The opinion
Cite as 2022 Ark. App. 247
ARKANSAS COURT OF APPEALS
DIVISION IV
No. E-21-440
LINDA GREEN Opinion Delivered May 25, 2022
APPELLANT
V. APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
[NO. 2021-BR-01902]
DIRECTOR, ARKANSAS
DEPARTMENT OF WORKFORCE
SERVICES
APPELLEE
AFFIRMED
BART F. VIRDEN, Judge
Linda Green appeals the Arkansas Board of Review’s (Board’s) decision denying her
claim for unemployment (UI) benefits. We affirm.
Linda Green began working in the Newport School District (District) as a substitute
teacher in January 2019. In this capacity, Green did not have a written contract with the
District. Instead, as was the District’s general practice, she was placed on the substitute-
teacher list and was contacted at the beginning of the school year to confirm her availability.
Green worked on an as-needed basis when a vacancy within teaching staff arose.
In March 2020, the District shut down per the Governor’s executive orders in
response to the COVID-19 pandemic. The students were no longer provided in-person
educational services, and Green was no longer needed as a substitute.
On April 24, Green filed an application for UI benefits, claiming that she had been
laid off from her employment with the District. Initially, Green’s application was approved;
however, a few days later the Arkansas Department of Workforce Services (DWS)
temporarily interrupted her payment of benefits, requesting more information from Green
and the District. In response to the request, Green filled out a form, marking yes in answer
to a question regarding whether she had an agreement to work the next school year.
Additionally, Green wrote, “I do not have anything in writing but was asked if I will be
working next school term.”1 Green’s benefits were reinstated on May 8, and she continued
filing her weekly unemployment claims.
On November 4, DWS issued a new decision, retroactively disqualifying Green from
UI benefits under Arkansas Code Annotated section 11-10-509(a) (Repl. 2012) between May
31 and August 15, the duration of the summer recess.2 Green timely appealed the decision
to the Appeal Tribunal (Tribunal).
At the hearing, Green testified that she did not have a written contract for
employment with the District. She explained that her name was on the substitute list, and
she was called to work as needed; however, Green stated that when she applied for UI
benefits subsequent to the school closure, she was not sure if the schools would reopen and
1
A week earlier, the Newport Elementary School secretary asked Green if she planned
to substitute teach when school started, and Green told her that she would be available.
2
Though school originally scheduled to resume on August 15, reopening was delayed
until August 24.
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require her services. Green explained that on September 8, after the schools reopened in
August, Lisa Haygood, the Newport High School secretary, texted her asking if she would be
able to substitute teach that year, and she stated that she would. The Tribunal issued its
decision granting Green’s claims for benefits. The Tribunal concluded that
[t]he school district closed on March 13, 2020, as a result of the COVID-19 public
health emergency. The claimant was off work from that point on without any
notification from the employer concerning whether she would have work or an
opportunity to work in the next school year. The claimant was not a contract
employee and she did not receive assurances of continued employment when she
applied for regular UI benefits. The claimant was asked to return to substitute for the
employer in approximately the end of August of 2020. Therefore, the claimant is not
viewed as an employee of an educational institution who received assurances of
continued employment between successive academic years.
The District appealed to the Board, and the Board reversed the Tribunal, holding
that Green was disqualified under Arkansas Code Annotated section 11-10-509. The Board
found that
[t]ypically, all that is required of a substitute to have a reasonable assurance of work
in the next school term is to be able to place her name on the substitute list. So long
as the school has not informed her that she is being removed from the list or is
prohibited from placing her name on the list, she has a reasonable assurance for
purposes of the statute. The school is not required to specifically inform each
substitute that they are still on the substitute list and that they will be used. Nobody
informed the claimant that she was removed from the substitute list or was ineligible
to be considered again for the next semester. Thus, she had a reasonable assurance.
The Board acknowledged that the closing of the schools due to the pandemic and the
uncertainty surrounding reopening them were “complicating” factors but found that “the
Board does not find that this situation overcomes the reasonable assurance that [Green]
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would work again in the next year or term as a substitute.” Green timely appealed the Board’s
decision.
On appeal Green argues that because she did not have a contract or reasonable
assurances of employment in the fall 2020 term, the Board erred in concluding that she
should be disqualified from receiving unemployment benefits under Arkansas Code
Annotated section 11-10-509.
Our standard of review in unemployment-insurance cases is well settled. We do not
conduct de novo reviews in appeals from the Board. Keener v. Dir., 2021 Ark. App. 88, 618
S.W.3d 446. Instead, we review the evidence and all reasonable inferences deducible
therefrom in the light most favorable to the Board’s findings of fact. Id. We accept the
Board’s findings of fact as conclusive if supported by substantial evidence, which is such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
Id. Even when there is evidence on which the Board might have reached a different decision,
our scope of judicial review is limited to a determination of whether the Board could have
reasonably reached the decision rendered based on the evidence presented. Id. We defer
credibility calls to the Board as the finder of fact as well as the weight to be accorded to
testimony presented to the Board. Id. While our role in these cases is limited, we are not
here to merely ratify the decision of the Board. Id. Instead, our role is to ensure that the
standard of review has been met. Id. With these standards in mind, we turn our attention to
the evidence before the Board and its findings.
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The Board found Green to be ineligible for benefits under Arkansas Code Annotated
section 11-10-509. That statute provides that
(a) With respect to service performed in an instructional, research, or principal
administrative capacity as an employee of an educational institution, benefits shall
not be paid based on services for any week of unemployment commencing during the
period between two (2) successive academic years or terms, during a similar period
between two (2) regular but not successive terms, or during a period of paid sabbatical
leave provided for in the individual's contract to any individual if:
(1) The individual performs the services in the first of the academic years or terms;
and
(2) There is a contract or a reasonable assurance that the individual will perform
services in any such capacity as an employee of any educational institution in the
second of the academic years or terms.
Green contends that this statute was enacted to “prevent subsidized summer vacations
for those teachers who are employed during one academic year and who are reasonably
assured of resuming their employment the following year.” Leissring v. Dep’t of Indus. Lab. &
Hum. Rels., 340 N.W.2d 533, 539 (Wis. 1983). In contrast, “a teacher who is unemployed at
the end of the year and realistically may remain unemployed in the fall, is not seeking benefits
simply because he or she wants a subsidized summer vacation.” Id. Green asserts that she
was not reasonably assured of resuming her employment in the new school year. We disagree.
Green worked as a substitute teacher on an as-needed basis during the 2018 to 2019
spring term, and the 2019 to 2020 fall and spring terms and did not work during the 2019
summer recess. In this capacity, she did not have a written agreement with the District. Green
explained that she had verbal agreement with the District that she would return as a
substitute teacher for the next term. During the 2020 spring term, the District experienced
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an interruption in the provision of educational services due to COVID-19 and discontinued
in-classroom instruction on March 13. As a result, substitute teachers, including Green, were
no longer needed after March 12. At the end of May, the District recessed for the summer.
In August 2020, the District resumed in-classroom instruction, and Green returned to work
as a substitute teacher in September. In essence, Green was out of work from March 13 until
August 24 because no work was available due to COVID-19 and due to the normal summer
recess during education terms. She had not been fired or laid off but returned to work at the
next educational term available. Because Green’s name remained on the substitute-teacher
list, the Board concluded that Green enjoyed a reasonable assurance of employment between
terms and was ineligible for benefits.
Citing Prosser v. Director, 4 Ark. App. 344, 631 S.W.2d 24 (1982), Green claims that
she was not reasonably assured of employment for the following term. In Prosser, the claimant
was a schoolteacher who moved out of state and was actively seeking employment there. Our
court held that she was entitled to benefits because she did not have a “written, verbal or
implied agreement” to teach school the next school year and, thus, did not have reasonable
assurance of employment under the statute. Id. at 346, 631 S.W.2d at 25.
Here, Green claims that the Board improperly considered her subsequent
employment with the District as a reasonable assurance of employment. As such, it erred in
finding that an implied agreement existed where the District laid her off two months early
and failed to contact her to request that she return to work until approximately two weeks
after school resumed.
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Viewing the facts in the light most favorable to the Board’s decision, we conclude that
there was sufficient evidence to support the Board’s conclusion that Green had reasonable
assurance of employment for the next school year. Undisputedly, Green was a substitute
teacher for the District and provided services to the District on an as-needed basis. In this
capacity, she had been placed on the District’s active substitute-teacher list since January
2019 and had remained on that list for the 2020–2021 school year. While placement on this
list is not a guarantee that the District would contact Green to fill the teaching vacancies that
arose in any given school year, she does not dispute her placement on the list was sufficient
for continued employment as a substitute teacher. Thus, her contract with the District
amounts to an implied contract for employment as a substitute teacher when her services are
needed by the District. Green did not provide services as a substitute teacher from March
12, 2020, until around September 8, after in-person instruction resumed in August; however,
Green had not provided services as a substitute during the 2019 summer recess, during
which in-person educational instruction was not being provided. COVID-19 did not change
the nature of her employment relationship with the District. She was still employed by the
District as a substitute teacher on an as-needed basis and remained so into the 20202021
school year. Accordingly, the Board did not err in concluding that she had “reasonable
assurances” of continued employment under the statute and, therefore, was not entitled to
benefits during the summer break.
Affirmed.
HARRISON, C.J., and VAUGHT, J., agree.
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Jaden Atkins, Legal Aid of Arkansas, for appellant.
Jennifer Janis, for appellee.
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