Tech. v. ICAO , 2020 COA 29 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 13, 2020
2020COA29
No. 19CA0638, Keysight Tech. v. ICAO — Labor and Industry —
Colorado Employment Security Act — Premiums and Coverage
— Transfer of Experience and Assignment of Rates
On a matter of first impression, a division of the court of
appeals considers whether the Division of Unemployment Insurance
was required to transfer the experience — essentially the claims
history for purposes of calculating a statutory employer’s
unemployment insurance premium rate — of a predecessor
employer to a successor employer that had spun off several years
earlier. The division holds that the Division of Unemployment
Insurance was not required to transfer the predecessor employer’s
experience pursuant to section 8-76-104(2)(b), C.R.S. 2019. The
division additionally holds that, under applicable Division of
Unemployment Insurance regulations, the successor employer’s
experience transfer/rate modification request was untimely. The
division, thus, affirms.
COLORADO COURT OF APPEALS 2020COA29
Court of Appeals No. 19CA0638
Industrial Claim Appeals Office of the State of Colorado
DD No. 46273-2018
Keysight Technologies, Inc.,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Division of
Unemployment Insurance,
Respondents.
ORDER AFFIRMED
Division VII
Opinion by JUDGE LIPINSKY
Fox and Berger, JJ., concur
Announced February 13, 2020
Akerman LLP, Brian M. Nugent, Melissa L. Cizmorris, Denver, Colorado, for
Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Philip J. Weiser, Attorney General, Krista Maher, Assistant Attorney General,
Denver, Colorado, for Respondent Division of Unemployment Insurance
¶1 This unemployment compensation tax appeal presents a
narrow question: Is the Division of Unemployment Insurance
(Division) required to transfer the “experience” — essentially the
claims history for purposes of calculating a statutory employer’s
unemployment compensation insurance premium rate — of a
predecessor employer, Agilent Technologies, to a successor
employer, the petitioner, Keysight Technologies, Inc., which had
been spun off from Agilent several years earlier?
¶2 The Industrial Claim Appeals Office (Panel) concluded that
several statutory provisions, including, as pertinent here, section
8-76-104(2)(b), C.R.S. 2019, do not require transferring Agilent’s
experience to Keysight. We agree with the Panel’s construction of
the statute. We also conclude that, under applicable Division
regulations, Keysight’s experience transfer/rate modification
request was untimely. Consequently, we affirm the Panel’s order.
I. Background
¶3 Keysight was created and spun off from Agilent in 2014.
Keysight, which is wholly owned by Agilent, was not an active
business before the spinoff. Keysight acquired 75% of Agilent’s
Colorado employees and half of Agilent’s infrastructure, and became
1
a Colorado statutory employer. Keysight applied for its own
Colorado unemployment compensation insurance account. The
Division notified Keysight of its account number and premium rate
in October 2014.
¶4 More than three years later, in 2018, Keysight asked the
Division to transfer Agilent’s experience to Keysight and “revise
Keysight’s unemployment tax rates starting on its liability date
forward.” (A statutory employer’s unemployment compensation tax
rate is based on a number of factors, including the unemployment
compensation benefit payments made to its former employees over
the twelve-month period before the “computation date.” § 8-76-
102.5(3), C.R.S. 2019.)
¶5 The Division denied Keysight’s request. After a series of
appeals, hearing officer decisions, and Panel remand orders, the
hearing officer entered a decision addressing whether certain
subsections of section 8-76-104 authorize the transfer of Agilent’s
experience to Keysight.
¶6 The hearing officer concluded that section 8-76-104(3), which
addresses an employer’s transfer of a “clearly segregable unit” of its
business to a successor, does not apply because Keysight “was not
2
a segregable unit” of Agilent. (The hearing officer further concluded
that, because section 8-76-104(3) does not apply, the sixty-day
statutory time limit for applications to transfer unemployment
compensation experience under this subsection also does not apply.
See § 8-76-104(3)(g).)
¶7 The hearing officer further concluded that section
8-76-104(1)(a), which addresses entities that become employers by
acquiring “all of the organization, trade, or business or substantially
all of the assets of one or more employers,” does not apply because
Keysight had acquired 75% of Agilent’s Colorado employees and
only half of its infrastructure.
¶8 The hearing officer concluded, however, that section
8-76-104(2)(b) applies. That subsection addresses an employer’s
transfer of all or part of its trade or business to another employer
where there is substantially common ownership, management, or
control of the two employers immediately following the transfer.
The hearing officer determined that the Division must transfer
Agilent’s experience to Keysight and recalculate Keysight’s premium
rate “made effective immediately upon the date of the transfer of the
trade or business” from Agilent.
3
¶9 The Panel affirmed in part and reversed in part. The Panel
upheld the hearing officer’s determination that subsections (1) and
(3) of section 8-76-104 do not apply to allow transfer of Agilent’s
experience to Keysight. However, contrary to the hearing officer’s
decision, the Panel also concluded that subsection (2)(b) does not
apply. Specifically, it concluded that section 8-76-104(2), including
subsection (2)(b), only addresses situations in which the
successor/transferee employer was already a statutory employer
before it acquired all or part of the predecessor/transferor
employer’s trade or business. Because Keysight did not exist before
the transfer from Agilent, the Panel concluded that subsection (2)(b)
does not apply and that Keysight does “not qualify for a transfer of
experience under this section.”
II. Discussion
A. Section 8-76-104(2)(b)
¶ 10 Keysight contends that the Panel incorrectly interpreted
section 8-76-104(2)(b) as applying only when the successor
employer was an existing statutory employer before the trade or
business was transferred to it. We perceive no error.
4
¶ 11 When construing statutes, we seek to give effect to the General
Assembly’s intent. Colo. Med. Bd. v. McLaughlin, 2019 CO 93, ¶ 22,
451 P.3d 841, 845. We read words and phrases in context,
according them their plain and ordinary meanings. Id.; see also
Rooftop Restoration, Inc. v. Am. Family Mut. Ins. Co., 2018 CO 44,
¶ 12, 418 P.3d 1173, 1176. If the language is clear, we apply it as
written and need not resort to other tools of statutory
interpretation. Colo. Med. Bd., ¶ 22, 451 P.3d at 845.
¶ 12 “A ‘cardinal principle of statutory construction’ is that no
clause, sentence, or word is ‘superfluous, void, or insignificant.’”
Falcon Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1,
2018 COA 92, ¶ 31, ___ P.3d ___, ___ (quoting TRW Inc. v. Andrews,
534 U.S. 19, 31 (2001)). “Statutory interpretation presents a
question of law that we review de novo.” Colo. Med. Bd., ¶ 22, 451
P.3d at 845.
¶ 13 Section 8-76-104(2)(b) provides, in relevant part, as follows:
If an employer transfers all or a portion of its
trade or business to another employer and, at
the time of the transfer, there is substantially
common ownership, management, or control of
the two employers, the unemployment
experience attributable to the predecessor
employer shall be transferred to the successor
5
employer. The rates of both employers shall be
recalculated and made effective immediately
upon the date of the transfer of the trade or
business.
(Emphasis added.)
¶ 14 The Division argues, and we agree, that subsection (2)(b)’s
language requiring that the premium rate of the successor employer
be “recalculated” necessarily contemplates that the successor
employer had a Division-calculated premium rate before the
transfer. Importantly, the word “recalculate” means “to calculate or
estimate again.” Webster’s Third New International Dictionary 1893
(2002). And having a pre-existing Division-calculated premium
rate, in turn, contemplates that the successor employer was already
a statutory employer. See generally § 8-76-102.5 (setting forth the
methods and procedures for calculating employer premium rates).
¶ 15 Keysight relies on section 8-76-104(2)(a), which addresses
transfers between employers where “there is no substantial
common ownership, management, or control of the two employers.”
Keysight specifically points to this subsection’s language, stating
that it applies “if the successor employer was an employer . . . prior
to the date of acquisition.” Keysight argues that, because
6
subsection (2)(b) does not contain similar language, it does not
require that the successor employer was a pre-existing statutory
employer.
¶ 16 The Panel concluded, however, that when subsections (2)(a)
and (2)(b) are read together, both address “situations where an
employer transfers all or a portion of its trade or business to
another already existing employer,” and the difference in the two
subsections’ applicability turns merely on “whether there is
substantial common ownership between the two employers.”
¶ 17 We acknowledge that subsection (2) is not a model of clarity.
Even so, reading subsections (2)(a) and (2)(b) together, and
considering subsection (2)(b)’s requirement that the premium rate
of the successor employer be “recalculated,” we perceive no error in
the Panel’s conclusion that subsection (2)(b), like subsection (2)(a),
addresses circumstances where the transferee/successor employer
was an existing employer at the time of the transfer.
¶ 18 Keysight argues that the Panel’s interpretation of subsection
(2)(b) leads to unfair results, conflicts with the SUTA Dumping
Prevention Act, see 42 U.S.C. § 503 (2018), and places Colorado at
risk of losing federal funds. (“SUTA” stands for the State
7
Unemployment Tax Act. Colo. Div. of Emp’t & Training v. Accord
Human Res., Inc., 2012 CO 15, ¶ 20 n.4, 270 P.3d 985, 990 n.4.)
Assuming, without deciding, that these arguments are correct, we
must still interpret the statute as written. Any modification of the
statute required to make it “fairer” or make it better comport with
federal law is a task for the General Assembly, not for a division of
this court. See Jenkins v. Pan. Canal Ry. Co., 208 P.3d 238, 243-44
(Colo. 2009) (noting that, insofar as the General Assembly made a
mistake in reenacting a statute without considering the effect on
another statute, “that mistake is for the General Assembly to
remedy, not this court”); Nelson v. Indus. Claim Appeals Office, 219
P.3d 416, 420 (Colo. App. 2009) (concluding that “the effect of [a]
statute is a policy consideration within the province of the General
Assembly and not this court”), aff’d sub nom. Specialty Rests. Corp.
v. Nelson, 231 P.3d 393 (Colo. 2010).
¶ 19 Because section 8-76-104(2)(b) contemplates that the
successor employer was an existing statutory employer before it
acquired all or part of the predecessor employer’s trade or business,
and because Keysight was not a statutory employer before it
acquired part of Agilent’s trade or business, the Panel correctly
8
concluded that this subsection did not require the Division to
transfer Agilent’s experience to Keysight and recalculate its
premium rate.
B. Keysight’s Request Was Untimely
¶ 20 The Division argues that a separate basis for affirming the
Panel’s order is that Keysight did not timely request revision of its
premium rate through the transfer of Agilent’s experience. We
agree.
¶ 21 Section 8-76-113(2), C.R.S. 2019, provides, in relevant part,
that an employer wishing to protest a notice of premium rate “shall
file a request for redetermination with the [D]ivision, in accordance
with rules promulgated by the director of the [D]ivision.” In October
2014, when the Division notified Keysight of its premium rate,
Division regulations provided as follows:
An employer who wishes to protest a notice of
his or her premium rate shall file a written
request for redetermination of the premium
rate. The written request for redetermination
must be received by the Division within twenty
calendar days of the date the rate notice was
issued.
Dep’t of Labor & Emp’t Reg. 11.1.4, 7 Code Colo. Regs. 1101-2
(2014); see Westfall v. Town of Hugo, 851 P.2d 299, 303 (Colo. App.
9
1993) (appellate court may properly take judicial notice of state
administrative regulations).
¶ 22 Keysight does not argue that Regulation 11.1.4’s twenty-day
time limit did not apply to its request. The record shows that
Keysight apparently filed the request because it believed the
Division had assigned it an erroneous tax rate. Indeed, at one of
the hearings, a Keysight witness testified that Keysight requested
the experience transfer when it discovered that the Division had
allegedly “assigned an incorrect tax rate.”
¶ 23 Keysight instead argues that the Division waived any
timeliness challenge under Regulation 11.1.4 because it did not
raise the argument during the administrative proceedings. But an
appellee may defend the underlying judgment or ruling on any
ground supported by the record, so long as the appellee’s rights are
not thereby increased. See Farmers Grp., Inc. v. Williams, 805 P.2d
419, 428 (Colo. 1991); Regency Realty Inv’rs, LLC v. Cleary Fire
Prot., Inc., 260 P.3d 1, 7 (Colo. App. 2009); Olsen & Brown v. City of
Englewood, 867 P.2d 96, 99 (Colo. App. 1993), aff’d, 889 P.2d 673
(Colo. 1995).
10
¶ 24 The record shows that Keysight waited more than three years
to request the change in its premium rate, well beyond Regulation
11.1.4’s twenty-day deadline. Consequently, we agree with the
Division that Keysight’s untimely request provides a separate basis
for upholding the Panel’s ruling. See Stevenson v. Indus. Comm’n,
705 P.2d 1020, 1021 (Colo. App. 1985) (affirming disqualification
from benefits under alternative statutory subsection on which Panel
did not rely).
III. Conclusion
¶ 25 The Panel’s order is affirmed.
JUDGE FOX and JUDGE BERGER concur.
11