A special law limits UI eligibility of all employees of schools and other educational institutions (not just teachers but also custodians, bus drivers, and aides) when they are out of work between academic years or terms, even if they receive no pay over the break. If the worker has a contract of employment or a “reasonable assurance” of employment that is substantially the same or better in the next term or year, then she will not qualify for UI benefits. G.L. c. 151A, § 28A [1].

In order for this disqualification to apply, DUA should determine: 

• if the employer is an educational institution. If the employer is a private bus company that contracts with a school, this provision does not apply; nor does the provision apply if the employer’s mission is not educational. BR-107631-A [2] (9/18/2009), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/school-employees/se-200-00-educational-employer/br-107631-a.pdf [2] (institution whose mission was to make art accessible to the public did not fall under § 28A [1]);
• that the claim is being filed between two successive academic years or terms;
• whether the claimant has an employment contract or received a “reasonable assurance” of reemployment that is substantially the same or better for the next academic year or term. A reasonable assurance is more than the mere possibility of reemployment, and must be submitted in writing to DUA.

For employees of educational institutions who do not perform services in an instructional, research, or administrative capacity, if the worker is then not given an opportunity to perform work in that next academic term, the worker is entitled to retroactive UI benefits. G.L. c. 151A, § 28A (b) [1]; 430 CMR §§ 4.91–4.98 [3]. Likewise, where the assurance given is for work of substantially less favorable economic terms and conditions, the assurance is not reasonable under G.L. c. 151A, § 28A, and the worker is entitled to benefits. BR-6931108 [4] (5/12/14).

Under G.L. c. 151A, § 28A(c), for both professional and non-professional employees UI benefits are not available during a customary vacation period or holiday recess where there is reasonable assurance of work after the break.

Advocates should note that where an instructional employee is employed in one academic term but not in the academic term immediately following that term, the employee remains entitled to UI despite a reasonable assurance of reemployment the following academic year. BR-114638 (10/13/2011), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/school-employees/se-300-00-successive-academic-terms/bt-114638.pdf [4]. The Board noted in its decision that the manifest legislative intent behind section 28A(c) was to “withhold benefits to school employees during holiday and vacation periods only when they worked immediately before and after such recesses,” and that it approved of the decision in a UI case from Pennsylvania that the nearly identical provision in that state’s statute did not apply to coaches hired only for fall terms of each year because the intervening spring semester was not a period between academic terms, but an academic term proper, and therefore the employee did not have a reasonable assurance of reemployment in the next academic term. Id. (both emphases added).

Primary and secondary jobs are distinguished for eligibility purposes. (For the distinction between a primary and a secondary job, see Question 45 [5].) If the claimant has had different types of educational employment during the base period preceding a new academic term, the examiner will look to the claimant’s primary base-period employment in determining whether there was “reasonable assurance of reemployment.” If there is no reasonable assurance of reemployment in the claimant’s primary job, then the claimant is eligible for benefits. If there is reasonable assurance of reemployment in the claimant’s secondary job, then the wages from the secondary job will be excluded in determining the amount of the claimant’s benefit rate and credit. BR-109037-OP [6] (8/4/2009), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/school-employees/se-400-00-substitute-teachers/br-109037-op.pdf [6]; BR-121760 (4/20/12). 

Additionally, if a claimant was engaged in different types of educational services—e.g., both full-time teaching and substitute teaching—and received reasonable assurance only for the latter, the wages from the full-time teaching could be used to establish the claim. (DUA Memo on School Employees, G.L. c. 151A, § 28A [7] dated 6/11/12 applying BR-121272 (4/27/12), available at www.masslegalservices.org [8])

Adjunct Faculty

In 2014, DUA changed its policy regarding UI eligibility for adjunct college professors, making it more difficult for adjuncts to collect UI. Under DUA’s prior policy, an adjunct whose employment was contingent upon “enrollment” or “funding” did not have reasonable assurance of reemployment and was therefore eligible. DUA has changed this policy, relying upon a federal Department of Labor Unemployment Insurance Program Letter (UIPL No. 4-87, December 24, 1987).

Under DUA’s revised policy, an adjunct professor has reasonable assurance of reemployment—despite enrollment or funding contingencies—if the employer can show a history of reemployment on similar terms and conditions and the offered employment is not substantially less than the prior employment. This runs counter to reasonable assurance jurisprudence that an offer of employment is not considered bona fide if only the possibility of work exists.  

However, the employer shoulders the burden to prove that the adjunct had reasonable assurance. BR Issue ID: 0015 4196 77, Claimant ID:728030 (12/30/15). If the adjunct professor is being offered work that is substantially less than previously offered, there is no reasonable assurance and the worker is UI-eligible. BR Issue ID: 0016 5329 77, Claimant ID: 1395062 (1/20/16)  DUA policy considers “substantially less” to be a reduction of greater than 20% in wages and benefits.  See:  DUA UI Policy & Procedure Interoffice Memorandum #2016.06 (6/10/16) available at masslegalservices.org. Moreover, a contractual requirement by the employer to offer at least one course per term is not sufficient to establish reasonable assurance if that is “substantially less” than the worker’s prior employment. See BR Issue ID: 0002 1339 07 (5/12/14). 

The Board looks at the course schedule history for the adjunct. BR Issue ID: 0013 6586 83, Claimant ID: 1328539 (10/21/15) (finding that even with a history of teaching a certain number of courses, a drop from three classes to two in a semester was enough to allow for UI benefits). If the adjunct is relatively new or if there have been changes to the workload in past semesters, the Board presumes that there was no “reasonable assurance”. BR Issue ID: 0016 2670 84, Claimant ID: 1601269 (01/29/16) (finding that an adjunct who had only worked one year with a workload in the spring semester that was half as much as the fall semester meant that there was insufficient history to show the adjunct had reasonable assurance); BR Issue ID: 0016 6123 65, Claimant ID: 693108 (04/27/16) (finding that an adjunct who had had 4 classes canceled in the last 8 years did not have reasonable assurance that his classes would not be canceled again). Employers must also be timely in providing reasonable assurance to the adjunct employee. BR Issue ID: 0016 2822 60, Claimant ID:1056756 (11/25/15) (finding that reasonable assurance did not exist until the receipt of a letter offering a new schedule). If the school announces a reduction in courses taught by adjuncts generally or in a shrinkage of the adjuncts particular program, this can be sufficient grounds to show there was no reasonable assurance for the employee. BR Issue ID: 0016 3028 44, Claimant ID: 729968 (5/18/16) (finding that a new labor agreement on the number of classes that could be taught by adjunct faculty meant that there was no reasonable assurance for adjuncts); BR Issue ID: 0016 2085 38, Claimant ID: 2047881 (03/24/16) (holding that the announced future closing of an academic program meant there was no reasonable assurance).

An adjunct professor who has reasonable assurance from one employer but not from another may also be eligible for UI. An adjunct professor who also held a full-time teaching position without reasonable assurance of reemployment but was given reasonable reassurance of reemployment of the adjunct position is not barred from UI for the benefit year of the full-time position. BR-121760 (4/20/12).

Increasing numbers of workers, especially low-wage workers, are forced to accept jobs with temporary agencies in order to support themselves and their families. Many of these workers are “temps” not out of choice but because they are unable to secure permanent jobs. UI claimants who have lost their permanent jobs often accept temporary work to bridge the gap until they can locate a new permanent position. Doing so, unfortunately, may create problems for both initial and continuing UI eligibility.

Temp agencies act as labor intermediaries, hiring employees and then sending them out to work for another firm. Since the temp agency is the employer for UI purposes, temp agencies have a financial interest in lowering their UI costs by preventing employees from collecting UI while they are between assignments. Nationally, the temp industry has made a concerted effort to change state unemployment laws to make it more difficult for its employees to collect UI. 

Under a Massachusetts law passed in 2003, a temporary worker may be deemed to have voluntarily quit his job if, after the completion of an assignment, he files for UI benefits without first contacting the temp agency for reassignment. G.L. c. 151A, § 25(e) [9], as amended by St. 2003, c. 142, § 8 [10]. Under the statute, a “temporary help firm” is defined as “a firm that hires its own employees and assigns them to clients to support or supplement the client’s workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects;” and  “temporary employee” as “an employee assigned to work for the clients of a temporary help firm.”

The legislation and implementing regulations further provide, however, that this failure to contact the temp agency for reassignment will not be deemed a voluntary quit “unless the claimant has been advised of the obligation in writing to contact the firm upon completion of an assignment.” Id., 430 CMR § 4.04 (8)(b)(2) [3] (emphasis added) or had good cause for failing to request another assignment. 430 CMR 4.04(8)(c). Further, the employer’s notice of this obligation also must specify: (1) the method for requesting a new assignment in a manner that is consistent with the normal method and manner of communication between the employee and the temporary employment firm, and (2) that failure to request a new assignment may affect eligibility for UI benefits. 430 CMR § 4.04 (8)(e). If the temp agency is unable to provide proof that it provided proper notice to the claimant, that employee will be deemed to have been laid off and therefore entitled to UI, if otherwise eligible.

The Board of Review has affirmed that 430 CMR § 4.04(8)(e) requires notice of the need to request a new assignment (including the procedure for making that request).  The procedure is deficient where the written notice does not include a contact phone number for the employer’s office.  See BR Issue ID: 0014 5562 05, Claimant ID: 569963 (10/1/15) (the absence of contact information on the form given to employee eliminated the requirement that employee call at the end of an assignment); BR-106729 (9/11/08) (claimant entitled to UI where neither advised in writing of contact requirement nor told of means by which to contact employer).    

The notice must also specify that failure to request a new assignment may affect eligibility for UI benefits. BR-120231 [3] (01/20/2012). In that case, the Board held that a laid-off temporary service employee was not disqualified for failing to request reassignment because the temporary agency’s notice did not inform the employee that a failure to request reassignment may affect eligibility for UI benefits, even though the notice form did state that failure to request reassignment would result in the employee’s being deemed to have voluntarily quit. Id.

The burden is on the employee to establish that she did request another assignment and, thus, was discharged rather than voluntarily quit.  BR Issue ID: 0002 1746 84 (8/29/13); see also G.L. c. 151A, § 25(e)(1). 

The Board looks to see if the spirit of the law, namely that the employee and employer communicated and therefore, the employer received actual notice of the employee’s availability for a new suitable assignment. BR-468131 (3/26/15).  Thus, despite the language of 430 CMR 4.04(8)(b), a claimant need not expressly “request another work assignment” from the temporary staffing agency to qualify for UI benefits. BR-113223 (10/8/14).

If an employee has contacted the temp agency and is asked to call back for a new assignment after an upcoming holiday, the employee is deemed to have fulfilled his duty to contact.  

When the communication between the employee and the employer includes, in substance, a request for a new assignment, the Board has ruled that the employee's obligation to request additional work is satisfied: the Board is “unwilling to bootstrap this request [that the employee call back again after the holidays] for what was really a second contact into a requirement, under G.L. c. 151A, § 25(e) [9]” (Board’s emphasis). BR-118830 (11/8/2011). The Board has also held that when a claimant can establish facts sufficient to show that he attempted to speak to a supervisor about a new assignment after a job has concluded but the supervisor was too busy to speak to him, the claimant’s separation is not a disqualifying voluntary resignation. BR-125041 (4/29/13). The Board held in that case that a claimant is entitled to UI benefits when he attempted to request reassignment and the temp agency did not offer the claimant a new assignment. See also BR-124418 (3/22/13) (holding that temp service employee told that his current assignment was about to end and that nothing in the way of a new assignment would be forthcoming meets the “call-in” requirements under G.L. c. 151A, § 25(e) and claimant is entitled to UI benefits); BR-122974 (10/26/12) (holding that when the claimant and employer spoke three times during the claimant’s last day of work without offer of another position, the claimant met his statutory duty even where the employer told the claimant to contact the employer in the future and the claimant did not do so).

If the temp agency contacts the employee to let him know that his assignment is finished or that he has been terminated by the contract organization, this communication is sufficient to fulfill the obligation for the employee to contact the agency. BR Issue ID: 0016 9906 45, Claimant ID: 1306005 (4/20/16); BR Issue ID: 0016 3525 25, Claimant ID: 1592813 (9/28/15) (holding that an employee who was told that his assignment was over in December and who did not file for months afterwards was still eligible since the agency had contacted him initially). If the temporary employee has only met his recruiter with the temporary agency, the employee may be eligible if he spoke with that recruiter about the end of his assignment even if he did not explicitly request a new assignment and even if that recruiter was not the normal person to tell about the end of an assignment.  BR Issue ID: 0014 4820 58, Claimant ID: 1875280 (8/24/15).

A temporary employee also does not have to take an assignment that is offered if the employee does so for good cause and this singular contact is all that is necessary to meet the requirements of the statute. BR Issue ID: 0015 1070 15, Claimant ID: 1693738 (01/14/16). If an employee learns of the end of his assignment before the actual end date and discusses this with the temporary agency, that contact is sufficient to meet the required request for a new assignment, even though it occurred prior to the end of the original assignment. BR Issue Id: 0015 2809 79, Claimant ID: 777626 (11/ 23/15). It is also possible to be fired for cause by the contracting agency but kept on as an employee by the temp agency – this is established if the temp agency offers the employee a new assignment after the end of his assignment, and once this offer is made, the employee is allowed to claim UI if that assignment was not suitable. BR Issue ID: 0014 4271 40, Claimant ID:1666966 (10/19/15). 

The Board of Review has held that an employee of a temporary staffing agency who “notified the employer that his assignment was ending [or had become unsuitable] and expressed his intent to remain employed with the employer” was eligible for UI benefits when his employer failed to offer him any new assignment. See BR-113223 (10/8/14); BR-1883959 (2/27/15); BR – 124418 (4/22/13). 

A claimant who worked for a temporary help agency satisfied her duty to contact the agency for reassignment when the employer’s senior branch manager, after informing the claimant that her assignment had ended, also informed the claimant that she would inform other representatives of the employer that claimant was still looking for work. This exchange between the claimant and the senior branch manager indicated to the Board’s satisfaction that the claimant, indeed, informed the employer that she would like to have another assignment. Thus, the Board concluded that the claimant’s separation from employment was due to lack of work and therefore not voluntary. BR-120299 (1/26/2012).

When a temporary staffing agency refused to offer an employee additional assignments after the employee quit his current assignment without prior notice, the employee’s separation from his employment with the temporary staffing agency is considered due to “discharge” not “quit.” BR-1786345 (1/26/15). 

Where a claimant resigned to accept full-time employment with a temporary staffing agency, the claimant left in good faith for employment on a permanent, full-time basis. Although the nature of the work was temporary, the claimant’s relationship to the agency was permanent with the meaning of G.L. c. 151A, § 25(e). “In the instant case, the claimant’s new job carried higher wages and a much better commute. He had no reason to anticipate that the employment would end after only a few weeks. We can think of no reason to exclude him from unemployment benefits simply because his employer was in the business of supplying contingent services to client companies.” BR- Issue ID: 0010 6162 10 (9/19/14).

Where an employer informed a non-English speaking employee that the employee needed to contact the employer’s Milford office (and not the Marlborough office from where he usually worked) for his next assignment, and the employee misunderstood due to the language barrier and repeatedly tried to receive his next assignment at the Marlborough office, which would not give him any assignments, the Board awarded him benefits. See BR Issue ID: 0013 2758(2/21/15).

Note 1: Advocates should determine whether the particular assignment should even fall under the temporary employment rules; i.e., whether the assignment meets the statutory definition that the claimant has, rather, been hired in “work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects.” G.L. c. 151A, § 25(e), ¶9 [9].

Note 2: If the temp agency provided proper notice and the employee is unable to prove to DUA that he contacted the temp agency at the end of the previous assignment to request a new assignment, he will be deemed to have “voluntarily quit” his job. Often, a worker’s cell phone or email records are helpful to document contact with the temp agency. Where the worker returns to the temp agency at the time of receiving his final paycheck, any conversation that occurs at that time regarding future work should satisfy the “seeking reassignment” requirement.

Note 3: Although the statute and DUA’s regulations are silent on these matters, UI advocates should explore possible due process claims. For example, if the employer provided the claimant notice but in a language she cannot read, arguably the temp agency has not met its burden to provide proper notice. (See Question 52). Likewise, it often happens that employees work for a temp agency and take months off before returning to seek work. If the employee was provided notice about the requirement to seek reassignment only at the time of her initial hire, it is reasonable to argue that the employer had a duty to provide new notice when she was rehired or even at the time the most recent assignment ended. 430 CMR §§ 4.04 [3] et seq [3].

Temp Agencies and “Suitable Work”

The requirement that an employee at a temporary agency must seek reassignment does not mean that the new position must be accepted in every case. The suitable work provisions still apply, and they include the “prevailing conditions of work” test. (See Question 8, Suitability, Prevailing Conditions of Work). SRH § 1230(B). BR-1586240 (8/26/14) (the Board ruled that claimant and employer merely engaged in a discussion of job possibilities and no direct job offer was made to claimant [SRH § 1115(A)]; “[f]urthermore, even if we were to conclude that a job offer was made, the job may not have been suitable employment for the claimant . . . where her income would have been reduced and her commute increased”). If a claimant finished an assignment as a secretary and is offered an assignment as a cleaner, this would not constitute “suitable work” and a refusal should not result in disqualification. A claimant has no obligation to accept a work assignment for which she is not properly trained.  BR-12531 (7/21/14). The Board has held that a claimant who had a temporary placement with a client for 1.5 years and was offered a 6-week assignment with another client doing similar work at a lower rate of pay had good cause for declining the offer, as the substantially shortened job duration meant that the job was not suitable. BR-111185 [11] (3/3/10). 

Additionally, where a claimant who previously held a full-time employment position with benefits at a company takes a job at a temp agency in hopes of gaining another permanent full-time position with benefits and is unable to do so after several months of working for the agency, his work with the agency is considered “unsuitable” and quitting such work will not disqualify him for benefits.  See BR-998249 (10/31/14); see also Hunt v. Director of the Div. of Employment Security, 397 Mass. 46, 48, 489 N.E.2d 696, 697 (1986). (See Question 8 [12], Suitability.)

Urgent and Compelling Reasons for Leaving a Temp Job

Even when an employee is determined to have quit his position with a temp agency, he will still qualify for UI benefits if he quit for an “urgent, compelling and necessitous” reason. G.L. c. 151A, § 25(e); see BR-10289560 (4/27/15). As with other kinds of employment, “[l]oss of transportation has been recognized as an urgent, compelling, and necessitous reason for leaving employment, where no reasonable transportation alternative is available.” BR-10289560 (4/27/15). When an employee’s vehicle breaks down, this is also an “urgent, compelling, and necessitous” reason for declining assignments outside of the employee’s local area.  BR-10289560 (4/27/15).  (See Question 29.)

Is a Temp Job a “Permanent Job”?

A position at a temporary staffing agency is considered “permanent” for the purposes of eligibility for leaving a job for a good faith new offer under G.L. c. 151A, § 25(e)  if it has “a reasonable probability of continuing for a[n]… indefinite period of time.” BR-10181653 (11/3/14); see also BR-682574 (10/29/2014). There is a reasonable probability of permanent employment when there is no evidence that the position was “intended by both parties to be of finite, short-term duration.” BR-1929574 (5/25/15). 

The UI law carries a strong presumption that services performed are “employment.” Sometimes employers wish to have their employees characterized as “independent contractors” in order to reduce payouts for unemployment, workers’ compensation, and other employee costs. The UI law uses a three-prong test under which any individual performing services will be presumed to be an employee unless the alleged employer can prove all three of the following:

(1)    the worker has been and continues to be free from control and direction in performance of the service;

(2)    the work is performed either outside the usual course of business or outside all of the enterprise’s places of business; and

(3)   the worker is customarily engaged in an independently established business of the same nature as the service performed. G.L. c. 151A, § 2.

The employer bears the burden of proof on this issue. The employer’s failure to withhold federal and state income taxes or pay workers compensation premiums does not affect status determination. G.L. 151A, § 2. The employer’s description of the work in an employment contract or elsewhere is not controlling. SRH §§ 2009, 2011(D) [13];

 

• Subcontracting Concepts, Inc. v. Commissioner of the Div. of Unemployment Assistance, 86 Mass. App. Ct. 644, 19 N.E.3d 464 (2014). (courier who drove his own vehicle, but was not allowed to have nonessential passengers and was required to report accidents, was an employee, even though claimant’s agreement with the employer stated that “no employer/employee relationship is created under this agreement or otherwise,” no taxes were deducted from claimant’s pay, and he received no benefits from the employer.
• Depianti v. Jan-Pro Franchising Intern., Inc., 465 Mass. 607 (2013) (franchisor is vicariously liable for the conduct of its franchisee only where the franchisor controls or has a right to control the specific policy or practice resulting in harm to the plaintiff - and in this case, despite there being no contract between the franchisor and the employee, the franchisor controlled the franchisee sufficiently to be held liable for misclassification).
• De Giovanni v. Jani-King International, Inc., 262 F.R.D. 71, 84-85 (D. Mass. 2009) (finding that a class could be certified challenging the independent contractor classification for workers because the franchisor exerted so much control over the supposed franchisee and its workers).
• Driscoll v. Worcester Telegram & Gazette, 72 Mass. App. Ct. 709, 893 N.E.2d 1239 (2008) (news carriers were employees where newspaper retained control over order in which newspapers were delivered and retained authority to discharge carriers because of customer complaints).
• Commissioner of the Div. of Unemployment Assistance v. Town Taxi of Cape Cod, 68 Mass. App. Ct. 426, 862 N.E.2d 430 (2007) (taxi drivers who had discretion to choose which shifts they worked and which customers to accept from company dispatch were independent contractors).
• Coverall North America, Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857 N.E.2d 1083 (2006) (although employer claimed individual was a franchisee and not an employee, the court held the employer did not meet the third prong of the test where claimant performed janitorial services as an employee and where the nature of the business effectively compelled her to accept work solely from the employer).
• BR-1919023 (1/14/15) (A person in a “talent” position was an employee where she was not “free from the direction and control of the employing unit when she performed her services.” The claimant relied on the employing unit’s instructions on where and how to perform the assigned marketing services; the employing unit, not the client, directly paid the claimant, and claimant had to accept the rate of pay that the employing unit offered to her)
• BR Issue ID: 0002 4356 65 (6/20/14) (holding a worker who worked at a law firm that exercised a reasonable degree of control over her work was an employee, not an independent contractor).
• BR-121929-XA (6/26/12), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/employee... [14](tutors, who were required to meet extensive reporting and performance requirements, were subject to so much direction and control by the employing unit within the meaning of G.L. c. 151A, § 2(a), as to be employees, notwithstanding the tutors’ high level of skill and the fact that several tutors held themselves out as independent contractors).
• BR-112274-XA (2/09/12),  (owner-operator truck drivers who determined their own routes, hours, truck-repair/service providers, and insurance providers are not independent contractors because: (1) the truckers could not sublease or hire others to drive their vehicle without the employer’s approval; (2) the truckers could not refuse an assignment unless another trucker was available to take it; and (3) the truckers could not use their trucks to transport goods for other carriers without cancelling their lease agreement with the employer).
• BR-108261-XA (3/10/10), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/employee-v-independent-contractor-status/st-100-00-generally/st-100-2-delivery-services/br-108261-xa.pdf [15] (delivery drivers were not independent contractors because they were not permitted to carry competitors’ products without the employer’s prior approval).
• BR-102711-XA (11/21/2007), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/employee-v-independent-contractor-status/st-100-00-generally/st-100-5-financial-services/br-102711-xa.pdf [16] (mortgage originators could not be free from employer discretion and control, and could not engage in an independent trade or business, because they were required by law to perform work under the license of a broker).

Employers are required to “keep true and accurate records of all individuals employed” G.L. c. 151A, § 45 [17], and to pay contributions based on the wages of those employees. 430 CMR § 5.03(3). If the alleged employer raises a question about employee status, the case is sent to the Status Department, where the DUA Adjuster conducts a “status determination,” asking a series of questions of both parties to get at the facts relevant to the three-prong test. An advocate may intervene and provide the Status Department with information. Both the alleged employer and the claimant are interested parties to this determination and may appeal an adverse determination.

In March 2008, Governor Patrick signed Executive Order #499 [18] establishing the Joint Employment Task Force on the Underground Economy and Employee Misclassification, later codified in the General Laws. See St. 2014, c. 144 [19], §§ 23, 24, adding § 25 [20] to G.L. c. 23 [21] and amending G.L. c. 62, § 21 [22]. The Task Force has since been replaced by a permanent Council on the Underground Economy (CUE). More than 17 state agencies participate in CUE, whose mission is to ensure business compliance with applicable state labor, licensing, and tax laws. A toll-free referral line (1-877-96-LABOR) and online referral [23] (http://www.mass.gov/lwd/eolwd/jtf/ [23]) are available to provide information and to receive complaints about suspected cases of misclassification. In 2014, DUA found over 450 misclassified workers and $5.5 million in unreported wages.

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 [24], 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], 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 [26]. 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) [13]; 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 [24] and Bourne [25] 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 [27].

An individual may be disqualified from receiving UI benefits if unemployment is due to a “stoppage of work” because of a labor dispute. G.L. c. 151A, § 25(b) [28]. In order for there to be a stoppage of work, operations must be “substantially curtailed.” How much disruption is required to constitute a substantial curtailment is a fact-specific inquiry; there is no percentage threshold or numerical formula. Boguszewksi v. Commissioner of the Dep’t of Employment & Training [29], 410 Mass. 337, 338, 572 N.E.2d 554, 555 (1991) (“stoppage of work” occurred where two thirds of employees of a public electric utility ceased to work during a 4-week strike); Hertz Corp. v. Acting Director of the Div. of Employment & Training [30], 437 Mass. 295, 297, 771 N.E.2d 153, 155-56 (2002) (no decrease in rentals or revenue); Reed Nat. Corp. v. Director of the Div. of Employment Security [31], 393 Mass. 721, 473 N.E.2d 190 (1985) (25% drop in operations at only one plant did not constitute substantial curtailment); Westinghouse Broadcasting Co., Inc. v. Director of the Div. of Employment Security [32], 378 Mass. 51, 389 N.E.2d 410 (1979); Adomaitis v. Director of the Div. of Employment Security [33], 334 Mass. 520, 136 N.E.2d 259 (1956).

The employer has the burden of proving that its operations have been substantially curtailed. Verizon New England, Inc. v. Massachusetts Executive Office of Labor and Workforce Development, 87 Mass. App. Ct. 1126, 31 N.E.3d 1192, 2 (Table), further review denied, 472 Mass. 1110 (2015). In Verizon New England, the Court upheld the DUA’s ruling that striking Verizon workers were entitled to UI benefits because the strike had not caused a substantial curtailment in Verizon’s operations.  The Court rejected Verizon’s contention that the DUA erred by requiring Verizon to prove a substantial curtailment of its operations since all the information relevant to that inquiry was in Verizon’s possession, and since the finding of a “stoppage of work” is an exception to the usual rule of awarding UI.

The burden of proving a work stoppage also lies with the employer. M-63772–M-69116, 11 [34] (4/24/13), available at http://www.mass.gov/lwd/unemployment-insur/understanding-ui/bor/labor-dispute/la-100-00-generally/m-63772-m-69115-redacted.pdf [34]. The employer failed to establish a work stoppage where revenue declined less than 2% and then employer managed to perform between 80 and 98% of its business. Id.

However, the burden is on the claimant to prove that she falls within the exceptions to the provisions of the statute denying UI eligibility when unemployment results from a stoppage of work due to a labor dispute. General Electric Co. v. Director of the Div. of Employment Security, 349 Mass. 358, 208 N.E.2d 234 (1965).

The bar to UI benefits does not apply before the strike begins if the individual is involuntarily unemployed during contract negotiations, or after the strike has ended if the individual is not recalled within 1 week of the end of the strike. G.L. c. 151A, § 25(b) [9].

This bar also does not apply if the claimant did not, as an individual or as a member of a group, participate in, finance, or have a direct interest in the labor dispute (notwithstanding the payment of union dues). G.L. c. 151A, § 25(b)(1), (2) [9]. However, even if an individual is not a member of a union participating in the strike, the requirement of “direct interest” is met if the outcome will either favorably or adversely affect the individual’s wages, hours, or conditions of work. Wheeler v. Director of the Div. of Employment Security [35], 347 Mass. 730, 200 N.E.2d 272 (1964).

If there has been a “lockout”—i.e., either a physical shut-down of a plant or a communication by the employer to its employees that there will be no more work until the end of the labor dispute—individuals are eligible for UI benefits whether or not there has been a stoppage of work, as long as they are willing to work under the terms of the existing or expired contract pending the negotiation of a new contract. The employer can prevent payment of UI under these circumstances only if it demonstrates by a preponderance of the evidence that the lockout is in response to damage or threats of damage by bargaining-unit members with express or implied approval of the union’s officers, that the employer has taken reasonable measures to prevent such damage, and that such efforts have been unsuccessful. G.L. c. 151A, § 25 (b)(4), ¶ 2 [9].

Under appropriate circumstances, a worker may be eligible for workers’ compensation benefits under G.L. c. 152 and UI benefits under G.L. c. 151A.  The intersection of these two areas of Massachusetts employment law can have surprising results, so practitioners are wise to keep abreast of both. In simplest terms, “worker’s compensation applies to wage loss attributable to physical disability, not to economic conditions [,while] unemployment compensation applies to wage loss caused by economic conditions, not physical disability.”  See In re Mike’s Case, 73 Mass. App. Ct. 44, 48 n. 10, 895 N.E.2d 512 (2008) (internal quotation marks and citations omitted).  G.L. c. 151A, § 25 (disqualification for benefits) and G.L. c. 152, § 36B (UI benefits; eligibility) lay out the basic rules that apply when a worker might be eligible for both kinds of benefits.  

Receipt of workers’ compensation total disability benefits renders a worker ineligible for UI under G.L. c. 151A, § 25(d) because someone who is completely disabled does not meet the “able and available for work” test required by G.L. c. 151A, § 25(d) [9]. However, a worker who receives workers’ compensation benefits for specific injuries causing disfigurement, under G.L. c. 152, § 36 [36], may still be able to work in some capacity and therefore could collect UI if able to work on a part-time basis, with a reasonable accommodation if necessary. SRH § 1583(C) [37]. Similarly, a worker who suffers only a partial disability for workers compensation purposes may be eligible to collect UI.  However, under G.L. c. 152, § 36B of the Workers Compensation Act, “[a]ny unemployment benefits received are to be credited against partial disability benefits payable for the same time period,….” See Nason et al., Workers’ Compensation, 4 Mass. Practice Series § 18.27, p. 99 (2003 ed. & 2015-2016 Supp.).  “Section 36B calls for a dollar-for-dollar reduction in partial [workers compensation] disability benefits, even though unemployment benefits may be taxable, [thus] reducing the employee’s protection.”  Id. at 100.  Further, “[a]ny employee claiming or receiving [partial incapacity workers’ compensation benefits under G.L. c. 152], §35 who may be entitled to UI shall upon written request from the insurer apply for such benefits.  Failure to do so within sixty days after written request shall constitute grounds for suspension of benefits under section thirty-five.”  See G.L. c. 152, § 36B(2).  

In contrast to the arguably harsh limitation of UI for workers suffering partial incapacity under G.L. c. 152, § 35, the law provides that a worker who has been on workers’ compensation total disability (i.e., received G.L. c. 152, § 34 benefits) for more than 7 weeks may have her base period for calculating her UI extended by the number of weeks she received total disability benefits, up to a maximum of 52 weeks.  See G.L. c. 151A, § 1(a). This allows: (1) calculation of the worker’s monetary eligibility for UI to reach back to the period of employment that occurred before the injury and receipt of workers compensation, as workers’ compensation benefits are not counted as wages; and (2) the worker who has recovered enough to engage in a work search to go back to work to collect UI benefits.

Note: A claimant who is totally disabled, laid off and who receives workers compensation total disability benefits for at least 7 weeks should consider not applying for UI until she is looking for work and a doctor certifies that she is able and available for at least part-time work of 15 hours a week (with or without reasonable accommodation). Otherwise, the time for claiming UI will run but the claimant will not be able to receive UI while she is totally disabled. Unfortunately, DUA takes the position that a claimant who mistakenly applies for UI in this situation cannot withdraw his claim. Because the base period is extended to include earnings up to a year prior to the receipt of workers’ compensation benefits, this is one situation where the rule about applying for UI as soon as possible after leaving work may not be to the claimant’s advantage. 

In order to qualify for UI benefits, an individual must be “capable of, available and actively seeking work.” G.L. c. 151A, § 24(b) [38]. (See Question 8).

Social Security Disability Payments

The Social Security Administration has made clear that the mere fact that a person is receiving Social Security Disability benefits (as distinguished from Retirement benefits) does not automatically result in disqualification for UI benefits. Social Security Forum, V. 20, No. 11, Memorandum to Regional Chief Justices from Chief Judge F. Cristaudo, Receipt of Unemployment Insurance Benefits by Claimant Applying for Disability Benefits, 11/15/2006.  This memorandum is available at http://www.masslegalservices.org/node/37847 [39]. A DUA memorandum implementing this SSA guidance is available at http://www.masslegalservices.org/node/30888 [40].

Note: The SRH has not yet been updated to conform to this memorandum and continues to takes the position that the receipt of social security disability payments creates a presumption that one is unable to work due to disability, SRH § 1022 [13].

DUA provides that the presumption may be rebutted with evidence that, with or without a reasonable accommodation and/or the availability of part-time work, the claimant may still be able to work on either a full‑time or part-time basis. A claimant receiving SSI and SSDI must provide medical documentation (DUA may be developing a new form for this information, see Appendix Q [41] for the information that is relevant) that he can work, so that no disqualification will be imposed. Only if the documentation indicates that he is unable to work should DUA issue the Notice of Disqualification (Form 3720). Claimants receiving SSI or SSDI while working part time must document the number of hours worked and the number of hours that they are capable of working. A claimant who works at least 15 hours per week would not be considered unemployed and would be subject to disqualification under §§ 1(r) [42] and 29(b) [43] of G.L. c. 151A [44]. In all instances, no presumption should be made that a claimant is disqualified without determining whether or not she can work full time or part time, with or without reasonable accommodation, or without giving her a reasonable opportunity to provide medical documentation. 

Social Security Retirement Benefits

Receipt of Social Security Retirement benefits does not cause any financial offset in UI benefits. (St. 2006, c. 123, §§ 67, 68, amending G.L. c. 151A, § 29(d)(6) [43] to eliminate financial offset; SRH § 1720 [13].) Other nondeductible benefits include those from IRA Plans, Keough Plans, Railroad Retirement, and any withdrawal of Pension Contributions.

Pension and Other Retirement Benefits

Receipt of pension or other retirement benefits from a base-period employer may affect the amount of UI benefits but does not affect UI eligibility as long as the individual is able, available, and actively seeking work. A claimant who receives a pension or retirement benefit that is financed wholly by a base-period employer will have her weekly UI benefits reduced by 100%; whereas, if the employee makes any contribution, the UI benefits are reduced by 50% of the weekly retirement benefit. Lynch v. Director of the Div. of Employment Security, 372 Mass. 864 (1977); BR-2015465 [45] (5/19/14). No deduction is made if the pension is from a source other than the base-period employer, the lump-sum payment was made prior to the base period, or the pension is solely funded by the employee. G.L. c. 151A, § 29(d) [43].

An employee who receives any remuneration from his or her base-period employer is not considered to be in unemployment. “Remuneration” is defined to include “severance, termination or dismissal pay.” G.L. c. 151A, § 1(r)(3) [42]. Severance pay that is granted unconditionally (that is, without requiring the employee to release claims against the employer) will disqualify the employee for the period it covers—for example, if an employee is given 6 weeks of pay at the time of termination, she will be ineligible for UI until this payment period runs out. When she then applies for UI, this severance pay is included as base-period earnings for purposes of establishing her monetary eligibility. Ruzicka v. Commissioner of the Dep’t of Employment & Training [46], 36 Mass. App. Ct. 215, 629 N.E.2d 1012 (1994). The benefit year is extended by the number of weeks in which the employee’s severance pay was disqualifying.

In contrast, an agreement by an employee to take a lump-sum payment upon separation in return for the employee’s release of claims against the employer will not constitute the kind of payment that disqualifies the employee from receiving UI concurrently with the severance payment. White v. Commissioner of the Dep’t of Employment & Training [47], 40 Mass. App. Ct. 249, 662 N.E.2d 1048 (1996). See also Dicerbo v. Commissioner of the Dep’t of Employment & Training [48], 54 Mass. App. Ct. 128, 763 N.E.2d 566 (2002) (holding employees’ receipt of a lump-sum separation package, paid regardless of whether employees had found new employment and that constituted an agreement by employees not to bring any future claims against the employer, was not “severance pay” and thus did not disqualify employee from receiving unemployment benefits).

Additionally, lump-sum payments where there has been a plant closing at a business of 50 or more employees, or where at least 50% of employees have lost their jobs, are not disqualifying. G.L. c. 151A, §1(r)(3) [42].

For information concerning the effect of early-retirement incentive packages and voluntary severance packages on UI eligibility, see Question 23 [49]. 

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) [50].

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 [51]. (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) [52].) 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 [52]. 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) [43].

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 [52]. 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 [53], 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 [54] (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 [54] (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 [55] (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 [55].

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 [52], 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) [52].
• 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) [52] (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) [52].

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 [19] amending G.L. 151A, § 29(d) [43]. This language protects claimants’ right to receive at least partial benefits.

The UI system has a set of rules for workers who have worked in more than one state, have worked in another state for an out-of-state employer, or have moved to another state since they began collecting UI benefits. Under federal law, states are required to set up an Interstate Benefit Plan, which allows a worker who lost his job in one state to collect UI benefits in another state in which he resides. 26 U.S.C. § 3304 (a)(9)(B) [56]. The Massachusetts law governing interstate claims appears at G.L. c. 151A § 66 [57]; 430 CMR §§ 4.05 and 4.09 [3].

As a result of a change in federal regulations in January 2009, an interstate benefit claimant may file a UI claim in any state in which she had wages during the base period and in which she qualifies for UI under that state’s laws. (Under a prior regulation, a claimant could file a claim in any state in which she had base-period wages or in which she resided.)

The UI law of the state in which the UI claim is filed (i.e., the paying state) controls in interstate claims. 20 C.F.R. 616.8 (a) [58]. That state investigates the claim and, unless an issue has already been determined by the transferring state (any other state in which the claimant had covered employment and base-period wages and that transfers those wages to the paying state), determines eligibility and conducts redeterminations or appeals. If a state denies a combined-wage claim,
it must inform the claimant of the option to file in another state in which the claimant also had covered employment and base-period wages. 20 CFR 616.7(f) [59]; 430 CMR § 4.09(7) [3].

Where the claimant had collected regular unemployment benefits from two states, the Board ruled that if the original determination of such eligibility was issued more than 1 year before DUA caught and corrected the error, the claimant cannot be required to repay DUA for those benefits, if there is no intentional misrepresentation by the claimant. BR Issue ID: 0002 4648 63 (4/22/14).