Hansen v. Department of Workforce Services

2014 UT App 231
_________________________________________________________
THE UTAH COURT OF APPEALS
BENJAMIN J. HANSEN,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE
APPEALS BOARD,
Respondent.
Opinion
No. 20130614-CA
Filed October 2, 2014
Original Proceeding in this Court
Wilford N. Hansen Jr., Attorney for Petitioner
Amanda B. McPeck, Attorney for Respondent
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
GREGORY K. ORME and JOHN A. PEARCE concurred.
DAVIS, Judge:
¶1 Benjamin J. Hansen contests the Workforce Appeals Board’s
(the Board) determination upholding the Department of Workforce
Services’ (the Department) decision denying him unemployment
benefits and assessing a fault overpayment against him. We do not
disturb the Board’s decision denying benefits in connection with
Hansen’s termination of employment with Tucanos Brazilian Grill
(Tucanos), but we set aside the Board’s determination that Hansen
was not entitled to receive benefits between January and March
2013 in connection with his earlier termination of employment with
Becden Dental Laboratory (Becden) and the Board’s overpayment
assessment.

Hansen v. Department of Workforce Services
BACKGROUND
¶2 Hansen was employed by Becden as a dental technician for
nine and a half years. While employed by Becden, Hansen attended
school at Utah Valley University. In March 2012, Hansen was laid
off by Becden and filed a claim for unemployment benefits.
Hansen’s claim was granted, and the Department also granted him
a training exemption, which permitted him to collect
unemployment benefits while attending school without requiring
him to search for work. See Utah Code Ann. § 35A-4-403(2)(b)(i)1
(LexisNexis Supp. 2013); Utah Admin. Code R994-403-202.
Department approval of his exemption was extended through
March 2013.
¶3 Despite being exempted from seeking work due to his
schooling, Hansen obtained part-time employment as a server at
Tucanos in July 2012. Hansen continued to collect unemployment
benefits while working for Tucanos, though his benefit payment
was occasionally reduced when his Tucanos earnings exceeded
30% of his benefit amount. See generally Utah Code Ann. § 35A-4-
401(3) (LexisNexis Supp. 2013). Hansen worked for Tucanos
through the end of December 2012. Anticipating a busy school
schedule during the spring semester of 2013, Hansen requested that
he be removed from the regular schedule at Tucanos beginning in
January 2013 and be permitted to “pick up” shifts for other servers
based on his availability. The management at Tucanos did not
directly respond to this request, but Hansen was taken off the
schedule beginning the first week of January 2013. Although
1. When a student has been approved for a training exemption, his
or her “satisfactory attendance and progress in school serves as a
substitute for the availability requirements of the [Employment
Security Act].” Utah Admin. Code R994-403-204(1). See generally
Utah Code Ann. § 35A-4-403(1)(b)–(c) (LexisNexis Supp. 2013)
(requiring that “during each and every week for which [a claimant
makes] a claim for benefits” the claimant make a “good faith effort
to secure employment,” be “able to work,” and be “available for
work”).
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Hansen v. Department of Workforce Services
Hansen intended to pick up shifts for other employees using
Tucanos’s computerized scheduling system, it soon became
apparent that he had been locked out of the system.
¶4 Hansen continued to regularly socialize with several “lower
managers” of Tucanos. He asked them why he could no longer
access the system and indicated that he still wished to pick up shifts
for other servers. The managers told him they would try to find out
what happened, but they did not get back to him. Because he was
busy with school, Hansen did not aggressively seek an answer to
why he had been locked out of the scheduling system and did not
meet with his direct supervisor about the issue until the beginning
of March 2013. Hansen never attempted to contact the general
manager about the issue. Between January and March 2013,
Hansen continued to collect the Becden-related unemployment
benefits for which he had already been approved. When Hansen
spoke with his supervisor in March, the supervisor informed him
that Tucanos believed he had quit. Just prior to being taken off the
schedule, Hansen had purchased new clothes and a knife in
anticipation of his continued employment with Tucanos, and when
Hansen spoke to his supervisor in March, he informed the
supervisor that he would still like to work at Tucanos.
Nevertheless, he was not permitted to resume working.
¶5 Also in March 2013, Hansen’s unemployment benefits
stemming from his employment with Becden were scheduled to
run out. He therefore filed a new claim based on his termination
from employment with Tucanos. On his application, Hansen
claimed that the reason for his termination was a “[r]eduction in
force.” Hansen’s supervisor disputed Hansen’s claim and
represented that Hansen had voluntarily quit because he “wanted
a reduction in hours.” The Department denied Hansen’s claim
because it determined that he quit without good cause in order to
attend school. See Utah Admin. Code R994-405-107(4) (providing
that school attendance does not constitute good cause to quit a job).
The Department also informed him that he became ineligible to
receive benefits as of January 20, 2013, the approximate date his
employment with Tucanos ended. Subsequently, the Department
informed Hansen that he had received an overpayment of benefits
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Hansen v. Department of Workforce Services
in the amount of $2,855 for the period of January 20, 2013, through
March 30, 2013, and that he was required to repay that amount to
the Department.2
¶6 Hansen appealed the Department’s decision to deny his
claim and its decision to assess an overpayment. Following a
hearing, an administrative law judge (the ALJ) upheld both of the
Department’s determinations. Hansen appealed this decision to the
Workforce Appeals Board. The Board determined that Hansen
“voluntarily quit in order to focus on his schooling,” which
Department rules do not consider to be good cause to leave
employment. See id.; see also Utah Code Ann. § 35A-4-405(1)(a)
(LexisNexis Supp. 2013) (providing that leaving “work voluntarily
without good cause” makes an individual “ineligible for benefits”).
The Board further determined that Hansen’s decision made him
ineligible for the Department’s training exemption as of January 20,
2013, the date he “was fully aware he was unable to bid for shifts,
yet failed to contact the general manager about the problem.” The
Board explained,
Any separation from employment is potentially
disqualifying, whether the separation occurs before
or after the original claim is filed. Disqualifying
separations are not limited to separations from base
period employers. The Claimant is correct that he
2. The benefits for which Hansen was assessed an overpayment
were the Becden-related benefits he collected after he quit working
at Tucanos but before the training exemption expired. Although
the Board relieved Tucanos of charges assessed for benefits paid to
Hansen, it does not appear that Hansen was ever paid any benefits
in connection with his Tucanos employment because the
Department denied his Tucanos-related claim, which was not even
filed until after Hansen stopped receiving benefits. See generally
Utah Admin. Code R994-403-101a(2) (“The effective date of a new
claim for benefits is the Sunday of the week in which the claim is
filed . . . . A claim for benefits can only be made effective for a prior
week if the claimant can establish good cause for late filing . . . .”).
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Hansen v. Department of Workforce Services
was not required to seek employment after he
received Department approval for his schooling.
However, once he accepted a job, and subsequently
chose to voluntarily quit that job, the Department
was required to redetermine his eligibility as of the
week that he voluntarily quit.
Hansen requests that we set aside the Board’s decision.
ISSUES AND STANDARDS OF REVIEW
¶7 Hansen asserts that the Board erred in finding that he
voluntarily quit his employment with Tucanos. He further argues
that even if he did quit, the Board erred in determining that the
quit made him ineligible for the ongoing training exemption, which
relates back to the termination of his Becden employment. Both of
these issues present mixed questions of law and fact because they
involve the “application of a legal standard to a set of facts unique
to [this] particular case.” See Murray v. Utah Labor Comm’n, 2013 UT
38, ¶ 24, 308 P.3d 461 (citation and internal quotation marks
omitted). Mixed questions may be reviewed either deferentially or
nondeferentially, depending on whether the question is more fact-
like or more law-like. Id. ¶¶ 36–39.
¶8 The question of whether Hansen voluntarily quit is fact-like
because “[d]ue to the fact-intensive inquiry involved at the agency
level, . . . the appellate court would be in an inferior position to
review the correctness of the decision.” Carbon County v. Workforce
Appeals Bd., 2013 UT 41, ¶ 7, 308 P.3d 477 (omission in original)
(citation and internal quotation marks omitted); see also Carnagie v.
Workforce Appeals Bd., 2013 UT App 193, ¶¶ 6, 9, 308 P.3d 561
(granting deference to the Workforce Appeals Board’s
determination that a claimant voluntarily quit his job). We will
therefore uphold the Board’s determination if it is supported by
substantial evidence. See Professional Staff Mgmt., Inc. v. Department
of Emp’t Sec., 953 P.2d 76, 80 (Utah Ct. App. 1998). The question of
whether Hansen’s decision to quit working for Tucanos made him
ineligible for the training exemption, on the other hand, is law-like
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Hansen v. Department of Workforce Services
and warrants nondeferential review because it requires us to
interpret statutory and administrative rules relating to the
exemption and “lend[s] itself to consistent resolution.” See Murray,
2013 UT 38, ¶ 37 (citation and internal quotation marks omitted).
ANALYSIS
I. The Board’s Finding That Hansen Voluntarily Quit Is
Supported by Substantial Evidence.
¶9 Hansen argues that “the clear weight of the evidence”
indicates that his termination from Tucanos was involuntary. “A
separation is considered voluntary if the claimant was the moving
party in ending the employment relationship. A voluntary
separation includes . . . failing to return to work after . . . a period
of absence initiated by the claimant.” Utah Admin. Code R994-405-
101(1). Here, Hansen requested that he be taken off the schedule
and allowed to “pick up” shifts. The management did not respond
to his request, but Hansen soon discovered that he had been locked
out of the online scheduling system. Despite this discovery, Hansen
made no serious effort to resolve the problem; although he
mentioned the issue to lower managers when he met with them
socially, he did not contact his immediate supervisor for
approximately two months and made no attempt to contact the
general manager. The Board found that Hansen “failed to bid for
any shifts and failed to contact [Tucanos] in a timely manner once
he realized he was unable to access the scheduling system.” The
Board explained, “If the Claimant truly wished to continue
working for [Tucanos], he would have contacted the general
manager immediately in January 2013.” Based on these findings,
the Board concluded that “the separation [was] a voluntary quit.”
The Board’s findings were supported by substantial evidence, and
its findings support its determination that Hansen voluntarily quit.
¶10 Hansen also argues that it was against equity and good
conscience to deny him benefits because he “reasonably tried to
maintain his employment at Tucanos.” See Utah Code Ann. § 35A-
4-405(1)(b)–(c) (precluding denial of benefits where doing so would
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Hansen v. Department of Workforce Services
be “contrary to equity and good conscience” and explaining that
such a determination is based on “the reasonableness of the
claimant’s actions”). However, even if Hansen subjectively
intended to keep working for Tucanos, it was unreasonable of him
not to timely communicate with Tucanos about problems he was
having picking up shifts. And it was reasonable for Tucanos to
assume that Hansen did not intend to return to work when it did
not hear from him for two months. Thus, the Board did not err in
determining that denying Hansen benefits was not against equity
and good conscience.
II. The Board Erred in Determining That Hansen Became
Ineligible for the Training Exemption by Quitting His Job at
Tucanos.
¶11 Hansen next asserts that the Board erred in determining that
he became ineligible for the training exemption when he quit
working at Tucanos. Utah Code section 35A-4-403 provides, “An
individual in training with the approval of the division is not
ineligible to receive benefits by reason of nonavailability for work,
failure to search for work, refusal of suitable work, [or] failure to
apply for or to accept suitable work . . . .” Utah Code Ann. § 35A-4-
403(2)(b)(i) (LexisNexis Supp. 2013). Although the Department had
approved Hansen’s training exemption through March 2013, the
Board determined that “once he accepted a job, and subsequently
chose to voluntarily quit that job, the Department was required to
redetermine his eligibility as of the week that he voluntarily quit.”
Because one of the requirements for obtaining a training exemption
is that the claimant not have left work in order to attend school, the
Board argues that Hansen’s decision to quit his part-time job at
Tucanos in order to devote more time to school made him ineligible
for the training exemption. See Utah Admin. Code R994-403-202(8).
There are a number of flaws in this argument.
¶12 First, no provision of the Utah Code or the Utah
Administrative Code (UAC) suggests that the Department is
required to reassess eligibility for a training exemption when an
employee quits a job he was never required to hold in the first
place. In fact, provisions of the UAC suggest otherwise. Although
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Hansen v. Department of Workforce Services
the UAC provides that “[g]ood cause [to quit a job] is not
established if a claimant refuses suitable work because the work
will interfere with school or training,” the same provision clarifies
that “[c]laimants attending school full-time with Department
approval are not required to seek work.” Id. R994-405-310(4). The
UAC’s inclusion of these two statements within the same provision
suggests that a training exemption excusing a claimant from
seeking work also excuses the claimant from quitting subsequently-
obtained employment that interferes with school or training. In
other words, once the Department has determined that a claimant
is eligible for the training exemption, in part because he did not
leave his previous employment for the purpose of attending school,
the claimant’s decision to quit new, temporary work during the
time he is subject to the training exemption does not affect his
eligibility for the exemption.3
¶13 Second, the Board’s position is logically inconsistent with
other provisions of the UAC. The UAC requires claimants that
have been approved for a training exemption to continue seeking
temporary work “prior to the onset of training, even if the claimant
has been advised that the training has been approved,” and during
school breaks lasting longer than four weeks. Id. R994-403-
108b(1)(f); see also id. R994-403-112c(6). By the Board’s logic,
claimants who comply with the UAC by obtaining temporary work
prior to beginning school or during long breaks from school would
3. We do not disagree with the Board’s assertion that
“[d]isqualifying separations are not limited to separations from
base period employers.” Had Hansen been required to seek and
maintain suitable employment, and assuming that his employment
with Tucanos was suitable, his decision to quit could have
disqualified him for benefits regardless of the fact that the benefits
initially stemmed from his Becden termination. However, Hansen
was not required to seek employment because the Department had
approved his training exemption. Thus, the fact that the training
exemption stemmed from Hansen’s termination from Becden
rather than his termination from Tucanos is relevant to the question
of whether he impermissibly quit work in order to attend school.
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Hansen v. Department of Workforce Services
lose their eligibility for the training exemption when they quit their
temporary work to resume school, since they would technically be
“leav[ing] work to attend school.” Id. R994-403-202(8). It would
make no sense for the Department to approve a training
exemption, require the claimant to seek temporary work prior to
beginning school, and then, once the claimant has found temporary
work, require the claimant to continue working indefinitely in
order to maintain his eligibility for the training exemption. Indeed,
the UAC specifically provides that “[o]nce the claimant is actually
in training, benefits will not be denied when work is refused as
satisfactory attendance and progress in school serves as a substitute
for the availability requirements of the [Employment Security
Act].” Id. R994-403-204(1). Thus, so long as Hansen continued
meeting school attendance and progress requirements, his decision
to refuse continued employment at Tucanos should have had no
effect on his eligibility to continue receiving Becden-related benefits
pursuant to the training exemption through March 2013.4
¶14 Third, the Department’s actions suggest that Hansen’s
employment with Tucanos was irrelevant to his eligibility for the
training exemption. The Department approved Hansen’s training
exemption in September 2012 and extended the exemption in
December 2012 even though Hansen was already working at
Tucanos. There is nothing to suggest that the Department
conditioned Hansen’s eligibility on his continued employment with
Tucanos. To the contrary, in its letter approving the extension, the
Department explicitly informed Hansen, “Your attendance at
school fulfills the availability for work requirement. You do not
have to look for work or accept offered work while in approved
training.” Furthermore, despite the fact that Hansen worked no
hours at Tucanos between January and March 2013, the
Department continued to approve his weekly benefit claims. If
4. The Board’s statement that “a reasonable person in [Hansen’s]
circumstances would have chosen to take fewer classes so he could
maintain his work schedule” is also contradictory because Hansen
was required to attend school full time in order to maintain his
training exemption. See Utah Admin. Code R994-403-204(4).
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Hansen v. Department of Workforce Services
continuing to work at Tucanos was a prerequisite for continuing to
receive benefits, then Hansen’s report that he had not worked
during the weeks in question should have alerted the Department
to his ineligibility before Hansen ever filed his Tucanos
unemployment claim. In short, Hansen could not reasonably have5
known that his eligibility for the training exemption hinged on his
continuing to work for Tucanos.
¶15 Finally, there are public policy reasons for rejecting the
Board’s position. Hansen, despite not being required to seek
employment as a condition of receiving benefits in connection with
his separation from Becden, obtained a part-time job to
supplement—and to some degree, replace—his unemployment
benefits during a semester when his school schedule allowed him
to do so. Then, when his school schedule no longer permitted the
same time commitment to a part-time job, Hansen was penalized
for his previous efforts and held to a higher standard than other
claimants subject to the training exemption. As a matter of public
policy, claimants subject to the training exemption should not be
discouraged from pursuing part-time employment when they are
reasonably able to do so by a policy that requires them to maintain
such employment indefinitely at the risk of losing their eligibility
for benefits.
¶16 In sum, because the Department had approved Hansen for
a training exemption and he was not required to seek or maintain
5. The Board faulted Hansen for failing to report his separation
from Tucanos when filing his weekly benefits claim. However,
even if Hansen did not report an official separation from Tucanos,
it should have been clear to the Department that he was not
earning any income from Tucanos. We can see no reason why
Hansen should lose his eligibility for the training exemption by
officially severing ties with Tucanos but maintain his eligibility by
remaining an official employee of Tucanos but not working or
earning any money. There is simply no practical difference between
these two circumstances; either way, Hansen would be collecting
unemployment benefits without working or seeking work.
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Hansen v. Department of Workforce Services
employment as a condition of receiving benefits through March
2013, Hansen’s employment with Tucanos and his decision to quit
working for Tucanos had no impact on his eligibility for benefits
stemming from his termination from Becden. Accordingly, the
Board erred in determining that Hansen was ineligible for benefits
between January and March 2013 and in assessing an overpayment
against him.6
CONCLUSION
¶17 We decline to set aside the Board’s decision upholding the
Department’s denial of Hansen’s claim for unemployment benefits
in connection with his Tucanos employment because its finding
that Hansen’s termination was voluntary is supported by
substantial evidence. However, we agree with Hansen that the
voluntary termination of his employment with Tucanos did not
make him ineligible for the training exemption or to continue
receiving Becden-related benefits as previously approved by the
Department. We therefore set aside the Board’s determination that
Hansen was ineligible for the training exemption and its
assessment of an overpayment against Hansen.
6. Because we determine that Hansen was not required to accept or
maintain employment while subject to the training exemption, we
need not consider Hansen’s arguments regarding the suitability of
his Tucanos employment, his availability for work, his ability to
repay the overpayment, or the constitutionality of the
Department’s actions.
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