Unemployment Compensation (M.G.L.c. 151A) (430 CMR) (Department of Unemployment Assistance) (Adjudicatory Rules of Practice and Procedure)

(How to Apply for Unemployment Benefits) (How Unemployment Benefits are Determined)

• 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)
  
  
• For purposes of the unemployment compensation statute the term ''employment'' may not include:
  
  • service in agricultural labor;
    
  • service performed by an individual in the employ of his son, daughter or spouse, and service performed by a child under the age of eighteen in the employ of his father or mother;
    
  • service performed in the employ of the United States government or of an instrumentality of the United States which is wholly or partially owned by the United States;
    
  • service performed in the employ of a school, college, or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, college, or university, or by the spouse of such a student;
    
  • service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly attending classes in a nurses' training school chartered or approved pursuant to law;
    
  • service performed as an intern in the employ of a hospital by an individual who has completed a four years' course in a medical school chartered or approved pursuant to state law;
    
  • service performed in the employ of a foreign government;
    
  • service performed by an individual as an insurance agent or as an insurance solicitor, if all such service is performed for remuneration solely by way of commission;
    
  • service performed by an individual under the age of eighteen in the delivery or distribution of newspapers or shopping news;
    
  • service performed by an individual as a real estate broker or salesman if he is licensed by the state as a real estate broker or salesman, and if he is remunerated solely by way of commission;
    
  • service performed in the employ of a church or convention or association of churches, or an organization which is operated primarily for religious purposes;
    
  • service performed by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order;
    
  • service performed in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market by an individual receiving such rehabilitation or remunerative work; or
    
  • service performed in a custodial or penal institution by an inmate of said custodial or penal institution. (M.G.L.c. 151A, s. 6)
    
    
• 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 burden of persuasion is on the employer to demonstrate that the claimant's discharge was attributable to both deliberate misconduct and wilful disregard of its interest. Quintal v. Commissioner of Department of Employment& Training, 418 Mass. 855, 859 (1994). 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). In order to evaluate the claimant's state of mind, DUA must "take into account the worker's knowledge of the employer's expectation, the reasonableness of that expectation and the presence of any mitigating factors." Garfield v. Director of the Division of Employment Security, 377 Mass. 94, 97 (1979). Mitigating circumstances include factors that cause the misconduct and over which a claimant may have little or no control. Shepherd v. Director of the Division of Employment Security, 399 Mass. 737, 740 (1987). "Deliberate misconduct in wilful disregard of the employer's interest suggests intentional conduct or inaction which the employee knew was contrary to the employer's interest." Goodridge v. Director of the Division of Employment Security, 375 Mass. 434, 436 (1978). "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). "However, a specific finding regarding state of mind is not required where 'obviously intentional' conduct is present." Grise v. Director of the Division of Employment Security, 393 Mass. 271, 275 (1984). The responsibility for determining the credibility and weight of testimony rests with the hearing officer. Trustees of Deerfield Academy v. Director of the Division of Employment Security, 382 Mass. 26, 31 (1980)
  
  
• An employee who refused to take the COVID-19 vaccine based upon her sincere religious objection and then was terminated is not disqualified from receiving unemployment compensation benefits. Fallon Community Health Plan, Inc. v. Acting Director of the Department of Unemployment Assistance, 493 Mass. 591 (2024)
  
  
• 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))
    
    
• With regard to urgent, compelling and necessitous reasons:
  
  
  • Under this provision the Supreme Judicial Court has held that unemployment compensation benefits should not be denied to one who leaves his employment for what he reasonably believes are compelling reasons, even if it is not shown (or even true) that those reasons are correct. Fergione v. Director of the Division of Employment Security, 396 Mass. 281, 284 (1985)
    
  
  
  • The Supreme Judicial Court has also held that the agency must make findings as to the reasonableness of a claimant's belief that he left employment for a compelling reason. Leone v. Director of the Division of Employment Security, 397 Mass. 728, 732 n. 4 (1986)
    
  
  
  • In a 1992 decision the Supreme Judicial Court expanded upon this standard for eligibility. It held that the broad purpose of s. 25(e) was to provide temporary relief for those who are realistically compelled to leave work through no fault of their own, whatever the source of the compulsion, personal or employer-initiated. The law does not require that the compelling personal reasons be work-related. The nature of the circumstances in each individual case, the strength and the effect of the compulsive pressure of external and objective forces must be evaluated, and if they are sufficiently potent, they become relevant and controlling factors. Reep v. Commissioner of the Department of Employment & Training, 412 Mass. 845, 846-848 (1992)
    
    
  • However, it should be noted that subsequent to Reep in 1992 the Legislature amended section 25(e) to provide that no benefits shall be paid to an individual after having left work to accompany or join one's spouse or another person at a new locality.
    
  
  
• 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 50% of his average weekly wage, but no more than 57.5% of the average weekly wage of all employees covered by this statute. This cap is determined in October of each year. The current cap is $1,051 per week. (M.G.L.c. 151A, s. 29) (How Unemployment Benefits are Determined)
  
  
• 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. Such an employee will receive benefits only in a week in which there is no work available. 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 or payments for severance paid in a lump sum in connection with a plant closing. (M.G.L.c. 151A, s. 1(r)(3))
  
  
  • A ''plant closing'' is defined as a permanent cessation or reduction of business at a facility of at least fifty employees which results or will result as determined by the commissione in the permanent separation of at least fifty percent of the employees of the facility or facilities. (M.G.L.c. 151A, s. 1(r)(3))
    
    
  • A finding made by the commissioner that a plant closing has or will occur, along with any supporting documents, becomes part of the record in any proceeding and is prima facie evidence that plant closing has or will occur. Whenever an employer is requested to furnish information necessary to determine whether a plant closing has occurred, such information must be furnished within ten days of the date of request. If an employer has failed to provide the requested information within ten days, the commissioner can determine whether a plant closing has occurred on the basis of information furnished by the employee supplemented by such other information as may be available and satisfactory to the commissioner. (430 CMR 4.39(3) - (5))
    
    
• 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))
  
  
• Claimants eligible for unemployment benefits may receive those benefits while enrolled in approved industrial or vocational training. Claimants may be eligible for approved training if it is determined that they are permanently separated from work, unlikely to obtain suitable employment based on their most recently utilized job skills, the requested training is for a demand occupation and they are in need of training to become re-employed or they have been permanently separated from a declining occupation or from work as a result of a permanent reduction of operations. A claimant who applies for training shall have his benefits extended up to 26 times his benefit rate. A claimant must file a completed appilication with the agency within the 20 week application period unless tolled or extended. (M.G.L.c. 151A, s. 30(c)) (430 CMR 9.00)
  
  
• 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)
  
  
  • Despite the foregoing, under DUA regulations the 30 day limitation on filing a request for a hearing does not apply where: (1) a DUA employee directly discouraged the party from timely requesting a hearing and such discouragement results in the party believing that a hearing is futile or that no further steps are necessary to file a request for a hearing; (2) the Commissioner's determination is received by the party beyond the 30 day extended filing period and the party promptly files a request for hearing; (3) the Commissioner's determination is not received and the party promptly files a request for a hearing after he knows that a determination was issued; or (4) an employer threatened, intimidated or harassed the party or a witness for the party, which resulted in the party's failure to file for a timely hearing. (430 CMR 4.15)
    
    
• 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)
  
  
• There are limitations upon the circumstances and time frame under which the Commissioner may reconsider a determination. The Commissioner may reconsider a determination whenever he finds that (1) an error has occurred in connection therewith; or (2) wages of the claimant pertinent to such determination but not considered in connection therewith have been newly discovered; or (3) benefits have been allowed or denied or the amount of benefits fixed on the basis of misrepresentation of fact; provided, however, that with respect to (1) and (2) no such redetermination shall be made after one year from the date of the original determination; and provided, further, that with respect to (3) no such redetermination shall be made after four years from the date of the original determination. (M.G.L.c. 151A, s. 71)
  
  

   

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