Opinion
DD No. 19330-94. SS No. 292-42-4822.
September 14, 1995
FINAL ORDER
The employer has appealed the hearing officer's decision that was issued on December 21, 1994. The hearing officer concluded that the claimant is entitled to an award of unemployment benefits pursuant to § 8-73-108(4), C.R.S. (1986 Repl. Vol. 3B). We affirm.
During this employment, the claimant was assigned to work as a buyer for the employer's client, Hewlett-Packard Company. The hearing officer found that the claimant was separated from the employer in December 1993 when the employer lost its contract to provide workers to Hewlett-Packard. Another company obtained a contract to provide workers to Hewlett-Packard, and the claimant continued working in the same position at Hewlett-Packard as an employee of the new company.
The hearing officer found that the claimant had no control over the employer's loss of its contract, and that the employer did not offer continued employment to the claimant. The hearing officer also determined that the employer was "not acting as a temporary employment agency as defined" in § 8-73-105.5, C.R.S. (1994 Cum. Supp.). The hearing officer concluded that under these circumstances, the claimant was not responsible for his separation from the employer, and that he is entitled to an award of benefits pursuant to § 8-73-108(4), based on this separation.
On appeal, the employer argues that the claimant failed to contact the employer for further assignments, as required by § 8-73-105.5, and that the hearing officer erred in failing to apply the provisions of that statute. We conclude there was no error.
Section 8-73-105.5 concerns employment with a "temporary help contracting firm," and imposes certain conditions under which an employee of such a firm may receive unemployment benefits. Essentially, the employee is required to contact the firm for further assignments after a work assignment has been completed. For purposes of the statute, a "temporary help contracting firm" is defined as "any person who is in the business of employing individuals and, for compensation from a third party, providing those individuals to perform work for the third party, under the supervision of the third party." It appears to be undisputed that the employer here is a "temporary help contracting firm," as defined by this statute.
However, subsection (2) of the statute states: "Employment with a temporary help contracting firm is characterized by a series of limited-term assignments of an employee to a third party, based on an agreement between the temporary help contracting firm and the third party." (Emphasis added.) Reading the statute as a whole, we conclude that it is intended to apply to employees whose employment with a temporary help contracting firm is "characterized by a series of limited-term assignments." Here, the claimant was assigned to work at the Hewlett-Packard facility for an indeterminate period, and the evidence does not show that the parties intended that the claimant would perform a "series" of "limited-term" assignments for the employer. Rather, the claimant performed only a single, ongoing assignment, which was ultimately terminated by the employer's failure to maintain the contract with its client. We therefore conclude that under these circumstances, the claimant's employment was not "characterized by a series of limited-term assignments," and there was thus no error in the hearing officer's determination that the conditions imposed by § 8-73-105.5 are not applicable.
Even assuming that the claimant's employment is covered by § 8-73-105.5, the evidence nevertheless fails to show that the conditions imposed by that statute are applicable here. The statute previously provided that such an employee is not eligible for unemployment benefits unless he has notified the temporary help contracting firm that he is available for further assignments, and he is not offered another assignment within five working days. See § 8-73-105.5(3), C.R.S. (1993 Cum. Supp.). However, the statute was amended to eliminate that provision and to add the following requirement:
(4) At the time of hire a temporary help contracting firm shall provide written notice to each employee which clearly states that the employee is required to contact the firm upon completion of an assignment.
The amended statute further provides that if an employee receives such written notice and does not contact the temporary help contracting firm upon completion of an assignment, in compliance with such notice, the employee shall be disqualified from the receipt of unemployment benefits.
The amended statute is applicable to "unemployment benefits awarded on or after July 1, 1994." See Colo. Sess. Laws 1994, ch. 117, § 8 at 641-642. Here, the deputy's decision states that the claimant's benefit year ends on October 28, 1995, which indicates that he filed his initial claim for benefits in October 1994. See § 8-70-111, C.R.S. (1994 Cum. Supp.). Thus, we conclude that the amended statute is applicable to this claim. Compare Baldwin v. Industrial Claim Appeals Office, 813 P.2d 807 (Colo.App. 1991) (statutory amendment is applicable to claim, although claim is based on separation from employment which occurred prior to amendment).
The employer did not assert at the hearing that the required written notice had been provided to the claimant. Therefore, in the absence of evidence that the claimant had been provided with the required notice, the conditions imposed by § 8-73-105.5 are not applicable.
The findings and the evidence support the hearing officer's determination that the claimant was separated from this employer when the work assignment provided by the employer ended in December 1993, due to circumstances outside the claimant's control. The evidence does not show that the employer had other work available for the claimant at that time, and we conclude there was no error in the award of benefits. See § 8-73-108(4)(a), C.R.S. (1986 Repl. Vol. 3B) (lack of work); Intermountain Jewish News, Inc. v. Industrial Commission, 39 Colo. App. 258, 564 P.2d 132 (1977).
Insofar as the employer has made additional factual assertions on appeal, we may not consider such evidence. Under § 8-74-104(2), C.R.S. (1994 Cum. Supp.), the review conducted by the Industrial Claim Appeals Panel is restricted to the evidence in the record made before the hearing officer. See Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the hearing officer's decision issued December 21, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Robert M. Socolofsky
__________________________________ Bill WhitacreNOTICE
This order is FINAL unless, pursuant to § 8-74-107(2), C.R.S. (1994 Cum. Supp.), a notice of appeal is RECEIVED BY the COLORADO COURT OF APPEALS within twenty (20) days from the mailing date shown below. The notice of appeal may be delivered or mailed to:
COLORADO COURT OF APPEALS 2 EAST 14TH AVENUE, 3RD FLOOR DENVER, COLORADO 80203
The contents of the notice of appeal must comply with the requirements set forth in Colorado Appellate Rule 3.1(d), which may be found in the supplement to Volume 7B of the Colorado Revised Statutes.
COPIES of the notice of appeal must be served on all parties who appeared in the administrative proceedings, including the Industrial Claim Appeals Office and the Division of Employment and Training. In addition, the notice of appeal must include a statement which certifies that copies have been provided to the parties. The following mailing addresses should be used for the Industrial Claim Appeals Office and the Division of Employment Training:
Industrial Claim Appeals Office Division of Employment Training P.O. Box 18291 Appeals Section Denver, CO 80218-0291 P.O. Box 8988 Denver, CO 80201-8988
Copies of this order were mailed to the parties at the addresses shown below on September 14, 1995 by ______________________.