Sources of Law Governing the UI Program
Chapter 151A of the General Laws of the Commonwealth is the primary source of law governing the UI program. The relevant Massachusetts law is found at:
- G.L. c. 151A, especially §§ 1 (definitions), 24, 25, 30, 39-42, 74;
- 430 CMR 2.00 et seq.-DUA regulations on selected topics and procedural issues.
- 801 CMR 1.02-rules governing formal/informal hearings.
- Various Massachusetts court decisions, many of which are described in this Guide.
- Decisions made by the Board of Review (the appellate body within DUA). Decisions are referenced in the Guide. Since 2017, the Board is posting all of its decisions online on a monthly basis. In addition, the Board has categorized under subject matter areas and posted “Key Decisions.” These are decisions that the Board has determined “contain significant issues, create new precedent, or may help parties and their representatives better understand aspects of the Massachusetts unemployment law.” The easiest way to access Board of Review materials is at www.mass.gov/dua/bor. For key decisions, go to www.mass.gov/key-decisions-appeals. Key Decisions noted in the Guide are indicated by the term “Key” after the date of the Board decision. Additional pre-2017 Board decisions not on the web are available at the Board of Review, Department of Unemployment Assistance, 19 Staniford Street, Boston, MA 02114, phone number (617) 626-6400. They may also be available on the on-line version of the Guide at www.masslegalservices.org under “Employment.” The Board decisions posted here include a selection of monthly decisions and Key Decisions decided through December 31, 2022. Board decisions in this Guide are designated as BR. Pre-2017 Board decisions are cited with claimant ID numbers; Board decisions since 2017 are cited with Issue ID numbers.
- DUA's website at www.mass.gov/dua.
- DUA's Unemployment Insurance Policy and Performance (UIPP) Memos, available on line for memos issued since January 1, 2017 at https://www.mass.gov/lists/unemployment-insurance-policy-performance-memos. Memos going back to 2012 are referenced in this Guide and are available through a public records request to DUA (easily done through DUA’s website at https://www.mass.gov/topics/executive-office-of-labor-and-workforce-development-public-records-requests).
- DUA’s Adjudication Handbook (AH), replacing DUA’s Service Representative Handbook (SRH), recently published in draft form (10/19) with an expected final publication in March. This Guide cites to the draft version. Advocates are advised to check the published Adjudication Handbook (AH) posted on the DUA website and on www.masslegalservices.org when it becomes available this spring. Although UI advocates contest some of the AH interpretations, overall the AH is a useful compilation of DUA’s policy and contains fact patterns with interpretations used for initial eligibility determinations. The AH, like the former SRH, does not carry the force of law and does not bind review examiners if they have a contrary view of the law. In Dicerbo v. Nordberg, No. 93-5947B, 1998 WL 34644, *2 (Mass. Super. 1998) (not reported in N.E.2d), the court held that requiring review examiners to adhere to DUA’s sub-regulatory legal interpretations violates applicable state and federal law. Id. at *3. (See also Questions 59 and 63.)
- Other guides, also available from DUA (in its Boston walk-in offices or on its website) include, for example, Unemployment Insurance: A Guide to Benefits and Employment Services. This Guide is listed here solely as a reference and not as an endorsement by the authors of its contents.
- Additionally, state law must provide that employees may not waive their right to unemployment compensation; any purported waiver is invalid. All 50 states, as well as the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands) prohibit waivers of claims to UI. Mitchell Energy & Dev. Corp v. Fain, 311 F.3d 685 (5th Cir. 2002). The law prohibiting waivers of the right to UI in Massachusetts is G.L. c. 151A, § 35.
The relevant federal law governing unemployment compensation law is found at:
- 26 U.S.C. §§ 3301 et seq.
- 42 U.S.C. §§ 501 et seq.
- 20 C.F.R. pts. 640, 650- Department of Labor regulations
- U.S. Department of Labor, Employment and Training Administration Directives including Unemployment Insurance Program Letters (UIPL) and Training and Employment Guidance Letters (TEGL) available at: https://wdr.doleta.gov/directives/
- Additional information from the Department of Labor is easily accessible through a dashboard portal at: https://oui.doleta.gov/unemploy/DataDashboard.asp.
- The National Employment Law Project (NELP) is another very useful source of information and their resources are available on their website: www.nelp.org.
- The Department of Labor's guidance on federal conformance standards that states must follow is available at http://oui.doleta.gov/unemploy/conformity.asp.The most important aspects of the overarching federal framework are that it requires the state agency (1) to establish administrative procedures calculated to deliver benefits reasonably promptly "when due," and (2) to provide parties with procedures (including initial determinations and hearings) that meet federal due process standards. 42 USC § 503(a). Additionally, the Federal Unemployment Tax Act (FUTA) has numerous important requirements that set either a "floor" for or a "ceiling" on the limits of state law. Advocates should review, in particular, 26 USC § 3304(a), which lists the state law requirements to obtain the approval of the Department of Labor. Examples of these requirements include suitability criteria, including the "prevailing conditions of work" test, § 3304(a)(5); UI benefits while in job training, § 3304(a)(8); limitations on canceling wage credits, § 3304(a)(10); protections against the denial of UI solely due to pregnancy, § 3304(a)(12); benefits for noncitizens, § 3304(a)(14); and limitations on deductions from UI for retirement pay, § 3304(a)(15).