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Hooton, Wold & Okrent, LLP v. Employment Department

Court of Appeals of Oregon

February 23, 2017

HOOTON, WOLD & OKRENT, LLP, Petitioner,
v.
EMPLOYMENT DEPARTMENT, Respondent.

          Argued and submitted April 17, 2015

         Office of Administrative Hearings

          Donald M. Hooton argued the cause and fled the briefs for petitioner.

          Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General.

          Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         On judicial review, petitioner challenges an order that denied petitioner's requests for "relief of charges" to its unemployment insurance account under ORS 657.471(9). The department denied petitioner's request for relief of charges, concluding that petitioner failed to establish that it satisfied the requirement in ORS 657.471(9)(a) that it "furnish[ ] part-time work to the [claimant] during the base year" and the requirement in ORS 657.471(9)(b) that the claimant "has become eligible for benefits because of loss of employment with one or more other employers." Petitioner argues that it should have been relieved of charges related to a second year of unemployment benefits paid to its part-time employee because it satisfied all the requirements of ORS 657.471(9).

         Held:

         Petitioner satisfied the requirements of ORS 657.471(9) because it provided part-time work to the claimant during the relevant base year, and the claimant's eligibility for a second year of unemployment benefits was due to the loss of employment with an "other employer" during the base year.

         Reversed and remanded.

          ORTEGA, P. J.

         Petitioner provided part-time employment to Hooten, a former employee of Kaiser Permanente who was receiving unemployment benefits. Petitioner requests judicial review of an order of an administrative law judge (ALJ) that affirmed the Oregon Employment Department's denial of petitioner's request for "relief of charges" to its unemployment insurance account under ORS Q57A7\(9)[1] Petitioner argues on review that it should have been relieved of charges related to a second year of unemployment benefits paid to Hooten, because, in accordance with that statute, (1) Hooten lost full-time employment with Kaiser during the "base year"; (2) petitioner employed Hooten part-time during the "base year" and at the time of the assessment of charges; and (3) Hooten's eligibility for benefits was factually related to her loss of employment with Kaiser. The ALJ concluded that petitioner was not entitled to relief of charges under ORS 657.471(9) because Hooten was not petitioner's part-time employee at the time she lost her employment with Kaiser, and Hooten's eligibility for a second year of unemployment benefits was not "because of [her] loss of employment" with Kaiser. On review, petitioner challenges the ALJ's decision, arguing that the statute does not require "simultaneous" employment by two or more employers, and asserting that Hooten's loss of employment with Kaiser was the reason that she was eligible for a second year of unemployment benefits. We conclude that the ALJ erred in her application of ORS 657.471(9) and that petitioner had indeed satisfied the requirements of that statute. Accordingly, we reverse and remand.

         The following facts are undisputed. Hooten filed a claim for unemployment benefits in October 2011 after Kaiser Permanente terminated her employment that same month. The department approved her claim and awarded benefits. Hooten began working part time for petitioner six months later in April 2012, and she continued to collect unemployment benefits. When her initial "benefit year"[2] expired on October 20, 2012, the department denied her application for benefits for the week of October 21, 2012, through October 27, 2012. Accordingly, Hooten contacted the department and was told that she was eligible to file a new claim. She did so, and the department determined that she was eligible for unemployment benefits for a "second benefit year." It further determined that, because petitioner had paid Hooten wages during the relevant "base year"[3]-July 1, 2011, to June 30, 2012-petitioner was a "base year employer" and, under ORS 657.471(1), [4] was subject to potential "charges" to its account for benefits paid to Hooten. "Charges" are used in part to calculate an employer's unemployment insurance rate. See ORS 657.462 (establishing a method for calculating the "benefit ratio" and assigning the unemployment tax rate using "charges" to the employer's record). The department sent petitioner notice of the potential charges and petitioner requested relief from those charges under ORS 657.471. The department denied relief, citing Hooten's continued employment with petitioner. Petitioner's appeal of that decision was referred to the Office of Administrative Hearings for a contested case hearing. At issue during the contested case hearing was the applicability of ORS 657.471(9). That statute provides:

"Benefits paid to an individual may not be charged to a base year employer if: "(a) The employer furnished part-time work to the individual during the base year;
"(b) The individual has become eligible for benefits because of loss of employment with one or more other employers;
"(c) The employer has continued to furnish part-time work to the individual in substantially the same amount as during the ...

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