Dorsey v. Department of Workforce Services

This opinion is subject to revision before final
publication in the Pacific Reporter.
2014 UT 22
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
JOHN DORSEY,
Respondent,
v.
DEPARTMENT OF WORKFORCE SERVICES and
WORKFORCE APPEALS BOARD,
Petitioners.
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No. 20130073
Filed June 20, 2014
———————
On Certiorari to the Utah Court of Appeals
———————
Attorneys:
David E. Ross III, Park City, for respondent
Amanda B. McPeck, Salt Lake City, for petitioners
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
———————
JUSTICE LEE, opinion of the court:
¶1 The Department of Workforce Services has adopted a rule
deeming unemployment claimants ineligible for benefits if they
travel outside the United States for more than two weeks. UTAH
ADMIN. CODE r. 994-403-112c(2)(a)(i)(B) (2011). In the administra-
tive proceedings below, the principal dispute concerned the ques-
tion whether this rule could properly extend to a seasonal worker
who was not required to seek work as a prerequisite to qualifying
for benefits. That question was resolved against claimant John
Dorsey in the administrative proceedings below, but in his favor
in the court of appeals. We affirm the court of appeals, concluding
that the rule as extended to a claimant not required to search for
work is incompatible with the controlling language of the statute.
¶2 The legislature has recently amended the governing statute
in a manner endorsing the Department’s position. UTAH CODE
DORSEY v. DEPARTMENT OF WORKFORCE SERVICES
Opinion of the Court
§ 35A-4-403(3) (2013). But the amendment was not retroactive and
does not apply to this case. We accordingly consider the parties’
arguments under the law as it stood before this amendment. See
id. § 35A-4-403 (2011). 1 And we hold, affirming the court of ap-
peals, that the rule adopted by the Department and extended to a
seasonal worker not required to search for work is incompatible
with the governing statutory provision. Thus, we conclude that
Dorsey’s statutory eligibility for benefits turned only on whether
he was “able” and “available” for work, UTAH CODE § 35A-4-
403(1)(c), and find him eligible for unemployment benefits under
the statute as we interpret it in light of the unchallenged adminis-
trative determination of his ability and availability for work.
I
¶3 This case arises out of a series of unemployment claims
filed by John Dorsey for periods of time when he was in Baja Cali-
fornia, Mexico, during the offseason of his job as a server at a Utah
resort. During the winter and summer months, Dorsey worked
full time as a server at a seasonal restaurant in Park City. Each
time that restaurant closed during the offseason, Dorsey opened a
claim for unemployment benefits with the Department of Work-
force Services. Because he was considered a seasonal employee,
Dorsey was granted a deferral from the requirement of searching
for work as a prerequisite to eligibility for benefits. UTAH ADMIN.
CODE r. 994-403-108b(1)(c) (authorizing the Department to defer
work search requirements for claimants who have “an attachment
to a prior employer and a date of recall to full-time employment
within ten weeks”). Thus, the Department instructed Dorsey that
he was “not required to look for work,” but must be “available for
full[-]time work.”
¶4 Dorsey traveled to Mexico on four separate occasions to
camp and surf during periods in which he was receiving unem-
ployment benefits. Each of these trips lasted longer than a month.
While in Mexico, Dorsey’s employer was able to reach him via cell
phone or email. Dorsey contacted his employer on a few occasions
to make sure that he was not needed earlier than his understood
return-to-work date. It is undisputed that Dorsey was willing and
able to cut his trip short and fly or drive back to Utah if necessary,
and that he would have been able to make it back to Utah within
twenty-four hours.
1 Unless otherwise noted, all citations to the Utah Code and the
Utah Administrative Code refer to the 2011 versions.
2
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Opinion of the Court
¶5 To receive benefits, Dorsey was required to call the De-
partment’s Claim Center once a week to file a claim. Each week he
answered “yes” to the question, “during the week, were you able
and available for full-time work?”
¶6 In a phone call Dorsey had with the Claim Center on May
10, 2011, Dorsey mentioned that he was in Mexico. That call
prompted the Department to investigate. The Department con-
cluded that Dorsey had been ineligible to receive unemployment
benefits during all four of his trips to Mexico. Dorsey appealed the
decision to an Administrative Law Judge. In the proceedings be-
fore the ALJ, the parties conceded Dorsey’s practical availability
for work but litigated the legality and applicability of the Depart-
ment’s rule foreclosing benefits for those traveling outside the
United States for over two weeks.
¶7 The ALJ affirmed the Department. Under the ALJ’s ruling,
Dorsey was held liable for more than $15,000 in overpaid unem-
ployment benefits and statutory penalties. Dorsey appealed to the
Workforce Appeals Board, which also affirmed. Dorsey then ap-
pealed that decision to the court of appeals.
¶8 In the court of appeals, the Department justified its denial
of unemployment benefits based primarily on an interpretation of
its own regulations. The applicable administrative rule is the 2011
version of Utah Administrative Code rule 994-403-113(c)(i)(B).
That rule states that “[a] claimant who is out of the United States
for more than two weeks is not eligible for benefits for any of
those weeks.” Id. The Department interpreted this provision as a
per se bar on extended international travel, automatically catego-
rizing any claimant staying abroad for more than two weeks as
ineligible for benefits. No exceptions.
¶9 Dorsey offered a contrary construction of the rule. He read
it as applying only to claimants required to seek work, and not to
those (like Dorsey) exempted from such a requirement because,
for example, they are classified as seasonal workers.2 UTAH
2 In general, those claiming unemployment benefits must show
that they are making “a good faith effort to secure employment.”
UTAH CODE § 35A-4-403(1)(b). A claimant may be placed on “de-
ferred status” and be exempt from looking for work, however, if
the claimant “has an attachment to a prior employer and a date of
recall to full-time employment within ten weeks of filing or reo-
3
DORSEY v. DEPARTMENT OF WORKFORCE SERVICES
Opinion of the Court
ADMIN. CODE r. 994-403-108b. In support of that view, Dorsey em-
phasized the context of the two-week rule. First, he noted that a
claimant is not considered “available for work” if the “claimant is
away from his or her residence,” unless the claimant “has made
arrangements to be contacted and can return quickly enough to
respond to any opportunity for work.” Id. r. 994-403-112c(2)(a).
And in addition, Dorsey suggested that the next subsection, titled
“Travel Which is Necessary to Seek Work,” indicates that claim-
ants who cannot return quickly may still be eligible if the trip was
for the purpose of seeking work, provided that the trip does not
exceed two weeks. Id. r. 994-403-112c(2)(a)(i). Thus, according to
Dorsey, because the two-week bar appears in the context of provi-
sions for claimants who are required to seek work and are unable
to show that they “can return quickly,” the two-week cutoff
should not apply to a claimant not required to search for work.
¶10 The court of appeals reversed. It acknowledged that both
readings “of the rule [were] plausible when read in isolation,” but
held that the Department’s interpretation was inconsistent “with
the statute the rule implements.” Dorsey v. Dep’t of Workforce
Servs., 2012 UT App 364 ¶ 18, 294 P.3d 580. In the court of appeals’
view, the Department’s interpretation of the rule “creates a non-
statutory category of ineligible claimants, essentially all those
traveling outside the United States and Canada for more than two
weeks.” Id. ¶ 21. And the court of appeals concluded that an “ir-
rebuttable presumption” that such claimants are always unavaila-
ble was incompatible with the text of the statute. Id.
¶11 We granted certiorari and now affirm.
II
¶12 The case before us implicates questions of both regulatory
and statutory interpretation—of whether the Department’s rule
barring unemployment benefits for those traveling extensively
outside the United States applies to a claimant not required to
pening a claim.” UTAH ADMIN. CODE r. 994-403-108b(1)(c). This
policy allows employers with seasonal or cyclical labor needs to
maintain the availability of their trained labor force while closed
for short periods. The employer is liable for the cost of those bene-
fits, however, so the deferral program does not disproportionately
burden taxpayers or employers that maintain a continuous work-
force. See id. r. 994-306-101.
4
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Opinion of the Court
search for work, and of whether the rule so construed is compati-
ble with the statute. Of those issues, the threshold question is
statutory. If in adopting the rule in question the Department “has
erroneously interpreted or applied the law,” UTAH CODE § 63G-4-
403(4)(d), then our review of Dorsey’s claim would be under the
statute and not under the Department’s rule.
¶13 We dispose of the case on that basis. We hold that the De-
partment’s ban on international travel is incompatible with the
text of the statute insofar as it may be deemed to extend to an in-
dividual who is not required to search for work as a precondition
to unemployment benefits. And in so doing, we reject the grounds
put forward by the Department in support of its travel ban, and
uphold Dorsey’s eligibility for unemployment benefits in the ab-
sence of any dispute regarding his factual availability for work.
A
¶14 The Department has the statutory authority to “adopt rules
when authorized” and to “establish eligibility standards,” UTAH
CODE § 35A-1-104, as long as those standards are “consistent with
its governing statute[].” Sanders Brine Shrimp v. Audit Div. of Utah
State Tax Comm’n, 846 P.2d 1304, 1306 (Utah 1993). But of course
administrative “[r]ules are subordinate to statutes and cannot con-
fer greater rights or disabilities” than those set forth in legislation.
Rocky Mountain Energy v. Utah State Tax Comm’n, 852 P.2d 284, 287
(Utah 1993). So we must begin with an examination of the govern-
ing statute.
¶15 The operative statutory section provides that “an unem-
ployed individual is eligible to receive benefits for any week if the
division finds” that the claimant has fulfilled four core require-
ments. UTAH CODE § 35A-4-403(1). Only one of those requirements
is at issue here—that “the individual is able to work and is availa-
ble for work during each and every week for which the individual
made a claim for benefits.” Id. § 35A-4-403(1)(c). The Department
seeks to sustain its ban on international travel as an implementa-
tion of this rule. So the threshold statutory question is whether the
Department’s per se ban is compatible with this provision. 3
3 This case presents only the question whether a per se ban is
compatible with the eligibility requirements that apply to a de-
ferred claimant like Dorsey who has no duty to search for work.
5
DORSEY v. DEPARTMENT OF WORKFORCE SERVICES
Opinion of the Court
¶16 We conclude that it is not. Our analysis, of course, starts
with the statutory text. Here that text is straightforward and
therefore dispositive. In providing that eligibility depends on
whether a person is “available for work,” the statute states a crite-
rion that turns on a person being capable of or obtainable or accessi-
ble for working. See WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 150 (2002) (defining available in these terms); see also
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
123 (5th ed. 2011) (defining available as “[p]resent and ready for
use; at hand; accessible,” and “[c]apable of being gotten; obtaina-
ble”). This straightforward understanding of availability for work
is incompatible with a per se ban on international travel beyond
two weeks. In this age of the internet and air travel, a person
could easily be beyond the borders of the United States and yet
still capable of and accessible for work in Utah.
¶17 As the court of appeals noted, “a claimant in San Diego and
a claimant in Tijuana” may be “equally able to return quickly
enough to respond to any opportunity for work.” Dorsey v. Dep’t
of Workforce Servs., 2012 UT App 364, ¶ 21, 294 P.3d 580 (citing
UTAH ADMIN. CODE r. 994-4-3-112c(2)(a)). “And a claimant in Can-
cun may be much more readily available, as a practical matter,
than one in the High Uintas Wilderness area.” Id. With this in
mind, we hold that statutory availability for work is not compati-
ble with a per se ban on international travel beyond two weeks, as
a person outside the United States could certainly be capable of or
obtainable and accessible for work under the terms of the statute.
¶18 In so holding, we give no credit to the parallel travel bans
in the unemployment laws of other states, cited by the Depart-
ment in support of its rule. Such bans could perhaps carry some
persuasive punch if they evidenced an established, term-of-art
understanding of “available for work” in unemployment law. See
State v. Canton, 2013 UT 44, ¶ 28, 308 P.3d 517 (noting that “[t]he
legislature is entitled to invoke specialized legal terms,” and that
“when it does so we credit the legal term of art, not the common
understanding of the words” in the statute). But the evidence pre-
sented is not along those lines. It simply indicates that other states
have done what our legislature has now done (in a manner not
Thus, we need not and do not decide whether the ban would be
acceptable as applied to a claimant who is required to seek work.
6
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Opinion of the Court
retroactively applicable here, see UTAH CODE § 35A-4-403(3)
(2013))—which is to embrace a freestanding policy, unconnected
to any understanding of the criterion of availability for work, of
foreclosing benefits for those traveling abroad for extended peri-
ods. 4 That is unhelpful here. It is the statutory text that controls,
and policy developments in other states are irrelevant to our anal-
ysis of that text, even if they might be helpful to the legislature in
deciding whether to amend the statute.
¶19 Indeed, the evidence that is available indicates that the
term-of-art understanding of “available for work” is in line with
the ordinary meaning set forth above. At the time our statute was
first enacted and continuing to the modern day, the term “availa-
ble for work” was widely understood to mean simply that a
claimant was “willing, able, and ready to accept suitable work
which he does not have good cause to refuse.” Louise F. Freeman,
Able to Work and Available for Work, 55 YALE L. J. 123, 124 (1945); see
also Gordon Griffin, Jr., “Available for Work” Criterion for Payment of
Unemployment Compensation, 30 TEX. L. REV. 735, 736 (1952);
BLACK’S LAW DICTIONARY 155 (9th ed. 2009) (defining “available
for work” as “ready, willing, and able to accept temporary or
permanent employment when offered”).
¶20 We therefore reject the Department’s international travel
ban insofar as it may be deemed to apply to those not required to
4 See, e.g., Frequently Asked Questions, ALASKA DEP’T OF LABOR
AND WORKFORCE DEV. (April 12, 2011),
http://labor.alaska.gov/esd_unemployment_insurance/faq.htm
(travel not allowed unless for a specific reason, such as searching
for work or attending the funeral of an immediate family mem-
ber); After You’ve Applied for Unemployment: Frequently Asked Ques-
tions N. Y. DEP’T OF LABOR (last visited June 16, 2014),
https://www.labor.ny.gov/ui/claimantinfo/onceyouhaveapplie
dfaq.shtm (“If we learn that you received benefits while outside of
the United States, we will issue an overpayment determination.”);
Nevada Unemployment Insurance Facts for Claimants, NEV. DEP’T OF
EMP’T, available at
http://www.detr.state.nv.us/ESD%20Pages/ESD_docs/UI_Clai
mants_Handbook.pdf (“You are allowed to file weekly claims for
benefits from outside your normal labor market area for a period
of two weeks.”).
7
DORSEY v. DEPARTMENT OF WORKFORCE SERVICES
Opinion of the Court
search for work as a precondition for benefits. That conclusion
forecloses the need to consider the question whether the Depart-
ment’s rule is properly construed to extend to Dorsey’s circum-
stances, and limits the analysis in this case to the statutory ques-
tion whether Dorsey was “able to work” and “available for work
during each and every week for which” he “made a claim for ben-
efits.” UTAH CODE § 35A-4-403(1)(c).
B
¶21 We also reject two alternative grounds advanced by the
Department in support of its rule. First, we decline the Depart-
ment’s invitation to sustain its rule as a means of advancing the
purpose of the governing statute—as outlined in its preamble—of
“maintaining purchasing power [of unemployed workers] and
limiting the serious social consequences of unemployment.” UTAH
CODE § 35A-4-102. The Department’s argument misconceives the
role of a statement of statutory purpose. Where the statutory text
is clear, a court is not at liberty to expand its terms in a manner
presumed to better advance the stated purpose of the law. It is the
operative text of the statute that controls. A statement of pur-
pose—even one built into the enacted terms of the statute—may
not contravene the operative terms of the law. See 2A
SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 47.4
(Norman Singer, ed., 7th ed. 2014) (“Courts have long settled the
principle that [t]he preamble cannot control the enacting part of
the statute, in cases where the enacting party is expressed in clear,
unambiguous terms. . . .” (internal quotation marks omitted)).
¶22 A preambular purpose statement might inform our resolu-
tion of ambiguities in statutory text. But it cannot override the
clear terms of the law. Thus, because we find the operative mean-
ing of “availability for work” to be clear, we cannot override it on
the basis of an identifiable method of advancing its stated goals
more effectively. That is for the legislature to decide.
¶23 Second, we find no basis for the Department’s international
travel rule in the legislature’s subsequent amendment of the stat-
ute. See UTAH CODE § 35A-4-403(3) (2013). Granted, the amended
version of the statute—applicable prospectively but not to this
case—provides that “[a]n individual located in a foreign country
for three or more days of a week and who is otherwise eligible for
benefits is only eligible . . . if: (a) the individual is legally author-
8
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Opinion of the Court
ized to work in the foreign country; and (b) the state and the for-
eign country have entered into a reciprocal agreement concerning
the payment of unemployment benefits.” Id. But “we apply the
law as it exists at the time of the event regulated by the law in
question.” State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829. And a
subsequent amendment is rarely helpful in discerning the mean-
ing or intent of the law that the legislature adapted. That is be-
cause an amendment often leaves room for either of two alterna-
tive inferences: Either the legislature sought to confirm its
longstanding understanding or intent, or it thought better of a
matter once resolved and sought later to revise it. 5 Courts are
rarely in a position to credit one inference over another. And we
are certainly in no such position here. So we resort to our interpre-
tation of the version of the statute in place at the time of the par-
ties’ dispute—unencumbered by any vagaries regarding an infer-
ence to be drawn from the recent amendment.
C
¶24 Under the ordinary and legal meaning of “available for
work,” availability depends largely on the facts and circumstances
of each case. In re Beatty, 210 S.E.2d 193, 195 (N.C. 1974)
(“[W]hether a person is available for work differs according to the
facts of each individual case.”). And those facts and circumstances
do not encompass a per se ban on international travel. Instead the
standard depends on case-specific facts regarding a claimant’s ca-
pability, obtainability, or accessibility within a reasonable period
of time.
5 See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 355 (1998)
(“We have often observed . . . that the views of a subsequent Con-
gress form a hazardous basis for inferring the intent of an earlier
one.” (internal quotation marks omitted)); State v. Truesdell, 679
N.W.2d 611, 617 (Iowa 2004) (“A change in a statute can indicate
either intent by the legislature to change the law or intent to clari-
fy the original statute.”). Cf. Max Radin, Statutory Interpretation, 43
HARV. L. REV. 863, 873 (1930) (noting, in the circumstance of suc-
cessive versions of a bill culminating in an enacted statute, that
the legislature’s rejection of earlier iterations of the bill in favor of
the final form “gives us little information” about its intent, as we
can “never really know why one gave way to any other”).
9
DORSEY v. DEPARTMENT OF WORKFORCE SERVICES
Opinion of the Court
¶25 That said, in this case there was no dispute regarding
Dorsey’s capability of or accessibility for work in this case. Before
the ALJ, the Department expressly stated that it was “not contest-
ing whether or not [Dorsey] was able or available” for work,
while emphasizing that the only question presented was “whether
he was allowed to collect unemployment while out of the coun-
try.” Thus, the only issue in this case is the legal viability of the
Department’s rule foreclosing benefits for claimants traveling out-
side the United States for over two weeks.
¶26 Having deemed that rule incompatible with the statute, we
affirm the court of appeals’ decision and uphold Dorsey’s entitle-
ment to unemployment benefits.
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10