Gershteyn v. ICAO
This text of Gershteyn v. ICAO (Gershteyn v. ICAO) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1513 Industrial Claim Appeals Office of the State of Colorado DD No. 14657-2024
Pavel Gershteyn,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Division of Unemployment Insurance,
Respondents.
ORDER SET ASIDE
Division II Opinion by JUDGE LUM Fox and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025
Pavel Gershteyn, Pro Se
No Appearance for Respondents ¶1 In this unemployment benefits case, claimant, Pavel
Gershteyn, seeks review of a final order of the Industrial Claim
Appeals Office (Panel) disallowing his claim for benefits during the
week of February 11-17, 2024. We set aside the Panel’s order.
I. Introduction
¶2 Under section 8-73-107(1)(g)(I), C.R.S. 2024, a claimant is
“eligible to receive benefits with respect to any week only if the
[D]ivision finds that . . . [h]e or she is actively seeking work.” This
case turns on the proper interpretation and application of a
regulatory exception to this general rule. See Dep’t of Lab. & Emp.
Regs. 2.4.4-2.4.6, 7 Code Colo. Regs. 1101-2.
II. Relevant Facts and Procedural History
¶3 The following facts are undisputed. In December 2023,
Gershteyn’s former employer eliminated his position and placed him
on a furlough. Gershteyn filed a claim for benefits with the Division
of Unemployment Insurance (“Division”).
¶4 Shortly after filing his claim, Gershteyn called the Division to
ask whether his status as a furloughed employee rendered him
“job-attached” within the meaning of Regulations 2.4.4-2.4.6 and
therefore exempted him from the general requirement that
1 claimants actively search for new employment. See § 8-73-
107(1)(g)(I). A Division employee told Gershteyn that only a start
date for employment triggered “job-attached” status. Acting on this
advice, Gershteyn engaged in job search activities through Friday,
February 9, 2024, when he accepted a job offer from a new
employer and received a start date of March 4, 2024 —
approximately three weeks after he accepted the job offer.
¶5 Presuming he was “job-attached” upon receiving the March 4
start date, Gershteyn performed no job search activities during the
weeks of February 11-17 and February 18-24. At some point
during the week of February 18-24, Gershteyn spoke with another
Division employee who explained that “job-attachment” status only
triggered upon an offer of employment from a claimant’s former
employer. Gershteyn resumed job search activities during the week
of February 25-March 2.
¶6 A deputy for the Division determined that Gershteyn was not
entitled to receive benefits the weeks of February 11-17 and 18-24
because Gershteyn had not engaged in job search activities during
those weeks.
2 ¶7 Gershteyn appealed the deputy’s decision to a Division hearing
officer, arguing that he had acted in good faith upon the Division’s
original advice and that fairness dictated that he receive benefits.
The hearing officer agreed with the deputy that “job-attachment”
status triggered only upon an offer from his former employer, and,
thus, Gershteyn’s acceptance of new employment had no effect on
his job-attachment status.
¶8 Gershteyn appealed the hearing officer’s decision to the Panel,
who determined that the hearing officer had misconstrued the law.
The Panel explained that section 8-73-107(1)(g)(I) generally
conditions eligibility on the claimant’s active efforts to secure
employment. However, the Panel noted, Regulations 2.4.4-2.4.6, 7
Code Colo. Regs 1101-2, provide a two-week exemption from this
requirement when a claimant accepts a job offer from a new
employer. According to the Panel, since Gershteyn’s “start date for
his new job was March 4, 2024, he was not required to perform job
search activities for a maximum of two weeks before that start date,
which would be Sunday, February 18, 2024, through Saturday,
March 2, 2024.” However, the Panel found Gershteyn “was
required to perform job search activities during the week before this
3 period; i.e., February 11-17, 2024.” Thus, the Panel modified the
hearing officer’s order to disallow benefits for the week of February
11-17, 2024.
¶9 Gershteyn appeals, arguing that the Panel misinterpreted the
applicable regulations, and that he enjoyed “job-attached” status
during the week of February 11-17, 2024. We agree.
III. Analysis
¶ 10 We may set aside an order of the Panel premised on legal
error. § 8-74-107, C.R.S. 2024. We review an agency’s regulatory
interpretations de novo but accord deference to an agency’s
reasonable interpretation of a regulation it administers. Stell v.
Boulder Cnty. Dept. of Soc. Servs., 92 P.3d 910, 915-16 (Colo. 2004).
Thus, we set aside an agency’s interpretation only “if it is
inconsistent with the clear language of the statute or with the
legislative intent.” Support, Inc. v. Indus. Claim Appeals Off., 968
P.2d 174, 175 (Colo. App. 1998).
¶ 11 Under section 8-73-107(1)(g)(I), a claimant is “eligible to
receive benefits with respect to any week only if the [D]ivision finds
that . . . [h]e or she is actively seeking work.” However, Regulation
4 2.4.6 carves out an exception to this requirement for “job-attached”
claimants:
During the period of job attachment set forth in regulation 2.4.5, a job-attached claimant . . . shall not be required to search for work elsewhere . . . .
Dep’t of Lab. & Emp. Regs. 2.4.6, 7 Code Colo. Regs. 1101-2. A
claimant may achieve job-attachment status under a variety of
circumstances, including where they have accepted new
employment:
A claimant who has an assurance of new work shall be considered job-attached to the extent permitted by regulation 2.4.5, and such period shall commence with the week in which the offer of new work was accepted. “New work” for the purposes of this section 2.4 shall mean a job offer . . . made by any employer other than the employer from whom the claimant most recently separated.
Dep’t of Lab. & Emp. Regs. 2.4.4, 7 Code Colo. Regs. 1101-2.
Under Regulation 2.4.5, “[j]ob attached status may be granted for a
period of no more than two weeks to a claimant with a promise of
new work.” Dep’t of Lab. & Emp. Regs. 2.4.5, 7 Code Colo. Regs.
1101-2.
5 ¶ 12 In interpreting the above provisions, the Panel correctly
determined that Gershteyn’s offer of new employment allowed him
two weeks’ job-attachment status. However, the Panel held that
period began two weeks before Gershteyn’s start date of March 4,
2024. That interpretation fails to give effect to Regulation 2.4.4’s
express mandate that the job-attachment period “shall commence
with the week in which the offer of new work was accepted.”
¶ 13 Under Regulation 2.4.4’s plain language, because Gershteyn
accepted the employment offer on February 9, 2024, his job-
attachment period began that week. And under Regulation 2.4.5, it
extended through the week of February 11-17.1 Thus, Gershteyn
was exempted from searching for work during the week of February
¶ 14 Because the Panel incorrectly determined that Gershteyn was
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
Gershteyn v. ICAO, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gershteyn-v-icao-coloctapp-2025.