The weight of authority from other jurisdictions is in accord. (See, e.g., Duenas-Rodriguez v. Industrial Com'n (1980) 199 Colo. 95 [ 606 P.2d 437, 439]; Alfred v. Fla. Dept. of Labor Employ. Sec. (1986) 487 So.2d 355, 358; Pinilla v. Bd. of Rev. in Dept. of L. I. (1978) 155 N.J. Super. 307 [ 382 A.2d 921, 923]; Zapata v. Levine (1975) 50 A.D.2d 681 [375 N YS.2d 424]; but see Flores v. Dept. of Jobs Training (Minn. 1987) 411 N.W.2d 499 [indicating applicant was not unavailable as his employment was not "illegal"; employment would have subjected him to deportation only].
An all-inclusive rule cannot be stated for determining a claimant's availability for work, but rather, such a determination “ ‘must be made within the context of the factual situation presented by each case.’ ” Duenas–Rodriguez v. Indus. Comm'n, 199 Colo. 95, 97, 606 P.2d 437, 438 (1980) (quoting Couchman v. Indus. Comm'n, 33 Colo.App. 116, 117, 515 P.2d 636, 637 (1973)). ¶ 8 In addition, a claimant must be “actively seeking work.”
She argues that she is "available for work" if she satisfies the criteria of OAR 471-30-036 (3). Alonso v. State, 50 Cal.App.3d 242, 123 Cal Rptr 536 (1975), cert den 424 U.S. 903 (1976); Duenas-Rodriguez v. Industrial Com'n., 199 Colo. 95, 606 P.2d 437 (1980); Alfred v. Fla. Dept. of Labor Employ. Sec., 487 So.2d 355 (Fla App 1986); Lepiani v. Bd. of R., Dept. of Labor and Indus., 169 NJ Super 72, 404 A.2d 318 (1979); Zapata v. Levine, 50 App. Div. 2d 681, 375 NYS2d 424 (1975). But see Vespremi v. Giles, 68 Ohio App.2d 91, 427 N.E.2d 30 (1980).
Another state court, the Colorado Supreme Court, upheld recoupment when no equitable reason barred recovery. Duenas-Rodriguez v. Industrial Com'n, 199 Colo. 95, 606 P.2d 437 (1980). The relevant Colorado statute provided that anyone who received an overpayment of unemployment benefits through no fault of the claimants might, in some cases, have future benefits subjected to offset.
Id. at 1164. Procedurally, the claimant has the initial burden of proof to establish a prima facie case of eligibility for benefits. City County of Denver v. Industrial Comm'n, 756 P.2d 373, 380 (1988); Duenas-Rodriguez v. Industrial Comm'n, 199 Colo. 95, 97, 606 P.2d 437, 438 (1980); Bartholomay v. Industrial Comm'n, 642 P.2d 50 (Colo.Ct.App. 1982). If the initial burden of the claimant is met, the burden shifts to the employer to establish the statutory disqualification for benefits. City County of Denver, 756 P.2d at 380; City of Arvada v. Industrial Comm'n, 701 P.2d 623, 624 (Colo.Ct.App. 1985). A decision of the panel may not be set aside where there are findings of fact supported by substantial evidence.
The initial burden of proof is always on a claimant to establish a prima facie case of eligibility for unemployment compensation benefits. Duenas-Rodriguez v. Industrial Comm'n, 199 Colo. 95, 97, 606 P.2d 437, 438 (1980); Arvada v. Industrial Comm'n, 701 P.2d 623, 624 (Colo.App. 1985). If the claimant presents a prima facie case for eligibility and the employer contests "an otherwise eligible claimant's right to benefits on the grounds that the claimant was discharged for misconduct," the employer then has the burden to make a prima facie showing to the contrary.
A statute is sufficiently specific in this respect if it prescribes the possible penalties that can be imposed for a violation of a statutory proscription. See generally Duenas-Rodriguez v. Industrial Commission, 199 Colo. 95, 606 P.2d 437 (1980); Bennett v. Price, 167 Colo. 168, 446 P.2d 419 (1968); Petersen v. Colorado Racing Commission, 677 P.2d 412 (Colo.App. 1983). The sanctions applicable to this case are set out in section 12-38-217(1), 5 C.R.S. (1978), and include revocation, suspension, and probation.
Thomas v. Rutledge, W. Va., 280 S.E.2d 123, 130 (1981). See also Duenas-Rodriguez v. Industrial Commission, 199 Colo. 95, 606 P.2d 437 (1980); Howell v. Administrator, 174 Conn. 529, 391 A.2d 165 (1978); Howard v. Department of Employment, 100 Idaho 314, 597 P.2d 37 (1979). Once an applicant has been determined eligible to receive benefits, there is a continuing burden to provide the required information in order to prevent the benefits from being terminated.
First, generally speaking, the burden of persuasion on issues affecting eligibility for unemployment compensation benefits is on the claimant. Smith v. Director of the Division of Employment Security, ___ Mass. ___ , 429 N.E.2d 700, 702 (1981); Thomas v. Rutledge, 280 S.E.2d 123, 130 (W.Va. 1981); Duenas-Rodriguez v. Industrial Commission, 606 P.2d 437, 438 (Colo. 1980); Eichman v. Com., Unemployment Compensation Board, 49 Pa.Cmwlth. 21, 409 A.2d 1389, 1391 (1980); Patrick v. Board of Review, 171 N.J. Super. 424, 409 A.2d 819, 820 (1979). But see Tobin v. Maine Employment Security Commission, 420 A.2d 222, 225-26 (Me. 1980).
Moreover, since her husband's contribution to the family income was not ascertainable at the time of the hearing, on remand his contribution should be added. Thus, Duenas-Rodriguez v. Industrial Commission, 199 Colo. 95, 606 P.2d 437 (1980), Hesson, and Kalkbrenner have all rejected the view implicitly espoused by the Labor Department that only people on subsidized fixed incomes, i.e., elderly people on social security, may be considered for a waiver on the basis of their economic situation. Furthermore, the Labor Department's assumption that poor working people are able to earn more money than they are presently earning is without support in the record.