Board of Review Decision 352-M85P-NK85

Review examiner erred in denying seasonal status for 41 positions due to paid training during multiple weeks prior to the start of the employer’s summer program. Because each functionally distinct occupation is considered separately, the training and summer work for each functionally distinct position ran for 16 weeks and 6 days in total. Board granted seasonal employment status under G.L. c. 151A, §§ 24A and 1(z), because these were functionally distinct occupations performing work for periods of less than 20 weeks in a calendar year.

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Issue ID: 352-M85P-NK85

Board of Review Decision

Introduction and Procedural History of this Appeal 

The employer appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA), which denied seasonal employer status for forty-one different positions during the 2024 calendar year. We review, pursuant to our authority under G.L. c. 151A, § 41, and reverse. 

On October 26, 2023, the DUA determined that the employer would not receive seasonal employer status for forty-one different positions for the coming year. The employer appealed the determination and attended the hearing. In a decision rendered on April 6, 2024, the review examiner affirmed the agency determination, concluding that seasonal certification was properly denied for the requested positions pursuant to G.L. c. 151A §§ 1(z) and 24A. The Board accepted the employer’s application for review. 

Seasonal employer status was denied after the review examiner determined that the positions operated during a period that exceeded twenty weeks in a calendar year and, thus, the employer was not entitled to seasonal status for those positions under G.L. c. 151A, §§ 1(z) and 24A. Our decision is based upon our review of the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, and the employer’s appeal.

The issue before the Board is whether the review examiner’s decision, which concluded that the employer was not entitled to seasonal employer status for the positions listed because those positions performed services for the employer during a period that exceeded twenty weeks in a calendar year, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

The review examiner’s findings of fact are set forth below in their entirety:

1. The employer is a company that runs a summer academic program for children between grades 4 and 12. 
2. The employer maintains a staff of 37 permanent employees. None of the employer’s permanent staff work with children. 
3. On October 25, 2023, the employer submitted a completed Application for Certification as a Seasonal Employer and submitted it to the Department of Unemployment Assistance (DUA). 
4. Through the application, the employer sought certification for multiple positions as seasonal. These positions will be working directly with children, and include: instructor/advisor, lead instructor, instructional coach, main office manager/coordinator, supply manager/coordinator, buyer, AV/IT coordinator, banker, program assistant, trips manager/coordinator, scheduling coordinator, operations manager/coordinator, travel coordinator, programming manager/coordinator, athletics coordinator, art coordinator, campus photographer/photojournalist, dean of students, assistant dean of students, main office director, assistant main office director, director of teaching and learning, assistant director of teaching, director of student programming, assistant director of student programming, director of operations, assistant director of operations, special projects coordinator, teaching assistant, head nurse, registered nurse, LPN, health office assistant, medical records review analyst, aquatics director, board game coordinator, assistant head of program, move-in/move out assistant, pre-season administrative assistant, maker coordinator, spring training curriculum coach, pre-reason curriculum developer, college writing coach, college credit grader, and spring trainee. 
5. In 2024, over 1,000 students will participate in the employer’s summer program. The students will participate in the program from June 30, 2024, until August 10, 2024. 
6. In the application, the employer did not provide the exact actual dates when its employees will be working. Instead, the employer provided a large time range of no more than 19 weeks knowing that the employees may not be working the entire time. 
7. In 2024, more than half of the positions for which the employer is seeking seasonal certification for either began or will begin working approximately 15 to 20 training hours before the beginning of the actual summer program. These employees will have the flexibility to choose when to work these 15 to 20 hours. These positions, some which began working as early as February 4, 2024 on a limited basis, will be paid wages for these 15 to 20 hours, and include: instructor/advisor, lead instructor, instructional coach, AV/IT coordinator, program assistant, operations manager/coordinator, programming manager/coordinator, dean of students, assistant dean of students, main office director, assistant main office director, director of teaching and learning, assistant director of teaching, director of student programming, assistant director of student programming, director of operations, teaching assistant, head nurse, health office assistant, medical records review analyst, assistant head of program, pre-season administrative assistant, spring training curriculum coach, pre-reason curriculum developer, and spring trainee. 
8. The employer will have employees for which it seeks seasonal certification on its payroll as early as February 4, 2024, and potentially as late as September 14, 2024. 
9. For all relevant positions, the employer will be employing new hires. None of the duties will be performed by the employer’s permanent staff. 
10. The employer’s season runs from February 4, 2024, until September 14, 2024, a total of 32 weeks.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. After such review, the Board adopts the review examiner’s findings of fact except as follows. We reject Finding of Fact 10 as inconsistent with the evidence in the record. In adopting the remaining findings, we deem them to be supported by substantial and credible evidence. However, as discussed more fully below, we reject the review examiner’s legal conclusion that the employer was not entitled to seasonal employer status for each of the forty-one positions listed on its application. 

An employer’s status as a seasonal employer is governed by G.L. c. 151A, §§ 1(z) and 24A. In relevant part, § 1(z) defines a seasonal employer as:

[A]n employer that, because of climatic conditions or the nature of the product or service, customarily operates all or a functionally distinct occupation within its business only during a regularly recurring period or periods of less than 20 weeks for all seasonal periods during a calendar year.

The review examiner denied the employer seasonal status because he concluded that the period for which the employer was seeking seasonal certification ran from February 4, 2024, until September 14, 2024, a duration that exceeds twenty weeks. See Finding of Fact 8. We disagree.

Pursuant to 430 CMR 12.03, the agency will grant seasonal certification if it determines that “an employer operates all or a functionally distinct occupation within its business during a regularly recurring period(s) of less than 20 weeks in a calendar year because of the nature of the product or service or because of climatic conditions.” The term functionally distinct occupation is further defined in 430 CMR 12.03 as:

Functionally Distinct Occupation. An occupation in which the assigned duties or tasks are identifiably distinct from the duties or tasks assigned to employees outside the seasonal period. Mere addition of staff to perform the same or similar duties as those performed outside the season would not be considered seasonal. 

The employer operates a summer academic program for children in grades four through twelve. Finding of Fact 2. In addition to the positions for which the employer seeks seasonal status, it retains thirty-seven year-round employees. However, none of these thirty-seven employees work with children directly as part of the employer’s summer program. Finding of Fact 2. Although they perform the background work necessary to allow the summer program to operate, their function is distinct from the employees who are hired for the actual day-to-day operations of the summer camp. We, therefore, agree with the review examiner’s legal conclusion that the forty-one positions for which the employer seeks seasonal certification are functionally distinct occupations from the employer’s year-round employees and not a mere addition of staff.  

During the 2024 calendar year, the employer operated its summer program during the nine-week period between June 30, 2024, and August 10, 2024. Finding of Fact 5. However, the employer also provided testimony that some of its employees would work a few weeks before the summer program started or few weeks after the summer program ended.  This testimony is confirmed by the employer’s application for certification as a seasonal employer, which was admitted into evidence as Exhibit 2. Thus, the record shows that the employer operated its summer program during the twelve-week and six-day period between June 16, 2024, and September 14, 2024.

However, the review examiner concluded that the employer was not entitled to seasonal status for the forty-one positions listed because its seasonal operational period was thirty-two weeks. He reached this conclusion based on the employer’s testimony that more than half of the positions at issue were required to complete fifteen to twenty hours of paid training beginning as early as February 4, 2024. Finding of Fact 7. Based on this, the review examiner concluded that the employer’s seasonal period started on February 4, 2024, and ran through September 14, 2024. Such a conclusion disregards the employer’s uncontested testimony that seasonal staff were broken up into different groups based on their titles, and each group was given a four-week period to complete their training.

Seasonal certifications may be granted to an employer who “operates all or a functionally distinct occupation within its business during a regularly recurring period(s) of less than 20 weeks in a calendar year. . . .” 430 CMR 12.03. Therefore, the work and duration of each functionally distinct occupation is considered separately when determining seasonal status. 

In the instant case, the employer’s evidence shows that the duties, which each of the enumerated positions perform, are identifiably distinct under the usual and customary practices of the industry. As an example, two of the positions listed on the seasonal application admitted as Exhibit 5 are the AV/IT coordinator and the health office assistant. The AV/IT coordinator position was responsible for deploying, managing, and taking down the employer’s computer network at each summer camp location. The health office assistant position was responsible for aiding the nursing staff with daily operations in the health office at each of the employer’s summer program locations. While these two positions work with children in the employer’s summer program, they have identifiably distinct duties. As a result, they are functionally distinct occupations from one another, and their seasonal operational periods must be assessed separately. 

Further, it was an error for the review examiner to include in the seasonal operational period those weeks during which the positions were not performing work for the instant employer. A seasonal operational period for an employer or for a functionally distinct occupation need not be consecutive weeks. 430 CMR 12.03 (defining Seasonal Employment, in relevant part, as “[s]ervice performed by an employee for wages for a certified seasonal employer during a period or periods of less than 20 weeks in a calendar year.”) (Emphasis added). 

Using the example discussed above, if the AV/IT coordinator completed training during the four weeks between February 4, 2024, and March 3, 2024, and the health office assistant completed training between March 4, 2024, and April 1, 2024, that does not mean the employer’s seasonal training period ran from February 4, 2024, through April 1, 2025. The AV/IT coordinator position would have performed services for the employer, at most, in the sixteen week and six-day periods between February 4, 2024, and March 3, 2024, and between June 16, 2024, and September 14, 2024. The health office assistant position would operate, at most, in the sixteen-week and six-day periods between February 4, 2024, and March 3, 2024, and between June 16, 2024, and September 14, 2024. Because the employer gave each grouping of positions a total of four weeks to complete the assigned training, the record does not support a conclusion that the seasonal operational periods of any one functionally distinct occupation exceeded sixteen weeks and six-days in the 2024 calendar year. See Finding of Fact 6.

We, therefore, conclude as a matter of law that the review examiner erred in denying seasonal employment status for the positions listed on the employer’s October 25, 2023, Application for Certification as a Seasonal Employer under G.L. c. 151, §§ 24A and 1(z). 

The review examiner’s decision is affirmed in part and reversed in part. For the year 2024, the employer is granted seasonal employment status for the positions of instructor/advisor, lead instructor, instructional coach, main office manager/coordinator, supply manager/coordinator, buyer, AV/IT coordinator, banker, program assistant, trips manager/coordinator, scheduling coordinator, operations manager/coordinator, travel coordinator, programming manager/ coordinator, athletics coordinator, art coordinator, campus photographer/photojournalist, dean of students, assistant dean of students, main office director, assistant main office director, director of teaching and learning, assistant director of teaching, director of student programming, assistant director of student programming, director of operations, assistant director of operations, special projects coordinator, teaching assistant, head nurse, registered nurse, LPN, health office assistant, medical records review analyst, aquatics director, board game coordinator, assistant head of program, move-in/move out assistant, pre-season administrative assistant, maker coordinator, spring training curriculum coach, pre-reason curriculum developer, college writing coach, college credit grader, and spring trainee. 

Boston, Massachusetts                                              Date of Decision – April 27, 2026

1. Although not explicitly incorporated into the review examiner’s findings of fact, the employer’s testimony in this regard and as referenced below, is part of the unchallenged evidence introduced at the hearing and placed in the record, and it is thus properly referred to in our decision today.  See Bleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).
2. Exhibit 2 is also part of the unchallenged evidence introduced at the hearing and placed in the record.

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

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(See Section 42, Chapter 151A, General Laws, Enclosed)

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