If a claimant is disqualified from receiving benefits, she or he remains disqualified indefinitely, and until he or she has had eight weeks of work and in each of said weeks earned at least his or her weekly benefit amount. G.L. c. 151A, § 25(e).

Note 1:  If your client is unable to requalify for UI due to low wages which are less than her prior weekly benefit amount, the disqualification lasts until the end of the benefit year. King, Deputy Director of the Div. of Employment and Training v. Wall, Boston Municipal Court, Central Division (Meagher, J., Docket No. 00221, decided 12/07/04) (reversing indefinite denial of unemployment benefits). Please contact the Employment Rights Coalition which is doing advocacy on this issue. See Introduction for contact information.

Note 2: If the claimant is initially disqualified, it is extremely important that he or she keep certifying his or her claim for benefits and work search via TeleCert or WebCert. Doing so establishes that the worker has met job search requirements on a continuous basis (see Question 6). Failure to do so may jeopardize the right to receive retroactive benefits in the event of the subsequent determination of eligibility. According to DUA, all applicants are informed of this requirement initially, but many claimants do not know that they are supposed to continue certifying. Additionally, DUA may have failed to inform a claimant of this requirement in his or her primary language. G.L. c. 151A, § 62A. If that is the case, the claimant should be permitted to file the weekly certifications late, without penalty.

Reconsideration of a Claim After the Claimant Has Begun Receiving UI

G.L. c. 151A, § 71 allows for reconsideration of any DUA determination, within certain time frames and conditions.  The criteria and procedures for a party to request a reconsideration, or for the Director to reconsider on her own initiative, are set out in DUA regulations. 430 CMR §§ 4.30 - 4.35. Under § 71, the Director can reconsider any determination within one year of the original determination where there has been a non-fraud error (an accidental act or failure on the part of DUA, the claimant, agent, or employer) or where there are newly discovered claimant wages from the benefit year. 

If DUA finds that benefits were allowed or denied based on a misrepresentation of facts, the reconsideration period is extended to four years.  If DUA finds that the misrepresentation was as a result of a knowing failure, then any overpayment that has resulted is subject to 12% interest under section 69(a). By statute, DUA may not waive recovery of any overpayment if there is a finding of fraud. It is therefore critical to dispute an erroneous fraud finding.  See Questions 56 and 63. Note: advocates should check to ensure that DUA has conducted an independent analysis of whether there was a knowing misrepresentation; DUA has issued fraud determinations without doing the necessary factual inquiry.

When DUA commences a reconsideration of a claim, it notifies the claimant by sending a form 3733, Notice of Claim Discrepancy.  If the claimant is already receiving UI, benefits are continued to the Saturday prior to the date of the notice. The claimant must have 14 days for an opportunity to rebut the new evidence or allegations before benefits are terminated. Following this fact-finding, DUA issues a form 3727B- Notice of Redetermination and Overpayment.  430 CMR §§ 11.01-11.10.

A DUA Memorandum from March, 2010 provides a procedure to ensure that benefit payments are not interrupted pending a redetermination of eligibility in cases where new issues are created based on the receipt of a late protest from an interested party employer.  When the claimant’s eligibility is re-evaluated based on new information, DUA must issue a Notice of Claim Discrepancy and must continue to pay benefits until a determination is made.  This protection exceeds regulatory requirements allowing DUA to stop benefits pending a redetermination.  This Memorandum is available at the Massachusetts Legal Services Website: http://www.masslegalservices.org/node/31234.

Any party may request a reconsideration. The request must be in writing, served on all parties to the original determination, and state the reasons for the reconsideration. 403 CMR § 4.33(2), (3). A request for reconsideration may be requested for (1) newly discovered evidence which suggests the previous decision may be in error; or (2) due to errors of law or other procedural irregularities underlying the original decision.  430 CMR § 4.34(1).

DUA regulations provide that a party may request that the Director reconsider a determination after 30 days and no later than one year following the original determination. 430 CMR § 4.33(4). The reconsideration will only be considered if no appeal has been taken under G.L. c. 151A, § 12 (determination whether employer is a covered employer) or § 40 (appeals to the Board of Review). 430 CMR § 4.33(1). The reconsideration does not stay any appeal periods and the decision of the Director shall be considered final. 430 CMR §§ 4.33 (6); 4.35(1).

Note:  While DUA could use this provision to correct clear errors brought to its attention, or where it has named the wrong interested party for a hearing, § 71 is primarily employed to terminate ongoing benefits of claimants.