Request By:
Fibber McGee
State Senator
1005 Minors Lane
Louisville, Kentucky 40291
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion concerning the effect of H.B. 864, 1980 Session. By oral communication, we established that you were concerned with the constitutionality of the law under the Equal Protection Clause wherein the statute allows deductions from unemployment payments for all pensions and retirement benefits, both governmental and private.
The bill in question is part of Chapter 385, 1980 Kentucky Acts, and in Section 8 amends KRS 341.390 (part of the Kentucky unemployment statutes).
The relative section is subsection (3) which provides:
"There shall be deducted from the benefit rate determined for a worker in accordance with subsection (2) of KRS 341.380:
"(3)(a) The amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment which is reasonably attributable to such week;
"(b) If Public Law 94-566 or the federal act which it amends for any cause shall become inoperative in its application, or stayed pendente lite, as to deductions of such compensation, then, subsection (3) of this section, by virtue of that fact, shall likewise and to the same extent, become inoperative as to such deductions."
This section was amended to comply with Public Law 94-566 as amended in 1980 and codified as Title 26 U.S.C., Section 3304, which requires state laws to contain certain provisions in order to receive federal funds.
Subsection (a) 15 provides:
"[T]he amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week; . . ."
As you can see, the language is the same in both federal and state laws.
Since the amendment has not been on the books very long, it has not had sufficient exposure to have been litigated through the courts on the question of equal protection.
However, as an analogy, it was held in
Imel v. Department of Employment, 1978, 99 Idaho 224, 580 P.2d 70, that the unemployment laws which denied unemployment benefits to school teachers who had contracted to teach in the upcoming school year did not deny such teachers equal protection.
Of like import is
Robinson v. Administrator, Dept. of Employment Sec., LA. App. 1977, 356 So.2d 477.
Such rationale was extended to nonprofessional school employees in
Herrera v. Industrial Commission, Colo. 1979, 593 P.2d 329.
And, the equal protection clause does not require identical treatment of all people. States retain, under the Fourteenth Amendment, the power to treat different classes of persons in different ways.
Robinson v. Bd. of Regents of Eastern Kentucky University, 475 F.2d 707, cert. den. 94 S. Ct. 2382, 416 U.S. 982, 40 L. Ed. 2d 758 (CA Ky., 1973).
Equal protection under the law is afforded if the law in question operates in the same general way on all who belong in the same class.
United States v. Cocklin, 178 F.Supp. 318 (D.C.Ky., 1960).
In
Riehl v. Kentucky Unemployment Compensation Commission, Ky., 256 S.W.2d 354, 257 S.W.2d 67 (1953), the Kentucky Court of Appeals held that it was not a discrimination resulting in a denial of equal protection for the unemployment law to require coverage of employers with four employees while excluding those with less than that number.
In a workmen's compensation case, the Court upheld a statute which deferred increased benefits to claimants who suffered from pneumoconiosis (black lung) while increasing them for injury claimants. See
Chapman v. Eastern Coal Corp., Ky., 519 S.W.2d 390 (1975).
Thus, as long as the state can show a reasonable ground for such a classification, such different treatment would not violate the Equal Protection Clause.
The state could argue that the classification was dictated by federal law and in order to avoid loss of federal reimbursement. The federal authorities could argue that persons receiving pensions or retirement income were not bona fide persons in the job market, and that the unemployment compensation statutes were intended to aid those who had no employment-related income.
Ultimately, whether the legislation is wise or unwise, fair or unfair is a policy decision for the legislative body that enacted it. In our view, the amendment would be upheld by the Courts in any challenge to its constitutionality.