Thomas C. Cady
Morgantown, West Virginia
Attorney for the Appellant
Peggy L. Collins
Kopelman, Collins & Courtright
Charleston, West Virginia
Attorney for the Appellees
JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
1. The West Virginia Society for the Blind, as a
designee of the West Virginia Division of Vocational Rehabilitation
under W.Va. Code § 18-10G-2(j) (1994), is exempt from participation
in the unemployment compensation fund as a matter of statutory law.
W.Va. Code § 21A-1-3(11)(iv) (1994 Cum. Supp.).
2. "In order to avail himself of unemployment
compensation benefits, a claimant must first show that he is
eligible for benefits and is not disqualified from receiving them
under our Unemployment Compensation Law . . . ." Hill v. Board of
Review, 166 W.Va. 648, 652, 276 S.E.2d 805, 808 (1981).
3. When an employer is exempt from participation in the
unemployment compensation fund, it logically follows that its
employees are ineligible for benefits thereunder.
Fox, Judge:See footnote 1
In this case we consider whether the Circuit Court of
Kanawha County, West Virginia, was correct in affirming prior
administrative decisions denying unemployment compensation benefits
to the appellant, Elmira G. LeMasters. Secondarily, consideration
is also given herein as to whether the appellant's employer, the
West Virginia Society for the Blind and Severely Disabled (Society)
is legally exempt from the Unemployment Compensation Act, W.Va.
Code § 21A-1-1, et seq. (1994 Cum. Supp.).
By their very nature, the prior proceedings in this case
do not lend themselves to the evolvement of a comprehensive record.
Additionally, the development of the case on this appellate level
can best be described as laconic. From what we have before us, it
would appear that the relevant facts are these. The appellant,
Elmira G. LeMasters, was employed as a food services worker in a
cafeteria at the United States Department of Energy facility in
Morgantown, West Virginia, from mid-July 1990 until August 1992.
On 11 October 1990, she suffered an on-the-job injury for which she
received workers' compensation benefits. Although the appellant claims she worked until 3 September 1992, the record reveals that,
subsequent to her injury of 11 October 1990, she worked only one
day, 11 February 1991. At some point in August 1992, she was
officially terminated by her employer.
On 30 August 1992, the appellant applied for unemployment
compensation benefits for the base period covering 1 April 1991
through 31 March 1992. In accordance with the administrative
review schedule, the appellant's claim was heard by a deputy
commissioner.See footnote 2 The deputy commissioner found the appellant was not
entitled to benefits because she had not been paid wages of at
least $2,200 in covered employment within the base period as
required by W.Va. Code § 21A-6-1(5) (1989). This Code provision
provides that "[a]n unemployed individual shall be eligible to
receive benefits only if the commissioner finds that: . . . (5) He
has within his base period been paid wages for employment equal to
not less than two thousand two hundred dollars and must have earned
wages in more than one quarter of his base period."
The appellant appealed the deputy commissioner's decision
to an administrative law judge (ALJ) of the Department of Employment Security pursuant to the provisions of W.Va. Code § 21A-
7-7 (1989).See footnote 3 On 7 January 1993, the ALJ affirmed the deputy's
Under the provisions of W.Va. Code Chapter
21A, Article 6 and the sections following
an individual must have earned at least
$2,200 during the base wage period with
wages paid in at least two quarters in said
base period. The claimant in the instant
case did not present any evidence of having
received any payments whatsoever during her
base period of April 1, 1991 through March
31, 1992. She is monetarily ineligible for
benefits under the provisions of West Virginia
law. (Emphasis added.)
The ALJ's decision was subsequently affirmed by the Board
of Review of the West Virginia Department of Employment Security on 15 April 1993,See footnote 4 and the appellant sought judicial review of the
administrative decision in the Circuit Court of Kanawha County.See footnote 5
On 14 April, 1994, the circuit court affirmed the Board
of Review's decision, finding, in essence, that the Board of
Review's ruling, as well as the previous administrative rulings,
correctly denied the appellant's application for unemployment
compensation benefits on the grounds that the appellant had not
received sufficient wages within the base period. We agree with
the circuit court.
A thorough review of the record in this case discloses
that the appellant received no wages during the base period in question (1 April 1991 - 31 March 1992), much less the $2,200
required by W.Va. Code § 21A-6-1(5) (1989).See footnote 6 Accordingly, the
administrative rulings are in accordance with and supported by the
evidence, and the circuit court was presented with no option but to
The appellant claims the circuit court was clearly wrong
in upholding the Board of Review's decision. She contends she did
have sufficient wages to support an unemployment compensation
award, but, as a result of prior rulings by the Commissioner of
Employment Security (Commissioner) that the Society is exempt from
the provisions of unemployment compensation law, her wages were not
technically wages in covered employment. Specifically, in her
petition for appeal, the appellant states:
The Board's decision is plainly wrong. The
claimant did not have insufficient wages to
qualify. The claimant had sufficient wages,
but her employer did not pay into unemployment
compensation. The exemption accorded to the
West Virginia Society for the Blind by the
Commissioner is an illegal interpretation of
W.Va. Code § 21A-1-3 (11) (iv) (1991).
Thus, the appellant frames the issue as whether the
Society is, in fact, exempt from the provisions of the Unemployment
Compensation Act. Inasmuch as the record reflects that the appellant had no wages, and did not even actively work for the
Society during the base period, this Court is not compelled to
address this issue. However, for purposes of future clarification,
we choose to do so.
The Commissioner's prior ruling that the Society is
exempt from participation in the unemployment compensation system
is based upon statutory construction. West Virginia Code § 21A-1-
1, et seq. (1989), the Unemployment Compensation Act, provides a
program of protection against unemployment for the citizens of this
State. Basically, it requires all employers to participate in the
unemployment compensation fund by contributing payments with
respect to wages paid for employment that occurs during any given
year. W.Va. Code § 21A-5-4 (1989). Certain types of employment
are, however, exempt from participation, also by statute. West
Virginia Code § 21A-1-3(11)(iv) (1994 Cum. Supp.) specifically
exempts employment which includes services performed
. . . in a facility conducted for the purpose
of carrying out a program of rehabilitation
for individuals whose earning capacity is
impaired by age or physical or mental
deficiency or injury or providing remunerative
work for individuals who because of their
impaired physical or mental capacity cannot be
readily absorbed into the competitive labor
market by an individual receiving such
rehabilitative or remunerative work; . . . .
In determining whether the Society falls within this
category of exempt employer, we consider the Society's genesis and
purpose. The genesis is found in W.Va. Code § 18-10G-1, et seq. (1994), which provides the West Virginia Division of Vocational
Rehabilitation (Division) may provide for the operation of food
services in public office buildings in this State. The stated
purpose, as set forth therein, is "to provide blind and severely
disabled persons with the maximum opportunities for remunerative
employment and for training for such employment, to enlarge the
economic opportunities of the blind and severely disabled; and to
stimulate them to greater effort in striving to make themselves
self-supporting . . . ."
In furtherance of this stated purpose, the statute
provides the Division with authority to operate food service
facilities in public office buildings through a "designee." A
designee is defined in W.Va. Code § 18-10G-2(j) (1994) as ". . . an
individual or an organization of individuals legally constituted,
and under the jurisdiction of the division of vocational
rehabilitation, doing business in the state of West Virginia, to
assist the state agency with the administration and supervision of
the food services facilities program."
It is clear from the record in this case the Society was
created by the Division as its designee for the specific purpose of
complying with W.Va. Code § 18-10G-1 (1994), i.e., to operate food
service facilities in public office buildings, thereby providing
blind and severely disabled persons with opportunities for
employment and training. Such employment appears to be the very type specifically exempted from unemployment compensation law by
W.Va. Code § 21A-1-3(11)(iv) (1994 Cum. Supp.), as employment
conducted for the purpose of rehabilitation or providing
remunerative work for impaired individuals.
Accordingly, we hold the West Virginia Society for the
Blind and Severely Disabled, as a designee of the West Virginia
Division of Vocational Rehabilitation under W.Va. Code § 18-10G-
2(j) (1994), is exempt from participation in the unemployment
compensation fund as a matter of statutory law. W.Va. Code § 21A-
1-3(11)(iv) (1994 Cum. Supp.).
This Court held in Hill v. Board of Review, 166 W.Va.
648, 652, 276 S.E.2d 805, 808 (1991), "[i]n order to avail himself
of unemployment compensation benefits, a claimant must first show
that he is eligible for benefits and is not disqualified from
receiving them under our Unemployment Compensation Law . . . ."
When an employer is exempt from participation in the unemployment
compensation fund, it logically follows that its employees are
ineligible for benefits thereunder.
The appellant also contends in her brief that the
Morgantown facility was not being conducted for the purpose of
carrying out a program of rehabilitation and did not even employ
impaired individuals. These representations were specifically
challenged and denied by the appellee in its brief. Unfortunately, the record before us does not lend itself to a determination as to
whether these factual issues were developed or even considered in
any previous administrative or judicial proceedings. At any rate,
they are of no great consequence, inasmuch as it is our opinion
that the Society's exemption from unemployment compensation law
affects all of it employees, regardless of their individual
impairments, or lack thereof, and regardless of the makeup of its
employees at any particular facility.
For the reasons set forth herein, we conclude the Circuit
Court of Kanawha County correctly affirmed the prior administrative
rulings. Accordingly, the 14 April 1994 order of the Circuit Court
of Kanawha County is affirmed.
Footnote: 1 Pursuant to an administrative order entered by this Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of the Sixteenth Judicial Circuit, was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing 1 January 1995 and continuing through 31 March 1995, because of the physical incapacity of Justice W. T. Brotherton, Jr. On 14 February 1995 a subsequent administrative order extended this assignment until further order of said Court.
Footnote: 2 West Virginia Code § 21A-7-3 (1989) provides:
The commissioner shall appoint deputies to investigate all claims, and to hear and initially determine all claims for benefits excepting claims relating to labor disputes or disqualification under subdivision four of section three [§ 21A-6-3(4)], article six of this chapter.
Footnote: 3 West Virginia Code § 21A-7-7 states:
The board shall determine the manner of hearing cases transferred or appealed from a decision of a deputy. All cases relating to labor disputes or to disqualification under subdivision (4) section three [§ 21A-6-3(4)], article six of this chapter, and transferred to an appeal tribunal for initial determination, shall be heard by an appeal tribunal composed either of three administrative law judges assigned by the board, or the board itself, as the board may direct in particular cases or in particular areas. All other appeals from the decision of a deputy shall be heard by an appeal tribunal composed, as the board may direct in particular cases or in particular areas, of a single administrative law judge; a tribunal of three administrative law judges assigned by the board; a member of the board; or the board itself. (Emphasis added.)
Footnote: 4 West Virginia Code § 21A-7-10 (1989) provides:
The board may, on its own motion, after notice to the claimant, last employer, and the commissioner, eight days in advance of the date set for hearing, affirm, modify, or reverse and set aside a decision of an appeal tribunal. Any appeal from a decision of an appeal tribunal allowing benefits in a case relating to a labor dispute or to a disqualification under subdivision four, section three [§ 21A-6-3(4)], article six of this chapter, shall be heard as expeditiously as possible and given priority over all other cases and shall be decided by the board within ten days after the hearing before the board.
Footnote: 5 West Virginia Code § 29A-5-4(a) (1993) states, in pertinent part:
Any party adversely affected by a final order or decision in a contested case is entitled to judicial review thereof under this chapter . . . .
Footnote: 6 Apparently the appellant did receive workers' compensation benefits during her entire base period. However, under W.Va. Code § 21A-1-3(2)(B) (1994 Cum. Supp.), "wages" does not include ". . . sickness or accident disability payments made to an employee under an approved state workers' compensation law . . . ."