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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE XXI LABOR AND INDUSTRIES
  • CHAPTER 151A UNEMPLOYMENT INSURANCE
  • Section 25 Disqualification for benefits

Section 25. No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter for—

(a) Any week in which he fails without good cause to comply with the registration and filing requirements of the commissioner. The commissioner shall furnish copies of such requirements to each employer, who shall notify his employees of the terms thereof when they become unemployed.

The employer, upon the retirement of an individual from employment pursuant to a pension program, plan or agreement requiring retirement on the ground of age, and any labor union or association which is a party to any such program, plan or agreement, shall notify such individual in writing that he is not, by reason of such retirement, disqualified from receiving unemployment compensation benefits.

(b) Any week with respect to which the commissioner finds that his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he was last employed; provided, however, that nothing in this subsection shall be construed so as to deny benefits to an otherwise eligible individual (1) who becomes involuntarily unemployed during the period of the negotiation of a collective bargaining contract, in which case the individual shall receive benefits for the period of his unemployment but in no event beyond the date of the commencement of a strike; or (2) who is not recalled to work within one week following the termination of the labor dispute; and provided, further, that this subsection shall not apply if it is shown to the satisfaction of the commissioner that:—

(1) The employee is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and that

(2) The employee does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute, except that an individual for whom no work is available and who is not a member of or eligible to membership in the group or organization which caused the stoppage, shall not be considered as belonging to the same grade or class of workers as those who are responsible for the stoppage of work; provided, further, that if, in any case, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department may, for the purposes of this subsection, be deemed a separate factory, establishment or other premises.

(3) For the purposes of this chapter, the payment of regular union dues or assessments shall not be construed as participating in or financing or being directly interested in a labor dispute.

(4) The individual has, subsequent to his unemployment because of a labor dispute, obtained employment, and has been paid wages of not less than the amount specified in clause (a) of section twenty-four; provided, however, that during the existence of such labor dispute the wages of such individual used for the determination of his benefit rights shall not include any wages such individual earned from the employer involved in such labor dispute.

In addition to the foregoing, an employee shall not be denied benefits as the result of an employer’s lockout, whether or not there is a stoppage of work, if such employees are ready, willing and able to work under the terms and conditions of the existing or expired contract pending the negotiation of a new contract unless the employer shows by a preponderance of evidence that the lockout is in response to: (a) acts of repeated and substantial damage to the employer’s property, or (b) repeated threats of imminent, substantial damage; provided, however, that such damage or threats of damage are caused or directed by members of the bargaining unit with the express or implied approval of the officers of such unit, and the employer has taken all reasonable measures to prevent such damage to property and such efforts have been unsuccessful.

A lockout, as used in this subsection, shall exist whether or not such action is to obtain for the employer more advantageous terms when an employer fails to provide employment to his employees with whom he is engaged in a labor dispute, either by physically closing his plant or informing his employees that there will be no work until the labor dispute has terminated.

(c) Any week in which an otherwise eligible individual fails, without good cause, to apply for suitable employment whenever notified so to do by the employment office, or to accept suitable employment whenever offered to him, and for the next seven consecutive weeks in addition to the waiting period provided in section twenty-three, and the duration of benefits for unemployment to which the individual would otherwise have been entitled may thereupon be reduced for as many weeks, not exceeding eight, as the commissioner shall determine from the circumstances of each case.

“Suitable employment”, as used in this subsection, shall be determined by the commissioner, who shall take into consideration whether the employment is detrimental to the health, safety or morals of an employee, is one for which he is reasonably fitted by training and experience, including employment not subject to this chapter, is one which is located within reasonable distance of his residence or place of last employment, is 1 which reasonably accommodates the individual’s need to address the physical, psychological and legal effects of domestic violence, and is one which does not involve travel expenses substantially greater than that required in his former work.

No work shall be deemed suitable, and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:—

(1) If the position offered is vacant due directly to a strike, lockout or other labor dispute;

(2) If the remuneration, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;

(3) 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 organization or association of workmen.

An individual who is certified as attending an industrial retraining course or other vocational training course as provided under section thirty shall not be denied benefits by reason of the application of the first paragraph of this subsection relating to failure to apply for, or refusal to accept, suitable work.

(d) Any period with respect to which he is receiving or has received or is about to receive compensation for total disability under the workers’ compensation law of any state or under any similar law of the United States, but not including payments for certain specified injuries under section thirty-six of chapter one hundred and fifty-two; or payments for similar specified injuries under workers’ compensation laws of any state or under any similar law of the United States.

(e) For the period of unemployment next ensuing and until the individual has had at least eight weeks of work and in each of said weeks has earned an amount equivalent to or in excess of the individual’s weekly benefit amount after the individual has left work (1) voluntarily unless the employee establishes by substantial and credible evidence that he had good cause for leaving attributable to the employing unit or its agent, (2) by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in wilful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee’s incompetence, or (3) because of conviction of a felony or misdemeanor.

No disqualification shall be imposed if the individual establishes to the satisfaction of the commissioner that the reason for the individual’s discharge was due to circumstances resulting from domestic violence, including the individual’s need to address the physical, psychological and legal effects of domestic violence.

No disqualification shall be imposed if such individual establishes to the satisfaction of the commissioner that he left his employment in good faith to accept new employment on a permanent full-time basis, and that he became separated from such new employment for good cause attributable to the new employing unit. An individual shall not be disqualified under the provisions of this subsection from receiving benefits by reason of leaving his work under the terms of a pension or retirement program requiring retirement from the employment notwithstanding his prior assent, direct or indirect, to the establishment of such program. An individual shall not be disqualified from receiving benefits under the provisions of this subsection, if such individual establishes to the satisfaction of the commissioner that his reasons for leaving were for such an urgent, compelling and necessitous nature as to make his separation involuntary.

An individual shall not be disqualified under the provisions of this subsection from receiving benefits by reason of leaving work to enter training approved under Section 236(a)(1) of the Trade Act of 1974, provided the work left is not suitable employment, as defined in this paragraph. For purposes of this paragraph, the term “suitable employment” means with respect to an individual, work of a substantially equal or higher skill level than the individual’s past adversely affected employment, as defined for purposes of the Trade Act of 1974, and wages for such work at not less than eighty per cent of the individual’s average weekly wage as determined for the purposes of the Trade Act of 1974.

An individual shall not be disqualified, under the provisions of this subsection, from receiving benefits if it is established to the satisfaction of the commissioner that the reason for leaving work and that such individual became separated from employment due to sexual, racial or other unreasonable harassment where the employer, its supervisory personnel or agents knew or should have known of such harassment.

For the purposes of this paragraph, the term “sexual harassment” shall mean sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance; or (c) such advances, requests or conduct have the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment. The department shall promulgate regulations necessary to carry out the provisions of this paragraph.

An individual shall not be disqualified from receiving benefits under this clause if the individual establishes to the satisfaction of the commissioner that the reason for the individual’s leaving work was due to domestic violence, including:

(1) the individual’s reasonable fear of future domestic violence at or on route to or from the individual’s place of employment;

(2) the individual’s need to relocate to another geographic area in order to avoid future domestic violence;

(3) the individual’s need to address the physical, psychological and legal effects of domestic violence;

(4) the individual’s need to leave employment as a condition of receiving services or shelter from an agency which provides support services or shelter to victims of domestic violence;

(5) any other respect in which domestic violence causes the individual to reasonably believe that termination of employment is necessary for the future safety of the individual or the individual’s family.

A temporary employee of a temporary help firm shall be deemed to have voluntarily quit employment if the employee does not contact the temporary help firm for reassignment before filing for benefits and the unemployment benefits may be denied for failure to do so. Failure to contact the temporary help firm shall not be deemed a voluntary quitting unless the claimant has been advised of the obligation in writing to contact the firm upon completion of an assignment.

For the purposes of this paragraph, “temporary help firm” shall mean a firm that hires its own employees and assigns them to clients to support or supplement the client’s workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects. “Temporary employee” shall mean an employee assigned to work for the clients of a temporary help firm.

An individual in partial unemployment who leaves work from other than the most recent base period employer while receiving benefits under this chapter shall not be disqualified pursuant to the provisions of this subsection from receiving benefits, if such individual establishes to the satisfaction of the commissioner that the reason for leaving was to enter training for which the individual has received the commissioner’s approval under section thirty.

Notwithstanding the provisions of this subsection, no waiting period shall be allowed and no benefits shall be paid to an individual under this chapter for the period of unemployment next ensuing and until the individual has had at least eight weeks of work and in each of said weeks has earned an amount equivalent to or in excess of the individual’s weekly benefit amount after having left work to accompany or join one’s spouse or another person at a new locality.

(f) For the duration of any period, but in no case more than ten weeks, for which he has been suspended from his work by his employing unit as discipline for violation of established rules or regulations of the employing unit.

(g) Any week which commences during the period between two successive sports seasons or similar periods if such individual performed services substantially all of which consisted of participating in sports or athletic events or training or preparing to so participate if such individual performed such services in the first of such seasons or similar periods and there is a reasonable assurance that such individual will perform such service in the later of such seasons or similar periods.

(h) Any period, after December thirty-first, nineteen hundred and seventy-seven, on the basis of services performed by an alien, unless such alien was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act; provided, that any modifications to the provisions of section 3304(a)(14) of the Federal Unemployment Tax Act which specify other conditions or other effective dates than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this section.

Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.

In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of this alien status shall be made except upon a preponderance of the evidence.

(i) Any period during which the individual applying for or receiving benefits has a default or arrest warrant outstanding against him, to the extent that federal law allows such benefits not to be paid. In order to determine if an individual has an outstanding default or arrest warrant against him, the department shall transmit to the department of criminal justice information services a list of applicants and beneficiaries along with sufficient identifying information about such applicants and beneficiaries on at least a quarterly basis. The department of criminal justice information services shall send to the department a list of the applicants or beneficiaries who have a default or arrest warrant outstanding. Evidence of the outstanding default or arrest warrant appearing in the warrant management system established by section 23A of chapter 276 shall be sufficient grounds for such action by the department. The department shall notify individuals against whom there is a default or arrest warrant outstanding that their benefits shall be denied or suspended unless the individual furnishes proof within 30 days of such notice that such warrant has been recalled or that there is no such warrant outstanding for the individual. Notice of potential denial or suspension shall be deemed sufficient if the notice is mailed to the most recent address furnished to the department. If proof that such warrant has been recalled or that there is no such warrant outstanding is furnished within 30 days, and if the applicant would otherwise be entitled to benefits, such benefits shall be provided from the time that they would have been provided had there not been a denial or suspension of benefits. If no such proof is furnished within 30 days, the individual shall be notified that benefits are denied or suspended subject to the provisions of subsection (b) of section 39. If a hearing is requested, within the ten-day period provided by said subsection (b) of said section 39, no suspension of benefits shall occur until a hearing has taken place and a determination by the commissioner or his authorized representative has been made. If a hearing is requested, the law enforcement agency responsible for the warrant shall be notified of the time, place, date of hearing and the subject of the warrant. An affidavit from the law enforcement agency responsible for the warrant or from the colonel of the state police may be introduced as prima facie evidence of the existence of a warrant without the need for members of that law enforcement agency to attend any hearings held under this section. A person whose benefits have been denied or suspended due to an outstanding warrant may petition for reinstatement of such benefits at any time if such person can furnish sufficient proof as determined by the department that such warrant has been recalled. Such benefits will be provided from the time the warrant was recalled. The department shall promulgate regulations to implement this section.

(j) Any week in which the individual fraudulently collects benefits while not in total or partial unemployment. Whoever fraudulently collects benefits while not in total or partial unemployment, may be disqualified for each otherwise compensable week for each such week of erroneous payment; provided, however, that the amount in question shall be reduced by any earnings disregard in subsection (d) of section 29; provided further, that in the discretion of the commissioner, an amount erroneously paid may be deducted first from any future payments of benefits accruing to the individual under this chapter; provided further, that the amount deducted each week shall not exceed 25 per cent of the individual’s weekly unemployment benefit rate; and provided further, that the individual shall have had actual notice of the requirement to report his earnings and the notice shall have met the requirements of clause iii of subsection (d) of section 62A. Any individual subjected to a deduction under this section may file an appeal and obtain review in accordance with sections 39 to 42, inclusive, and section 71.

(k) The department of unemployment assistance shall promulgate regulations providing that any employee discharged for deliberate misconduct consisting of: (i) stealing from such employee’s place of employment; (ii) illegal drug use while at work; or (iii) drunkenness while at work shall be determined to be ineligible for benefits without regard to whether or not the employer had a written policy against such conduct.