Total and Partial Unemployment TPU 30
Apprenticeship or Preparatory Services
This category of the Total and Partial Unemployment (TPU) Division of the BDG contains a discussion of the general principles involved in determining whether a claimant is "unemployed" within the meaning of Section 1252 of the UI Code, and the amount of benefits payable under Section 1279 to an unemployed claimant who has earnings allocated to a week claimed.
For more detailed discussions of these general principles, refer to the appropriate categories in this division.
A. Preparatory Services
Section 1252 defines an unemployed individual as one who performs no services and has no wages payable to him/her. A claimant who has attached himself/herself to an employer for the purpose of learning a trade or profession is employed by that employer if he/she is receiving wages for the training period.
This issue was considered by the Board in Tax Decision 1007. The employee was hired to accompany another driver and learn the route. He was paid full salary while learning. The Board held that he was an employee, and said:
"Nowhere in the Act or under the regulations is service of an employee in orienting himself with the job distinguished from other service"
A claimant is also employed if, during the training period, he/she receives no wages, but performs services for the employer. For example, in Tax Decision 795, the Board considered the case of the employment status of student barbers. The students in the barber college were paid commissions for their services only when they had progressed to a certain point of skill. These commissions were quite often credited to the claimant’s account with the college, so that it was possible that no money changed hands. The Board held that the students were employees since they were performing services.
In Tax Decision 82, the board considered the case of an employer who considered he should not have to pay taxes because the employees were hired only on a trial basis.
In holding that the workers were employees, the Board said:
". . . the Act provides that employment means service performed for wages or under any contract of hire, written or oral, expressed or implied. Workers are not distinguished as to whether they are hired on a permanent basis or a trial basis."
From the above decision, it can be seen that the basic principle is whether or not there is a contract of hire. If there is no contract of hire, a claimant is unemployed even though he/she may spend some of his time learning the employer’s business. For instance a claimant who spends his/her time accompanying a salesman in order to learn the technique is not employed if there is no contract of hire between him and the employer, and he/ she performs no services for the employer, and receives no wages.
A claimant may take a training course given by an employer which may lead to a job. If the claimant receives wages, there is a contract of hire and an employer-employee relationship exists. If wages are not XE and he/she is in training less than a normal work week, the claimant is unemployed for purposes of Section 1279.
Sometimes a claimant may enter an employment relationship with a contract of hire even though he receives no pay for a required training period. In this circumstance attending a training course given by an employer constitutes services. Therefore, if the existence of a contract of hire can be established, the claimant is employed if he/she attends a training course for a full week but he/she is unemployed if he/she attends less than a full week.
See AA 40 for a discussion of availability while attending employer-sponsored training.
Section 3077 of the California Labor Code defines an apprentice as follows:
"The term ‘apprentice’ as used in this chapter, means a person at least 16 years of age who has entered into a written agreement, in this chapter called an ‘apprentice agreement,’ with an employer or his agent, an association of employers, or an organization of employees, or a joint committee representing both. The term of apprenticeship for each apprenticable occupation shall be approved by the administrator, and in no case shall provide for less than 2,000 hours of reasonably continuous employment for such person and for his participation in an approved program of training through employment and through education in related and supplemental subjects."
The handbook of the Joint Apprenticeship Committee states that apprenticeship:
". . . is an organized, formalized system, of on-the-job training supplemented by related technical instruction, in which the apprentice learns by doing, and earns while he learns."
An apprentice is indentured to an employer for on-the-job training and formal schooling. The apprentice receives wages for his services of not less than 25% of a journeyman’s salary. The law also requires no less than 144 hours per year of related and supplemental instruction.
During the period of the apprenticeship, the claimant may work for many different employers in the industry. The employers in the industry, the union, and the Joint Apprenticeship Committee cooperate to find employment for the apprentice.
Quite often, particularly during the early period of the apprenticeship, the claimant will experience periods of layoff. During these periods, he must continue with his classes of formal instruction. Since the claimant is attached to the industry and not a single employer, there is a complete severance of the employer-employee relationship during these periods of layoff. Therefore, even though the claimant is attending his supplemental classes, he is totally unemployed because he is performing no services for an employer, and has no wages payable to him from an employer.
See AA 40, Schooling in Connection with Apprenticeship.