the words of a statute are to be given their ordinary and
familiar significance and meaning, and regard is to be had for their general and
proper use.” Syl. pt. 4, State v. General Daniel Morgan Post No. 548, VFW,
144 W.Va. 137, 107 S.E.2d 353 (1959).
Here, the definitions of total and partial unemployment set forth in W.Va. Code, 21A
1A-27 [1996], refer to whether a claimant for unemployment compensation benefits has
obtained wages “payable” to him or her, rather than whether the claimant has, in fact, been
paid. See Short v. Wells Fargo Bank Minn., 401 F. Supp.2d 549, 563 (S.D. W.Va. 2005)
(associating the term “payable” with “legally enforceable” or “obligation to pay”). See also
Appeal of Stewart (N.H. Dept. of Employment Security), 64 A.3d 989, 993 (N.H. 2013)
(“Paid” means receiving pay or marked by the reception of pay; “payable” means capable of
being paid or requiring to be paid.); General Motors Corp. v. Buckner, 49 S.W.3d 753, 757
(Mo. Ct. App. 2001) (“The term ‘payable,’ as used in the context of wages to determine
eligibility for unemployment compensation benefits, requires some legal obligation on the
part of the employer to compensate employees.”).7
7
We recognize that in W.Va. C.S.R., 21A-2-7.01 (1991), Definitions:
Contributions and wages shall be reported on a wages paid basis.
Wages paid shall be deemed to consist of wages actually or constructively
13
Consequently, because Myers did not report any commissions earned or payable in
conjunction with his claims for benefits for the periods between November 29, 2008, to
March 17, 2012, he was not eligible to receive unemployment compensation benefits.
Finally, Myers contends that the circuit court committed error in directing that he pay
Workforce the entire $39,713.00 in overpayments. Myers states that the amount should be
recalculated based on the two-year statute of limitations set forth in W.Va. Code, 21A-10-21
[1989]. That statute, addressing the recovery of benefits paid through error, provides:
A person who, by reason of error, irrespective of the nature of said
error, has received a sum as a benefit under this chapter, shall either have such
sum deducted from a future benefit payable to him or shall repay to the
commissioner the amount which he has received. Collection shall be made in
the same manner as collection of past due payment. Provided, That such
collection or deduction of benefits shall be barred after the expiration of two
years.
paid. Wages are constructively paid when they are credited to the account
of or set apart for an employee so that they may be drawn upon by him at
any time although not then actually reduced to possession, or whenever they
are due an employee and are not actually paid because of employer’s refusal
or inability to pay.
However, under W.Va. C.S.R., 21A-2-11.01 (1991), Employer’s Report of Low
Earnings, the information required to establish partial unemployment includes “the
earnings during the week.” That regulation is derivative of the definition of “partial
unemployment” set forth in W.Va. Code, 21A-1A-27 [1996], and its statutory
predecessors, which is grounded on wages “payable” to the claimant. See Appeal of
Stewart (N.H. Dept. of Employment Security), supra, 64 A.3d at 993 (“Earn” means to
come to be duly worthy of, or entitled to, as remuneration for work or services.).
14
(Emphasis added)
Workforce asserts, however, that, if any adjustment in the overpayment of benefits is
to be made, the applicable statute is W.Va. Code, 21A-10-8 [1990]. That statute, addressing
transgressions such as misrepresentation or fraud by a claimant, provides a five and a ten-
year statute of limitations.
This case involves neither misrepresentation nor fraud. Outdoor Express issued LERs
to Myers, on the advice of the local unemployment office in Martinsburg for periods when
Myers did not receive commission checks. That advice was subsequently questioned by
Workforce. Although Myers failed to report his income on the claim forms, the principal
error rests with the local office and continued for several years while Myers was receiving
unemployment compensation benefits. As the administrative law judge stated, “It is
incumbent upon the Department to provide more clear and precise instructions to employers
and employees that are affected by seasonal activities and who operate on a commission
basis.” Accordingly, this Court is of the opinion that the applicable statute is W.Va. Code,
21A-10-21 [1989], which sets forth the two-year limit.8
8
See generally J. C. Williams, Annotation, Repayment of Unemployment
Compensation Benefits Erroneously Paid, 90 A.L.R.3d 987 (1979).
15
V.
Conclusion
This Court affirms the circuit court’s conclusion that Myers was ineligible to receive
unemployment compensation benefits. He was neither totally nor partially unemployed
during the periods in question. However, the $39,713.00 overpayment was improperly
calculated and should be recalculated pursuant to W.Va. Code, 21A-10-21 [1989].
Consequently, this Court reverses that aspect of the case and remands this matter to the
circuit court for a determination of the amount of Myers’s repayment, i.e., Workforce is
barred from collecting benefits paid to Myers prior to two years before the dates of the
deputy’s decisions on November 13, 2012, and November 16, 2012.
Affirmed, in part, Reversed, in part, and Remanded.
16