Investigations

Leonard Sanderson was scheduled to start a long-term substitute teaching assignment on March 16, the day Jefferson County Public Schools closed to deal with the first wave of the coronavirus.

Sanderson, 67, has taught part-time since January 2017 to supplement the income he receives on social security and another part-time gig enrolling people in health insurance plans. Both jobs dried up as the coronavirus hit.

Courtesy of Leonard Sanderson

Leonard Sanderson

Between the sudden loss of steady income and the deadly virus outside his door, Sanderson spent much of March feeling anxious and confined, and each day he watched Gov. Andy Beshear’s briefings. On March 25, he learned some good news: Beshear was extending unemployment insurance to substitute teachers like him.

The Kentucky Office of Unemployment Insurance deemed him eligible a few days later, and he was paid from the end of April until June 23 — when the checks stopped without warning.

A few weeks later, Sanderson learned he owed $952 to the state of Kentucky for unemployment benefits he had apparently been ineligible to receive.

 “If I wasn’t qualified, why did I get it?” Sanderson said. “Who manages that? Should I have cut it off?”

Sanderson was caught in a trap many other substitute teachers found themselves entangled in during the pandemic. Education professionals can’t claim unemployment during the summer break that started in Louisville on May 31, a caveat the state doesn’t appear to have made clear when it extended benefits to substitute teachers. Subs who continued to file for unemployment after summer break began are now expected to repay anything the state paid in error.

When asked about the error in August, Beshear told WHAS he thought the message was sent to substitute teachers but couldn’t say when and he didn’t specify by whom. A spokesperson from the Kentucky Labor Cabinet provided KyCIR with a link to guidance posted on the state website, which says seasonal workers like substitute teachers are ineligible for unemployment benefits during a scheduled break if they have “reasonable assurance” that work will continue. It is unclear when this guidance was issued and whether it was shared with those filing unemployment claims.

Substitute teachers are just one group of workers caught unawares by unemployment overpayment debt. Those who self-quarantined and filed for unemployment after Beshear said they’d be eligible were later assessed overpayment debt. Beshear said at his daily briefing on October 29 after a KyCIR investigation that people who “self-quarantined” to avoid catching the virus at work were eligible when they filed claims in March. But guidance from the federal government became more stringent as the pandemic stretched on, he said, and Kentucky is bound by federal law to pursue the overpayments even as his administration is seeking the Department of Labor’s permission to forgive the debts.

The federal Department of Labor says its guidance never changed and, in fact, Kentucky had violated several unemployment insurance policies in its rush to pay benefits.  A spokesperson for the Department of Labor said in an email that, in response to questions from states, the Department of Labor provided guidance on existing provisions related to substitute teachers eligibility on May 15.

The plight of Jefferson County Public School substitute teachers provide the clearest example yet of how errors, mixed messages and overlapping authority in the unemployment system has left workers on the hook to repay hundreds or thousands of needed dollars.

Meanwhile, the unemployment office in August threatened Sanderson with civil action  in August unless he ponies up $160 a month to repay money he’s long since spent.

‘There’s a crack’

Sanderson sounds pretty unflappable over the phone, even as he uses words like “anguish” and “ballistic” to describe the ordeals of the past few months. He’s slow to assign blame and says he has a “cool mind” that handles stress well.

Still, he doesn’t think it’s fair that he has to pay back money the state mistakenly paid him. Sanderson already spent a few lean months relying on savings and social security until he landed some insurance work in September.

“I don’t want to sit and say that it’s somebody’s fault,” Sanderson said. “But obviously there’s a mishap here. There’s a crack, and it’s a big crack.”

Just how many substitute teachers have fallen through that same crack is unclear. KyCIR spoke with at least 18 JCPS substitute teachers whose claims have been investigated by the unemployment office.

When an unemployment claim is filed with the state, the unemployment office reaches out to the employer to check that the claimant is in fact unemployed through no fault of their own. JCPS says it has answered 2,215 unemployment claims since February 2020.

In response to questions about unemployment, JCPS spokesperson Mark Hebert sent the JCPS’s pre-pandemic substitute teacher’s handbook, which states that employees are “not eligible to receive unemployment compensation during an established and customary vacation period or holiday recess.”

Hebert said the district doesn’t know how many substitute teachers filed for unemployment over the summer.

Now that school is back in session, even substitute teachers that aren’t currently working in classrooms aren’t technically unemployed, according to the state’s logic, because there is work available. But in practice, schools are now in non-traditional instruction and JCPS needs fewer subs than normal. Hebert said there are other opportunities for subs to work, including custodial or distribution jobs. They can also sign up to help students with Non-traditional Instruction (NTI) at designated “learning hubs,” he said.

Like Sanderson, many JCPS substitute teachers are semi-retired, at an age where they are particularly vulnerable to COVID-19. Teaching is just one of several tenuous streams of income that, together, keep their household budgets afloat. Springtime is normally a busy time for substitute teachers but JCPS was closed this year, denying many an important last chance to save for summer.

Most of Christine Granberry-Higdon’s expenses are covered by what she receives from social security and her husband’s 401k, but not all of them. She worked as an aide in Jefferson County Public Schools for 16 years before retiring. She takes on long-term sub roles now to make it easier to care for her husband, a stroke survivor with type 2 diabetes. When schools shut down in March, she filed for unemployment.

She received one payment in April, only to have her benefits mysteriously stop until June 17. By that time substitute teachers were supposed to be ineligible, but she got paid for about six weeks. That income mostly went towards her husband’s medical supplies. When that money wasn’t coming in, Granberry-Higdon’s husband had to ration insulin and insulin pumps.

In August, the unemployment office said she was overpaid about $3,600. Granberry-Higdon didn’t get a chance to appeal before the 15-day window closed.

She paid off all but $210 of that original bill, but when she logs onto the unemployment system website, her account inexplicably says she owes $7,413, far more than what she was allegedly overpaid.

An Uphill Battle

The unemployment office hears appeals from those billed for overpayments. Both the employer and the former employee give testimony and both sides are entitled to a lawyer, but most unemployed people don’t bring one.

Substitutes from JCPS come up against the law firm Wyatt, Tarrant & Combs, which the district keeps on retainer to handle legal matters including unemployment hearings at a cost to taxpayers of $175 per hour.

Most unemployed people won’t have a lawyer during this process. JCPS teachers who have been through the first level of appeals try to stem the knowledge gap with shared advice on social media.

Consistently, some teachers say, JCPS lawyers argue that substitute teachers were not unemployed because school was on a break, and that work will pick up in the fall. Four that spoke to KyCIR felt like the appeals officer favored JCPS.

Sanderson still decided to fight back, and found a lawyer.

For him, the issue is simple. Somebody made a mistake. But it wasn’t him, or the other substitute teachers in his shoes.

“I’m generally a principled-type guy, but I’m also pretty much about common sense and I don’t think this thing is fair,” Sanderson said.

Devon Skeens, Sanderson’s attorney, argued at his appeal hearing that since substitute teachers weren’t ever eligible before Beshear’s executive order, that order should be the ruling document — not the existing rules for permanent teachers that bar benefits when school isn’t in session. 

But the appeals officer maintained that Sanderson was ineligible for benefits received after May 31. Sanderson has filed another appeal before the unemployment commission and is waiting on that decision.

Regardless of who is at fault, Skeens says it is ultimately vulnerable Kentucky workers who will pay the price. “This is where the rubber meets the road between the citizenry and their government,” Skeens said.

Beshear said last month that people who are overpaid in unemployment benefits to “save that money, because we may need to ask for it back.” Saving was not an option for Sanderson. Most of the money he received through unemployment went towards fixing a broken-down car in June.

“Believe me, I wasn’t out squandering the money, buying this and buying that,” Sanderson said.