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Chapter Six

Eligibility for Benefits During a Week

A.  Procedural Requirements

  1. Waiting Week
     
    1. There is a waiting period of one week before an individual suffering total or partial unemployment is eligible for benefits. {ORC §4141.29(B)}
       
    2. Only one waiting period is required in a benefit year to establish the individual's eligibility for total or partial unemployment. {ORC §4141.29(B)}
       
    3. The waiting period shall be the first weekly claim allowed by the Director. {ORC §4141.29(C)}
       
     
  2. Valid Application. No individual is entitled to a waiting period or benefits for any week UNLESS the individual has filed a valid application for determination of benefit rights. {ORC §4141.29(A)(1)}
     
  3. Timely claim
     
    1. No individual is entitled to a waiting period or benefits for any week UNLESS the individual has made a timely claim for benefits for that week. {ORC §4141.29(A)(2)}
       
    2. A claim for a week of unemployment shall NOT be valid IF filed later than the end of the third calendar week immediately following such week. {OAC 4141-27-05(A)}
       
      1. The time limitations to file a claim may be extended by the Director ONLY in exceptional cases where it is shown that the individual has been deterred by circumstances beyond the individual's control from filing a claim as prescribed in the rules. {OAC 4141-27-05(B)}
         
      2. An individual's failure to file claims while an appeal is pending is NOT grounds to extend the time limitations to file a claim. Feim v. Board of Review (1978), 56 Ohio App. 2d 175.
         
       
     
  4. Registration. No individual is entitled to a waiting period or benefits for any week UNLESS the individual has registered as designated by the Director. {ORC §4141.29(A)(3) and OAC 4141-29-01(A)}. The Director shall prescribe the time limits, frequency, and manner of registration.
     
    1. An individual is deemed to be registered upon filing an application for benefit rights, making a weekly claim for benefits or reopening an existing claim following a period of employment or non-reporting. {OAC 4141-29-01(A)(1)}
       
    2. Registration continues for a period of three weeks from the week of registration. {OAC 4141-29-01(A)(2)}
       
    3. The Director may, for good cause, extend the specified period of registration. {OAC 4141-29-01(A)(3)}
       
     
  5. Profiling. IF it is determined that an individual needs reemployment services pursuant to the Director's profiling system, the individual MUST participate in the reemployment services to be entitled to a waiting period or benefits for any week. {ORC §4141.29(A)(6)}
 

B.  Involuntary Unemployment

  1. An individual's unemployment must be involuntary. An individual who is on a voluntary leave of absence is not entitled to benefits.
     
  2. Corporate officers
     
    1. An unpaid corporate officer, who also works in covered employment with the corporation as a carpenter, is involuntarily unemployed if the corporation lays off all of its carpenters. Belkin v. Board of Review ,1980 Ohio App. LEXIS 13802.
       
    2. When a corporate officer is no longer receiving wages for his or her services, because the corporation is insolvent, the trend in the courts is to conclude that the officer is involuntarily unemployed. See, e.g., Stegkamper v. Ohio (Apr. 21, 1978), Ashtabula CP No. 65763, unreported.
     
 

C.  Able to Work, Available for Suitable Work, Actively Seeking Suitable Work, and Unable to          Obtain Suitable Work

  1. No individual is entitled to a waiting period or benefits for any week UNLESS the individual is able to work, available for suitable work, and is actively seeking suitable work, either in the locality where the base period wages were earned, or in any locality where suitable work is normally performed. {ORC §4141.29(A)(4)(a)}
     
  2. Able to work
     
    1. The individual must by physically able to work during each day of the week claimed in order to meet this requirement. An individual who was physically unable to work for even one day during the week claimed would not be entitled to benefits for that week.
       
    2. Social Security Disability Benefits.
       
      1. In order to qualify for Social Security Disability Benefits, an individual must have a physical or mental impairment that, for at least one year, is expected to prevent the individual from performing any "substantial" work.
         
        1. "Substantial" is defined as monthly earnings exceeding $700.00.
           
        2. Applying this definition, some courts previously held that an individual receiving Social Security Disability Benefits could not be physically able to work under Ohio Revised Code Section 4141.29(A)(4)(a). Collins v. Administrator, 1987 Ohio App. LEXIS 6333.
           
         
      2. However, while retaining the above definition, Social Security law now permits individuals to enroll in work incentive programs, and earn over $800.00 per month, while collecting Social Security Disability Benefits.
         
      3. In light of the changes to Social Security law, the Commission has held that receipt of Social Security Disability Benefits now creates a rebuttable presumption that the individual is not physically able to work under Ohio Revised Code Section 4141.29(A)(4)(a).
         
       
    3. A worker's compensation benefits award is only premised on a conclusion that the individual is unable to work in the individual's previous occupation. Accordingly, an individual can receive certain types of workers' compensation benefits and still be physically able to work under ORC Section 4141.29(A)(4)(a).
       
     
  3. Available for work
     
    1. Although the statute does not define availability for suitable work, the Commission generally requires that the individual must be available for full-time employment, and must be available during each day of the week claimed. An individual who is unavailable for work for even one day during the week claimed would not be entitled to benefits for that week.
       
    2. Available for part-time employment. When an individual's base period employment has consisted of part-time employment, and there is a compelling reason why the individual is not available for full-time work, some courts have held that availability for part-time employment satisfies the requirement of Ohio Revised Code Section 4141.29(A)(4)(a). Gilbert v. Director, 2004 Ohio App. LEXIS 4240 (claimant had responsibility for special-needs child); Kahn v. Administrator (Jan. 26, 2001), Trumbull CP No. 99CV2, unreported (claimant had coronary artery disease).
       
    3. Self Employment
       
      1. The mere fact than an individual is working in self-employment does not automatically mean that the individual is not available for work. See, e.g., MacMillian v. Board of Review (1983), 10 Ohio App.3d 290.
         
      2. However, the essential question is whether the time the individual devoted to self-employment rendered the individual unavailable for other work. See, e.g., Silberstein v. Administrator, 1989 Ohio App. LEXIS 3740; May v. Board of Review , 1980 Ohio App. LEXIS 14138. While this examination must be carried out on a case-by-case basis, the cases in this area appear to demonstrate a few general rules:
         
        1. An individual who is working thirty or more hours per week in self-employment is more likely to be found to be NOT available for work.
           
        2. An individual whose self-employment is in the individual's normal line of work is more likely to be found to be NOT available for work.
           
        3. The presence or absence of income from self-employment does NOT appear to be an important factor in determining availability for work.
           
         
       
    4. Training course. An individual who is attending a training course approved by the Director meets the availability requirement IF attendance was recommended by the Director AND the individual is regularly attending the course and making satisfactory progress. {ORC §4141.29(A)(4)(c)} The individual will continue to meet the availability requirement for up to eight consecutive weeks between academic terms or during holiday recess periods.
       
    5. School. An individual who becomes unemployed while attending a regularly established school, and whose base period qualifying weeks were earned in whole or in part while attending that school, meets the availability requirement IF the individual regularly attends school during the week AND the individual is available on any shift of hours for suitable employment. {ORC §4141.29(A)(4)(d)} The Commission has interpreted "any" to mean "one," as opposed to "all."
       
     
  4. Actively seeking suitable work
     
    1. The Director will instruct the individual as to the efforts the individual must make in the search for suitable work. The individual shall keep a record in complying with those instructions, and shall produce that record to the Director for examination upon request. {ORC §4141.29(A)(4)(b)}
       
    2. Waiver of actively seeking work requirement
       
      1. The Director MAY waive the active search requirement IF the Director is notified, within ten days, that an employee had been laid off and is expected to return to work within forty-five days of the last day worked. Such waiver will cease if the individual is not recalled within the forty-five day period. {ORC §4141.29(A)(4)(a)}
         
      2. As with availability for work, the Director MAY waive the active search requirement for an individual who is attending an approved training course or a regularly established school. {ORC §§4141.29(A)(4)(c) and (d)}
         
       
     
  5. No individual is entitled to a waiting period or benefits for any week UNLESS the individual is unable to obtain suitable work. {ORC §4141.29(A)(5)}
     
    1. When an individual refuses an offer of suitable work without just cause, but the offer of work was for one week or less, the individual will be held to have been able to obtain suitable work during the week claimed. No duration suspension of benefits would be imposed.
       
    2. When an individual has been separated from work, or refused an offer of suitable work, pursuant to a labor-management contract or agreement under ORC Section 4141.29(D)(2)(a)(ii) or ORC Section 4141.29(D)(2)(b)(i), the individual is still considered to be unable to obtain suitable work. Bockover v. Ludlow Corporation (1986), 23 Ohio St.3d 190.
       
    3. Temporary agency workers
       
      1. An individual who was provided temporary work assignments AND is required under the employer's policy to inquire about available work after an assignment has ended, is NOT considered unable to obtain suitable work IF other assignments are available with the employer but the individual failed to contact the employer to inquire about them. {ORC §4141.29(A)(5)}
         
      2. The statute is silent as to whether the temporary agency must be the most recent separating employer or merely a base period employer.
       
     
 

D.  Between Terms Disqualification for Institutions of Higher Education or Educational          Institutions, and for Professional Athletes

  1. For an individual whose base period employment was serving in an instructional, research, or principal administrative capacity for an institution of higher education or an educational institution, benefits shall NOT be paid for any week: {ORC §4141.29(l)(1)(a)}
     
    1. DURING the period between two successive academic years or terms, during a similar period between two regular but not successive terms, OR during a paid sabbatical leave provided for in the individual's contract;
       
    2. IF the individual performs such services in the first of those academic years or terms AND has a contract or a reasonable assurance that the individual will perform services in any such capacity for any such institution in the second of those academic years or terms.
       
     
  2. For an individual whose base period employment was serving in OTHER than an instructional, research, or principal administrative capacity for an institution of higher education or an educational institution, benefits shall NOT be paid for any week: {ORC §4141.29(l)(1)(b)}
     
    1. DURING the period between two successive academic years or terms;
       
    2. IF the individual performs such services in the first such academic year or term AND there is a reasonable assurance that the individual will perform those services for any educational institution or institution of higher education in the second of such academic years or terms.
       
    3. The "period between two successive academic years or terms" would include the summer quarter of an academic year at an educational institution. University of Toledo v. Heiny (1987), 30 Ohio St.3d 143.
       
    4. Retroactive benefits
       
      1. Applies only to an individual serving in OTHER than an instructional, research, or principal administrative capacity for an institution of higher education or an educational institution, who is denied benefits.
         
      2. IF the individual is NOT offered an opportunity to perform those services for any educational institution or institution of higher education in the second of such academic years or terms;
         
      3. THEN the individual is entitled to a retroactive payment of compensation for each week for which the individual timely filed a claim.
         
      4. An application for retroactive benefits shall be timely filed IF received by the Director within or prior to the end of the fourth full calendar week after the end of the period for which benefits were denied.
         
       
     
  3. For an individual whose base period employment was serving for an institution of higher education or an educational institution, benefits shall NOT be paid for any week which commences during an established and customary vacation period or holiday recess: {ORC §4141.29(l)(1)(c)}
     
    1. IF the individual performs any services for an institution of higher education or an educational institution in the period immediately before the vacation period or holiday recess;
       
    2. AND there is a reasonable assurance that the individual will perform any such services in the period immediately following the vacation period or holiday recess.
       
     
  4. None of the above disqualifications will be imposed UNLESS the Director or Review Commission has received a written statement from the institution of higher education or educational institution that the individual has a contract or a reasonable assurance of reemployment for the ensuing academic year or term. {ORC §4141.29(l)(2)}
     
  5. Combined educational and noneducational employment. IF an individual has employment during the base period with both an institution of higher education or an educational institution and a noneducational employer, THEN the individual may be eligible for benefits during the between-term or recess disqualification period based on the employment performed for the noneducational employer. {ORC §4141.29(l)(3)}
     
    1. The noneducational employment must be sufficient to qualify the individual for benefit rights separately from the benefit rights based upon school employment.
       
    2. The weekly benefit amount and maximum benefits payable during the disqualification period shall be computed based solely on the nonschool employment.
       
     
  6. Reasonable assurance is no longer defined by the statute. It is Review Commission policy to give consideration to the economic terms and conditions of the available work. Generally, a full time employee placed on a substitute list does not have reasonable assurance.
     
  7. Definitions
     
    1. An institution of higher education is fully defined in Ohio Revised Code Section 4141.01(Y). The term includes all Ohio colleges and universities.
       
    2. An educational institution is fully defined in Ohio Revised Code Section 4141.01(CC). The term includes a school which has received governmental approval, charter, or permit to offer an organized course of study or training which is academic, technical, trade, or preparation for gainful employment in a recognized occupation.
       
      1. A county Mental Retardation and Developmental Disabilities Board IS an educational institution and has academic terms. County of Summit Board of MRDD v. McAlister, 1993 Ohio App. LEXIS 5070.
         
      2. Head Start Programs. Under Department of Labor policy:
         
        1. A Head Start program operated by a Community Action Group is NOT an educational institution.
           
        2. A Head Start program operated by a local Board of Education as an integral part of the school system, operated in the facilities of an educational institution and staffed by employees of the Board of Education, IS an educational institution.
           
         
       
     
  8. For an individual whose base period employment consisted substantially of participating in sports or athletic events, or training or preparing to so participate, benefits shall NOT be paid for any week: {ORC §4141.33(D)}
     
    1. DURING the period between two successive sports seasons, or similar periods;
       
    2. IF the individual performs such services in the first of the seasons, or similar periods, AND there is a reasonable assurance that the individual will perform services in the later of the seasons or similar periods. A reasonable assurance means a written, verbal, or implied agreement that the individual will perform services in the same or similar capacity during the ensuing sports season.