To be personally eligible, a claimant must be

• capable of work,
• available for and actively seeking work, and
• unable to find work in his or her usual occupation or any other occupation for which he or she is reasonably suited.

G.L. c. 151A §§ 24(b), 25(c).

Capability

In order for an individual to be considered capable of work, he or she must be able to perform some type of remunerative work, even though it need not be his or her most recent or even customary occupation. For example, if an individual's physical condition has changed due to illness, injury, or disability, the most recent work performed may no longer be suitable, but he or she may still be capable of some other employment. If capability arises as an issue, a claimant may be required to submit a Health Care Provider's Statement of Capability form (see Appendix Q) indicating that the individual can work either full-time or part-time with or without an accommodation. See Service Representatives Handbook (SRH) §§ 1005(A), 1015(A), (B).

Availability

Availability is a continuing eligibility requirement-it can arise at any time in a case even if not specifically made part of a notice of disqualification. To satisfy this criterion, an individual must be genuinely attached to the workforce and be ready to accept work that is "suitable." Although the individual may not impose unreasonable restrictions to such an extent that obtaining work would be unlikely, there are certain "good cause" restrictions that have been found permissible. "Good cause" includes personal reasons such as family responsibilities or the unavailability of childcare, health or disability reasons. 

The federal Department of Labor promulgated regulations concerning when a claimant is “able and available” for work. 72 Fed. Reg. 1891 (1/16/07) codified at 20 C.F.R. Part 604. DOL employs a “withdrawal test” which “balances the need to assure genuine attachment by the individual to the labor market – which is what the [able and available] requirement is testing . . . [as this test] provides the States with greater flexibility as it permits States to pay UC to individuals who have [able and available] restrictions, such as limiting availability to part-time work, as long as the restrictions do not amount to a withdrawal from the labor market.” 20 C.F.R. 604.5(a)(1) (emphasis added).

The rules governing UI eligibility for unemployed workers who are available only for part-time work, are set out in 430 CMR §§ 4.42 through 4.45. DUA recently amended these regulations in response to a 2009 Superior Court decision invalidating prior regulations that required a claimant seeking to fulfill the availability requirement through part time work to have a prior history of part time work. See Leary v. Malmborg & Bump, Suffolk Sup. Ct., CA 07-2156D, (Cratsley, J.) 5/5/2009. 

The new regulations provide that an individual is UI eligible if: 1) she had an urgent, compelling and necessitous reason for leaving, 2) the same reason requires the individual to limit her availability for work during the benefit year to part-time work, and 3) she has not effectively removed herself from the labor force. See 430 CMR § 4.45(1)(b).

The Board of Review has held that a parent was able and available for work, even though she restricted her work search to part-time hours due to her child’s disability. The Board ruled that her child’s disability qualified her as an individual with a disability within the meaning of the DUA part-time regulation at 430 CMR 4.45(3). BR-108922 (4/30/09).

The unemployment law also provides an exception to the availability requirement during an approved illness (AI), G.L. c. 151A, § 24, which permits up to three weeks of AI during a benefit year as long as the individual has not refused an offer of suitable work. DUA has extended this exception to a period of bereavement for an individual in the immediate family or household. SRH § 1005(H).

A full-time student may be eligible under two scenarios: first, the student is in an approved DUA training program which waives the requirements that an individual be available for work, (see discussion on Section 30 training in Question 54); second, a full-time student who is not in an approved program may nonetheless be eligible if the student can demonstrate availability during work hours typical for the individual's usual occupation or that the student is willing to rearrange the school schedule in order to accept employment.

Actively Seeking Work

With a few exceptions, including claimants who have a definite recall to work within four weeks and workers in DUA-approved training programs, all claimants must be able to prove that they are actively seeking work (see G.L. c. 151A, § 24(b)). DUA has recently tightened up these requirements, requiring the claimant to show that at least three work search contacts have been made each week, the claimant has kept a written log of these contacts (noting date, employer name, how contacted, and the results), and provides the work search log to DUA on request. See SRH § 1015(C). A sample work search log is sent to claimants (see Appendix G) and can also be downloaded at http://www.mass.gov/lwd/unemployment-insur/resources/forms-and-publications/for-claimants/1750t.pdf (for regular claims). 

The requirement that a claimant be actively seeking work may be sufficiently flexible to accommodate a claimant’s particular method of looking for work. In BR-114970 (2/9/2011), the Board of Review held that where the claimant was homeless, without a personal phone, and thus unable to be “actively in touch with her recruits or temporary staffing agencies, engaging in networking, or directly applying for jobs,” the claimant met the requirements for an active work search through her use of “recruiters, temporary staffing agencies, in-person applications, networking, and internet searches.” The Board considered these methods to be reasonable in light of the claimant’s “unique circumstances.”

Additionally, for those claimants receiving federal extended benefits, proof of work search must be provided on a weekly basis.  Check the website for federal extended benefit worksearch logs.

Suitability

To be eligible for unemployment benefits, an individual needs only to be eligible for suitable work. Conlon v. Director of the Div. of Employment Sec., 382 Mass. 19, 413 N.E.2d 727 (1980).

Statutory suitability standards can be found at G.L. c. 151A, § 25(c); suitable employment is determined by taking into consideration:

• whether the job is detrimental to the health, safety or morals of the individual;
• whether the job fits the employee, based on training and experience; and
• whether the job is located within a reasonable distance from the employee's residence or prior job.

In addition, no work is deemed suitable, if:

• the position offered is vacant due directly to a strike, lockout or other labor dispute;
• remuneration, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality [the prevailing conditions of work test]; or
• acceptance of work would require the individual to join a company union or would limit the individual's right to join or retain membership in any bona fide labor organization.

The Federal Unemployment Tax Act (FUTA) requires states receiving FUTA funds to ensure through state law that "compensation shall not be denied ... to any otherwise eligible individual for refusing to accept new work ... if the wages, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality." 26 U.S.C. § 3304(a)(5)(B). This is known as the "prevailing conditions of work" test, and is codified at G.L. c. 151A, § 25(c).  The "prevailing conditions of work" test is very useful for determining whether a job is suitable, especially concerning temporary employment. See Question 38. The U.S. Department of Labor has set out detailed guidelines on how this test should be applied in the Employment and Training Administration's Unemployment Insurance Program Letters No. 41-98 and No. 41-98, Change 1 (7/19/00) available at http://wdr.doleta.gov/directives/.  See also SRH § 1131.

In considering whether or not a job is a suitable job for a victim of domestic violence, the job must be determined to be one which reasonably accommodates the individual's need to address the physical, psychological, and legal effects of domestic violence. G.L. c. 151A, § 25(c), ¶2; SRH § 1043.

If a claimant has failed to accept suitable employment, he or she may be subject to a reduction of the individual's benefit credit (i.e., a reduction of the total amount of benefits on the claim). Note: DUA applies an automatic benefit credit reduction (4 times benefit rate if the work was available for at least 4 weeks and less than 8 weeks, and 8 times benefit rate if work was available for 8 or more weeks), SRH § 1150(A). However, the statute provides that the director make a determination "from the circumstances of each case." G.L. c. 151A, § 25(c). This may leave room for an advocate to seek a smaller reduction under compelling circumstances.

Rarely is suitability a sole, separate issue; watch out also for a suitability issue on recall and voluntary quit cases.

The following are a few examples of winning "suitability" cases:

A job offer from the same employer at substantially reduced wages makes the job unsuitable, Graves v. Director of the Div. of Employment Sec., 384 Mass. 766, 429 N.E.2d 705 (1981); President and Fellows of Harvard College v. Director of the Div. of Employment Sec., 376 Mass. 551, 382 N.E.2d 195 (1978). Similarly, the Board of Review recently held that changes to a claimant’s remuneration, hours and working conditions immediately following the claimant’s hiring, rendered the job unsuitable. BR-115564 (2/24/11). 

An employee's reasonable belief that the job is hazardous to his or her health also makes the job unsuitable and, therefore, constitutes good cause for leaving the job. Carney Hospital v. Director of the Div. of Employment Sec., 382 Mass. 691, 414 N.E.2d 1007 (1981).

A reasonable belief that the job is detrimental to the health of an employee because of pregnancy also makes the job unsuitable and, therefore, constitutes good cause for leaving the job. Director of the Div. of Employment Sec. v. Fitzgerald, 382 Mass. 159, 414 N.E.2d 608 (1980).

The appellate courts have also applied a good faith standard to a UI recipient's alleged failure to seek or accept suitable work, Haefs v. Director of the Div. of Employment Sec., 391 Mass. 804, 464 N.E.2d 387 (1984), and good cause standards to a refusal of an offer of suitable work, Conlon v. Director of the Div. of Employment Sec., 382 Mass. 19, 413 N.E.2d 727 (1980).

The Board of Review found a claimant entitled to UI where she quit her job because the performance of routine duties became detrimental to her physical health where her pre-existing health condition worsened. BR-109817 (12/22/09).

A recipient who takes another job on a trial basis while receiving unemployment benefits during the benefit year will not be disqualified if she leaves that job because it turns out not to be suitable. Jacobsen v. Director of the Div. of Employment Sec., 383 Mass. 879, 420 N.E.2d 315 (1981).