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Ex parte Alabama Department of Labor

Alabama Court of Civil Appeals

April 14, 2017

Ex parte Alabama Department of Labor
v.
Alabama Department of Labor In re: Personnel Staffing, Inc.

         Etowah Circuit Court, CV-16-900717

          PETITION FOR WRIT OF MANDAMUS

          THOMPSON, Presiding Judge.

         The Alabama Department of Labor ("the Department") filed in this court a petition for a writ of mandamus challenging an order of the Etowah Circuit Court ("the trial court") denying the Department's motion to dismiss an administrative appeal filed by Personnel Staffing, Inc.

         The materials submitted to this court indicate that the Department sent a letter dated July 25, 2016, to Personnel Staffing stating:

"We have been notified of a transfer of assets and employees from MANNING MICHAEL JASON, ADVANCED STAFFING LLC to your business effective 11/01/2015.
"Benefit cost charged and taxable payrolls credited to your predecessor's experience rating account are transferred to your account for tax rate purposes. Any subsequent benefit cost that would have been chargeable to your predecessor will be charged to your account.
"If you disagree with this determination, a written protest must be filed within fifteen (15) days from the date of this letter according to ALDOL Administrative Code 480-4-2-23."

(Bold typeface in original.) We note that the parties have referred to this notification as the Department's determination of Personnel Staffing's "successor liability" for unemployment-compensation benefits.

         It is undisputed that Personnel Staffing did not file a written protest of the July 25, 2016, successor-liability notification letter.

         By letter dated July 28, 2016, the Department notified Personnel Staffing of its tax rate, effective January 1, 2016. That letter contained a notification that the "tax rate is final unless written request for review is submitted within 30 days" of the July 28, 2016, tax-rate notification letter.

         On August 26, 2016, within the 30 days specified in the July 28, 2016, tax-rate notification letter, Personnel Staffing notified the Department that it was requesting a formal review of the Department's tax-rate determination. In that notification, Personnel Staffing disputed the Department's calculation of its unemployment-compensation tax by arguing that it had not acquired a new company or new employees--i.e., Personnel Staffing disputed its successor liability.[1]

         The Department, by letter dated September 8, 2016, notified Personnel Staffing that it had reviewed the July 28, 2016, tax-rate notification letter and had determined that the tax rate listed in that letter was correct. In doing so, the Department explained:

"Personnel Staffing, Inc., has been determined to meet the criteria of being a mandatory successor to Manning Michael Jones, d.b.a. Advanced Staffing LLC, as set forth in the Unemployment Compensation Laws of Alabama.
"Among the requirements to be made a successor set forth in Section 25-4-8(4)a. of the [unemployment-compensation] laws of Alabama is the acquisition of 65% of the employees of an existing business. Beginning the fourth quarter of 2015, Personnel Staffing, Inc., acquired 107 out of 145 former employees of Advanced Staffing LLC, approximately 74% of their employees. The employment of so many of Advanced Staffing LLC's employees satisfies the requirements of Alabama's [unemployment-compensation] laws and makes Personnel Staffing, Inc., a mandatory full-successor."

         Personnel Staffing filed an appeal of the September 8, 2016, Department decision to the trial court. On November 18, 2016, the Department moved the trial court to dismiss Personnel Staffing's appeal. Personnel Staffing filed an opposition to the motion to dismiss. Apparently in response to that opposition, the Department, on January 13, 2017, filed in the trial court the affidavit of Jo Doyal, the Supervisor of the Department's unemployment-compensation division. Thereafter, also on January 13, 2017, the trial court entered an order, based on its consideration of the parties' filings and the oral arguments it considered during a hearing on that date, in which the trial court denied the Department's motion to dismiss Personnel Staffing's appeal.

         The Department has filed this petition for a writ of mandamus, arguing that the trial court lacked jurisdiction over Personnel Staffing's appeal because, it says, that appeal pertained to Personnel Staffing's arguments regarding the Department's determination of successor liability and, therefore, that the appeal was not timely. "We note that a lack of subject-matter jurisdiction may be raised at any time, and that the question of subject-matter jurisdiction is reviewable by a petition for a writ of ...


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