Request By:
Fibber McGee
State Senator
1005 Minors Lane
Louisville, Kentucky 40219
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion concerning unemployment compensation for county school bus drivers who are non-certified personnel.
By oral communication, we were able to establish that you were particularly concerned with unemployment compensation for those drivers during school vacation.
KRS 341.360(3)(a)(b)(c) provides, in part:
"No worker may be paid benefits for any week of unemployment:
"(3)(c) which, when based on service in any capacity defined in paragraph (a) and (b) of this subsection, begins during an established and customary vacation period or holiday recess if the worker performs any such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such worker will perform any such services in the period immediately following such vacation period or holiday recess. " (Emphasis supplied.)
Subsection (3)(a) deals with certified personnel (teachers, principals, research personnel in a college or school).
Subsection (3)(b) deals with personnel other than those enumerated in (3)(a) [in other words, non-certified personnel] such as bus drivers, janitors, lunch room workers, etc.
The Kentucky statutes arose from similar federal statutes which require states to mirror those requirements. The federal counterpart to KRS 341.360 would be Title 26 U.S.C. Section 3304 and as to teachers and non-certified personnel, Subsection (a)(6)(A)(i), (ii), and (iii).
As to teachers, it was held that if they had a contract which gave them the right to return to work or reasonable assurance that they could return to work, they were not eligible for unemployment benefits. This was true even though the teacher was non-tenured and did not have a written contract.
Hyduchak v. Com. Unemployment Compensation Bd. of Review Pa. Comwlth, 1978, 387 A.2d 669. Also see
Robinson v. Administrator Dept. of Employment Serv., La. App. 1977, 356 So.2d 477.
And, in Herrara v. Industrial Commission, Colo. 1979, 593 P.2d 329, the court held that if non-professional employees of a school system had reasonable assurance of being rehired after school vacation was over, they were ineligible for unemployment compensation during such vacation.
The assurance could take the form of a written, verbal, or implied agreement.
So, a bus driver who believed he did not have such reasonable assurance could file for benefits. If the school system objected on the ground that he had a reasonable assurance, a referee's hearing would be held, if the driver requested one, on the question.
Incidentally, it should be noted that in
Robinson v. Administrator, Dept. of Employment Sec., La.App. 1977, 356 So.2d 471, it was held that a school teacher's right to due process was not violated when the law then in effect allowed unemployment compensation to non-certified personnel (bus drivers, clerical, and lunch room workers) and did not for school teachers during summer vacation. The court held that Congress had a rational basis for such classification differentiation.
However, the law was changed to exclude such compensation for non-certified personnel as well.
CONCLUSION
Non-certified personnel do not get unemployment compensation during vacation periods if they have reasonable assurance of reemployment when school again starts. Such assurance can be written, oral, or implied. A dispute as to whether the reasonable assurance of reemployment exists can be litigated by a referee's hearing.
And, finally, such classification is not unconstitutional as a violation of due process or equal protection.