Able and Available AA 40
Attendance at School or Training
When a claimant restricts his or her availability for work due to school attendance, consider if the claimant meets the eligibility criteria in the following order:
- Californina Training Benefits (CTB); refer to criteria decribed in California Training Benefits Consideration, section A.
- CUIC 1253.8; refer to criteria described in Restricting To Part-Time Work Due To School Attendance - Section 1253.8, section E.
- CUIC 1253(c); refer to criteria decribed in Available For Full-Time Work While Attending School - Section 1253(C)-1(C)(4), Title 22, section D.
A. California Training Benefits Consideration
Since a claimant currently enrolled in school or training may meet the eligibility requirements for CTB, it is important that the interviewer recognize those individuals who require retraining as a result of California’s changing labor market conditions. Refer to the California Training Benefits section of the Miscellaneous BDG, MI 85, if it appears the claimant meets the basic CTB criteria outlined under Category 1 or Category 2 below:
Category 1: CTB participation may be approved if all other UI eligibility criteria are met and the training meets at least ONE of the following conditions:
- The training is authorized and verifiable by one of the following designated federal or state programs:
- The federal Workforce Investment Act (WIA)
- The state Employment Training Panel (ETP)
- The federal Trade Adjustment Assistance (TAA), established under the Trade Act of 1974
- The state California Work Opportunity and Responsibility to Kids (CalWORKS)
- The training program and provider are listed on California’s Eligibile Training Provider List (ETPL).
- The individual is an active journey level union member (JLUM) taking industry-related training approved by his/her union.
Category 2: CTB participation may be approved for claimants in self-arranged training if all the following conditions are met and the claimant is otherwise eligible for UI:
- The claimant has been unemployed for four or more continuous weeks,
The claimant is unemployed due to:
- Plant closure or relocation
- Substantial reduction in employment (i.e., mass layoff)
- Technological advancements or the effects of automation
- Physical or mental disability
- There is a lack of demand for the claimant’s current occupational skills.
- There is a reasonable labor market demand in California for the skill or occupation being trained. Training outside of California may be approvable if the claimant credibly intends to return to California to seek work after training.
- The training is with a bona fide training provider and can be completed within two years if federal extended benefits are not in effect in California or within four years if federal extended benefits are in effect in California.
- The training is full-time.
- The individual must reasonably be expected to complete training successfully, even if UI benefits are not sufficient to cover the entire period of training.
- The claimant has no prior CTB participation beginning within the last three years.
- When federal extended benefits are in effect in California, the training may be pre-requisite or remedial training or skills training that will lead to a certificate or credentials in a demand occupation.
If the claimant meets the above criteria, then before continuing with the AA determination, complete a CTB determination to determine if the claimant can be approved for CTB.
- If the claimant is approved for CTB, no further fact finding is necessary on the AA issue.
- If the claimant is not approved for CTB, then continue with the fact finding for the AA issue.
B. School Attendance - General
The California Unemployment Insurance Code has no provisions expressly rendering students, as such, unavailable for work. However, an inference of unavailability for work does arise when a claimant is attending school during hours customarily worked in business and industry. This inference may be overcome by evidence that the claimant is either:
- Willing to abandon or alter school schedule if offered work (refer to Voluntary School Attendance - Willingness to Abandon School section C below for further information),
- Willing and able to accept full-time employment and is available to a substantial field of employment (refer to Available For Full-Time Work While Attending School - Section 1253(C)-1(C)(4), Title 22 section D below for further information),
- Available for part-time employment AND meets the provisions of Section 1253.8 (refer to Restricting To Part-Time Work Due To School Attendance - Section 1253.8 section E below for further information).
C. Voluntary School Attendance - Willingness to Abandon School
If the claimant is seeking full-time work, his or her eligibility is determined under the provisions of Section 1253(c), not Section 1253.8.
The claimant may indicate that, although attending school, he or she is willing to abandon school or alter his or her school schedule if a suitable job opportunity arises. If the facts establish the claimant is available for full-time work, the school attendance is not a restriction and the claimant would be considered eligible under Section 1253(c).
Credibility of claimant willing to abandon or alter school schedule
When the claimant indicates a willingness to accept employment and alter school attendance or abandon school altogether, the credibility of the statement must be established in most cases. Factors to be considered are:
1. The Type of School or Training
Primary or Secondary Schools
A high school student over the age of 16 and under the age of 18 who indicates a willingness to abandon school in order to accept employment, may be eligible if the statement and status of the individual can be established as being credible under the conditions discussed in Mandatory School Attendance.
College and Professional Schools
Students involved in academic or professional courses normally attach some importance to the continuation and completion of their endeavors. This type of pursuit raises an inference of unavailability if attendance is required during the claimant’s customary working hours. The inference may be overcome by the consideration of such factors as the student’s occupational goals, the number of years of school completed, and the claimant’s past pattern of employment.
When reviewing the availability of a claimant who is attending a vocational school, apply the same factors which are considered for college students. Normally, attendance requirements at vocational schools can be changed more easily than in academic or professional schools. If a student is attending classes related to an occupational skill, more credibility may be attached to the contention that he or she will abandon school or alter attendance to accept employment. However, If the claimant has a specific job to go to upon completion of the course, the likelihood of the student ’s leaving prior to completion of the course is questionable.
Under the provisions of many union programs, the apprentices attending training cannot be dispatched to a job. In such cases, the eligibility of apprentice/claimants would be based on whether the program is sanctioned by the State Division of Apprenticeship Standards and are being conducted under the provisions of an agreement implemented by the Joint Apprenticeship Committee.
Title 22, Section 1267-2 provides:
“Apprentice” is defined in Title 22 as an individual at least 16 years of age who is in training under apprenticeship standards and a written apprenticeship agreement pursuant to Chapter 4 of Division 3 of the Labor Code.
If the apprentice abandons such training and breaks the conditions of the apprenticeship agreement, he or she would be unavailable for work if he or she restricts to apprenticeship work only. If the claimant remains willing and able to accept other work, eligibility would be determined in the usual manner.
Unions which have refresher-type training for their members enforce dispatch procedures and ensure that the members on the out-of-work lists will be notified of a job while in training. Upon such notification, the member is required to interrupt the training immediately to accept the referral.
Employer Sponsored Training
Frequently, a claimant will attend a training course conducted or sponsored by an employer which may lead to employment. Often this is a mandatory prerequisite to being considered for employment. Employer training courses normally fall into one of two categories:
- Industry-Oriented. This type of course teaches the basic skills for a particular occupation. The individual is informed that when the course is completed, he or she will be hired. Such courses range from engineering drafting to barber school. The principle characteristic of this type of course is that what the claimant learns during the course is basic to all employers in that field. This type of course would raise a question of the claimant’s availability for benefits while attending school.
- Employer-Oriented. This type of training is given to an individual having job skills which permit him or her to begin work immediately, and is designed to acquaint the claimant with the unique variables of a particular job. It is not to be confused with job training that teaches new skills. It provides the individual with information and direction in utilizing existing skills in a specific job. The training could include such facets as learning procedures, methods, or techniques unique to the employer, or familiarization with customers or routes. Such orientation is generally of little or no value in securing work with another employer, and is normally accomplished within a week or less. Short-duration orientation of this type would not normally render a claimant unavailable. However, if the claimant receives compensation while in training, or performs services for the employer which constitute employment, issues would be raised under Sections 1252 and 1279.
2. Financial Loss
If the claimant would stand to suffer a considerable financial loss in tuition, books, etc., if school were abandoned, the loss serves to discredit any statement that the claimant is willing to abandon school to accept employment. If the financial loss would be small, the claimant’s statement is more credible.
The same reasoning applies if withdrawal would terminate a continuing education allowance, such as the GI Bill. The Veterans Administration may not pay educational benefits for any part of a course which is not used for meeting graduation requirements; any withdrawal from school can result in the discontinuation of benefits. A retroactive overpayment may also be assessed for education benefits paid from the start of the school term.
3. Objective of Attending School
The completion of a significant number of school years or enrollment in a course which leads to a specific objective or profession tends to detract from the student’s contention that he or she would abandon school. In the event that the claimant indicates his or her classes could be adjusted to evening hours, the school should be contacted to verify the availability of night classes and the school’s policy and deadlines for transferring from day to night classes.
4. Efforts to Seek Work
The claimant’s efforts to seek work will often be the deciding factor in determining his or her credibility in relationship to the declared intention of abandoning school. For the claimant who is diligently searching for employment that requires working during the hours that he or she is attending school, the search for work effort would tend to substantiate the claimant’s attachment to the labor market and willingness to abandon school. However, if the claimant’s efforts are confined to employment which would not require working during school hours, or if the work search is inadequate, the claimant’s statement in regard to willingness to abandon school is reduced in credibility.
5. Amount of Study Time Required
A full-time student who carries 12 or more units requires a considerable amount of time for study outside of class hours. As the number of study hours is increased, the number of hours for either work or work search is decreased. The number of semester units the claimant is carrying should be considered in relation to the time that the student has available for seeking work, and as an indicator of whether the student’s primary interest is in school or work.
6. Extracurricular Activities
If the claimant is involved in extracurricular activities such as school sports, the activity may be the primary interest in school and there may be an indication that he or she would not readily abandon school or otherwise adjust school hours in order to accept employment.
D. Available For Full-Time Work While Attending School - Section 1253(C)-1(C)(4), Title 22
In 1975, the California Legislature established Unemployment Insurance Code Section 1253.8 to ensure that claimants would not be disqualified for UI benefits solely because they were students. Effective, January 1, 2002, Unemployment Insurance Code Section 1253.8 was repealed and replaced with a new Section 1253.8. The new Section 1253.8 has provisions for claimants who are restricting their availability to part-time work, however, it does not have provisions for students who are available for full-time work but have placed restriction(s) on their availability for work due to school attendance.
In Perales v. HRD, a 1973 California Appellate Court case, the claimant quit work to attend school. In holding voluntary school attendance fell short of establishing a compelling reason for leaving work, the court stated:
While this case dealt with a voluntary quit issue, the court’s opinion regarding school attendance and unemployment insurance was quite clear; the unemployment insurance system cannot be used to subsidize an employee’s education and, no matter how commendable the action may be, school attendance is not sufficiently compelling to establish good cause.
Since voluntary school attendance is not considered sufficiently compelling to establish good cause, the claimant would be ineligible under Section 1253(c) if restrictions on the individual’s availability for work due to such school attendance materially reduce his or her labor market.
But as pointed out by the Perales court, explicit legislative authority may overcome a lack of good cause if certain pre-established conditions are met.
In order to keep with the previous legislative intent of not disqualifying claimants solely on the basis of attending school, Section 1253(c)-1(c)(4) was added to Title 22, which provides:
The amendment of Section 1253(c)-1(c)(4) continues the principle outlined in the prior Unemployment Insurance Code Section 1253.8 of not disqualifying claimants solely on the basis that he or she was a student.
Therefore, when adjudicating the claimant’s eligibility for benefits while attending school, an unemployed individual may be considered to be able and available for work pursuant to subdivision (c) of Section 1253, if the student is able and available for full-time work, and the school attendance does not eliminate a substantial portion of the individual’s full-time labor market.
E. Restricting To Part-Time Work Due To School Attendance - Section 1253.8
Effective January 1, 2002 (the week beginning December 30, 2001), Section 1253.8 was repealed from the Unemployment Insurance Code and a new Section 1253.8 was added which provides:
1. For Weeks Beginning On Or After December 30, 2001
When adjudicating an availability issue for weeks beginning on or after December 30, 2001 where the claimant is restricting to part-time work due to school attendance, before adjudicating the able and available issue, determine if the claimant meets the criteria under the new Section 1253.8 criteria. Refer to AA 5 for a complete discussion of availability criteria under section 1253.8.
- If the claimant meets the criteria to restrict to part-time work under the new Unemployment Insurance Code Section 1253.8, no further investigation is necessary. The claimant would be approved for part-time work.
- If the claimant does not meet the criteria to restrict to part-time work under the new Unemployment Insurance Code Section 1253.8, then the claimant’s eligibility must be adjudicated under Unemployment Insurance Code Section 1253 (c).
2. For Weeks Prior To December 30, 2001
Prior to January 1, 2002 (weeks beginning December 23, 2001 or earlier), Section 1253.8(b) of the Unemployment Insurance Code provided:
If a student restricts his or her availability to part-time work due to school attendance, he or she may be considered to be able to work and available for work pursuant to subdivision (c) of Section 1253 if it is determined that:
(1) The claimant has a history of at least two years of having been self-supporting from part-time work while attending school.
(2) The claim is based on such part-time employment.
(3) The claimant is actively seeking and is willing to accept work under essentially the same conditions as existed while the wage credits were accrued.
(4) The claimant imposes no other restrictions and is in a labor market where a reasonable demand exists for the part-time services he or she offers.
Accordingly, Section 1253.8 provides that a claimant restricting to part-time work due to school attendance; who has been self-supporting from part-time work while attending school for at least two years, and his or her claim is based on that part-time work and, the claimant is seeking and willing to accept essentially the same such work and, places no other restrictions on his or her availability, is considered available for work.
The following guidelines will assist in interpreting Section 1253.8. These guidelines are to be used when adjudicating an availability issue relating to school attendance for weeks prior to December 30, 2001:
- The “two-year” period need not be continuous, it can be an accumulation of time with recess or vacation breaks in between. The interviewer should look at the claimant’s past pattern of self-support from part-time work while attending school to determine whether the over-all pattern indicates a true attachment to the labor market in conjunction with school attendance.
While not actually attending school during within term holiday breaks, if the claimant was employed in part-time work these periods may be considered as comprising part of the “two-year” period during which the claimant was “attending school.” However, summer recess periods cannot be used as part of the “two-year” period during which the claimant was “attending school,” even though he or she worked part-time.
- Self-supporting means that the claimant’s income was used for basic necessities such as room and board, transportation, clothing, etc. Where the claimant provides at least 90 percent of his or her own support, the claimant shall be considered self-supporting.
Additional Income: Student loans, scholarships, etc., which do not comprise a significant portion of the income would not negate the conclusion the claimant is self-supporting.
Students Living With Parents: There is a strong inference that a student living at home with parents is not self-supporting unless the claimant can show he or she contributed to his or her own support.
Financial Assistance From Parents: Regular or fairly regular financial assistance from parents would tend to detract from the conclusion that the claimant is self-supporting unless the amount is insignificant.
Married Students: Where the claimant’s spouse was working full-time, there is an inference the claimant may not have been self-supporting.
Amount of Income: The amount of the claimant’s wages and other sources of income should be considered in determining whether or not the claimant’s statement regarding self-support can be considered credible.
- Part-time work. The claimant’s history of two years of self-support must have come primarily from part-time, not full-time work; however, the attendance at school could have been as a full-time or part-time student.
- Verification. The claimant’s statement as to the period of his or her part-time work, attendance at school, and self-support should normally be accepted unless other information indicates further verification is necessary.
It should be noted that any additional restriction the student may place on availability must be reviewed when determining his or her eligibility.
F. Mandatory School Attendance
In California, all minors under the age of 18, who have not graduated from high school or who have not passed the California High School Proficiency Test are required to attend school.
Mandatory school attendance is considered a compelling restriction. Therefore, the provisions of Title 22, Section 1253(c)-1 (d), (AKA, the Sanchez criteria) are applicable: the department has the burden of proving whether a substantial field of employment remains open to the claimant.
Where a claimant is required by law to attend school and the school attendance results in the claimant being available only for part-time work, he or she must meet the eligibility requirements of Section 1253.8 to be considered available for work.
1. Work Permits
Any minor under the age of 18 who has not graduated from high school or has not passed the California High School Proficiency Test is required to obtain a work permit from their education authority. Work permits cannot be issued until the parent/guardian of the student has filed a written request for the permit with the issuing authority.
In practice, school districts routinely issue work permits at the beginning of the summer to students applying for summer work. These permits expire automatically the fifth day after the commencement of the next school year. Employer certification is not required for these permits; they are issued at the beginning of the summer in order to preclude the necessity to keep staff at the school for this purpose during the balance of the summer.
Employment during the school year requires employer certification of the job, prior to obtaining the work permit. Therefore, any requirement that a student obtain a work permit prior to securing a job is unreasonable except during the summer recess period.
Special consent is required for minors under 18 years of age who work in the entertainment industry. The consent is obtained from the State Labor Commissioner. Local school authorities do not have the authority to issue this type of permit.
2. Attendance Requirements
Ages 16 and 17
Students age 16 and 17 are not required to attend school on a full-time basis, but the minimum school day in a junior high or high school is normally four hours. The Education Code limits the maximum number of nonschool hours which may be worked by individuals in this age bracket to four hours during any day on which the student is required to attend school.
There are certain exceptions to the general four hour attendance rule, the most common of which is when the student is not regularly employed and not a high school graduate or does not have a certificate of proficiency; he or she must attend continuation school or other designated alternative 15 hours per week. When the student is regularly employed, he or she must attend continuation school or other designated alternative at least four hours per week.
Ages 14 and 15
Students in this age bracket are required to attend school by law, and are therefore compelled to limit their availability to working during nonschool hours. A student over the age of 14 may, however, be issued a work permit allowing the student to work no more than 4 hours outside school hours if he or she has completed the equivalent of the seventh grade of a public school course.
Ages 12 and 13
Individuals in this age bracket are prohibited from being employed during any day on which school is in session.
Special Provisions for the Entertainment Industry
The amount of time minors are permitted at the place of employment within a 24-hour period is limited according to age. Time spent traveling may be considered work time.
Babies to 6 months are limited to 2 hours at the place of work, with work time not exceeding 20 minutes.
Minors 6 months to 2 years are limited to 4 hours at the place of work, with work time not exceeding 2 hours.
Minors 2 years to 6 years are limited to 6 hours at the place of work, with work time not exceeding 3 hours.
Minors 6 years to 9 years are limited to 8 hours at the place of employment, with work time not exceeding 4 hours, and at least 3 hours of schooling when school is in session. When school is not in session, work time may be increased to 6 hours.
Minors 9 years to 16 years are limited to 9 hours at the place of work, with work time not exceeding 5 hours, and at least 3 hours of schooling when school is in session. When school is not in session, work time may be increased to 7 hours.
Minors 16 years to 18 years are limited to 10 hours at the place of work, with work time not exceeding 6 hours, and at least 3 hours of schooling when school is in session. When school is not in session, work time may be increased to 8 hours.
G. Recess/Vacation Periods/Summer Breaks
A claimant who is available only for temporary work during school recess, vacation periods, or summer breaks may be eligible provided that a substantial field of employment exists for the type of services offered, and no additional unreasonable restrictions are imposed which would further reduce his or her availability for suitable work.
However, students will frequently seek only employment related to their courses of study, and preclude other work for which they may reasonably be fitted. Under these conditions, and unless the student can show good cause for the restriction, the claimant will almost always be ineligible for benefits.
H. Foreign Students
Under certain conditions, aliens are permitted to enter this country legally for the purpose of attending school. The terms of the student visa prohibit the student from working during the first year after entry.
After one year of residence in the United States, the student may request authorization to work in the United States from the Immigration and Naturalization Service. If permission is granted, the student’s visa will be stamped to indicate this authorization. The student’s employment cannot exceed 20 hours per week during the school year. If the student does not meet the criteria to restrict to part-time under Section 1253.8, the student would be disqualified under 1253 (c) because the student’s labor market would have been materially reduced.
NOTE: Since the foreign student’s right to remain in this country is contingent upon his/her continued school attendance, a statement of willingness to drop school is virtually meaningless since the student is subject to deportation for violation of Immigration restrictions if the student drops school; by the same token, little credence can be attached to a statement that a student is willing to ignore the 20-hour rule.