Cape Cod Collaborative v. Director of the Department of Unemployment Assistance

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15-P-436 Appeals Court

CAPE COD COLLABORATIVE vs. DIRECTOR OF THE DEPARTMENT OF

UNEMPLOYMENT ASSISTANCE & another.1

No. 15-P-436.

Barnstable. January 7, 2016. - May 4, 2017.

Present: Hanlon, Sullivan, & Maldonado, JJ.

Employment Security, Partial unemployment, Eligibility for

benefits, School bus driver, Judicial review.

Civil action commenced in the Barnstable Division of the

District Court Department on April 29, 2013.

The case was heard by W. James O'Neill, J.

David A. Guberman, Special Assistant Attorney General, for

the defendant.

Kevin F. Bresnahan for the plaintiff.

MALDONADO, J. In this case, we consider whether Stephanie

Hennis, a full-time bus driver for the Cape Cod Collaborative

1

Stephanie Hennis.

2

(collaborative),2 is entitled to partial unemployment

compensation benefits for the three days she did not work and

was not paid during the week ending Saturday, November 24, 2012,

which included the Thanksgiving recess. Because we conclude

that G. L. c. 151A, § 28A(c), does not bar the payment of such

benefits in the circumstances of this case, we reverse the

judgment of the Barnstable Division of the District Court

Department (District Court), which reached a contrary

conclusion.

1. Statutory framework. We begin with a brief overview of

the Unemployment Insurance Law, G. L. c. 151A, so as to put the

underlying facts in context. The fundamental purpose of the

statute is to "afford benefits to [individuals] who are out of

work and unable to secure work through no fault of their own."

Connolly v. Director of the Div. of Unemployment Assistance, 460

Mass. 24, 25 (2011), quoting from LeBeau v. Commissioner of the

Dept. of Employment & Training, 422 Mass. 533, 538 (1996). We

are required to construe G. L. c. 151A "liberally in aid of its

purpose, which purpose is to lighten the burden which now falls

2

The Cape Cod Collaborative is an education collaborative

established by written agreement among the school committees of

nineteen school districts on Cape Cod pursuant to G. L. c. 40,

§ 4E. It provides educational programs and services, including

transportation, to the students of its member school districts.

The parties have assumed that the collaborative falls within

G. L. c. 151A, § 28A(d), thus bringing the case within the

purview of § 28A(a)-(c).

3

on the unemployed worker and [her] family." G. L. c. 151A,

§ 74, as appearing in St. 1990, c. 177, § 340.

With respect to employees of educational organizations,

however, the Legislature has carved out certain exceptions to

the general availability of unemployment compensation benefits.

As pertinent here, G. L. c. 151A, § 28A(c), as appearing in St.

1977, c. 720, § 29, provides that, with respect to services

performed for an educational institution, "benefits shall not be

paid to any individual on the basis of such services for any

week commencing during an established and customary vacation

period or holiday recess if such individual performs such

services in the period immediately before such vacation period

or holiday recess, and there is a reasonable assurance that such

individual will perform such services in the period immediately

following such vacation period or holiday recess" (emphasis

added). A "week" is defined as "seven consecutive days

beginning on Sunday." G. L. c. 151A, § 1(t), as appearing in

St. 1941, c. 685, § 1.

2. Factual and procedural background. The essential facts

of this case are not in dispute. Since April 27, 2009, Hennis

has been employed by the collaborative as a school bus driver,

transporting students to and from their educational programs.

She typically works approximately forty-five hours per week, one

shift in the morning and another shift in the afternoon, from

4

Monday through Friday. Under the terms of Hennis's employment,

she did not receive holiday pay for time off when school was not

in session.3 In 2012, Thanksgiving was on Thursday, November 22.

During that week of Thanksgiving, schools were closed on

Wednesday, Thursday, and Friday. Consequently, Hennis worked

only two days, for approximately fifteen hours. The

collaborative did not pay her for the remaining three days when

schools were closed, even though she was ready and available for

work. Following the Thanksgiving recess, Hennis resumed her

regular schedule as a school bus driver for the collaborative.

Not having been paid for the three days she did not work,

Hennis filed an application for unemployment compensation

benefits for the week ending Saturday, November 24, 2012. The

Department of Unemployment Assistance (department) approved her

claim, stating that Hennis was partially unemployed, see G. L.

c. 151A, § 1(r)(1), and not subject to any statutory

disqualification where the collaborative was unable to provide

her a full-time schedule of work for the week ending November

24, 2012.

The collaborative appealed the determination and requested

a hearing before a review examiner, at which its personnel

3

The record does not include either Hennis's employment

contract or the schedule that was given to employees at the

beginning of the school year setting forth their hours and bus

routes.

5

coordinator asserted that, pursuant to G. L. c. 151A, § 28A,

employees of the collaborative were precluded from collecting

unemployment compensation benefits during school vacations and

any days not included in their contracts. The review examiner

affirmed the department's decision, finding that § 28A(c) did

not preclude Hennis from collecting unemployment compensation

benefits because she had worked Monday and Tuesday during the

week ending November 24, 2012, and § 28A(c) bars claims only

"for any week which begins during a vacation week" (emphasis

supplied). See G. L. c. 151A, § 1(t) (defining "Week" as "seven

consecutive days beginning on Sunday"); G. L. c. 151A, § 28A(c)

("[B]enefits shall not be paid to any individual on the basis of

. . . services for any week commencing during an established and

customary vacation period or holiday recess" [emphasis

supplied]).

Pursuant to G. L. c. 151A, § 1(r)(1), as appearing in St.

1976, c. 473, § 2, "an individual shall be deemed to be in

partial unemployment if in any week of less than full-time

weekly schedule of work [s]he has earned or has received

aggregate remuneration in an amount which is less than the

weekly benefit rate to which [s]he would be entitled if totally

unemployed during said week; provided, however, that certain

earnings as specified in [G. L. c. 151A, § 29(b),] shall be

disregarded." Having determined that Hennis was precluded from

6

receiving total unemployment benefits, the review examiner

considered whether she had experienced a period of partial

unemployment under the statute. Given that Hennis's gross

earnings for this particular week were less than her weekly

benefit rate plus her disregarded earnings, the review examiner

determined that Hennis was partially unemployed during that week

and, therefore, was eligible to receive partial unemployment

compensation benefits pursuant to G. L. c. 151A, § 29(b).4

The collaborative appealed the review examiner's decision

to the department's board of review (board) in accordance with

G. L. c. 151A, § 40. The board denied the application for

further review, thereby rendering the review examiner's decision

the final decision of the board for purposes of judicial review.

See G. L. c. 151A, § 41(c).

The collaborative then filed a complaint for judicial

review in the District Court. Relying on G. L. c. 151A,

§ 28A(c), it alleged that, because Hennis performed services for

the collaborative during the period immediately before the

Thanksgiving recess, and had a reasonable assurance of

performing services for the collaborative immediately following

the Thanksgiving recess, she was not eligible to receive partial

unemployment compensation benefits for the week ending November

4

Hennis's gross earnings for the week ending November 24,

2012, were $293. Her weekly unemployment compensation benefit

rate was $358, with disregarded earnings of $119.

7

24, 2012.5 In the collaborative's view, the board erred when it

determined that G. L. c. 151A, § 28A, was not applicable to the

facts of this case.

Following a hearing, a judge of the District Court reversed

the board's decision. He found that, because the day before and

after Thanksgiving must be considered a customary vacation

period or holiday recess, the language of § 28A(c) precluded

Hennis from receiving unemployment compensation benefits. The

judge stated that it should have been clear to Hennis that she

would not be working over the Thanksgiving recess and,

consequently, would not be getting paid for those days.

Further, he continued, any suggestion that § 28A(c) was not

applicable because the vacation period did not begin on Sunday

of the relevant week would constitute a tortured interpretation

of the statute.6 The department filed the present appeal.

5

See G. L. c. 151A, § 28A(c), providing in pertinent part:

"[B]enefits shall not be paid . . . if such individual

performs such services in the period immediately before

such vacation period or holiday recess, and there is a

reasonable assurance that such individual will perform such

services in the period immediately following such vacation

period or holiday recess."

6

A different judge allowed the department's motion for

entry of judgment and ordered the entry of a final judgment, but

none appears on the docket or in the record appendix.

Nonetheless, it is clear that the parties reasonably considered

the matter to be final and appealable, so we address the merits.

See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995);

Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 14 n.5 (2003).

8

3. Standard of review. Our review of the board's decision

is governed by the standards set out in G. L. c. 30A, § 14(7).

See G. L. c. 151A, § 42. The board's decision "may only be set

aside if the court determines that the decision is unsupported

by substantial evidence or is arbitrary or capricious, an abuse

of discretion, or not in accordance with law." Coverall N.

America, Inc. v. Commissioner of the Div. of Unemployment

Assistance, 447 Mass. 852, 857 (2006). We "give due weight to

the experience, technical competence, and specialized knowledge

of the agency, as well as to the discretionary authority

conferred upon it." G. L. c. 30A, § 14(7), as appearing in St.

1973, c. 1114, § 3. However, where an agency determination is

based on a question of law, we review the matter de novo. See

Raytheon Co. v. Director of the Div. of Employment Security, 364

Mass. 593, 595 (1974).

4. Discussion. The department contends that G. L.

c. 151A, § 28A(c), does not disqualify Hennis from receiving

unemployment compensation benefits for the week ending November

24, 2012, because the week commenced before, not during, the

Thanksgiving recess. We agree.

"It is a fundamental canon of statutory construction that

'statutory language should be given effect consistent with its

plain meaning and in light of the aim of the Legislature unless

to do so would achieve an illogical result.'" Boston Hous.

9

Authy. v. National Conference of Firemen & Oilers, Local 3, 458

Mass. 155, 162 (2010), quoting from Sullivan v. Brookline, 435

Mass. 353, 360 (2001). Although "[t]he duty of statutory

interpretation is for the courts . . . the details of

legislative policy, not spelt out in the statute, may

appropriately be determined, at least in the first instance, by

an agency charged with administration of the statute." Cleary

v. Cardullo's, Inc., 347 Mass. 337, 344 (1964). See Attorney

Gen. v. Commissioner of Ins., 450 Mass. 311, 319 (2008). The

party challenging an agency's interpretation of a statute has

the burden of proving that such interpretation is unreasonable.

See ibid.

The plain meaning of G. L. c. 151A, § 28A(c), precludes the

payment of benefits for "any week commencing during an

established and customary vacation period or holiday recess"

(emphasis supplied). Hennis sought benefits for the week ending

Saturday, November 24, 2012. Given that the week commenced on

Sunday, November 18, that Hennis worked her regular hours on

Monday and Tuesday, and that the Thanksgiving recess did not

start until Wednesday, November 21, she is not precluded from

receiving unemployment compensation benefits by the exclusion

set forth in § 28A(c). Simply put, the week did not commence

during a holiday recess where such recess did not begin until

Wednesday. See, e.g., North Penn Sch. Dist. v. Unemployment

10

Compensation Bd. of Review, 662 A.2d 1161, 1163 (Pa. Commw. Ct.

1995) (State statute denying unemployment compensation benefits

for any week which "commences during an established and

customary vacation period or holiday recess" did not apply to

school bus drivers who did not work for five days due to Monday

holiday and snow emergency that closed school for subsequent

four days because week began on Sunday, which was not vacation

period).

Our interpretation of G. L. c. 151A, § 28A(c), is

consistent with relevant Federal law. We note that "[a]ll

federal-state cooperative unemployment insurance programs are

financed in part by grants from the United States pursuant to

the Social Security Act, 42 U.S.C. §§ 501-503. No grant may be

made to a State for a fiscal year unless the Secretary of Labor

certifies the amount to be paid, 42 U.S.C. § 502(a). The

Secretary of Labor may not certify payment of federal funds

unless [the Secretary] first finds that the State's program

conforms to federal requirements." California Dept. of Human

Resources Dev. v. Java, 402 U.S. 121, 125 (1971). See 42 U.S.C.

§ 503(a)(1) (2012) (State unemployment compensation law must,

among other provisions, "insure full payment of unemployment

compensation when due"). See also 26 U.S.C. § 3304(a) (2012)

(listing requirements for State unemployment compensation law

approval by Secretary of Labor under Federal Unemployment Tax

11

Act). When the Legislature amended G. L. c. 151A in 1977

(including § 28A[c]), it did so for the purpose of providing

that "the employment security law of the commonwealth shall

conform with the federal employment security law." St. 1977,

c. 720, preamble. Consequently, our interpretation of § 28A(c)

should comport with Federal law, thereby ensuring the ongoing

payment of Federal funds that underwrite the administration of

the Massachusetts unemployment compensation system. Cf. Rosen

v. Rosen, 90 Mass. App. Ct. 677, 682-683 & nn.7-9 (2016) (G. L.

c. 119A, §§ 1 et seq., enacted to maintain eligibility for

certain Federal grants).

The language of G. L. c. 151A, § 28A(c), corresponds to 26

U.S.C. § 3304(a)(6)(A)(iii) (2012), which provides that with

respect to services for an educational institution,

"[unemployment] compensation payable on the basis of such

services shall be denied to any individual for any week which

commences during an established and customary vacation period or

holiday recess if such individual performs such services in the

period immediately before such vacation period or holiday

recess, and there is a reasonable assurance that such individual

will perform such services in the period immediately following

such vacation period or holiday recess" (emphasis added). In

response to an inquiry from the department, the State Conformity

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and Compliance Team of the United States Department of Labor

opined that

"Federal law only permits the denial of a week[] which

commences during an established and customary vacation

period. Benefits cannot be denied under the holiday

provision unless the week of unemployment commences during

the holiday recess.

"If a Thanksgiving vacation began on a Thursday and

continued through the following Tuesday, the holiday denial

would not be applicable to the week that included the first

two days of the vacation (since that week commenced on the

Sunday prior to the vacation period, rather than during the

vacation period)."7

This interpretation of Federal law is persuasive and supports

our construction of § 28A(c), particularly where the Legislature

specifically sought to conform the Massachusetts unemployment

compensation law to Federal law. See generally Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944) ("rulings, interpretations

and opinions of the [responsible agency have] . . . power to

persuade, if lacking power to control"); School Comm. of

Wellesley v. Labor Relations Commn., 376 Mass. 112, 116 (1978).

7

This informal opinion from the State Conformity and

Compliance Team is consistent with a response issued by the

Employment and Training Administration of the United States

Department of Labor to a question regarding "Draft Language and

Commentary to Implement the Unemployment Compensation Amendments

of 1976, P.L. 94-566," 90 Stat. 2667 (1976). In its response,

the Department of Labor explained that a statutory provision

denying benefits to school employees during a vacation period or

holiday recess could not be applied with respect to a week that

included a vacation or holiday, but did not begin during a

vacation or holiday.

13

Given the clear and unambiguous language in other

provisions of G. L. c. 151A, § 28A, the Legislature has

determined that the unemployment compensation law is not

intended to provide benefits for employees during a school

vacation "week" beginning on a Sunday if there is a reasonable

assurance of reemployment once the vacation period is over.

Compare G. L. c. 151A, § 28A(b), as appearing in St. 1977,

c. 720, § 29 (with respect to services performed for educational

institution, "benefits shall not be paid on the basis of such

services to any individual for any week commencing during a

period between two successive academic years or terms if such

individual performs such services in the first of such academic

years or terms and there is a reasonable assurance that such

individual will perform such services in the second of such

academic years or terms"). However, it is also apparent from

the plain language of § 28A(c) that the Legislature did not

intend to prohibit the payment of unemployment compensation

benefits to individuals such as Hennis, who experience a period

of partial unemployment during a vacation period that covers

only a portion of a "week," where the "week" did not commence

during the vacation recess. The Legislature has balanced

competing concerns, and carved out a clear policy that comports

with a Federal mandate. Benefits are not provided for school

vacations that cover a complete week as defined in the statute.

14

Other periods of partial unemployment may be covered, depending

on the circumstances, as set forth in § 28A(c).8

We are required to construe § 28A(c) liberally, G. L.

c. 151A, § 74, and are mindful of the fact that the fundamental

purpose of G. L. c. 151A is "to provide temporary relief for

those who are realistically compelled to leave work through no

'fault' of their own, whatever the source of the compulsion,

personal or employer-initiated." Raytheon Co. v. Director of

the Div. of Employment Security, 364 Mass. at 596. Accordingly,

8

The collaborative argues for the first time on appeal that

Mattapoisett v. Director of the Div. of Employment Security, 392

Mass. 546, 548-549 (1984), precludes Hennis's claim for benefits

because she was not in "partial unemployment" under G. L.

c. 151A, § 1(r)(1), during the week ending November 24, 2012.

Because the collaborative did not raise this argument before the

administrative agency, it is waived on appeal. See Rivas v.

Chelsea Hous. Authy., 464 Mass. 329, 336 (2013); Lincoln

Pharmacy of Milford, Inc. v. Commissioner of the Div. of

Unemployment Assistance, 74 Mass. App. Ct. 428, 436 (2009).

Even if we were to consider the collaborative's argument, we are

not persuaded that Mattapoisett is applicable to the present

case. There, the court concluded that "the Legislature did not

intend a part-time [police officer] whose hours vary from week

to week to be considered in partial unemployment for any week in

which he does not work as many hours as a full-time employee."

Mattapoisett, supra at 549. Here, Hennis is a full-time bus

driver whose eligibility for benefits during the Thanksgiving

holiday is governed by a statutory provision applying to

employees of educational institutions. Construing the pertinent

provisions of G. L. c. 151A, as a harmonious whole, see

Commissioners of the Bristol County Mosquito Control Dist. v.

State Reclamation & Mosquito Control Bd., 466 Mass. 523, 529

(2013), we are not of the view that, were Mattapoisett

applicable to the facts of this case, it should be read to

override either the explicit statutory scheme governing holiday

pay for employees of educational institutions, or the Federal

mandate with which this statutory scheme complies.

15

while we recognize that it may appear to be counterintuitive

that Hennis should receive unemployment benefits here,

notwithstanding that, under the terms of her employment, it was

agreed she would not receive holiday pay for time off when

school was not in session, we conclude that, applying the

statutory scheme to the circumstances presented here, Hennis is

entitled to partial unemployment compensation benefits for the

days she was out of work during the week ending Saturday,

November 24, 2012, which included the Thanksgiving recess.

5. Conclusion. The judgment of the District Court is

reversed, and a new judgment shall enter affirming the decision

of the board.

So ordered.