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Raw Deal?

Local Matters


Published August 4, 2004 at 5:13 p.m.

Anyone who's ever waited tables for many years -- or held any low-wage job, for that matter -- has probably worked for a "boss from hell." Charles Reeves, owner of Penny Cluse Cafe in Burlington, isn't one of them. In fact, his employees say he's a really nice guy to work for. Which may explain why Reeves and his wife, Holly Cluse, have maintained a relatively stable staff of employees -- at least, as stable as they get in the food-service industry in a college town.

The downtown eatery has been open for six years. Until last year, Reeves had fired just one employee, who later filed an unemployment claim with the state, and that occurred within the first year of business. With such a stable record of employment, one would think that Penny Cluse wouldn't be paying much in unemployment insurance, right?

Wrong. Last year, Reeves got a letter from the Vermont Department of Employment and Training (DET), notifying him that a second employee had filed for unemployment. The employee, who had worked part-time at Penny Cluse for six months, was laid off in July 2002 after Reeves and Cluse discontinued their dinner service because it wasn't profitable. Although most of the cafe's evening staff had been absorbed into the daytime hours, a few workers had to be let go. The employee wasn't terminated for misconduct and, according to Reeves, his unemployment claim wasn't "a revenge thing." So Reeves didn't challenge it, and the state awarded the laid-off employee the full benefits to which he was entitled, based on his hours worked and wages earned: a grand total of $31.56.

But that $31.56 benefit is now costing Reeves a lot more. Apparently, even one unemployment claim filed by a part-time employee was enough to bump Penny Cluse into a higher rate class, upping its unemployment insurance taxes by $266.57 a year for the next three years -- or nearly $800. Reeves didn't think that was fair, so he decided to challenge it. "I believe in this system and I want people to get benefits," Reeves says. "We would not contest it if we felt like it was something that we were actually responsible for."

Reeves filed an appeal in July 2003. Four months later, he was granted a hearing before a DET referee, who confirmed that the original calculation was correct and the higher tax rate applied. Dissatisfied with that decision, Reeves appealed to the DET's Employment Security Board. Again, he was denied. "The employer's arguments certainly remain understandable," wrote DET referee Joseph Thorpe in his January 2004 decision, "but there is no provision in law to offer them support."

In laymen's terms, Reeves was SOL. His final recourse was to appeal that ruling to the Vermont Supreme Court, an option that was financially impractical. As Reeves discovered, challenging the unemployment tax rate is like debating the outcome of a mathematical equation: The calculation is either correct or it's not. And in this case, the equation is set in statute and no one but the Legislature has the authority to change it.

These days, few employers would dispute the social value of the unemployment system, which was set up in the 1930s as a way to alleviate the hardship of laid-off workers going without a paycheck. But most of us rarely think about the program's other policy goal: stabilizing employment. Since a business's unemployment tax rate is based on the ratio of its total unemployment to its total payroll, the program serves as a disincentive for employers to hire and fire workers at will.

Tom Douse is deputy commissioner of the DET. He says he's sympathetic to Reeves' plight, but admits there isn't much he can do about it since most of the laws governing unemployment taxes are set at the federal level. When asked if there's anything an employer like Reeves can do to improve his unemployment tax rate, he advises, "Manage their work so that people are not receiving unemployment benefits." In other words, don't fire employees unless you absolutely have to.

Douse also notes that unemployment insurance is like any other form of insurance. "There isn't a one-to-one relationship between the benefits paid by an employer and what their taxes are," he says. "As you know when you have a car accident, your insurance rate goes up and the same thing happens."

But Reeves isn't looking for sympathy -- just someone who acknowledges the absurdity of his situation and has the authority to do something about it. Thus far, he's spent about 20 hours fighting this ruling. "It's more of a hobby than anything else," he says with a laugh. And Reeves would gladly reimburse the state the $31.56 it paid to his fired worker. "But I don't have that recourse. It's just a cold, bureaucratic process," he says. "I don't want to pay another $800 just because the system doesn't work right."

A recent U.S. Supreme Court decision about the way judges hand down sentences has created turmoil in federal courts across the country, including in Vermont. David Kirby, acting U.S. attorney in Burlington, confirms that federal jury trials, sentences and pleas have all been put on hold for about a month following the High Court's ruling in Blakely v. Washington, which found that sentencing guidelines used in Washington State were not constitutional. While the ruling didn't toss out federal sentencing guidelines, it has raised more questions than it's answered.

In Blakely, the Supreme Court ruled that the prison sentence a judge sets must be based only on those facts that were proven to the jury. For example, in a drug-conviction case, a judge cannot increase the defendant's sentence based on the quantity of drugs sold or the use of weapons in the commission of the crime, unless that evidence was presented to the jury and proven beyond a reasonable doubt.

The Blakely ruling affects about two-thirds of the current federal caseload in Vermont, Kirby estimates, and could also have ramifications for past convictions. In recent weeks, each federal circuit around the country has been interpreting the ruling differently. "The legal wisdom probably is that the Blakely decision will not affect those [past] cases, but we could be wrong," Kirby says. "Right now, there's just general confusion."

But Kirby doesn't seem overly concerned about the ruling, either. While he admits that this decision has affected the way federal prosecutors build their cases, he notes that summer is usually a quieter time for the courts. "And as soon as the Supreme Court really lays out what the new rules are, we'll all be quite comfortable again."

Here's a real shocker:

Americans are reading less -- or so says the National Endowment for the Arts. Last month, the NEA released the results of its national survey, Reading at Risk: A Survey of Literary Reading in America, which showed that fewer than half of all Americans read any form of literature. The report shows declines in all age groups, with the steepest decline -- 28 percent -- occurring in the youngest demographics. The study also documented an overall drop of 10 percentage points in literary readers from 1982 to 2002, representing a loss of 20 million potential readers. The rate of decline is increasing and, according to the NEA survey, has nearly tripled in the last decade.

It's not exactly an unexpected finding, especially in a nation where repetitive-stress injuries are also on the rise, due in large part to excessive video-game playing. But if it's true that Americans are reading less fiction, that downturn doesn't seem to be reflected in local buying habits for nonfiction, particularly real-life human drama.

Consider, for example, the overwhelming interest among Vermonters in The 9/11 Commission Report, which has become one of the fastest best-sellers ever for Burlington bookstores. Borders Books & Music on Church Street reports that it sold out all its copies -- more than 60 books -- in less than two days. "I've never seen anything like it," says General Manager Pat Pearsall. "Every-body is scrambling to get their hands on it." According to Pearsall, the 9/11 report has been the company's biggest-selling nonfiction book in the last 32 years.

The 9/11 Commission Report has also been a perfect storm for its publisher, W.W. Norton & Company, one of the nation's oldest employee-owned publishing houses. W.W. Norton didn't have to pay any royalties to its author, or to advertise -- the front-page media coverage of the 9/11 Commission took care of that. Already, the publisher has distributed all 600,000 copies to wholesalers and retailers and has begun a second printing of 200,000 more copies. Reported-ly, sales in Vermont have been even more vigorous than in other areas of New England.

Why? A peek at the purchasing habits of online buyers of the 9/11 Commission report may provide a clue. According to websites for Barnes & Noble and Amazon.com, people who purchased The 9/11 Commission Report also bought My Life by Bill Clinton, Against All Enemies by Richard Clarke, Worse Than Watergate by John Dean, and Dude, Where's My Country? by Michael Moore. All of these reads are either critical of the Bush administration or decidedly left in their leanings.

Of course, there's one major difference between the popularity of The 9/11 Commission Report and other best-sellers: No one is hoping to see a sequel.

A quick viewer note for do-it-yourself Vermonters. This week, Vermont Public Television airs a documentary by Elizabeth Westrate entitled A Family Undertaking, which explores a growing trend in America: home funerals. More and more often, Americans are choosing to bury their loved ones themselves in order to better cope with their grief and save money on funerals, which now average more than $7000. Far from a radical innovation, home burials are a return to the traditional Ameri-can funeral rites that were practiced for centuries until about the time of the Civil War.

A Family Undertaking features an interview with Lisa Carlson of Hinesburg, the self-described "Ralph Nader of the funeral industry" and author of two home-burial guides: Caring for the Dead: Your Final Act of Love and I Died Laughing: Funeral Education with a Light Touch. For years, Carlson ran the South Burlington-based Funeral Consumers Alliance, a watchdog group for the death industry. She makes a compelling argument for families to rescue burial rituals from the impersonality and expense of the mass-market funeral industry.

One caveat: The PBS documentary airs on VPT August 4 and 11 at 3 a.m. So set your VCRs... unless you're planning to be up in the dead of night.