## Facts

- Albert and Edward Bosselait, brothers aged 76 and 79, shared one full-time janitor position by working four hours per day each.
- Their job ended when the employer outsourced custodial services.
- They applied for unemployment benefits.
- At the appeal tribunal hearing, Albert cited a weak back; Edward cited partial eyesight and angina.
- Both stated they were unwilling to accept full-time work in the future due to advanced age.
- The unemployment statute required claimants to be ready, willing, and able to perform full-time work.
- The appeal tribunal found them ineligible for failing the full-time availability requirement; the agency appellate division affirmed.

## Issues

1. Whether a Rehabilitation Act claim is preserved when first raised before the agency appellate division rather than the appeal tribunal.
2. Whether denying benefits for lack of full-time availability violates § 504 of the Rehabilitation Act when claimants have physical limitations but refuse full-time work.
3. Whether the full-time availability requirement violates equal protection under the New Hampshire Constitution due to an alleged disparate impact on elderly workers, and what level of scrutiny applies.

## Decision

- The Supreme Court of New Hampshire affirmed the denial of benefits.
- The Rehabilitation Act argument was not preserved because it was not raised before the appeal tribunal.
- Alternatively, the Rehabilitation Act claim failed because the denial was based on unwillingness to accept full-time work, not discrimination solely by reason of handicap.
- The court applied rational-basis review to the equal protection challenge and upheld the full-time availability requirement.

## Legal Principles

- In New Hampshire unemployment compensation appeals, an issue raised for the first time before the agency appellate division cannot be raised on judicial review because the appellate division is not the trial-level fact-finding forum.
- Section 504 of the Rehabilitation Act requires discrimination “solely by reason of” handicap; disqualification for failing a neutral eligibility requirement is not actionable when the basis is the claimant’s refusal to meet that requirement.
- Legislation regulating economic benefits and burdens in a social-welfare program is reviewed under rational-basis standards for state equal protection and due process challenges, absent some additional feature warranting heightened scrutiny.
- An unemployment eligibility rule survives rational-basis review if the legislature could reasonably view it as serving legitimate objectives, including limiting benefits to workers with a meaningful attachment to the labor market.

## Conclusion

The court upheld New Hampshire’s requirement that unemployment claimants be available for full-time work, holding that the claimants’ Rehabilitation Act theory was procedurally barred and, in any event, the denial of benefits rested on their unwillingness to accept full-time employment; the equal protection challenge was assessed under rational-basis review and rejected.


Appeal of Bosselait, 547 A.2d 682 (N.H. 1988)