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).
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 - 0017 2245 57 (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.” 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 four weeks prior to the establishment of an eligible claim for UI, i.e., during the claimant's base period, is subject to a “constructive deduction.” 430 CMR 4.76 – 4.78 AH c. 6, § 2 (note: this is a change from past practice that looked back eight weeks, and it now conforms to the regulation) 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. Dir. of the Div. of Emp't Sec., 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. The Board has clarified this issue in a key decision. BR-0011 4858 86 (6/19/14) (Key) (holding that under 430 CMR 4.76, a claimant may not be disqualified from UI benefits or subject to a constructive deduction if he quits a part-time job without knowledge of an impending separation from his full-time job).
Example of Constructive Deduction: Sue works full time at Job A for three years and, at the same time, she works part time at Job B. At some point in the four-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 unless Sue can show that when she quit her part-time job she did not know that she would be laid off from her full-time job. 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.
The Board of Review held a claimant separated from a part time job for disqualifying reasons was nevertheless not subject to a constructive deduction because he did not know of his impending separation from his full time job. BR- 0017 2245 57 (3/9/2016); BR-0011 4858 86 (6/19/14) (Key) (same). This holding has been restated in several cases. See BR-0028 2066 52 (6/24/19) (where a claimant separated from a subsidiary base period employer, and did not know that his hours from his primary employer would be cut or reduced when he quit the subsidiary job, he is not subject to constructive deduction or any disqualification);BR-0024 9313 31 (9/27/18) (Key) (where disqualifying discharge was part-time, subsidiary, base period employment and, at the time of her separation from the employer, the claimant did not know of an impending qualifying separation from her full-time job, under DUA’s regulations, the claimant was entitled to full benefits and not subject to a constructive deduction due to her discharge from the employer); BR- 0015 6369 62 (9/30/2015) (holding a claimant who voluntarily quit a subsidiary job for a higher paying job was not subject to a constructive deduction when she was laid off from her primary job).
The Board 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) (Key) 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-0028 2066 52 (6/24/19) BR - 0015 4493 28 (11/25/15); BR - 0013 9350 99 (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. Dir. 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).
Note: For information on how DUA conducts its fact-finding in these cases, see UIPP # 2014.05, Revision to 430 Code of Mass. Regs §4.72 - Reduction of Benefits for Constructive Deductions, (5/29/14)
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. AH c. 6, § 2B; McCormick v. Dir. of the Dep’t of Unemployment Assistance & the Episcopal Diocese of W. 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 - 0012 9792 63 (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.