Regnante v. Indiana Unemployment Insurance Board

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

James R. Regnante appeals the decision of the Indiana Department of Employment and Training Services ("IDETS") denying him Indiana unemployment insurance benefits at the New York rate. We affirm.

ISSUE

Was IDETS's decision granting Reg-nante unemployment insurance benefits only at the Indiana rate contrary to law?

FACTS

Regnante was an auditor for the Indiana Department of Revenue ("IDOR") from 1977 to 1990. He performed his services for IDOR in the State of New York. On April 20, 1990, IDOR discharged Regnante. He filed a claim for unemployment benefits with New York, which was denied. New York referred Regnante's claim to IDETS. IDETS determined that Regnante was eligible for Indiana unemployment benefits under IND.CODE § 22-4-8-2(i). Regnante appeals the amount of benefits, claiming that he was entitled to benefits at the New York rate instead of the Indiana rate.

DISCUSSION AND DECISION

Initially, Regnante argues that IDOR violated his rights by its refusal to elect voluntarily to cover his claims under New York laws. N.Y.Labor Law § 561 (MecKin-ney 1988) permits an employer who is not liable for contributions to New York's unemployment compensation insurance fund to become liable therefor by voluntarily electing to do so. Regnante contends that if IDOR had made a § 561 election, then he would have received unemployment benefits from New York. Regnante asserts that IDOR's refusal to make a § 561 election is based upon "national origin and monetary reasons". He fails to present cogent argument supporting these accusations; therefore, we do not consider them further. See Ind.Appellate Rule 8.3(A)(7).

Likewise, Regnante contends that his rights under Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1968, the Fourteenth Amendment of the United States Constitution, and Article I, Section 21 of the Indiana Constitution were violated. We do not consider these allegations because he fails to present cogent argument in regard to them, and hence, has waived review of them. See id.; Foster v. Adoption of Federspiel (1990), Ind.App., 560 N.E.2d 691, 692 (pro se litigants must follow the rules of appellate procedure).

Regnante also attacks IDETS's statement that it has no jurisdiction to require New York to consider him employed under New York law. He contends that a reciprocal agreement should have been entered between Indiana and New York pursuant to IND.CODE §§ 22-4-22-1 and -2 and IND.ADMIN.CODE tit. 640, r. 1-12 and r. 1-13 ("r. 1-12" and "1-18"). We first address the State's contention that Reg-nante's employment was covered by I.C. § 22-4-8-2(b), and therefore, 1.C. §§ 22-4-22-1 and -2 are not applicable. We disagree with the State's interpretation of I.C. § 22-4-8-2(b). The statute provides:

"The term 'employment' shall include:

(b) An individual's entire service performed within or both within and without this state if the service is not localized in any state, but some of the service is performed in this state ..."

LC. § 22-4-8-2(b). Regnante performed his services for IDOR in New York, not Indiana. Therefore, the service is deemed to be localized within New York. See I.C. § 22-4-8-2(e) (service localized if performed entirely within such state) The remaining subsections of I.C. § 22-4-8-2(b), particularly (A) and (C), are not triggered because Regnante's service was localized in New York. I.C. § 22-4-8-2(b) is not applicable to Regnante's situation.

The decision in Collins v. Administrator, Unemployment Compensation Act (1950), 186 Conn. 887, 71 A.2d 604, supports our holding that Regnante's employment is not covered by I.C. § 22-4-8-2(b). The Connecticut court found that a salesman had not been "employed"² to be eligible for Connecticut unemployment benefits. The salesman was employed by a Connecticut corporation, but performed all of his work outside of Connecticut in New York. Because the out-of-state employee/salesman failed to satisfy § 7495's definition of "employment" or any other statutory provision entitling him to benefits, he was not eligible for Connecticut unemployment benefits. Id. at 392, T1 A.2d at 606. Similarly, Regnante's services were localized within New York. He has not met the definition of "employment" in I.C. § 22-4-8-2(b). See Story v. Reed, Roberts Associates, Inc. (1967), 28 A.D.2d 1186, 284 N.Y.S.2d 556 (services of claimant were localized within Florida so employment by New York company was not employment under New York law); In re Boyle (1962), 15 A.D.2d 699, 223 N.Y.S.2d 370 (claimant employed by New York company, but worked entirely in Connecticut did not qualify for New York unemployment benefits because his work was localized in Connecticut); see also Stevens v. Division of Employment & Security (1940), 207 Minn. 429, 291 N.W. 890 (no "employment" in Minnesota where employee performed all work outside of state).

We return to Regnante's argument that I.C. §§ 22-4-22-1 and -2 and r. 1-12 and r. 1-13 should have been followed. When subsections I.C. §§ 22-4-8-2(a) and (b) do not apply, I.C. § 22-4-8-2(c) provides that services performed entirely without this state, where no part of which contributions are required and paid under an unemployment compensation law of any other state, may be deemed employment subject to I.C. § 22-4-8-1 et seq., if the department approves the election of the individual performing the services. This election must be made in accordance with an agreement complying with LC. §§ 22-4-22-1 through 22-4-22-5. I.C. § 22-4-8-2(d). The Unemployment Insurance Board is authorized to enter reciprocal agreements with other states concerning employees working in Indiana and another state for a single employer when such situations are not provided for by IND.CODE § 22-4-8-2(b). See I.C. § 22-4-22-1. Regnante also cites r. 1-12 and r. 1-13, which approve of reciprocal agreements being arranged regarding employees performing services in more than one state. Regnante fails to recognize that these statutes and regulations are not available to him because he did not perform services in more than one state.

Upon finding the statutes cited by both parties are not decisive here, we affirm IDETS's decision that Regnante was eligible for unemployment benefits at the Indiana rate. However, IDETS mistakenly quoted 1.C. § 22-4-8-2(i) as being the applicable section. This section refers to state employees at hospitals and higher education institutions. The next subsection, 1.C. § 22-4-8-2(i)(1), is the correct portion which includes Regnante's employment as covered by the act. I.C. $ 22-4-8-2(i)(1) provides that employment under the unemployment compensation act includes "service performed after December 31, 1977, by an individual in the employ of this state or . any instrumentality of the state...." Regnante was an Indiana state employee regardless of the situs of his employment, and therefore, was covered under I.C. § 22-4-8-2(i)(1). We uphold the determination that Regnante was an insured worker under the act and eligible for unemployment benefits at the Indiana rate.

Affirmed.

BUCHANAN and SHARPNACK, JJ., concur.

2 . Connecticut law has the same definition of "employment" as Indiana. See Conn.Gen.Stat. § 7495.