Spiers v. DWS

----ooOoo----

Albert J. Spiers,
Petitioner and Appellant,

v.

Department of Workforce Services,
Workforce Appeals Board,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000628-CA

F I L E D
September 21, 2000 2000 UT App 263 -----

Original Proceeding in this Court

Attorneys:
Albert J. Spiers, Ogden, Appellant Pro Se
Lorin R. Blauer, Salt Lake City, for Appellees

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Before Judges Greenwood, Jackson, and Orme.

PER CURIAM:

Spiers appeals the decision of the Appeals Board in which it
determined that amounts deducted from his pay for rent and utilities were not "wages" and, therefore, should not be included in calculating the amount of his unemployment benefit.

Utah Admin. Code P. R994-208-103(1)(a) (2000) provides: Meals and Lodging provided by an employer to an employee shall not be considered wages if excluded from the definition of wages by the Internal Revenue Service as under the following conditions: (i) they are provided at the employer's place of business; and

(ii) in the case of lodging, the employee must accept the lodging as a condition of his employment; and

(iii) they are provided for the employer's convenience. Meals and lodging will be considered to be for the convenience of the employer if there is a good business reason for providing them including: (A) To have employees available at all times or for emergency calls.

(B) Employees have a short meal period.

(C) Adequate eating and lodging facilities are not otherwise available. All three of these requirements are met. First, Spiers's lodging was provided on his employer's business premises. It was not necessary that his employer own the apartment complex, only that it managed the complex and furnished housing for Spiers. See 1999 IRS Publication 535. Second, it was a condition of Spiers's employment that he live at the apartment complex he managed. The addendum to his lease refers to Spiers as a "resident manager" and states that he must move if his employment is terminated. Finally, Spiers's lodging was provided for the convenience of his employer so that he would be available to assist other tenants around the clock.

Spiers argues that the Appeals Board's decision is unfair because he is unable to support his family on the benefit he receives. While we are sensitive to Spiers's financial predicament, we conclude that the amount of his unemployment benefit was properly calculated under applicable rules. As for Spiers's objection to the ALJ's decision to conduct a second hearing, we conclude that such a hearing was necessary because the parties were not given proper notice of the first hearing.

Accordingly, the Board's decision is affirmed.
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge