40. On-Call Workers
Workers who have a history of working on an “on-call” basis, in which they accepted a verbal or written contract to work variable hours as needed, are considered in unemployment and therefore eligible for UI benefits only in a week in which there is no work available—i.e., a week of total unemployment. There is no eligibility for partial unemployment benefits. Mattapoisett v. Director of the Div. of Employment Security, 392 Mass. 546, 466 N.E.2d 125 (1984) (police officer hired to work irregular, part-time hours ineligible for UI in any week in which employer offered him any work at all, as the town was the claimant’s only base-period employer); Bourne v. Director of the Div. of Employment Security, 25 Mass. App. Ct. 916, 515 N.E.2d 1205 (1987) (part-time, on-call, fill-in teacher was ineligible for UI while so employed because, even though the teacher had been employed full time as a teacher in another town, she had made no claim against the other town nor proved that the separation from that job rendered her eligible for UI).
However, a worker treated as a full-time employee cannot be considered an on-call worker even though he works variable hours. BR-109764 (1/21/10), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/unemployment-status/uu-300-00-on-call/uu-300-3-full-time-hours/br-109764.pdf. A full- or part-time schedule where the person works approximately the same number of hours per week in accordance with a posted or advance schedule is not an on-call situation, and a reduction of hours could qualify the worker for partial UI benefits. See SRH § 1220 (I)–(N); BR-110067 (3/22/2010)(holding that “accustomed remuneration” must be considered in determining suitability and a per diem worker who had an abrupt reduction in hours after 8 months of significant hours had good cause to quit.)
A home health aide in partial unemployment whose hours were fairly consistent is not an on-call worker for the purposes of determining eligibility for UI. BR Issue ID: 0014 0062 59 (03/09/2015).
A worker in an approved training program (under § 30 of G.L. c. 151A) who accepts on-call work is not required to work; therefore, refusal of on-call shifts is not disqualifying. BR Issue ID: 0011 6741 52 (7/24/14).
Note: Both Mattapoisett and Bourne involved an on-call relationship that continued during the benefit year; neither decision addressed on-call employees who established the on-call relationship during the base period as subsidiary employment; i.e., contemporaneously with, and subsidiary to, full-time employment. If on-call work is subsidiary to full-time work (established by a finding that the hours of work are less), even if the on-call work was performed contemporaneously with the full-time work, the on-call work will still be considered subsidiary and approvable. If on-call work occurs during the benefit year, partial UI benefits are allowed because the individual’s UI is based on another employer.
For an excellent article chronicling the problems of non-standard work, see National Employment Law Project, Out of Sync: How Unemployment Insurance Rules Fail Workers with Volatile Work Schedules, 2015, http://www.nelp.org/content/uploads/Out-of-Sync-Report.pdf.