Appeal of Williamson

671 A.2d 112, 140 N.H. 667, 1996 N.H. LEXIS 12
CourtSupreme Court of New Hampshire
DecidedFebruary 12, 1996
DocketNo. 94-631
StatusPublished

This text of 671 A.2d 112 (Appeal of Williamson) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Williamson, 671 A.2d 112, 140 N.H. 667, 1996 N.H. LEXIS 12 (N.H. 1996).

Opinion

HORTON, J.

Pursuant to RSA 282-A:67 (Supp. 1995), the claimant, Leigh H. Williamson, appeals the final decision of the New Hampshire Department of Employment Security denying him unemploy[669]*669ment compensation benefits because the appeal tribunal held that he was not available for work. We reverse and remand.

In September 1993, the claimant was appointed to fill the unexpired term of a Goshen town selectman who had resigned. He was then elected in March 1994 to a three-year term as selectman. This position required the claimant to attend meetings on Monday evenings from 7:30 to 11:00. He was also selectman representative on the Goshen Planning Board, which met Tuesdays from 7:00 p.m. to 8:30 p.m. From January to November 1993, the claimant worked nights as a crew chief for Ambrozy, Inc. cleaning floors at the Goffstown Shop ’N Save. He was able to accommodate his selectman duties because his job with Ambrozy did not require him to work on Monday evenings. After Ambrozy lost the contract with Shop ’N Save, the claimant was laid off. He filed for unemployment compensation in November 1993, informing the certifying officer of his position as a selectman. The officer determined that the claimant was eligible for benefits.

On January 26, 1994, the claimant received a referral for a job interview with Homestead Industries. At the interview he expressed his preference for first-shift work but was told the openings were for second (3:00 p.m. to 11:00 p.m.) and third (11:00 p.m. to 7:00 a.m.) shifts. He informed the interviewer that a second shift job would interfere with his selectman duties and that he might occasionally be late for third shift on Mondays because the selectman meetings sometimes ran late. He was not considered for either shift because the job required standard hours. The certifying officer determined that he was ineligible for further unemployment benefits because of the restrictions imposed by his selectman duties. The claimant appealed to the appeal tribunal, which, after a hearing, determined that the claimant had been employed in an occupation requiring shift availability. The tribunal concluded that because of his position as a selectman, the claimant was unable to work second shift and placed limits on his ability to work third shift, thereby severely limiting his ability to work all hours and all shifts as required by RSA 282-A:31, 1(c) (1987). The claimant sought review of this decision from the appellate board, which affirmed the appeal tribunal and denied his motion for reconsideration. This appeal followed.

When reviewing decisions of the DES we will not substitute our judgment for that of the DES regarding the weight of the evidence on questions of fact. We will, however, reverse the appeal tribunal where its conclusions are affected by an error of law or are clearly erroneous.

[670]*670Appeal of Durocher, 137 N.H. 437, 440, 629 A.2d 94, 96 (1993) (quotations omitted). We conclude that the appeal tribunal erred as a matter of law.

In order for a claimant to be eligible for benefits, the commissioner must find that the claimant is

ready, willing and able to accept and perform suitable work on all the shifts and during all the hours for which there is a market for the services he offers and that he has exposed himself to employment to the extent commensurate with the economic conditions and the efforts of a reasonably prudent man seeking, work.

RSA 282-A:31,1(c). “It is well established that to be ‘ready, willing and able’ to accept suitable work does not demand total availability.” Philbrook v. Adams, 119 N.H. 298, 301, 401 A.2d 1070, 1072 (1979). “The purpose of the requirement is to test the claimant’s attachment to the job market, a determination which is made by reference to the facts and reasonable circumstances of each case.” St. Germain v. Adams, 117 N.H. 659, 662, 377 A.2d 620, 623 (1977). We have recognized a number of situations in which the claimant was eligible for benefits despite the fact that the claimant was not available twenty-four hours per day. See Appeal of Beckman, 131 N.H. 315, 318, 553 A.2d 288, 290 (1988) (claimant available despite lack of transportation to particular job); Springer v. Dep’t of Empl. Sec., 120 N.H. 520, 523, 418 A.2d 1277, 1279 (1980) (picketing four hours per week did not raise presumption that claimants were unavailable); St. Germain, 117 N.H. at 662, 377 A.2d at 623 (waitress unable to work every Sunday considered available).

Implicit in our earlier decisions is the consideration that the claimant have a valid excuse for restricting his ability to work all shifts and all hours. One such limitation on the claimant’s ability to work all shifts and all hours may be the inability to accept a specific job due to a unique job requirement. Cf. Beckman, 131 N.H. at 318, 553 A.2d at 290. A justifiable personal restriction may also be a qualifying limitation. Cf. St. Germain, 117 N.H. at 662, 377 A.2d at 622-23. Additionally, a claimant may be able to restrict his ability to work all shifts and all hours if the limitation is supported by public policy. Cf. Roukey v. Riley, 96 N.H. 351, 352, 77 A.2d 30, 32 (1950) (applying prior law). On the other hand, if the reason for the claimant’s inability to work all hours and all shifts simply reflects the claimant’s unwillingness to work, the claimant is unavailable, and hence not eligible for benefits. See Beckman, 131 N.H. at 318, 553 A.2d at 290.

[671]*671Establishing a qualifying limitation, however, is not sufficient for the claimant to be eligible for benefits if the restriction on the hours that the claimant can work does not leave the claimant substantially available to work all hours and all shifts. See Huntley v. Dept. of Employment Sec., 397 A.2d 902, 907 (R.I. 1979) (noting that both the degree of and the reason for the restriction should be considered when determining availability). In Goings v. Riley, 98 N.H. 93, 95 A.2d 137 (1953) (applying prior law), for example, the claimant refused to work second and third shifts because she needed to care for her paralyzed mother. Although family obligations may be a qualifying limitation, because the limitations on the hours she was willing to work were so great, there was no reasonable possibility that the claimant would find suitable work. Therefore, she was considered unavailable within the meaning of the statute. Id. at 95, 95 A.2d at 139.

The New Hampshire unemployment compensation statute is different from statutes in other States. Many other statutes require only that the claimant be “available for work.” E.g., Mass. Gen. L. ch. 151A, § 24(b) (1996) (claimant must be “available and actively seeking work”); R.I. Gen. Laws § 28-44-12 (1986); Vt. Stat. Ann. tit.

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Related

Goings v. Riley
95 A.2d 137 (Supreme Court of New Hampshire, 1953)
St. Germain v. Adams
377 A.2d 620 (Supreme Court of New Hampshire, 1977)
Shufelt v. Department of Employment & Training
531 A.2d 894 (Supreme Court of Vermont, 1987)
Philbrook v. Adams
401 A.2d 1070 (Supreme Court of New Hampshire, 1979)
Huntley v. Department of Employment Security
397 A.2d 902 (Supreme Court of Rhode Island, 1979)
Roukey v. Riley
77 A.2d 30 (Supreme Court of New Hampshire, 1950)
Springer v. State Department of Employment Security
418 A.2d 1277 (Supreme Court of New Hampshire, 1980)
Appeal of Beckman
553 A.2d 288 (Supreme Court of New Hampshire, 1988)
Appeal of Durocher
629 A.2d 94 (Supreme Court of New Hampshire, 1993)

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Bluebook (online)
671 A.2d 112, 140 N.H. 667, 1996 N.H. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-williamson-nh-1996.