John Klor
Wallace Klor & Mann, PC
WSIA Amicus Subcommittee Chair
September 2011
WHAT CONSTITUTES INTERMITTENT EMPLOYMENT, AND TEMPORARY FULL-TIME EMPLOYMENT
Hudson v. United Parcel Service
No. 40516-4-II
(August 23, 2011)
When Mr. Hudson was injured, United Parcel Service (UPS) characterized him as "a temporary, full-time UPS employee hired to cover the peak volume period.” The Department had initially issued an order calculating Mr. Hudson’s wage loss under RCW 51.08.178(2), which provides that the “monthly wage shall be determined by dividing by twelve the total wages earned, including overtime, from all employment in any twelve successive calendar months preceding the injury which fairly represent the claimant's employment pattern.” Under this provision, the Department calculated Mr. Hudson’s monthly wage loss using an aberrant period of earnings when Mr. Hudson was receiving combat pay while in the Air Force, years before the industrial injury. UPS appealed that order, and the Board found that Mr. Hudson’s wage loss should be calculated under RCW 51.08.178(1). Mr. Hudson appealed to Superior Court, where a jury found, on the basis of contested jury instructions, that Mr. Hudson’s wage loss should be calculated under RCW 51.08.178(2). UPS appealed to the Court of Appeals, Division II.
In the trial court, Mr. Hudson had argued that his employment with UPS was “essentially intermittent employment.” He said, “peak season drivers for UPS are by definition intermittent, with employment starting in October and lasting till the end of the Christmas season, with recurring gaps during the off peak months.” UPS had argued that Mr. Hudson’s employment was, as a matter of law, not “essentially intermittent” because he had off-season work and intended to work full time, citing to among other cases School Dist. No. 401 v. Minturn, 83 Wn. App. 1, 920 P.2d 601 (1996).
In the Court of Appeals, UPS argued that the trial court should not have given the trial court’s jury instruction number 14 (TC JI No. 14), but should have given UPS’s proposed jury instruction number 16 (UPS Proposed JI No. 16). TC JI No. 14 concerns the definition of “intermittent employment.” The essential difference between the two instructions is this language included in UPS Proposed JI No. 16:
Essentially intermittent work does not continue year round. This means that the worker has not historically worked nor intended to work year round.
In its opinion, the Court of Appeals distinguished the case of Minturn. It said that in Minturn, it did not hold that an off-season job automatically rendered a worker’s employment non-intermittent. It noted that in that case its definition of intermittent employment, upon which UPS relied, was “incidental to our decision” [in Minturn], and that “statements made in the course of a court’s reasoning that go beyond the facts before the court are ‘wholly incidental’ to the basic decision constitute obiter dictum and do not bind us.” Yet, the Court of Appeals then added that in this case, it adopts its definition in Minturn of “intermittent employment”. In Minturn, the Court of Appeals defined “intermittent employment” as follows:
“The Department defines it as follows: "Intermittent employment is not regular or continuous in the future. It may be full-time, extra-time or part-time and has definite starting and stopping points with recurring time gaps." We accept this definition for purposes of this case.”
Minturn, 83 Wn. App. at 6.
So in Hudson the Court of Appeals is holding that if the worker has an off-season job, he/she may or may not have non-intermittent employment (viz., reasonably continuous employment). That is, that a worker has an off-season job does not make the employment non-intermittent as a matter of law. The Court of Appeals did not hold, as Mr. Hudson wanted it to hold, that peak season drivers for UPS are by definition intermittent. The Court of Appeals held that TC JI No. 14 was an adequate statement of the law because it incorporated the Court of Appeal’s definition from Minturn of [essentially] “intermittent employment”.
as of 6 September 2011
