NONMONETARY ELIGIBILITY

This chapter provides information about state law provisions concerning nonmonetary eligibility requirements.

IN GENERAL

Along with monetary requirements, each state's unemployment insurance law requires workers to meet nonmonetary requirements. Federal law mandates some of these requirements. The general rule is that workers must have lost their jobs through no fault of their own and must be able, available, and actively seeking work. By examining the workers current attachment to the labor force, these provisions delineate the type of risk covered by unemployment insurance law - primarily, unemployment caused by economic conditions.

This chapter is organized from the perspective of a worker experiencing the claim process. First, the state would determine if there are any issues related to the worker becoming unemployed. Second, issues generally related to week-by-week eligibility would be explored. Third, the state would explore whether worker received any "deductible income" causing a reduction in benefits payable. Finally, if there is a question as to the legitimacy of a worker's claim, the state agency will have to determine whether it is fraudulent.

Caution. Nonmonetary requirements are, in large part, based on how a state interprets its law. Two states may have identical laws, but may interpret them quite differently.

Usage Note. There is a distinction between issues that result in disqualification and issues that result in weeks of ineligibility. A disqualified worker has no right to benefits until she or he requalifies, usually by obtaining new work or by serving a set disqualification period. In some cases benefits and wage credits may be reduced. An ineligible worker does not receive benefits only as long as the condition that causes ineligibility exists. Eligibility issues are generally determined on a week-by-week basis.

Federal law permits cancellation of wage credits for only three reasons: misconduct in connection with the work, fraud in connection with a claim, or receipt of disqualifying income. The severity of this type of penalty depends mainly on the presence or absence of additional wage credits during the base period. If the wage credits canceled extend beyond the base period for the current benefit year, the individual may not be monetarily eligible in the subsequent benefit year.

SEPARATIONS

VOLUNTARILY LEAVING WORK- Since the unemployment insurance program is designed to compensate wage loss due to lack of work, voluntarily leaving work without good cause is an obvious reason for disqualification from benefits. All states have disqualification provisions.

In most states disqualification is based on the circumstances of separation from the most recent employment. These disqualification provisions may be phrased in terms such as "has left his most recent work voluntarily without good cause." In a few states the agency looks to the causes of all separations within a specified period. A worker who is not disqualified for leaving work voluntarily with good cause is not necessarily eligible to receive benefits. For example, if the worker left because of illness or to take care of illness in the family, the worker may not be able to or available for work. In most states, this ineligibility would last only until the individual was again able and available.

Period of Disqualification--In most states the disqualification lasts until the worker is again employed and earns a specified amount of wages. In Alaska and Colorado, the disqualification is a fixed number of weeks (in Colorado, only for separations from the most recent employer); the longest period in either of these states is 10 weeks. Nebraska has a variable disqualification of up to 10 weeks. Maryland and North Carolina impose fixed duration disqualifications for certain conditions described in the following table.

Reduction of Benefit Rights--In some states, in addition to the postponement of benefits, benefit rights are reduced, usually equal in extent to the weeks of benefit postponement imposed.

Good Cause for Voluntary Leaving--In all states workers who leave their work voluntarily must have good cause if they are not to be disqualified.

In many states good cause is explicitly restricted to good cause connected with the work, attributable to the employer, or involving fault on the part of the employer. However, in a state where good cause is not explicitly linked to the work, the state may interpret its law to include good personal cause or it may limit it to good cause related to work. Since a state law limiting good cause to the work is more restrictive, it may contain specific exceptions that are not necessary in states recognizing good personal cause. (For example, an explicit provision not disqualifying a person who quits to accompany a spouse to a new job might not be necessary in a state which recognizes good personal cause; it would be necessary in a state restricting good cause to that related to the work.)

The following table indicates common "good cause" provisions. Other provisions are discussed in the text following the table.

Other Good Cause Provisions. Several states also specify various circumstances relating to work separations that, by statute, require a determination that the worker left with good cause. Arizona and Connecticut do not disqualify a worker for voluntary leaving because of transportation difficulties. Several states do not disqualify workers for voluntary leaving if they left work to accompany their spouse to a place from which it is impractical to commute. Arizona does not disqualify unemancipated minors for voluntary leaving if they left work to accompany their parent to a place from which it is impractical to commute. Colorado does not disqualify a worker who absent from work due to an authorized and approved voluntary leave of absence. North Carolina does not disqualify a worker for leaving work due to a unilateral and permanent reduction in full time work hours of more than 20% or reduction in pay of more than 15% and does not deny benefits to a worker based on separation from work resulting from undue family hardship when a worker is unable to accept a particular job because the individual is unable to obtain adequate childcare or elder care. Illinois does not deny a worker benefits for giving false statements or for failure to disclose information if the previous benefits are being recouped or recovered.

Louisiana does not apply the voluntary leaving disqualification if a worker left part-time or interim employment in order to protect full-time or regular employment. A similar Wisconsin provision says the disqualification will not be applied to a worker who leaves part-time work because of the loss of a full-time job that makes it economically unfeasible to continue the part-time work. Colorado does not disqualify a worker who quits a job outside his/her regular apprenticeable trade to return to work in the regular apprenticeable trade.

Colorado does not disqualify workers who leave a job because of personal harassment unrelated to the work. In addition, Colorado does not disqualify workers who have separated from employment because they were physically or mentally unable to perform the work.

Good Cause -Relation to Other Laws. California and Michigan specify that a worker who leaves a job with good cause if an employer deprived the individual of equal employment opportunities not based on bona fide occupational qualifications. Colorado and Kansas do not disqualify a worker for voluntary leaving if the individual was instructed or requested to perform a service or commit an act in the course of duties which is in violation of an ordinance or statute. Also, Colorado, Kansas, and Michigan do not disqualify a worker for voluntary leaving due to hazardous working conditions.

Good Cause and Labor Arrangements. Several state laws explicitly address separations that occur under collective bargaining agreements.

California, Colorado, and Illinois do not disqualify a worker who, under a collective bargaining agreement, elected to be laid off in place of an employee with less seniority. Iowa has a similar provision which does not require a collective bargaining agreement to be in place.

Delaware and New York do not disqualify workers for voluntary leaving if under a collective bargaining agreement or written employer plan they exercise their option to be separated, with the employer's consent for a temporary period when there is a temporary layoff because of lack of work. Oklahoma, Pennsylvania and Tennessee specify that a worker shall not be denied benefits for voluntarily leaving if he exercises his/her option of accepting a layoff pursuant to a union contract, or an established employer plan, program or policy. In Tennessee, however, a worker will be disqualified if the employer provides a monetary incentive (excluding wages in lieu of notice, separation allowance, or similar payment) for the separation which is greater than the maximum amount of benefits a worker would receive. Also, in Georgia and Tennessee if the separation was due to an agreement that permits the employee to accept a separation from employment the disqualification will not apply. However, in Tennessee the exclusion mentioned above also applies in this instance.

Kentucky does not disqualify workers for voluntarily leaving if they are separated due to a labor management contract or agreement or an established employer plan, program or policy that permits the employer to close the plant or facility for vacation or maintenance. Also, Kentucky does not disqualify workers for voluntarily leaving their next most recent work which was concurrent with the most recent work, or for leaving work that was 100 miles (one-way) from home to accept work less than 100 miles away, or if left part-time work to accept the most recent suitable work.

Oregon does not disqualify workers for voluntary leaving if they cease to work or fail to accept work when a collective bargaining agreement between their bargaining unit and their employer are in effect and the employer unilaterally modifies the amount of wages payable under the agreement, in breach of the agreement. Oregon does not disqualify workers for voluntarily leaving work and deems them to be laid off if: the worker works under a collective bargaining agreement; elects to be laid off when the employer has decided to lay off employees; and is placed on the referral list under the collective bargaining agreement.

In Wisconsin the voluntary leaving disqualification will not apply to a worker who terminates work with a labor organization which causes the employee to lose seniority rights granted under a union agreement, and if the termination results in a loss of the employee's employment with the employer which is a party to that union agreement.

Good Cause and Suitable Work. Several states have provisions prohibiting the application of the voluntary quit provision if the work was determined not to be suitable employment for the worker.

Illinois does not impose a disqualification if the worker accepted new work after separation from other work and, after leaving the new work, the new work was deemed unsuitable. Michigan and Missouri do not disqualify workers for voluntary leaving if they left unsuitable work within 28-60 days after beginning the work; Missouri allows 28 days and Michigan 60 days. Minnesota does not disqualify a worker for voluntary leaving if the accepted employment represented a departure from the individual's customary occupation and experience and the individual left the work within 30 days under specified conditions. New Hampshire allows benefits if a worker, not under disqualification, accepts work that would not have been suitable and terminates such employment within 4 weeks. New York provides that voluntary leaving is not in itself disqualifying if circumstances developed in the course of employment that would have justified the worker in refusing such employment in the first place. North Dakota does not apply the voluntary leaving disqualification if a worker accepted work which could have been refused with good cause and terminated the employment with the same good cause within the first 10 weeks after starting work. Wisconsin does not apply the voluntary leaving disqualification if the individual accepted work which could have been refused because of the labor standard provisions and terminated the work within 10 weeks of starting the work.

Colorado does not disqualify if the separation is determined to have been as a result of an unreasonable reduction in pay or as a result of refusing with good cause to work overtime without reasonable advance notice or as a result of a substantial change in the working conditions.

North Dakota also has a good cause provision for leaving work with the most recent employer to accept a bona fide job offer with a base period employer who laid off the individual and with whom the individual has a demonstrated job attachment. This requires earnings with the base period employer in each of six months during the five calendar quarters before the calendar quarter in which the individual files a claim for benefits.

Wisconsin will not apply the voluntary quit disqualification if a worker left to accept a job and earned wages of 4 times the weekly benefit amount, and the work offered average weekly wages at least equal to the wages earned in the most recent computed quarter in the terminated employment, or if the hours of work are the same or greater, or was offered the opportunity for longer term employment, or if the position duties were closer to the individual's home than the terminated employment. Also, in Wisconsin a disqualification will not apply if a worker claiming partial benefits left to accept work offering an average weekly wage greater than the average weekly wage in the work terminated.

Good Cause and Jobs for Temporary Service Employers. Several states contain provisions providing that, if an employee of a temporary service employer fails to be available for future assignments upon completion of the current assignment, the worker shall be deemed to have voluntarily left employment without good cause connected to the work. These states require the employer to provide the worker with notice that the worker must notify the temporary service upon the completion of an assignment and that failure to do so may result in benefit denial.

DISCHARGE FOR MISCONDUCT CONNECTED WITH THE WORK- The provisions for disqualification for discharge for misconduct follow a pattern similar to that for voluntary leaving. Many states provide for heavier disqualification in the case of discharge for a dishonest or a criminal act, or other acts of aggravated misconduct.

Some of the state laws define misconduct in the law in such terms as "willful misconduct" (Pennsylvania); "deliberate misconduct in willful disregard of the employing unit's interest" (Connecticut, Massachusetts, Rhode Island, South Dakota and Washington); "failure to obey orders, rules or instructions or for failure to discharge the duties for which the individual was employed" (Georgia); and a violation of duty "reasonably owed the employer as a condition of employment" (Kansas). Kentucky provides that "legitimate activity in connection with labor organizations or failure to join a company union shall not be construed as misconduct." Connecticut, on the other hand, includes as misconduct participation in an illegal strike as determined under state or federal laws. Texas defines misconduct to include any action that places others in danger or an intentional violation of employer policy or law, but does not include an act that responds to an unconscionable act of the employer. Maine defines misconduct to mean "a culpable breach of the employee's duties or obligations to the employer or a pattern of irresponsible behavior, which in either case manifests a disregard for a material interest of the employer." Detailed interpretations of what constitutes misconduct have been developed in each state's benefit decisions.

Disqualification for discharge for misconduct, as that for voluntary leaving, is usually based on the circumstances of separation from the most recent employment. However, as indicated in the following table, a few state laws require consideration of the reasons for separation from employment other than the most recent. The disqualification is applicable to any separation within the base period for a felony or dishonesty in connection with the work in Ohio, and for a felony in connection with the work in New York.

Period of Disqualification-Nine states have a variable disqualification for discharge for misconduct. In some the range is small, e.g., the week of occurrence plus 3 to 7 weeks in Alabama; in other states the range is large, e.g., 5 to 26 weeks in South Carolina.

Some states provide a fixed disqualification, and others disqualify for the duration of the unemployment or longer. Some states reduce or cancel all of the worker's benefit rights. Some states provide for disqualification for disciplinary suspensions as well as for discharge for misconduct. A few states provide the same disqualification for both causes.

Disqualification for Gross Misconduct--Some states provide heavier disqualification for what may be called gross misconduct. In a few of the states, the disqualification runs for 1 year; in other states, for the duration of the individual's unemployment; and in most of the states, wage credits are canceled in whole or in part, on a mandatory or optional basis.

The conditions specified for imposing the disqualification for discharge for gross misconduct are in such terms as: discharge for dishonesty or an act constituting a crime or a felony in connection with the worker's work, if such worker is convicted or signs a statement admitting the act (Florida, Illinois, Indiana, Nevada, New York, Oregon, Utah and Washington); conviction of a felony or misdemeanor in connection with the work ( Maine and Utah); discharge for a dishonest or criminal act in connection with the work (Alabama); gross or aggravated misconduct connected with the work (Maryland, Missouri and South Carolina); deliberate and willful disregard of standards of behavior showing gross indifference to the employer's interests (Maryland); discharge for dishonesty, intoxication including a controlled substance, or willful violation of safety rules (Arkansas); gross, flagrant, willful or unlawful misconduct (Nebraska); assault, theft or sabotage (Michigan); misconduct that has impaired the rights, property or reputation of a base-period employer (Louisiana); any act that would constitute a gross misdemeanor or felony (Minnesota); assault, bodily injury, property loss or damage amounting to $2,000, theft, sabotage, embezzlement or falsification of employer's records (Georgia); conduct evincing extreme, willful or wanton misconduct (Kansas); a deliberate act or negligence or carelessness of such a degree as to manifest culpability, wrongful intent or evil design (Colorado); and discharge for arson, sabotage, felony or dishonesty connected with the work (New Hampshire). Only Maryland includes a disciplinary suspension in the definition of gross misconduct.

KEY: W= Week of discharge; WF= Week of filing.
¹Reserved
²W means week of discharge and WF means week of filing claim. Applies to other than most recent separation from bona fide work only if employer files timely notice alleging disqualifying act, Alabama. Disqualification applicable to other than last separation, as indicated: from beginning of base period, Louisiana, Michigan and Ohio if unemployed because of dishonesty in connection with employment; within 1 year preceding a claim, Missouri. No days of unemployment deemed to occur for following 12 months if claimant is convicted or signs statement admitting act which constitutes a felony in connection with employment, New York. Any remuneration paid to the claimant by the affected employer prior to loss of employment due to the criminal act may not be used to establish entitlement to a subsequent, valid claim, New York. Reduction or forfeiture of benefits applicable to either most recent work or last 30 day employing unit, West Virginia.
³If discharged for assault or for theft at $100 or less, +12 times weekly benefit amount; if discharged for property loss or damages up to $2,000, theft over $100, sabotage or embezzlement, +16 times weekly benefit amount, Georgia. If discharged for intoxication or use of drugs which interferes with work, four to twenty six weeks; for arson, sabotage, felony, or dishonesty, all prior wage credits canceled, New Hampshire. If discharged for assault, arson, sabotage, grand larceny, embezzlement or wanton destruction of property in connection with work, claimant shall be denied benefits based on wages earned from that employer if admitted in writing or under oath or in a hearing of record or has resulted in a conviction, Nevada. If discharged for a felony or gross misdemeanor of which convicted or has admitted committing to a competent authority and is work connected all base year credits earned in any employment prior to discharge shall be canceled, Washington.
⁴Benefit rights held in abeyance pending result of legal proceedings; if gross misconduct constitutes a felony or misdemeanor and is admitted by the individual or has resulted in conviction in a court of competent jurisdiction, Illinois and Indiana.
⁵Option taken by the agency to cancel all or part of wages depends on seriousness of misconduct. Only wage credits canceled are those based on work involved in misconduct.
⁶In Maryland an individual can also be disqualified for aggravated misconduct.

LABOR DISPUTES- Unlike the disqualifications for voluntary leaving, discharge for misconduct, and refusal of suitable work, the disqualifications for unemployment caused by a labor dispute do not involve a question of whether the unemployment is incurred through fault on the part of the individual worker. Instead, they are more in the nature of an exclusion from coverage. This exclusion rests in part on an effort to maintain a neutral position in regard to the dispute and, in part, to avoid potentially costly drains on the unemployment funds.

The principle of "neutrality" is reflected in the type of disqualification imposed in all of the state laws. The disqualification imposed is always a postponement of benefits and in no instance involves reduction or cancellation of benefit rights. Inherently, in almost all states, the period is indefinite and geared to the continuation of the dispute-induced stoppage or to the progress of the dispute.

Definition of Labor Dispute--Except for Alabama, Arizona, Colorado, and Minnesota, no state defines labor dispute. The laws use different terms; for example, labor dispute, trade dispute, strike, strike and lockout, or strike or other bona fide labor dispute. Some states exclude lockouts, presumably to avoid penalizing workers for the employer's action; several states exclude disputes resulting from the employer's failure to conform to the provisions of a labor contract; and a few states, those caused by the employer's failure to conform to any law of the United States or the state on such matters as wages, hours, working conditions, or collective bargaining, or disputes where the employees are protesting substandard working conditions.

Location of the Dispute--Usually a worker is not disqualified unless the labor dispute is in the establishment in which the worker was last employed. Idaho omits this provision; North Carolina, Oregon, Texas and Virginia include a dispute at any other premises which the employer operates if the dispute makes it impossible for the employer to conduct work normally in the establishment in which there is no labor dispute. Michigan includes a dispute at any establishment within the United States functionally integrated with the striking establishment or owned by the same employing unit. Ohio includes disputes at any factory, establishment, or other premises located in the United States and owned or operated by the employer.

Period of Disqualification--In most states the period of disqualification ends whenever the "stoppage of work because of a labor dispute" comes to an end or the stoppage ceases to be caused by the labor dispute. In other states, disqualifications last while the labor dispute is in "active progress," and in Arizona, Connecticut, Idaho, Montana, New Mexico, North Dakota, Ohio, Rhode Island, South Dakota and Washington, while the workers' unemployment is a result of a labor dispute.

A few state laws allow workers to terminate a disqualification by showing that the labor dispute (or the stoppage of work) is no longer the cause of their unemployment. The Missouri law specifies that bona fide employment of the worker for at least the major part of each of 2 weeks will terminate the disqualification; the Michigan law provides that if a worker works in at least 2 consecutive calendar weeks, and earns wages in each week of at least the weekly benefit amount based on employment with the employer involved in the labor dispute, the disqualification will terminate; and the New Hampshire law specifies that the disqualification will terminate 2 weeks after the dispute is ended even though the stoppage of work continues. In contrast, the Arkansas, Colorado, North Carolina and Tennessee laws extend the disqualification for a reasonable period of time necessary for the establishment to resume normal operations; and Michigan and Virginia extend the period to shutdown and start up operations. Under the Maine, Massachusetts, New Hampshire and Utah laws, a worker may receive benefits if, during a stoppage of work resulting from a labor dispute, the worker obtains employment with another employer and earns a specified amount of wages. However, base-period wages earned with the employer involved in the dispute cannot be used for benefit payments while the stoppage of work continues.

Only one state provides for a definite period of disqualification. In New York a worker's benefit rights are suspended for 7 consecutive weeks if, unemployed because of a strike, lockout or concerted activity not authorized or sanctioned by the collective bargaining unit in the establishment where such individual was employed. However, benefit rights can accumulate before or after 7 weeks and the waiting period, if the controversy is terminated earlier. In addition to the usual labor dispute provision, Michigan, in a few specified cases, disqualifies for 6 weeks in each of which the worker must earn remuneration in 2 weeks equal to or great than their weekly benefit amount.

In Indiana termination of employment with the employer involved in the dispute is sufficient showing that the unemployment is not caused by the dispute.

Exclusion of Individual Workers-Most states provide that individual workers are not disqualified under the labor dispute provisions if they and others of the same grade or class are not participating in the dispute, financing it, or directly interested in it. Alabama, California, Delaware, Kentucky, New York, North Carolina, Ohio, Utah and Wisconsin do not exempt from disqualification those workers who are not taking part in the labor dispute and who have nothing to gain by it.

Connecticut provides that an apprentice, unemployed because of a dispute between his employer and journeymen, shall not be held ineligible for benefits if he is available for work. Indiana excludes from disqualification workers not recalled after the labor dispute has been terminated and sufficient time to resume normal activities has elapsed. Massachusetts provides specifically that benefits will be paid to an otherwise eligible individual from the period of unemployment to the date a strike or lockout commenced, if such individual becomes involuntarily unemployed during negotiations of a collective-bargaining contract. New Hampshire provides that a worker will not be disqualified if the stoppage of work was due to a lockout or a failure of the employer to live up to the provisions of any agreement or contract entered into between the employer and his employee. In Minnesota a worker is disqualified for 1 week if the individual is not participating in or directly interested in the labor dispute. Minnesota provides that a worker is not disqualified if he is dismissed during negotiations prior to a strike or if unemployment is caused by an employer's willful failure to comply with either federal and state occupational safety and health laws or safety and health provisions in a union agreement. Ohio provides that the labor dispute disqualification will not apply if the worker is laid off for an indefinite period and not recalled to work prior to the dispute or was separated prior to the dispute for reasons other than the labor dispute, or obtains a bona fide job with another employer while the dispute is still in progress. Oregon provides that the labor dispute disqualification will not apply if the worker was laid off prior to the dispute and did not work more than 7 days during the 21 calendar days immediately prior to the dispute or if during the dispute the individual's job or position was filled by a permanent replacement, and the individual unilaterally abandons the dispute and seeks reemployment with the employer. Tennessee provides that the labor dispute disqualification will not apply if the worker was indefinitely separated prior to the dispute and otherwise eligible. In Texas the unemployment must be caused by the worker's stoppage of work. Utah applies a disqualification only in case of a strike involving a worker's grade, class, or group of workers if one of the workers in the grade, class, or group fomented or was a party to the strike; if the employer or employer's agent and any of the workers or their agents conspired to foment the strike, no disqualification is applied.