45. Working and Leaving Multiple Jobs
Multiple Employers during the Base Period
When a claimant applies for UI, DUA reviews the information from all employers who have reported wages during the base period in order to calculate the weekly benefit amount and the duration of UI. Charges are made to “the accounts of the most recent and the next most recent employers in the inverse chronological order of the base period employment of the claimant.” G.L. c. 151A, § 14(d)(3).
An “interested party employer” is an employer whose employment is relevant to the determination of a claimant’s UI eligibility. By a policy change (without statutory or regulatory authority), DUA determined in 1998 that IP status would be conferred on all employers from whom a claimant had separated within the most recent 8 weeks of employment. SRH § 1710. (However, DUA regulations look at only the prior 4 weeks when determining if there should be a constructive deduction [see below] resulting from a disqualifying loss of subsidiary employment, calling into question the validity of the SRH on this point. 430 CMR 4.78 (1)(a).) The 8-week policy burdens claimants, increases the workload on the hearings department, and does nothing to protect employers’ interests. Regardless of whether an employer is an interested party employer, all base-period employers (except reimbursing employers) can still contest the charges if they can show to DUA’s satisfaction that the employee left for disqualifying reasons. G.L. c. 151A, § 14(d)(3); 430 CMR 5.05.
Workers Who Work Concurrent Full-Time and Part-Time Jobs during the Base Period
When a worker works more than one job concurrently during the base period, DUA establishes which is the primary job and which is the subsidiary job based on a comparison of a number of factors, including hours, wages, employment history, and whether the work is in other than the individual’s primary occupation. 430 CMR §§ 4.74, 4.75. This determination becomes relevant because, although wages from all jobs during the base period are used to calculate monetary eligibility and the weekly benefit rate, an individual is unemployed (and hence eligible for UI) only upon the loss of a primary job. BR Issue ID: 0017 2245 57, Claimant ID: 1967866 (03/09/16) (finding that while both jobs required about the same amount of hours, the job that paid more was the primary job).
When a claimant is unemployed, some earnings from the subsidiary job are deducted from the UI check. Gross earnings up to one third of the individual’s weekly benefit rate, however, are not deducted, as an incentive to the claimant to seek part-time work—a policy known as the “earnings disregard.” See G.L. c. 151A, § 29 (b).
Leaving Subsidiary Part-Time Work in the Base Period
A claimant who leaves subsidiary part-time work for disqualifying reasons within 8 weeks prior to the establishment of an eligible claim for UI is subject to a “constructive deduction.” 430 CMR §§ 4.76 – 4.78. This means that DUA reduces a claimant’s UI amount by assuming that the claimant still holds the subsidiary part-time job; and DUA calculates the claimant’s UI benefit assuming those earnings. Although the unemployment statute is silent on this issue, DUA promulgated these regulations to implement the court’s decision in Emerson v. Director of the Div. of Employment Security, 393 Mass. 351, 471 N.E.2d 97 (1984). However, Emerson dealt with a claimant who left a part-time job during her benefit year, and therefore provides no authority for the constructive-deduction regulations as applied in the base period.
Example of Constructive Deduction: Sue works full time at Job A for 3 years and, at the same time, she works part time at Job B. At some point in the 8-week period before she leaves Job A, she quits her part-time job with B without good cause. She is then laid off from Job A and is found eligible for UI benefits. The wages from Job B will be (“constructively”) deducted from her UI. If her wages from Job B are less than or equal to one third of her weekly UI benefit rate, her UI will not be reduced. The amount of her Job B gross wages that exceed one third of her benefit rate will cause a dollar-for-dollar reduction in her UI.
In a case reversing the denial of all UI benefits, the Board of Review held that a claimant with two part-time jobs, who quit her first job with lower pay and fewer hours to work additional hours at a second job that paid more but then laid her off, was entitled to UI from the second (primary) job but subject to a constructive deduction from leaving the first (subsidiary) job because her leaving was not for good cause. BR-109779 (4/1/2010), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/part-time-employment/pt-200-00-constructive-deduction/br-109779.pdf (applying G.L. c. 151A, § 29(b), 430 CMR §§ 4.73, 4.76).
The Board of Review has also held that federal extended benefits are subject to a constructive deduction—resulting from a disqualifying separation from part-time work in the benefit year—to the same extent as a constructive deduction from regular benefits. BR-112903 (6/9/2010), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/part-time-employment/pt-200-00-constructive-deduction/br-112903.pdf.
Note: An individual who quits a part-time job with an employer other than the most recent base period employer in order to participate in DUA-approved training is not disqualified under this provision. G.L. c. 151A, § 25(e), ¶10.
Constructive-Deduction Regulations and Amended Statutory Provision
DUA’s regulations, at 430 CMR § 4.76, which took effect in 2013, mitigate the harshness of some of prior regulations:
- If a claimant has no knowledge of impending separation from her primary work when she leaves her subsidiary part-time work during the base period, then there is no constructive deduction.n § 4.76(1)(a); BR Issue ID: 0015 4493 28, Claimant ID:10347872 (11/25/15); BR Issue ID: 0013 9350 99, Claimant ID: 10272905 (10/19/15).
- If a claimant leaves her subsidiary part-time work for a disqualifying reason after she leaves her primary work and applies for UI benefits based on non-disqualifying reasons from her primary work, then a constructive deduction will apply. § 4.76(1)(b).
- If a claimant leaves subsidiary part-time work that is for a fixed period of time, the constructive deduction will apply only through the last week of the fixed period. § 4.76(2) (See Freeman v. Director of the Div. of Unemployment Assistance, Suffolk Sup. Ct. CA 10-824 (2013)(settlement requiring revised regulations)
- If a claimant left part-time work for disqualifying reasons but then obtains new part-time work or returns to the former part-time job, a constructive deduction will no longer be imposed. § 4.76(3).
Claimants may leave their subsidiary work without being subject to constructive deduction if they receive a bona fide offer of new, permanent, and full-time work elsewhere. BR-967064, Issue ID: 0008 9781 55 (9/9/14).
Claimants may leave their subsidiary job without being subject to a constructive deduction if the job does not fall under “covered employment” under the Unemployment Law, G.L. c. 151A, §6. See, e.g., McCormick v. Director of the Dep’t of Unemployment Assistance & the Episcopal Diocese of Western MA, Southern Berkshire Division, CA No. 1629CV018 (2016) (agreement for judgment by all parties reversing Board’s decision imposing a constructive deduction where claimant worked for a church, which is excluded from employment under G.L. c. 151A, § 6(r)).
An individual need not be actively working in the worker’s primary job to be rendered only partially unemployed – if the individual is on disability leave or a leave of absence and leaves the subsidiary job for disqualifying reasons, the result should be a constructive deduction rather than full ineligibility. BR Issue ID: 0012 9792 63, Claimant ID: 10167094 (09/18/15).
In cases involving separations from multiple employers during the base period, DUA has all too often terminated claimants’ entire UI benefits rather than applying a constructive deduction. The Legislature has made clear that there shall be no “full denial of benefits solely because an individual left a part-time job, which supplemented a primary full-time employment, during the individual’s base period prior to being deemed in partial employment.” St. 2014, c. 144, § 65 amending G.L. 151A, § 29(d). This language protects claimants’ right to receive at least partial benefits.