A special provision in the UI statute limits the 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 the worker will not qualify for UI benefits. G.L. c. 151A, § 28A [1]. The burden of proof for proving that a claimant has reasonable assurance of reemployment falls on the employer.  BR-0016 2670 84 (1/29/16) [2] (Key); BR00049 3313 41 (3/31/21) (affirming employer’s burden of providing evidence of reasonable assurance of reemployment). According to G.L. c. 151A, § 28A, the offer of re-employment for the following academic year or term must be made under economic terms that are not considerably less than the current year, meaning that the employee must be offered no less than 90% the amount that they earned in the current academic year. For example, a school district’s offer of re -employment for a 10-month position to a 12-month bus driver was not reasonable assurance because if the bus driver accepted the 10-month position, he would have earned only 83%, not the threshold 90%, of the amount he had earned in the previous academic period. BR-0026 5187 26 (2/27/19).

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 [3] (9/18/2009) (Key) (institution whose mission was to make art accessible to the public did not fall under § 28A [1]); BR-0021 7731 88 (3/29/18) (Key) (holding that an employer’s 11-week summer sailing program does not make it an educational employer within the meaning of § 28A);
• If the claim is being filed between two successive academic years or terms;
• If 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. See BR-0010 7230 82 (9/16/14) (Key); BR-0047 7668 22 (2/18/21) (letter from school employer insufficient to provide reasonable assurance when factors suggested uncertainty in availability of number of hours and similar economic terms due to uncertainty with COVID-19).

As professional public school employees earn professional teacher status after three years under G.L. c. 71, §41 [4] (Tenure of Teachers and Superintendents; Persons Entitled to Profession Teacher Status), they are automatically considered to have reasonable assurance of reemployment in the following academic year unless they are officially notified by June 15th of the academic year that they will not be returning to their position the following September.

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 [5]. 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, [6] and the worker is entitled to UI. BR-6931108 [7] (5/12/14); BR-0047 75652 42 (11/23/21) (finding bus driver did not receive opportunity to perform suitable services, i.e., services at the same or higher pay, when the school offered reduced hours due to a hybrid school schedule).

Under G.L. c. 151A, § 28A(c) [6], 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. This provision was narrowly construed to allow an award of partial UI benefits to a school bus driver who had no work and was not paid during the Thanksgiving break. Cape Cod Collaborative v. Dir. of Dep't of Unemployment Assistance, 91 Mass. App. Ct. 436, 76 N.E. 3d 265 (2017). The Court reasoned that where the statute precludes UI for "any week commencing during an established and customary vacation period or holiday recess" (emphasis in decision), as the week did not commence during a holiday recess where it started on a Wednesday, the exclusion in § 28A(c) did not apply. 91 Mass. App. Ct. at 441, 76 N.E. 2d at 269. See also BR-0022 1445 55 (4/27/18) (holding that a full-time, 12-month, ABA technician who was required to work part-time for six weeks over the summer, G.L. c. 151A, § 28A(b) [6] is not precluded from receiving partial UI during that time. However, the claimant could not collect UI in the weeks immediately before and after the six-week summer program due to G.L. c. 151A, § 28A(c) [6]. Such weeks were a customary vacation period where the claimant worked immediately before and had reasonable assurance that she would work immediately after such period).

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 benefits despite a reasonable assurance of reemployment the following academic year. BR-114638 (9/13/2011) (Key). 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 subsidiary jobs are distinguished for eligibility purposes. (For the distinction between a primary and a subsidiary job, see Question 45 [8].) 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 subsidiary job, then the wages from the subsidiary job will be excluded in determining the amount of the claimant’s benefit rate and credit. BR-109037-OP [9] (8/4/2009) (Key); 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. See BR-121272 (4/27/12)

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 DOL UIPL issued 27 years earlier. See UIPL No. 4-87 [10] (12/24/86), https://wdr.doleta.gov/directives/attach/UIPL/uipl1987/uipl_0487.cfm [11].

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. AH c. 11, § 2F.6; BR - 0015 4196 77 (12/30/15) [12]. 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 - 0016 5329 77 [13] (1/20/16) DUA's policy considers “substantially less” to be a reduction of 10% or more, i.e. the claimant will not earn at least 90 percent of the amount earned in the first academic year or term. AH, c. 11, § 2C.4. Consequently, 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 - 0002 1339 07 (5/12/14). 

The Board looks at the course schedule history for the adjunct. BR - 0013 6586 83 [14] (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 - 0016 2670 84 [2] (01/29/16) (Key) (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-0017 6915 85 (10/19/16) (Key) (holding that the appropriate comparison for adjuncts paid by the course and hired one semester at a time is to compare an offer with the economic terms of the most recent academic semester)  BR - 0016 6123 65 (04/27/16) [15] (finding that an adjunct who had had four classes canceled in the last eight 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 - 0016 2822 60 (11/25/15) [16] (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 the adjunct's particular program, this can be sufficient grounds to show there was no reasonable assurance for the employee. BR - 0016 3028 44 (5/18/16) [17] (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 - 0016 2085 38 [18] (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 [19] (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 other firms. As such, the claimant’s eligibility for UI is based on her separation from the temp agency, not from the client employer.  BR-0020 4771 70 [20] (5/16/17) (holding that where claimant had established mitigating circumstances for failure to meet client employer’s expectations, this was nonetheless not relevant for purposes of qualifying for UI). 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, the worker files for UI benefits without first contacting the temp agency for reassignment. G.L. c. 151A, § 25(e) [21], as amended by St. 2003, c. 142, § 8 [22]. 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 the temporary help firm upon completion of an assignment.” Id., 430 CMR 4.04 (8)(b)(2) [5] (emphasis added) or had good cause for failing to request another assignment. 430 CMR 4.04(8)(c) [5]. Therefore, the Board held that the claimant took sufficient steps to satisfy the law where the actual practices of a temporary help firm and its employer-clients misled the claimant to believe that she was employed by the client companies, that the temporary help firm was simply the payroll company and, as a result, the claimant had contacted the client company not the temporary help firm for more work at the end of her assignment.  BR-0024 4369 85 (8/24/18) (Key).

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) [5]. 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) [5] 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-0025 3033 83 (12/05/18) (where the claimant had not worked for the employer temporary-staffing agency for over two years and was not provided with a new written notice or reminded of the requirement to request re-assignment during his latter period of employment with the employer, the claimant had good cause for his failure to request re-assignment at the conclusion of his temporary assignment); See BR - 0014 5562 05 (10/1/15) [23] (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 (01/20/2012) (Key). 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 employees to establish that they did request another assignment and, thus, was discharged rather than voluntarily quit.  BR - 0002 1746 84 (8/29/13); see also G.L. c. 151A, § 25(e)(1) [21]. The Board looks to see if the spirit of the law was met, 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) [5], 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) [21]” (Board’s emphasis). BR-118830 (11/8/2011).  Likewise, where the temp firm sent a claimant an email stating that her assignment had ended and adding that “we will be in touch as soon as possible regarding another opportunity,” thus failing to offer the claimant a new position, the Board held that the claimant did not need to contact the temp firm and overruled the decision of the review examiner as based on an unduly formulaic interpretation of the statute.  BR-0021 9932 58 (3/16/18).  Similarly, although the temp firm instructed its employees to request a new assignment by calling an 800 number, the claimant satisfied the statutory requirement to request a new assignment before filing a UI claim by asking the employer’s human resource representative about a new assignment.  BR-0021 5297 05 (19/24/17). 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) [21] 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 client organization, this communication is sufficient to fulfill the obligation for the employee to contact the agency. BR-0016 0869 84 (3/24/16) (Key); BR - 0016 9906 45 (4/20/16) [24]; BR - 0016 3525 25 [25] (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 - 0014 4820 58 [26] (8/24/15).

A temporary employee also does not have to take an assignment that is offered if the employee refuse for good cause and this singular contact is all that is necessary to meet the requirements of the statute. BR - 0015 1070 15 [27] (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 - 0015 2809 79 (11/ 23/15) [28]. 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 - 0014 4271 40 [29] (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 - 0017 8311 63 [30] (8/29/16); BR - 0017 1846 77 (8/24/16)(email at end of work assignment is sufficient); 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) [21]. “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 - 0010 6162 10 (9/19/14); BR-0020 5537 93 (8/21/18) (reaffirming Board precedent).

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 - 0013 2758 [31](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 [21]; or whether the employer is a true temporary agency. BR - 0017 4026 19 (7/28/16).

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; or whether the employer is a true temporary agency.  BR-0017 4026 19 (7/28/16)

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 [32]). Likewise, it often happens that employees work for a temp agency on long-term assignments or have breaks between assignments. If employees are provided notice about the requirement to seek reassignment only at the time of their initial hire, it is reasonable to argue that temp agnecies have a duty to provide new notice the temp workers are rehired or even at the time the most recent assignment ends. 430 CMR 4.04 [5] et seq [5].

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 [33], Suitability, Prevailing Conditions of Work). AH c. 7, § 10D.2 (requiring an inquiry into whether the work is suitable where a claimant declines another assignment from the temp agency); 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; “[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 one and a half years and was offered a six-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 [34] (3/3/10). Similarly, a client company's offer of the possibility of work with reduced hours was neither suitable nor a cognizable offer of continued employment. BR - 0018 5427 37 [35] (10/31/16), nor a cognizable offer of continued employment.  BR-0018 5427 37 [36] (10/31/16). Nor did a claimant refuse an offer of suitable work where a one-year assignment of fulltime work ended, and at the end of that assignment, the temp agency offered the claimant a job of roughly 16 hours a month. BR-0016 2073 23 (12/24/15) (Key).   And where a claimant contacted her temporary-agency employer prior to filing a claim but turned down an assignment that was unsuitable due to its commuting distance, the claimant had satisfied the notice requirement.  The Board reasoned that the communication provided the temporary employer with actual notice of the employee’s availability for reassignment to suitable work. BR-0002 2757 85 (9/20/13) (Key).

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 - 0017 4217 90 [37] (9/30/16); BR-998249 (10/31/14); see also Hunt v. Dir. of the Div. of Emp't Sec [38]., 397 Mass. 46, 48, 489 N.E.2d 696, 697 (1986). (See Question 8 [39], Suitability.)

Urgent, Compelling and Necessitous 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) [21]; 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 [40].)

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) [21]  if it has “a reasonable probability of continuing for a[n]… indefinite period of time.” BR-10181653 (11/3/14); see also BR-0010 6162 10 (9/29/2014) (employment is permanent 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.” Often, employers unlawfully misclassify  their employees as “independent contractors” in order to reduce payouts for unemployment, workers’ compensation, and other employee costs. The UI law uses a three-prong "ABC 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 prongs:

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

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

(C)   The worker is customarily engaged in an independently established business of the same nature as the service performed. G.L. c. 151A, § 2 [41].

The employer bears the burden of proof on all 3 prongs. If a contract exists that gives the employer the right to control and direct the employee’s performance, the employer fails prong A, even if the employer does not exercise this right. AH c. 3, § 4A.2. 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 [41].

• Subcontracting Concepts, Inc. v. Comm'r of the Div. of Unemployment Assistance [42], 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).
• Driscoll v. Worcester Telegram & Gazette [43], 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). 
• Comm'r of the Div. of Unemployment Assistance v. Town Taxi of Cape Cod [44], 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); however, delivery drivers for a bakery were not independent contractors because they were not permitted to carry competitors’ products without the employer’s prior approval.  BR-108261-XA (3/10/10) (Key).  And pedicab drivers who were contractually prohibited from using their pedicabs for other purposes and from operating a similar business within the employer’s area of business and for 12 months following their lease were employees.  BR-117473-XA (1/24/12) (Key).  Similarly, an employee of a delivery company under a three-year non-compete clause was an employee.  BR-120513-XA (4/13/12) (Key); And owner-operator truck drivers who determined their own routes, hours, truck-repair/service providers, and insurance providers were 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-112274XA (2/09/12).
• Coverall N. America, Inc. v. Comm'r of the Div. of Unemployment Assistance [45], 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); cf BR-0021 5645 27 (7/19/18) (holding that a managing editor for an advertising company who worked at home was nonetheless an employee where the employing unit failed to show that it had not “directed [the claimant] in how he performed his services").
• BR-033 0693 47 (Sept. 28, 2020) (graphic designer working in marketing department of food and beverage company was “employee” subject to employer’s control under Prong A where claimant worked a set scheduled, was required to report to the employer’s worksite, used materials and equipment provided by the employer, reported to a supervisor, and was required to attend employer meetings).
• BR-0031 4060 69 (Mar. 26, 2020) (Claimant hired to captain a fishing vessel was employee under Prong B, as he performed services in the usual course of the employer’s business of commercial fishing. The claimant performed services at the company’s “place of business” because the company owned the fishing vessels, and the fishing services were necessarily performed on the  vessels).
• BR-SEC2-19-001 (4/24/19) (holding that the employing unit failed to show that golf lesson services performed at the employing unit’s driving range and golf course were not employment where the services were done at the employing unit’s place of business, and the services were similar to those already provided by another employee).
• BR-SEC2-18-002 (2/7/19) (Key) (Personal trainers and group exercise class instructors were held to be employees of the employer fitness club. Employer failed to sustain its burden that these services were outside the usual course of the business for which the services are performed where the services at issue were offered on a regular and continuing basis, and the employer scheduled exercise class for the instructors, provided equipment for trainers and exercise classes, and advertised for the services and portrayed many of its trainers and instructors as members of the staff).
• BR-0019 6946 15 (9/25/17) (Key & affirmed by D. Ct.) (holding that employer failed to show that internet video production services were not employment where claimant spent time every day working at premises leased or owned by employer, services were not performed outside of the places of the employing unit’s enterprise, and requiring the claimant to produce hundreds of videos took so much time that claimant was incapable of offering his services to other clients).
• 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 - 0002 4356 65 [46] (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-106002-XA (6/23/08) (Key); similarly, mortgage originators who work under a broker’s license are employees. BR-102711-XA (11/21/07) (Key).
• BR-121929-XA [47] (6/26/12) (Key & affirmed by D. Ct.) (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) [41], as to be employees, notwithstanding the tutors’ high level of skill and the fact that several tutors held themselves out as independent contractors).
• BR-110709-XA [48] (1/13/11) (Key) (where a carpenter performing services in customers’ homes for the employer’s remodeling company was not a registered home improvement contractor under G.L. c. 152, § 14 [49], he was incapable of performing services as an independent contractor as a matter of law).

Employers are required to “keep true and accurate records of all individuals employed” G.L. c. 151A, § 45 [50], and to pay contributions based on the wages of those employees. 430 CMR 5.03(3) [5]. 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.

Employers who misclassify their workers have almost certainly not provided wage records to DUA. The result is that claimants who apply for UI after separation from those companies are often issued a monetary disqualification reflecting no wages on record for the claimant (or, if the claimant had other base period employment, they may receive a reduced benefit amount as a result of missing wages). Currently, to challenge their misclassification, claimants must appeal their monetary determination and provide DUA evidence of their earnings. However, this process is cumbersome, and often leads to significant delays in claim payments due to the complexity of adjudicating employment status. Despite this procedure, DUA is in fact required by its regulations to establish monetary eligibility based on a claimant’s own statement of wages in the absence of employer-provided wage information. 430 CMR 5.04(3). Recent federal case law suggests that the delays in payment which result from an unemployment agency’s failure to establish monetary eligibility based on a claimant’s own evidence of their wages where an employer has failed to report wages violates the “when due” requirement for timely payment of UI benefits. See Islam v. Cuomo, 475 F.Supp.3d 144, 161 (E.D.N.Y. 2020).

In 2008, Governor Patrick signed Executive Order #499 [51] establishing the Joint Employment Task Force on the Underground Economy and Employee Misclassification, later codified in the General Laws. St. 2014, c. 144 [52], §§ 23, 24, adding § 25 [53] to G.L. c. 23 [54] and amending G.L. c. 62, § 21 [55]. 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 [56], https://www.mass.gov/orgs/the-council-on-the-underground-economy-cue [56] are available to provide information and to receive complaints about suspected cases of misclassification. A toll-free referral line (1-877-96-LABOR) and email address (CUETIPS@Mass.gov [57]) are available to provide information and to receive complaints about suspected cases of misclassification. In 2020 (the most recent report published to date), DUA reported recovery of just over six million dollars in CUE-related cases, down from a high of just under $16 million in 2014.  

 

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. Dir. of the Div. of Emp't Sec [58]., 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. Dir. of the Div. of Emp't Sec [59]., 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, the teacher had made no claim against the other town nor proved that eligibility for UI resulted from the separation from that job).

However, a worker treated as a full-time employee cannot be considered an on-call worker even though the work is variable hours. BR-109764 (1/21/10) (Key). Similarly, an employee hired for full-time work and whose employer reduces his hours to part-time on call, is in partial unemployment and the “Mattapoisett doctrine” does not apply. BR-113830 (3/16/11) (Key). Additionally, where a worker has been laid off from a full-time job in the base period, the worker's on-call part-time benefit year job did not prevent the receipt of partial UI benefits.  BR-111378 (5/21/10) (Key). AH c. 9, § 2C.4.b. Similarly, on-call employment established during the lag period (the period between the end of the last completed calendar quarter and the beginning of the benefit year) and that period is not used as part of the claimant’s base period, the claimant is not subject to disqualification as an “on call” employee. AH c. 9, § 2C.4. 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) [60]; 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 eight months of significant hours had good cause to quit). Moreover, "on-call" should not be confused with a variable schedule where the employer changes the hours and shifts week by week. AH c. 9, § 2C.4.

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 - 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 - 0011 6741 52 [61] (7/24/14).

Note: Both Mattapoisett [58] and Bourne [59] 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. See AH c. 9, § 2C.4.b.

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, https://www.nelp.org/publication/out-of-sync-how-unemployment-insurance-rules-fail-workers-with-volatile-job-schedules/ [62].

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) [63]. 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. Comm'r of the Dep’t of Emp't & Training [64], 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 Dir. of the Div. of Emp't & Training [65], 437 Mass. 295, 297, 771 N.E.2d 153, 155-56 (2002) (no decrease in rentals or revenue); Reed Nat. Corp. v. Dir. of the Div. of Emp't Sec [66]., 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. Dir. of the Div. of Emp't Sec [67]., 378 Mass. 51, 389 N.E.2d 410 (1979); Adomaitis v. Dir. of the Div. of Emp't Sec [68]., 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 Exec. Office of Labor & Workforce Dev [69]., 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 Court affirmed the Board of Review’s decision.  M-63772 – M-69116 (4/24/13) (Key).  The Board found that the burden of proving a work stoppage also lies with the employer. The employer failed to establish a work stoppage where revenue declined less than two percent and then employer managed to perform between 80 and 98 percent of its business. Id.

However, the burden is on the claimants to prove that they fall 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. Dir. of the Div. of Emp't Sec [70], 349 Mass. 358, 208 N.E.2d 234 (1965). This bar 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) [21]. 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. Dir. of the Div. of Emp't Sec [71]., 347 Mass. 730, 200 N.E.2d 272 (1964). If the "direct interest" test is met, the bar to UI benefits does not apply before the strike begins if the individual is involuntarily unemployed during contract negotiations, nor does it apply after the strike has ended if the individual is not recalled within one week of the end of the strike. G.L. c. 151A § 25(b). [21]

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 [21].

Legislation enacted at the end of 2018 provides that employees who are locked out and who have exhausted all other state or federal UI benefits are eligible for up to 26 times their weekly benefit amount or until the lockout has ended, whichever period of time is shorter. St. 2018, c. 338, amending G.L. c. 151A, § 25 (b)(4) [21] and adding G.L. c. 151A, § 30(d) [72].

Under appropriate circumstances, a worker may be eligible for workers’ compensation benefits under G.L. c. 152 [73] and UI benefits under G.L. c. 151A [74].  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 [75], 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 [21] (disqualification for benefits) and G.L. c. 152, § 36B [76] (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) [21] because someone who is completely disabled does not meet the “able and available for work” test required by G.L. c. 151A, § 24(d) [21]. However, the Board has held that a review examiner erred in concluding that by accepting a Workers’ Compensation lump sum settlement, a claimant was precluded from continuing to work for the employer as a matter of law or that by signing the agreement, the claimant voluntarily ended the employment relationship.  BR-0013 5701 21 (4/27/15) (Key) (where claimant was terminated for failing to provide medical documentation to support a medical leave even though the claimant had provided the documentation, the claimant was discharged for a non-disqualifying reason, and as the presumption that a claimant cannot return to work is rebuttable, it did not constitute a bar to continued employment or render his leaving voluntary). For a discussion of the impact of lump sums under the Workers Compensation law on UI receipt, see AH c. 11, § 5D.3.

A worker who receives workers’ compensation benefits for specific injuries causing disfigurement, under G.L. c. 152, § 36 [77], 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. AH c. 11, § 5D.3. Similarly, a worker who suffers only a partial disability for workers compensation purposes may be eligible to collect UI. 

Under G.L. c. 152, § 36B [76] of the Workers Compensation Act, “[a]ny unemployment compensation benefits received are to be credited against partial disability benefits payable for the same time period.” See Nason et al., Workers’ Compensation, 429A Mass. Practice Series § 18.27, 3d ed. Nov. 2018). “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) [76].  

In contrast to the arguably harsh limitation of UI for workers suffering partial incapacity under G.L. c. 152, § 35 [78], 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 seven 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) [79]. 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: Claimants who are totally disabled, laid off and who receive workers compensation total disability benefits for at least seven weeks should consider not applying for UI until they are looking for work and a doctor certifies that they are 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 claimants will not be able to receive UI while they are totally disabled. Unfortunately, DUA takes the position that claimant who mistakenly apply for UI in this situation cannot withdraw their claims. 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) [80]. (See Question 8 [33]).

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, available at /node/37847 [81]. A DUA memorandum implementing this SSA guidance is available at /node/30888 [82].

A claimant receiving SSI and SSDI who provides medical documentation that the claimant can work will not be disqualified. AH c. 4, 2C.5&6. (See Appendix Q [83] for the information DUA requests in order to make this determination). Only if the documentation indicates that the claimant is unable to work on even a part-time basis with a reasonable accommodation should DUA issue the Notice of Disqualification.

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) [79] and 29(b) [84] of G.L. c. 151A [74].

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 the claimant 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 [85], amending G.L. c. 151A, § 29(d)(6) [84] to eliminate financial offset. 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 percent; whereas, if the employee makes any contribution, the UI benefits are reduced by 50 percent of the weekly retirement benefit. Lynch v. Dir. of the Div. of Emp't Sec [86]., 372 Mass. 864 (1977); BR-2015465 [87] (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) [84].

An employee who receives any remuneration from their 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) [79]. 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 six 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. Comm'r of the Dep’t of Emp't & Training [88], 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. Comm'r of the Dep’t of Emp't & Training [89], 40 Mass. App. Ct. 249, 662 N.E.2d 1048 (1996); Dicerbo v. Comm'r of the Dep’t of Emp't & Training [90], 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).

In these circumstances, where a claimant agrees to take a lump-sum payment in return for a release of claims, it is important that the employer not contest the claimant's UI eligibility. Helpful language to be included in a release of claims to secure this outcome will specify that, if contacted by DUA, the employer will accurately state that the claimant was terminated [for reasons adequately consistent with the facts and consistent with eligibility], that there was no misconduct or rule violation, and the employer does not dispute that the claimant is eligible for UI as of [specified date].

Lump sum payments where there has been a plant closing at a business of 50 or more employees, or where at least 50 percent of employees have lost their jobs, are not disqualifying. G.L. c. 151A, §1(r)(3) [79].

For information concerning the effect of early-retirement incentive packages and voluntary severance packages on UI eligibility, see Question 23 [91].

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) [92].

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 [93], [94] 4.75 [93]. 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 [95] (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) [84].

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 [93] 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 [96]., 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 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 [97] (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) [21], ¶10.

Constructive-Deduction Regulations and Amended Statutory Provision

DUA’s regulations, at 430 CMR 4.76 [93], 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 [98] (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) [93].
• 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) [93] (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) [93].

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 [99]. 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) [99]).

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 [100] (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 [52] amending G.L. 151A, § 29(d) [84]. 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) [101]. The Massachusetts law governing combined wage claims appears at G.L. c. 151A § 66 [102]; 430 CMR §§ 4.05 and 4.09 [5].

As a result of a 2009 change in federal regulations, interstate UI benefit claimants may choose to file a UI claim in any state in which they had wages during the base period and in which they qualify for UI under that state’s laws. 20 CFR 616 [103] (Under a prior regulation, claimants could file a claim in any state in which they had base-period wages or in which they 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) [104]. 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) [105]; 430 CMR § 4.09(7) [5]. See UIPP No. 12-17, 2/28/17, Adjudication of Unemployment Insurance Combined Wage Claims Issues, available at https://wdr.doleta.gov/directives/attach/UIPL/UIPL_12-17.pdf [106].

Where the claimant had collected regular UI from two states, the Board ruled that if the original determination of such eligibility was issued more than one 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 - 0002 4648 63 (4/22/14).