Unemployment Compensation (M.G.L.c. 151A)

(Adjudicatory Rules of Practice and Procedure)

• Employees who are unemployed, actively seeking work and capable of and available for work are eligible for unemployment compensation. (M.G.L.c. 151A, s. 24)
  
  
• Each employer must issue to every separated employee, as soon as practicable, but not to exceed 30 days from the employee's last work day, written information approved by DUA which contains instructions on how to file a claim for unemployment compensation and other relevant information. The waiting period for an employee who did not receive this information and who failed to file timely for benefits is the Sunday of the initial week the employee would have otherwise been eligible to receive unemployment compensation. (M.G.L.c. 151A, s. 62A(g)) (How to Apply for Unemployment Insurance Benefits-Form-0590a)
  
  
• Specifically, an individual, in order to be eligible for benefits shall:
  
  • (a) Have been paid wages in the base period amounting to at least thirty times the weekly benefit rate; and
    
  • (b) Be capable of, available, and actively seeking work in his usual occupation or any other occupation for which he is reasonably fitted. An individual who is certified as attending an industrial retraining course or other vocational training course shall be deemed to be available for work. No individual shall be considered ineligible for benefits because of his failure to comply with clause (b) if such failure is due to an illness or disability which occurs during a period of unemployment after he has filed a claim and registered for work and has been determined to be otherwise eligible; provided, that no work which would have been considered suitable but for such illness or disability was offered to him after he became ill or disabled. This exception granted under this paragraph shall apply to only three weeks within a benefit year. (M.G.L.c. 151A, s. 24(a) & (b))
    
    
• This statute covers employment that is localized in the Commonwealth, that is (1) either the service is performed entirely within the Commonwealth or the service performed outside the Commonwealth is incidental to the individual's service within the Commonwealth; or (2) the service is not localized in any state, but some part of the service is performed in the Commonwealth and the individual's base of operations is in the Commonwealth or, if there is no base of operations, then the place from which such service is directed or controlled is within the Commonwealth. If the individual's base of operations is not in any state in which some part of the service is performed, then employment service is covered if the individual's residence is in the Commonwealth. (M.G.L.c. 151A, s. 3)
  
  
• Employees can be disqualified from receiving unemployment benefits for:
  
  • a termination due to deliberate misconduct in willful disregard of the employer's interests;
    
  • a termination due to knowingly violating a reasonable and uniformly enforced policy or rule, provided the violation is not the result of the employee's incompetence; or
    
  • a termination due to a conviction of a felony or misdemeanor; or
    
  • a voluntary resignation without good cause attributable to the employer. (M.G.L.c. 151A, s. 25(e))
    
    
• A two-part analysis much be employed and both "deliberate misconduct' and "wilful disregard of the employer's interest" must be shown in order to disqualify the employee, and the employee's state of mind at the time of the misconduct is an issue for both parts. The denial of benefits therefore requires evidence as to the claimant's state of mind in performing the acts that cause his/her discharge. Still v. Commissioner of Employment and Training, 423 Mass. 805, 810 (1996); Santos v. Director of the Division of Employment Security, 398 Mass. 471, 474 (1986); Jean v. Director of the Division of Employment Security, 391 Mass. 206, 208 (1984); South Central Rehabilitative Resources, Inc. v. Commissioner of the Division of Employment & Training, 55 Mass. App. Ct. 180, 185 (2002). "However, in cases in which misconduct might have been motivated by incompetence, misunderstanding, or other factors not constituting deliberate misconduct in wilful disregard of the employing unit's interest, the review examiner should make specific findings on the issue of state of mind." Starks v. Director of the Division of Employment Security, 391 Mass. 640, n. 4 (1984).
  
  
• An employee who has been suspended for breaking established rules and regulations will be disqualified from receiving benefits for the period of the suspension, but in no case more than ten weeks, provided it is established that such rules or regulations are published or established by custom and are generally known to all employees, that such suspension was for a fixed period of time as provided in the rules or regulations, and that the employee has a right to return to his employment if work is available at the end of the suspension. (M.G.L.c. 151A, s. 25(f)) (430 CMR 4.04(4))
  
  
• Employees will not be disqualified from receiving unemployment benefits if they became separated from employment due to:
  
  • an involuntary resignation for an urgent, compelling and necessitous reason;
    
  • domestic violence; or
    
  • sexual, racial or other unreasonable harassment where the employer, its supervisory personnel or agents knew or should have known of such harassment. (M.G.L.c. 151A, s. 25(e))
    
    
• Benefits will also not be paid:
  
  • If the claimant's unemployment is due to a work stoppage which is part of a labor dispute. Striking employees are not diqualified if the strike does not cause a work stoppage at the place of employment. Boguszewski v. Commissioner of the Department of Employment and Training, 410 Mass. 337, 341 (1991);
    
  • If the claimant fails to apply for or accept suitable employment;
• If the claimant is not available for work;
  
• If the claimant is receiving workers' compensation benefits; or
  
• For up to 10 weeks if a claimant has been suspended from work for violating established rules. (M.G.L.c. 151A, s. 25(b)-(d))


• "Suitable employment" should take into consideration whether the employment:
  
  • Is detrimental to the health, safety or morals of the employee;
    
  • Is one for which the employee is reasonably fitted by training and experience;
  • Is one which is located within reasonable distance of the employee's residence or place of last employment;
    
  • Is one which reasonably accommodates the individual's need to address the physical, psychological and legal effects of domestic violence; and
    
  • Is one that does not involve travel expenses substantially greater than that required in the employee's former work. (M.G.L.c. 151A, s. 25(c))
  
  
• No work will be deemed "suitable" if an individual refuses to accept the work because:
  
  • It is vacant due to a strike, lockout or other labor dispute;
    
  • If the remuneration, hours or other conditions of employment offered are substantially less favorable than those prevailing for similar work in the locality; or
  • If acceptance of such work would require the individual to join a company union or would abridge or limit his right to join or retain membership in any bona fide labor organizaion or association of workmen. (M.G.L.c. 151A, s. 25(c))

• A written agreement between an employer and an employee under which the employee would receive a payment in return for the employee's release of all claims against the employer does not disqualify the employee from obtaining unemployment benefits where the payment was not for services previously rendered inasmuch as the employee would receive nothing unless he signed the agreement. White v. Commissioner of the Department of Employment and Training, 40 Mass. App Ct. 249, 252-254 (1996)
  
  
• An employee receiving W-2 wages from an employer still is not eligible for unemployment benefits if he is a part owner of the employer which is a limited partnership or a LLC. However, a corporate shareholder may be an employee qualified to receive unemployment benefits because corporations are treated as separate legal entities. Herder v. Director of the Division of Unemployment Assitance, 82 Mass. App Ct. 701 (2012)
  
  
• There is a waiting period consisting of one week of total or partial unemployment. (M.G.L.c. 151A, s. 23)
  
  
• An individual in total unemployment and otherwise eligible for benefits will be paid for each week of unemployment an amount equal to fifty percent of his average weekly wage. (M.G.L.c. 151A, s. 29)
  
  
• An individual in partial unemployment and otherwise eligible for benefits shall be paid the difference between his aggregate remuneration with respect to each week of partial unemployment and the weekly benefit rate to which he would have been entitled if totally unemployed. (M.G.L.c. 151A, s. 29) ''Partial unemployment'' occurs when an individual in any week of less than full-time weekly schedule of work has earned an aggregate remuneration in an amount less than the weekly benefit rate to which he would be entitled if totally unemployed during said week. (M.G.L.c. 151A, s. 1(r)(1)) An employee who is working "on-call" is not deemed to be in partial unemployment. Mattapoisett v. Director of Division of Employment Security, 392 Mass. 546 (1984)
  
  
• For this purpose remuneration does not include payments for unused vacation or sick leave. (M.G.L.c. 151A, s. 1(r)(3))
  
  
• Regular unemployment compensation benefits will be paid for a maximum of 26 weeks. (M.G.L.c. 151A, s. 30(b))
  
  
• An individual eligible for either partial or total benefits shall be paid for each week of unemployment in addition twenty-five dollars for each unemancipated child of such individual who is being wholly or mainly supported by such individual, and who is under the age of eighteen, or who is eighteen years of age or over and incapable of earning wages because of mental or physical incapacity, or who is under the age of twenty-four and is a full-time student at an educational institution, or who is in his custody pending the adjudication of a petition filed by such individual for the adoption of such child in a court of competent jurisdiction. (M.G.L.c. 151A, s. 29(c))
  
  
• The foregoing benefits are taxable. (M.G.L.c. 151A, s. 29E(a))
  
  
• Any interested party notified of an initial determination that he has been disqualified from receiving benefits may request a hearing within ten days after notice of the determination unless it is determined that the party had good cause for failing to request a hearing within such time. In no event shall good cause be considered if the party fails to request a hearing within thirty days after such notice. (M.G.L.c. 151A, s. 39)
  
  
• A claimant or interested party may, within thirty days after notice of the hearing decision, file an application for a review of such decision by the Board of Review. (M.G.L.c. 151A, s. 40)
  
  
• An application for review must be granted or denied by the Board of Review no later than twenty-one days after an appeal is filed. If the Board of Review does not render a decision within twenty-one days, the application for review is deemed denied. If the review is granted, the Board of Review may remand the case to the DUA Commissioner for the taking of additional evidence or may itself take evidence at a hearing. The Board of Review is to make every reasonable effort to issue a decision within forty-five days after granting an application for review. (M.G.L.c. 151A, s. 41)
  
  
• Any person aggrieved by a decision of the Board of Review may obtain judicial review of such decision by commencing within thirty days a civil action in the District Court within the judicial district in which he lives, is or was last employed, or has his usual place of business. (M.G.L.c. 151A, s. 42)
  
  
• The statute and underlying regulations have detailed sections pertaining to the recovery or deduction of erroneous overpayments of benefits and the waiver of such overpayments. (M.G.L.c. 151A, s. 69) (430 CMR 6.00)
  
  

   

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