Myers v. Outdoor Express, Inc.

235 W.Va. 457

774 S.E.2d 538

Larry MYERS, Petitioner Below, Petitioner

v.OUTDOOR EXPRESS, INC., and Workforce West Virginia, Respondents Below, Respondents.

No. 14–0315.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 2015.

Decided May 13, 2015.

Steven Brett Offutt, Esq., Law Office of Brett Offutt, Harpers Ferry, WV, for Petitioner.

Mary Blaine McLaughlin, Esq., WorkForce West Virginia/Legal Section, Charleston, WV, for Respondent, WorkForce West Virginia.

Brian M. Peterson, Esq., Bowles Rice LLP, Martinsburg, WV, for Respondent, Outdoor Express, Inc.

Opinion

Justice KETCHUM :

The petitioner, Larry Myers (“Myers”), appeals from the February 25, 2014, order of the Circuit Court of Kanawha County affirming the administrative decision of the respondent, Workforce West Virginia (“Workforce”), that Myers was ineligible to receive unemployment compensation benefits for various periods between November 29, 2008, and March 17, 2012.¹ The circuit court directed that Myers pay back $39,713.00 in benefits he received from Workforce for those periods.

Upon review, this Court affirms the conclusion that Myers was ineligible to receive unemployment compensation benefits. Myers was ineligible for benefits because he was neither totally nor partially unemployed during the periods in question. However, we further conclude that the $39,713.00 was improperly calculated, as Myers contends, based on the statute of limitations pertaining to the overpayments in this case. Consequently, this Court reverses that aspect of the case and remands this matter to the circuit court for a determination of the amount of Myers's repayment, consistent with this Opinion.

I.Factual Background

Outdoor Express, Inc. (“Outdoor Express”), a recreational vehicle dealership, sold and provided service for travel trailers and truck campers. Myers, a sales associate, worked at Outdoor Express's location in Falling Waters, West Virginia. Sales of such vehicles normally occurred on a seasonal basis, with higher sales in the summer and warmer months and significantly fewer sales during the winter and colder months.

Myers was paid bi-weekly on a commission basis (3% to 4% of the sales price), but only when his sales were finalized by Outdoor Express during the preceding two-week period. Myers received no pay if no sales were finalized during such period. Due to the seasonal nature of the business and downturns in the economy, sales associates like Myers would occasionally go for weeks without a sale and, thus, without income.

With advice from the local unemployment office in Martinsburg, West Virginia, which was subsequently questioned by Workforce, Outdoor Express issued Low Earnings Reports (“LERs”) to Myers for periods when Myers did not receive commission checks for sales of recreational vehicles.² Myers filed claims for, and received, unemployment compensation benefits for those periods. He did not file claims for periods when he received commission checks.

This case specifically involves twenty-two separate claims for unemployment compensation benefits filed by Myers, and benefits paid, over the period November 29, 2008, to March 17, 2012.³

II.Procedural Background

A. The Administrative Proceedings

On November 13, 2012, and November 16, 2012, the deputy commissioner issued decisions on each of the twenty-two claims. In each claim, the deputy found that Myers was neither totally nor partially unemployed during the periods in question and was, therefore, ineligible for unemployment compensation benefits. The deputy determined that overpayments of benefits had been made in the claims and that the benefits were to be repaid by Myers.

Myers appealed the deputy's decisions, and a hearing was conducted before the administrative law judge. On February 28, 2013, the administrative law judge affirmed the decisions of the deputy in the twenty-two claims on the basis that Myers was neither totally nor partially unemployed during the periods in question. Among the administrative law judge's findings of fact were the following:

1. The claimant is not entitled to a “draw” upon anticipating commissions.

2. For all relevant time periods, the employer reported the claimant worked forty hours per week for the employer, and paid no compensation.

3. The claimant's sales commissions are and have been adversely affected by both the seasonal nature of sales, and the recent extended downturn in the economy.

4. For all relevant time periods for which LERs were issued by the employer to the claimant, said claimant was performing some services for the company for which the claimant was eventually compensated by commissions.

5. Between the third quarter of 2009, and the third quarter of 2012, the claimant was paid approximately $164,000 in commissions by the employer.

6. During said time period, the employer reported all compensation paid to the claimant on a quarterly basis to the Unemployment Compensation Office.

7. During said time period, the claimant reported no compensation in the form of commissions received to Unemployment Compensation on his continued claim forms.

Affirming Myers's ineligibility to receive benefits, the administrative law judge provided the following analysis:

Whereas seasonal workers in construction or landscaping would normally be laid off at the end of the season, or issued LERs when work was scarce, the commission-based employee in this case, Mr. Myers, being a recreational vehicle salesman, was handled differently. Apparently with the misunderstood blessing of the local office, the employer began issuing LERs to the claimant for any slow time during which the claimant did not “earn” (actually physically receive) a commission, even though perhaps a day or two later the claimant would receive a commission check. The employer believed this was a “program” to help companies and employees through lean sales periods without the need to be in conformance with the requirements of the statute regarding total and partial unemployment.

However, one of the striking facts here is that over the relevant time period (late 2008 to late 2012), the claimant was paid more than $164,000 of commissions[.] * * * Bottom line, the claimant was not totally or partially unemployed for any period for which he received Low Earnings Reports by this employer, and, therefore, is ineligible for such periods. During all relevant time periods the claimant was performing services for this employer, and, therefore, does not meet the requirement of being totally or partially unemployed.

No fraud was intended here, and none is being alleged by the Department.

The administrative law judge's findings and conclusions concerning the twenty-two claims were summarily affirmed by the Board of Review on May 15, 2013. Myers appealed the Board's decision to the circuit court.

B. The Circuit Court Appeal

On February 25, 2014, the circuit court entered an order affirming the decision of the Board of Review. The circuit court concluded that Myers was neither totally nor partially unemployed during the periods in question. Focusing on the issue of partial unemployment, the circuit court stated:

[Myers's] case was discovered in a cross-match audit comparing the inconsistencies between what the employer reported as the compensation received by [Myers] as well as the fact that [Myers] worked forty (40) hours a week, and the failure of [Myers] to report any compensation on his claim form. * * *

[Myers] is ineligible for unemployment compensation benefits due to the fact that he worked forty (40) hours a week, and, therefore, [was] not partially unemployed.

The circuit court determined that the overpayments of benefits to be repaid by Myers totaled $39,713.00. Myers's appeal to this Court followed.

III.Standards of Review

This Court's standards of review for unemployment compensation cases are axiomatic. Syllabus point 3 of Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994), states:

The findings of fact of the Board of Review of the West Virginia Department of Employment Security are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo.

Accord syl. pt. 1, Childress v. Muzzle, 222 W.Va. 129, 663 S.E.2d 583 (2008) ; syl. pt. 1, Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981). See W.Va.Code, 21A–7–21 [1943] (The Board's findings of fact “shall have like weight to that accorded to the findings of fact of a trial chancellor or judge in equity procedure.”).

Moreover, we note that this State's statutory eligibility and disqualification provisions concerning the receipt of unemployment compensation benefits constitute a two-step process. The first step requires determining whether the claimant is eligible to receive benefits. The second step requires determining whether the claimant is disqualified from receiving benefits.

Univ. of W.Va. Bd. of Trustees v. Aglinsky, 206 W.Va. 180, 182, 522 S.E.2d 909, 911 (1999) ; Private Indus. Council of Kanawha Co. v. Gatson, 199 W.Va. 204, 207, 483 S.E.2d 550, 553 (1997).

In this case, no disqualification issues have been raised. Consequently, our review concerns Myers's eligibility for unemployment compensation benefits and the question of overpayments.

IV.Discussion

Eligibility for unemployment compensation in West Virginia is largely statutory. Under W.Va.Code, 21A–6–1(4) [2009], a claimant shall be eligible to receive benefits only if he or she “has been totally or partially unemployed during his or her benefit year for a waiting period of one week prior to the week for which he or she claims benefits for total or partial unemployment.” Total and partial unemployment are defined in W.Va.Code, 21A–1A–27 [1996], as follows:

(1) An individual is totally unemployed in any week in which such individual is separated from employment for an employing unit and during which he or she performs no services and with

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