Benefits and Compensation

Is School Bus Driver Eligible for Unemployment Benefits During Thanksgiving Holiday?

If you run a school, you may think that you won’t be on the hook for unemployment benefits if your school is closed for the Thanksgiving holiday and your workers aren’t entitled to paid holidays. But think again.Thanksgiving

The Massachusetts Appeals Court recently had the chance to review an award of unemployment benefits to a bus driver who didn’t drive kids to school for 3 days during Thanksgiving week. The court’s decision surprised us, and it may surprise you, too. Read on.

Full-Time Bus Driver, Part-Time Schedule

“Arris” has been a full-time bus driver for the Cape Cod collaborative since September 2009, generally working 45 hours per week, with one shift in the morning and one in the afternoon, Monday through Friday. Under the terms of her employment agreement with the collaborative, she isn’t entitled to holiday pay for time off when school isn’t in session.

In 2012, Thanksgiving was on November 22, and school was closed on Wednesday, Thursday, and Friday. The collaborative didn’t pay her for the 3 days she didn’t drive that week, so Arris, who had been willing and able to work those days, applied to the Massachusetts Department of Unemployment Assistance (DUA) for unemployment benefits for the week ending November 24, 2017. The DUA decided that she had been partially unemployed for Thanksgiving week and awarded her unemployment benefits for the days during that week when she hadn’t worked.

The collaborative appealed that determination and requested a hearing before a DUA review examiner, who affirmed the award of benefits. The collaborative then appealed the decision to the Massachusetts district court, arguing that because Arris had driven the bus the first 2 days of Thanksgiving week and was assured of performing services for the school immediately following the Thanksgiving recess, she wasn’t eligible to receive partial unemployment benefits for her 3 days off.

Tortured Reading of Statute?

The Massachusetts Unemployment Statute, Mass. Gen. L. Ch. 151A, governs workers’ eligibility for unemployment benefits. Generally, if an employer closes its operations for part of a workweek and doesn’t pay its workers for the days it’s closed, its employees will be entitled to unemployment benefits for any part of that week in which they are ready and available for work.

However, the Massachusetts Legislature carved out an exception to Chapter 151A allowing educational institutions to close for vacations and “holiday recesses” without incurring the cost of unemployment benefits.

The issue in this case was the interpretation of two different sections of Chapter 151A. One section, s. 28A(c), provides that workers who perform services for an educational institution are not entitled to benefits “for any week commencing during an established and customary vacation period or holiday recess.” Another section, s. 1(t), defines a week as “seven consecutive days beginning on Sunday.”

On appeal, the district court judge overturned the award of benefits, concluding that the review examiner should have considered the day before and after Thanksgiving a “customary vacation period or holiday recess,” which would disqualify Arris from receiving unemployment benefits under s. 28A(c).

The judge noted that Arris should have known she wasn’t going to be paid for those 3 days because she wasn’t working. Moreover, the court said, concluding that s. 28A(c) wasn’t applicable to her situation because Thanksgiving week wasn’t a full “week” was a tortured interpretation of the statute. The DUA then took up the case on Arris’ behalf and appealed to the Massachusetts Appeals Court.

Appeals Court Weighs In

The DUA argued that s. 28A(c) didn’t disqualify Arris from benefits because the week in question began on Sunday, not on Wednesday (the start of the Thanksgiving recess). The appeals court’s decision includes a very technical discussion of how to interpret the language of a statute, and we won’t bore you with the legalese here.

Bottom line, the court decided that it was required to abide by the definition in s. 1(t) and find that s. 28A(c) didn’t bar Arris from receiving benefits because the week “commenced” on Sunday, November 18, and the Thanksgiving recess didn’t start until Wednesday, November 21.

In interpreting the Massachusetts statute, the court looked to the parallel federal statute, which contains similar language, and noted that the legislature specifically amended Chapter 151A in 1977 to conform the language of the state statute more closely to the language of the federal law. The court also noted that the overall purpose of the unemployment statute is to provide temporary relief for employees who don’t work “through no fault of their own.”

Although it would appear counterintuitive to conclude that Arris should receive unemployment benefits even though her employment agreement expressly states that she will not receive holiday pay for time off when school isn’t in session, the court found that she was, in fact, entitled to unemployment benefits for the time she was out of work during the school’s Thanksgiving recess.


Although this decision appears to be applicable only to educational institutions, any employer that doesn’t offer paid holidays to its employees and closes for some or all of a week because of a holiday will be liable for partial unemployment benefits. And educational institutions may also have to pay unemployment benefits to employees who don’t work on Martin Luther King Day or Veterans Day or any other day when school is closed even if their contracts say they won’t be paid for those holidays.

Because not-for-profit entities don’t contribute to the state’s unemployment trust fund, unemployment benefits come straight out of their pockets. Nonetheless, unemployment will amount to less than paying employees their full wages for the holidays. Consider your options, and if you have additional questions about this complicated decision, check with experienced labor and employment counsel.

Susan G. Fentin, editor of Massachusetts Employment Law Letter, is of counsel at the firm of Skoler, Abbott & Presser, P.C. Fentin can be reached at 413-737-4753 or

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