A. Time Limits on Recovery
Under Section 8-809(e)(2) and (3), a determination under
Section 8-809(a) to recover benefits may not be made later
than three years from the date that benefits were paid to
the claimant. Therefore, an agency determination in November
of 1981 to recover benefits paid to the claimant in May
and June of 1980 was proper within the meaning of Section
8-809. Cuervo v. Safeway Stores, Inc., 1353-BH-82.
In Thomas McDonough, III, 1838-BR-00, the Board
applied Section 8-809(a) which provided "that a determination...to
recover benefits may not be made later than three years
from the date that benefits were paid to the claimant."
In McDonough, the agency was barred from recovering any
benefits paid prior to December 27, 1996. Recovery of benefits
paid prior to this date was more than three years from the
date that benefits had been paid to the claimant.
B. Sufficiency of Notice
The claimant received a nonmonetary determination imposing
the maximum penalty on the grounds that the claimant voluntarily
quit her job without good cause under Section 8-1001. The
same determination contained a separate paragraph which
stated: "CLAIMANT NOTE: One of the results of the determination
is an overpayment of benefits in the amount of $407.00 for
six weeks: 8-6-77, 8-13-77, 8-20-77, 8-27-77, 9-3-77, 9-10-77."
The claimant did not file a timely appeal of the determination,
but sought to file an appeal more than five years later.
The agency made a timely decision to recover benefits and
the claimant did not have good cause for a late appeal on
the grounds that the notice itself was insufficient. The
Board found that the determination provided sufficient notice
of the overpayment because it was unambiguous, legally sufficient,
and "presented in such a manner so as to 'enable a person
of ordinary perception to understand the nature and purpose
of the notice.' " Ottenheimer Publishers, Inc. v. Employment
Security Administration, 275 Md. 514, 340 A.2d 701,
704 (1975). Wright v. Uptown Club, 1082-BH-83.
C. Overpayment Where Fraud is Not Found
An overpayment caused by the claimant's errors in reporting
her wages to the agency may be recouped under Section 8-809
even though a finding of fraud under Section 8-809(b) is
not supported by the record. Jones v. Y.M.C.A. Camp Tochwogh, 903-BH-83.
A. Back Pay
Where the claimant was awarded back pay by an arbitrator
for the NLRB, but the claimant actually received less than
fifty percent of the amount of wages she would have earned
had she not been terminated, the payment is not an award
of back wages within the meaning of Section 8-809 as interpreted
by the Court in the Katsianos case, supra.
Wilburn v. Tressler - Lutheran Service, Inc., 190-BR-84.
The claimant was suspended from his job as a correctional
officer and applied for unemployment benefits. He received
a weekly benefit amount of $195 from the week ending August
16, 1986 through November 22, 1986. Subsequently, the claimant
was reinstated with the employer and awarded full back wages.
There was no deduction made in the award of back pay for
the amount of unemployment insurance received by the claimant.
The claimant received benefits to which he was not entitled
because he was retroactively awarded wages within the meaning
of Section 8-809. English v. Maryland Reception Center, 273-BH-89.
B. Damages As Opposed to Back Pay
The claimant instituted a breach of contract action in District
Court after his position was abolished in breach of his
employment contract. The Court awarded damages in an amount
equal to the wages the claimant would have received had
there not been a breach of the employment contract, and
the employer paid the damage amount in full without deductions.
This case is distinguished from Katsianos, supra,
in which back pay was awarded by the NLRB, and federal and
state withholding taxes and F.I.C.A. taxes were deducted
therefrom. In this case, the payment was not "back pay,"
but was rather the satisfaction of a judgment debt created
by a court order for breach of contract. A cause of action
seeking "back pay" is not a justiciable cause of action
in Maryland's District Courts. Therefore, the back pay provision
of Section 8-809 does not apply. Cohen v. Emergency Physician Associates, P.A., 283-BH-83.
C. Relation to Section 8-801
The claimant was performing services for which wages are
payable under Section 8-801. A draw against commission qualifies
as "wages" under Section 8-201, especially when the draw
is not later recovered by the employer. Since the claimant
was receiving a draw which was greater than his unemployment
amount for each of the weeks in question, he was clearly
not "unemployed" during those weeks. Even if the claimant
had not received the draw, he would not have been unemployed
during the weeks in question. This is so because where a
claimant performs services in each of several weeks with
the expectation of receiving a commission, and where the
commission is eventually paid, it is appropriate to attribute
the commission to those weeks in which the claimant actually
performed services. The claimant was overpaid for six weeks
totalling $1,050. This amount is recoverable and must be
repaid within the meaning of Section 8-809. Pontius
v. A R C Technology, 250-BR-87.
The claimant worked on boats but became unemployed. He
began receiving unemployment benefits in April, 1986. About
this same time, he began working on a lobster boat and understood
that he would be paid for this work when the boat began
bringing in the lobsters. He worked on the boat almost two
months while filing for unemployment insurance. On June
17, 1986, he notified the agency that he had been working
on the boat and would not need his unemployment benefits
in the near future because he would soon be paid. From April
20 to June 14, 1986, the claimant was working and performing
services for which wages were payable. He was therefore
not unemployed as that term is used in Section 8-801. Benefits
paid to the claimant are recoverable under Section 8-809. Layton, 469-SE-87.