Unemployment Compensation Manual

:: Refusing Work ::

CAVEAT: SPECIFIC LAWS AND REGULATIONS VARY WIDELY FROM STATE TO STATE. THESE ARE ONLY GENERAL REMARKS. UNEMPLOYMENT TAX ADVISORY CORPORATION DOES NOT RECOMMEND NOR ADVISE ANY MATERIAL CONDUCT ON THE BASIS OF THESE REMARKS. FOR ADVICE RELATING TO YOUR SPECIFIC CIRCUMSTANCES, CALL UTA AT 1 800 998 8822.
 

INTRODUCTION

Unemployment Compensation is intended to pay benefits to those who are involuntarily unemployed through no fault of their own. "Involuntarily unemployed" implies that claimants be ready and willing to accept suitable, new work. If a claimant refuses a referral to apply for suitable work or an offer of suitable work, without having good cause, he will be disqualified from further unemployment benefits.

Of course, the Devil is in the details. The more that the unemployment process has been automated, making it easier for claimants to satisfy their continuing claim requirements, as well as easier for the state agencies to satisfy their claim administration requirements, the more perfunctory the actual requirements have become. In years past, claimants were required to ensure that a certain number of employers signed and mailed postcards each week attesting that the claimant had indeed applied at that company that week. The claimant also had to undergo a weekly personal interview with a state agency representative who would quiz him as to his work search activities. No more. Now, a claimant may only have to make a phone call and press a few buttons, or else go online and click his mouse, to maintain his eligibility.

Nevertheless, the original job search requirements putatively still apply, and so we shall discuss them as though they still had reliable effect.
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REQUIREMENTS

In order to find a worker disqualified to receive unemployment benefits for refusing an offer of work, several points must be decided:

  1. Was a definite offer made?
  2. Was the work available?
  3. Was the offer clearly communicated to the worker?
  4. Was the work suitable?
  5. Did the worker have good cause for refusing?
Definite:
It is the responsibility of the state agency or the employer to establish that there has been a valid referral to or offer of work. The offer should have stated a time, a place, and a person to report to. It should be an offer for a specific job. The offer should include the type of work, hours, wages and any other terms and conditions, so that one can determine whether the work is suitable.
Available:
It is the responsibility of the state agency or the employer to establish that the offer was for available work or for work which will become available in the reasonably immediate future. An offer of work must be unconditional.
Communicated:
It is the responsibility of the state agency or the employer to establish that the offer was communicated to the worker in an understandable manner. A claimant will not be disqualified for turning down an offer of work about which he was not reasonably informed. However, it is the claimant’s duty to be reasonably available for contact by the state agency. If the claimant fails to keep the state agency informed of his correct address or where he can be reached, or fails to respond to call-in or other agency notices, he will be deemed to have refused to apply for work.
Suitable:
The state agency or the employer must show that the work offered was suitable in terms of the suitability criteria in force in that state.
Good Cause:
Here, the burden shifts to the claimant. The only "good cause" generally accepted for refusing an offer of work is that the work is unsuitable. This takes us back to the suitability question.

The difference is this: A claimant may also be allowed to refuse an offer of suitable work for good personal cause. An example of this might be the only parent of a small child, hired with the understanding he would only work day shift so that he could be at home to care for the child, then laid off from the day shift, but offered work on the night shift.

Transportation:
The responsibility for providing transportation to work generally rests with the claimant. Inability to provide transportation makes the claimant unavailable for work, and is not good cause for refusing a referral to suitable work.

Of course, the distance must be reasonable. What makes a distance reasonable will vary according to location. The reasonable, customary distance to work in, say, the New Mexico desert, may vary considerably from the requirements in a metropolis.

Domestic Obligations:
Domestic obligations are not usually good cause for refusing a referral to suitable work.
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EXCEPTIONS

Unfavorable Conditions:
A worker need not accept an offer for work if the wages, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.
Labor Disputes:
A worker need not accept an offer for work if:
  • The position offered is vacant due directly to a strike, lockout or other labor dispute.
  • 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 organizations.
Approved Training:
If the worker is enrolled in a training program approved by the state agency, he will not be disqualified for refusing an offer of work.
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REFUSAL

A claimant will be subject to disqualification from unemployment benefits if he expressly declines to accept a referral to or offer of suitable work, or if he actively discourages a referral or offer.

Declining to Apply:
A claimant can be disqualified from benefits if he:

  1. refuses to apply for work when directed by the state agency
  2. tells the state agency that if they make him apply, he won't take the job
  3. tells the state agency that he will discourage a job offer

So if the state job office hands him a referral slip, and he does not go there, he may be disqualified; but if the former employer does the same, he may not.

Declining an Offer:
Whether the worker applied at the behest of the state agency or not, once he applies for work, unless he has good cause, he may not refuse an offer of work. Neither may he discourage the employer from hiring him. If he does either of these, he may be disqualified.
Offer from Previous Employer:
If the worker separated himself from his former employment, he usually will not have good cause for refusing a bona fide offer of suitable work from the former employer. So if he got fired, but now they want him back, he should go, or lose benefits.
Discouraging an Offer:
A claimant whose discouraging remarks to a prospective employer result in his not being offered a job has actually refused work. So a claimant should honestly apply for and attempt to get a position, whether he is referred to apply there or otherwise.
Refusal Prior to Claim:
Refusing an offer of suitable work may be disqualifying, even if that refusal occurred prior to filing a claim for benefits. So if a worker was laid off, but the employer arranged for another company to offer him a similar, suitable job, and he did not accept, but would rather file for unemployment, he may not collect.
Burden of Proof:
Once an offer or referral has been made, the responsibility for establishing that he had good cause for refusing an offer or referral rests with the claimant. So if the state agency hands him a referral slip, he must show a good reason for not applying there.
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SUITABILITY

In determining whether or not any work is suitable, the state agency is apt to consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment, and the distance of the work from his residence.

Suitable work is generally defined as work for which the claimant is qualified by experience and training, work which pays a wage commensurate with his experience, skill and prior earnings, work which is within a reasonable distance from his residence, and work the conditions of which do not constitute an undue risk to the worker’s health, safety, or morals. So, the six elements which determine suitability are:

  1. Experience and Training
  2. Wages
  3. Commute
  4. Health
  5. Safety
  6. Morals
Experience and Training:
Suitable work is work for which the worker is qualified by experience and training.

"Qualified by experience and training" includes not only work in a worker’s usual occupation, but also other work for which fits his experience and training. If work in the same occupation is limited, other work for which the worker is fitted will be suitable. Thus, the worker laid off from a sewing factory may be suited for work in an upholstery shop.

Ideally, a job offer should make use of a workers’ highest skills. An experienced CFO should not immediately become a payroll clerk simply because he lost his job.

This rule of thumb is tempered by how long the worker has been out of work. Thus, for instance, a motorcycle mechanic may be expected to apply for jobs as an auto mechanic if, after several months, he still cannot find work in his usual field.

And the rule of thumb is also tempered by the worker's prospects for securing local work in his customary occupation. Thus, for instance, a seamstress laid off from a sewing factory in the hinterlands of Pennsylvania, where sewing factories close every day, may be expected to seek work as an office clerk.

The work may be unsuitable if the worker is under-qualified. But the rule of thumb may also be affected where the employer offers to train the worker for the offered work. This would be especially true where the training will upgrade the claimant’s skill and wages. So if a cashier is offered a position and training to be a store manager, this is suitable.

The claimant has the burden to establish that an offer of work is unsuitable if the work falls within his general qualifications or capabilities.

Wages:
Generally, an offer of work will be suitable if the wages offered are reasonably commensurate with the worker’s skill and prior earnings or are prevailing wages for similar work in the claimant’s locality. The worker’s former wage level is generally evidence of prevailing wages for work of his skill and experience. However, a prevailing wage is usually a range of wage rates depending upon seniority and fringe benefits. A worker may be required to accept a lower starting wage in new work so long as the wage is within the prevailing range.

Some state agencies may use a formula which prescribes a certain percentage reduction in pay which a worker may expect to undergo before a new offer of work is considered unsuitable.

For a worker seeking work in a new locality, the former wage rate may not be a relevant consideration in determining a suitable wage at all. A suitable wage may be wholly dependent upon the wage range prevailing for similar work in the new locality. The wage which prevails in New York City is not apt to prevail in Hard Luck, Wyoming.

The method of payment does not, in itself, generally make an offer of work unsuitable. If commissions, piece rate, etc., is common in the occupation or trade, then an offer paying that way is suitable.

It is the responsibility of the worker to demonstrate that the work and earnings would be substantially less favorable than that which prevails for similar work in the locality.

Work which pays below the legal minimum wage is always unsuitable work.

Commute:
Generally, an offer of work will be suitable if it is within a reasonable distance of the worker’s residence, considering the worker’s normal job market and the travel distances customary in the industry and occupation.

For workers living in sparsely populated areas, the general rule is that they must be able and willing to travel to the location or area where the work that they are seeking is generally located. So a welder who lives in the woods might be expected to travel to the nearest large city to seek work.

If it is customary in the trade or occupation for workers to travel substantial distances to work sites away from their residences, the work involving such distances will be suitable. So a heavy construction engineer may be expected to travel farther than the local backhoe operator.

Lack of transportation is usually not good cause for refusing an offer of work. It is the worker's responsibility to get there. So "My truck broke down" does not qualify a worker for unemployment.

Health:
No work will be suitable for a worker if it poses an undue risk, objectively established, to his health.

A worker's age limitations or handicaps may affect what is suitable work. Thus, a clubfooted welder may find stationary assembly work suitable, but not work at a shipyard.

A worker's allergies may affect what is suitable work. Thus, a welder with asthma may find acetylene, mig or tig welding suitable, but not arc welding.

Any compelling phobias may make work unsuitable. Thus, our welder may not be expected to apply for work on a skyscraper project if he has acrophobia.

It is the worker’s responsibility to establish his physical limitations by reasonable, competent evidence. Where the worker’s testimony about these limitations is not self-evident or inherently reliable, he must generally provide objective corroboration, preferably medical verification, to support his claim of good cause.

Conditions of the work itself may be considered if they are unusual. Thus, if a job requires toxic chemicals, work underground, high heat, or other conditions unusual for the occupation, then they may be considered.

Safety:
No work will be suitable for a worker if it poses an undue risk, objectively established, to his safety.

Work in an area with a high crime rate may be considered dangerous.

Morals:
No work will be suitable for a worker if it poses an undue risk, objectively established, to his morals.

General moral and ethical objections may be considered apart from religious practices.

The worker's objections may include any situations which violate a claimant’s sincerely held and reasonable moral or ethical beliefs. Some instances might be:

  • Sexually offensive situations. For example, a barmaid may not be expected to apply for work at a topless bar if she objects to the surroundings.
  • Liquor establishments. For example, the same waitress may not be expected to apply for work in a bar if she objects to liquor.
  • War production plants. For example, an auto worker may not be expected to apply for work building tanks if he is a confirmed pacifist.
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WORK CONDITIONS

The conditions of the offered work, such as the hours, whether it is part-time or intermittent, etc., may affect whether the work is suitable.

Hours:
Generally, the hours and days that work is scheduled does not make work unsuitable per se. The time the work is to be performed becomes less favorable when it conflicts with the worker’s personal obligations or schedule. If the worker’s usual occupation customarily includes shift work, work on all shifts will be suitable unless the conflict with the worker’s obligations or personal situation is compelling and irreconcilable.
Overtime:
If overtime work is customary in the trade or occupation, the need for some overtime work will not make the offer of work unsuitable. Overtime work would become unsuitable if it was excessive. It would be excessive, in most cases, if it were continuously in excess of 48 hours per week or substantially interfered with the worker’s domestic responsibilities and enjoyment.
Part-time:
Part-time work is not unsuitable unless it materially interferes with a worker’s efforts to find full-time work. A worker who normally works in a full-time occupation may be allowed reasonable time to canvass the full-time job opportunities in his locality before being expected to take part-time work. This rule may not apply if the part-time work is offered by the worker’s present employer as an alternative to total unemployment.
Seasonal:
Seasonal employment is suitable work if the worker has had a reasonable opportunity to search for permanent, full-time work and accepting the seasonal work would not unduly hamper his prospects for finding permanent, full-time work. In some localities, seasonal work may be the only significant work available.
Other Conditions:
Other conditions, such as supervision, plant and equipment, benefit packages, etc., may affect the desirability of the work, but to constitute good cause for refusing a referral or offer, they must be substantially less favorable. A worker’s mere preference for certain conditions similar to his former employment will not be good cause for refusing a referral or offer. If a worker alleges less favorable conditions, he must be prepared to prove with objective evidence that the disadvantages are real and substantial.
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UNION ISSUES

Benefits may not be denied to an otherwise eligible worker for refusing to accept new work if, as a condition of being employed, the worker would either be required to resign from a union, or to refrain from joining a union.

Benefits cannot be denied to a worker for refusing to accept work if the position offered is vacant due directly to a strike, lockout, or other labor dispute.

But they may be denied if a worker refuses to join a union. So he can't be forced to quit the union, he can't be forced not to join the union, he can't be forced to cross a picket line, but he can be forced to join a union. Because unions swing blocks of votes, they commonly enjoy unfair advantages under the law. Unemployment law is no exception.

Illustration:
An example might be: A worker is employed in a union job. That job is eliminated. He is offered a promotion to a non-union job. He may refuse. Essentially, his employment ended when the job was eliminated, and the promotion was a new offer of work. He is not likely to be disqualified for refusing non-union employment.
Refusal to Join:
On the other hand, a worker may not have good cause to refuse an offer of work simply because it requires membership in a union, as in the case of a union shop or maintenance of membership agreement. A worker referred to a union shop or offered a job there must generally join and pay dues or lose his unemployment.
Union Job Prospects:
Nonunion work may become suitable for union members, where conditions of work and wages are prevailing, if, after a lengthy period of unemployment, prospects for reemployment in a union job are poor.
Required to Quit Union:
The worker is not apt to be disqualified if, as a condition of being employed, he would be required to resign from the union. "Required" means if it is a condition of the job. If the union has a rule that he must resign if he accepts a nonunion job, that is not a condition of the job, but a condition of union membership. That should not generally render the work unsuitable.
Strikes, Lockouts:
Benefits cannot be denied to a worker for refusing to accept work if the position offered is vacant due directly to a strike, lockout, or other labor dispute. A worker would probably have good cause for refusing even a referral to suitable work, even though unrelated to the labor dispute, if he had to cross a hostile picket line to have an interview or otherwise offend a union with which he would have to work in the future.
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GOOD CAUSE

A worker may not be disqualified from unemployment benefits if he has good cause for refusing a referral to or an offer of suitable work. Good cause may include personal reasons, if those reasons are compelling. The latitude allowed a claimant here will differ markedly from one state agency to the next and from one case to the next.

Personal cause for refusing work has nothing to do with the suitability of the work offered. The claimant’s personal reasons for refusing a referral to or offer of suitable work hinge on whether the reasons constitute good cause, not whether the work is suitable. If the work were unsuitable, the cause for refusing it would not be personal, but work related.

Transportation:
Lack of transportation is generally not a good cause for refusing an offer of work.
Domestic Obligations:
Today's working woman faces child care and eventually parent care problems which may seem virtually insuperable. Many refusals of work naturally flow from these causes.
  1. The cause or obligation should be reasonable and compelling. For instance, care for a three year old may be more compelling than care for an eighteen year old.
  2. The cause or obligation should pose an irreconcilable conflict with the work, allowing no reasonable resolution. For instance, many employers can offer day care solutions to help resolve these conflicts.
  3. The cause or obligation should be directly personal to the claimant. For instance, care for one's own child may be an acceptable personal cause whereas care for the child of one's boyfriend may not.
  4. The cause should only partially restrict the claimant's availability for work. For instance, if the worker is unwilling to accept work fifty miles away because that would make her unavailable in case of emergencies, but is available for work in her local job market, then she may not be unduly restricting her work availability.
Religious Practices:
A worker may not be disqualified for refusing an offer of otherwise suitable work if the conditions of that work create an irreconcilable conflict with his sincerely held religious beliefs and practices. An example might be a worker whose religion forbids work on certain days, offered employment which would require him to work on those days.
Pregnancy:
Pregnancy will generally not excuse a worker for refusing to accept a referral to or an offer of suitable work unless the pregnancy is disabling. For instance, a woman with retailing experience might refuse suitable work if the duties included heavy lifting when restocking shelves.
School or Training:
School or training programs approved by the state agency may provide good personal cause.
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CAVEAT: SPECIFIC LAWS AND REGULATIONS VARY WIDELY FROM STATE TO STATE. THESE ARE ONLY GENERAL REMARKS. UNEMPLOYMENT TAX ADVISORY CORPORATION DOES NOT RECOMMEND NOR ADVISE ANY MATERIAL CONDUCT ON THE BASIS OF THESE REMARKS. FOR ADVICE RELATING TO YOUR SPECIFIC CIRCUMSTANCES, CALL UTA AT 1 800 998 8822.