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Surfer entitled to unemployment cash, Utah Court of Appeals rules

Published December 20, 2012 9:03 pm

Benefits • Utah court rules that worker's failure to report travel did not make him ineligible.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A surfer who spent Utah's wet "mud seasons" on the beaches of Mexico was entitled to unemployment benefits while on vacation, according to a new ruling by the Utah Court of Appeals.

The ruling wraps up a case that began in 2009, when John Dorsey was working as a server for a Park City restaurant. During the off-season, when tourism was low, the restaurant temporarily released its employees, qualifying them for unemployment benefits. During his time off, Dorsey filed claims for benefits even though he was surfing in Baja California. The ruling states he made four trips to Mexico from 2009 to 2011.

The Department of Workforce Services denied Dorsey's claims — after he had collected money — saying he was ineligible because he was unavailable to work full-time if needed due to his travels and had not reported he was traveling out of the country. DWS concluded Dorsey had been overpaid by $7,581 and imposed an undisclosed penalty for fraud.

Geoff Landward, general counsel for DWS, said authorities discovered Dorsey was filing his claims from Mexico by looking at his IP address.

According to the appeals court ruling, DWS argued that Dorsey should have notified the claims center that he was leaving the U.S., which can disqualify a person from unemployment benefits. DWS said Dorsey either knew or "could readily have known" that he was required to report his travel, court documents state.

Dorsey challenged the department's ruling. His lawyer, David E. Ross II, said the case hinged on Dorsey's responsibility to know DWS' laws and rules. Ross said expecting Dorsey to know and understand the requirement to report travel — which Ross said would have meant knowing the rules better than DWS itself — was unrealistic. He added that the information was not intentionally or fraudulently omitted.

"He didn't know he needed to report going out of the country," Ross said.

Court documents state that Dorsey was in regular contact with his employer and could have returned to his job within 24 hours if needed.

According to the documents, attorneys for DWS also argued that unemployment benefits are designed to stimulate the local economy. And they claimed that travelers could theoretically claim money while holding down jobs at their foreign destinations.

The appeals court ruled that Dorsey was entitled to the benefits and should not have faced a penalty for fraud.

According to Landward, the ruling means DWS is nterpreting unemployment benefit laws too broadly. He said his office is still trying to determine what impact the case could have on DWS policy. The department could continue to evaluate situations on a case by case basis — perhaps looking at which countries a traveler visits and how easily a return might be — or it could pursue changes to DWS rules or state statutes.