Workforce Services, Unemployment Insurance

Rule R994-405

Ineligibility for Benefits

Notice of Proposed Rule

(Amendment)

DAR File No.: 36224
Filed: 05/15/2012 05:53:38 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to insure that claimants return to work as quickly as possible by changes to the suitable work rule.

Summary of the rule or change:

The current rule provides that work is not suitable during the first one-third of the claim unless that work pays the highest wage earned during the base period and uses the highest skill level of any work during the base period. This proposed amendment would require a claimant to take a job if the pay and skill level are equal to the average skill level and wages used or earned during the base period. It also changes the current rule to provide this would be suitable work during the first half of the regular claim, not just the first one-third.

State statutory or constitutional authorization for this rule:

• Section 35A-4-104
• Subsection 35A-4-502(1)(b)
• Section 35A-4-405
• Subsection 35A-4-104(4)

Anticipated cost or savings to:

the state budget:

This is a federally-funded program so there are no costs or savings to the state budget. It is anticipated that claimants may return to work sooner which would result in a decrease in benefit costs for employers including the state.

local governments:

This is a federally funded program so there are no costs of savings to local government.

small businesses:

There are no costs or savings to small businesses as there are no fees associated with this program and it is federally funded.

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

There are no costs or savings to persons other than small businesses, businesses, or local governmental entities as there are no fees associated with this program and it is federally funded.

Compliance costs for affected persons:

There are no costs or savings to any affected persons as there are no fees associated with this program and it is federally funded. These changes will not impact any employers contribution rate.

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:

07/02/2012

This rule may become effective on:

07/09/2012

Authorized by:

Kristen Cox, Executive Director

R994. Workforce Services, Unemployment Insurance.

R994-405. Ineligibility for Benefits.

R994-405-305. Suitability of Work.

[(1) A claimant must be allowed time to seek work comparable to the most advantageous base period employment if there is a reasonable expectation of obtaining that type of work.

]([2]1) The unemployment compensation system is not intended to exert downward pressure on existing labor standards, nor is it intended to allow claimants to restrict availability to jobs with increased wages or improved working conditions.

([3]2) Workers should not feel compelled, through a threatened or potential denial of benefits, to accept work under less favorable conditions than those generally available in the area for similar work. The phrase "similar work" does not mean "identical work." Similar work is work in the same occupation or a different occupation which requires essentially the same skills.

(3) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

(a) If the position offered is vacant due to a strike, lockout, or other labor dispute;

(b) If the wages, hours, or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or

(c) If as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

 

R994-405-306. Elements to Consider in Determining Suitability.

A claimant is not required to accept an offer of new work unless the work is suitable. Whether a job is suitable depends on the length of time the claimant has been unemployed. As the length of unemployment increases, the claimant's demands with respect to earnings, working conditions, job duties, and the use of prior training must be systematically reduced unless the claimant has immediate prospects of reemployment. The following elements must be considered in determining the suitability of employment:

(1) Prior Earnings.

Work is not suitable if the wage is less than the state or federal minimum wage, whichever is applicable[, or the wage is substantially less favorable to the claimant than prevailing wages for similar work in the locality].

The claimant's prior earnings, length of unemployment and prospects of obtaining work are the primary factors in determining whether the wage is suitable. If a claimant's former wage was earned in another geographical area, the prevailing wage is determined by the new area.

(a) [During the first one-third of the claim, work paying at least the highest wage earned during or subsequent to the base period, or the highest wage available in the locality for the claimant's occupation, whichever is lower is suitable, but only if there is a reasonable expectation that work can be obtained at that wage.]Until the claimant has received 50% of the maximum benefit amount (MBA) for his or her regular claim, work paying at least the customary wage earned during the base period is suitable. Customary wage is defined as the wage earned during the majority of the base period.

(b) After a claimant has received [one-third]50% of the MBA for his or her regular claim, any work paying a wage that is [equal to or greater than the]at least 75% of the customary [lowest] wage earned during the base period is suitable[, as long as that wage is consistent with the prevailing wage standard].

[(c) After a claimant has received two-thirds of the MBA for his or her regular claim, any work paying the prevailing wage in the locality for work in any base period occupation is suitable.

](2) Prior Experience.

[If an initial claim or the reopening of a claim is filed following employment at the claimant's highest skill level, work that is not expected to utilize the claimant's highest skill level is not suitable.] A [worker]claimant must be given a reasonable time to seek work that will preserve his or her [highest]customary skills[ and earning potential]. Customary skills or skill level, as used in this subsection, is defined as skills used during a majority of the base period. However, if a claimant has no realistic expectation of obtaining employment in an occupation utilizing his or her [highest]customary skill level, work in related occupations becomes suitable.

[(a) After the claimant has received one-third of the MBA for his or her regular claim, work in any of the occupations in which the claimant worked during the base period is considered suitable.

(b)] After the claimant has received [two-thirds]50% of the MBA for his or her regular claim, any work that he or she can reasonably perform consistent with the claimant's past work experience, training and skills is considered suitable.

(3) Working Conditions.

"Working conditions" refers to the provisions of the employment agreement whether express or implied as well as the physical conditions of the work.[ If the working conditions are substantially less favorable than those prevailing for similar work in the area, the work is not suitable.]Working conditions include the following:

(a) Hours of Work.

Claimants are expected to make themselves available for work during the usual hours for similar work in the area provided they are not[. If work periods are] in violation of the law[ or if the hours are substantially less favorable than those prevailing for similar work in the area, the employment is not suitable]. However, the hours the claimant worked during his or her base period are generally considered suitable. A claimant's preference for certain hours or shifts based on mere convenience is not good cause for failure to accept otherwise suitable employment.

(b) Fringe Benefits.

Working conditions include fringe benefits such as health insurance, pensions, and retirement provisions.[Benefits in Addition to Wages.

Work is not suitable if "fringe benefits" such as life and group health insurance; paid sick, vacation, and annual leave; provisions for leaves of absence and holiday leave; pensions, annuities, and retirement provisions; or severance pay are substantially less favorable than benefits received by the claimant during the base period or than those prevailing for similar work in the area, whichever is lower.]

(c) Labor Disputes or Law Violations.

Work is not suitable if the working conditions are in violation of any state or federal law, or the job opening is due to a strike, lockout, or labor dispute. If a claimant was laid off or furloughed prior to the labor dispute, and the former employer makes an offer of employment after the dispute begins, it is considered an offer of new work. The vacancy must be presumed to be the result of the labor dispute unless the claimant had a definite date of recall, or recall has historically occurred at a similar time.

(4) Prior Training.

The type of work performed during the claimant's base period is suitable unless there is a compelling circumstance that would prevent returning to work in that occupation. If a claimant has training that would now meet the qualifications for a new occupation, work in that occupation may also be suitable, particularly if the training was obtained, at least in part, while the claimant was receiving unemployment benefits under Department approval, or the training was subsidized by another government program.

(5) Risk to Health and Safety.

Work is not suitable if it presents a risk to a claimant's physical or mental health greater than the usual risks associated with the occupation. If a claimant would be required, as a condition of employment, to perform tasks that would cause or substantially aggravate health problems, the work is not suitable.

(6) Physical Fitness.

The claimant must be physically capable of performing the work. Employment beyond the claimant's physical capacity is not suitable.

(7) Distance of the Available Work from the Claimant's Residence.

To be considered suitable, the work must be within customary commuting patterns as they apply to the occupation and area. A claimant's failure to provide his or her own transportation within the normal or customary commuting pattern in the area, or failure to utilize alternative sources of transportation when available, does not establish good cause for failing to apply for or accept suitable work. Work is not suitable if accepting the employment would require a move from the current area of residence unless that is a usual practice in the occupation.

(8) Religious or Moral Convictions.

The work must conflict with sincerely held religious or moral convictions before a conscientious objection could support a conclusion that the work was not suitable. This does not mean all personal beliefs are entitled to protection. However, beliefs need not be acceptable, logical, consistent, or comprehensible to others, or shared with members of a religious or other organized group in order to show the conviction is held in good faith.

(9) Part-time or Temporary Work.

Part-time or temporary work may be suitable depending on the claimant's work history. If the major portion of a claimant's base period work history consists of part-time or temporary work, then any work which is otherwise suitable would be considered suitable even if the work is part-time or temporary. If the claimant has no recent history of temporary or part-time work, the work may still be considered suitable, particularly if the claimant has been unemployed for an extended period and does not have an immediate prospect of full-time work.

 

KEY: unemployment compensation, employment, employee's rights, employee termination

Date of Enactment or Last Substantive Amendment: [December 3, 2008]2012

Notice of Continuation: June 26, 2007

Authorizing, and Implemented or Interpreted Law: 35A-4-502(1)(b); 35A-1-104(4); 35A-4-405