Able and Available AA 195
Type of Work
This section covers the effect restrictions to a certain type of employment or to preferred employers, may have on the claimant’s availability.
An important point to remember when considering any restrictions the claimant has placed on the type of work he or she will accept, is that to meet the availability requirements, a claimant is not required to hold himself available for every type of work that he is physically able to perform. As provided in Section 1258 of the Calif. Unemp. Ins. Code, the claimant must be available only for suitable employment.
Section 1258 provides:
"Suitable employment" means work in the individual’s usual occupation or for which he is reasonably fitted, regardless of whether or not it is subject to this division.
In determining whether the work is work for which the individual is reasonably fitted, the director shall consider the degree of risk involved to the individual’s health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence, and such other factors as would influence a reasonably prudent person in the individual’s circumstances."
While Section 1258 provides the criteria for determining the suitability of work for any particular individual, Section 1259 of the Code lists those jobs which are to be considered as unsuitable for all claimants. Section 1259 states in part:
". . . (N)o work or employment shall be deemed suitable . . . under any of the following conditions:
(a) If the position . . . is vacant due directly to a strike, lockout or other labor dispute;
(b) If the wages, hours, or other conditions of work . . . are substantially less favorable to the individual than those prevailing for similar work in the locality;
(c) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization."
A claimant may refuse to consider any work covered by Section 1259, without providing a reason, because the work by definition is unsuitable.
A claimant who has good cause to restrict the type of work he will accept, must still have a substantial field of employment open to him or her, in order to be considered available for work.
B. Usual Occupation
"Usual occupation" or "customary work" means the type of work a claimant ordinarily performs by virtue of experience and/or training.
Normally claimants do not think of seeking work in other than their usual occupation. And, in most cases little question is raised as a result of this restriction, provided that good prospects exist for obtaining employment in this occupation within a reasonable time.
In Loew’s, Inc. vs. California Employment Commission (1946), the District Court of Appeal, in discussing restricting to usual occupation, stated:
"The mere fact that a claimant at the time of filing his application, seeks work only in his usual occupation does not of itself establish that he is not available for work. A claimant, who had full-time employment in an occupation in which he is particularly trained and skilled, BUT who was unemployed at the time of filing his claim through no fault of his own, may be held to be available for work even if at the time of filing his claim he refuses to accept employment in any other trade than that which is his usual occupation, PROVIDED it is established that good prospects exist for obtaining employment in his usual occupation on a full-time basis within a reasonable time."
Thus, a claimant with many years’ experience in his or her occupation may restrict to that "usual occupation" as long as a labor market exists, and there is a prospect of the claimant returning to that occupation within a reasonable time. However, the claimant’s availability would be seriously questioned if the customary work no longer existed in the area, or if the claimant placed other restrictions on acceptable work.
In some cases the claimant will restrict to employment in other than his or her "usual occupation." While exclusion of a claimant’s customary work raises a question of unavailability, the Board has repeatedly held that such an exclusion does not necessarily render a claimant ineligible if the restriction is imposed for compelling reasons, and a substantial field of employment remains open to the claimant.
However, if the restriction is for noncompelling reasons, the claimant would be ineligible under Section 1253(c) if his or her potential labor market was materially reduced by the restriction.
Before determining whether a labor market exists in a particular occupation, it is necessary to determine whether the claimant is qualified by experience and training to perform work in that occupation. If the claimant is not qualified, the presence or absence of a labor market has no effect on his or her availability.
C. Experience and Training
1. What Constitutes Experience and Training
Any experience or training which is relevant to employment is significant when determining a claimant’s availability. While most experience and training is gained through employment, courses at a trade school or college will normally result in the development of some marketable skills.
The significance of a skill developed in school was demonstrated in P-B-220. A telephone operator with limited experience had been disqualified for refusing suitable employment. In holding the claimant available for work, the Board stated:
". . .(C)onsideration must be given to the fact that the claimant is twenty years of age, has worked for the employer full-time for only a period of nine months, has had two years of college education and has qualifications which render her adaptable to the demands of the labor market in other occupations . . . "
In other words, in determining her availability, the claimant’s work experience was not of such length as to completely disregard her college training. (Also, a person’s experience in self-employment might be given greater weight in determining his or her usual occupation, than a brief but more recent experience as an employee.)
There are two common characteristics of many claimants’ experience and training:
- It is of such a general nature that it is applicable in many industries. For example, a factory worker.
- It may be in more than one occupation. For example, a factory worker who also has worked as a salesperson.
These two characteristics were covered in P-B-269, where the claimant had moved to an area where work within her most recent experience as a rubber factory worker did not exist. The claimant was denied benefits on the basis that she had withdrawn from the labor market and was no longer available for work. In reversing the decision, the Board stated:
"While it is admitted that there are no rubber manufacturing concerns in the immediate vicinity of Chico . . . the experience which the claimant acquired while employed as a rubber factory worker would reasonably fit her to perform other factory work which does exist in Chico. In fact, the evidence discloses that these prospective employers were willing to train workers to operate various machines in the establishments. The claimant was willing to accept such work and had applied for same. A further point to consider . . . is that the employment service apparently considered the claimant qualified as a salesclerk for she was registered and classified with regard to her occupational skills as a salesclerk. The claimant has had prior experience as a salesclerk, such work exists in the area, and she was seeking employment of that nature."
It should also be noted that experience and training which may be of little significance in one industry, may have great value in another industry where labor is in short supply.
2. Skills Transferable to Other Industries
In evaluating the claimant’s potential labor market, consideration should be given not only to the industry in which the claimant last worked, but also to any related industries for which the claimant is qualified by experience or training. Many occupational skills are transferable from one industry to another. While the transfer of experience and training most frequently occurs in the lower skilled classifications, such transfer can also occur in semiskilled and skilled occupations.
Claimants are sometimes reluctant to transfer from one industry to another even though the occupational skills required are identical or similar. However, when prospects of securing employment in a claimant’s regular industry are limited, the refusal to consider employment in another industrial field may well render the claimant unavailable. Care should always be taken that the claimant’s "usual occupation" and/or other occupations for which he or she is reasonably fitted, are determined by considering the similarity of the experience and training required, not the job title given by the claimant.
A common characteristic of many claimants’ experience and training is that it is of such a general nature, that it will qualify them for a number of positions in various industries. This fact is particularly important to remember where employers are willing to hire and train workers with any experience comparable to that desired by the employer.
3. No Usable Experience or Training
Occasionally a problem arises because a claimant’s work experience is lacking as in the case of a claimant who has recently entered the labor market from school. Although such claimants may have acquired some training or experience while in school, this does not mean that every college graduate, with even a few months’ work experience, has established a pattern of training or experience sufficient to permit restriction to a particular classification. While it may be normal for a recent graduate to seek work with maximum opportunities for advancement, or full utilization of taught skills, such a restriction cannot be considered as compelling. And, since the restriction is for a noncompelling reason, the claimant would be ineligible under Section 1253(c) if his or her availability is materially reduced.
4. Experience and Training in More Than One Occupation
Normally a claimant who has experience or training in several occupations, is required to hold him or herself available for work in all of them. This is particularly true when prospects of work in his or her primary occupation are poor.
An exception can be made in those cases where acceptance of work in a secondary occupation would preclude or materially reduce the chances of securing employment in his or her primary occupation. This would be especially true when the primary occupation is on a much higher skill level, and the length of unemployment is of short duration.
In P-B-173, the claimant was last employed for three years and ten months as an executive secretary. When the claimant filed a claim for benefits, the claimant asked to be classified as an executive secretary but the department refused to do so and classified her as a secretary. The claimant restricted her availability to executive secretary and the rate of pay that goes with the position. The Department held the claimant ineligible under Section 1253(c). In reversing the decision, the Board stated:
"The evidence very clearly established that the claimant had a long and substantial history of work experience as an executive secretary. For approximately fifteen years preceding the filing of her claim, she had satisfactorily held down the exacting responsibilities of such a position . . . . Upon the basis of the claimant’s past work experience, the department should have given claimant the occupational classification of executive secretary. Claimant requested that she be so classified; and it was error to refuse her request in this respect. Moreover, this error appears to have been injurious to claimant’s opportunities for correct and satisfactory placement in her proper labor market for her capabilities are shown to be such that she would actually be undesirable for employment by most employers seeking steady secretarial help to do routine work. . . . If this claimant had been properly classified in a market for executive secretaries . . . she should have had a reasonable chance of procuring work . . ."
Another type of problem that occasionally occurs, is the disappearance of the claimant’s normal labor market for physical, technological, or seasonal reasons, which are beyond the claimant’s control. In such cases the claimant may still be held available providing there is:
- Work in some other occupation in which the claimant’s prior experience or training is qualifying, or
- Work in the labor market which the claimant is willing to take and which requires little or no prior training or experience.
NOTE: In dislocated worker cases, where the claimant’s occupation has been eliminated or is obviously declining because of technological reasons, the possibility of retraining should be considered.
D. Preferred Employer or Employment
It is unreasonable for a claimant to restrict his or her availability to include only the most recent employer, unless there is a definite and immediate prospect of returning to work with that employer.
In the following case, the claimant placed so many restrictions on acceptable employment that the only work he was available for was with his former employer. While this case deals with seasonal employment, the principles apply to employment of a non-seasonal nature as well.
In Swaby v. CUIAB (1978), a California Appellate Court case, the claimant a lifelong seasonal farm worker, had been seasonally employed by the same employer from December 1 through June 30 during the four years preceding the filing of his claim. He was experienced in the pruning, thinning, picking and packing of grapes, preferring grape work to other types of farm labor. He did not follow the crops, preferring instead to work solely for one employer. Mr. Swaby was advised by the Department that he must seek work independently as well as check with the union hiring hall and was assigned an "A" seek work plan. Mr. Swaby’s position was that he was qualified only for grape field work and his search for work consisted solely of contacting his union hiring hall. He did not apply for grape work at other employers in the San Bernardino County area. On appeal Swaby’s primary contention was that he was available for work and therefore entitled to benefits during the off-season. In its decision, the Court stated:
"Swaby’s self-delineated field of suitable employment was grape-field work for growers under contract with the United Farm Workers #271 Union in the Coachella Valley. The union had one collective bargaining agreement with one grower, whose maximum employment period was seven months. Swaby specifically excluded: all other forms of labor in any locality; other field or harvesting work within a reasonable radius of his . . . residence; and, specifically, grape field work in the San Bernardino Valley from September through November. Swaby’s self-defined boundaries of suitable employment, limited in type, locality, and period of availability restricted Swaby’s availability to an economically insubstantial field of employment. In effect his self-imposed restrictions on suitability and area of employment, constituted a voluntary withdrawal from the employment market. While a seasonal worker is not precluded by the intermittent nature of his work from collecting unemployment benefits, he must make reasonable efforts to procure rationally-related suitable employment, and may not sit by idly and collect unemployment benefits while awaiting his next cyclical work period."
Sometimes claimants without restricting themselves to a particular employer, restrict themselves to a particular type of work within their regular occupation.
Problems arising from restrictions to one type of work should be distinguished from problems arising from a claimant’s restriction to his usual occupation or to the occupation using his highest skill. Restriction to the claimant’s highest occupation or work employing his or her highest skill are usually motivated by a reasonable desire to earn at maximum capacity.
Restrictions to a particular type of work, namely, to some section of work or specific task within the regular occupation, are usually motivated by personal convenience and preference and, therefore, rarely are of a compelling nature. Consequently, the inference of unavailability is very strong unless evidence shows that the restriction is compelling, or that the claimant’s labor market has not been materially reduced by the restriction.
It is important to recognize whether the claimant has established an actual restriction on acceptable employment or is merely stating a preference.
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’s statement a "preference," 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 occasion 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 . . . ."