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DLLR's Unemployment Insurance Appeals

 

Employees of Educational Institutions - Section 8-909 - Maryland Unemployment Decisions Digest

 

Introduction

The provisions dealing with services performed for educational institutions were previously located in Article 95A, Section 4(f) of the Annotated Code of Maryland. After the law was revised in 1991, these provisions were recodified as Section 8-909 of the Labor and Employment Article of the Annotated Code.

Section 8-909 of the law provides that an individual who performs services for an educational institution in two successive academic years or terms may not receive benefits based on employment with the educational institution for periods of unemployment between the two successive academic years if the individual has "reasonable assurance" of employment in the second academic year or term. This restriction also applies to vacation periods and holiday recesses if the individual performs services for the employer immediately before the vacation or holiday and has reasonable assurance of performing services immediately after the vacation or holiday.

The term "educational institution" is defined in Section 8-101(l) as an institution that offers participants, students or trainees an organized course of study or training that is academic, technical, trade-oriented or preparatory for gainful employment in a recognized occupation. This includes institutions of higher education.
In determining cases under Section 8-909, the Board must first decide whether the claimant was employed by or on behalf of an educational institution. If so, the Board must then consider whether or not the claimant has reasonable assurance of returning to work.

The term "reasonable assurance" has been defined by the Board to be less than a guarantee; however, it must be based on something more than merely being on a list. In order to determine whether a claimant has reasonable assurance of returning to work, the Board considers such factors as the type of communication received by the claimant, who made the communication, when it was issued and the claimant's work history with the employer.

Even if a claimant is denied benefits because he had reasonable assurance of returning to work for a particular employer, he may still qualify for benefits based on other covered employment during his base period.

 

Employees of Educational Institutions - Section 8-909

I. In General

 

A. Scope of Section 8-909 Disqualification
The statute in question provides that benefits based on covered service in an instructional capacity cannot be paid between academic years if reasonable assurance is present. However, this provision does not operate to deny the claimant any benefits to which he may be entitled based upon other service. In this case, the claimant had reasonable assurance within the meaning of Section 8-909(b). He was denied benefits based upon his earnings with Essex Community College for the period between academic years that began in June, 1989. The claimant was not disqualified by this section from receiving benefits based on other covered service, if he was otherwise eligible. Schultz v. Essex Community College, 948-BR-89.

B. Applicability of Section 8-909(b)
Prior to the summer of 1989, the claimant was a 12-month employee of the Anne Arundel County Public Schools. Therefore, this is not a case of unemployment during a period between two successive terms or during an established vacation period. Englemeyer v. Anne Arundel County Public Schools, 946-BR-89.

Section 8-909 disqualifies claimants from receiving benefits based on the covered service for the educational institution. The penalty automatically expires at the end of the summer vacation period. Therefore, the claimant is disqualified from receiving benefits based on covered service with this employer from the week beginning August 19, 1990 until September 3, 1990. McKinney v. Howard County Board of Education, 1197-BR-90.

The claimant's penalty under Section 8-909(b)(i) applies during the period between two successive academic years or terms. Therefore, the claimant is disqualified for having reasonable assurance that she would return to work during the 1991-92 academic year. The disqualification, however, should end at the beginning of that academic year. Martin v. Harford County Public Schools, 33-BR-92.

Section 8-909(b)(i) does not apply to any claims for benefits which the claimant filed for weeks prior to and subsequent to the summer vacation period. Weissenberg v. Montgomery County Public Schools, 2151-BR-92.

C. Applicability of Section 8-909(c)
The claimant substitute custodian, who could have worked 12 months per year, was separated from employment in July (after the end of the academic year) when he was "bumped" by a more senior permanent custodian, and recalled prior to the beginning of the academic year. The claimant's period of unemployment has no relationship to the period between two successive academic years as contemplated under Section 8-909(c). Rather, the claimant was laid off when he was bumped by a more senior employee, with the possibility of recall. There is no disqualification under Section 8-909(c). Ritchie v. Allegany County Board of Education, 205-BR-85.

The claimant was an office worker at Towson State University. On May 2, 1986, he signed a contract to return to work on August 25, 1986, and in fact did return to work with Towson State University (although he later resigned in December, 1986). The claimant admitted that he signed the contract and his explanation of why he still felt he did not have reasonable assurance of returning in the fall was not credible. The claimant had reasonable assurance of a job within the meaning of Section 8-909(c). Wagner v. Towson State University, 725-BR-88.

The claimant was employed as a crossing guard for the City of Annapolis Police Department for over four years. Each year she worked when school was in session and she was off during the summer. Her last day of work for the 1989-90 school year was June 13, 1990. The claimant was given reasonable assurance that she would be returning to her job in September at the start of the new school year, and in fact she did so. The work that the claimant performed under the employ of the City of Annapolis Police Department was on behalf of an educational institution, the City of Annapolis school system. Therefore, a disqualification under Section 8-909(c) was applicable. Wingate v. City of Annapolis, 14-BH-91.

The claimant was employed by Baltimore City as a "hall monitor" and was clearly not employed in an instructional, research or principal administrative capacity. The Board held that Section 8-909(c) was applicable. There was no evidence that the claimant's name and social security number was included on a list provided DLLR for all employees performing covered employment who have "reasonable assurance". Additionally, the claimant did not receive direct notification of reasonable assurance of employment for the ensuing school year. The Board therefore found that the claimant was not given reasosnable assurance. White v. Sundry Educational Services. 03251-BR-97.

D. Educational Institution and Educational Service Agency Under Section 8-909
A private, nonprofit corporation that leases space from schools and conducts day-care programs there before and after hours, is not an "educational institution" within the meaning of Section 8-909. Pinkney v. Play Keepers, Inc., 419-BH-92.

The claimant was employed by the Community Action Council (CAC) as a teacher for the Head Start Program. Head Start is primarily a social service program for low-income families and children. Section 8-101(l) defines an educational institution as that in which: (1) participants, trainees, or students are offered an organized course of study or training; and (2) the courses of study or training are academic, technical, trade-oriented or preparatory for gainful employment in a recognized occupation. Neither the CAC nor the Head Start Program is an educational institution within this definition. An educational service agency is defined in Section 8-909(e) as a governmental entity that is established and operated exclusively to provide educational service to one or more educational institutions. Neither the CAC nor the Head Start Program meet this definition. The claimant was not performing services for or on behalf of an educational institution or educational service agency. Myers v. Community Action Council, 1104-BR-90.

 

II. Reasonable Assurance

 

A. In General
Although reasonable assurance is something less than a guarantee, it must be based on something more than merely being on a list. Therefore, where a part-time adult education instructor was given no indication, either verbally or in writing, of her chances for rehire prior to the third week in August, she had no reasonable assurance within the meaning of Section 8-909(b). Since the claimant's re-employment depends on student enrollment and finances (neither of which were predictable or controllable by the employer), the claimant's work history alone would not support a finding of reasonable assurance. Comninos v. Baltimore City Schools, 264-BH-83.

The performance of service in the successive academic term need not be of the exact same nature as the service previously performed. As long as the reasonable assurance is for service "in an instructional, research or principal administrative capacity," the requirement of Section 8-909(b) is fulfilled. Englemeyer v. Anne Arundel County Public Schools, 946-BR-89.

The claimant taught school for about 14 years, apparently on a provisional certificate. On May 27, 1988, she was notified that she was terminated. On June 17, 1988, she was notified that she could be rehired if she completed a list of tasks. Rehiring was contingent upon an evaluation of her credentials and an interview scheduled for July 5, 1988. The claimant was subsequently employed as a teacher in the fall, 1988 school semester. However, the claimant did not have reasonable assurance of returning to work prior to July 5, 1988, the day of her interview. As of July 5, 1988, the claimant had reasonable assurance. McCleary v. Baltimore School Teachers, 1043-BR-88.

The claimant was sent a letter at the end of the 1986-87 school year stating that his contract could not be renewed because his teaching certificate had expired. On July 6, 1987, the claimant wrote a letter to the employer asking for reconsideration of that decision. In a letter dated July 16, 1987, the employer responded to the claimant's letter by stating that the claimant's request to be reinstated had been approved. The claimant returned to his teaching duties with the employer beginning in September, 1987 and extending into the 1987-88 school year. The claimant was given reasonable assurance of returning to work for the employer by the letter dated July 16, 1987. Wiggins v. Baltimore School Teachers, 171-BH-89.

The claimant worked as a tutor during the 1990-91 school year. At the end of the school year, the claimant's principal had no idea whether or not the claimant's position would be there in the fall of 1991. The claimant never received any information regarding the status of her job until the beginning of August, at which time she was told that her job was again available to her for the upcoming academic year. There is no evidence that the claimant had any assurance at all of any work in the 1991-92 academic year or that she had a contract for that school year. The claimant did not have reasonable assurance pursuant to Section 8-909(b). Wenner v. Frederick County Board of Education, 1284-BR-91.

Where the claimant was not only on a "reasonable assurance" list, but also worked 170 out of the 180 school days in the previous year, 80% for this employer, the claimant had reasonable assurance. Twigg v. Mineral County Board of Education, 42-BR-93.

B. Abolishment of Position or Termination
Where the claimant received a letter from the school principal at the end of the academic year informing him that his employment would not resume in the following year, the claimant had no reasonable assurance within the meaning of Section 8-909(b). Beech v. Baltimore City, 171-BR-83.

The claimant substitute custodian had no reasonable assurance within the meaning of Section 8-909(c) where he was "bumped" by a senior permanent employee, with the possibility of recall at some later unspecified date. Ritchie v. Allegany County Board of Education, 205-BR-85.

At the beginning of the summer vacation, the claimant received a letter which permanently terminated her employment. During the summer, she received various invitations to apply for other jobs. Although she was qualified for these jobs, the invitations required her to undergo redundant extensive coursework and testing in order to be eligible to apply for the new positions. The claimant was later sent additional letters reinstating her conditionally, but with inappropriate conditions attached. She was later sent a letter offering her a job for which she was not qualified. This offer was withdrawn on August 31. On that date, she was finally, unconditionally offered a job for which she was qualified. No serious person could argue that this succession of erroneous, incorrect and inappropriate letters constitutes reasonable assurance of returning to work. The claimant had no reasonable assurance until the day she actually began teaching again. Cook v. Baltimore School Teachers, 385-BR-89.

C. Leave of Absence
Under Section 8-909(b), a claimant may not be paid benefits based upon his teaching service where the claimant voluntarily takes a leave of absence (to further his education) between two nonsuccessive academic terms, and has reasonable assurance of returning to work in the following academic year. London v. Baltimore City Schools, 215-BR-82.

During the summer recess after the expiration of the claimant's leave of absence, there was a contract or reasonable assurance within the meaning of Section 8-909(b), that the claimant would perform services as a teacher at the start of the following academic year. While a leave of absence does not promise that a claimant would be re-employed after the leave, such a promise is to be fairly implied. Muller v. Board of Education, 144-BH-83.

D. Substitute Teachers
The most important indications of whether a substitute teacher has a reasonable expectation of performing services are the history of the employment relationship and the stated intentions of the parties. An employment history showing a relatively stable utilization of the claimant's services during one academic year will tend to show that a claimant does have reasonable assurance; conversely, a history showing scarcely any past employment will tend to show that there is no reasonable assurance. Merely placing a teacher's name on a list of eligible substitutes does not establish reasonable assurance. Since the employer presented no other evidence, reasonable assurance has not been shown. No disqualification is imposed under Section 8-909(b) for the period between academic terms which began in June, 1987 and ended in September, 1987. Gilliam v. Board of Education of Baltimore County, 174-BR-88.

The claimant worked as a substitute teacher for the Howard County Public Schools since 1985. In May, 1988, the claimant received a letter from her employer giving her reasonable assurance that she would return to her position as a substitute teacher for the 1988-89 school year. The claimant returned the postcard contained with this letter, indicating her intent to continue as a substitute teacher for the 1988-89 school year. During the 1986-87 school year, the claimant worked 95 days. During the 1987-88 school year, the claimant worked 91 school days. The school year consists of 190 days. The most important indications of whether a substitute teacher has a reasonable expectation of performing services are the history of the employment relationship and the stated intentions of the parties. The claimant's employment history and the statements of the claimant and the employer are sufficient to find that the claimant had reasonable assurance of returning to her employment for the 1988-89 school year. Thompson v. Howard County Board of Education, 497-BR-89.

E. Twelve-Month Employees
The claimant was a 12-month employee working for the Baltimore County school system as a job developer. On June 30, 1989, she was told that her job was being terminated and her future with the employer was unclear. Approximately two weeks prior to her hearing with the hearing examiner, she was offered and accepted a new 10-month position doing vocational support work. The claimant's situation is not the same case as unemployment during a period between two successive terms or during an established or customary vacation period. The claimant did not have reasonable assurance of work within the meaning of Section 8-909(c). Geary v. Board of Education of Baltimore County, 876-BR-89.

The claimants worked for the Allegany County Board of Education as substitute custodians and cleaners. They would fill in for regular custodians when they were sick or on vacation. Their last day of work prior to the summer of 1990 was June 6, 1990. They were, however, available and subject to be called to work all summer long. The claimants had been called in during past summers. The claimants signed letters of intent to continue as substitute custodians for the 1990-91 school year. Without these letters, their names would have been removed from the list. The claimants are not disqualified under Section 8-909(c). The claimants' period of unemployment had no relationship to the period between two successive academic years. They are substitute custodians who work sporadically, but on a year-round basis. They were on call 12 months, including the summer. Although they did not work during the summer of 1990, they worked during other summers. Smith and Perdew v. Allegany County Board of Education, 272-BH-91.

The claimant usually worked during the summer months. This was the first summer in four years that she had no work for a substantial period of time. The claimant was temporarily laid off from May 10, 1991 to June 26, 1991 due to a lack of work. The claimant had reasonable assurance of returning to work on June 26, 1991. However, the period of time she was unemployed was a period of a layoff and not during a customary and established holiday recess or vacation period as required by Section 8-909(d). Taweel v. Columbia Union College, 1349-BR-91.

 

III. Vacation or Holiday Recess
The holiday recess in question here was from December 22, 1986 until January 1, 1987. In order for a claimant to be disqualified under Section 8-909(d), there must be reasonable assurance that the individual will perform the service in the period immediately following the vacation period or holiday recess. Due to a lack of sufficient enrollment, the claimant did not have reasonable assurance of returning until January 29, 1987, almost a month after the holiday recess ended. This is not immediately following the recess and therefore is not reasonable assurance within the meaning of Section 8-909(d). Segall v. Baltimore Community College, 540-BR-87.