Workforce Services, Unemployment Insurance

Rule R994-402

Extended Benefits

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 33354
Filed: 01/28/2010 04:43:28 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to update the rule to ensure it complies with federal regulation.

Summary of the rule or change:

Extended benefits have not been available since 1984 and while they are not available now, it is possible with the current recession the state will hit the trigger for these benefits. The current rule is repetitive and leaves out some of the federal requirements for extended benefits. Making the necessary changes with the usual method of cross out and underlining was too confusing so the Department decided to repeal and reenact. There is nothing in the new proposed rule that is not mandated by federal regulations.

State statutory or constitutional authorization for this rule:

• Section 35A-1-104
• Subsection 35A-4-502(1)(b)
• Subsection 35A-1-104(4)

Anticipated cost or savings to:

the state budget:

This is a federal program and there will be no costs or savings to the state budget as a result of these changes. Extended benefits may result in costs to the state but not as a result of anything in these changes.

local governments:

This is federally funded and there will be no costs or savings to local governments as a result of these changes.

small businesses:

Small businesses will not be affected by these changes. There are no substantive changes to this amendment not in current rule.

persons other than small businesses, businesses, or local governmental entities:

There will be no costs or savings to any other persons. This is a federally-funded program, some reimbursable employers may incur costs if extended benefits is triggered but not as a result of any of these rule changes.

Compliance costs for affected persons:

There are no compliance costs associated with these proposed changes.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no compliance costs associated with this change. There are no fees associated with this change. There will be no cost to anyone to comply with these changes. There will be no fiscal impact on any business. These changes will have no impact on any employers contribution tax rate.

Kristen Cox, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Workforce Services
Unemployment Insurance
140 E 300 S
SALT LAKE CITY, UT 84111-2333

Direct questions regarding this rule to:

• Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/17/2010

This rule may become effective on:

03/24/2010

Authorized by:

Kristen Cox, Executive Director

R994. Workforce Services, Unemployment Insurance.

[R994-402. Extended Benefits.

R994-402-201. General Definition.

Extended benefits (EB) are paid during certain periods of high unemployment within a state. The maximum benefit amount for a claimant is one-half of the amount of his original regular claim up to a maximum of 13 times the weekly benefit amount. All extended benefits stop when the unemployment rate drops below a certain level. When the claimant has been unable to find work for an extended period of time and has exhausted all rights to regular benefits, extended benefits may be paid providing the state is in an extended benefit period as defined by Subsection 35A-4-402(7). A claimant does not have to have additional wage credits to qualify for extended benefits as the original claim is extended with the same weekly benefit amount. If the claimant does have sufficient additional wage credits and can qualify for a new regular claim, extended benefits are not allowed. There is no waiting week on an extended benefit claim. Availability requirements for extended benefits are different from those for regular claimants. The EB claimant must have no occupational restrictions, must reduce wage expectations and increase his work search efforts beyond those expected of regular benefit claimants. The only exception to this requirement is for claimants who have Department approval while attending school.

 

R994-402-202. Federal Requirements for Extended Benefits.

(1) Notwithstanding the provisions of the Utah Employment Security Act concerning regular benefits, an individual shall be ineligible for payment of extended benefits for any week of unemployment in his eligibility period if the Department finds that during such period:

(a) he failed to accept any offer of suitable work or failed to apply for any suitable work to which he was referred by the Department; or

(b) he failed to actively engage in seeking work as prescribed under Sections R994-405-305 and R994-403-118.

(2) Any individual who has been found ineligible for extended benefits by reason of the provisions in Subsection R994-402-202(1) shall also be denied benefits beginning with the first day of the week following the week in which such failure occurred and until he has been employed in each of four subsequent weeks, whether or not consecutive, and has earned remuneration equal to not less than 6 times the extended weekly benefit amount.

(3) For the purpose of extended benefits, the term "suitable work" means with respect to any individual, any work which is within such individual's capabilities, provided, however, that the gross average weekly remuneration payable for the work must exceed the sum of:

(a) the individual's extended weekly benefit amount, plus

(b) the amount, if any, of supplemental unemployment benefits payable to such individual for such week; and further,

(c) pays wages not less than the higher of:

(i) the minimum wage provided by Title 29 U.S. Code Section 216(b) of the Fair Labor Standards Act of 1938, without regard to any exemption; or

(ii) the applicable state or local minimum wage;

(4) Notwithstanding R994-402-202(3), no individual shall be denied extended benefits for failure to accept an offer of or apply for any job which meets the definition of suitability as described in that subsection if:

(a) the position was not offered to such individual in writing and was not listed with the Department of Workforce Services;

(b) such failure could not result in a denial of benefits under the definition of suitable work for regular benefit claimants in Subsection 35A-4-405(3) to the extent that the criteria of suitability in that section are not inconsistent with the provisions of R994-402-202(3);

(c) the individual furnishes satisfactory evidence to the Department that his or her prospects for obtaining work in his or her customary occupation within a reasonably short period are good. If such evidence is deemed satisfactory for this purpose, the determination of whether any work is suitable with respect to such individual shall be made in accordance with the definition of suitable work for regular benefit claimants in Subsection 35A-4-405(3) without regard to the definition specified by R994-402-202(3).

(5) No work shall be deemed to be suitable work for an individual which does not accord with the labor standard provisions required by Section 3304(a)(5) of the Internal Revenue Code and set forth herein under Subsection 35A-4-405(3).

(6) For the purpose of Subsection R994-402-202(1)(b), an individual shall be treated as actively engaged in seeking work during any week if:

(a) the individual has engaged in a systematic and sustained effort to obtain work during such week, and

(b) the individual furnishes tangible evidence that he has engaged in such effort during such week.

(7) The Department of Workforce Services shall refer any claimant entitled to extended benefits to any suitable work which meets the criteria prescribed in R994-402-203(3).

(8) An individual who has been denied benefits under the provisions of Section 35A-4-405(2)(b) shall not be eligible to receive extended benefits until after the end of the 52 week denial period and is then otherwise eligible for extended benefits and has subsequent to the date of such disqualification performed services in bona fide covered employment and earned wages for such services equal to at least six times the individual's weekly benefit amount.

(9)(a) Except as provided in subparagraph (9)(b) of this rule, payment of extended compensation shall not be made to any individual if he is filing against Utah from any other state under the interstate benefit payment plan, and an extended benefit period is not in effect that week in that state.

(b) Subparagraph (9)(a) of this rule shall not apply to the first two weeks for which extended compensation is payable to the individual.

 

R994-402-203. Elements to Qualify for Extended Benefits.

To be eligible for extended benefits the claimant must:

(1) exhaust regular benefits as defined by Subsection 35A-4-402(7)(h) or his benefit year must have ended after the beginning of the EB period;

(2) be ineligible for a regular claim in Utah or any other state or under any federal unemployment program;

(3) file for extended benefits in accordance with instructions;

(4) meet federal requirements for availability and work search; and

(5) accept suitable work which is offered in writing.

 

R994-402-204. Suitable Work.

(1) Suitable work for EB claimants includes work:

(a) in any occupation within the claimant's capabilities unless he can show that his prospects for obtaining work in his regular occupation are good, as defined in Subsection R994-402-202(3)(d)(iii); and

(b) paying at least the federal or state minimum wage provided the gross average pay exceeds the claimant's weekly benefit amount plus any supplemental unemployment benefit.

(2) Suitable work for EB claimants does not include work:

(a) available as the result of a strike or labor dispute;

(b) having wages, hours or other conditions of the work which are substantially less favorable to the claimant than those prevailing for similar work in the locality (for example, a skilled claimant, such as a carpenter, may be required to take a job paying the minimum wage in another occupation, but he does not have to take a carpenter job paying minimum wage if that wage is substantially less than the prevailing wage for carpenter work in his locality);

(c) which requires the claimant as a condition of being employed to join a union or to resign from or refrain from joining any bona fide labor organization;

(d) requiring modifications of other conditions of work which would not be considered suitable for a regular claimant, such as unsafe working conditions, work requiring a move or travel beyond normal commuting distance, etc.; except with regard to the type of occupation and the wages, standards for determining the suitability of work are the same for EB claimants as for regular claimants.

 

R994-402-205. Good Prospects.

When a claimant has a definite assurance of full-time employment in his customary occupation to begin within four weeks he is considered to have good prospects. He must continue to seek work, but it is not necessary to seek or accept employment consistent with the definition of suitable work for EB claimants. He may restrict his availability to occupations and conditions of employment as permitted for regular claimants.

 

R994-402-206. Position Offered in Writing.

A position is considered "offered in writing" if it is listed with the Department and the claimant is referred or offered a referral by the Department even if the claimant is given the referral orally. If an employer makes a verbal offer of work and the job is not listed with the Department, the provisions of Section 35A-4-405(3) may apply.

 

R994-402-207. Systematic and Sustained Work Search.

(1) A systematic and sustained work search means that the claimant must register for work with the Department and contact at least 5 employers including 3 in-person contacts each week, unless advised otherwise by an authorized Department representative. The claimant should have a realistic plan for finding employment. All of the employer contacts cannot be made on the same day except in circumstances where a work search on several days of the week is impractical. Work search contacts must be with employers not previously contacted. A claimant may not argue that in-person employer contacts are limited because of traditional methods of seeking work in a particular occupation or because of a limited number of employers in an occupation because the claimant may not limit himself to any particular occupation.

(2) There is no good cause for failure to make a systematic and sustained work search after the claimant has received instructions with regard to the required work search. If the claimant is ill or otherwise unable to seek work, but files a claim for benefits after being instructed with regard to work search requirements, benefits must be denied under Section 35A-4-402 and not under Section 35A-4-403(1)(c) unless the claimant was on jury duty. Benefits may be allowed if the claimant failed to make the required work search because he was on jury duty and benefits would have been allowed under similar circumstances to a claimant for regular benefits. If the claimant made the required work search but was unable to work for more than half the normal workweek, he or she may not be eligible in accordance with Sections R994-403-111c and R994-403-112c.

(3) If the claimant has obtained part-time work, he is still required to make a work search on those days when he is not working. The number of contacts may be reduced if the amount of time working is substantial.

 

R994-402-208. Filing Requirements.

Extended benefit claimants must report information as requested on special EB claim forms. If a claim form is submitted with information that clearly shows the claimant did not intend to receive benefits, but was merely providing information, benefits will be denied under Subsection 35A-4-403(1)(a) rather than under EB provisions which require an indefinite disqualification under the federal regulations.

 

R994-402-209. Burden of Proof.

The claimant has the responsibility to keep records of all employers contacted in search of work including the name and address of the employer, the date of the contact, the person contacted, the result of the contact, and the type of work sought, etc. Failure to keep such records or provide such information will result in a conclusion that a work search was not made unless other convincing evidence is provided.

 

R994-402-210. Period of Disqualification.

A claimant who fails to accept an offer of suitable work or fails to actively seek work must be denied benefits for the week in which such failure occurs and for the following weeks until he has had employment during at least four subsequent weeks and earned at least six times his weekly benefit amount. The earnings do not have to be in consecutive weeks, but must be bona fide employment. It is not necessary for the work to be in "covered" employment but it may not be self-employment.

 

R994-402-211. Requalification Requirement Following 5b2 Disqualification.

All disqualifications issued under the state provisions of the Employment Security Act continue to be in effect as provided by those laws on EB claims. In addition, a claimant who has been denied benefits under Subsection 35A-4-405(2)(b) is not eligible to receive extended benefits until he has returned to bona fide covered employment and earned at least six times his weekly benefit amount in employment subsequent to the disqualifying separation, even if the disqualification period has ended.

 

R994-402-212. Out of State Claimants.

Claimants filing EB claims against Utah who are living in states which are not in an EB period will be entitled to receive only two weeks of extended benefits. The amount of the payment, whether it is a full or partial payment, is immaterial. When a payment of any amount has been made for each of two weeks, whether or not consecutive, no further payments can be made.

 

R994-402-213. Overpayments.

Overpayments established on extended benefit payments are collectible in accordance with the provisions of Subsections 35A-4-406(4) and 35A-4-406(5).

 

R994-402-601. Notice.

Immediately after it has been determined that an extended benefit period will become effective or will end in the state, the Department of Workforce Services shall make public announcement and give personal notice calculated to reach the largest practicable number of interested persons within the state. Such notice at the beginning of an extended benefit period will state the first date on which potential claimants may file a claim for and become eligible for extended benefit payments, which group of claimants may qualify for extended benefits, what action must be taken to protect their benefit rights, and the date by which claimants must file to qualify at the beginning of the extended benefit period.

 

R994-402-602. Effective Date of EB Claim.

Claims for extended benefit payments will be filed on forms prescribed by the Department. The effective date of claims for extended benefits shall be the Sunday of the first week during which extended benefits are payable in accordance with Subsection 35A-4-402(7) provided the claimant has filed as instructed. The effective date of the EB claim will be backdated under Subsection 35A-4-403(1)(a) up to two weeks for claimants who were not given personal notice of the extended benefit period. The Department may further extend the time during which claims for extended benefits may be backdated upon a showing of good cause under Subsections 35A-4-403(1) and 35A-4-401(1)(b).]

R994-402. Extended Benefits (EB).

R994-402-201. General Definition.

When a claimant has been unable to find work for an extended period of time and has exhausted all of his or her regular benefits, EB may be paid providing the state is in an extended benefit period as defined by Subsection 35A-4-402(7). A claimant does not have to have additional wage credits to qualify for EB as the original claim is extended with the same weekly benefit amount. The maximum benefit amount for a claimant is one-half of the amount of his or her original regular claim up to a maximum of 13 times the weekly benefit amount. All EB stop when the unemployment rate drops below a certain level, even if the claimant has not used all of his or her EB. If the claimant has sufficient additional wage credits and can qualify for a new regular claim, EB are not allowed. There is no waiting week on an EB claim. Availability requirements for EB are different from those for regular claimants. Unless the claimant has good prospects as defined in R994-402-205, the EB claimant must have no occupational restrictions, must reduce wage expectations and increase his or her work search efforts beyond those expected of regular benefit claimants. The only exception to this requirement is for claimants who have Department approval while attending school.

 

R994-402-202. General Requirements for EB.

(1) Notwithstanding the provisions of the Act concerning regular benefits, a claimant is ineligible for EB during any week of unemployment in the claimant's eligibility period if the Department finds that during such period:

(a) the claimant failed to accept any offer of suitable work as defined in R994-402-204 or failed to apply for any suitable work to which he or she was referred by the Department; or

(b) he or she failed to make an active, good faith effort to secure employment as provided in Section R994-402-207.

(2) Any claimant who has been found ineligible for EB under Subsection R994-402-202(1) will be denied benefits until he or she has performed services in bona fide covered employment for at least four subsequent weeks, whether or not consecutive, and earned wages for such services equal to at least six times the claimant's weekly benefit amount.

(3) Notwithstanding R994-402-204, no claimant will be denied EB for failure to accept an offer of, or apply for, any job which meets the definition of suitability as described in that subsection if:

(a) the position was not offered to the claimant in writing as defined in R994-402-206 or was not listed with the Department of Workforce Services;

(b) such failure would not result in a denial of benefits under the definition of suitable work for regular benefit claimants in Subsection 35A-4-405(3) to the extent that the criteria of suitability in that section are not inconsistent with the provisions of R994-402-204 or

(c) the claimant meets the requirements of "good prospects" as defined in R994-402-205.

(4) No work is considered to be suitable work unless it complies with the labor standard provisions required by Section 3304(a)(5) of the Internal Revenue Code as provided in Subsection 35A-4-405(3).

(5) The Department shall refer any claimant entitled to EB to any suitable work which meets the criteria prescribed in R994-402-204.

 

R994-402-203. Eligibility for EB.

To be eligible for EB the claimant must:

(1) exhaust regular benefits as defined by Subsection 35A-4-402(7)(h) and his or her benefit year must have ended after the beginning of the EB period;

(2) be ineligible for a regular claim in Utah or any other state or under any federal unemployment program;

(3) file for EB in accordance with instructions;

(4) meet EB requirements for availability and work search; and

(5) accept suitable work.

 

R994-402-204. Suitable Work.

(1) Suitable work for EB claimants includes work:

(a) in any occupation within the claimant's capabilities unless he or she can show that his or her prospects for obtaining work in his or her regular occupation are good, as defined in Subsection R994-402-205 and

(b) paying the greater of the federal or state minimum wage provided the gross average pay exceeds the claimant's weekly benefit amount plus any supplemental unemployment benefit.

(2) Suitable work for EB claimants does not include work:

(a) available as the result of a strike or labor dispute;

(b) having wages, hours or other conditions of the work which are substantially less favorable to the claimant than those prevailing for similar work in the locality (for example, a skilled claimant, such as a carpenter, may be required to take a job paying the minimum wage in another occupation, but he or she does not have to take a carpenter job paying minimum wage if that wage is substantially less than the prevailing wage for carpenter work in his or her locality);

(c) which requires the claimant as a condition of being employed to join a union or to resign from or refrain from joining any labor organization;

(d) which would not be considered suitable for a regular claimant, such as unsafe working conditions or work requiring a move or travel beyond normal commuting distance. Except with regard to the type of occupation and the wages, standards for determining the suitability of work are the same for EB claimants as for regular claimants.

 

R994-402-205. Good Prospects.

When a claimant has a definite assurance of full-time employment in his or her customary occupation to begin within four weeks the claimant is considered to have good prospects. He or she must continue to seek work, but suitability will be determined under the definition of suitable work for regular benefit claimants in Subsection 35A-4-405(3) without regard to the definition in R994-402-204.

 

R994-402-206. Position Offered in Writing.

A position is considered "offered in writing" if it is listed with the Department and the claimant is referred or offered a referral by the Department even if the claimant is given the referral verbally. If an employer makes a verbal offer of work and the job is not listed with the Department, the provisions of Section 35A-4-405(3) may apply.

 

R994-402-207. Systematic and Sustained Work Search.

(1) A systematic and sustained work search means that the claimant must register for work with the Department and contact at least 4 employers each week, unless advised otherwise by an authorized Department representative. The claimant should have a realistic plan for finding employment. All of the employer contacts cannot be made on the same day except in circumstances where a work search on several days of the week is impractical. Work search contacts must be with employers not contacted within the last 90 days.

(2) Except for claimants who have received Department approval under section R944-403-201, there is no good cause exception for failure to make a systematic and sustained work search after the claimant has received instructions with regard to the required work search. If the claimant is ill or otherwise unable to seek work, but files a claim for benefits after being instructed with regard to work search requirements, benefits must be denied under Section 35A-4-402 and not under Section 35A-4-403(1)(c) unless the claimant was hospitalized for treatment of an emergency or life-threatening condition. Benefits may be allowed if the claimant failed to make the required work search because he or she was on jury duty and regular unemployment benefits would have been allowed under similar circumstances. If the claimant made the required work search but was unable to work or unavailable for work for more than half the normal workweek, he or she might be found ineligible under Sections R994-403-111c and R994-403-112c.

(3) If the claimant has obtained part-time work, he or she is still required to make a work search on those days when he or she is not working. The number of contacts may be reduced if the claimant is working a substantial amount of time in the part-time job.

(4) Work search requirements may be suspended if the Department determines that severe weather conditions or other calamity has forced a suspension of such activities by most members of the community.

 

R994-402-208. Claimant Responsibilities.

(1) EB claimants must report all information as requested by the Department.

(2) An EB claimant is required to keep a detailed record of the employers contacted including:

(a) the name and address of the employer,

(b) the date of contact with the employer,

(c) the person contacted if personal contact is made,

(d) the result of the contact,

(e) the type of work sought,

(3) Failure to keep records or provide such information will result in a conclusion that a work search was not made unless other convincing evidence is provided.

 

R994-402-209. Period of Disqualification.

A claimant who fails to accept an offer of suitable work or fails to actively seek work will be denied benefits for the week in which such failure occurs and for the following weeks until he or she has had employment during at least four subsequent weeks and has earned at least six times his or her weekly benefit amount. The earnings do not have to be in consecutive weeks, but must be bona fide, covered, employment.

 

R994-402-210. Requalification Requirement Following a Disqualification for a Crime in Connection with Employment.

All disqualifications for regular unemployment benefits continue to be in effect on EB claims. In addition, a claimant who has been denied benefits under Subsection 35A-4-405(2)(b) is not eligible to receive EB until he or she has returned to bona fide covered employment and earned at least six times his or her weekly benefit amount in employment subsequent to the disqualifying separation, even if the disqualification period has ended.

 

R994-402-211. Out of State Claimants.

A claimant who resides in another state but is filing against Utah under the interstate benefit payment plan is only entitled to two weeks of EB while residing in another state if the state of residence is not in an extended benefit period. The amount of the payment, whether it is a full or partial payment, is immaterial. When a payment of any amount has been made for each of two weeks, whether or not consecutive, no further payments can be made.

 

R994-402-212. Overpayments.

Overpayments established on extended benefit payments are collectible in accordance with the provisions of Subsections 35A-4-406(4) and 35A-4-406(5).

 

R994-402-601. Notice.

(1) Immediately after it has been determined that an extended benefit period will become effective or will end in the state, the Department will make a public announcement and give personal notice calculated to reach the largest practicable number of potentially eligible persons within the state.

(2) The notice given at the beginning of an extended benefit period will state

(a) the first date on which potential claimants may file a claim for, and become eligible for, extended benefit payments,

(b) eligibility criteria for EB, and

(c) what action individuals must take to protect their benefit rights.

(3) Whenever there has been a determination that an EB period will end, the Department will provide notice to all claimants currently filing claims for EB of the forthcoming end of the EB period and its effect on the claimant's right to EB.

 

R994-402-602. Effective Date of EB Claim.

The effective date of claims for EB will be the Sunday of the first week during which EB are payable in accordance with Subsection 35A-4-402(7) provided the claimant has filed as instructed. The effective date of the EB claim may be backdated upon a showing of good cause under Subsections 35A-4-403(1) and 35A-4-401(1)(b).

 

KEY: unemployment compensation, employee recruitment, extended benefits

Date of Enactment or Last Substantive Amendment: [November 15, 2007]2010

Notice of Continuation: May 17, 2007

Authorizing, and Implemented or Interpreted Law: 35A-4-402(2); 35A-4-402(6)(a)