SPECIAL DETERMINATIONS TABLE OF CONTENTS 1500 SPECIAL DETERMINATIONS 1510 · PDF fileSPECIAL DETERMINATIONS TABLE OF CONTENTS 1500 SPECIAL DETERMINATIONS 1510 ALIENS (The term non‐citizen

________________________________________________________________________________________________________________________ Massachusetts Unemployment Insurance Service Representatives Handbook Rev. 2/09

SPECIAL DETERMINATIONS TABLE OF CONTENTS

1500 SPECIAL DETERMINATIONS

1510 ALIENS (The term non‐citizen will be used throughout this section.)

1511 STATUTE §25(h)

1512 PRINCIPLES (A) Permanent Residence (B) Conditional Residence (C) Amnesty and SAW Status (D) Temporary Resident Status (E) PRUCOL

1513 PROCEDURES (A) Documents Relating to Immigration Status (B) Work Authorization and Identity (C) Documents to Establish Current Work Authorization (D) Reasonable Evidence of Immigration (E) Non‐Production of Documents (F) Lost or Stolen Documents (G) Refusal to Present Documents (H) Consent of Disclosure (I) Verification Process (J) Overpayments (K) Primary Secondary Chart (L) Approved Claim (M) Disqualified Claim

1520 PROFESSIONAL ATHLETES

1521 STATUTE §25(g)

1522 PRINCIPLES

1523 PROCEDURES

1524 EXTENDED BENEFITS



1525 STATUTE §30(A) Extended Benefits

1526 SUITABLE WORK DISQUALIFICATION ON REGULAR CLAIM §30A(3)(b) 1527 CLAIMANT DISQUALIFIED PURSUANT TO §25(e) ON REGULAR CLAIM

1528 SUITABLE WORK Statute 30A(1)(m)

1529 WORKSEARCH REQUIREMENTS (A) Systematic and Sustained Effort (B) Good Prospects/Not Good Prospects (C) Minimum Requirements (D) Period of Disqualification (E) Failure to File for a Week(s) (F) Exemption from Worksearch Requirement (G) Approved Illness (H) Active Search for Work Each Week Benefits are Claimed (I) Part‐Time Employment (J) Union Affiliation (K) RED Claimants and TRA Claimant Worksearch Exemption

1530 MISCELLANEOUS PROVISIONS (A) Interstate Claimant Residing in State Not on Extended Benefits (B) Reduction of EB Benefits Because of Receipt of Trade Readjustment Allowances

1531 REGULAR SHARE BENEFITS

1532 STATUTE §30(b)

1533 DEFINITION Regular Sharable Benefits

1534 EB ELIGIBILITY REQUIREMENTS APPLICABLE TO ʺREGULAR SHARABLE BENEFITʺ WEEKS



1535 MISCELLANEOUS PROVISIONS (A) Weeks of Entitlement (B) 26 Weeks Limitation of Regular Benefits in EB Period (C) Advance Notification of Change in Eligibility Requirements (D) Procedural Requirements (E) Terminating Disqualifications (F) Exemption from Disqualification on RSB Claims (G) Exemption from Reduction of Receipt of TRA Benefits (H) RED and TRA Claimant Worksearch Exemption (I) RED §30 Approved Claimants

1536 CORPORATION CASES

1537 STATUTES §25(e)(1)(2) §1(r)(1) §1(r)(2) §29(a) §24(b)

1538 DEFINITION Corporation

1539 PRINCIPLES

1540 FACT FINDING (A) General Information (B) Reason for Separation (C) Not in Unemployment (D) Performing Services (E) Receipt of Remuneration (F) Able and Available

1541 CIRCUMSTANCES AND POLICIES (A) Sale or Phasing Out of the Corporation (B) Abandonment of the Corporation (C) Natural Disasters (D) Corporation Members ‐ Bankruptcy (E) Corporation Members ‐ Assignment for the Benefit of Creditors (F) Active Corporation ‐ Inactive Member (G) Inactive Corporation ‐ Claimant Performs Services (H) Temporary Cessation of Business ‐ Active Corporations



1545 PROCEDURES (A) Form 113 and 113b (B) Companion Cases (C) Workload Credit

1550 SCHOOL EMPLOYEES

1551 STATUTE §28A

1552 PRINCIPLES

1553 DEFINITIONS (A) Educational Institution (B) Reasonable Assurance (C) Bonafide Offer (D) Economic Terms and Conditions (E) Opportunity to Perform Service

1554 FACT FINDING

1555 PROCEDURES (A) General Disqualification (B) Notice for Nonprofessional School Employees (C) Deletion of Base‐Period Wages (D) Written Notice to DUA (E) Method of Notification (F) Date of Notification (G) Request for Retroactive Payment of Benefits (H) Other Employment During Summer Recess

1556 CIRCUMSTANCES AND POLICIES (A) Leaving Work During Academic Year or Term (B) Refusal of Offer Due to Changed Terms of Employment (C) Failure to Seek Work (D) During School Vacation (E) During School Year (F) Substitute Teachers

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1557 POLICIES/REASONABLE ASSURANCE (A) Refusal of a Contract in the Second Academic Year (B) Offers of Reduced Employment (C) Full‐Time Teacher Offered Long‐Term Substitute Contract (D) Full‐Time Teacher Placed on an On‐Call List (E) On‐Call Substitute Teacher Retained on an On‐Call List (F) Reasonable Assurance vs. a Possibility of Work (G) Offer of Employment After Notification of No Reasonable Assurance (H) Funding After Close of School Year (I) Possibility of Work Based on Enrollment (J) Adjunct Professors

1560 UCFE ‐‐ (FEDERAL EMPLOYEE) CLAIMANTS

1561 NONMONETARY DETERMINATIONS ‐‐ UCFE

1562 PROCEDURES (A) Notice of a Nonmonetary Issue (B) Return of Form ES‐931 (C) Request for Reconsideration of Federal Findings (ES‐934) (D) Approved Claim (E) Disqualified Claim (F) Non‐Return of Form ES‐931

1570 NONMONETARY DETERMINATIONS ‐‐ UCX

1571 UCX ‐‐ (EX‐SERVICE MEMBER) CLAIMANTS



1572 PROCEDURES (A) Discharge (B) Assisting the Claimant to Obtain DD‐214 (C) Determining Whether an Ex‐Service Member has Performed Federal Military Service for Purposes of Paying UCX Benefits (D) Period of Service Not Creditable Military Service (E) Nature of Claim Filing and Nonmonetary Determinations (F) Processing the UCX Claim (G) Period of Which Benefits are Payable (H) Appeals (I) Re‐Employment Rights (J) Duplicate UCX Claim (K) National Oceanic and Atmospheric Administration Claimants (L) UCX Pensions (M) How to Locate Pension Information on DD‐214 (N) How UI Staff Can Verify the Status of Individuals Applying for Pensions from the Department of Veterans Affairs

1573 NARRATIVE REASONS FOR SEPARATION

1580 WORKERʹS COMPENSATION RECIPIENTS

1581 STATUTE §25(d)

1582 PRINCIPLES

1583 PROCEDURES (A) Base Period Extension (B) Adjustment (C) Total/Partial Disability

1584 CIRCUMSTANCES AND POLICIES (A) Disqualification for Total Disability Payments (B) Partial UI Benefits for Part of Week (C) Specific Compensation Award (D) Benefits Payable During Pending WC Claim



1590 DUA TRAINING OPPORTUNITIES

1591 STATUTE §30(c)

1592 PRINCIPLES (A) Eligibility for Additional (18 Weeks) of Benefits (B) Fifteen Week Period (C) Eligibility for Training Approval (D) Training Program Approval Criteria

1593 PROCEDURES (A) Complete Application for Course (B) Tolling of 15‐Week Application Period (C) Application Approval Prior to Start Date of Course (D) Attending Training After Filing Claim but Prior to Approval of Application (E) Claimant Doesnʹt Begin Training (Funding Issues) (F) Attending Training Before Filing for UI (G) Application Made After the Fifteenth Compensable Week (H) Enrollment After Filing a Claim (I) Two‐Week Application Extension (J) Course Denials (K) Claimant has Recall Date (L) Claimant is not Recalled as Scheduled (M) Leaving Part‐Time Work to Enter Section 30 Training (N) Leaving Work Obtained During Semester Breaks (O) Training Breaks of Less Than Three Weeksʹ Duration (P) Breaks of More Than Three Weeks (Q) Continued Eligibility for Regular UI Benefits After a Course Completion (R) Absence Due to Illness (S) Absence for Other Reason (T) Lost‐Time Charges (U) Claimant Discontinues School Prior to Course Completion (V) Separation Issues (W) Employer Charges (X) Residue Payment (Y) EB Benefits (Z) FE and UCX Claims (AA) TAA Eligible Client


SPECIAL DETERMINATIONS 1500 1512

1500 SPECIAL DETERMINATIONS

1510 ALIENS (NON‐CITIZENS)

1511 STATUTE

§25(h) ʺNo waiting period shall be allowed and no benefits shall be paid to an individual pursuant to this chapter for ... any period after December 31, 1977, on the basis of services performed by an alien unless such alien was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law (PRUCOL) at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of §203(a)(7) (repealed and replaced with §207 and 208) or §212(d)(5) of the Immigration and Nationality Act; provided, that any modification to the provisions of §3304(a)(14) of the Federal Unemployment Tax Act which specify other conditions or other effective dates than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented pursuant to state law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable pursuant to the provisions of this section.

Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.

In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence.ʺ

1512 PRINCIPLES

In order to be eligible for UI an individual who has self‐certified that he or she is not a citizen must meet a two‐prong test:

(A) Services must have been performed while he or she was in a satisfactory immigration status during the base period (as evidenced by a valid Alien Registration Number or other evidence of satisfactory immigration status); and

(B) The non‐citizen must be legally authorized to work during the benefit year.



Claimants must provide DUA with a valid Alien registration Number (or other evidence of satisfactory immigration status) to establish that he or she was in a satisfactory immigration status during the base period of the claim pursuant to §25(h) of Chapter 151A. (Verification of documents submitted by claimants is done through an automated process called Primary Verification, or through a manual process called Secondary Verification as described in the procedures below.) In most cases, the documents issued by the Bureau of United States Citizenship and Immigration Services (CIS) have an ʺA‐numberʺ that can be verified through the SAVE system.

These claimants must also be currently available for employment during their benefit year pursuant to §24(b) of Chapter 151A, which means that they must be legally authorized to work, while claiming UI benefits. In order to establish current availability pursuant to §24(b), the claimant can choose which documents to provide to DUA from among those listed below. The claimant may choose to provide one document only from List A or one document each from List B and List C. If a claimant chooses to present a document from List A, but is unable to present an unexpired original document, then he or she must provide a receipt or affidavit demonstrating that he or she has applied to CIS for a replacement of the document. (Documents submitted to establish current availability are not verified through SAVE and claim adjudicators are responsible for making determinations related to non‐citizen authorization to work.)

Note: Since the Alien Card I‐551 is a List A document, in addition to being used to confirm base period entitlement pursuant to §25(h), it can also be used to confirm benefit year entitlement pursuant to §24(b).

To determine whether a non‐citizen was in a proper status at the time services were performed, one of the following conditions must apply:

(1) The claimant was lawfully admitted for permanent residence (including conditional residence)* at the time such services were performed;

(2) The claimant was lawfully present for purposes of performing such services; or

(3) The claimant was permanently residing in the U.S. under color of law at the time such services were performed.

Note: Conditional residence status is given for a two year period to a person who adjusts his or her status based on a family petition within two years of the establishment of the family relationship. This status is evidenced by a passport stamp or alien registration card with a two‐year expiration date. The conditional resident can remove the condition on status and become a permanent resident by filing a petition to remove the conditions on residence within 90 days prior to expiration of the conditional status. Evidence of this would be an application to remove the condition on status, a receipt from the CIS indicating that such a petition was filed, or an approval notice indicating that the condition on status has been removed.


SPECIAL DETERMINATIONS 1512 (A) 1512 (C)

(A) Permanent Residence A person lawfully admitted for permanent residence will have a green card* (or alien status registration card), a stamp on their passport ʺlawful admitted as a permanent residentʺ, reentry permit, service files, arrival manifests, arrival records, service index cards, immigrant identification cards, certificates of registry, or declaration of intention issued after July 1, 1929.

Note: Green cards are now being issued for ten year periods. It is the card itself and not the status that expires at the end of ten years.

(B) Conditional Residence Conditional residence status is given for a two year period to a person who adjusts his or her status based on a family petition within two years of the establishment of the family relationship. This status is evidenced by a passport stamp or alien registration card with a two‐year expiration date. The conditional resident can remove the condition on status and become a permanent resident by filing a petition to remove the conditions on residence within 90 days prior to expiration of the conditional status. Evidence of this would be an application to remove the condition on status, a receipt from the CIS indicating that such a petition was filed, or an approval notice indicating that the condition on status has been removed.

(C) Amnesty and SAW Status If a non‐citizen has applied for a temporary residence status under amnesty, but is waiting for a decision from CIS on whether this status will be granted, he or she will automatically be considered ʺlawfully present for the purposes of performing such servicesʺ (i.e., available for work) as evidenced by an Employment Authorization Card I‐688A. Claimants with this card may be eligible for benefits if they also earned base period wages while lawfully in this country. If base period wages were earned while the claimant was in an unlawful status (i.e., not subject to one of the three categories listed above) then he or she is not eligible for benefits regardless of work authorization.

If the CIS determines that the non‐citizen is not eligible for amnesty, any benefits paid for any claim week prior to such denial of the amnesty and the termination of work authorization are not overpayments because the benefits were paid while the alien was in a legal alien status. Any benefits paid to the alien for claim weeks after the denial of his amnesty request and termination of his work authorization would be paid while the individual was not in a legal status and are, therefore, overpayments. These payments are subject to the overpayment recovery and waiver provisions of State law.


SPECIAL DETERMINATIONS 1512 (C) 1512 (E)

The second category also includes the amnesty or legalization provision which permits the adjustment of status of an alien with no documentation of legal entry into the U.S. to that of an alien lawfully admitted for temporary residence. Those given legalization receive work authorization when the CIS accepts their applications for amnesty. Non‐citizens must have applied for this status during the amnesty period of May 1, 1987 to May 1, 1988, under most circumstances. Also included in this category are special agricultural workers (SAW). These non‐citizens must have resided in the U.S. and have performed agricultural labor for at least 90 days during the one year period prior to May 1, 1986.

(D) Temporary Resident Status If a non‐citizen is granted temporary resident status he or she is now in the process of becoming a U.S. citizen. Continuing authorization to work, as evidenced by an I‐688 card, accompanies this status, and even though this card indicates availability for work, you must still determine monetary eligibility during the base period. The status of temporary residence or granting of work authorization does not confer retroactive presence for purposes of monetary eligibility.

After 18 months of temporary resident status, a non‐citizen has one year to apply for adjustment of status to that of lawfully admitted for permanent residence.

(E) PRUCOL The third category describes PRUCOL claimants who are in proper immigration status and should be paid benefits if otherwise eligible. In order for a claimant to be considered ʺpermanently residing under color of lawʺ or (PRUCOL), the CIS must know of and acquiesce in the non‐citizenʹs presence in the U.S. Claimants can provide any documentation from CIS indicating CIS has knowledge of and acquiesce in the claimantʹs presence in the U.S. In addition, the non‐citizen must be permanently residing in the U.S., ʺPermanentʺ means a continuing presence even though it could require renewal or be revoked by the CIS. These claimants should be referred to a claim adjudicator for a determination of PRUCOL status based on the documents presented. Note that if a claimant has current work authorization, but did not have such work authorization during the base period, the individual may have been PRUCOL during that time.


SPECIAL DETERMINATIONS 1512 (E) 1512 (E)

PRUCOL includes, but is not limited to, the following:

Aliens admitted into the United States as conditional entrants pursuant to §203(a)(7). Document: CIS form I‐94 endorsed ʺRefugee ‐‐ Conditional Entryʺ.

Aliens paroled into the United States, including Cuban/Haitian Entrants. These are aliens paroled at the discretion of the U.S. Attorney General. Documents: CIS form I‐94 with notation that the alien was paroled pursuant to §212(d)(5) of the Immigration and Nationality Act, or as to Cuban/Haitian entrants, ʺCuban/Haitian entrants (status pending)ʺ Although these forms may bear the notation ʺEmployment authorized until January 15, 1981,ʺ Cuban/Haitian entrants are admitted pursuant to §212(d)(5) of the Immigration and Nationality Act.

Asylees pursuant to §208 of the INA. The CIS has determined that the non‐citizen faces persecution or has a well‐founded fear of persecution in his/her home country. Also includes aliens with asylum applications pending. Documents: CIS form I‐94 or a letter establishing such status, or I‐688B, or proof of filing an asylum application.

Aliens admitted as refugees pursuant to §207 of the Immigration and Nationality Act. Documents: CIS form I‐94 so endorsed, or I‐688B.

Aliens granted deferred action status who have been so notified by CIS in writing that deportation will not be pursued at the present time. Also includes aliens with deferred action pending. Documents: CIS form I‐210 or an CIS letter showing that departure has been deferred, or I‐688B.

Registry applicants: entrants before 1/1/72. VAWA petitioners. Class members: ABC settlement. Immediate relative petition filed. Adjustment of status application pending.

Non‐citizens who have been granted or have applications pending for one of the following statuses may also satisfy PRUCOL (this list is not all‐inclusive):

Documents: Documentation from CIS proving grant of status; the application itself or a receipt from an application for one of the following:

Withholding of Deportation, Temporary Protected Status, Family Unity, Parole, Voluntary Departure, Stay of Deportation, Cancellation of Removal, Suspension of Deportation, Amerasian, Deferred Enforced Departure

If the document has an A‐Number, process through Primary Verification. If there is no A‐Number document, use Secondary Verification for any written correspondence from CIS indicating PRUCOL status.


SPECIAL DETERMINATIONS 1513 1513 (B) 1513 PROCEDURES

(A) Documents Relating to Immigration Status If an individual is not a U.S. citizen or national he or she must present either an ʺA‐Numberʺ document, generally held by permanent residents, or reasonable evidence of immigration status as explained below:

(B) Work Authorization and Identity Alien registration documents issued by CIS (the Immigration and Naturalization Service) contain a seven or eight digit number preceded by the letter ʺAʺ (for example, A24 786 899). Each ʺA‐Numberʺ is unique in that it pertains to one person only; even infants are assigned individual ʺA‐Numbersʺ. The following are acceptable ʺA‐Numbersʺ forms:

Alien Registration Receipt Card (I‐551)* Alien Registration Receipt Card (AR‐3A) Memorandum of Creations of Record of Lawful Permanent Residence (I‐181a) Fee Receipt for employment authorization application Unexpired Employment Authorization Card (I‐688A or I‐688B or I‐766) Temporary Resident Card (I‐688) Unexpired Re‐Entry Permit (I‐327) Unexpired Refugee Travel Document (I‐571) Unexpired Arrival‐Departure Record (I‐94). (This document does not always contain

an ʺA‐Numberʺ) Receipt showing petition to remove conditional status has been filed and been

extended. Passport bearing stamp indicating lawful admission for permanent residence or

conditional status.

*The I‐551 is the revised edition of I‐151. A date prior to 1978 indicates indefinite validity. An I‐551 with a two‐year expiration date evidences conditional status, which may be extended. A ten‐year expiration date indicates permanent resident status. The expiration date refers to the date the card must be renewed and not the individualʹs status.


SPECIAL DETERMINATIONS 1513 (C) 1513 (C)

(C) Documents to Establish Current Work Authorization If a claimant self‐certifies that he or she is a non‐citizen then he or she must be currently available for employment pursuant to §24(b). This means the claimant must have documents establishing legal authorization to work. (See list of documents below) If a claimant presents at least one document from List A or one each from List B and List C, and the documents appear to be genuine, then the claimant has provided all the documentation required to establish availability for work. It is the claimantʹs right to choose which document(s) to submit. If a claimant submits an Employment Authorization Document (I‐688A, I‐688B, and I‐766) to establish satisfactory immigration status during the base period of the claim and the card has expired, the claimant does not have to get this particular card renewed in order to establish current availability to work and eligibility for UI. The claimant must be given the option of presenting alternative documents from the list below.

If a claimant chooses to present a document from List A, but is not able to present an unexpired original document, then he or she must provide a receipt or affidavit demonstrating that the claimant has applied to CIS for a replacement of the document. The receipt from CIS or affidavit attesting to such application for a replacement document must be presented within four weeks from the date of filing a claim.

If an original CIS document from List A has not been presented within 90 days of the application for its replacement with CIS, because the CIS has not issued an original document to the claimant, give the claimant a copy of the legal services organization list. The claimant must present an original CIS interim employment authorization document or have made substantiated efforts to obtain interim employment authorization no later than 100 days from the date of the application for the A‐list document. (Lawful permanent residents have 180 days to submit I‐551 after presenting a temporary I‐551)

TN Status is a special United States immigration status unique to citizens of Canada (and under similar but not identical circumstances, Mexico). TN status was introduced pursuant to the 1994 North American Free Trade Agreement (NAFTA). It allows Canadian and Mexican citizens the opportunity to work in the United States in a limited number of specific occupations. Within the designated occupations, a Canadian or Mexican can work for up to one year. However, TN status may be renewed indefinitely in one year increments. If a claimant provides proof that he or she is a Canadian citizen who has previously been granted TN status, then he or she satisfies the requirements of §24(b) so long as he or she is actively seeking suitable work.



ACCEPTABLE DOCUMENTS FOR UI PURPOSES TO ESTABLISH AVAILABILITY PURSUANT TO §24(b)

Work Authorization and Identity

List A

U. S. Passport (unexpired or expired)

Permanent Resident Card of Alien Registration Receipt Card (Form I‐551)

An unexpired foreign passport with a temporary I‐551 stamp

An unexpired Employment Authorization Document that contains a photograph (Form I‐766, I‐688, I‐688A, I‐688B)

An unexpired foreign passport with an unexpired Arrival‐Departure Record, Form I‐94, bearing the same name as the passport and containing an endorsement of the alien’s non‐immigrant status, if that status authorizes the alien to work for the employer.




Identity Only

List B

Driverʹs license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color and address

ID card issued by federal, state, or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address

School ID card with a photograph

Voter’s registration card

U.S. Military card or draft record

Military dependentʹs ID card

U.S. Coast Guard Merchant Mariner Card

Native American tribal document

Driverʹs license issued by Canadian government authority.

For persons under age 18 who are unable to present a document listed above:

School record or report card Clinic, doctor or hospital record Day‐care or nursery school record




Work Authorization Only

List C

U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment)

Certification of Birth Abroad issued by the department of State (Form FS‐545 or Form DS‐1350)

Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal

Native American tribal document

U. S. Citizen ID Card (Form I‐197)

ID Card for use of Resident Citizen in the United States (Form I‐179)

Unexpired employment authorization document issued by DHS (other than those listed under List A)



Note: If a Liberian national presents an EAD (Employment Authorization Document) or a receipt from the CIS for such document, then treat the card or receipt as authorization to work until 3/28/98 (US Attorney General granted extension for these nationals).

* If a Salvadoran national presents an I‐688B with an expiration date of 12/31/94 and the form is notated ʺ274a.12(a)(11)ʺ, or ʺ274a.12(a)(12)ʺ treat the I‐688B as if it had an expiration date of 4/30/96.

If a Rwandan national presents an I‐688B with an expiration date of 6/6/96, treat the I‐688B as if it had an expiration date of 12/6/96.

** For purposes of this section the term ʺindividual with disabilitiesʺ mean any person who: (1) has a physical or mental impairment which substantially limits one or more of such personʹs major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment.

1Designation effective on November 4, 1997 and will remain in effect until November 3, 1998. 2Designation effective on August 28, 1997 and will remain in effect until August 27, 1998. 3Designation extended until August 10, 1998. 4Designation extended until September 7, 1998.

INSTRUCTIONS

A claimant may present either one document from List A or one document each from List B and C.

Note: It is the claimantʹs choice as to which documents he or she presents to establish current authorization (availability) for work.

If a claimant chooses to present document(s) from list B and C, then these documents must be presented within four weeks from the date the claimant filed the claim.

Note: These documents establish availability for work only and you must continue to determine claimant eligibility based both on current availability as outlined above, and on the claimantʹs immigration status during the base period of the claim.


SPECIAL DETERMINATIONS 1513 (D) 1513 (G)

(D) Reasonable Evidence of Immigration Reasonable evidence of immigration status for purposes of determining UI eligibility includes any written document issued by CIS or a Court which indicates lawful status in the base period and during the benefit year, whether or not there is an A‐Number attached. Other documents such as marriage records or court orders may indicate the identity, immigration status, or U.S. residence of the holder. (The holders of this type of document/evidence are generally not permanent residents, but may still be legally authorized to work.)

In cases where the claimant once had a right to work and then lost that privilege (i.e., work permit expired, etc.), all or part of the earnings may be subject pursuant to §25(h), but the claimant is still disqualified for benefits pursuant to §24(b) because he or she no longer has the legal right to enter the labor market as a worker, and is thus unavailable.

Form 3720 Explanation: You are not legally permitted to work in the United States. Therefore you do not meet the requirements of §24(b) of the Law.

(E) Non‐Production of Documents When a non‐citizen files a new, reopened, or additional claim and is unable to provide evidence of authorization to work (e.g., an ʺAʺ number in a telephone claims environment) follow procedures in the UI procedures manual to ensure that the claimant provides the necessary information within the first four weeks of the claim.

(F) Lost or Stolen Documents Non‐citizens who state that their immigration documents were lost or stolen, should be referred to legal services or an attorney referral service for assistance with requesting replacement documents. A number of CIS forms may be filed to request a replacement document, depending upon the type of document sought (I‐90 form is used only to replace a green card/I‐551). Continue to pay benefits to the claimant as long as the claimant presents an CIS‐authorized receipt, or a copy of the original document, to be verified.

(G) Refusal to Present Documents If a non‐citizen claimant is asked to present documentation, at the times set out above, and either does not produce the documents or states an intention not to provide the required document, delete the reported wages from the claimantʹs record pursuant to §25(h), and give the claimant a form 3720 citing §25(h) of the Law.


SPECIAL DETERMINATIONS 1513 (G) 1513 (I)

Form 3720 Explanation: Because you have failed to provide documents showing that you were lawfully present for the purpose of performing services in the base period of your claim, your wages cannot be used to establish monetary eligibility and you are disqualified from receiving benefits pursuant to the above‐cited section of the Law.

(H) Consent of Disclosure A non‐citizen claimant, who has filed an application for U.S. residency pursuant to §245(a)(c)(5) or §210(b)(6) of the Immigration and Naturalization Act (Amnesty/ Special Agricultural Worker) must sign an original consent of disclosure form, to be submitted with the required secondary verification request. These claimants should present an I‐689 or an I‐688A form. Since these claimants are amnesty participants, the law affords them greater protection by requiring the consent of disclosure form. If the claimant refuses to sign the ʺconsent of disclosureʺ form, the claimant will be disqualified pursuant to §25(h) of the Law.

Form 3720 Explanation: Because you have refused to a sign a consent of disclosure form to permit the Bureau of United States Citizenship and Immigration Services to provide us additional information to establish that you were lawfully present for the purpose of performing services in the base period of your claim, your wages cannot be used to establish monetary eligibility and you are disqualified from receiving benefits pursuant to the above‐cited section of the Law.

(I) Verification Process At the time of application for UI benefits, all individuals must declare in writing under penalty of perjury, whether they are U.S. citizens, nationals, or non‐citizens. Non‐citizens are now required to present immigration documentation which must be verified with CIS via an automated data base (ASVI/alien status verification index), or through manual submission of a document verification request (Form G‐845), or both.


SPECIAL DETERMINATIONS 1513 (I) 1513 (K)

No delay, denial, reduction or termination of benefits should occur for reasons related to immigration status so long as documents are undergoing CIS verification of status. If at the time of application for benefits, a non‐citizen does not submit any documentation, or an A‐number document is presented, but is not verified following primary and secondary verification, the claimant must be allowed a reasonable period (4 weeks) from the date of filing to present a document or any other written evidence of proper immigration status. Continue to pay benefits during the ʹreasonable time periodʹ. You should wait to make a redetermination on benefits until the documents or written evidence has been reviewed by CIS, and returned to you, and the information taken as a whole, indicates an unlawful status during the base period and subsequent benefit year. Do not deny benefits based on immigration status until the secondary verification is completed and indicates that benefits should not be paid. State the reason provided by CIS in the 3720 explanation.

(J) Overpayments Redeterminations will be made according to procedures set forth in 1400: Other Pay and Benefits section of this handbook.

(K) Primary Secondary Chart The primary secondary chart is to assist in determining the verification procedure to follow.

Initiate Primary

Immediate Secondary

Documents indicating employment authorization(for example I‐688B or I‐766) X

Valid‐appearing I‐551*, AR‐3A, I‐688, I‐327*, or I‐571* with A‐Number between A0 000 001 and A58 999 999, or A70 000 000 and A79 999 999X.

X

Counterfeit‐appearing or altered document. X No A‐Number or document, or unfamiliar CIS document. X

A‐Number in A60 000 000 or A80 000 000 series. X


SPECIAL DETERMINATIONS 1513 (L) 1521

(L) Approved Claim

Initiate Primary

Immediate Secondary

I‐689* or I‐688A* (Requires Consent of Disclosure) I‐181a, I‐94* or a stamp in a foreign passport that bears the endorsement. ʺTemporary Evidence of Lawful Admissionfor Permanent Residence,ʺ processed over one year ago.

X

Other I‐181a, or endorsed I‐94 in a foreign passport processedless than one year ago. X

(M) Disqualified Claim

InitiatePrimary

Immediate Secondary

Any CIS fee receipt. X

* These documents expire. Note the expiration date when processing them. I‐689 and I‐688A also require a Consent of Disclosure to be sent to CIS.

1520 PROFESSIONAL ATHLETES

1521 STATUTE

§25(g) ʺNo waiting period shall be allowed and no benefits shall be paid to an individual pursuant to this chapter...(g) Any week which commences during the period between two successive sports seasons or similar periods if such individual performed services substantially all of which consisted of participating in sports or athletic events or training or preparing to so participate if such individual performed such services in the first of such seasons or similar periods and there is a reasonable assurance that such individual will perform such service in the later of such seasons or similar periods.ʺ



1522 PRINCIPLES

Athletes (including coaches and managers) who are under contract and seek to file a claim between seasons do not qualify for benefits. ʺBetween seasonsʺ means that an athlete participated or trained in the previous season and has a reasonable assurance that he or she will do the same during the next season.

1523 PROCEDURES

Because the circumstances can differ, refer to the Determinations Department whenever:

A claimant is a ʺfree agentʺ, whose contract has not been renewed, but whose termination date is after the end of the season;

A claimant has assigned a new contract with a new employer between seasons.

1524 EXTENDED BENEFITS

1525 STATUTE

§30(A) Extended Benefits The Federal‐State Extended Unemployment Act of 1970 as amended authorizes the Commonwealth to pay benefits for a period of extended duration beyond that currently provided pursuant to §30 of the Massachusetts Unemployment Insurance Law, §30A of MGL Chapter 151A sets forth the requirements for the payment of benefits for such extended duration.

1526 SUITABLE WORK DISQUALIFICATION ON REGULAR CLAIM

§30A(3)(b) is Applicable and Reads as Follows: ”Any individual who has been disqualified from receiving regular benefits pursuant to subsection (c) of §25 for refusing to apply for or accept suitable employment shall not be eligible for extended benefits until such individual has been employed during at least four weeks which begin after such failure and the total of the remuneration earned by the individual for being so employed is not less than the product of four multiplied by the individualʹs average weekly benefit amount, as determined for purposes of clause (c) of subsection (5) for such individualʹs benefit year.”



1. Difference of disqualification provisions on regular claim and extended benefit claim.

On a regular claim when a disqualification is issued pursuant to §25(e) of the Law, a claimant must work in each of eight weeks and earn an amount equal to or in excess of his/her weekly benefit rate.

On an extended benefit claim, a claimant must work in each of four weeks and the total of the remuneration must equal four times the claimants average weekly benefit amount.

2. Types of work needed to purge an EB Disqualification.

When a disqualification of four weeks of work and earnings of four times the average weekly benefit amount is imposed for extended benefits purposes pursuant to §30A, the individual must have been ʹemployedʹ and have earnings in an employer‐employee relationship to satisfy the Federal requirements for purging this disqualification. Self‐Employment (in which no employer‐employee relationship exists) is not employment for the purpose of removing disqualifications imposed pursuant to the EB provisions.

Under the Extended Benefits Law for the purposes of determining eligibility for EB, no disqualification imposed pursuant to State law for voluntarily leaving employment, discharge for misconduct or refusal of suitable work in connection with a claim for regular benefits shall be considered satisfied unless pursuant to State law the termination is based upon employment subsequent to the disqualification. Because Massachusetts State law requires a return to work of at least eight weeks and in each of said weeks earnings of an amount equal to the weekly benefit amount for voluntary quit and discharge for misconduct (25(e)), claimants who have satisfied this disqualification are eligible to file an initial EB claim.

Claimants who have been disqualified during the regular claim for refusing suitable work pursuant to 25(c) must be issued a disqualification for EB purposes. This disqualification should be issued after filing an EB claim and prior to any EB payments. EB can be paid only after the claimant purges this new EB disqualification.

It should be noted if a claimant is disqualified for refusing suitable work on the regular claim, the claimant can satisfy the requalifying requirements by returning to work (and purging the disqualification criteria) at any time prior to the initial EB claim. In these cases, it will not be necessary to issue a disqualification on the initial EB claim.



Example 1: Claimant was disqualified pursuant to §25(c) for a refusal of suitable work on the regular claim. Claimant served the disqualification and resumed collecting regular benefits. Claimant is not eligible for Extended Benefits and must be issued a disqualification pursuant to §30A.

Example 2: Claimant was disqualified pursuant to §25(c) for a refusal of suitable work on the regular claim. Claimant served the disqualification and resumed collecting regular benefits. Claimant then returned to work for 4 months and earned 4 x his/her weekly benefit amount and was laid‐off. Claimant is eligible for Extended Benefits. A disqualification pursuant to §30A is not necessary.

Claim adjudicators should use Form 3720H filling in the appropriate entries to issue the determination.

1527 CLAIMANT DISQUALIFIED PURSUANT TO §25(e) ON REGULAR CLAIM

When a claimant is disqualified pursuant to §25(e) on his/her regular claim, disqualification remains in effect until a claimant has worked and earned an amount equal to or in excess of his/her weekly benefit rate in each of eight weeks.

A claimant has not exhausted his/her benefit credit until the benefit year expires on the regular claim. Further, any disqualification pursuant to §25(e) carries over into any new benefit year claim or Extended Benefit Claim.

Example 1: Claimant was disqualified pursuant to §25(e)(1) for a voluntary quit on the regular claim. Claimant returned to work for another employer for two months and earns an amount equal to or in excess of his benefit rate in each of eight weeks and is laid off. Claimant is eligible for Extended Benefits.

Example 2: Claimant was disqualified pursuant to §25(e)(1) for a voluntary quit on the regular claim. The benefit year expires on the regular claim and the claimant is determined to be monetarily ineligible on a new benefit year claim. He/she has not worked since being disqualified. Claimant files an EB claim and remains in a period of disqualification. In this example, EB triggered‐on prior to the expiration of the benefit year. See §2039(E).

Example 3: Claimant was disqualified pursuant to §25(e)(1) for a voluntary quit from a subsidiary employer for which he/she was working part‐time. The claimant is subject to a constructive deduction until he/she has worked eight weeks and in each of said weeks has earned an amount equivalent to or in excess on the regular claim and the claimant is determined to be monetarily ineligible on a new benefit year claim. He/she has not worked since being disqualified. Claimant files an EB Claim and remains in a period of disqualification and not entitled to EB benefits.



Form 3720 Explanation: On your claim of (date of new or reopened old benefit year claim), a notice of disqualification was issued to you on (date). This previously imposed disqualification has not been satisfied and remains in effect.

1528 SUITABLE WORK

Statute 30A(1)(m)

I. Good Prospects

For extended benefit claimants the term ʺsuitable workʺ means ʺany work which is within an individualʹs capabilities, except that, if the individual furnishes evidence satisfactory to the Commissioner that such individualʹs prospects for obtaining work in his occupation within a reasonably short period are good, the determination of whether any work is suitable with respect to such individual shall be made in accordance with subsection (c) of §25.ʺ

A. The following guide represents the job prospect classification for EB claimants when determining ʹgoodʹ and ʹnot goodʹ prospects.

ʹGoodʹ ʹNot Goodʹ Recall date from former employer or definite prospects of employmentwithin the first 4 weeks of EB

No definite job prospects or job prospect is not within the first 4 weeks of EB

B. Under these provisions, if the individualʹs prospects for securing work in his customary occupation are ʹgood,ʹ the determination as to whether the work is suitable would be made pursuant to the definition of suitable work in the state law (Chapter 151A, §25(c), which applies to claimants on regular (UI) benefits. However, if the individual refuses suitable work, the EB indefinite disqualification, until the individual works four weeks and earns an amount not less than 4 x the average weekly benefit amount, will apply.


SPECIAL DETERMINATIONS 1528 1529 (A)

II. Not Good Prospects, §30A, subsection (3)(e)

If a claimantʹs prospects of obtaining work are not good, the definition of suitable work applicable to the EB work test for EB claimants applies. If the individual refuses suitable work, an indefinite disqualification, until the individual worked 4 weeks and earned an amount which totals not less than 4 x the Average Weekly Benefit Amount, will apply. These weeks need not be consecutive.

1. The EB work test definition of suitable work is defined as any work within the individualʹs capabilities. If a disqualification for refusing to apply for or accept suitable work would be imposed under this ʹnot goodʹ classification, such a disqualification would be subject to the following restrictions:

a. The gross average weekly pay for the offered work must exceed the individualʹs weekly benefit amount, plus any supplemental unemployment benefits (SUB) payable.

b. The job must have been offered to the individual in writing or listed with the Job Service.

c. The pay must equal or exceed the higher of the minimum wage pursuant to §6(a)(1), the Fair Labor Standards Act of 1938, or any applicable State or local minimum wage.

d. The work must have been suitable pursuant to all suitable work provisions for regular benefits which do not conflict with the special EB provisions. Under this provision for example, the offered work must meet the labor standards requirements of the State law.

1529 WORKSEARCH REQUIREMENTS

(A) Systematic and Sustained Effort The EB claimant must actively engage in seeking work which shall be defined as:

1. Engaged in a systematic and sustained effort to obtain work each week; and

2. Providing tangible evidence to the local office of an active search for work each week. (Form 1750, Extended Benefit Worksearch form).

This requirement does not apply to individuals in an approved training course.


SPECIAL DETERMINATIONS 1529 (B) 1529 (F)

(B) Good Prospects/Not Good Prospects The EB claimants job prospect classification of ʹgoodʹ or ʹnot goodʹ must be taken into consideration when determining the type of work the claimant is actively seeking. Therefore, during the first four weeks of the EB claim the claimant with ʹgoodʹ prospects must seek work that is suitable according to §25(c), Chapter 151A. At all times during the EB claim, a claimant with ʹnot goodʹ prospects must seek work according to the EB work test definition, §30A.

(C) Minimum Requirements An EB claimant is expected to make a more diligent and active search for work than would normally be required of an individual receiving regular benefits. In addition, employer contacts by EB claimants should be verified by the local office staff as workload permits. Verification procedures should be set up by the local office manager. An EB claimant must make two direct contacts per week using methods customary to his/her occupation, must search for work at least 3 days each week; and must use more than one worksearch method.

(D) Period of Disqualification In all cases if it is determined that an individual has not been actively seeking work during a week, the local office shall issue a nonmonetary determination making the individual ineligible for EB for such‐week and until the individual has had employment during at least 4 weeks and has received remuneration for such employment which totals not less than 4 times the individualʹs average weekly benefit amount (EB Rate).

(E) Failure to File for a Week(s) A determination would not be required if the claimant does not file a claim for the week(s) during which he/she did not make an active search for work. However, the individualʹs eligibility should be carefully considered if the claim is reopened and the claimant files for subsequent weeks of unemployment.

(F) Exemption from Worksearch Requirement Section 30A Subsection (3)(c) provides that the EB worksearch requirement be waived under two conditions which are as follows:

1. An individual is before any court of the United States or any State pursuant to a lawfully issued summons to appear for jury duty.

2. An individual is hospitalized for treatment of an emergency of life‐threatening condition.

In the above‐cited circumstances the jury duty pay would be deducted from benefits pursuant to the provisions of §29(b) of the Law.

In the case of hospitalization, the claimant would be eligible for approved illness benefits provided he/she has not exhausted three weeks of approved illness on the regular claim.


SPECIAL DETERMINATIONS 1529 (G) 1530 (A)

(G) Approved Illness An individual who does not seek work during a week because he/she was unable to work or unavailable for work for some compelling or uncontrollable reason not related to active search, is subject to the requirement to ʹactivelyʹ seek work to the same extent as all other EB claimants. If the individual does not meet this requirement, the disqualification for failing to actively engage in seeking work must be imposed.

MGL Chapter 151A provides that a claimant may be eligible for benefits if he is unavailable (for up to three weeks during the benefit year) because of illness which occurs after filing a claim and registering for work, if no offer of suitable work is refused after the beginning of such illness. Unless the claimant is hospitalized and is exempt from the EB worksearch requirement, he/she must still make and active search for work and will be subject to a disqualification as specified above for failing to actively seek work.)

(H) Active Search for Each Week Benefits are Claimed A promise of employment (even within 4 weeks) does not eliminate the requirement pursuant to the EB provisions that the individual engage actively in seeking work during each week claimed to be eligible for benefits.

(I) Part‐Time Employment When an EB claimant has part‐time employment and partial earnings during a week claimed, the claimant must still submit tangible evidence of actively seeking work for each week claimed, except for days he was working full‐time.

(J) Union Affiliation Any type of union affiliation does not exempt the EB claimant from actively seeking work pursuant to §30A.

(K) RED Claimants and TRA Claimant Worksearch Exemption Claimants who are attending classes in an approved training program pursuant to §30(c) of the Massachusetts Unemployment Insurance Law or §236(e) of the Trade Act of 1974 are exempted from making a sustained and systematic search for work.

1530 MISCELLANEOUS PROVISIONS

(A) Interstate Claimant Residing in State Not on Extended Benefits Section 30A subsection (7) limits the payment of extended benefits to two weeks to an interstate claimant who is residing in a state which is not in an Extended Benefit period.

Claim adjudicators will use for 3720‐I, Notice to Interstate Claimant of EB Disqualification when issuing a determination pursuant to the above cited provision.


SPECIAL DETERMINATIONS 1530 (B) 1532

(B) Reduction of EB Benefits Because of Receipt of Trade Readjustment Allowances Section 30A subsection (5) reads in part as follows:

The total extended benefit amount payable to any eligible individual with respect to his applicable benefit year rounded to the next lower full dollar amount shall be the least of the following amount:

Notwithstanding any other provisions of this subsection, if the benefit year of any individual ends within an extended benefit period, the remaining balance of extended benefits that such individual would, but for this paragraph, be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, shall be reduced, but not below zero, by the product of the number of weeks for which the individual received any amounts as readjustment allowances pursuant to the Trade Act of 1974 within that benefit year, multiplied by the individual weekly benefit amount for extended benefits.

Form 3720 Explanation 30A(5): You received (number) week(s) of Trade Readjustment allowances following your regular claim. The Law requires that your remaining weeks of Extended Benefits be reduced by the number of weeks you received the Trade Adjustment Allowance. Therefore, you are entitled to (number) remaining week(s) of Extended benefits. Your remaining benefit credit is (____).

1531 REGULAR SHARE BENEFITS

1532 STATUTE §30(b)

Total Benefits for Year Notwithstanding the provisions of subsection (a), an individualʹs rights to receive regular benefits pursuant to this chapter for any week in excess of twenty‐six times the individualʹs weekly benefit amount, plus dependency benefits payable pursuant to §29, shall cease for the remainder of the benefit year if such week of unemployment falls in an extended benefit period as defined in paragraph (a) of subsection (1) of §30(a), or as defined in the Emergency Unemployment Compensation Act of 1991, or any other federal extended unemployment compensation act, as applicable.



1533 DEFINITION

Regular Sharable Benefits Regular UI benefits payable beyond 26 times the claimantʹs UI weekly benefit rate are treated as regular sharable benefits during an extended benefit period. This means that in order for a claimants to receive benefits beyond 26 times the UI weekly benefit rate, the claimant must meet extended benefit eligibility requirements, as explained below.

Note: The RSB program is only in effect during an Extended Benefit Period in Massachusetts, and only affects claimants whose regular UI entitlement exceeds 26 times the weekly benefit rate.

1534 EB ELIGIBILITY REQUIREMENTS APPLICABLE TO ʺREGULAR SHARABLE BENEFITʺ WEEKS

The eligibility requirements for regular sharable benefit weeks (i.e., weeks 27‐30) mirror the EB monetary, nonmonetary, and worksearch requirements as follows:

1. Monetary Requirement: The base period wages on the regular UI claim must equal/exceed 40 x UI weekly benefit amount, including dependency allowances (DA amount for the most recent UI week is used in this calculation) or one and a half times the high quarter wages whichever method qualifies the claimant.

2. Nonmonetary Requirements: The claim must be free of any ʺterminating disqualificationsʺ. CARRYOVER disqualifications applicable to EB benefits are also applicable to ʹregular sharable benefitʹ weeks as well.

3. Worksearch Requirements: Special EB worksearch requirements also apply to RSB weeks.

4. Fails to Accept or Apply for Suitable Work: Special EB suitable work requirements also apply to RSB weeks.

1535 MISCELLANEOUS PROVISIONS

(A) Weeks of Entitlement Claimants monetarily eligible for RSB and EB (i.e., base period wages equal/exceed 40 x WBA, including DA or one and a half times the high quarter wages) will be entitled to the same total amount of benefits as they are currently entitled to pursuant to UI and EB combined. The RSB program does not change total benefit entitlement of these claimants.



(B) 26 Weeks Limitation of Regular Benefits in EB Period During an EB period, claimants whose base period wages are less than 40 x UI WBA, including DA, and less than one and a half times the high quarter wages are only entitled to regular UI benefits, not to exceed 26 times their most recent UI WBR. These claimants are not eligible for UI weeks beyond week 26, nor are they entitled to EB during an EB period in Massachusetts.

However, once an EB period triggers ʺOFF,ʺ any monetarily ineligible RSB claimants may resume collecting the remaining UI balance on their claim provided that: (a) the benefit year has not expired, and (b) the claimant otherwise meets regular UI eligibility requirements.

(C) Advance Notification of Change in Eligibility Requirements Intrastate claimants will be notified in week 25 of their claim and interstate claimants will be notified in week 23 of their claim of the change in eligibility requirements applicable to weeks 27 through 30 of their claim. Claimants already in weeks 27 through 30 when extended benefits trigger‐on will also be notified.

(D) Procedural Requirements All claimants will be given an ERI, be classified good or not good on work prospects (See EB §1527), and sent to register with the employment service. The local office will determine whether or not there are any terminating disqualifications on their claims. See EB §1526 and 1527 of the Service Representatives Handbook.

(E) Terminating Disqualifications Any claimant who has a terminating disqualification for the following reasons will be sent to a claim adjudicator.

1. Claimant has not earned 40 times the most recent weekly benefit amount, including dependency allowances or one and a half times the high quarter wages.

2. Claimant was disqualified for refusal of suitable work pursuant to §25(c) of the Law and has had no subsequent employment.

3. Claimant was disqualified pursuant to §25(e) and has not served such disqualification by four week of subsequent employment.

(F) Exemption from Disqualification on RSB Claims Interstate claimants are not subject to a disqualification on their RSB claims because they are residing in a state that is not on extended benefits. However, they would be subject to disqualification after two weeks of signing on their extended benefit claim (i.e., weeks 31 and 32).


SPECIAL DETERMINATIONS 1535 (G) 1537

(G) Exemption from Reduction of Receipt of TRA Benefits Regular Sharable Benefits cannot be reduced because of receipt of TRA benefits in the benefit year. Such reduction of weeks of TRA received in the benefit year is applicable only to extended benefits.

(H) RED and TRA Claimant Worksearch Exemption 20CFR 615.8(V) Claimants who are attending class in an approved training course pursuant to §30(c) of the Law or §236(e) of the Trade Act of 1974 are exempted from making or sustained and systematic search for work.

(I) RED §30 Approved Claimants (a) A claimant who is in attendance at an approved §30(c) course but has not received his/her first RED payment will be denied further benefits if he/she fails to earn 40 times his/her weekly benefit amount including dependency allowances or one and a half times the high quarter wages while in an extended benefit period. (See §1534B).

(b) A claimant who is in attendance at an approved §30(c) course and has received his/her first RED payment and fails to earn 40 x his/her weekly benefit amount including dependency allowances or one and a half times the high quarter wages will be allowed to continue to receive the balance of his/her RED allowances.

1536 CORPORATION CASES

1537 STATUTES §25(e)(1)(2) ʺNo waiting period shall be allowed and no benefits shall be paid to an individual pursuant to this chapter for ... (e) the period of unemployment next ensuing and until the individual has had at least eight weeks of work and in each of said weeks has earned an amount equivalent to or in excess of the individualʹs weekly benefit amount after the individual has left his work (1) voluntarily unless the employee establishes by substantial and credible evidence that he had good cause for leaving attributable to the employing unit or its agent, (2) by discharge shown to the satisfaction of the Commissioner by substantial and credible evidence to be attributable to deliberate misconduct in willful disregard of the employing unitʹs interest or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employeeʹs incompetence...ʺ

§1(r)(1) (1) ʺPartial unemploymentʺ, an individual shall be deemed to be in partial unemployment if in any week of less than full‐time weekly schedule of work he has earned or has received aggregate remuneration in an amount which is less than his weekly benefit rate to which he would be entitled if totally unemployed during said week ...ʺ



§1(r)(2) (2) ʺTotal unemploymentʺ, an individual shall be deemed to be in total unemployment in any week in which he performs no wage‐earning services whatever, and for which he receives no remuneration, and in which, though capable of and available for work, he is unable to obtain any suitable work ...ʺ

§29(a) ʺAn individual in total unemployment and otherwise eligible for benefits whose average weekly wage in his base period is ... shall be paid for each week of unemployment ...ʺ

§24(b) ʺAn individual, in order to be eligible for benefits pursuant to this chapter, shall ... (b) be capable of, available, and actively seeking work in his usual occupation or any other occupation for which he is reasonably fitted,ʺ

1538 DEFINITION

ʺCORPORATIONʺ A corporation is a separate legal entity which absorbs company liabilities and protects its individual members. Incorporation involves the naming of corporate officers, i.e., president, treasurer, and clerk, (even though one individual may hold all three positions), the Division of the Corporation into segments or shares which are distributed among shareholders, and the registration of the corporation in the state(s) in which it does or will do business. Shares may or may not be issued; if they are, they may be in any amount with or without cash (ʺparʺ) value. All corporations must register with the Massachusetts Secretary of State in order to conduct business or employ individuals here.

1539 PRINCIPLES

It is essential that you determine the relationship between the claimant and the corporation. If a claimant has identified himself/herself as being presently engaged in any business activity either as an individual, partner, or member of a corporation, by answering ʹyesʹ to question 7 on the Form 511/1073, or to the question asked during the telephone interview, then such claimant must provide additional information about his or her business relationship on Form 509 ‐‐ ʺQuestionnaire for claimants who are, or were, corporation members and/or stockholders.ʺ

You must first determine whether there was a permanent separation pursuant to §25(e)(1) or (2). Was the claimant a minority shareholder or an employee and therefore subject to separation by majority shareholders, or did the claimant as a majority shareholder cause his/her own separation by leaving voluntarily?



What is the reason for separation? Was the leaving a quit or a discharge? Determine if the separation is temporary or permanent. A §25(e) disqualification requires an eight week requalifying wage provision. Document the facts on a Form 113b after contacting the employer.

If the claimant was not permanently separated, determine whether the claimant is in total or partial unemployment pursuant to §29(a) or §29(b) and §1(r). For example, if a corporate member ‐‐ who is subject to the direction and control of the Board of Directors ‐‐ performs no wage earning services and receives no remuneration in any week and no work for the corporation is available to the claimant, then he or she is in total unemployment.

Is the claimant in total unemployment? Determine whether the claimant is continuing to perform services for the corporation. With or without receiving remuneration, or receiving remuneration without performing services ‐‐ see §29(a) and §1(r). Document the fact on Form 113.

Determine also whether the claimant is available for and actively seeking work with other employers pursuant to (§24(b)).

Is the claimant available and actively seeking work with other employers? If the claimant does not meet the requirements of §24(b) there is an indefinite disqualification until the claimant meets the requirements of the law. Document the facts on Form 113 as this is a single party issue.

1540 FACT FINDING

In reviewing the ʺQuestionnaire for claimants who are, or were, corporation members and/or stockholdersʺ [Form 509], check for separation, unemployment, and availability issues.

(A) General Information What type of business is/was the corporation engaged in? Determine the nature of the corporate business, the location of the business, the length of time the corporation has been in business, and the claimantʹs average weekly wage.

Who owns the controlling shares of the corporation? (How many of the shares issued do you own? If a claimant is a minority shareholder, he or she may be subject to the control of majority shareholders and/or may be a more expendable employee.


SPECIAL DETERMINATIONS 1540 (B) 1540 (E)

(B) Reason for Separation Why are you out of work at this time? Determine whether there has been a permanent or temporary separation pursuant to §25(e)(1) or (2). The primary issue here is whether or not the claimant has caused his or her own unemployment ‐‐ and if so, whether there was a good cause reason for such separation? Investigate the following issues:

Is the corporation being dissolved? Why? Who decided to dissolve the corporation? Will the corporation make a profit this year? If not, why not? Is the corporation being sold? If yes, why? (If the motivation for selling was to

realize a profit, how much profit was made? If the corporation was sold because of financial losses, establish the extent of the losses over the previous three years by obtaining a profit‐and‐loss statement if possible, or corporate income tax returns. Evaluate the claimantʹs separation pursuant to §25(e)(1).

Do you own or lease the building? (Would the potential sale of the corporation yield a profit which would include the building?)

How much is the corporation currently in debt? What caused the debt? Is the debt likely to create unemployment? Determine whether the claimant made any efforts to preserve his or her employment.

(C) Not in Unemployment Are you performing any services for the corporation?

(D) Performing Services Determine whether or not the claimant is currently performing any services for the corporation. For example, compare the primary business of the corporation with the claimantʹs particular duties ‐‐ are they directly or indirectly related to corporate activity duties.

Has the claimant created his own unemployment by allowing someone else to perform services that the claimant is qualified to perform? If so, was there a good cause reason for such transfer of duties?

How many employees did the corporation have? Are any still working? How many members did the corporation have? Are any still working? Who does the corporate accounting? Tax returns? Who solicits business for the company? Who maintains company equipment (in general)? Are any services being performed by the corporation? If so, by whom? Is the claimant receiving any remuneration?

(E) Receipt of Remuneration Remuneration may include other benefits to the individual separate from monetary payments.


SPECIAL DETERMINATIONS 1540 (F) 1541 (B)

(F) Able and Available Are you able and available, and actively seeking work?

Determine whether the claimant is available for new work and performing adequate worksearch pursuant to §24(b) of the Law.

1541 CIRCUMSTANCES AND POLICIES

As in all UI claims, the first issue that must be determined is the reason for separation from employment.

Note: A corporate memberʹs separation must be evaluated pursuant to §25(e)(1) and a disqualification will result unless the claimant can show good cause for leaving work or that such leaving was due to an urgent, compelling and necessitous reason.

(A) Sale or Phasing Out of the Corporation The primary issue is whether the claimant caused his or her own unemployment by selling or phasing out the corporation for a reason which does not constitute good cause. If the reason for the sale or phasing out was not for a good cause reason, and it was initiated by the claimant, then this is disqualifying pursuant to §25(e).

Form 3720 Explanation: You sold or phased out your interest in the corporation although not compelled to do so and thereby caused your own unemployment. Therefore, you are subject to disqualification pursuant to the above‐cited section of the Law.

Note: If the corporation was sold because of financial losses, the burden of proof is on the claimant to provide documents showing these losses. For example, ask the claimant for profit‐and‐loss statements, corporation income tax returns (IRS Form 1120), etc. Ask the claimant why such losses occurred but consider financial information over a three‐year period.

(B) Abandonment of the Corporation A corporation may permanently cease operations when it cannot find a buyer, or when it loses its lease and is unable to relocate. Investigate whether there are any urgent and compelling issues which led to the cessation of business operations. The remaining issues concern whether or not the claimant is currently performing services for the corporation and whether he or she is seeking work with other employers.



(C) Natural Disasters Events such as fires, floods, or other unforeseen natural disasters, may force a corporation out of business and result in a claimantʹs separation. If there are plans to rebuild or relocate nearby, determine whether the claimant is in unemployment, e.g., is the claimant devoting a substantial amount of time to the building, relocation, or other business activity. If not, the remaining issue is whether or not the claimant is seeking work with other employers.

(D) Corporation Members – Bankruptcy If a corporation is in bankruptcy, determine the reasons for bankruptcy and whether the claimant is permanently separated from the corporation. If the claimant was a corporate member, was there a compelling reason for filing bankruptcy. (e.g. corporation operating at a loss through no fault of the claimant). Document on Form 113 the name of the bankruptcy attorney or trustee. The remaining issues to be determined are whether or not the claimant is currently performing services for the corporation, and whether or not he or she is seeking work with other employers.

Form 124 Explanation: The claimant was permanently separated as a result of the corporationʹs involuntary bankruptcy. The claimantʹs leaving is with good cause attributable to the employing unit, therefore the claimant is not subject to disqualification pursuant to §25(e)(1) of the Law.

(E) Corporation Members ‐ Assignment for the Benefit of Creditors If a corporation gives an ʺassignment for the benefit or creditorsʺ, this means it places its assets in an independent trust that pays bills etc, and you must document the name of the assignee and the reason for the assignment on Form 113. Determine whether the ʹassignmentʹ results in a permanent separation for the claimant. If there is no separation issue, determine whether the claimant is in total unemployment. (For example, is the claimant performing any services, such as soliciting work, updating files, regardless of whether or not these duties are the claimantʹs usual or primary work).

If the claimant is performing services for the corporation, the claimant is subject to disqualification pursuant to §29(a) and §1(r).

Form 3720 Explanation: Because you are (soliciting business) (other), you are not in unemployment within the meaning of the above‐cited section of the Law, and therefore you are subject to disqualification pursuant to the above cited section of the Law.


SPECIAL DETERMINATIONS 1541 (F) 1541 (G)

(F) Active Corporation ‐ Inactive Member A claimant who is a corporation member leaves the company temporarily (e.g., to take a vacation, attend to personal matters or pursue another interest). The corporation has work available that the claimant is qualified to perform. Since work is available, the claimant is not in total unemployment and is subject to disqualification pursuant to §29(a) and §1(r).

Form 3720 Explanation: Because the corporation is still active and work is available to you, you are not in unemployment and are subject to disqualification pursuant to the above‐cited sections of the Law.

A claimant who is a corporation member separates himself from the company as part of a necessary reduction in force due to economic conditions. The claimant could have laid‐off another employee instead of himself, however, there is not enough work available for both the claimant and another employee. The fact that the claimant elected to lay himself off rather than someone else does not make the claimant subject to disqualification pursuant to §29(a), §(1)(r) and §25(e)(2).

Reasoning Statement: Because you have been laid off as part of a reduction in force, you are in unemployment and not subject to disqualification pursuant to the above‐cited sections of the Law.

(G) Inactive Corporation ‐ Claimant Performs Services A claimant continues to perform services for a corporation ‐‐ whether or not they are his or her usual and customary services even though the corporation is no longer actively engaged in business. These services may include soliciting new business, advertising, repair of equipment, etc. Since the claimant is continuing to perform services for the corporation, the claimant is not in total unemployment pursuant to §29(a) and §1(r) of the Law. (However, if he is performing services only part of the time, he may be in partial unemployment pursuant to §29(b) and 1(r) of the Law).

Form 3720 Explanation: Because you are actively performing services for the corporation, you are not in unemployment and are subject to disqualification pursuant to the above cited sections of the Law.


SPECIAL DETERMINATIONS 1541 (G) 1541 (H)

If you find that the claimant is performing services during a minor portion of time, use the following reasoning statement:

Reasoning Statement: The claimant is performing services for his/her corporation for only a minor period of his/her time. Therefore, he/she is in partial unemployment and is not subject to disqualification pursuant to the above cited sections of the Law.

(H) Temporary Cessation of Business ‐ Active Corporations Certain businesses in the resort, landscaping, construction, and fishing industries cease operations during certain periods of the year. Use the answers on [Form 509] to determine whether during the cessation, the claimant performed any services for the corporation, received any remuneration from the corporation, and is currently available for and seeking work. If these businesses have not received ʺseasonalʺ designation from DUA, then the claimant may be eligible for benefits.

If services are being performed for the corporation, it will be necessary to determine the nature of the services and who is performing the services. For example, you may ask the following:

Landscaping ‐ Are you doing snowplow work? Swimming pool construction ‐ Are you doing warranty work? Heavy equipment operation ‐ Are you leasing equipment? Are you repairing

equipment? Resort operation ‐ Are you living on corporate property? Fishing vessels ‐ Are you doing repairs on boats or fishing equipment?



1545 PROCEDURES

(A) Form 113 and 113b Document on Form 113b those corporation members who have been permanently separated. A permanent separation requires an employer contact. Issue Form 124 or a copy of Form 3720 to timely protesting employers only.

Document on Form 113 ʹnot in unemploymentʹ issues and ʹable and availableʹ issues. If the claimant is subject to disqualification, issue Form 3720. If the claimant is not subject to disqualification, document with a reasoning statement.

In every case a reasoning statement is required indicating a summary of fact, reason for allowing or disallowing benefits, and the legal result.

(B) Companion Cases Form 509 asks whether there are any companion cases. If ʹyesʹ, forward the cases to the Determinations Department for resolution.

(C) Workload Credit Workload credit is valid for corporation cases if all workload requirements are satisfied.

1550 SCHOOL EMPLOYEES

1551 STATUTE §28A ʺBenefits based on service in employment as defined in subsections (a) and (d) of §4A shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject to this chapter, except that:

(a) With respect to service performed in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid on the basis of such services for any week commencing during the period between two successive academic years or terms, or when an agreement provides instead for a similar period between two regular but not successive terms, or during a period of paid sabbatical leave provided for in the individualʹs contract, to any individual if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;



(b) With respect to services performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week commencing during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years of terms, provided that, if the individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, such individual shall be entitled to a retroactive payment of benefits for each week for which the individual filed a timely claim for benefits and for which benefits were denied solely because of a finding that such individual had reasonable assurance of performing services in the second of such academic years or terms;

(c) With respect to services described in subsections (a) and (b), benefits shall not be paid to any individual on the basis of such services for any week commencing during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess;

(d) With respect to any services described in subsections (a) and (b), benefits shall not be paid as specified in subsections (a), (b), and (c), to any individual who performed such services in an educational institution while in the employ of an educational service agency, and for the purpose of this clause the term ʹeducation service agencyʹ means a governmental agency or governmental entity, including an educational collaborative board established by §4(e) of Chapter 40, which is established and operated exclusively for the purpose of providing such services to one or more educational institutions.ʺ

See also §28A regulations ‐ 430 CMR 4.91‐4.98

1552 PRINCIPLES

Section 28A entitles employees of educational institutions to the same UI benefits as other claimants, with exceptions based on the type of work performed in the school and the timing of claims during specific periods of the year. The section applies only to initial claims based on services performed for, and wages earned from, an educational institution.

Section 28A addresses four circumstances with respect to school‐related employment:

Section 28A(a) those employed in an instructional, research, or administrative capacity (professional) for an educational institution;



Section 28A(b) those employed in any other (non‐professional) capacity for an educational institution; and

Section 28A(c) those employed in a professional or non‐professional capacity for an educational institution during school vacations.

Section 28A(d) those employed by an educational service agency and performing services in an educational institution.

Although most of §28Aʹs provisions apply equally to §28A(a) (professional) and §28A(b)(non‐professional), You should determine:

if the employer can be classed as an ʺeducational institutionʺ if so, review the employer number;

that the claim is being filed between two successive academic years or terms; if so, whether the claimant received a ʺreasonable assuranceʺ of re‐employment for the

next academic year or term.

If the claimant is a non‐professional employee of the educational institution, you must establish whether the claimant was given an actual ʺopportunity to perform serviceʺ during the second of the two years or terms.

Section 28A(d) prohibits the payment of benefits, based on services performed in an educational institution, to both professional and non‐professional educational service agency employees during breaks between and within an academic year or term, or during customarily scheduled vacation or holiday breaks. This provision includes individuals such as van drivers and school bus drivers who work for an educational service agency or educational collaborative. Although these individuals do not perform services inside the school building, they will still be considered to be performing services in an educational institutional setting and are, therefore, subject to the denial provisions of 28A.

Employees of an educational service agency or an educational collaborative who do not perform services in an educational institution are not subject to the denial provisions of §28A.



1553 DEFINITIONS

(A) Educational Institution An educational institution offers students, participants, or trainees, guided by an instructor or teacher, an organized course of study to obtain knowledge, skills, information, doctrines, attitudes, or abilities. The curriculum may be academic, technical, trade, or other preparation for gainful employment in a recognized occupation. Other indicia of educational institutions may include operation of a course of study on a 180 day basis, teacher contracts which are substantially similar to public school teacher contracts, and recognition by other State or Federal agencies that the institution is in fact ʺeducationalʺ.

Among the educational institutions falling within the meaning of §28A:

The Division of Inmate Training and Education within the Department of Corrections. The Bureau of Institutional Schools, which employs teachers to instruct children

confined to mental institutions throughout the state. A nursery school or preschool which admits children within a limited age range, is in

session during regular school hours, and provides some type of instruction to the children. (Note: Those with account number prefixes such as 47‐ and 09‐ are profit‐making organizations whose employees are not subject pursuant to §28A.)

A Head Start program operated by a local Board of Education, not by a Community Action Program.

Specialized Title 1 programs funded by the federal government. Charter schools pursuant to the Massachusetts 1993 Education Reform Act.


SPECIAL DETERMINATIONS 1553 (A) 1553 (B)

Some workers who may have training or educational functions, are not considered to be employed by educational institutions and are therefore not subject to the provisions of §28A. For example:

Individuals who work for institutions that primarily provide custodial care rather than educational services (such as state hospitals). Some of these individuals may act as instructors.

Researchers who are employed by private corporations owned by a university, such as Mitre Corp. (MIT) or Draper Laboratories (Harvard).

Workers at a day care center that admits children within a wide age range, is open beyond normal school hours, and operates year‐round. This type of facility is considered to be providing custodial rather than educational services.

UCFE and UCX teachers employed at schools operated by the federal government (i.e., military post schools, Bureau of Indian Affairs schools, etc.) in the United States or overseas.

School crossing guards if the police department retains direction and control (hiring, training, wage‐setting, etc.) of these workers they are not considered school employees, regardless of their payroll. (If the school maintains control and direction and they are on the school payroll they are subject to §28A.)

Head Start workers in facilities operated by a Community action Program or any other entity except a local Board of Education.

Secretaries and other clerical workers who are employed by educational collaboratives established pursuant to MGL Chapter 40 but do not perform any educational services for educational institutions.

Bus drivers who are not under the direction and control of an educational institution or school board/committee.

(B) Reasonable Assurance Reasonable assurance is a written, oral, or implied agreement that the employee will perform services in the same or similar capacity during the next academic year, term, or remainder of a term. The ʺsame or similar capacityʺ refers to the type of services provided, i.e., ʺprofessionalʺ or ʺnonprofessionalʺ. For reasonable assurance to exist, the educational institution must provide a written statement to DUA that the employee has been given a bona fide offer of a specified job in the second academic period.

The reasonable assurance of re‐employment need not come from the most recent school system or educational institution employer for whom the employee previously worked. If a claimant has a contract or a reasonable assurance of re‐employment from any educational institution, including a school outside the state or a school exempt from coverage pursuant to §6(r) of the Law, then he or she is subject to disqualification pursuant to §28A even if reasonable assurance is given by only one school system.



(C) Bonafide Offer The offer of employment must be made by an individual authorized to do so, i.e., a department head or administrator. A tentative offer or an offer made by an individual not authorized to do so, will not constitute a bona fide offer. There does not have to be a showing that work will definitely be available and money will definitely be allocated for there to be a bona fide offer.

(D) Economic Terms and Conditions Reasonable assurance exists only if the economic terms and conditions of the job offered in the second academic term are not substantially less than the terms and conditions for the job in the first period. A reduction in wages and/or fringe benefits of more than 20% would in most cases be a substantial reduction of economic terms and conditions of the job.

(E) Opportunity to Perform Service The opportunity to perform actual services in the second academic year or term, perform service applies only to nonprofessional employees. The employer must make this offer in writing, by the end of the second full week from the beginning of the academic year or term, to those individuals who are not currently employed. In addition, the individual must begin performing services by the end of the fourth full week from the beginning of the academic year or term.

An offer of short‐term employment ‐‐ less than 20 working days ‐‐ does not constitute an opportunity to perform services unless the individual is a non‐professional substitute employee. In this case, an opportunity to perform service is considered legitimate as long as the offered terms and conditions of employment are the same as those in the most recent academic year or term.

If you disqualify a ʺnon‐professionalʺ claimant, pursuant to §28A(b) and he or she had a reasonable assurance of re‐employment, and subsequently was not offered an opportunity to work, or does not begin work by the end of the fourth full week once the next academic year is underway, then the claimant may request retroactive payment of benefits. See 1555(G).



1554 FACT FINDING

The following questions should be explored with both the claimant and the employer to determine whether reasonable assurance exists.

1) Has the claimant received a bona fide offer of re‐employment for the next academic year?

2) Who made the offer? Does this individual have the authority to make an offer of employment? When was the offer extended?

3) Do the current enrollment figures, past hiring practices, and the claimantʹs seniority level indicate that the claimant has been given a reasonable assurance of re‐employment?

4) Does the position offered provide similar economic terms and conditions to those provided in the past position?

1555 PROCEDURES

(A) General Disqualification If you determine that a claimant has a reasonable assurance of re‐employment in the next academic year from an educational institution, disqualify him or her on Form 3724 (Notice of Determination of Eligibility pursuant to §28A). Form 3724 serves as both a disqualification and approval form. Note also that there is no requalifying wage provision on this form because a §28A disqualification can not be removed. The 3724 also indicates whether the claimant is monetarily eligible based on non‐school wages.

Form 3724 Disqualification: You have a reasonable assurance of re‐employment during the next academic (year)(term). Therefore, you are subject to disqualification from (date) to (date) pursuant to the above‐cited section of the Law.

Form 3724 Approval: The Claimant does not have a reasonable assurance of employment during the next academic (year) (term). Therefore the claimant is not subject to disqualification pursuant to the above‐cited section of the Law.



(B) Notice for Nonprofessional School Employees If appropriate, include with the Form 1454 the fact sheet entitled ʺNotice of Nonprofessional Employees of Educational Institutionsʺ which sets forth the conditions and procedures covering the retroactive payment of benefits. Once a claimant is issued a denial of benefits on the grounds of reasonable assurance, he or she maintains the right to request retroactive benefits without continuing to report.

(C) Deletion of Base‐Period Wages When a claimant is disqualified pursuant to §28A, he or she is denied the use of base‐period wages received from an educational institution as these wages are deleted when the benefit rate is calculated. However, a claimant may be disqualified pursuant to §28A and still be eligible for reduced benefits if he or she had other (non‐educational) covered employment during the base period. (This is known as ʺHILOʺ.)

Note: Although it is possible that a claimantʹs wage distribution in the four base‐period quarters may increase rather than reduce his or her benefit rate, the total benefit credit is always lower.

If a claimant has reasonable assurance of returning to work for any school system, delete all school wages from the base period. This applies even if a claimant has the assurance from a new school or from only one of several schools which employed him or her during the previous year. (The automated system is always set on ʺLOʺ which reflects non‐school wages only. To establish a monetary with school wages, and any other wages the automated system must be set on ʺHIʺ. Access ʺHILOʺ screen to program accordingly for ʺLOʺ, start and end dates will be from 000000‐999999. To set on ʺHIʺ the start and end dates will be 000000‐000000).

(D) Written Notice to DUA An educational institution can satisfy this requirement by indicating on the Form 1062/1074 that it gave the employee reasonable assurance, or it can attach to the Form 1062/1074 a document showing that it gave reasonable assurance to the employee, or through a written communication to DUA in another format, e.g., a copy of the reasonable assurance letter, or job offer letter sent to the employee.

(E) Method of Notification The claimant must receive notice (preferably in writing) of his or her offer of re‐employment. When notice is given verbally, the claimant may or may not later agree that assurance of re‐employment was actually given, making it difficult for the employer to establish the fact. Notice of reasonable assurance is sometimes provided verbally at a group meeting, after which members of the group are generally asked to sign a form or list verifying attendance and notification. In some smaller communities, local newspapers publish lists of the employees with reasonable assurance of school re‐employment. All of these methods of notification are acceptable.


SPECIAL DETERMINATIONS 1555 (E) 1555 (G)

A claimant who has been initially determined not to have reasonable assurance of rehire, and therefore eligible for UI, may subsequently be denied further UI if DUA is informed in writing by the claimantʹs employer, that there is a reasonable assurance of rehire. Benefits must cease upon the establishment of reasonable assurance.

(F) Date of Notification If written or verbal notice of reasonable assurance is given directly to the claimant, the date this takes place is also the date of notification. If, however, the employer mails the notice, then the date of receipt (not to exceed three days later) becomes the date of notification. If the day of notification is a Monday, Tuesday, or Wednesday, disqualify the claimant effective that week. If the notification is received on a Thursday or Friday, make a lost‐time disqualification pursuant to §28A for one or two days, whichever is appropriate.

Note: The provisions of §28A regarding reasonable assurance apply only to the period between two academic years of terms. When the new academic year or term begins, the reasonable assurance provisions are no longer applicable because §28A does not apply when school is in session. If otherwise eligible the claimant would be entitled to benefits for succeeding weeks.

(G) Request for Retroactive Payment of Benefits In order to request retroactive payment of benefits, the claimant (who is a nonprofessional employee) must apply either in person or in writing no later than the sixth full week from the beginning of the academic year or term. When such a request is filed, reopen the claim and mail Form 1074 [Notice of Claim Filed] to the educational institution or educational service agency that gave the claimant reasonable assurance of re‐employment.

The effective week of the reopened claim can be pre‐dated to the effective date of the period in issue, which is usually the effective date of the initial claim. After all the facts have been obtained, make a nonmonetary determination on the claimantʹs eligibility for retroactive payment of benefits. Issue Form 3724‐A to all interested parties. If your determination allows retroactive payment, have the claimant sign Form 5442 [Receipt of Benefits]. Any appeal should be processed through the regular appeal process.

The local office should obtain the claimantʹs signature for each week of unemployment between the initial filing date and the beginning of the next academic year or term. These signatures constitute the filing of a timely claim for retroactive payment of benefits.

Do not disqualify the claimant pursuant to §24(b) for his or her unavailability for work during the period to which the retroactive benefits apply.

If you establish before the next academic year or term starts that the claimant will not be offered an opportunity to perform service, then payment of retroactive benefits can begin at that point. Reopen the claim and mail the employer Form 1074.


SPECIAL DETERMINATIONS 1555 (H) 1556 (C)

(H) Other Employment During Summer Recess A disqualification pursuant to §28A cannot generally be removed because the disqualification ends when the next academic year begins or the vacation period ends. However, a subsequent written notice from the educational institution rescinding reasonable assurance ends the disqualification. Even though a claimant might find other work during the summer recess, he or she is still subject to §28A. If a claimant was employed by an educational institution during the most recent academic year, that institution is an interested‐party employer, regardless of the claimantʹs subsequent summer employment.


(A) Leaving Work During Academic Year or Term An individual leaves work at an educational institution during an academic year or term to accept other bona fide employment. He or she is later separated from the new employment under nondisqualifying circumstances during the term or between terms.

The claimant may qualify for benefits based on school wages, even if the educational institution states that he or she would have reasonable assurance of re‐employment in the next term because this separation occurred during the school year when §28A does not apply. However, if the claimant refuses a bona fide offer of immediate re‐employment, he or she could be denied benefits for refusal of suitable work pursuant to §25(c) [1100: Suitable Work].

(B) Refusal of Offer Due to Changed Terms of Employment A claimant has reasonable assurance of re‐employment in the next academic year and is disqualified pursuant to §28A. However, the claimant fails to accept the offer (or quits the job) because the conditions of employment have been changed so that the work is no longer suitable. He or she may be eligible pursuant to §25(c) [1100: Suitable Work].

Note: If during the period between academic years, a claimant states that he or she has decided not to return in the next academic year or term, you must establish that he or she has notified the employer. Absent such notification, the claimant has not‐‐for adjudication purposes‐‐actually left his or her work.

(C) Failure to Seek Work A claimant who is not disqualified pursuant to §28A during the period between terms fails to look for another job. He or she is subject to disqualification pursuant to §24(b) [1000: Able and Available] because the availability and worksearch requirements apply to school employees.


SPECIAL DETERMINATIONS 1556 (D) 1557 (A)

(D) During School Vacation According to subsection (c) of §28A, you should handle school vacation periods (e.g., Christmas or spring recess) in the same way as the period between successive academic years. The Law states that the disqualification (if appropriate) is for any week which begins during a vacation week. Since some vacation periods, such as the Thanksgiving break, start on a Tuesday or Wednesday, a §28A denial of benefits for these periods does not apply. The logic is the same: If an individual performs services in the calendar week immediately before a vacation period and he or she had a reasonable assurance that he or she will perform services in the calendar week immediately following, disqualify the individual pursuant to §28A. ʺPerforming Servicesʺ may mean as little as one dayʹs services during each week.

(E) During School Year When school is in session, §28A is not an issue. If an individual has been disqualified pursuant to §28A, that disqualification ends when the next academic year or term begins. At this point, the claimant has either returned to work (and has abandoned the claim) or has not, in which case you should reopen the claim due to a change in the claimantʹs status.

First send a Form 1074 (Notice of Claim Filed) to the employer(s) that provided reasonable assurance (unless the reasonable assurance of employment was with a different school than that which employed the claimant during the previous year or term). Then determine whether (a) the claimant was laid off due to lack of work, or (b) the claimant left work voluntarily. If (a), the claimant qualifies for benefits if otherwise eligible. If (b), make a determination in keeping with §25(e)(1) (1200: Voluntary Leaving). Once school has begun, the claimant is no longer subject to disqualification pursuant to §28A, even if the employer is certain that he will reemploy the claimant within a brief period of time.

(F) Substitute Teachers To have ʺreasonable assuranceʺ substitute teachers must be offered a similar position for the next academic year or term with similar conditions and benefits. Consider the employment history of the substitute during the last eight weeks of the school year.

1557 POLICIES/REASONABLE ASSURANCE

(A) Refusal of a Contract in the Second Academic Year A principal refuses a contract for the second academic year as a teacher. The school offers no other work. If it is determined that the economic terms and conditions are substantially the same as in the first academic year, then reasonable assurance exists. If the economic terms and conditions are substantially less in the second term, then reasonable assurance does not exist.



(B) Offers of Reduced Employment A teacher employed full‐time in the first academic year is offered a position teaching 3/5ths of the week or less in the second academic year. Since the economic terms and conditions would be substantially less than the terms and conditions in the first academic year, no reasonable assurance exists.

(C) Full‐Time Teacher Offered Long‐Term Substitute Contract A teacher employed on a full‐time basis during the first academic year is offered a one‐year contract as a ʺlong‐termʺ substitute. If the rate of pay is the same as that for a full‐time teacher, daily employment is guaranteed for the length of the contract, and the long‐term substitute position includes similar benefits, then the economic terms and conditions will not be considered to be substantially less and reasonable assurance exists.

(D) Full‐Time Teacher Placed on an On‐Call List A full‐time teacher during the first academic year is placed on the on‐call substitute list for the second academic year. An ʺon‐callʺ employee has a varying schedule of hours and works on an as needed basis. The educational institution indicates that full‐time teachers are placed on the top of the substitute list and are called to work before other substitute teachers and that teachers on the top of the list usually work 4 or 5 days each week. In this case, if the rate of pay is the same, and the teacher would be given substantially the same amount of employment during the second academic year, the economic terms and conditions would not be substantially less and reasonable assurance exists. If, on the other hand, the teacherʹs name is merely added to the bottom of the substitute list and he or she would be infrequently called to work, then the economic conditions would be substantially less and reasonable assurance does not exist.

(E) On‐Call Substitute Teacher Retained on On‐Call List An on‐call substitute is retained on the on‐call list. If the educational institution indicates that the circumstances under which the teacher will be called are unchanged, then reasonable assurance exists. If for any reason, the teacher will be called significantly less frequently than during the first academic year (prior full‐time teachers or long‐term substitutes will be placed on top of the daily substitute list, noncertified teachers will be called last, etc.) then the economic conditions would be substantially less and reasonable assurance does not exist.

Note: To determine if a substitute teacher is a long‐term or daily substitute, consider the status of the claimant during the last eight weeks of the first academic year.


SPECIAL DETERMINATIONS 1557 (F) 1557 (I)

(F) Reasonable Assurance vs. a Possibility of Work An offer of employment will not be considered bona fide if only a possibility of work exists. A possibility (rather than a reasonable assurance) exists if the conditions under which the individual would be employed are not within the educational institutionʹs control, the educational institution cannot provide evidence that such individuals normally perform services in the following academic year. If a school employee in past years has been employed in a position funded through outside sources, i.e., federal or state monies, the attainment of those monies is not within the control of the educational institution. However, if the educational institution can demonstrate that under similar restrictions the individual has been re‐employed in prior years, reasonable assurance can be established. Factors to be considered to determine the likelihood of a claimantʹs returning to work in a subsequent year include enrollment levels, hiring practices, and seniority of the claimant.

Note: You should refer to the following examples for additional guidance on §28A issues.

(G) Offer of Employment After Notification of No Reasonable Assurance Some school boards routinely notify individuals in April, before final enrollment figures and personnel needs are available, that they will not be reemployed in the next school year. If an individual later receives a bona fide offer to work, reasonable assurance then exists.

(H) Funding After Close of School Year A claimant disputes an educational institutionʹs statement of reasonable assurance, alleging that he or she has heard rumors or read newspaper articles that his or her particular position would not be funded in the next academic year. The educational institution provides enrollment figures to justify a fixed number of positions but indicates that the claimantʹs skills, prior service, and seniority assure him or her of a position. Other than a lack of notification regarding funding, which usually arrives late in the summer, no reason exists to indicate that the program will be suspended or abolished. The offer of work is bona fide and reasonable assurance exists.

(I) Possibility of Work Based on Enrollment A claimant has been employed by an education institution as an art teacher (nontenured) during the past two academic years. The Form 1062/1074 indicates that the claimant has reasonable assurance to perform service in the third academic year. During the fact finding interview, the claimant informs the claim adjudicator that he or she has heard persistent rumors that the number of positions in the art department will be reduced during the next academic year due to a combination of funding and enrollment levels. Upon questioning, the employer states that present enrollment levels require four art teachers during the coming year, and the claimant will be the fifth art teacher hired (based on seniority) if the enrollment level increases. At this time, the claimant has been offered a possibility of work, rather than a reasonable assurance of work and will be entitled to benefits from the filing date of the claim until the employer is able to substantiate sufficient enrollment figures to establish a bona fide offer of re‐employment.


SPECIAL DETERMINATIONS 1557 (J) 1557 (J)

(J) Adjunct Professors Adjunct professors do not have a permanent position at an academic institution. An adjunct may be someone with a job outside the academic institution who teaches courses in a specialized field, or it may refer to persons hired to teach courses on a contractual basis. It is generally a part‐time position with a teaching load below the minimum required to earn benefits, although the number of courses taught can vary from a single course to a full‐time load.

An adjunct is generally not required to participate in the administrative responsibilities at the institution often expected of other full‐time professors, nor do they generally have research responsibilities. The pay for these positions is usually less than that paid to regular teaching staff, even though adjuncts typically hold an advanced degree. Many adjuncts also hold concurrent positions at several institutions or may be simultaneously employed in private industry.

Adjuncts provide flexibility to the faculty, acting as additional teaching resources to be called up as necessary, however, their teaching load is variable: classes can be transferred from adjuncts to regular teaching staff, classes with low enrollment can be summarily canceled and the teaching schedule from one semester to the next can be unpredictable.

In nearly all cases continued employment in the next ensuing academic year or term is contingent on enrollment or financing or both. For adjunct teaching staff there can be no reasonable assurance if re‐employment is contingent on such factors as enrollment or funding regardless of the extent to which past patterns of re‐employment indicated a likelihood of returning to work.

In adjudicating cases involving adjunct professors, if fact‐finding indicates that re employment is contingent on enrollment or funding, it should be determined that no reasonable assurance exists and the claimant approved for benefit payment.


SPECIAL DETERMINATIONS 1560 1562 (B)

1560 UCFE ‐‐ (FEDERAL EMPLOYEE) CLAIMANTS

1561 NONMONETARY DETERMINATIONS ‐‐ UCFE

A federal employee who claims benefits pursuant to Chapter 85 of Title 5 U.S. Code (known as a UCFE claim) is subject to the standard disqualification provisions of the Massachusetts Unemployment Insurance Law. Treat all nonmonetary determinations and redeterminations for FE claimants as you would for claimants pursuant to state law, with the exception of procedural differences noted in ¶1562 below. Use standard forms stamped ʺFEʺ, except for those you mail to interested party, non‐federal employers.

For purposes of adjudication, the federal government is a single employer. Even though a claimant may have worked for more than one agency, the agency involved in the separation is considered the only one for nonmonetary issues.

Make determinations about the reason for termination, amount of federal wages, and period(s) of federal employment in accordance with the state law. The findings of a federal agency are not considered final or conclusive. On the other hand, federal laws and regulations are followed in determining what constitutes federal service, federal wages, and the state to which federal wages are assigned.

1562 PROCEDURES

(A) Notice of a Nonmonetary Issue When an individual files a new claim for Federal unemployment benefits, he or she will be asked to present a Standard Form 8 [Notice to Federal Employee About Unemployment Insurance]. Standard Form 8 will direct where Form ES‐931, [Request for Wage and Separation Information ‐ UCFE] will be sent. The individual will also be asked to present Standard Form 50, [Notice of Personnel Action] (or equivalent), which includes in the ʺremarksʺ section a full explanation of the reason for termination. If that reason is anything other than lack of work, the claims interviewer will note the facts in the claimantʹs record and route the claim to the Adjustment Unit.

(B) Return of Form ES‐931 When a Federal agency returns Form ES‐931 with information that indicates a nonmonetary issue, one copy will be sent to the Adjustment Unit. You should make this copy part of the determination file and record the claimantʹs statement on Form 113B [Claimantʹs Rebuttal]. If you need no further information, make your determination at this point in accordance with state law.



If Form ES‐931 or ES‐934 reports that the claimant is ʺstill on rollsʺ, see 1340 [Disciplinary Suspensions]. If claimant is ʺstill on rollsʺ pending removal, adjudicate the separation as a discharge.

(C) Requests for Reconsideration of Federal Findings (ES‐934) If the information on Form ES‐931 is incorrect, incomplete, or contrary to that shown on Form 50, or if the claimant so requests, ask the federal agency for additional information on Form ES‐934 [Request for Information or Reconsideration of Federal Findings]. Prepare four copies of ES‐934 send three and keep one for the file. Do not obtain this information by telephone or use Form 261 [Request for Statement of Employer].

If, instead of appearing in person, the claimant submits a letter requesting additional information or reconsideration of federal findings, prepare Form ES‐934 as above, but omit the claimantʹs signature and attach the letter.

When the Federal agency returns two copies of Form ES‐934 with its reconsidered findings, replace the file copy with one returned copy, and present the other to the claimant. Compare the reconsidered findings on Form ES‐934 with the corresponding information on Form ES‐931, and proceed according to the facts.

(D) Approved Claim When you approve a claim on any nonmonetary issue, send Form 124 [Notice to Employer of Approved Claim] to the federal agency ‐‐ as long as it has returned Form ES‐931 ‐‐ with a detailed explanation of the reason for the approval. Federal agencies have the same right of appeal as other employers involved in ordinary UC determinations. No ES‐931ʹs are considered late if they have been returned.

(E) Disqualified Claim When you determine that a claimant is subject to disqualification on any nonmonetary issue, prepare a regular Form 3720 [Notice to Claimant of Disqualification] with a detailed explanation of the reason. Make the claimant aware of his or her right to appeal pursuant to §39.

(F) Non‐Return of Form ES‐931 If the federal agency does not return Form ES‐931 within 12 days of mailing, process Form ES‐935 [Claimantʹs Affidavit of Federal Civilian Service, Wages, and Reason for Separation] and determine any nonmonetary issue on the basis of Form 50 and Form 113 information. In such cases, do not mail a notice of determination to the federal agency until Form ES‐931 is received.

If the claimant does not present a Form 50 or similar form, or if the claimantʹs statement of facts does not agree with the Form 50, send a Form ES‐934 to the federal agency for additional information. Do not send a notice of determination unless the agency returns Form ES‐931.



1570 NONMONETARY DETERMINATIONS ‐‐ UCX

1571 UCX ‐‐ (EX‐SERVICE MEMBER) CLAIMANTS

An individual who claims benefits pursuant to Title XV of the Social Security Act as amended by the ʺEx‐Servicemenʹs Unemployment Compensation Act of 1958ʺ (known as a UCX claim) is subject to the standard provisions of the Massachusetts Unemployment Insurance Law. With the exception of the separation issue, treat all nonmonetary determinations and redeterminations for UCX claimants as you would for claimants pursuant to state law. To address the separation issue, determine whether the individualʹs military services is ʺfederal military serviceʺ within the meaning of Title 5 of the U.S. Code. Use the standard forms, but stamp them (except for those mailed to employers) with ʺUCX.ʺ

As described in greater detail below evaluate a UCX claimant by determining whether his or her discharge from military service was honorable and that the claimant either served for a minimum period or had a legitimate reason for not doing so.

All military separations within the base period are adjudicated even if the U.S. military is not an interested party employer.

1572 PROCEDURES

(A) Discharge When a claimant files a new claim for UCX benefits, he or she will be asked to present Form DD‐214 (Copy 4), or orders in lieu of the form, for each period of military service. The form includes information about the period of service (in Item 12a, 12b, 12c and 12d), character of service (in Item 24), and narrative reason for separation (in Item 28).

If the claimant questions the accuracy of any information contained on Form DD‐214, advise him or her that it is the claimantʹs responsibility to have the data corrected through his or her branch of the Armed Forces. A DD‐214 can not be altered in any manner. Any alterations render the form invalid. The document used by the military to change information on a DD‐214 is a DD‐215. If the claimant decides to pursue a discrepancy on a DD‐214, the Department of Veterans Affairs can provide DD‐149. If the claimant requests, the local DUA office can also assist in obtaining a copy of a DD‐214 by submitting Form ETA 8‐43 to the proper military authority. Refer to §IIQ.1 in the Unemployment Insurance Procedures Manual.


SPECIAL DETERMINATIONS 1572 (B) 1572 (C)

(B) Assisting the Claimant to Obtain DD‐214 If the claimant is unable to furnish Copy 4 of DD‐214, it is the claimantʹs responsibility to obtain the documentation. However, the UI office may be able to assist.

(1) The claimant may be referred to the office of the Director of Veterans Affairs at 100 Cambridge Street (Saltonstall Building) in Boston.

(2) A local representative of the Department of Veterans Affairs may be able to assist the individual in obtaining DD‐214.

(3) If the claimant cannot reach the parties listed above, the UI office can initiate a request to the FE/UCX Coordinator in UI operations. The FE/UCX coordinator forwards the request to the Louisiana Claims Control Center (LCCC).

In the FE/UCX Coordinator cannot obtain Copy 5, the UI office will complete Form ETA 8‐43, Request for Military Document/Information for Unemployment Compensation Purposes ‐ UCX, requesting information about the availability of DD‐214. The UI office will complete and mail Form ETA 8‐43 to the appropriate branch of service.

(C) Determining Whether an Ex‐Service Member has Performed Federal Military Service for Purposes of Paying UCX Benefits Review a claimantʹs Form DD‐214, following these four steps, in this order:

STEP 1 ‐‐ Establish that the ex‐service member was separated ʺ under honorable conditions,ʺ and that an officer did not ʺresign for the good of the service.ʺ

Item 24 indicates the character of service, which must be ʺHonorable,ʺ ʺUnder Honorable Conditions,ʺ ʺGeneralʺ, or ʺUncharacterizedʺ including the following versions of ʺUncharacterizedʺ designations, ʺDrop from Rolls,ʺ ʺVoid Enlistment,ʺ ʺEntry Level Separation.ʺ

Individuals who served fewer than 180 days receive an uncharacterized designation in Item 24 which is synonymous with an honorable discharge.

If an officer resigned ʺfor the good of the service,ʺ then his or her discharge was not honorable.

Any other type of discharge (i.e., ʺdishonorable,ʺ ʺother than honorable,ʺ ʺbad conductʺ) results in disqualification because he or she does not meet the requirements for ʺcreditable military service.ʺ See (D) below. It is not necessary to send Form ES‐973 to the Department of Veterans Affairs in this case.



STEP 2 ‐‐ Determine whether the ex‐service member is or was a member of the National Guard or Reserve Component with 90 days or more of continuous active duty.

Item 2 on Form DD‐214 indicates National Guard or Reserve status with these acronyms:

ARNGUS or USAR – Army ANGUS or USAFR ‐ Air Force USNR – Navy USMCR – Marines USCGR ‐ Coast Guard

To determine whether there has been 90 days of continuous active service, evaluate 12(c) of the DD‐214.

If the individual meets the criteria in Step 1, is in the National Guard or Reserves, and has at least 90 days of continuous active duty, use that period of military service which qualifies as ʺFederal Serviceʺ to establish claim.

If the individual is in the National Guard or Reserves but does not have 90 days or more of continuous active duty, then his or her period of military services does not meet the requirements for ʺcreditable military service.ʺ See (D) below.

If the individual was not a member of the National Guard or Reserves, continue to Step 3.

STEP 3 ‐‐ Determine if the ex‐service member was separated from military service after completing a first ʺfull term of active service.ʺ An ex‐service member will be credited with having completed the first full term of active service to which he initially agreed if:

Item 28 on Form DD‐214 contains narrative reasons such as ʺExpiration term of service,ʺ ʺCompletion of required service,ʺ ʺHoliday Early Release Program,ʺ or other similar entries. (See 1573 for a complete list of each serviceʹs narrative reasons which indicate that the individual had a first full term of active duty.)

Item 12c of Form DD‐214 (ʺNet Active Service This Periodʺ) added to Item 12d (ʺTotal Prior Active Serviceʺ) must meet or exceed the number of years required by the particular branch of service to be credited with a first full term of service:



Army Enlisted‐‐3 Army Officers (except graduates of U.S. Military Academy or ROTC scholarship program ‐‐ 3 Army Officers/Graduates of ROTC scholarship program‐‐4 Army Officers/Graduates of U.S. Military Academy‐‐5 Navy, Marine Enlisted‐‐4 Air Force 4 or 6* Coast Guard‐‐4 Navy, Air Force, Marine Officers (except officers who received flight training or graduates of U.S. Naval or Air Force Academy)‐‐4 Navy, Air Force, Marine Officers who received flight training or are graduates of U.S. Naval or Air Force Academy‐‐5

If the ex‐service member completed the first full term of service which he or she initially agreed to serve, his or her service is ʺFederal Serviceʺ. Use this to establish a claim.

If the ex‐service member did not complete the first full term of service, continue to Step 4.

STEP 4 ‐‐ Determine if the ex‐service member meets any one of the four criteria required to qualify for UCX entitlement despite a discharge or release before completing the first full term of active service:

1. For the convenience of the government under an early‐release program; *See Item 18 of DD‐214.

2. Because of a medical disqualification, pregnancy, parenthood, or any service‐incurred injury or disability;

3. Because of hardship; or

4. Because of personality disorders or inaptitude, but only if the service was continuous for 365 days or more.

Item 28 on Form DD‐214 will contain narrative reasons such as ʺHardshipʺ or ʺDisability Aggravatedʺ other similar entries if the claimant is eligible. See ¶1573 for a complete list of qualifying reasons for each branch of the service. If the narrative reason in Item 28 is on the list, the claimant is considered to have fulfilled the time served requirement of the service.


SPECIAL DETERMINATIONS 1572 (D) 1572 (D)

(D) Period of Service Not Creditable Military Service When a claimantʹs period of military service does not meet the requirements for creditable military service as listed in (C), the individualʹs Federal wages can never be used to establish UCX entitlement. Disqualify the claimant pursuant to Title 5 U.S.C. 8521(a). Issue Form 3720 [Notice to Claimant of Disqualification], crossing out the words ʺMassachusetts Unemployment Insurance Law, Chapter 151A, General Lawsʺ and replacing them with the words ʺTitle 5 U.S.C. 8521(a)ʺ.

Form 3720 Explanation: You do not meet the criteria pursuant to §8521(a) of Title 5 as amended for unemployment compensation for ex‐service members (UCX) because (you were not discharged under honorable conditions) (as an officer you resigned for the good of the service) (you were discharged or released before completing your first full term of active service) (your active duty in reserve status was not continuous for 90 days or more).

Also, add this note in the space directly below the reason for disqualification:

ʺNote: If you believe any military service information on which this determination is based is incorrect or substantially incomplete you may request reconsideration as follows: (a) Information obtained from your separation papers: Send a request directly to your branch of service and notify this local office. (b) Information supplied by the Veterans Administration: File a request in this office for transmittal to the Veterans Administration.ʺ

No disqualification pursuant to §25(e) [Voluntary Leaving and Misconduct] should be imposed due to separation from military service. However, apply these provisions, as well as all other disqualifying provisions of state law, to separation from civilian employment after military service.

Note: This is a nonmonetary determination and workload credit can be taken.


SPECIAL DETERMINATIONS 1572 (E) 1572 (E)

(E) Nature of Claim Filing and Nonmonetary Determinations 20 CFR §614.6(d) became effective October 17, 1988. This regulation relates to the processing of claims for Unemployment Compensation for Ex‐Service members. 20 CFR 614.6(d)(2) reads as follows:

A notice of claim filing and subsequent notices of monetary and nonmonetary determinations on a UCX claim shall be sent to each federal military agency for which the individual performed military service during the appropriate base period, together with notice of appeal rights of the employers are given such notices pursuant to state law and practice unless an alternative mechanism is established by the Department of Labor in lieu of such notices.

1. The UI Automated System has been programmed to automatically send out the notices of claims filed via the Form 1062, [Request for Wage and Separation]. Timeliness is not an issue.

2. Notice of all nonmonetary determinations will be mailed to the appropriate branch of the service, i.e., Form 3720, [Notice of Claimant of Disqualification], and a Form 124, [Notice of Approved Claim]. A nonmonetary determination will be mailed only if a protest is received from the branch of service.

3. Determinations will be mailed to the military addresses:

U.S. Army (MX 801) Attn: Glenda Kelly DFAS‐Indianapolis Army Military Pay Operations Unemployment Compensation Team 8899 E. 56th St. Indianapolis, IN 46249

Navy (MX 802) Navy Personnel Command (NPC‐312) Attn: Karen Stanton, UCX Liaison Officer 5720 Integrity Drive Millington, TN 38055‐3120

Marine Corps (MX 804) DIAS‐KC Infra‐Government Accounts Division (ALI) 1500 E 95th Street Kansas City, Missouri 64197‐0001


SPECIAL DETERMINATIONS 1572 (E) 1572 (H)

Air Force (MX 803) HQ AFPC/DPPTF Attn: Gail Weber 550 C Street West, Suite 37 Randolph AFB, TX 78150-4739

Coast Guard (MX 805) ATTN: Valeria Smith 4200 Wilson Blvd., Suite 1100 Arlington, VA 22203-1804

NOAA (MX 806) Attn: Steve Eisenberg NOAA Commissioned Personnel Center 1315 East-West Highway, Rm 12100 Silver Spring, MD 20910-3282

(F) Processing the UCX Claim If the UCX claimant is approved, send a copy of the DD‐214 copy 4 to UI Special Programs. All other materials including batch material should be retained in local office in accordance with record retention schedule.

(G) Period for Which Benefits are Payable When an ex‐service member reports to file for unemployment compensation, a claim must be taken and filed at that time. The Massachusetts waiting period week will be served during the first weeks of unemployment.

The ex‐service member is entitled to the same number of week claimants are entitled to pursuant to the Massachusetts Unemployment Insurance Law.

(H) Appeals All issues arising in connection with UCX claims may be appealed in the same manner, and to the same authorities, as regular UI claims. In the case of UCX claims, however, the findings of the Federal Military Service are final and conclusive.

If a claimant believes that incorrect or incomplete information provided by the military adversely affected his or her determination, advise the claimant to seek a reconsideration by going directly to his or her branch of military service listed below. This is the purpose of the ʺnoteʺ on the 3720 as indicated in §1572(D). The claimant should notify DUA that such a request was made, and continue to sign by mail until there are 30 potential compensable weeks.


SPECIAL DETERMINATIONS 1572 (H) 1572 (H)

Tell the claimant that, when appealing in writing to one of the service branches, information on procedures and evidence to be submitted can be obtained from the service officer of any veteran’s organization, a Department of Veterans Affairs contact office, the State Veterans Affairs Commission or bureau representative.

Air Force (MX 803) HQ AFPC/DPPTF Attn: Gail Weber 550 C Street West, Suite 37 Randolph AFB, TX 78150-4739 Army (MX 801) Army Board for Corrections of Military Records 1941 Jefferson Davis Highway Crystal Mall 4 Arlington, VA 22202-4508 Coast Guard (MX 805) Commandant (G-PE-3/TP45) U.S. Coast Guard 2100 - 2nd Street, S.W. Washington, D.C. 20593 Marine Corps (MX 804) Commandant U.S. Marine Corps (Code MMSB-10) 2008 Elliot Road Quantico, Virginia 22134-5030 Navy (MX 802) Bureau of Naval Personnel PERS-24 2 Navy Annex Washington, D.C. 20370-3240 National Oceanic & Atmospheric Administration (MX 806) U.S. Department of Commerce Attention: NC1, NOAA Rockville, Maryland 20852


SPECIAL DETERMINATIONS 1572 (I) 1572 (L)

(I) Re‐Employment Rights Under the provisions of several Federal laws, an ex‐service member has re‐employment rights with his or her civilian employer prior to entering the service. Do not disqualify a UCX claimant who fails to exercise these rights pursuant to §25(c), but be sure that the claimant is fully available for work pursuant to the provisions of §24(b).

(J) Duplicate UCX Claim A claimant files a UCX claim against Massachusetts and is paid benefits. Later it is discovered that he or she filed a previous UCX claim in another state. The Massachusetts claim should be voided and an overpayment established because benefits are paid by the state in which the claim was filed first. An IB‐1, initial interstate claim, should be taken and back‐dated to the date the duplicate claim was filed. IB‐2ʹs should be taken for each week the claimant signed on the voided claim. The liable state shall be requested to withhold benefits in the amount of the overpayment and forward such benefits to Massachusetts to offset the overpayment.

(K) National Oceanic and Atmospheric Administration Claimants As of March 25, 1980, officers of the Commissioned Corps of NOAA ‐‐ there is no Reserve Component‐‐ are entitled to file for UCX benefits. Use standard UCX forms and procedures.

However, when NOAA separates a commissioned officer, he or she is issued NOAA Form 56‐16 [Report of Transfer or Discharge], which you should use to determine UCX eligibility. If you cannot make a UCX determination using this form, send a Form ETA 8‐43 to obtain the necessary additional information.

(L) UCX Pensions To adjudicate a pension issue for UCX claimants, refer to section 1444(L) for the addresses necessary to complete Form 5441. These addresses differ from those noted in 1572: Procedures.

If an UCX claimant is receiving a pension related to military service, it must be determined whether or not the pension payments are deductible from the UI claim.

There are 2 sources of pension payments related to military service:

A. A military pension from the appropriate branch of service based upon the duration of service, level of compensation, etc.

A military pension paid by the Branch of Service, whether or not a disability is involved is deductible from an individualʹs unemployment insurance benefits.

B. Service‐connected disability compensation paid by the Department of Veterans Affairs.


SPECIAL DETERMINATIONS 1572 (L) 1572 (N)

Compensation from a military service‐connected disability paid by the Department of Veterans Affairs would not require a deduction because it is based on the percentage of disability sustained by the individual rather than on the duration of service, or level of compensation, etc.

(M) How to Locate Pension Information on DD‐214 Because pension deductions apply to pension benefits paid by the ex‐servicememberʹs former branch of service, in most instances, this information can be ascertained from the individualʹs DD Form 214, Certificate of Release or Discharge from Active Duty. There are 3 informational items on a DD‐214 that can potentially identify a military retiree whose pension is deductible from UI benefits. They are:

1. Item 18. Remarks ‐ May contain retirement information, such as, ʺPlaced on retired list,ʺ ʺEffective date of temporary retirement,ʺ ʺRetired gradeʺ etc.

2. Item 23. Type of Separation ‐ Often contains a retirement indicator in the type of separation from the branch of service, e.g., ʺRetired,ʺ ʺRetirement,ʺ ʺTemporary Disability Retired List.ʺ

3. Item 28. Narrative Reason for Separation ‐ Usually this block is used to provide separation information about individuals that have not completed the first full term of service. There are instances when a narrative reason indicates a potential retirement situation. A narrative may say ʺSufficient Service for Retirementʺ, or ʺRetirement: Disability, Temporary.ʺ ʺDisability, Temporaryʺ in Item 28 is an approvable reason for separation and, when it is listed, Type of Separation (Item 23) may reflect some type of retirement status.

Since the information obtained on DD‐214 may vary from case to case, it is important to review Items 28, 23 and Item 18 for a pension indicator.

Any one or a combination of these 3 items on a DD‐214 should alert UI staff to a potential pension issue (Issue 15). The issue should be identified and data‐entered at the time the initial claim is filed.

(N) How UI Staff Can Verify the Status of Individuals Applying for Pensions from the Department of Veterans Affairs Upon request, the Department of Veterans Affairs will issue a letter to the claimant confirming the status of a disability award/application.



1573 NARRATIVE REASONS FOR SEPARATION

The following are Acceptable Narrative Reasons for Separation meeting the requirements of 5 U.S.C. 852 1(a)(1)(B)(ii)(I) through (IV) and 20 CFR part 614. New Acceptable Narrative Reasons for Separation are followed by an asterisk. -Attend Civilian School -Completion of Required Active Service -Condition, not a Disability -Condition, not a Disability; Involuntary in lieu of a Board* -Conditions, not Disability; Resignation -Defective Enlistment Agreement -Disability, Aggravation* -Disability, Aggravation (Enhanced)’ -Disability, Existed Prior to Service, Med Board -Disability, Existed Prior to Service, Med Board (Enhanced) -Disability, Existed Prior to Service, PEB -Disability, Existed Prior to Service, PEB (Enhanced) -Disability, Not in Line of Duty* -Disability, Not in Line of Duty (Enhanced)* -Disability, Other -Disability, Other (Enhanced) -Disability, Permanent -Disability, Permanent (Enhanced) ‐Disability, Severance Pay ‐Disability, Severance Pay (Enhanced) ‐Disability, Severance Pay, Combat Related ‐Disability, Severance Pay, Combat Related (Enhanced) ‐Disability, Severance Pay, Non‐Combat ‐Disability, Severance Pay, Non‐Combat Related (Enhanced) ‐Disability, Temporary ‐Disability, Temporary (Enhanced) ‐Erroneous Entry (Other) ‐Force Shaping (Board Selected)* ‐Force Shaping‐VSP (Voluntary Separation Pay ‐Hardship; General* ‐Hardship; Resignation Allowed due to Support of a Dependent* ‐Hardship; Servicemember Initiated due to Dependency* ‐Holiday Early Release Program ‐Insufficient Retainability (Economic Reasons) ‐Intradepartmental Transfer ‐Medal of Honor Recipient ‐Miscellaneous/General Reasons ‐Parenthood or Custody of Minor Children



‐Pregnancy or Childbirth ‐Reduction in Force ‐Surviving Family Member

Narrative Reasons for Separation, which require 36 Continuous Days of Service BEFORE being applicable:

‐Adjustment Disorder* ‐Alcohol Rehabilitation Failure ‐Conscientious Objector ‐Disruptive Behavior Disorder* ‐Drug Rehabilitation Failure ‐Ecclesiastical Endorsement ‐Erroneous Entry (Alcohol Abuse) ‐Erroneous Entry (Drug Abuse) ‐Failure to Complete a Commission or Warrant Program ‐Failure to Complete a Course of Instruction ‐Homosexual Conduct (Acts)* ‐Homosexual Conduct (Marriage or Attempted Marriage) ‐Homosexual Conduct (Statement)* ‐Impulse Control Disorder* ‐Mental Disorder (other)* ‐Military Personnel Security Program ‐Non‐retention on Active Duty ‐Non‐selection, Permanent Promotion ‐Non‐selection, Temporary Promotion ‐Personal Alcohol Abuse ‐Personal Drug Abuse* ‐Personality Disorder ‐Physical Standards ‐Secretarial Authority ‐Substandard Performance ‐Unsatisfactory Performance ‐Weight Control Failure ’ (Enhanced) indicates SPD codes used by the Disability Evaluation System Pilot that reflect the categorization of combat‐related disabilities directed by Public Law 110‐181 to be used on DD Form 214 for all servicemembers with disabilities incurred in combat‐related operations. Note: In previous UIPLʹs Miscellaneous/General Reasons pertained only to separations under the Army National Guard Combat Reform initiative (ANGCRI). This provision has been expanded to all military branches.



1580 WORKERʹS COMPENSATION RECIPIENTS

1581 STATUTE §25(d) ʺNo waiting period shall be allowed and no benefits shall be paid to an individual pursuant to this chapter for...(d) Any period with respect to which he is receiving or has received or is about to receive compensation for total disability pursuant to the workerʹs compensation law of any state or pursuant to any similar law of the United States, but not including payments for certain specified injuries pursuant to §36 of Chapter 152; or payments for similar specified injuries pursuant to workerʹs compensation laws of any state or pursuant to any similar law of the United States.ʺ

1582 PRINCIPLES

Under the provisions of §25(d) a claimant is ineligible for unemployment insurance when he or she receives total disability benefits for industrial injuries pursuant to the Workerʹs Compensation Act (or similar state or federal laws), with the exception of certain injuries settled by lump‐sum payments pursuant to §36 of the Act.

A partially disabled claimant, on the other hand, may collect unemployment benefits, but the UI benefits reduce the amount of his or her partial workerʹs compensation disability benefits on a dollar‐for‐dollar basis. Those receiving partial workerʹs compensation benefits are required to file for UI benefits within 60 days (upon written request) or lose their partial workerʹs compensation benefits altogether. In other words, unemployment benefits are intended to be the primary insurance payment, while partial workerʹs compensation disability benefits provide supplementary coverage.

The Workerʹs Compensation Act, MGL Chapter 152, is administered by the Department of Industrial Accidents, but the law does not require this Department to monitor the reduction of partial payments as they are offset by UI benefits.


SPECIAL DETERMINATIONS 1582 1583 (C)

Therefore, you should include in the claimantʹs statement of facts a notation that the claimant has authorized DUA to release the amount of his or her UI checks to the Workerʹs Compensation Insurer. The benefit checks are paid directly to the claimant.

Workerʹs Compensation benefits are not wages and are not taxable. However, the claimant will receive a Form 1099 for the amount of UI benefits paid in the calendar year because UI benefits are considered taxable income. The weekly workerʹs compensation payments are applicable to a 7‐day week. This is important to remember if the workerʹs compensation payments begin or end mid‐week.

1583 PROCEDURES

(A) Base Period Extension Refer to Extension of Base Period Due to the Receipt of Worker’s Compensation in SRH 2000.

(B) Adjustment Every claimant who has received, is receiving, or will receive total disability pursuant to any workerʹs compensation law should be referred to Adjustment where a statement of facts will be taken.

(C) Total/Partial Disability If a claimant is receiving payments for total or partial disability you should cover the following items in the fact‐finding statement:

The time the claimant began receiving total or partial disability payments; For partial disability only ask for a statement that the claimant is able to work on at

least a part‐time basis (with a reasonable accommodation, if necessary). A Health Care Providers Statement of Capability, Form 268, is unnecessary here because the Workerʹs Compensation Insurer has already determined that the claimant is able to perform some type of work. If the claimant states that she/he is not able to work at all, then the claimant will be subject to disqualification pursuant to §24(b).

For partial or total disability, obtain the name of the insurance company, the insurance adjuster, and the insurance companyʹs address and phone number. Contact the insurance company to obtain details of insurance payments.

For partial disability only, ask for a waiver statement authorizing DUA to release the amount of the claimantʹs UI checks to the Workerʹs Compensation Insurer.

Annotate the claimant’s fact‐finding statement with the following: ʺClaimant has authorized DUA to release the amount of the UI benefit payment to the insurance company handling the workerʹs compensation claim.

Send a Notice to Claimant of Disqualification, Form 3720, to all claimants who are receiving, or will receive total disability payments pursuant to any workerʹs compensation law.



Form 3720 Explanation: Because you are receiving total disability payments pursuant to the Workerʹs Compensation Act, you are subject to disqualification pursuant to §25(d) of the Law.


(A) Disqualification for Total Disability Payments A claimant who is receiving or is about to receive Workerʹs Compensation (except MGL. Chapter 152 §36 lump‐sum settlements) for temporary or permanent total disability should be disqualified pursuant to §25(d) for the period covered by the payments, regardless of whether the payments are less than his or her benefit rate. When a claimant receives Workerʹs Compensation for total disability for four or more days in a seven‐day week, disqualify him or her pursuant to §25(d).

Form 3720 Explanation: You are not eligible to serve a waiting period or receive benefits for any period during which you (have received) (are receiving) (will receive) total disability Workerʹs Compensation payments pursuant to the above‐cited section of the Law.

(B) Partial UI Benefits for Part of Week Partial UI benefits may be payable when the Workerʹs Compensation payments either begin or end during a week, and the claimant is otherwise eligible. Deduct one‐seventh (14.3%) of the Workerʹs Compensation from the weekly benefit rate for each day of the week involved, including Saturday and Sunday. [Note: Similar to a lost time deduction, a claimant’s statement of facts should be taken and a Notice to Claimant of Disqualification, Form 3720, issued if the claimant does not accept the reduction in the benefit amount for the week in question.

(C) Specific Compensation Awards If you determine that the claimantʹs workerʹs compensation benefits are payable only pursuant to §36 (lump sum) of the Workerʹs Compensation Act, he or she is not subject to disqualification pursuant to §25(d) of the Unemployment Insurance Law. However, the specific injury which qualifies the claimant for payments pursuant to §36 may also render him or her unable to look for and perform work, thus failing the §24(b) Able and Available tests. Note that a claimant with a disability must be able to work on at least a part‐time basis, must be available for such work and conducting an active search for suitable work.


SPECIAL DETERMINATIONS 1584 (C) 1584 (D)

If a claimant receives a lump‐sum settlement for Workerʹs Compensation which does not apply to a specific period, he or she will not be subject to disqualification, including the week during which the payment was made.

Note: Effective December, 1991, pursuant to MGL Chapter 152 §48(4), the acceptance of lump sum workerʹs compensation settlement creates a presumption that the employee is physically incapable of returning to work with the employer for a specific period of time where the alleged injury occurred. Such presumption shall continue for a period of one month for each fifteen hundred dollar amount included in the settlement. You must engage in fact finding to determine whether the claimant is physically capable of returning to work on at least a part‐time basis (with a reasonable accommodation if necessary). If not, then the claimant is subject to disqualification pursuant to §24(b).

(D) Benefits Payable During Pending WC Claim If otherwise eligible, a claimant who has applied for a total disability Workerʹs Compensation benefit may continue to receive unemployment benefits while action on his or her claim is pending. However, the claimant must:

Notify DUA if and when he or she receives a payment in settlement of the claim; and Agree to reimburse DUA for the overpayment if disability payments are

subsequently approved retroactively.

The claimant’s fact‐finding statement should include a notation that the claimant has been informed of the need to notify DUA if a payment in settlement of the Worker’s Compensation claim is received and of the requirement that any benefits paid for the period covered by the settlement must be repaid.

In all cases involving pending Workerʹs Compensation claims, ask the insurance company to notify DUA when the final settlement is made, the amount of the settlement, and the period (if any) to which the payment applies.



1590 DUA TRAINING OPPORTUNITIES

1591 STATUTE §30(c) ʺIf in the opinion of the Commissioner, it is necessary for an unemployed individual to obtain further industrial or vocational training to realize appropriate employment, the total benefits which such individual may receive shall be extended by up to eighteen times the individualʹs benefit rate, if such individual is attending an industrial or vocational retraining course approved by the Commissioner; provided, that such additional benefits shall be paid to the individual only when attending such course and only if such individual has exhausted all rights to regular and extended benefits pursuant to this chapter and has no rights to benefits or compensation pursuant to this chapter or any other state unemployment compensation law or pursuant to any federal law; provided further, that such extension shall be available only to individuals who have applied to the Commissioner for training no later than the fifteenth week of a new or continued claim but the commissioner shall specify by regulation the circumstances in which the 15 week application period shall be tolled because of the individual’s need to address the physical, psychological and legal effects of domestic violence; provided that the claimant shall begin training in the first available program which is a reasonable distance from the claimantʹs residence, as determined by the Commissioner; provided, further, that the Commissioner, in his discretion, may extend the period once for not more than two weeks for any applicant whose initial application is denied and provided, further, that any benefits paid to an individual pursuant to the provisions of this paragraph which would not be chargeable to the account of any particular employer pursuant to the provisions of §14 shall be charged to the solvency account. An individual eligible to receive a trade readjustment allowance pursuant to Chapter 2 of Title II of the Trade Act of 1974, as amended, shall not be eligible to receive additional benefits pursuant to this section for each week the individual receives such trade readjustment allowance. An individual eligible to receive emergency unemployment compensation, so called, pursuant to any federal law, shall not be eligible to receive additional benefits pursuant to this section for each week the individual receives such compensation.

The Division shall provide each claimant with written information regarding eligibility for benefits pursuant to this section, and notify claimants that any application for benefits pursuant to this section must be submitted no later than the fifteenth week of a new or continued claim.ʺ


SPECIAL DETERMINATIONS 1592 1592 (B)

1592 PRINCIPLES

(Refer to Regulations at 430 CMR 9.00) Section 30(c) of Chapter 151A allows claimants to receive UI benefits while they are in approved training to obtain employment. Claimants in DUA‐approved training need not meet availability requirements pursuant to §24(b) of the Law, are exempt from worksearch activities while attending approved training, and may refuse offers of suitable employment. Claimants may be eligible to receive an ʺextensionʺ of their UI benefit entitlement of up to 18 additional weeks (i.e., an additional entitlement not to exceed 18 times their UI weekly benefit amount), if they applied for training no later than the 15th compensable week of the claim.

(A) Eligibility for Additional (18 Weeks) of Benefits In order to be approved for the additional 18 weeks of benefits, the claimant must meet all of the requirements outlined above, and apply for an extension of benefits within fifteen compensable weeks of filing a claim.

(B) Fifteen Week Period The claimant must apply for the 18‐week extension no later than the 15th compensable week of benefits. (To ʺapplyʺ means that a completed training application Form 1622 is submitted to UI staff.)

The fifteen week period for requesting approval for additional training benefits begins with the effective date of the claim, except that in any case where an earlier effective date has been allowed, the fifteen week period for requesting approval for training shall begin with the week that the claim was actually filed. If a claimant who is not permanently separated at the time of the initial claim becomes permanently separated during the course of his or her benefit year, the 15 week period shall commence on the date the claimant becomes permanently separated. However, if any determination denying regular benefits pursuant to §39, §41, or §42 of Chapter 151A is reversed, the fifteen week period shall begin with the first compensable week following the week notice of such determination or decision was mailed to the claimant, provided that the benefit year has not expired.

There are generally two categories of claimants seeking training approval depending on the duration of the training course:

Claimants seeking only waiver of availability worksearch and suitable work requirements while collecting regular UI benefits.

Claimants seeking additional (up to 18) weeks of state unemployment benefits in addition to regular UI benefits if their training extends beyond their regular UI entitlement.


SPECIAL DETERMINATIONS 1592 (C) 1592 (D)

(C) Eligibility for Training Approval (Refer to 430 CMR 9.04) In order to receive approval to attend schooling/training while collecting state UI benefits the following requirements must be met:

The claimant must be otherwise eligible for UI benefits; The claimant must be permanently separated from employment; It must be determined that training is necessary in order for the claimant to become

reemployed; Training selected by the claimant is generally approved by DUA if: There is a high probability that the training will lead to employment; The course will be completed within 52 weeks. (If vocational training is coupled with

adult basic education, total duration of schooling may not exceed 18 months); The training program must meet a variety of other criteria as stipulated in applicable

regulations; The claimant must attend the first available course located within a reasonable

commuting distance from his or her home. Training classes must begin during the claimantʹs benefit year (i.e., prior to the BYE

date), or during the period in which such person was receiving Federal benefits if such period extended beyond the benefit year.

Claimants seeking approval pursuant to §30(c) must not attend training prior to DUA approval.

If all of the above requirements are met, the claimant may receive a waiver of the availability, UI worksearch, and suitable work requirements while attending such training.

(D) Training Program Approval Criteria (Refer to 430 CMR 9.05) A training program may be approved if it:

Provides vocational/technical or basic skills training; Is full‐time ‐‐ at least 20 class hours per week of supervised class hours for

vocational/industrial training or at least 12 credits for each semester of a college program;

Is intensive so that claimants are able to complete it in one calendar year (with a 1 1/2 year maximum limit if the program combines up to six months of basic skills plus vocational training, and the basic skills component does not exceed six months).

Has a job placement rate of at least 70 percent for graduates of the same program for the past 12 months. If requested, claimants may be required to provide evidence of current labor market demand for the occupation, such as help wanted ads from the local newspaper in the labor market area, trade magazine ads or job listings;


SPECIAL DETERMINATIONS 1592 (D) 1593 (A)

The Corporation for Business and Workforce Learning (CBWL) is funded from federal JTPA Title III monies specifically for dislocated workers. CBWL staff complete worker assessment and recommend/fund training programs for dislocated workers meeting federal JTPA guidelines.

Whenever completed documentation on worker assessment is received by DUA a claimant (if otherwise eligible), is considered to have met the §30(c) requirements with regard to the claimantʹs need for training. Moreover, training sponsored by the CBWL (JTPA Title III) must be automatically approved (regardless of whether the course appears on the DUA Training Opportunities Program (TOP) listing).

Note: If an individual receives §30(c) approval and then, fails to enter training (e.g., Title III funding not available at program start, course cancelled, or school has closed), the claimant must re‐apply for §30(c) if and when he/she becomes eligible for funding or chooses another course or training program. A new Form 1622 must be submitted by the claimant. DUA will then make a determination on the application, taking into consideration the week the new application is received. If this new application is not submitted within the first fifteen weeks of the claim, the course may be approvable but the claimant will not be entitled to an extension of benefits.

If Title III funds are not available at the time the first approved course begins, the claimant must choose to either attend the training and receive UI benefits but pay the tuition costs, or ʺwithdrawʺ their §30(c) application and re‐apply to attend another course. (If claimant is unable to attend training for reasons connected to the training provider, refer to Determinations Department).

1593 PROCEDURES

Application for approved training pursuant to §30(c) must be made in writing on a form provided by DUA. Claimants who submit completed forms to DUA shall be deemed to have ʺappliedʺ for training.

(A) Complete Application for Course The application for course approval will be deemed ʺcompleteʺ:

If course has already been approved by DUA or is a Title III JTPA program, upon date DUA receives completed application.

If course has not already been approved by DUA, all documentation and information regarding the course must be received by DUA no later than 5 working days before the start of the program, to be considered approved.


SPECIAL DETERMINATIONS 1593 (B) 1593 (D)

(B) Tolling of 15‐Week Application Period The 15‐week application period shall be tolled if any of the following conditions occur:

If the training program for which a claimant has applied cannot or refuses to reasonably accommodate an individual who is a qualified individual with a disability pursuant to the Americans with Disabilities Act (ADA), then the 15‐week period shall be tolled from the date the claimant applied to DUA until the date of the denial by DUA of the training program.

If DUA denies a claimantʹs application because the training program applied for does not meet regulation requirements and the claimantʹs opportunity for reapplying for training during the 15‐week period is thereby decreased by two weeks or more, then the 15‐week period shall be tolled from the date the claimant first applied for training until the date of DUAʹs denial.

If DUA does not provide a claimant with written information regarding eligibility for training benefits or the claimant receives erroneous information from DUA or a One‐Stop Career Center and in reliance thereof does not apply within the 15‐week period, the 15‐week period shall be tolled until the date the claimant learns of this information regarding training benefits.

If a claimant who is not permanently separated at the time of the initial claim becomes permanently separated during the course of his benefit year, the 15‐week period shall commence on the date the claimant becomes permanently separated.

The 15‐week period shall be tolled while a claimant addresses the physical, psychological and legal effects of domestic violence.

In no event shall the 15‐week period be tolled beyond the claimantʹs benefit year.

(C) Application Approval Prior to Start Date of Course Application approval shall be deemed preliminary prior to the start of a course. Final application approval occurs when the claimant attends the course and is otherwise eligible for benefits.

(D) Attending Training After Filing Claim but Prior to Approval of Application A claimant who begins a training course before final approval of the application to enter training will not be eligible for a waiver of the worksearch and availability requirements until such time as the application for the training course is approved.


SPECIAL DETERMINATIONS 1593 (E) 1593 (G)

(E) Claimant Doesnʹt Begin Training (Funding Issues) If a claimant has been approved for training but does not enter training on the original start date due to lack of anticipated funds (e.g., Title III dislocated workers), then the claimant must re‐apply for course approval when funding is available or choose another course or training program. A new Form 1622 must be submitted within the first fifteen compensable weeks of a claim for entitlement to an extension of benefits. If the subsequent application is submitted after the fifteenth week, DUA will waive the (able and available requirements, and refusal of suitable work requirement) while the claimant is in the course even though the 18 week extension will not apply.

Note: Any situations which arise due to a claimant not attending training for reasons connected with the training provider, (e.g., course cancelled, school closed) should be referred to the Determinations Department.

(F) Attending Training Before Filing for UI Individuals who are enrolled or attending full‐time training prior to filing an initial or additional claim for UI benefits must submit an application for §30 approval as soon as possible. These claimants should be referred to a TOP specialist the day the claim is filed so that an application can be prepared and issued for completion.

Claimstakers will create the appropriate issue records at the time of filing. Benefits will not be payable until/unless an approving determination results from the §30 application.

Individuals who enroll in training prior to filing a UI claim, and report their attendance at training when the initial claim is filed or when the first CERT is submitted will not be subject to disqualification for any intervening weeks between application and approval. (G) Application Made After the Fifteenth Compensable Week DUA is required to provide each claimant with information regarding the §30(c) Training Opportunities Program and the requirement to apply by the fifteenth compensable for the 18 additional weeks of benefits. Therefore, any claimant who applies for compensable week §30(c) approval after signing for the fifteenth compensable week must be referred to a claim adjudicator. If, after fact finding, you determine that the claimant received the Training Opportunities Program fact sheet or call center information booklet ‐‐ ʺUnderstanding Unemployment Insuranceʺ the claimant will be determined ineligible to receive the additional 18 weeks of benefit credit, unless you determine that the application is late because the claimant received erroneous information from DUA or a One‐Stop Career Center.


SPECIAL DETERMINATIONS 1593 (H) 1593 (I)

(H) Enrollment After Filing a Claim Under current regulations, a claimant who enters a training course prior to approval pursuant to §30, is generally not eligible for benefits while in such training prior to the approval of the course. The claimant is not eligible for approval pursuant to §30 and is considered not to be available for work pursuant to §24(b) unless the claimant indicates that he or she is available for full‐time work, is actively seeking full time work and has a prior history of working full‐time while attending school full‐time. In those situations in which a claimant filed a claim, then entered a training program prior to applying or receiving approval pursuant to §30, the individual is subject to disqualification for any interim weeks between the date of beginning training and the date of the §30 approval. If an individual has already received benefits for any interim weeks, the notice of disqualification should be issued on Form 3727‐B. Use the following explanation on Form 3720 (or Form 3727‐c), citing §24(b).

Form Explanation 3720: Because you were in attendance at a training program prior to approval, you do not meet the availability requirements of the above‐cited section of the Law.

(I) Two‐Week Application Extension A two‐week extension to re‐apply for TOP approval after a selected course has been denied may be available:

If a claimant applies for training during or prior to the 15th compensable week the application is denied because the course was denied, the claimantʹs application period may be extended once for an additional two week period to allow the claimant to select other approvable training. The two week application extension period will consist of the first two calendar weeks following the week in which the claimant receives in hand or is mailed a denial pursuant to §30(c), or the first two calendar weeks following the fifteenth compensable week, whichever is later.

This two‐week extension following a course denial is only available to those claimants deemed to be in need of training. The issue of whether or not a claimant is in need of training will be noted on Form 1622.

Example: A claimant applies for training approval pursuant to §30 during the week ending during the eighth compensable week of the claim. The application is denied because the selected training course does not meet the standards required by 430 CMR 9.05, and such denial is issued during the twelfth compensable week. Assuming continuous signing and eligibility, the individual may select another course for approval and reapply no later than two calendar weeks following the fifteenth compensable week.


SPECIAL DETERMINATIONS 1593 (J) 1593 (L)

(J) Course Denials Applications submitted under the following conditions will result in a course denial and should be referred directly to the appropriate CAU:

Missing start and completion dates. Missing training facility agreement.

These conditions represent the only course denials to be determined by a claim adjudicator. All other course denials will originate in the TOP Unit following review in accordance with established procedures.

(K) Claimant has Recall Date If the claimant has a recall date, then he/she is not considered permanently separated, is not in need of training to obtain employment, and is not eligible for §30 benefits.

However, if the claimant has a definite recall date and the claimant has demonstrated a prior history of full‐time employment while attending full‐time school immediately prior to filing for benefits, the claimant should be referred to adjustment staff for adjudication and, in some cases, approval pursuant to §24(b).

If the claimant has a definite date of recall but prior to filing the initial or additional claim had not been employed on a full‐time basis while attending full‐time training, then the claimant has not demonstrated an ability to pursue full‐time training and employment simultaneously. The claimant may not be entitled to approval pursuant to §24(b).

(L) Claimant is not Recalled as Scheduled If a claimant has been approved for benefits pursuant to §24(b) while attending full‐time training and claims benefits for a week beyond the recall date (which must be recorded on the system), the system will reject the signings and add them to the local office signing rejected error list. This list is obtained daily via the QERROR transaction.

The claimant will be sent Message #5, which informs the claimant that they have submitted a claim for benefits while failing to report earnings via the CERT.

Note: If the claimant returned to work during the week claimed, then earnings should be reported and the signing record updated. A final payment may be issued once the gross earnings amount is added to the signing record for the week.

If the employer has not recalled the claimant to work as previously scheduled and the claimant wishes to continue claiming benefits, then benefits will be interrupted pending submission of an application for §30 approval.


SPECIAL DETERMINATIONS 1593 (M) 1593 (O)

(M) Leaving Part‐Time Work to Enter Section 30 Training There is a provision in the law which allows, under very specific circumstances, an individual to leave a job to enter training and still be approved for benefits. An individual who a part‐time job either in his lag period or his benefit year, collects partial benefits, applies and receives approval to attend a training course may quit his part‐time work in order to enter the training

and not be disqualified from receiving benefits. The part‐time work must have been obtained in either the lag period or benefit year and the claimant must have received approval for training pursuant to §30 before quitting the part‐time job. The fact finding must clearly document the date of §30 approval and the date of resignation to ensure that the claimant meets the criteria outlined above, that is, that the sole reason for the quit was to enter approved training. Separation under these circumstances may be approved pursuant to §25(e)(1). The following explanation would be used on Form 124 (if a timely protest was received).

Form 124 Explanation: The claimant left part‐time employment to enter approved training. Inasmuch as the employing unit is not the most recent base period employer, the claimant is not subject to disqualification pursuant to the above‐cited section of the Law.

(N) Leaving Work Obtained During Semester Breaks Claimants who were enrolled and attending classes in a §30 approved training program during one academic year/term and leave employment obtained between years/terms to resume training may be approvable per §25(e) in some cases.

Several factors must be considered, among them:

The occupation for which the claimant is being trained and the occupation in which employment was secured between academic years/terms.

Whether the claimantʹs leaving was to resume attendance in training rather than leaving for another reason or discharge.

The date on which leaving of work occurs in relation to the date on which training attendance resumes.

(O) Training Breaks of Less Than Three Weeksʹ Duration Claimants may be paid benefits during pre‐scheduled breaks within a semester or other similar breaks that do not exceed three weeks, if the claimant attended training immediately before the break and will be in attendance immediately after the break.

Claimants may be paid benefits during pre‐scheduled breaks within a semester or between semesters that do not exceed three weeks under the following conditions:


SPECIAL DETERMINATIONS 1593 (O) 1593 (P)

For breaks of less than a week, the claimant must have attended training during the days of the week for which training was scheduled, or must have been eligible for benefits (i.e., AI) or partial benefits (lost‐time) for the partial week of training and must attend training or be eligible for benefits or partial benefits for the week following the break.

For breaks of more than one week but not exceeding three weeks, the claimant must have attended training during the week preceding the break, or must have been eligible for benefits (i.e., AI) or partial benefits (i.e., lost‐time) for the week preceding the break and must attend training or be eligible for benefits or partial benefits for the week following the break. If a claimant did not attend training immediately before the break, or for any reason will not attend training immediately after the break, the claimant will not be eligible for benefits during the period encompassing the break and any additional absence. If the break is less than three days, the claimant will be subject to a lost‐time charge for the break and any additional absence of less than three days during a week. For breaks of three days or more, the claimant will be subject to disqualification for the period of absence and the break period.

In the above circumstances, the claimant will be subject to disqualification pursuant to §24(b) for any period encompassing the break and any additional absence. Use the following explanation on Form 3720 citing §30(c):

Form 3720 Explanation: Because you did not attend training immediately preceding a break (immediately after the break) you do not meet the requirements of the above‐cited section of the Law.

(P) Breaks of More Than Three Weeks Claimants may receive UI (from the original benefit credit) during a break in excess of three weeks, if the individual conducts an active worksearch as required pursuant to §24(b) and applies for and accepts suitable work pursuant to §25(c). The waiver of worksearch and suitable work requirements is not available to a claimant during a break that exceeds three weeks. A claimant may not receive RED benefits for any weeks of a break period of more than three weeks. Use the following explanation on Form 3720:

Form 3720 Explanation: Because you are not in attendance at training during a break in excess of three weeks, you are not eligible for benefits pursuant to §30(c) and do not meet the availability requirements of §24(b).


SPECIAL DETERMINATIONS 1593 (P) 1593 (T)

If the claimant has remaining regular UI benefit credit and the benefit year has not expired, then these benefits are potentially payable. The claimant should be issued appropriate forms for documentation of worksearch activities and reminded that the worksearch provisions of §24(b) and the suitable work provisions of §25(c) will apply for weeks during which the claimant is no longer attending training. Review the minimum worksearch requirements with the claimant.

(R) Absence Due to Illness Eligibility for benefits while in approved training is dependent upon continued attendance at the training course. If an individual is absent from training due to illness or disability the claimant may receive approved illness for not more than three weeks within the benefit year, including any weeks of approved illness paid prior to entry into the training period.

(S) Absence for Other Reason If a claimant in approved training is absent for three or more days in a week and is not eligible for a week of approved illness, he/she is not eligible for benefits for the week and is subject to disqualification pursuant to §30(c) and §24(b). In such cases, use the following explanation on Form 3720:

Form 3720 Explanation: Because you were not in attendance at approved training during three or more days during the week ending __/__/__, you do not meet the requirements of the above‐cited section of the Law.

(T) Lost‐Time Charges If a claimant in approved training is absent from training for less than three days during a week, he/she will be charged with lost‐time if:

The claimant was absent due to illness or disability and has exhausted the three weeks AI allowed;

The benefit year is expired and, therefore, the claimant is no longer eligible for AI or; The claimantʹs absence was for reasons other than illness or disability.

Lost‐time shall be computed at 4% of the claimantʹs weekly benefit rate for each hour lost. If the claimant was absent for less than one day, lost‐time will be determined on a pro‐rated basis, using as a basis for such determination an eight hour day and a five day week.

For example, if the claimant was scheduled to attend for five hours on Monday but missed all five hours, pro rate lost‐time at eight hours.


SPECIAL DETERMINATIONS 1593 (U) 1593 (Z)

(U) Claimant Discontinues School Prior to Course Completion In the event that the claimant discontinues attendance at a previously approved §30 training program, the automated system claim record must be updated and the claimantʹs continued eligibility for benefits must be reviewed.

(V) Separation Issues Separation issues must be resolved before claimantʹs entitlement to benefits pursuant to DUA Training Opportunities can be considered. However, if a claim is approved, the claimant is entitled to participate in DUA Training Opportunities pending the appeal. Refer to the voluntary leaving or misconduct section of the Handbook.

(W) Employer Charges Extended benefits payable pursuant to DUA Training Opportunities are charged to the Solvency Account, if the employer(s) is a contributory employer. If the employer(s) is a reimbursable employer, the employer will be liable for the full amount paid pursuant to DUA Training Opportunities. If there are both contributory and reimbursable base period employer(s) the reimbursable employer will be liable for a portion of the extended benefits paid pursuant to DUA Training Opportunities.

(X) Residue Payment The residue of claimantʹs benefit credit can be combined with his/her first RED payment (not to exceed the claimantʹs benefit rate).

(Y) EB Benefits When EB is ʺonʺ, EB benefits will be payable before Retraining Extended Duration benefits (RED) pursuant to DUA Training Opportunities will become payable.

(Z) FE and UCX Claims On UCX and FE claims, benefits paid pursuant to DUA Training Opportunities are charged to the Federal employer. Therefore, if payment on UCX and FE claims is ever stopped due to lack of Federal funds, claimants collecting extended benefits pursuant to DUA Training Opportunities (on these claims) could not continue to collect.


SPECIAL DETERMINATIONS 1593 (AA) 1593 (AA)

(AA) TAA Eligible Client A TAA eligible client who is exhausting regular UI and wishes to apply for training, or is attending training, or has completed training, may file an application for TRA. This is accomplished by filing Form 1667, ʺApplication for Trade Adjustment Assistance Services and Benefitsʺ.

The client will not have a choice as to whether to apply for either the §30 retraining extension or basic TRA. He or she must receive TAA training approval and apply for basic TRA. If still in approved training after exhausting basic TRA, the client may apply for up to 26 weeks of additional TRA benefits.

After exhausting any basic and additional TRA to which he or she was entitled, the client may then apply for §30 retraining extended benefits if still in training and the benefit year has not expired. Very few clients, however, are expected to qualify for §30 benefits after exhausting basic and additional weeks of TRA because their benefit year will usually have expired by then.