                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1786

                                 Jolene Van Wyhe,
                                      Relator,

                                         vs.

                         Thermospas Hot Tub Products, Inc.,
                                   Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                                 Filed May 11, 2015
                                      Reversed
                                   Chutich, Judge

               Department of Employment and Economic Development
                               File No. 32619513-3

John T. Sullivan, Ashleigh M. Leitch, Best & Flanagan LLP, Minneapolis, Minnesota
(for relator)

Thermospas Hot Tub Products, Inc., Wallingford, Connecticut (respondent employer)

Lee B. Nelson, Munazza Humayun, Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent Department)

      Considered and decided by Smith, Presiding Judge; Chutich, Judge; and Minge,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

CHUTICH, Judge

      Relater Jolene Van Wyhe brings a certiorari appeal of a determination that she is

ineligible for unemployment benefits, arguing that the unemployment-law judge erred by

concluding that she performed services 32 hours per week. Van Wyhe also asserts that

the unemployment-law judge’s 2012 decision, which found Van Wyhe eligible for

benefits under identical circumstances, collaterally estops him from now finding her

ineligible. Van Wyhe further urges this court to reverse a fraud determination. Because

an employee who is on call away from the worksite for 32 hours per week but not

working is not “performing services” under the statute, we reverse.

                                        FACTS

      Jolene Van Wyhe began working for Thermospas Hot Tub Products, Inc. in 2008.

She was laid off in December 2011 and then rehired by Thermospas in June 2012. A

sales representative compensated by commission, Van Wyhe did not receive a salary or

an hourly wage. Her position required her to go to appointments for potential customers;

if no appointments were scheduled, Van Wyhe had to remain on standby, which she did

mainly at home.

      Thermospas required Van Wyhe to be available 30 hours per week; to participate

in Thermospas’s benefits program, she had to be available 32 hours per week.1 Leads for

possible customers were frequently scarce, and Van Wyhe often went two weeks without


1
  In her brief, Van Wyhe asserts that the benefits package only provided the opportunity
to participate in Thermospas’s health plan.

                                            2
a lead. Because she was required to be on standby, she could not work another job.

When she had no appointments, Van Wyhe did paperwork, followed-up with customers,

and searched for more secure employment. She did ultimately find full-time work with

another company. During the relevant time period at issue, Van Wyhe reported working

an average of about 13 hours per week; the most she reported working in a week was 25

hours, and several weeks she reported fewer than 10 hours of work. Based on the

numbers of hours and income Van Wyhe reported, she received unemployment benefits.

Van Wyhe did not seek benefits for the time she spent working but instead for the periods

when she was at home merely waiting to work.

      In June 2014, the Minnesota Department of Employment and Economic

Development (the department) asked Thermospas for Van Wyhe’s wage and hour

information from February 23, 2014, through May 31, 2014; Thermospas reported that

Van Wyhe worked 40 hours a week each week.

      On July 1, 2014, the department sent Van Wyhe a determination of ineligibility for

this period, concluding that she worked more than 32 hours per week. On July 2, 2013, it

sent her a fraud determination. On July 16, 2014, Van Wyhe timely appealed, and an

evidentiary hearing on the ineligibility determination was conducted via telephone on

July 30, 2014.

      The unemployment-law judge issued a decision on August 1, 2014. The judge

determined that Van Wyhe was ineligible for benefits from February 23 through May 31.

He found that Van Wyhe reserved 32 hours a week to be on call and that while she was

on call, she received compensation in the form of benefits and commissions.


                                           3
       Van Wyhe requested reconsideration. In her request, Van Wyhe informed the

unemployment-law judge that he had previously conducted a hearing between Van Wyhe

and Thermospas in 2012 on the same issue. Under identical circumstances, the same

unemployment-law judge found that although she was on call for 66 hours per week, she

did not work 32 hours or more per week. He therefore concluded that Van Wyhe was

eligible for unemployment benefits in 2012.          Despite this previous ruling, the

unemployment-law judge nevertheless affirmed the August 2014 decision. Van Wyhe

brought this certiorari appeal.

                                     DECISION

       The purpose of the Minnesota Unemployment Insurance Program is to assist those

who become unemployed through no fault of their own. Minn. Stat. § 268.03, subd. 1

(2014). Chapter 268 is remedial in nature and must be applied in favor of awarding

unemployment benefits.       Minn. Stat. § 268.031, subd. 2 (2014).        Any provision

precluding an applicant from benefits must be narrowly construed. Id.

       This court may affirm the decision of an unemployment-law judge or remand the

case for further proceedings; it may also reverse or modify the decision if the substantial

rights of the petitioner may have been prejudiced because the findings, inferences,

conclusion, or decision is affected by an error of law or unsupported by substantial

evidence in view of the record as a whole. Minn. Stat. § 268.105, subd. 7(d) (2014).

       An unemployment-law judge’s factual findings are viewed in a light most

favorable to the decision, and they will not be disturbed if the evidence substantially

sustains them. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). But


                                            4
whether an employee is ineligible to receive unemployment benefits is a question of law

and reviewed de novo. Bergen v. Sonnie of St. Paul, Inc., 799 N.W.2d 234, 236 (Minn.

App. 2011).

I.    Performing Services

      Van Wyhe first argues that the unemployment-law judge erred as a matter of law

by determining that she was “performing services” when she was on call and available 32

hours per week. The department counters that being available was the service that Van

Wyhe performed.

      An applicant is ineligible to receive unemployment benefits for any week if “the

applicant is performing services 32 hours or more, in employment, covered employment,

noncovered employment, volunteer work, or self-employment regardless of the amount

of any earnings.” Minn. Stat. § 268.085, subd. 2(6) (2014). Similarly, an applicant is

considered “unemployed” in any week that the applicant “performs less than 32 hours of

service in employment” and any earnings that week are less than the applicant’s weekly

unemployment benefit amount. Minn. Stat. § 268.035, subd. 26 (2014).

      In his decision, the unemployment-law judge concluded that Van Wyhe worked 32

hours per week because she was “reserving 32 hours or more per week for employment

with Thermospas,” and that she was “working in this on-call capacity, and she was being

compensated for this work in the form of benefits and commissions.”

      The outcome here turns on the meaning of “performing services.”           Section

268.035, the definition section of chapter 268, defines neither the phrase nor the words

“perform” or “services” individually. We therefore must interpret the statute to decide


                                           5
whether Van Wyhe is eligible for benefits. When we interpret statutes, nontechnical

words and phrases not defined in a chapter are construed according to their common and

approved usage. Minn. Stat. § 645.08(1) (2014).

      “Perform,” as a verb, is defined as “[t]o begin and carry through to completion;

do,” and “[t]o take action in accordance with the requirements of; fulfill.” The American

Heritage Dictionary 1305 (4th ed. 2000).          “Service,” as a noun, is defined as

“performance of work or duties for a superior,” and “[w]ork done for others as an

occupation or business.” Id. at 1591.

      Based on these definitions, we conclude that the unemployment-law judge erred

by determining that Van Wyhe was “performing services” for 32 hours per week. The

definition of “perform” implies that some action was taken. Here, however, Van Wyhe

was—for many hours a week—not performing any action on behalf of or for

Thermospas; she was merely at home waiting to work. Although she testified that she

spent some hours doing paperwork and following up with clients, these hours are

reflected in the time she reported to the department. And no evidence shows that Van

Wyhe was “performing” any “services” during the remaining hours of each week.

Because Van Wyhe did not perform services for 32 or more hours per week, the

unemployment-law judge erred by determining that she was ineligible for benefits.

      Although no caselaw addresses this specific language at issue, we are persuaded

by the reasoning in Minneapolis Park & Recreation Bd. v. LeCuyer, 457 N.W.2d 760

(Minn. App. 1990), review denied (Minn. Sept. 20, 1990). The issue in LeCuyer was

whether an employee was “unemployed” under the statute when he was on call and not


                                           6
working but received previously accumulated wages.2 Id. at 762. The respondent-

employee in LeCuyer was a full-time worker who was “‘on call’ to do work when it was

available.” Id. at 761. He filed for unemployment benefits for the periods when he was

not actually at his work site. Id. at 761-62. This court stated, “It is undisputed that

LeCuyer was not performing services for the Park Board during the periods for which [he

was on call but not working].” Id. at 762.

      This reasoning supports the conclusion that an employee who is on call away from

the worksite and waiting to work is not “performing services,” and, therefore, is eligible

for unemployment benefits so long as she is not engaging in other work-related duties for

32 or more hours per week. Much like the employee in LeCuyer, Van Wyhe did not seek

benefits for the time she spent at a work site, doing paperwork, or following up with

clients, but instead for the periods when she was at home merely waiting to work. Based

on this analysis, the hours Van Wyhe spent waiting to receive sales leads that she could

pursue were not spent “performing services,” and the unemployment-law judge erred by

concluding otherwise.

      Because Van Wyhe did not “perform services” for 32 hours per week, the

unemployment-law judge erred by determining that she was ineligible for benefits.




2
  LeCuyer dealt with an earlier version of chapter 268, which contained a different
definition of “unemployment.” Compare Minn. Stat. § 268.04, subd. 23 (1988) (defining
“unemployment” as “performs no service and with respect to which no wages are payable
to the individual”), with Minn. Stat. § 268.35, subd. 26 (2014) (defining “unemployed” as
“performs less than 32 hours of service in employment . . . [and] any earnings with
respect to that week are less than the applicant’s weekly unemployment benefit amount”).

                                             7
Based on this conclusion, we do not address Van Wyhe’s argument regarding collateral

estoppel.

II.    Fraud

       Van Wyhe next argues that the department’s fraud determination requires reversal.

The department concedes that it erred by failing to schedule an evidentiary hearing on

this issue but claims that the finding of fraud is not properly before us.

       Minnesota Statutes section 268.105, subdivision 7(a) (2014), states that we will

review an unemployment-law judge’s decision on reconsideration provided that a petition

for a writ of certiorari is filed with the court. Because no hearing was held on the fraud

issue, and therefore no decision on reconsideration was rendered, the department is

correct that this issue is not properly before us. But we note that based on our decision

above, this issue is now likely moot.

       Reversed.




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