1. Unemployment Insurance
September 13, 2012
Massachusetts Continuing Legal Education
Massachusetts Law Reform Institute
&
Greater Boston Legal Services
Basic Benefits Training

2. What Is Unemployment Insurance?
Greater Boston Legal Services
4/6/2017
What Is Unemployment Insurance?
Non-means tested cash assistance program established by Congress in 1935
Law and policies set generally by federal government
States determine benefit levels, duration & disqualification
Employers are source of funding for UI benefits, but only taxed on 1st $14,000 (Solvency Fund)
UI is first line of defense in a recession
Section 74: the statute shall be liberally construed in favor of the worker and the worker’s family
An Overview of Unemployment Insurance

3. Resources to Understand Unemployment
State law: G.L. c. 151A
DUA regs: 430 CMR; 801 CMR sec. 1.02
DUA policies: Service Representatives Handbook
Mass. Unemployment Advocacy Guide ( )
DUA web site:
Board of Review Decisions:
DOL website: workforcesecurity.doleta.gov/unemploy/
Legal Services Website:
Other good resources: Thomas A. Mauet, Trial Techniques
Robert Schwartz, Your Rights on the Job, 5th Ed.

4. Funding Unemployment Insurance
A tax is levied on every employer covered by the law.
The tax rate is based on the taxable wage base, the # of employees, the # separated from employment in the past year, and tax schedule.
Nonprofits and governmental employers can self-insure.

5. The Administration of Unemployment & Job Training Programs

6. Eligibility for Unemployment
UI eligibility if:
totally or partially unemployed
separated from employment through no fault
earned at least $3,500 and worked approximately 15 weeks in the prior year (20 weeks for federal UI)
capable of, available for and actively seeking work (including part time work w/ or w/o reasonable accommodation)
Base Period & Benefit Year

7. How To Apply
File a claim or check status of claim with the Massachusetts Department of Unemployment Assistance (DUA)
Call or
Call by last SS#: M-0,1,2; T-3,4,5; W-6,7;Th-8,9.
For more information, go to

8. Calculating An Unemployment Check
In most cases, UI will be about half of average weekly gross wages
up to the maximum (currently $653/week)
plus an allowance of $25 per dependent child
Dependency allowance is capped at 50% of UI check
Check is usually calculated on the basis of the 2 HQ earnings, total benefits are the lesser of 36% of BPE or 30 x WBA

9. Duration of UI Benefits
State UI may last up to 30 weeks (now during fed. ext weeks)
May be less if work income fluctuated or worked less than a year
(See UI Advocacy Guide, Appendix C)
UI may be extended
to participate in training;
or when high unemployment rate triggers federal extended benefits

10. Federal Extended UI
Program in effect from 7/6/08 – week ending 12/29/12 (originally 99 weeks through EUC Tier I, II, III, IV and EB)
Eligibility:
currently unemployed
worked equivalent of 20 weeks during base period
EUC: Tier I - benefit year expired (BYE) between 5/5/07 & 12/15/12; Tiers II – previous Tier exhausted on or before 12/22/12; last payable week for EUC is 12/29/12.
EB: 3/22/09 thro’ 3/8/12; file by 4/1/12; last payable week – 4/7/12.
Current maximum: 26 weeks (state) & weeks (fed – EUC: Tier I – 20 wks if filed before 9/2/12, on or after 9/2/ weeks; Tier II – 14 wks) = up to weeks (note: EB & Tier III & IV benefits no longer available). After fed. benefits end on 12/29/12, state benefits go back up to max of 30 weeks.

11. Must any job be accepted?
No, only “suitable” job. A job is not suitable if:
it is detrimental to health, safety, or morals
it does not fit employee’s training or experience
It has different pay, hours & benefits or doesn’t meet the “the prevailing conditions of work test”
the commuting distance is unreasonable/not comparable
it is vacant due directly to a strike, lockout, or other labor dispute
it would require joining a co. union or limit joining or retaining membership in a union.
Special rules apply for Domestic Violence situations

12. To make sure checks keep coming or to establish eligibility if initially denied:
Every week must use WebCert or TeleCert (interchangeably) to certify active work search.
TeleCert: (617) (English and Spanish)
WebCert: go to and click on “File Weekly Unemployment Claims Online” located on the right-hand side of the page to sign up for WebCert
Claimant must keep certifying eligibility so that automatically receive UI even if initially denied UI
Predate may be possible - see G.L. c.151A § 62A (g) (employer’s failure to provide notice); SRH 1622 (good cause, inability to contact DUA, unaware of right to file)

13. To make sure checks keep coming (2):
Under recently passed federal law, UI claimants will have more stringent work search requirements while receiving federal benefits, including:
Keeping a log of all work search activity
Mandatory meetings at local career centers
Alleged failure without good cause (see SRH 1614) may result in suspension of UI!
Contact GBLS if this happens to your client.

14. Can a claimant work part-time without losing the whole UI check?
Greater Boston Legal Services
4/6/2017
Can a claimant work part-time without losing the whole UI check?
Yes – If earn an amount less than one-third of UI
Gross earnings up to a third of the weekly benefit rate are disregarded. This is the “earnings disregard.”
Additional part time earnings are deducted $ for $ from UI.
Must report earnings
DUA does a cross match with DOR
IMPORTANT NOTES:
1. If quit part-time job for a disqualifying reason, deductions will continue to be made from UI check. This is a “constructive deduction.”
2. Partial earnings may result in a reduction of federal extended benefits after expiration of benefit year (if benefit year ended before July 22, 2010), after July 22, 2010 can choose to continue on higher federal rate if will receive at least $100 or 25% more in benefits.
An Overview of Unemployment Insurance

15. Can a claimant participate in training while receiving UI?
Yes, if first approved by DUA.
Training cannot last more than 2 years.
3 yr. for combined ESOL/Basic with Vocational training; stand-alone ESOL is now approved
Job search is waived while in training
Extended UI for training: apply for training w/in 15 weeks of a new or continued claim: note tolled during federal extension, i.e. until Dec. 29, 2012
if approved, can get up to 26 weeks of extended UI during training. (Ex. G)
Can apply if benefit year ended and even if no longer collecting federal benefits.
Find a training program at One-Stop Career Centers (see UI Advocacy Guide, Appendix A)
Pell grants up to $5,350 – see:

16. Health Insurance for the Unemployed (1)
Must be 400% or less of FPL, MA resident Eligible for MA UI from a MA Employer
Two Types of Coverage:
(A) Premium Assistance Plan:
Claimant had prior coverage
Claimant pays for existing coverage
Partial reimbursement for premiums
(up to 80%: currently up to $1,200 for family plan and $500 for individual coverage)

17. Health Insurance for the Unemployed (2)
Greater Boston Legal Services
4/6/2017
Health Insurance for the Unemployed (2)
(B) Direct Coverage Plan
If no prior coverage, or
If financial hardship (150% poverty), or
Expenses exceed 7% of income
COBRA option expired.
Note: copays depend on type of hospital-consult MSP schedule of benefits; in addition, DUA has recently imposed weekly premiums for some enrollees in DCP which claimants must agree to have deducted from their weekly check in order to remain eligible for DCP benefits, see 430 CMR § 7.07(2)(b)(1) & (2). See DUA’s website for more info.
For information and application: or
An Overview of Unemployment Insurance

18. Is UI Taxable? Yes. If want taxes withheld, must make a request.
DUA sends out 1099-G, available at or call 617/
If choose to withhold taxes from UI:
10% of weekly benefit will be withheld for federal taxes
5.3% for state taxes
If don’t withhold, responsible for taxes owed at tax time.

19. Non-Citizens Must be authorized to work to collect UI but:
Different requirements in base period & benefit year:
Base period: 3 categories (includes PRUCOL) (Ex. O) (2nd Page)
Benefit year: must prove work authorization (Ex. N)
Contact GBLS if questions about immigration status

20. Verification of Entitlement (SAVE)
Non-Citizens
Systematic Alien
Verification of Entitlement (SAVE)
Needs to provide A# and provide document verifying work authorization (Ex. P)
DUA sends it to ICE through SAVE: primary verification
If problem with document verifying work authorization; additional verification (Ex. O)

21. Sequence of a Claim

22. Sequence of a Claim (1) Claimant files claim with DUA
DUA notifies employer of claim (Ex. A)
Employer has 10 days to respond
If the employer checks “laid off,” benefits start shortly after a one-week waiting period.
If employer does not timely respond - not a party unless “good cause”
Alert: watch out for responses by employer “agents” e.g., TALX, USC.

23. Sequence of a Claim (2) If not a layoff, DUA conducts an investigation
DUA requests info from employer (Ex. B) and claimant (Ex. C)
DUA makes benefit determination (Ex. D & Ex. E)
DUA issues a Notice to Claimant of Disqualification (Ex. F) or
DUA issues claimant checks

24. Sequence of a Claim (3) Claimant’s Statement
assist claimant in presenting her claim to claims adjuster
use the fact-finding questions in SRH
help with chronology, relevant facts, state of mind, and supporting documents

25. Sequence of a Claim (4) Employer’s Statement
Employers outsource UI functions
Companies handling UI claims often have no first-hand knowledge
Consider contacting DUA Determinations Dept. for reversal if information is erroneous
Employer must now swear to truth of statement under pains and penalties of perjury CMR 5.02 (8).

26. Sequence of a Claim (5) Appeals:
If benefits denied claimant has 10 days to request hearing (30 days if good cause) (Ex. H)
If benefits granted employer has 10 days to appeal (30 days if good cause)
New regulation – 60 days if claimant is LEP and no limit if LEP and not informed in primary language. 430 CMR 4.14.

27. Sequence of a Claim (6)
DUA sends hearing notice (Note: postponement request deadline (Ex. I) (Luciano litigation)
DUA holds administrative hearing
DUA issues a hearing decision (Ex. J)
Decision should issue within 45 days of hearing request
Losing party has 30 days to appeal to Board of Review (Ex. K) (Pavian: reaffirmed postmark rule)
Always appeal meritorious case to Board --- if lack resources, advise claimant to do so.

28. Sequence of a Claim (7) Board of Review may do the following:
Deny further review (Ex. L)
Do nothing at all. Case deemed denied after 21 days (court appeal due within 51 days of appeal)
Allow & remand to DUA (Ex. M)
Allow & Board reviews record (Ex. M-1)
Allow & Board holds hearing (very rare)
(G.L. c. 151A, § 41)
Note: Board now posts decisions on web.

29. Sequence of a Claim (8)
Losing party has 30 days to appeal Board of Review’s decision to District Court
Claimant, employer & DUA are all parties (unless single party issue) – must serve complaint within 7 days of filing by certified mail, return receipt requested. G.L. c. 151A, § 42.
District Court decision can be appealed to Appeals Court and then to Supreme Judicial Court (by cert)
Claimants need to continue to certify their eligibility using WebCert or TeleCert during appeal process

30. Reconsideration/Redetermination
Remedy if time for appeal expired (& not more than one year since original determination)
Letter to DUA Director requesting reconsideration under G.L. 151A, § 71
Decision fully discretionary
If DUA initiates redetermination, must notify claimant of opportunity to present evidence before its decision and before checks are stopped [NEW]. (Ex. F-1; F-4)
G.L. c. 151A, § 71; 430 CMR 4.30 et seq; et seq.

31. Greater Boston Legal Services
4/6/2017
Waiver of Overpayment
Eligible for Waiver of Overpayment if:
there is no proof of fraud
and
re-paying the money would:
Either “defeat the purpose of benefits”
Or would be against “equity and good conscience”
G.L.c. 151A sec. 69; 430 CMR 6.00 et seq.; Ex. F-3: Notice of Overpayment
An Overview of Unemployment Insurance

32. Is it really fraud? Waiver available only if no finding of fraud
Examine whether fraud finding includes finding of fraudulent intent -- i.e., did claimant have “state of mind” to intentionally defraud DUA: see SRH 1462
If no intent, challenge through hearing or redetermination
LEP issues: see SRH 1463
Procedures currently being challenged in court by GBLS & MLRI contact us.

33. The DUA Hearing

34. Greater Boston Legal Services
4/6/2017
The DUA Hearing (1)
Informal Fair Hearing Rules: 801 CMR 1.02
Agency: DUA/Hearings Department
Hearing Officer: Review Examiner
Parties: Claimant and Employer (unless single party issue)
Your prep: ask to observe a hearing
An Overview of Unemployment Insurance

35. The DUA Hearing (2) Who can appeal: Either party
Evidence: Formal rules of evidence do not apply
Proceedings: Audio-recorded
Discovery:
DUA file
Personnel record (G.L. c. 149, § 52C)
Request only if strategic to do so

36. The DUA Hearing (3) Review docs in DUA’s Hearing File
UI Request for Information sent to employer
Examine date for timely return
Notice to Claimant of Disqualification
Statements from employer and claimant
Notice of hearing
Any other documents submitted by parties to claims adjudicator

37. The DUA Hearing (4) Preparation of Claimant
Take the time to thoroughly prepare your client
At least 3 meetings
Average time for case prep – 25 hours
Think about employer’s best case and how to meet it and confront bad facts
Write out direct, cross of employer and potential cross of your client
Role play with supervisor/colleagues and then prepare client
Describe hearing “scene” and what to expect at hearing

38. The DUA Hearing (5) Rights and duties of parties Present witnesses
Cross examination
Oral testimony
Documentary evidence

39. The DUA Hearing (6) Direct Examination Do not ask leading questions!
Use open-ended questions
Tell a story that fits with theory of case (see Mauet)
Chronology of events backwards
Group your direct into subject areas
Do not dwell on unimportant details
Do not interrupt your witness

40. Greater Boston Legal Services
4/6/2017
The DUA Hearing (7)
Re-Direct Examination
Your client or your witness
After your witness is cross-examined, you can re-direct
Re-direct only if you need to do so
Do not use it to bring out nit-picking points
Use your re-direct to:
Clarify a point, or
Elaborate on a subject (brought out on cross) that helps your client
An Overview of Unemployment Insurance

41. The DUA Hearing (8) Cross Examination Only if you must!
Did the witness hurt you?
Do you have real ammunition?
Do you know how the witness will answer the question?
Ask leading questions (require yes/no)
Avoid “why” or open-ended questions

42. Greater Boston Legal Services
4/6/2017
The DUA Hearing (9)
Documents and Objections
Relevance
Hearsay
Introducing a document into evidence
E.g., authenticity of document: dated, signed, letterhead
Privilege
An Overview of Unemployment Insurance

43. The DUA Hearing (10) Closing Argument
Make it short (< 2 minutes) & to the point
Connect the dots
Use to highlight the most favorable facts
Do not recite the entire hearing
Do not lecture the Review Examiner on the law
Can submit proposed findings of fact & rulings of law
If necessary, ask for 24 hours to conform facts to evidence

44. Interpreters
DUA provides interpreters at hearings at no cost to claimants
2-hour hearing
Claimant or claimant’s advocate
must request interpreter
Problems with Interpreters? Contact:
Marisa de la Paz, DUA Multilingual Services (617)

45. DISQUALIFICATION
Based on Separation

46. Disqualification: Discharge
Discharge: G.L. c. 151A, § 25(e)(2)
(1) Deliberate misconduct
(2) A knowing rule violation
Employer has burden of proof
Exception: Domestic Violence
No disqualification if discharge is due to circumstances resulting from domestic violence
Including individual’s need to address the physical, psychological and legal effects of DV

47. Discharge: “Deliberate Misconduct” …
Claimant must have engaged in “deliberate misconduct” in “willful disregard” of the employer’s interest
Claimant’s state of mind
Intentional disregard of employer’s interest and expectations
Employer must prove BOTH statutory elements

48. Discharge: “Knowing Violation” (1)…
of a “reasonable and uniformly enforced” rule or policy
A knowing violation requires intent
Claimant must have intended to violate the rule or policy
See: Still v. Commissioner of Employment and Training, 423 Mass. 805, 672 N.E. 2d 105 (1996)
Claimant must have been aware of rule or policy
Consciously aware at the time of the act

49. Discharge: “Knowing Violation” (2)
Rule or policy must be reasonable
Rule or policy must be uniformly enforced both with respect to other employees and the individual employee (so employers cannot disqualify a person for violations it had repeatedly tolerated in the past without imposing discipline)
NOTE: Incompetence does not constitute a violation

50. Discharge examples…disqualifying or not?
Swearing at a supervisor
Tardiness after “final” warning
Failure to meet production goals
Stealing guest property
Fighting with co-worker
Excessive absences to go to therapy
to deal with DV
Remember: state of mind

51. Disqualification: Leaving
Voluntary Quit: G.L. c. 151A, § 25(e)(1)
(1) Good cause attributable to the employer
(2) Urgent, compelling and necessitous reasons
Claimant has burden of proof
Exception: domestic violence

52. Voluntary Quit: “Good Cause”… attributable to the Employer
Claimant must have made reasonable efforts to resolve the problem unless futile
Exception: Domestic Violence
Exception: cases involving allegations of sexual harassment (See Tri-County Youth Programs, Inc. v. Acting Deputy Director of DET, 765 N.E. 2d 810, (Mass. 2002)); racial, or other unreasonable harassment (See G.L. c. 151A, §25(e), ¶5; 430 CMR 4.04(5))
General job dissatisfaction or unfair criticism are not grounds for good cause; however, substantial increase in responsibilities or decrease in pay may be sufficient
Consult: Your Rights on the Job to determine if employment law violations.

53. Voluntary Quit: “Urgent, Compelling & Necessitous”
Non work-connected reason – G.L. c. 151A, sec. 25(e), par. 3
Claimant must have made reasonable efforts to preserve job, unless futile
Employer’s account not charged (if insured)
Benefits paid from UI solvency fund
(also pays for dependency allowance, extended training benefits, quit because of domestic violence, and quit for another job – 430 CMR 5.05(4))
May raise “availability” issues
Key to these cases is thorough exploration of client’s circumstances.

54. Special rules for temp agency jobs:
Must prove that contacted temp agency to see if more jobs available before applying for UI. Note: notice must be provided to claimant in customary way, notice must include statement that failure to request reassignment will affect rights to UI, & the job must be suitable. G.L. c.151A, § 25 (e) par. 8,9; 430 CMR 4.04(8)(b)(2)).
Call GBLS at if claimant denied UI after completing a temp job.

55. Voluntary Quit Example…disqualifying or not?
Shift change or transfer
Unfair reprimand
Harassment
Inadequate pay
Lack of transportation
Domestic violence
Temp assignment ends