It’s a slow day so I will reach back to Wednesday for yet another decision from the Arkansas Court of Appeals reversing a denial of unemployment benefits by the Workforce Services Division, an agency in the Commerce Department transformed so thoroughly by Secretary Mike Preston that the governor enthusiastically endorses him for a fat bonus every year.
I’ve written before about unfair denials of Arkansas unemployment claims, often stemming from the cluster**** in the workforce agency during the pandemic (on top of a general resistance in the Hutchinson administration to helping the working poor — think the refusal of extended unemployment benefits and rental assistance and barriers to receiving state support programs). Here’s another:
Andrew Bushnell was seeking unemployment payments for April 4-June 6, 2020. The claim was rejected as untimely. Says the court record:
Bushnell filed a claim for unemployment insurance benefits on March 30, 2020. He filed his claim in Arkansas although he also earned wages in Texas. The agency requested proof of Bushnell’s out-of-state wages to determine Bushnell’s eligibility for benefits. Bushnell promptly provided his Texas wage information. Bushnell attempted to file claims online every week but was met with a message that he was not eligible. He called the unemployment phone line almost daily, and he went to the local office three times while the decision was pending. The Division of Workforce Services had misplaced the Texas wage records and did not find them until June 2020. Bushnell was then permitted to file written claims for the weeks of April 4 through June 20, 2020, to ask that those claims be considered timely.
The Department of Workforce Services issued an agency decision finding that Bushnell’s claims were untimely and that he had failed to show good cause to permit backdating of the weekly claims. Bushnell appealed to the Appeal Tribunal, which conducted a hearing and found that Bushnell was entitled to two weeks (the weeks ending June 13 and June 20) of backdated claims because the delay in filing was due to good cause. The Appeal Tribunal recognized that Bushnell provided the Texas wage information the day after it was requested, recognized all the efforts Bushnell made to keep his weekly filing in compliance with the law, and agreed that Bushnell was not successful in getting his claims processed “due to circumstances beyond his control.” The Appeal Tribunal recited that the applicable law limited backdating to fourteen days in this circumstance. Bushnell appealed again to the Board of Review, which acknowledged that the delay in processing was due to the claimant’s earning wages in two states but stated that this was not an extraordinary circumstance. The Board found that the Appeal Tribunal’s decision was correct in its findings of fact and conclusions of law, so the Board affirmed and adopted the decision of the Appeal Tribunal. This appeal followed.
Bushnell argues that he did everything he could to properly file his claim on a weekly basis. Bushnell contends that it is undisputed that it was the agency’s fault that his Texas wage information was misplaced and the agency’s fault for the delay in his claims being processed properly. He argues that, in that circumstance, he should have been permitted to backdate his claim for more than two weeks, which is specifically permitted by law. We agree with Bushnell.
We hold that the Board’s decision is not supported by substantial evidence. Regulation 14 permits backdating for two weeks for “good cause,” but it further permits waiver of the limits of backdating if “extraordinary circumstances exist and equity and justice require such waiver.” It is undisputed that Bushnell was requested to, and did promptly, provide proof of his Texas wages. The Appeal Tribunal recited that Bushnell provided those records in April 2020 within a day of being asked. It is also undisputed that it was the fault of the Division of Workforce Services that those records were misplaced and not found until June 20, 2020. Bushnell did everything he could to file claims on a weekly basis and kept in contact with the agency by phone, in person, by mail, and online. With the fault resting solely on the Division of Workforce Services in the delay, we hold that this situation is an “extraordinary circumstance” such that “equity and justice require such waiver” of the two-week limitation on backdating Bushnell’s claims.
Give the boss of that agency another bonus! Preston, who knocked down about $237,000 in pay and bonuses last year, is up for another round in the next few weeks.) In case you wondered, the Board of Review is also appointed by the governor.