DOE opposes jobless
claims for teacher subs

By Debra Barayuga
Star-Bulletin

For 12 years, Kathy Cook has been filling in whenever a teacher calls in sick or has to attend a workshop.

But when summer rolls around and no work is available, Cook files for unemployment to help tide her through the summer and until she is called for work.

The Department of Education is appealing more than 20 claims filed by substitute teachers during vacation periods saying they should not be collecting benefits when work is not available. Other claims are still under review.

The Department of Educationhas filed appeals in the past but has been overruled based on the Department of Labor's interpretation of federal law, said Don Nugent, assistant superintendent of personnel.

The Education Department this year began looking more closely at the high cost of unemployment and ways to reduce those costs when it took over managing unemployment payments from the Department of Labor.

Appropriations to the unemployment budget have risen from $1 million five years ago to $3.4 million this year.

With the potential for downsizing in state government and particularly the Department of Eduction, "all of us are worrying about staying within costs," Nugent said.

And although the department is on target to remain under the $3.4 million, "it doesn't mean we won't go beyond," he said.

If it does, "we may have to eat the cost from schools and educational purposes unless we get emergency funding from the Legislature or executive branch."

After reviewing some of the claims filed in the past year, the department recently sought an opinion from the attorney general's office which affirmed that they should appeal.

The Department of Labor previously had denied substitute teachers benefits for claims filed for vacation periods based on a federal law that went into effect in 1978.

That changed when teachers who were denied benefits filed suit. The department lost and in 1981 established rules to clarify the federal law. It has paid unemployment benefits to substitute teachers for at least 17 years.

Under the federal law, if teachers received "reasonable assurance" that they would return to the job after the summer or spring break, they would be denied benefits, said Douglas Odo, administrator of the unemployment insurance division of the state Department of Labor.

But employment is contingent on regular teachers calling in sick or a position becoming vacant, Odo said. "They have no assurance of being employed, so we're paying benefits to them."

The rule makes it extremely difficult for the department to establish "reasonable assurance" of employment, said Deputy Attorney General Ruth Tsujimura.

All substitute teachers are hired when a regular teacher is absent, she said. "We can't find reasonable assurance if employment is contingent on the absence of regular teachers."

Substitute teachers are offered an opportunity for employment after a vacation provided they turn in a renewal form each year. "That constitutes reasonable assurance you will have intermittent employment during the next year," Nugent said.

The department also feels that since regular teachers don't work during the vacations, neither do substitute teachers and they should not be claiming unemployment during those periods.

"It's unreasonable that we're making those kinds of payments," Nugent said. "Teachers don't work then, so there's no teachers to substitute for."

Denying benefits now penalizes those who provide a valuable service to the schools, said Cook.

"I think we deserve it. We pay our taxes.

"We carry out what the teachers have us do. We put up with kids testing us."

Hearings on the first five claims on appeal begin tomorrow in Circuit Court on the Big Island.

Another nine appeals will be heard later in Honolulu and another six on Maui.

As of April 8, there were nearly 3,900 substitute teachers employed by the Department of Education. Not all, however, have filed claims for the summer, winter or spring breaks.

Substitute teachers, like any other workers who become unemployed through no fault of their own, qualify for unemployment based on individual wages earned in the past year, said Howard Tanji, Oahu branch manager for the Unemployment Insurance Division.