Unemployment Compensation Manual

:: Qualification Requirements ::



Unemployment Compensation is intended to help working people who are temporarily unemployed due to work-related circumstances which are beyond their control.

So long as a claimant remains on unemployment, that person costs the state money.

For these two reasons, state unemployment departments traditionally have emphasized helping claimants to find another suitable job as soon as possible. State laws therefore require that claimants be

  1. able to work
  2. available for work, and
  3. actively seeking work.

Of course, the Devil is always in the details. There are many circumstances under which these three conditions may be waived. For instance:

  • A worker who is on temporary layoff from his job, and who has a reasonable expectation of being recalled, will not be required to seek work in any state.
  • If a claimant is trained for an occupation for which there is no longer any demand, or not trained at all, the state agency may provide the claimant with vocational training. His work search requirements may be waived so that he may collect unemployment while training, even though he is neither able, available, nor seeking work during that period.
  • There have even been some state programs which will pay unemployment to a worker while he starts a business of his own. So that the employer who had to lay him off for lack of work now has to pay taxes to subsidize him going into business in competition.

Many of these waivers are understandable. But requirements may also be virtually or effectively waived, rather than actually waived, by exceptions which are carried to extremes. In New Jersey, for instance, an individual may even be incarcerated and collect, even though he is obviously not available for work, nor is his lack of work due to work related circumstances beyond his control.

But that is a hard case. More commonly, work search requirements are effectively waived by non-enforcement which is the product of departmental cost-cutting. Gone are the days when claimants were universally required to attend the job office in person weekly, undergo an interview, document a required minimum number of applications during the preceding week, and accept job referrals before being issued a check. Now, it is much more likely that the claimant will merely phone in, punch a few buttons, and his check will be automatically deposited.

Able to Work:
This means that a claimant must be physically and mentally capable of performing a reasonable amount of work for which he is qualified by his skill and training and which exists in his job search area. Although a claimant may not be able to work in his former occupation, so long as he is capable of performing services in some occupation for which there is a demand, he is considered able to work. Therefore, even if a worker receives total disability for worker's compensation purposes, this does not necessarily mean that there may not be some work which he is able to do.
Available for Work:
To be available for work, a claimant must be willing to accept suitable employment. The claimant must be genuinely in the job market, and must not put undue restrictions on the type of job he will accept.

In practice, there appears to be little relation between availability for work and a refusal of suitable work. Relatively few claimants are disqualified for refusing a referral to apply for work or an offer of suitable work. So a claimant in practice certainly has the right to refuse work and still claim to be available for work.

The fact that a claimant imposes restrictions on availability will not always make him ineligible for benefits. His reasons may be cogent. For instance, if he has personal or domestic reasons, such as child care concerns, and those reasons are compelling, then he may refuse an offer of work and not be held to have made himself unavailable for work. This type of circumstance is common. The restrictions may also relate to the terms and conditions of the work. However, if the restrictions reduce a claimant’s work prospects to the extent that he is no longer in the job market, he may possibly be denied benefits.

Here is an example: A claimant is offered a job on the graveyard shift. However, she has a two year old child at home and no one to care for the child in the wee hours. She is willing to accept a daytime shift, when daycare is available. It is perfectly reasonable for her to refuse the job offer, and still maintain that she is available for work. Many states will accept her reasonable refusal.

Seeking Work:
Claimants are allowed a reasonable amount of time to search for work in their usual occupation. They may restrict their search to that work which accommodates their established skill and wage levels. Normally, a claimant must be available for all suitable work offers within his usual job market. He may not artificially restrict his job market because he prefers work close to his residence, or because he lacks personal transportation, or some other cause.

Years ago, state agencies handed claimants three cards each week which they were required to have signed by employers to certify that they had applied for work there. This custom, now largely discontinued, may be the origin of the general belief that a claimant is required to make three applications for employment per week. There is no three job application rule provided in state laws or regulations that we can find. An acceptable search for work might possibly include more or fewer than three contacts, depending on, among other things, the size and nature of the job market, the occupation, and general economic conditions.

As a claimant’s period of unemployment lengthens, he should increase and widen the scope of his search for work to include additional jobs and occupations and more flexible wage demands and conditions of employment.

State agencies will say that the claimant has the burden to show that he is able, available, and searching. However, their monitoring of a claimant's work search requirements have become very perfunctory. A claimant may only be required to fill out a form on-line or by phone. His check may merely be mailed to him or automatically deposited without any effective way to know whether he is applying for work or not. There are plenty of excuses for this neglect, notably the volume of claims. Of course, nobody would consider the volume of cars produced by Ford as a valid excuse for leaving the doors off their sedans, but, to state agencies, this seems valid enough, and is apt to continue as modernization of their methods proceeds.

The essence of the work-search requirement is that it be active and offer reasonable opportunity for reemployment. Again, the state agencies frequently appear to neglect this element. Often, an eligibility decision will state, for example, that a claimant who was engaged in self-employment, or who was performing domestic duties during a temporary period of one or more weeks was, nonetheless, available for work if any had been offered. This ignores the requirement that the claimant must not only be available, but that he must also be making an active search.

return to index at top of pagetop


In theory, the claimant has the responsibility to establish by reasonable evidence that he is able to work, available for work, and actively searching for work. This responsibility begins with his application for benefits.

A claimant establishes his eligibility for unemployment compensation by filing a claim and stating, under penalty for making a false statement, that he is unemployed, able to work, available for work and actively searching for work, and that he was separated from his last employment under non-disqualifying conditions. Note this curious phrase: non-disqualifying conditions. The claim is based, not on evidence that the claimant is qualified to collect, so much as on the lack of a disqualifying factor. In other words, when a claimant files a claim and certifies that he meets the eligibility conditions of the law, he has made a prima facie showing of eligibility.

Former employers may sometimes challenge a claimant’s ability, availability, or work search. Employers seeking to escape charges to their account by objecting on these grounds will very rarely meet with success. Normally, such information comes from an admission by the claimant himself, or as a result of the Department’s monitoring activities, or of a refusal of work by the claimant. See the "War Story" below.

CLICK HERE for real-life examples illustrating this point of the manual<= click here
for real-life examples from the never-ending battle for common sense
in unemployment compensation cost control
return to index at top of pagetop


Periods of ineligibility are not uncommon, and may result for several reasons:

Waiting Week:
Forty-two states apply a one-week period, after the application for benefits is completed, before any benefits will be paid. In essence, during this period, the claimant qualifies for benefits, but is not yet eligible to receive them.
Some states assess penalties for false statements, unemployment fraud, and the like, by making the claimant ineligible for benefits for a certain number of weeks or until a specific condition is met, such as reemployment followed by new unemployment. Some may void the entire base period, so that the disqualified worker must go to work, establish a new base period, then become unemployed.
Disqualifying Factors:
The same disqualifying misconduct which in most states would prevent a worker from collecting unemployment will in some few states only result in suspension of eligibility for a longer than one week waiting period. For example, in Maryland, misconduct is separated into two categories, depending on the circumstances of separation. Gross misconduct in Maryland will disqualify from benefits, but simple misconduct will only suspend benefits for a few weeks.
Changed Circumstance:
If a claimant were to fall ill for a period, or leave the state for a period, or some other circumstance which interrupted his availability and job search, his benefits may be suspended for that time.
return to index at top of pagetop


A claimant is only required to be available for and to seek suitable work.

A claimant need not seek work which pays substantially less than he is accustomed to. The meaning of substantially less, however, varies widely.
Job Duties:
A claimant need not seek work which does not fit his abilities, skill and experience. The definition of what is suitable in this regard is apt to relax as his period of unemployment lengthens.
Work Conditions:
A claimant need not seek work which includes terms and conditions which are substantially less favorable than he is used to. The definition of what is suitable in this regard is also apt to relax as his period of unemployment lengthens.
A claimant need not seek work which requires too long a commute. Again, the definition of too long a commute varies widely. (see Distance to Work below)
return to index at top of pagetop


Students enrolled full-time in an educational or training institution or program are not usually eligible for unemployment benefits. Part-time students sometimes are.

Full Time:
Students enrolled full-time in an educational or training institution or program are not usually eligible for unemployment benefits. The signal exception is when the state unemployment agency deems a worker unemployable, requires, and provides the training. So a claimant who takes it upon himself to improve his job skills at his own expense will be disqualified even while his classmate attending at the agency's behest and expense is not.
Part Time:
Part time students may or may not be able to collect, on a state by state basis.
Workers displaced as a result of NAFTA may be eligible for benefits while retraining under Federal programs.
return to index at top of pagetop


A claimant must be available for and must seek work within the customary job market in which he resides. He must also be available for work within distances that are usual and customary in the claimant’s occupation. In other words, a construction worker may be required to seek work farther afield than an office worker. A heavy construction worker may be required to seek work at great distances.

The distance a person is expected to drive to work varies widely from state to state. In Pennsylvania, a worker may be entitled to refuse a job 30 miles away. In Texas, a worker may be required to accept a job a hundred miles away. In New Mexico, the distance may vary according to how far the person resides from the nearest urban job market. Therefore, there is no sure way to generalize the distance which will be deemed reasonable from state to state and location to location.
return to index at top of pagetop


If personal or domestic circumstances unduly restrict a claimant’s availability for work, the claimant should be subject to denial of unemployment benefits. The actual definition of unduly restrict is all over the map. It depends upon the state agency's interpretation of whether, after fulfilling his family obligations, the claimant still remains available for a substantial amount of work, or is available during the times when a majority of the work for which he is fitted is offered. However, here are some examples which may possibly affect benefit eligibility:

Spouse Transferred:
If a spouse is transferred to another location by their job or the military, then the other spouse can expect to follow and still be eligible for unemployment compensation.
Spousal Abuse:
Many states have now adopted provisions which entitle a woman to quit her job and move away in order to avoid domestic abuse or stalking.
Child care problems can frequently act in combination with other factors. For example, a worker responsible for care of a small child may well be entitled to refuse a shift at night even if the same refusal would have disqualified a person without those responsibilities.
Responsibility for disabled or infirm parents or grandparents rarely provides the same excuse. The responsibility may be as real, as necessary, and as keenly felt, as the responsibility for a child, but for some reason it simply is not generally recognized.
If a claimant is not able to work and is therefore unavailable for work due to personal illness or disability, he is generally ineligible for unemployment benefits for the duration of illness or disability. If the claimant’s condition is only partially disabling, and he is able to perform some work and is available for some work, his eligibility will depend upon the extent to which he is restricted.
return to index at top of pagetop


A claimant must register with the state agency for employment. But a claimant is also supposed to make an adequate personal search for work, or else be subject to a denial of unemployment benefits. Simply because the state agency cannot offer him job referrals does not negate his work search requirement.

The latter requirement, in these days, is mostly observed in the breach. In one state, a claimant calls in to an automated phone number, punches a few buttons, and his next check is on the way. In the next state, a claimant goes to a web site, fills out an on-line form, and his check is on the way. In yet another state, the check just comes.
Available to Search:
A claimant should not only be available for work, he should also be available to search for work. Employers normally do their interviewing and hiring during the normal, daytime working hours, not at night. A claimant who is only available for night work may also be only available to search for work at night. Again, this sort of logical inconsistency is often ignored.
Registration with a union hiring hall is generally considered an active search for work. The regular carpenter must pound the pavement looking for available positions. The union carpenter simply awaits a call from the union hall. Say that union seniority or the regular rotation of things decrees that the union carpenter will in no case be assigned work for two months, and that meanwhile non-union carpentry jobs abound, any of which he could have had. So be it; this is an unfair advantage which unions enjoy under the law, and a way in which the taxpayer subsidizes union practices. See the "War Story" below.
CLICK HERE for real-life examples illustrating this point of the manual<= click here
for real-life examples from the never-ending battle for common sense
in unemployment compensation cost control
return to index at top of pagetop


A claimant who is physically or emotionally unable to work is ordinarily not eligible for unemployment benefits.

Permanently handicapped claimants will be eligible for unemployment benefits if they can establish monetary eligibility. That means, in other words, if they have a prior work history, like anyone else, then that they can perform some work. Even if their physical condition requires some reasonable accommodation, it is usually presumed that as a matter of law and public policy that employers will provide such accommodation. Unless their handicap is so severe that they can only work under sheltered workshop conditions, or their condition has substantially degenerated since their last employment, their past history should be a basis for determining their eligibility.
Mental Illness:
Emotional and mental illness which severely restricts a claimant’s ability to work will often render the claimant ineligible for unemployment benefits.
Workers' Compensation:
A claimant who has suffered an injury which entitles him to workers’ compensation will generally be eligible for benefits so long as he can perform some work which exists within his local job area. A determination of total disability for workers' compensation purposes does not necessarily mean that a claimant is ineligible for unemployment benefits. A total disability may only mean that the claimant is disabled from performing work in his former occupation. He may be able and available for work in other occupations, or may become so after retraining.
return to index at top of pagetop


Obviously, a claimant is not available for, nor is he seeking work, while he is incarcerated. Nevertheless, some exceptions may apply.

Work Release:
In some states, if the claimant can show that by the terms of his detention, he would be released if he were referred to or offered work, he may collect unemployment.
Work Search:
If a claimant can show that he can seek work, and is, in fact, seeking work while in detention, or if he has an offer of indefinite work starting in the immediate future which he will be available to take, he may collect unemployment in some states.
Home Confinement:
These days, an incarceration may only mean an electronic ankle bracelet and a curfew; or in some i8nstances, a week-end confinement. These individuals are likely to be eligible for unemployment.
Parole infers availability for work. Paroled workers are therefore not disqualified by their parole. A claimant will lose his freedom and, therefore, his availability, only if he violates parole.
Bail Bond:
Although employers may be reluctant to hire a person whose freedom depends on a bail bond, there should be legal presumption that the claimant’s freedom will continue until he is actually convicted and imprisoned.
CLICK HERE for real-life examples illustrating this point of the manual<= click here
for real-life examples from the never-ending battle for common sense
in unemployment compensation cost control
return to index at top of pagetop


A claimant who voluntarily takes a leave of absence for his own benefit and purposes, with an assurance of reinstatement at the end of the leave, is not available for work within the meaning of the Unemployment Compensation Law.

A claimant who is on a regularly scheduled vacation with pay is not unemployed. A claimant will ordinarily be
  • ineligible if the vacation is without pay but taken voluntarily
  • ineligible if the vacation is involuntary but with pay
  • eligible if the vacation is involuntary and without pay.
Plant Shutdowns:
A vacation may be considered voluntary even though required for the convenience of the employer, such as a plant shutdown for periodic retooling or maintenance, if the scheduled time and duration has been agreed to by a duly established union representing the claimant.
return to index at top of pagetop


A claimant is clearly not available for work during any week in which the majority of the week is spent serving in the military or on active reserve duty. However, if his service time is spent exclusively on weekends, the rule should not apply.

National Guard and Reserve members called to active duty, and their civilian employers, have certain rights and responsibilities under the Uniformed Services Employment and Reemployment Rights Act (USERRA). This Act is administered and enforced by the Department of Labor's Veterans' Employment and Training Service (VETS). VETS has developed a fact sheet and an interactive computer program, the USERRA Advisor, which address the rights and responsibilities of individuals and their employers, under the law.
return to index at top of pagetop


A claimant who materially reduces his opportunities for work for which he is reasonably fitted, by maintaining habits of dress and personal appearance or hygiene which are demonstrably incompatible with such work, may be determined to be unavailable for work and subject to denial of benefits.

State agencies may very well be extremely cautious in applying the above rule. This sort of thing is subjective and mutable. For instance, the same self-mutilation which would have appeared bizarre in our time is now common among the young.
Appearance may be construed to affect availability if the agency can be convinced that the claimant’s appearance, in fact, is incompatible with accepted business practice in the business or industry in which the claimant is seeking work.
Dress Codes:
A claimant who refuses to abide by or to accommodate an employer’s reasonable safety rules or rules of common decency in dress or appearance will be subject to denial of benefits. For example, a machine shop may reasonably object to a ponytail as an unsafe appurtenance which could get caught in the machinery. Likewise, many restaurants, hotels, etc. enforce dress codes.
return to index at top of pagetop


A claimant may be denied benefits because he is unavailable for work whenever there is virtually no job market for his particular skills. This statement is conceptually correct, but difficult to apply.

A claimant also may be denied benefits if the restrictions he places upon employment he will accept are unduly strict.

If, say, a garment worker loses his job to competition from Malaysia, and joins the glut of unemployed garment workers in that state, where sewing factories close left and right, then the state agency's best remedy may be to retrain that worker for a skill which is more in demand. In that case, the state may choose to invoke a program which will pay the person extended unemployment during the retraining process. Many and various such programs, to suit many circumstances, are in effect across the country.
Part Time Work:
A claimant may not be entitled to restrict himself to part-time work.
Earnings Limits:
A claimant may not be entitled to place an upper limit on the amount of earnings he will accept if this results in periods of compensable unemployment, as in the case of a retirement earnings limitation under social security.
Other Activities:
A claimant may not generally restrict his availability because he is engaged in other, substantially full-time activity, such as self-employment or volunteer public service.
Impractical Limitations:
A claimant may be ineligible if he restricts his search in ways which make his prospects for obtaining work remote. For example, if a teacher continues to search only for a full-time teaching position even after all the full-time teaching positions in the area have been filled,
return to index at top of pagetop


A claimant may not be eligible for benefits if he is engaged in full-time public service.

Work Search:
A person engaged in public service activities will generally be eligible for unemployment benefits only if he is available for full-time employment, is actively seeking full-time work, and is receiving no remuneration for his public services.
Volunteer workers may be denied benefits if their volunteer services interfere with their availability or search for employment.
Jury Duty:
A juror is generally considered unavailable for work for the duration of that duty.
National Guard:
A National Guardsman likewise is unavailable for work for the duration of that duty.
return to index at top of pagetop


Self-employed workers are not eligible to receive unemployment compensation benefits, regardless of the amount of profits or income they receive from their self-employment, because they are not available for, nor actively searching for employment.

Independent Contractor
Seeking work as an independent contractor constitutes self-employment and does not constitute a search for employment for wages. Seeking work is part of the work which a self-employed person or an independent contractor does. Therefore, while they are seeking work, they are not out of work, but only in a different phase of their work.

Parenthetically, many a scheme to avoid paying unemployment taxes by regarding a worker as an independent contractor goes awry right at this point. A worker, content to be an independent contractor while the work continues, applies for benefits when it is done. Suddenly, the state agency is made aware that taxes have not been paid on this person's wages. Now, the state goes after the employer.

A few years ago, some states began experimental programs, at the suggestion of the Clinton administration, which would pay benefits to unemployed workers while helping them start a business of their own. In other words, an employer may be forced to subsidize a laid-off worker to go into competition with himself.
Part Time:
If a claimant is self-employed part-time or intermittently, and this employment is secondary to his search for work, he may be eligible for benefits. His earnings from self-employment must theoretically be reported to the state agency and deducted from his weekly benefit amount.
return to index at top of pagetop


A claimant must be available for work on those days and during those hours when the work for which he is suited and searching is commonly performed.

Shift Work:
If shift work is common in the industry for which the claimant is suited, the claimant must be available for those shifts. This is especially true where shift assignments are normally made on the basis of seniority.
Personal Obligations:
State agencies do sometimes take into consideration serious personal or domestic obligations which limit a claimant’s ability to accept employment during certain hours of the day or days of the week. The balancing factor in such decisions, however, should be whether a substantial amount of work in the claimant’s field is offered during the hours that the claimant is available.
return to index at top of pagetop


A claimant must be able to work, available for work, and actively seeking permanent and substantially full-time work in accordance with the custom and practice in the occupation or business in which he seeks employment.

Part Time:
Some industries do not work 40 hour weeks. An example would be insurance adjusters. Exceptions to the full-time rule are therefore common.

Some states will pay unemployment to a worker who may have two or more part-time jobs, or a full-time and a part time job, and lost one of them. The earnings from his other job(s) will be in some measure deducted from his benefits. Other states strictly require that a person be seeking full-time employment. Multiple part-time job holders seeking to replace one of several part-time jobs will fall through the cracks.

A job may be permanent even if interruptions are common. An example would be construction work, or any other work where employment continues on a contract basis. While there is work, it is full time. Even though the work may be intermittent, and the employers not always the same, the work itself is a full time, permanent vocation.
Some strange exceptions are made for seasonal employment. For example, in Michigan, employees of designated seasonal employers are not eligible for unemployment benefits during the off-season. (Meanwhile, their employers are still taxed.) In some parts of the country, such as Alaska, and in some industries, such as fishing, seasonal employment may be the only employment. A claimant generally will not be denied benefits if he is searching for seasonal employment, so long as he does not limit himself to seasonal employment exclusively.
Temporary Staffing Services:
Employees of temporary staffing services do not meet any of the ordinary criteria. They may be awaiting a new assignment, but they may have no expectation that it will be full-time, and much less that it will be permanent. In recent years, states have been much more interested in clamping down on tax advantages of leasing and temporary staffing employee services than they have been in adjusting these criteria to suit these new conditions. Thus, it is impossible to generalize at this time about how work search and availability will affect eligibility for benefits for employees of such services in your state.
Teachers are everywhere ineligible for unemployment between school terms. This exception extends to school janitors, bus drivers, etc. So long as they have reasonable expectation of re-employment when the new school term begins, they are not considered unemployed.
return to index at top of pagetop


Unions swing blocks of votes. It is no surprise, therefore, that they enjoy so many unfair advantages under the law. Unemployment is no exception.

A claimant who restricts his availability to union work is considered available for work. He need not make himself available for work in the same way that any other worker must.
A claimant who restricts his work search to registering with his union is considered to be seeking work. He need not actively search the same way that any other ordinary individual must.
CLICK HERE for real-life examples illustrating this point of the manual<= click here
for real-life examples from the never-ending battle for common sense
in unemployment compensation cost control
return to index at top of pagetop


Generally, a claimant must be available for work at wages which are prevailing or common in his locality for similar occupations, training and experience.

Previous Wages:
Generally, a claimant looking for new work cannot realistically expect the same wage he was receiving in his former employment. He can expect only a commensurate wage within a range which reflects his experience and skills and which is prevailing for his occupation in his locality.
Fringe Benefits:
Overtime work and fringe benefits are wage related considerations in determining a claimant’s availability. Generally, a claimant must be willing to accept such overtime, working conditions, and fringe benefits as are common and prevailing in the industry or occupation in which he are searching for work.
Minumum Wage:
A claimant may always refuse work paying less than the legally applicable minimum wage without losing his eligibility for unemployment benefits
return to index at top of pagetop


A claimant must be able to work, available for work, and actively seeking work during a period of pregnancy in order to be eligible for benefits.

The fact that employers may be reluctant to hire a pregnant claimant does not affect her eligibility so long as she meets the requirements of being able, available, and making an active search.
Whenever a claimant is medically confined, she is not able, available, and seeking work.
Light Duty:
A worker may be eligible for unemployment where her pregnant condition makes her unable to perform her usual occupation but she is able to perform another occupation. For example, a truck driver at a certain term in her pregnancy may be unable to drive trucks but still able to dispatch them.
return to index at top of pagetop


A claimant is not denied benefits if he is unavailable for work which conflicts with his religious beliefs and practices. For example, a Hindu may not be expected to accept employment in a slaughterhouse.

It is virtually impossible to dispute a claimant’s contention that particular work conflicts with his beliefs, because the United States Supreme Court has made the test for religious conflicts entirely subjective.
A claimant, who routinely refuses job referrals or offers, without exploring the possibility of accommodation with the prospective employer, might, however, be denied as unavailable.
return to index at top of pagetop


Unemployment compensation amounts are pegged to roughly half the worker's average weekly wage up to a modest maximum amount. Any earnings in excess of this amount are deducted in some fashion from weekly benefits. In some states, this reduction may not be dollar for dollar.

Other Jobs:
If a claimant secures part-time or casual employment to help out during his search for permanent work, these earnings will be deducted from his benefits. He may have been better off to have sat on his keester.
Partial Hours:
Only those employees who have had their regular full-time employment reduced by their employer, so that their earnings fall below the weekly benefit amount to which they would be entitled if they were claiming benefits, can file a claim and qualify for partial benefits. So a claimant's 40 hour week may be reduced to 20 hours, yet he may still be ineligible.
Pensions are considered earnings. If a retired military veteran collecting an inadequate pension has to work to make ends meet, and then he is laid off, his pension will be deducted from his benefits. He may well be perfectly eligible to receive benefits on the grounds of being out of work through no fault of his own, and also able, available, and searching; and yet collect nothing. How such things come to be public policy surpasses imagination.

Of course, the state agency will still gaily collect the unemployment tax from his employer.

Partial Employment:
Partial benefits are not the same as partial employment. A partial benefit is the difference between what the worker would have been entitled to, had he not had some other earnings during the period, and what the worker will actually receive. Partial employment may be what sent him to the unemployment office in the first place. Partial benefits are less than his full benefit amount. Partial employment is less than a full work week.
return to index at top of pagetop


A claimant will not be required to be available for and actively seeking work if these requirements have been waived for him by the state agency.

Temporary Layoff:
The most frequent waiver is for a temporary layoff. If there is some assurance from the employer that the layoff shall not exceed some maximum number of weeks (that number varying according to the state), then the worker is not required to seek other employment.
Offers of Work:
The state agency may extend a waiver to a worker who already has an offer of work set to begin within a stated number of weeks (that number varies according to the state).
The state agency may waiver requirements for workers who are enrolled in approved training or retraining programs.
Parental Leave:
Against the objections of his Department of Labor lawyers, who warned that it would not stand court challenges, the Clinton Administration promulgated regulations encouraging states to pass laws enabling new parents to collect unemployment while taking a parental leave. During such a period, obviously, the new parent would neither be available nor seeking work, nor even out of work. All requirements would be waived during such a period.

At this writing, many states have mooted, but no states have passed such legislation. Court challenges have already been mounted. But the courts are not inclined to give such challenges any standing until laws have passed.

return to index at top of pagetop


To qualify for unemployment compensation, you must be employed. Employers are not employed; they employ.

But what if a man owns a business and his wife works for him? Many an employer has been surprised to find out that his wife, on whose salary he has been paying taxes these many years, is unable to collect a dime of unemployment. What about his son? How distant must the relationship be before a family member can collect? What if there are partners? Many a partner has attempted to collect unemployment after severing from the company, and failed. Or, say that a salaried worker with no relation to the principal owner nevertheless owns a substantial interest in the business; can he qualify if he is let go? What about a publicly held corporation: Is the president or another officer of the firm considered an employer? What if a worker has no ownership at all, but runs the place? The answers to these questions vary substantially from state to state. No generalizations can be made.

In some jurisdictions, the distinction is extended beyond ownership to encompass control. In Pennsylvania, for instance, even those found to be "policy makers" or "non-tenured advisors" at a company have at times been unable to qualify for unemployment.

If employers cannot collect, must the employer pay the tax on his earnings? In most states, yes. But there are exceptions.

Another curious question arises when a business goes out of business. Suddenly, the employer no longer employs. And, again, the question of whether he can collect varies widely state to state. There may even be a distinction between a business owner who is forced to sell the business and one who simply went belly up. The seller may be construed to have voluntarily quit by selling; the other, not.

If you need to resolve a question along these lines, call Unemployment Tax Advisory for a special inquiry into your circumstances.
return to index at top of pagetop