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Chapter Two

Filing an Application for Determination of Benefit Rights

A.  Filing in Ohio. Under Ohio Administrative Code Section 4141-27-01(A), an individual may file an Application for Determination of Benefit Rights in Ohio if one or more of the following factors apply:

  1. The individual resides in Ohio at the time of the application;
     
  2. The individual had Ohio employment as defined in Ohio Revised Code Section 4141.01; or
     
  3. The individual is physically present in Ohio at the time of the application.
     
 

B.  Statutory Requirement {ORC §4141.01(R)}

  1. The individual must be unemployed, either partially or totally, at the time of filing:
     
    1. An individual is totally unemployed in any week during which the individual performs no services and, with respect to such week, no remuneration is payable to the individual. {ORC §4141.01(M)}
       
    2. An individual is partially unemployed in any week if, due to involuntary loss of work, the total remuneration payable to the individual for such week is less than the individual's weekly benefit amount. {ORC § 4141.01(N)}
       
    3. The employer-employee relationship can be permanently severed, such as a quit or a discharge, or the separation can be the result of a layoff that is indefinite or for a definite period of seven or more days.

  2. The individual must have worked in covered employment in at least twenty (20) qualifying weeks within the base period.
     
  3. In such weeks, the individual must have earned, or been paid, remuneration at an average weekly wage of not less than:
     
    1. 2006: $193.00 per week
       
    2. 2005: $186.00 per week
       
    3. 2004: $181.00 per week

  4. For an individual who is filing an application after the termination of a previous benefit year, the individual must ALSO have worked in six weeks of covered employment, and earned three times the average weekly wage for the previous benefit year, since the beginning of the individual's previous benefit year.
     
    1. Ohio Administrative Code 4141-27-01(G) states that this requirement cannot be met by using compensation paid to an individual which is not for services performed, including but not limited to back pay. Severance pay, like back pay, may not be used to satisfy this requirement.
       
    2. Money paid in a settlement agreement also may not be used to satisfy this requirement. See Ray v. Board (May 16, 1994), Ross CP No. 91 CI 244, unreported (holding that a $20,000 payment as part of a release and settlement of a discharge grievance could not be used to satisfy the requirement that an individual work in six weeks of covered employment since the beginning of the individual's previous benefit year).

  5. For applications filed on or after August 1, 2004, there is an additional requirement: the reason for the individual's separation from employment cannot be disqualifying under Ohio Revised Code Sections 4141.29(D)(2) or 4141.291. {ORC 4141.01(R)(2)}
     
    1. This requirement--which is referred to as the August 1, 2004 amendment--only applies to initial applications, not to reopening an existing application.
       
    2. As the August 1, 2004 amendment is limited to disqualifying separations under Ohio Revised Code Sections 4141.29(D)(2) or 4141. 291, a claimant would have an allowed application even if the claimant is held to be disqualified for benefits based upon a labor dispute, disciplinary layoff, or leave or absence.
       
    3. Although the requirement sounds straightforward, applying the August 1, 2004 amendment has resulted in numerous changes in the procedure at the Review Commission. These new procedures are discussed in the following section.
     
 

C.  The August 1, 2004 Amendment

  1. Initial application procedure
     
    1. When an application is filed, the Director will first examine whether the individual meets the monetary requirements for a valid application.
       
      1. If the individual does not meet the monetary requirements for a valid application, the Director will issue a determination disallowing the application solely on monetary grounds.
         
      2. When an application is disallowed on monetary grounds, the Director should not rule upon the claimant's separation either in this determination or a separate one.
         
      3. If the Director has disallowed the application on monetary grounds, and then erroneously issues a determination ruling on a separation, the Commission will issue a decision finding that the Director lacked jurisdiction to rule on the separation because there was no valid application.
         
       
    2. If the Director determines that the individual meets the monetary requirements for a valid application, the Director will examine the individual's most recent separation from employment.
       
      1. If the claimant did not work in six weeks of covered employment with the most recent separating employer, and earn the required requalifying amount, the Director will also examine prior separations until these requirements are met. For simplicity, the remainder of this section will refer to a single employer or separation even though some cases will involve multiple employers and separations.
         
      2. If the reason for the individual separation is disqualifying under Ohio Revised Code Sections 4141.29(D)(2) or 4141.291, the Director will issue a determination disallowing the application solely on the grounds of claimant's most recent separation.
         
      3. When an application is disallowed on the grounds of claimant's most recent separation, the Director will not set forth claimant's monetary entitlements.
         
       
    3. If the Director determines that the individual meets the monetary requirements, and has a non-disqualifying separation, the Director will issue a determination allowing the application.
       
      1. The determination will set forth claimant's monetary entitlements, and rule upon claimant's most recent separation.
         
      2. Although not required by statute, the Director also rules upon relevant weekly benefit issues, such as income or eligibility. The starting date, and the ending date (if known), will be stated in the determination.
         
       
     
  2. Application disallowed on monetary grounds
     
    1. Upon a timely appeal from the claimant, the Commission will schedule a hearing to examine whether the claimant meets the monetary requirements for a valid application.
       
      1. Claimant and all base period employers will be the interested parties and given notice of the hearing.
         
      2. Separation will not be an issue, so the separating employer would only receive notice of the hearing if that employer was in the claimant's base period.
         
       
    2. If the Hearing Officer determines that the claimant does not meet the monetary requirements for a valid application, a decision will be issued affirming or modifying the Director's determination.
       
    3. If the Hearing Officer determines that the claimant meets the monetary requirements for a valid application, a decision will be issued reversing the Director's determination. However, the decision will remand the matter back to the Director to rule upon claimant's most recent separation.
       
     
  3. Application disallowed on the grounds of claimant's most recent separation
     
    1. Upon a timely appeal from the claimant, the Commission will schedule a hearing to examine whether the claimant's separation is disqualifying under Ohio Revised Code Sections 4141.29(D)(2) or 4141.291.
       
      1. Claimant and the separating employer will be the interested parties and given notice of the hearing.
         
      2. As the determination will not set forth any monetary entitlements, there can be no proper appeal from a base period employer (unless that employer is also the most recent separating employer).
         
       
    2. If the Hearing Officer determines that the claimant's separation is disqualifying under Ohio Revised Code Sections 4141.29(D)(2) or 4141.291, a decision will be issued affirming or modifying the Director's determination. The decision will also state the requalifying amount the claimant needs to earn in covered employment to qualify for a new application.
       
    3. If the Hearing Officer determines that the claimant's separation is not disqualifying under Ohio Revised Code Sections 4141.29(D)(2) or 4141.291, a decision will be issued reversing the Director's determination. However, the decision will remand the matter back to the Director to determine claimant's monetary entitlements and charges to base period employers.
       
     
  4. Application allowed
     
    1. Appeal filed by the separating employer that is also in the base period:
       
      1. Unless the appeal specifically states otherwise, the Commission will assume that a separating employer is appealing the separation issue, and will set up a hearing solely on the separation issue.
         
        1. Claimant and all separating employers will be the only interested parties.
           
        2. If the Director also ruled upon any weekly issues, such as income or eligibility, those issues will also be addressed.
           
        3. If the employer states at the hearing that it also intended to appeal a monetary issue, the hearing will be reassigned so that all base period employers can be given notice.
           
         
      2. If the employer specifically states that it is only appealing a monetary issue, the Commission will set up a hearing solely on whether claimant met the monetary requirements for a valid application. Claimant, the employer, and all other base period employers will be interested parties.
         
      3. If the employer specifically states that it is appealing both the separation and monetary issues, the Commission will set up a hearing on both issues. Claimant, the employer, and all base period employers will be interested parties.
         
       
    2. Appeal filed by the separating employer that is NOT in the base period:
       
      1. The Commission will set up a hearing solely on the separation issue.
         
      2. Claimant and all separating employers will be the only interested parties.
         
      3. If the Director also ruled upon any weekly issues, such as income or eligibility, those issues will also be addressed.
         
       
    3. Appeal filed by a base period employer that is NOT the separating employer:
       
      1. If the employer is seeking mutualization of its charges based upon the reason for the claimant's separation, the Commission will set up a hearing solely on the mutualization issue. The appealing employer will be the only interested party.
         
      2. If the employer is appealing whether claimant met the monetary requirements for a valid application, or asserting that claimant was separated due to dishonesty, the Commission will set up a hearing solely on whether claimant met the monetary requirements for a valid application. Claimant and all base period employers will be interested parties.
         
       
    4. Appeal filed by the claimant:
       
      1. If the claimant is appealing some aspect of the monetary requirements for a valid application, the Commission will set up a hearing solely on whether claimant met the monetary requirements for a valid application. Claimant and all base period employers will be interested parties.
         
      2. If the claimant is appealing a weekly benefits issue, such as income or eligibility, the Commission will set up a hearing solely on the weekly benefits issue. Claimant will be the only interested party.
         
       
    5. Resolution at Commission level:
       
      1. Validity of application:
         
        1. If the Commission finds that claimant meets the monetary requirements for a valid application, the Commission will affirm or modify the Director's determination, and state that the application remains allowed.
           
        2. If the Commission finds that claimant does not meet the monetary requirements for a valid application, the Commission will reverse the Director's determination, disallow the application, and reduce charges to base period contributory employers to zero.
           
         
      2. Separation:
         
        1. If the Commission finds the separation to be qualifying, the Commission will affirm or modify the Director's determination, and state that the application remains allowed.
           
        2. If the Commission finds the separation to be disqualifying the Commission will reverse the Director's determination, disallow the application, state claimant's requalification requirements, and transfer charges for base period contributory employers to the mutualized account.
           
         
       
    6. Under the August 1, 2004 amendment, the Director should rule on claimant's most recent separation when allowing the application.
       
      1. If the Director fails to rule on the claimant's most recent separation, the Commission will remand an appeal back to the Director for a ruling on the separation.
         
      2. If the Director instead rules on this separation in a separate decision:
         
        1. A party wanting to appeal the decision on the separation must file a timely appeal to that decision, not the decision on the application.
           
        2. If such an appeal is filed with the Commission, the Commission will rule on the separation, and add language allowing or disallowing the application.
           
         
       
     
  5. Multiple applications. When a claimant's application is disallowed, the claimant is entitled to file an appeal of that determination. While that appeal is pending, the claimant could file a second application after working in sufficient covered employment to lift the suspension imposed in the denial of the initial application.
     
    1. If claimant never prevails on the appeal of the initial application, then claimant simply collects benefits under the second application.
       
    2. If claimant prevails on the appeal and the initial application is allowed, the second application must be disallowed because a claimant cannot have overlapping benefit years.
       
      1. In order to properly calculate the monetary benefit rights on the initial application, ODJFS's computer requires that the Director first issue a determination disallowing the second application.
         
      2. If a claimant appeals the disallowal of a second application under these circumstances, the Commission will hold a hearing with the claimant as the sole interested party, and issue a decision finding that the second application was properly disallowed because the claimant cannot have overlapping benefit years.
         
       
     

D.  Definitions

  1. Remuneration {ORC §4141.01(H)}
     
    1. Includes all compensation for personal services, including:
       
      1. Commissions and bonuses.
         
      2. Gratuities customarily received by an individual in the course of employment, from persons other than the employer, is remuneration IF accounted for by individual to the individual's employer.
         
      3. Holiday pay. {OAC 4141-9-05}
         
      4. Retroactive or back pay awards. Ohio Administrative Code 4141-9-14 states that such awards may result in the adjustment of base period earnings, and may be allocated to specific weeks by either the parties or the Director.
         
      5. Sick pay and Disability payments received by an individual are remuneration:
         
        1. UNLESS such payments are made under workers' compensation. See Shepherd v. Wearever-Proctor Silex, Inc. (1991), 75 Ohio App.3d 414.
           
        2. Such payments are only remuneration during the first six months following the month in which the individual last worked for the employer making the payments. Any such payment after the expiration of six months is not remuneration. See 26 U.S.C. §3306(b)(4).
           
         
      6. Reimbursement for any travel expenses which exceed costs actually incurred by the individual. {OAC 4141-9-12(A)}
         
      7. Cash value of all compensation in any medium other than cash, including: {OAC 4141-9-04(B)}
         
        1. Goods.
           
        2. Clothing.
           
        3. The fair market value of automobiles and other vehicles provided by an employer when used for personal use by an individual. {OAC 4141-9-12(B)}
           
        4. Meals are remuneration UNLESS:
           
          1. the meals are furnished on business premises of employer, AND
             
          2. the meals are furnished for convenience of employer.
             
           
        5. Lodging is remuneration UNLESS:
           
          1. the lodging is furnished on business premises of employer, AND
             
          2. the lodging is furnished for convenience of employer, AND
             
          3. the employee is required to accept such lodging as a condition of employment.
             
           
        6. In the case of agricultural or domestic service, remuneration includes only cash.
           
         
       
    2. Remuneration does not include:
       
      1. Cash value of parking facilities at the place of employment, furnished by the employer. {OAC 4141-9-04(C)}
         
      2. Cash value of entertainment, medical services, and courtesy discounts provided by an employer to its employees are not remuneration IF: {OAC 4141-9-04(C)}
         
        1. they are of relatively small value, AND
           
        2. they are furnished by the employer as a means of promoting the health, goodwill, contentment or efficiency of its employees.
           
         
      3. Remuneration in lieu of notice (a continuation of wages for a designated period after termination of employment), separation or termination pay, and vacation pay are only remuneration for purposes of establishing a qualifying week and a benefit year. {ORC §4141.31(A)(5) and OAC 4141-9-08}
       

  2. Qualifying week {ORC 4141.01(O)(1)}
     
    1. A qualifying week is any calendar week in an individual's base period in which a claimant earns, or is paid, remuneration in covered employment.
       
    2. If an individual earns remuneration in a week, but the payment is not made within the base period, the week will be considered a qualifying week ONLY IF the week is necessary for the individual to qualify for benefit rights.
       
    3. The number of qualifying weeks in a quarter may not exceed the number of calendar weeks in the quarter.

  3. Average weekly wage is the individual's total remuneration for all qualifying weeks in the base period divided by the number of qualifying weeks. If the result is not a multiple of one dollar, the result shall be rounded to the next lower multiple of one dollar. {ORC §4141.01(O)(2)}
     
  4. Weekly benefit amount is the amount of benefits an individual is entitled to receive for one week of total unemployment. {ORC §4141.01(P)} An individual's weekly benefit amount is 50% of the individual's average weekly wage EXCEPT that the weekly benefit amount shall not exceed the maximum amount for the individual's dependency class. {ORC §4141.30(B)} Therefore:
     
    1. For applications filed on or after January 1, 2006, the maximum weekly benefit amount
       
      1. is $343.00 for an individual with a Dependency Class of A.
         
      2. is $416.00 for an individual with a Dependency Class of B.
         
      3. is $462.00 for an individual with a Dependency Class of C.
         
       
    2. For applications filed on or after December 26, 2004, the maximum weekly benefit amount
       
      1. is $331.00 for an individual with a Dependency Class of A.
         
      2. is $401.00 for an individual with a Dependency Class of B.
         
      3. is $446.00 for an individual with a Dependency Class of C.
         
       
    3. For applications filed on or after December 28, 2003, the maximum weekly benefit amount
       
      1. is $323.00 for an individual with a Dependency Class of A.
         
      2. is $392.00 for an individual with a Dependency Class of B.
         
      3. is $436.00 for an individual with a Dependency Class of C.
       

  5. Total benefits payable to an individual in a benefit year shall not exceed the lesser of: {ORC §4141.30(D)}
     
    1. An amount equal to twenty-six (26) times the individual's weekly benefit amount; OR
       
    2. An amount equal to twenty (20) times the individual's weekly benefit amount PLUS one (1) times the individual's weekly benefit amount for each additional qualifying week beyond the first twenty (20).
       
     
  6. Base period {ORC §4141.01(Q)}
     
    1. The regular base period is the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year.
       
    2. The alternate base period is the four most recently completed calendar quarters preceding the first day of an individual's benefit year.
       
      1. The alternate base period is ONLY used if the individual does not have sufficient qualifying weeks and wages in the regular base period to qualify for benefit rights.
         
      2. If the information on weeks and wages for the most recent quarter of the alternate base period is not available from the employer's regular quarterly reports of wage information:
         
        1. The Director may base the determination of eligibility on a claimant's affidavit regarding the weeks and wages;
           
        2. The determination shall be amended if the employer's quarterly report of wage information is timely received AND causes a change in the determination.
           
         
       
    3. No calendar quarter in a regular or alternate base period can be used to establish a subsequent benefit year.
       
    4. For purposes of determining the weeks that comprise a completed calendar quarter, only those weeks ending at midnight Saturday within the calendar quarter shall be utilized. {ORC §4141.01(Q)(4)}

  7. Benefit year is the fifty-two (52) week period beginning with the first day of the week that claimant files a valid application. {ORC §4141.01(R)}
 

E.  Dependency Class {ORC §4141.30(E)}

  1. Classification and description
     
    1. Class A: No dependents, OR:
       
      1. The individual has insufficient wages to qualify for more than the Class A's maximum weekly benefit amount; OR
         
      2. If both a husband and wife qualify for benefit rights with overlapping benefit years, only one of them may qualify for a dependency class other than Class A. {ORC §4141.30(E)(3)}
         
       
    2. Class B: One or two dependents.
       
    3. Class C: Three or more dependents.

  2. Dependents include the individual's:
     
    1. legally married wife or husband. At the beginning date of the benefit year, the wife or husband MUST: {ORC §4141.30(E)(2)}
       
      1. Have an average weekly income not in excess of twenty-five percent (25%) of the claimant's average weekly wage; AND
         
      2. Be living with the individual. The Review Commission has ruled that a husband and wife are living together unless separated judicially or by agreement. In re Bennett , B89-01032.
         
       
    2. natural child, stepchild, or adopted child. At the beginning date of the benefit year, the child MUST be EITHER: {ORC §4141.30(E)(1)}
       
      1. under eighteen (18) years of age, OR
         
      2. unable to work because of permanent physical or mental disability.
       

  3. The individual must supply more than one-half of the cost of the child's or spouse's support:
     
    1. for at least ninety (90) consecutive days immediately preceding the current benefit year; OR
       
    2. for the duration of the marital or parental relationship if that relationship existed for less than ninety (90) days.
       
    3. An individual need not document actual cost of support if it can be shown that the individual is current in court-ordered child support payments.
       
    4. A signed statement by a claimant's ex-wife provided credible evidence of the cost of support for their child. Haynes v. Administrator1987 Ohio App. LEXIS 5597.
     
 

F.  Seasonal Employment {ORC §4141.33}

  1. Seasonal employment means employment of individuals hired primarily to perform services in an industry which: {ORC §4141.33(A)}
     
    1. because of climatic conditions OR seasonal nature;
       
    2. it is customary to operate only during regularly recurring periods of forty (40) weeks or less in any consecutive fifty-two (52) weeks.

  2. Seasonal employer means an employer whose operations and business, with the exception of certain administrative and maintenance operations, are substantially all in a seasonal industry. {ORC §4141.33(A)}
     
    1. While "substantially all" is not defined in the statute, more than half of the employer's employees must be seasonal.
       
      1. See Cleveland Metroparks Systems v. OBES(1994), 94 Ohio App.3d 750 (holding that an employer's operations were not substantially all in a seasonal industry where only 509 out of 1012 employees were seasonal).
         
      2. See Columbus v. Board of Review (1993), 91 Ohio App.3d 548 (holding that an employer's operations were not substantially all in a seasonal industry where only sixty (60) percent of the employees were seasonal).
         
       
    2. For purposes of determining seasonal employment, a municipal corporation, not the corporation's Recreation and Parks Department, is the employer. A municipal corporation, which operates fifty-two (52) weeks a year, is not a seasonal employer. See Columbus v. Board of Review (1993), 91 Ohio App.3d 548.

  3. No industry or employer shall be deemed seasonal until the Director has determined: {ORC §4141.33(A)}
     
    1. whether the industry is seasonal; AND
       
    2. the seasonal period for the employer.
       
    3. An employer who claims to have seasonal employment in a seasonal industry may file, with the Director, a written application for classification of such employment as seasonal. {ORC §4141.33(A)}

  4. The Director shall determine:
     
    1. the seasonal period for the employer; {ORC §4141.33(A)}
       
    2. the proportionate number of weeks of employment and earnings required to qualify for seasonal, as opposed to regular, benefits; {ORC §4141.33(B)}
       
    3. the proportionate number of weeks for which seasonal benefits may be paid. {ORC §4141.33(B)}

  5. Benefits shall be payable to a claimant ONLY during the longest seasonal periods which the best practice of such industry will reasonably permit. {ORC §4141.33(A)}
     
  6. An individual whose base period employment consists of only seasonal employment for a single seasonal employer, and who meets the Director's proportionate employment and earnings requirements: {ORC §4141.33(B)}
     
    1. will have benefit rights determined in accordance with the seasonal employment provisions;
       
    2. the weekly benefit amount is determined in the same manner as for a regular claim.

  7. The individual whose base period employment consists of either seasonal employment with two or more seasonal employers OR both seasonal and non-seasonal employment: {ORC §4141.33(C)}
     
    1. will have benefit rights determined in accordance with the regular provisions.
       
    2. the total seasonal and non-seasonal benefits during a benefit year cannot exceed twenty-six (26) times the weekly benefit amount.
     
 

G.  Aliens

  1. An alien shall not be paid benefits UNLESS the alien: {ORC §4141.29(J)}
     
    1. Had been lawfully admitted to the United States for permanent residence at the time the services were performed; OR
       
    2. Was lawfully present for purposes of performing the services; OR
       
    3. Was otherwise permanently residing in the United States under color of law at the time the services were performed.

  2. A determination that benefits are not payable because of an individual's alien status requires a preponderance of evidence that the individual had not been lawfully admitted to the United States. {ORC §4141.29(J)(2)}
     
    1. One court has found that Ohio Revised Code Section 4141.29(J)(2)'s prohibition, that benefits are not payable ONLY where the individual had not been lawfully admitted to the United States, is inconsistent with Ohio Revised Code Section 4141.29(J)'s prohibitions specifying that the admission must have been for permanent residence. Vespremi v. Giles(1980), 68 Ohio App. 2d 91 (holding in favor of the applicant under Ohio Revised Code Section 4141.46, which states that Chapter 4141 shall be construed liberally).
       
    2. The Immigration Reform and Control Act allows aliens to receive work authorization even when lawfully admitted for temporary residence.

  3. All applicants for benefits shall be uniformly required to submit any data or information required to determine whether benefits are not payable because of alien status. {ORC §4141.29(J)(1)}