This Guide is intended to simplify and answer questions about applications, eligibility, benefits and appeals in the unemployment insurance (UI) process, which in Massachusetts is operated by the Department of Unemployment Assistance (DUA). It contains citations to relevant employment law, regulations and case law as well as policies, practical information and exhibits found useful by those familiar with the system. Its aims are to assist advocates through the maze of regulation and policy and to provide advocates with the tools necessary to help unemployed workers obtain the UI to which they are legally entitled.

We strongly encourage Legal Services programs, as well as other advocates, to offer representation to low-income claimants in unemployment cases. UI is a crucial income support program for people who have lost their jobs, and representation at a UI hearing significantly increases the claimant's ability to prevail. An unrepresented claimant is at a distinct disadvantage without legal assistance: a UI hearing may very well be the claimant's first experience with the legal system, and, unlike the employer, he or she will often not have access to employment records or know how to cross-examine a former employer.

The need for UI advocates has increased in recent years, as fewer workers have job security ensured by collective bargaining agreements or statutory protections such as anti-discrimination laws. Lacking job security safeguards, these workers are now more vulnerable to periods of job loss and are often entirely dependent on UI for income support.  And with unemployment at its highest level in decades, with the availability of federal extended benefits for claimants after their state benefits have been exhausted (see Question 48), and as more employers are contesting their former employees' claims to UI, advocacy on behalf of claimants is more urgently needed than ever. Moreover, the availability of federal extended benefits increases the frequency and complexity of UI determinations. 

The legal analysis of a worker's UI claim is fundamentally different from the analysis of his or her right to employment. The issue in a UI case is not whether the employer was justified in discharging the claimant but whether UI benefits should be granted or denied. Torres v. Director of the Div. of Employment Sec., 387 Mass. 776, 443 N.E.2d 1297 (1982). The UI statute presumes eligibility unless the circumstances of a worker's separation from employment fall within a particular statutory disqualification. And as described below, section 74 of G.L. c. 151A requires that the statute be liberally construed in favor of the worker and the worker's family.

Over the last decade, many important court decisions, legislative changes, and regulatory and policy changes have, by and large, improved access to and receipt of unemployment benefits by unemployed workers.

The Supreme Judicial Court issued an important decision interpreting the term "knowing violation" of an employer's work rule to include an element of "intent," thereby ensuring that discharged claimants who do not have the requisite state of mind to violate a work rule will not be disqualified from benefits. Still v. Commissioner of the Dept. of Employment and Training, 423 Mass. 805, 672 N.E.2d 105 (1996). (See Question 13 for further discussion of required state of mind findings in rule violation cases.) Still is an important case to read: in addition to the importance of its holding, it provides a useful overview of how the court has interpreted the UI statute.

Significantly, the Still Court noted in arriving at its decision favorable to the claimant that the unemployment statute is a remedial law to be construed “liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and his family.” G.L.c. 151A, § 74. Many other court decisions have been guided by this statutory purpose in a variety of UI contexts. Pavian, Inc. v. Hickey, 452 Mass. 490, 895 N.E.2d 480 (2008); Morillo v. Division of Employment & Training, 394 Mass. 765, 477 N.E.2d 412 (1985); Emerson v. Division of Employment & Training, 393 Mass. 351, 471 N.E.2d 97 (1985); Markelson v. Division of Employment & Training, 383 Mass. 516, 420 N.E.2d 328, 329 (1984); O'Reilly v. Division of Employment Sec.,  377 Mass. 840, 388 N.E.2d 1181, 1184 (1979); Roush v. Division of Employment & Training, 377 Mass. 572, 387 N.E.2d 126, 129 (1979); Garfield v. Division of Employment Sec., 377 Mass. 94, 384 N.E.2d 642, 644 (1979); De Cordova and Dana Museum and Park v. Division of Employment Sec., 370 Mass. 175, 346 N.E.2d 699, 703 (1976); Worcester Telegram Pub. Co. v. Division of Employment Sec., 347 Mass. 505, 198 N.E.2d 892 (1964); Raytheon v. Director of the Div. of Employment Sec., 344 Mass. 369, 182 N.E.2d 293 (1962).

Advocates should be aware that UI not only can provide workers with critical income supports, but also can provide additional important benefits, such as extended benefits to pursue vocational education and training opportunities and health insurance. These benefits, discussed in more detail in Questions 53 and 54 below, can significantly increase the economic well-being of workers who have lost employment, and we encourage advocates to help workers take greater advantage of them.  Moreover, rights to extended training benefits have been greatly expanded as a result of the passage by Congress of the American Recovery and Reinvestment Act of 2009 (ARRA) and the enactment of companion legislation in Massachusetts (Chapter 30 of the Acts of 2009, An Act Mobilizing Economic Recovery in the Commonwealth).

This guide is an overview of the relevant law and regulations of the UI system. In addition to this guide, advocates should obtain and review DUA's regulations and its sub-regulatory policies promulgated in the Massachusetts Unemployment Insurance Service Representatives Handbook, also identified throughout this Guide as SRH. The SRH was last updated in 2008, and the includes some important policy changes, including a new policy on domestic violence. Information about obtaining a copy of the SRH is included under the Sources of Law section below.

An advocate involved in any DUA appeal should have knowledge of unemployment law. UI applicants whose current income fits within low‑income guidelines (generally 125% of the Federal Poverty Income Guidelines) can request assistance free of charge from various community legal services programs. The Legal Advocacy & Resource Center (LARC), which is part of Volunteer Lawyers Project, provides this referral information at 617-371‑1123 or outside the 617 area code at 1-800-342‑5297.

In addition, the Massachusetts Bar Foundation funds a Pro Bono Unemployment Representation Project through the Employment Law Unit at Greater Boston Legal Services in cooperation with the Volunteer Lawyers Project and the Massachusetts Bar Association Labor and Employment Section. Client referrals are handled through LARC. Lawyers who participate receive a complimentary copy of this Guide, training and supervision. If you are a lawyer and want to participate, call the Volunteer Lawyers Project at 617-423‑0648 or visit their website at http://www.vlpnet.org/.

In addition to this Guide there are many experienced employment advocates who would be happy to discuss case strategy and provide advice for advocates new to this field. Massachusetts is also lucky to have an active Employment Rights Coalition, which provides information concerning UI policies and strategies as well other issues impacting low-wage workers. We strongly encourage legal services and workers' advocates to participate in this coalition: send an email to Margaret Monsell at MLRI  (mmonsell@mlri.org) if you would like to do so.

Note on Related Laws and Benefits

Advocates should be aware of other laws and benefits that may affect their clients. DUA and the Department of Career Services (operating One Stop Career Centers) are covered under the Americans with Disabilities Act (ADA) and the Americans with Disabilities Amendments Act of 2008. If a client is denied services or needs an accommodation because of a disability, the advocate should consult with disability advocates for advice. Additionally, DUA and the Career Centers have a legal obligation to provide equal services to claimants who have Limited English Proficiency, (LEP) under both federal Department of Labor regulations and the Massachusetts unemployment law. See: 68 Fed. Reg. 32290 (May 29, 2003) codified at 28 C.F.R. pts. 42.101-42.412. (Department of Labor regulations implementing the Title VI prohibition against national origin discrimination affecting Limited English Proficient persons); G.L. c. 151A, § 62A. (The rights of LEP claimants have expanded in Massachusetts as a result of the settlement of a lawsuit brought by Greater Boston Legal Services. See Question 52.)

Furthermore, many clients have worked for employers covered under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. If a client's separation from work was due to the birth or adoption of a child or due to a serious health reason for either her or an immediate family member, the advocate should check to see whether the employer's discharge violated the FMLA (requirements include company size of 50 employees or more and employment of at least 1,250 hours for a year). Most employees working in companies of six or more employees in Massachusetts are also entitled to up to eight weeks of job-protected unpaid leave for birth or adoption under the Massachusetts Maternity Leave Act, G.L. c. 149, § 105D. Employees of Massachusetts employers who meet the more stringent requirements of company size and duration of employment for the FMLA may also be eligible for up to 24 hours per year of job-protected unpaid leave to participate in children's school and medical appointments, and care of elderly relatives under the Small Necessities Leave Act, G.L. c. 149, § 52D.

Workers who lose their jobs either due to plant closings (or a closing of a significant portion of the plant) or due to business closings triggered by NAFTA are eligible for additional pre-separation notice, weeks of benefits and/or training. See Question 54 for a description of rights under the Trade Adjustment Assistance program. 

Low wage workers, including UI recipients, may also be eligible for other income support programs, such as the SNAP program (formerly known as the Food Stamp program) and the Earned Income Tax Credit program. They may also be eligible for housing assistance, such as the Section 8 program and the Massachusetts Rental Voucher Program. Changes in the welfare system have forced increasing numbers of single mothers into the low-wage labor market.  Some UI claimants may be eligible for cash assistance (Transitional Aid for Families with Dependent Children, or TAFDC) while waiting for approval of their UI claims. Receiving TAFDC during this gap not only provides much needed income, it may also allow the mother to secure subsidized childcare when she does return to work. We encourage advocates to become familiar with these other potential sources of income support as part of their representation of their clients. See Appendix R for a listing of these other programs.

Massachusetts Legal Services Website: www.masslegalservices.org

An on-line version of this Guide, and much more information about the UI program in Massachusetts (including the Service Representatives Handbook and DUA Memoranda) is available to the public via the internet at the address above, under Employment, Unemployment Insurance.  Other areas of that website provide information on other anti-poverty programs and services.