GEORGIA COURT OF APPEALS AFFIRMS SUPERIOR COURT RULING ON UNEMPLOYMENT BENEFITS

In January 1993, William Barry began employment as a "PRN," an "on call as needed" nurse, at Oconee Regional Hospital. Barry filed a claim for unemployment compensation benefits in July 1997 which was denied by the claims examiner. Barry appealed that decision and a hearing was held in September 1997. The hearing officer reversed the claim examiner's decision and awarded Barry benefits.

The Board of Review, with one member dissenting, upheld that determination on appeal. In December 1997, the hospital appealed the board's decision to superior court. The court reversed the award of benefits. The Court of Appeals granted application for discretionary appeal of the Georgia State Department of Labor and Barry to determine whether an "as needed" nurse is entitled to unemployment benefits under Georgia's Employment Security Law. The cases have been consolidated for this opinion. For the following reasons, the Court of Appeals affirmed the denial of benefits and gave the following analysis.

The "any evidence" standard applies to our review of the Department of Labor's factual findings, though we review its legal conclusions. Holstein v. North Chemical Co., 194 Ga.App.546,547-548(3)(390 SE2d 910)(1990).

In order to qualify for unemployment benefits according to the Employment Security Act, an employee must be "unemployed". An individual is deemed to be unemployed "in any week during which the individual performs no services and with respect to which no wages are payable to him or her or in any week of less than full-time work if his or her deductible earnings do not equal or exceed his or her weekly benefit amount." OCGA ß 34-8-47.

This Court has not interpreted the Employment Security Act as it relates to as-needed nurses, but has interpreted the Act in a case involving similar facts concerning substitute teachers in Campbell v. Poythress, 215 Ga. App. 8334 (456 SE2d 110)(1995). The Court concluded that the award of benefits for deliberate part-time only work would be contrary to the basic purpose of the law as stated in OCGA ß 34-8-2, which is to enhance stable employment and lighten the burden of involuntary separation. Id. at 835. The individual who of his own choice opts for part-time employment of a highly unstable nature would hardly appear to be involuntarily employed during the obviously contemplated internvals between calls. Id.

The trial court determined that the rule of Campbell applied to teh facts of this case. We agree. Barry volunarily chose part-time, intermittent employment which allowed him to retain complete control over the amount of hours that he worked at the hospital, if he chose to work at all. He cannot now claim that he is entitled to unemployment benefits during times when no work is offered. It would be contrary to the purpose of the Act as stated in OCGA ß 34-8-2 to find Barry involuntarily unemployed.