File No. 36224
This rule was published in the June 1, 2012, issue (Vol. 2012, No. 11) of the Utah State Bulletin.
Workforce Services, Unemployment Insurance
Ineligibility for Benefits
Notice of Proposed Rule
DAR File No.: 36224
Filed: 05/15/2012 05:53:38 PM
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.
This is a federally funded program so there are no costs of savings to local government.
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
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 firstname.lastname@example.org
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:
This rule may become effective on:
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]) 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]) 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
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
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.
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
(b) After a claimant has received [
one-third] of the MBA for his or her regular claim, any work paying
a wage that is [ equal to or greater than the] [ lowest] wage earned during the base period is
suitable[ , as long as that wage is consistent with the prevailing
(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
](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] must be given a reasonable time to seek work that
will preserve his or her [ highest] skills[
and earning potential].
However, if a claimant has no realistic expectation of obtaining
employment in an occupation utilizing his or her [ highest] skill level, work in related occupations becomes
(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] of the MBA for his or her regular claim, any work that
he or she can reasonably perform consistent with the claimant's
experience, training and skills is considered
(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
. 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
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]
Notice of Continuation: June 26, 2007
Authorizing, and Implemented or Interpreted Law: 35A-4-502(1)(b); 35A-1-104(4); 35A-4-405
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2012/b20120601.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at email@example.com.