Able and Available AA 5
This section sets forth general principles applicable to availability determinations. Availability issues arising from observance of a religious holiday are covered in AA 90. Federally mandated policies are in place regarding the availability requirements for alien claimants, see BDG MI 50 for further information.
A primary condition upon which the payment of benefits is based is contained in Section 1253(c) of the California Unemployment Insurance Code (UI Code):
"An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the Director finds that . . . (c) He or she was able to work and available for work for that week." (Emphasis added.)
The UI Code does not specifically define "availability." However, Title 22, Court decisions, and Appeals Board decisions, have helped to define the conditions and requirements of availability and have clarified the Department’s responsibility in resolving the availability issue.
NOTE: Effective 12/30/01, if a claimant is restricting to part-time work, before adjudicating the AA issue, first determine if the claimant meets the provisions of Section 1253.8 of the Code. Refer to Restricting to Part-time Work section below for the criteria of 1253.8. If the claimant does not meet all of the criteria under 1253.8, then the claimant’s eligibility would be adjudicated under 1253(c), refer to the appropriate section of the AA BDGs for discussion on individual reasons for restrictions.
A. Unavailable Four Hours or Less
There is generally no availability issue when the claimant is unavailable for one-half workday or less during a workweek. Normally, such limited unavailability during a workweek does not substantially reduce the claimant’s field of employment. However, any other eligibility issue that occurs during this period of time will require resolution. Refer to the appropriate BDG volume that covers the basis for the eligibility issue.
B. Statutory Provisions
Certain AA issues have special provisions that are addressed in separate code sections. When these sections apply to the issue under consideration, they supersede Section 1253(c). Eligibility determinations involving these issues should be resolved using the special instructions in the applicable section of the AA BDG.
These code sections and their subjects are:
1253.1 Unlawful detention/incarceration (see AA 360)
1253.12 Death in the immediate family (see AA 360)
1253.5 Unable to work part of the week (see AA 235)
1253.6 Jury duty or subpoenaed witness (see AA 370)
1253.8 Limits to part-time work (AA 5)
1267 Approved training or retraining (see AA 40)
C. Restricting To Part-Time Work
Effective January 1, 2002, UI Code Section 1253.8 allows claimants to be available for only part-time work (regardless of the reason why he/she is restricting to part-time) as long as he/she meets the following criteria
(a) The claim is based on the part-time employment.
(b) The claimant is actively seeking and is willing to accept work under essentially the same conditions as existed while the wage credits were accrued.
(c) The claimant imposes no other restrictions and is in a labor market in which a reasonable demand exists for the part-time services he or she offers.
If a claimant is restricting only to part-time work and does not meet all of the provisions under Section 1253.8, his/her eligibility for benefits must be determined under Section 1253(c), refer to the appropriate AA BDG for discussion on individual reasons for restrictions.
NOTE: If the part-time able and available issue involves weeks prior to December 30, 2001, the provisions of this Section 1253.8 would not apply. In these cases the claimant would have to meet the requirements of availability under Section 1253 (c) (unless the claimant is restricting to part-time work due to school attendance, if so, refer to AA 40 for further information). The following guidelines will assist in interpreting Section 1253.8:
1. Part-time Work
Part-time work is defined as: working less than 40 hours per week.
NOTE: If the claimant worked for multiple employers in the same week(s), the total hours worked for all employers must be less than 40 hours per week in order to be defined as part-time work.
2. Based on
1253.8(a) states: "The claim is based on part-time employment".
Based on is defined as: more than 50 percent of the total weeks worked, during the base period of the claim, was worked in part-time employment.
This allows for individuals having some full time employment in the base period to qualify under this section.
A claimant whose occupation is a sales clerk and works 20 to 25 hours per week but works full time during the holiday season may still qualify under Section 1253.8, as long as the full-time work is 50 percent or less of the total time worked during the base period of the claim.
3. Essentially The Same Conditions
1253.8(b) states: "The claimant is actively seeking and is willing to accept work under essentially the same conditions as existed while the wage credits were accrued."
Essentially the same conditions is defined as: the same number of part-time hours per week, or range of hours per week, that the claimant worked during the base period of the claim.
The claimant worked between 15 and 30 hours per week during the base period of the claim. If the claimant is not willing to work between 15 and 30 hours per week, the claimant would not meet the provisions under 1253.8 and the claimant’s eligibility would be adjudicated under Section 1253(c).
4a. Other Restrictions
1253.8(c) states: "The claimant imposes no other restrictions and is in a labor market in which a reasonable demand exists for the part-time services he or she offers."
Other restrictions is defined as: any restriction(s), other than the days and times used to establish the claimant’s part-time eligibility, that further reduce the claimant’s labor market (e.g., wage restrictions, travel distance, restricting to a specific employer, etc.)
The claimant’s usual occupation is as a legal secretary. The claim is based on part-time work of an average of 25 hours per week. The claimant is willing to accept work of 25 hours per week. However the claimant is only willing to accept $25 per hour because that is what she earned at her last job. Prevailing wage for legal secretary in the claimant’s local labor market is between $12-$16 per hour. The claimant is placing an "other restriction" on her availability and therefore, the claimant would not meet the provisions under 1253.8 and the claimant’s eligibility would be adjudicated under Section 1253(c).
4b. Reasonable Demand:
Reasonable demand is defined as: a substantial field of employment as defined in Title 22, Section 1253(c)-1(c). See E (2) below for further explanation of substantial field of employment.
Even if the claimant is willing to accept the same number of part-time hours per week, or range of hours per week that the claimant worked during the base period of the claim, if there is no labor market available for the claimant’s services, the claimant would not meet the eligibility criteria under 1253.8 and the claimant’s eligibility would be adjudicated under 1253(c).
The claimant’s statement that more than 50% of the total time worked in the base period was in part-time employment and his/her willingness to work under essentially the same conditions should be accepted unless other information indicates further fact finding is necessary.
Based on the information provided by the claimant at the new claim filing point the Department found that the claimant met the eligibility criteria under 1253.8 to restrict to part-time work. The claimant had only one employer in the base period. That employer responds to the DE 1101CZ stating that the claimant worked full-time during the base period. This information would warrant further investigation into whether the claimant actually meets the eligibility criteria under section 1253.8.
E. Definitions Under Section 1253(c)
Title 22, California Code of Regulations, Section 1253(c)-1(b) provides in part:
". . . A claimant is available for work during the week for which he or she claims benefits if the claimant is ready, willing, and able to accept suitable employment or has good cause for any restriction on his or her readiness, willingness, or ability to accept such employment and; notwithstanding such a restriction, a substantial field of employment remains open to the claimant in his or her labor market . . . ."
In Sanchez v. CUIAB, a 1977 California Supreme Court case, the claimant had experience as a restaurant waitress or manager and factory worker. She was not available for work on Saturdays and Sundays because she was unable to obtain a baby sitter for her four-year-old son on those days. The Department and the Board held the claimant was not available for work and was ineligible for benefits under Section 1253(c) of the code because she was not available for work on two days of the week which were normal workdays in the restaurant industry. In reversing the decision, the California Supreme Court specifically rejected concepts previously expressed in Board decisions and Attorney General Opinions and held instead:
"Availability for work" within the meaning of Section 1253, subdivision (c), requires no more than (1) that an individual claimant be willing to accept suitable work which he has no good cause for refusing and (2) that the claimant thereby make himself available to a substantial field of employment."
The court went on to say:
". . . [T]he availability requirement is not satisfied merely by a willingness to accept all such "nonrefusable" work. The purpose of the requirement has frequently been described as a way of assuring that a claimant is "attached to the labor market." . . . The description is hardly transparent, but it is helpful because it implies that "availability" makes some reference to the functions and needs of the economy as well as to the requirements of a particular worker. One consequence of this policy is that availability normally entails accessibility to work for which there is some social demand . . . . Thus, a second element of the inquiry into availability consists of the determination whether, after a claimant has restricted his market to "suitable work which he has no good cause for refusing," he remains available for work for which there is a substantial field of potential employers . . . ."
"Availability," then, is the claimant’s readiness and willingness to accept suitable employment in an active labor market.
"Readiness" means that the claimant’s circumstances are such that work can be accepted and started almost immediately. In order to be considered ready to work, a claimant should have the required tools, licenses, special clothing, or other equipment required by the occupation; adequate family care arrangements; adequate transportation, etc. If a claimant is not ready to begin immediate work, an availability issue exists. In this context, "immediate" is a relative term which could mean within one day for local employment, or several days for employment that requires a move to another locality.
"Willingness to work" is the claimant’s eagerness to become reemployed and is sometimes best measured by the claimant’s direct efforts to secure employment. To be found eligible, the claimant’s actions must be consistent with the assertion that he or she is in an active labor market, willing and able to accept suitable employment. For example, claimants who are ready to work may deliberately present themselves to employers in such a way that discourages employers from considering them for hire. Such actions may include unsuitable clothing or behavior when contacting prospective employers or inappropriate actions such as taking children, spouse, or friends to job interviews.
However, in the absence of evidence to the contrary, the claimant’s statement of willingness to work should be accepted.
2. Labor Market And Substantial Field Of Employment
Title 22, Section 1253(c)-1(c) provides:
(2) "Labor market" means that potential demand for the claimant’s services in the locality where he or she offers them. A labor market may expand or contract with such factors as the season, weather, economic conditions, and consumer demands.
(3) "Substantial field of employment" means the presence of potential job openings with more than a minimal number of employers who would use the services offered by the claimant. It does not mean that vacancies exist or that there is a likelihood of employment. It means only that the type of services the claimant offers are generally performed in the area in which he or she offers them." (Emphasis added.)
In Sanchez the court broadly interpreted "substantial field:"
"The term "field" is used to avoid any implication that the measure of availability is necessarily the likelihood of employment in a given market. This approach is consistent with the precise purpose of the Unemployment Insurance Code, which is to provide relief for those unable to obtain suitable work . . . in Precedent Benefit Decision PB 313 . . . the board stated that "the test of availability may not be predicated upon the lack of openings for a claimant, but rather must be based upon whether there is a potential employment field." At the same time, our use of the qualifying term "substantial" is not meant to foreclose the possibility that even if an employment field is not large in absolute terms, it may nevertheless satisfy the availability requirement if it presents a substantial employment opportunity for a claimant. (Emphasis added.)"
The court also stated that the responsibility of establishing whether the claimant is available to a substantial field of employment lies with the Department because information concerning the size and character of the labor market is "peculiarly within the knowledge and competence of the Department."
A claimant’s labor market consists of all suitable positions, both vacant and filled, in the geographical area or areas in which the services are being offered. Therefore, the claimant’s eligibility is not dependent upon the presence or absence of job openings, but by the existence of a substantial field of employment for the type of services he or she has to offer. In determining whether a claimant is available to a substantial field of employment, the interviewer should not rely on what is usual or customary practice in a particular industry. Instead, the interviewer should establish specific facts as they apply to the particular claimant’s circumstances.
For example, in P-B-200, a waitress in the resort town of Avalon became unemployed at the end of the season. She sought and was willing to accept employment in four cafes, a bank, a grocery store, and the telephone company. While very limited in number, these constituted a majority of the off-season employment opportunities in the area. The Board held her available, inasmuch as:
"She put no unreasonable restrictions or limitations on acceptable employment . . . the claimant’s unemployment was due not to withdrawal from the labor market but rather to the failure of industry to offer her employment . . . ."
However, any restrictions a claimant places on acceptable employment in an already limited labor market, raises a strong question regarding his or her availability. For example, if, during the off season, a salesclerk in the same resort town of Avalon wanted only salesclerk work at ten percent above the prevailing wage, he or she would undoubtedly be denied benefits because of the restrictions imposed in an already limited labor market.
3. Good Cause
Title 22, Section 1253(c)-1(c)(4), provides:
"Good cause" means a compelling reason, one which would influence a prudent person in the same circumstances as the claimant, and who is genuinely desirous of working, to impose the restriction. A finding of good cause depends on a determination that the claimant had no reasonable alternative for discharging the obligation that led the claimant to place the restriction on his or her availability. Reasons of ambition, prestige, taste, or similar motives, though they may be commendable in certain instances, will usually not be considered to constitute good cause."
The concept of "Good Cause" is thoroughly discussed in VQ 5 and, while that reference is in relation to voluntary quit issues, the same concept applies to availability issues. "Good cause" is defined as real circumstances, substantial reasons, objective conditions, adequate excuses that will bear the test of reason, just grounds for action and always the element of good faith. Reasons of such a compelling nature that would cause any reasonable person to conduct themselves in the same manner given the same circumstances. Compelling in this sense merely means that the claimant’s reasons exerted so much pressure upon him or her that it would be unreasonable to expect the claimant to do otherwise.
Restrictions imposed by force of circumstances over which the claimant has no control or alternative are regarded as compelling, and considered "good cause." Consequently, such restrictions will not normally render a claimant ineligible provided that a substantial field of employment exists in the claimant’s remaining labor market.
In Sanchez, the court held that the burden of showing good cause for a restriction is placed upon the claimant; if the claimant can carry the burden of proof in showing good cause for the restriction, the burden of proof then shifts to the department to prove that there is not a substantial field of employment remaining.
In P-B-459, the claimant was experienced as a loan processor, cashier, secretary, and computer assembler. She was divorced and the mother of a child who would begin school in a few months. A custody agreement provided that the claimant and her ex-husband share joint custody, with the child residing with each parent on an alternating three-month basis. At the time, the claimant and her ex-husband lived in different areas, and the agreement would have required the child to transfer back and forth between different schools every three months. To secure a modification to the custody agreement, the claimant left her home at 4 a.m. on a Monday to travel to the court’s jurisdiction. She attended to her legal affairs and returned home at 6:30 p.m. the same day. The claimant was out of her area the entire workday on personal business. The Board held that the following reasoning, used in Sanchez, was applicable in this case:
"We conclude that a claimant who is parent or guardian of a minor has "good cause" for refusing employment which conflicts with parental activities reasonably necessary for the care of education of the minor if there exist no reasonable alternative means of discharging those responsibilities."
The Board went on to say:
". . . The claimant could not seek modification of her order on a weekend or holiday; she could only accomplish her mission on a weekday. Thus she could not avoid the trip, and therefore she had good cause for her nonavailability on one day of the week and has satisfied the first step of the Sanchez test. This is so despite the fact the claimant was unable to contact a potential employer . . . which conceivably could have resulted in a job offer."
As shown above, the claimant’s restrictions do not have to be ongoing or chronic. A one-time unavailability for a compelling or "good cause" reason, where there is no reasonable alternative means of discharging the obligation, is sufficient.
However, in the absence of "good cause," a claimant would be considered unavailable for work if restrictions are imposed that materially reduce his or her work opportunities.
4. Suitable Work
Title 22, Section 1253(c)-2(c)(1), provides:
"Suitable work" means work in the claimant’s usual occupation or work for which the claimant is reasonably fitted. Whether the work is work for which the claimant is reasonably fitted depends upon such factors as the claimant’s age, health, prior training, and experience. "Suitable work" does not include work under the conditions specified in Section 1258.5 or 1259 of the Code."
Sections 1258.5 and 1259 of the UI Code specify employment that is, by its nature, unsuitable for all claimants:
- Work offered by an employer who does not possess the required state license(s) to engage in the employer’s business, trade, or profession.
- Work offered by an employer who does not withhold or hold in trust the employee contributions to the Disability Insurance Fund.
- Work offered by an employer who does not carry worker’s compensation insurance or possess a certificate of self-insurance.
- Any position that is vacant due directly to a strike, lockout, or other labor dispute.
- Any position where the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.
- Any position that would require the individual to join a company union or to resign from or refrain from joining any bona fide labor organization.
In determining if the employment under consideration is work for which the claimant is reasonably fitted, consideration must be given to the degree of risk to the individual’s health, safety, and morals. Factors such as the claimant’s physical fitness, prior training, experience, and prior earnings will also aid in determining the suitability of the employment.
Generally, if the work is in the claimant’s usual occupation and presents no unusual adverse physical conditions, it would be considered suitable as long as it pays the prevailing wage.
In the event that a claimant’s restrictions exclude only employment that is unsuitable, no availability issue is raised.
F. Burden of Proof
Title 22, Section 1253(c)-1(d) provides:
"(1) With regard to a determination of availability under Code Section 1253(c), and any appeal therefrom, the claimant has the burden of proving that he or she was ready, willing and able to accept suitable employment and that he or she has good cause for any restriction.
(2) If the claimant meets the burden set forth in subdivision (d)(1), the department has the burden of proving that, nevertheless, a substantial field of employment did not remain open to the claimant."
The foregoing establishes quite clearly which party has the requirement of meeting the burden of proof. The claimant is responsible for establishing willingness to work and "good cause" for any restriction on his or her availability to suitable work. Once the claimant has established "good cause" for the restriction, the Department must then establish whether the claimant remains available to a substantial field of employment.
If the claimant establishes good cause for the restriction, and a substantial field remains, the claimant would be considered available for work. However, if the claimant’s restriction resulted in virtually eliminating his or her field of employment, the claimant would be ineligible under Section 1253(c). Interviewers must thoroughly document the labor market conditions that result in a finding that no substantial field of employment remains within the claimant’s restriction(s).
If no good cause for the restriction is shown, the claimant would be ineligible under Section 1253(c) if his or her availability was materially reduced by the restriction. There is no firm rule to follow in determining whether a person’s availability has been "materially reduced" by a noncompelling restriction. As a general guideline, interviewers can consider a claimant’s availability to be materially reduced if 20 percent or more of the potential labor market has been eliminated by a restriction for which good cause has not been shown. However, this should be viewed as a general guideline only: in a small labor market, even 10 percent could materially reduce an individual’s potential job opportunities.
G. Effect of Restrictions on Availability
A claimant who registers for work and files a claim properly is presumed to be available for work. The presumption of availability is not refuted by the contention that the claimant is unavailable for work, unless the contention or statement is supported by evidence. Therefore, in the event that facts or conditions exist that indicate a potential restriction on acceptable employment, the claimant’s availability must be reviewed in order to establish eligibility.
1. Preference Versus Restriction
Individual restrictions will vary greatly with each claimant. Moreover, they must be distinguished from preferences. Many individuals will express some type of preference when registering for work which should not be regarded as an actual restriction, unless:
- The claimant is advised that the limitation is considered by the Department to be a restriction and the claimant is made aware of the local labor market conditions, and
- The claimant will not modify the restriction.
In P-B-205, the Board considered the case of an individual who, upon registering for work and filing his claim, indicated that his former employer might recall him and, lacking experience in types of work other than ship’s purser, wanted to wait a reasonable time for recall before looking for other work. The claimant later explained that his statement was not intended to be an absolute restriction, and the facts established that he had sought other employment almost immediately following his layoff. In holding the claimant eligible, the Board stated:
"In holding the claimant unavailable for work the Referee construed the claimant’s written statement . . . as a total restriction on availability. In view of the fact that the claimant not only on other occasions stated that he was available for work generally, but also actively sought work outside the maritime field, we believe that the most plausible construction to be given the statement in question is not that it was a restriction on acceptable employment to work for the previous employer, but rather that it was a mere indication of preference for work for the last employer which is perfectly understandable in view of the fact that the claimant could command a substantially higher wage as a ship’s purser than as a general clerk."
Any exception to the normal method of seeking or securing employment is considered a restriction because setting such limits, by definition, precludes employment to some extent. Often a claimant will express restrictions under which they will seek and/or accept work. But, the restrictions have no bearing on the claimant’s availability because there is no conflict with the normal methods for seeking and/or securing work in the claimant’s occupation and locality. Such would be the case if the claimant, a construction worker, restricted availability to day shift because of service-group meetings on Tuesday and Thursday evenings.
All restrictions on availability should be reviewed when determining a claimant’s eligibility. Where multiple restrictions exist, it is necessary to evaluate the cumulative effect of the restrictions on the claimant’s labor market.
2. Cumulative Effect of Restrictions
When examining one restriction and determining its effect on availability, other restrictions should not be overlooked. Often, one restriction will serve as a clue to others.
A claimant may establish good cause for one restriction while imposing additional non-compelling restrictions as well. In such cases, the claimant is voluntarily reducing a labor market that is already limited due to the compelling restriction.
The claimant, a skilled clerical worker with experience as a bookkeeper, receptionist, and word processor, is limited to part-time work due to doctor’s orders. There is a substantial field of employment for part-time clerical workers in the locality. However, the claimant insists she will only accept receptionist work, because she considers bookkeeping and word processing to be too tedious and she prefers the stimulation of public contact. Under these circumstances, the claimant has voluntarily and without good cause further reduced her employment prospects and would be considered unavailable for work under Section 1253(c).
Occasionally, a claimant may have multiple restrictions for which good cause has been shown. To determine availability, the Department must establish whether a substantial field of employment remains within all the restrictions.
The claimant resides in a remote area and must rely on public transportation to the nearest town, which is 15 miles away. Her invalid mother, who requires constant care, moves in with her. The claimant arranges for a neighbor to care for her mother while the neighbor’s child is in school between 9 a.m. and 1 p.m. Due to the bus schedule, the earliest the claimant can arrive in town is 9:45 a.m., and she must leave town on the 12:15 p.m. bus to arrive home by 1 p.m. As a result the claimant would be able to work only 2-1/2 hours per day, Monday through Friday. The claimant has experience as a cashier and waitress, and is willing to work at either occupation during the hours she is available. Although the claimant has good cause for her restrictions due to transportation and family obligations, employers in the area who hire part-time waitresses and cashiers require employees to work four-hour shifts. The claimant is not available to a substantial field of employment and would be ineligible under Section 1253(c).
With each additional restriction, the labor market available to claimants becomes smaller and smaller until a point is reached when the cumulative effect of the restrictions eliminates a substantial portion of the available labor market. At that point, the claimant can no longer be considered available for work.