Opinion
No. 78-1018
Decided April 26, 1979.
Unemployment compensation claimant sought review of an Industrial Commission denial of eligibility to receive benefits for the period he was employed as a licensed real estate salesman on a straight commission basis.
Affirmed
1. UNEMPLOYMENT COMPENSATION — Eligibility — Unemployment — Total or Partial — Determination — Mathematical Inquiry. A person may be eligible for unemployment compensation benefits if he is either partially or totally unemployed, and the question of whether a claimant is unemployed in any particular week is a purely mathematical inquiry.
2. Testimony — Real Estate Salesman — Work as Desired — No Commissions Earned — Not Totally Nor Partially Unemployed — Denial of Benefits — Proper. The inquiry into whether unemployment is total or partial is made only after it is first determined that an individual claimant has either performed no services for his employer or has been employed in less than full-time work; therefore, where claimant testified in substance that in his capacity as real estate salesman he could work as many hours as he desired, he was neither totally nor partially unemployed, even though his efforts failed to produce any commissions, and Industrial Commission properly concluded that he was thus not eligible for benefits during the period of that employment.
Review of Order of the Industrial Commission of the State of Colorado
Karp Goldstein, Jeffrey A. Goldstein, for petitioner.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, David Aschkinasi, Assistant Attorney General, for respondents.
This is an unemployment compensation case. Claimant received benefits from January 13, 1978, until May 19, 1978, when he obtained a full-time job at Denver Community College. From April 1, 1978, to May 19, 1978, claimant was employed as a licensed real estate salesman on a straight commission basis. However, during this time claimant made no sales and earned no income. Based upon these facts, the Commission concluded that claimant was not eligible to receive benefits after April 1, 1978, and determined that claimant had been overpaid benefits in the amount of $714. Claimant challenges that determination, arguing that since he earned no income during his tenure as a real estate salesman, he was entitled to receive benefits for that period. We disagree and affirm the order of the Commission.
Relying on Denver Post, Inc. v. Department of Labor and Employment, 41 Colo. App. 275, 586 P.2d 1342 (1978), cert. granted Dec. 12, 1978, [(reporter's note) modified, 199 Colo. 466, 610 P.2d 1075 (1980)] claimant contends that he was unemployed during the period in question. In the Denver Post case, this court stated as follows:
[1] "The unemployment statute defines unemployment as either 'total' or 'partial':
"'Partially employed' means an individual whose wages payable to him by his regular employer for any week of less than full-time work are less than the weekly benefit amount he would be entitled to receive if totally unemployed and eligible . . . . Section 8-70-103(18), C.R.S. 1973.
"'Totally unemployed' means an individual who performs no services in any week with respect to which no wages are payable to him . . . . Section 8-70-103(21), C.R.S. 1973.
"The question of whether a claimant is unemployed in any particular week is a purely mathematical inquiry: If he performs no services and receives no compensation, then he is totally unemployed; if he does receive compensation, but in an amount less than the amount of benefits he could recover if totally unemployed, then he is still unemployed, though only partially." (emphasis added)
[2] However, the "purely mathematical inquiry" referred to in the above quoted language does not come into effect until it is first determined that an individual claimant has either performed "no services" for his employer, in which case he may be totally unemployed, or performed "less than full-time work," in which case he may be partially unemployed. In the present case, claimant testified in substance that he could work as many hours as he desired. Thus, he was neither totally nor partially unemployed within the meaning of § 8-70-103, C.R.S. 1973, even though his efforts failed to produce any commissions. The Industrial Commission was therefore correct in ruling that claimant was ineligible for benefits after April 1, 1978.
Order affirmed.
JUDGE ENOCH and JUDGE SMITH concur.