Able and Available AA 360
This section discusses eligibility principles when availability is restricted due to personal affairs. An exhaustive listing of all types of personal affairs which may cause restrictions on availability is not feasible. However, the principles discussed apply to most restrictions imposed by a claimant as a result of personal affairs.
Most availability issues due to personal affairs are resolved under Section 1253(c) of the Unemp. Ins. Code. There are instances where issues are separately addressed in other sections of the Code: Section 1253.1 - Incarceration or Detention, Section 1253.12 - Death in Immediate Family, and Section 1253.6 - Jury Duty or Court Subpoenaed Witness.
If the claimant is restricting his/her availability to part-time work, then before conducting the fact-finding on the reason for the restriction determine if the claimant meets the part-time work criteria under UI Code Section 1253.8 (refer to BDG AA5 for a complete discussion of the part-time work criteria).
If the claimant meets the part time work criteria then:
- No further investigation is necessary,
- The claimant would be approved for part-time work regardless of the reason why the claimant is restricting his/her availability.
If the claimant does not meet the part-time work criteria then:
- The claimant’s eligibility must be determined under section 1253(c) of the code.
- Continue with fact finding.
When a claimant is unavailable for work for personal reasons that are not separately addressed in the Code, apply the availability test established by the California Supreme Court in Sanchez v. CUIAB:
"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:
"Accordingly, once a claimant has shown he is available for suitable work which he has no good cause for refusing, the burden of proof on the issue of whether he is available to a "substantial field of employment" lies with the department.
If the department believes that a given claimant, despite his availability for such suitable work, is nevertheless not attached to a labor market of sufficient dimension, it may be expected to explain its position and support it with appropriate evidence."
"Thus, once the Department has determined that the claimant’s restriction has a negative effect on his or her availability, the claimant has the burden of proving that (1) he or she is ready, willing, and able to accept suitable employment and that (2) he or she has good cause for any restrictions on availability. If the claimant can establish good cause for his or her restrictions, the burden is then on the Department to establish whether a substantial field of employment remains open to the claimant and to document such findings. If a substantial field of employment exists, the claimant would be considered eligible under Section 1253(c). However, a disqualification is appropriate when the claimant’s "good cause" restriction virtually eliminates the labor market, OR, when the claimant cannot establish good cause for restrictions that materially reduced his or her availability."
Reminder: Unavailability for four hours or less of one workday during the workweek does not raise an availability issue.
B. Death in Immediate Family
Section 1253.12 of the Unemp. Ins. Code provides:
"An unemployed individual who is in all respects otherwise eligible for unemployment compensation benefits, shall not be deemed ineligible for any week in which:
(a) For not exceeding two working days, he or she cannot reasonably be expected to work because there has been a death in his or her immediate family in the state in which he or she resides.
(b) For not exceeding four working days, he or she cannot reasonably be expected to work because there has been a death in his or her immediate family outside of the state in which he or she resides."
Title 22, Section 1253.1-1 (a), defines immediate family:
"Immediate family" means the spouse or registered domestic partner of the claimant OR the parent, stepparent, foster parent, grandparent, child, foster child, grandchild, brother, sister, son-in-law, or daughter-in-law of the claimant or of the claimant’s spouse or registered domestic partner, whether or not the same live in a common household."
Refer to VQ 155 for the definition of a registered domestic partner.
The Code specifically states "working days." Therefore, any day that is considered a normal day off in the claimant’s usual occupation is not included when calculating the number of days involved with a death in the family.
The claimant’s grandmother passed away on Wednesday evening. The claimant aided her grief-stricken mother on Thursday, made funeral arrangements on Friday, and attended the funeral on Saturday. The claimant, a bank teller, normally works Monday through Friday. Because Saturday is not a "normal workday" for the claimant, it is not used in calculating the period of unavailability. Since the claimant was unavailable for only two working days, Thursday and Friday, she would be eligible under Section 1253.12.
Before it can be found that a claimant could not reasonably be expected to work, it must be established that he or she was engaged in affairs directly connected with a death which had occurred in the immediate family. This includes not only attendance at the funeral, but also such things as: Completing funeral arrangements.
- Participating in rites such as wakes, etc.
- Aiding other members of the immediate family.
- Travel to and from the funeral.
- Incapacitation due to grief or shock.
Section 1253.12 would not apply where the claimant’s unavailability for work is caused by affairs indirectly connected with a death in the immediate family. This would include activities such as:
- Probating wills.
- Attending the reading of wills.
- Acting as executor or executrix of an estate.
- Disposing of personal property of the deceased.
Section 1253.12 is applied on a weekly basis and is not restricted to the week in which the death occurs. A determination under this section may pertain to more than one week if the death and the activities directly connected with the death begin in one week and end in the next. However, a claimant’s involvement in affairs directly relating to a death in the immediate family must extend throughout the period involved.
Example 1, Period of Unavailability Extends to Second Week:
The claimant, a legal secretary, was notified of her father’s death on Wednesday evening. She left her home in San Diego on Thursday morning at 8:00 a.m. and traveled by car to her parents’ home in San Francisco. She assisted with funeral arrangements on Friday, attended the funeral on Monday, and returned home on Tuesday arriving at 6:00 p.m. The claimant’s normal workweek is Monday through Friday. The claimant was unavailable two working days during the first week and two working days during the second week due to activities directly related to her father’s death. The claimant meets the special provisions of Section 1253.12, and is therefore eligible.
Example 2, Period of Unavailability Includes Activities Not Related to Death
The claimant, an accountant in Fresno, attended his brother-in-law’s funeral in Los Angeles on Monday. On Tuesday, he advised his sister on financial matters related to her husband’s death. He returned to Fresno that evening at 8:00 p.m. The claimant was unavailable for a period of two working days because of the death of an immediate family member; however, one of the days was not devoted to activities directly related to the death (i.e., advising his sister on financial affairs). Under these circumstances, the claimant does not meet the special provisions of Section 1253.12; therefore, eligibility is determined under Section 1253(c).
It is possible that a claimant might be so overcome by the effects of the death of an immediate family member that he or she becomes physically incapacitated for a period of time. If the claimant’s unavailability is two working days or less, Section 1253.12 would apply. If the claimant’s unavailability extends beyond two working days, application of Section 1253.5 (BR) would be appropriate.
C. Incarceration or Detention
Section 1253.1 of the Unemp. Ins. Code makes special availability provisions for individuals who are arrested, detained, or incarcerated while they are unemployed and claiming benefits:
"An unemployed individual who is in all respects otherwise eligible for unemployment compensation benefits shall not be deemed ineligible for any week in which, for not exceeding two working days, he cannot reasonably be expected to work because:
(a) He is unlawfully detained.
(b) He is lawfully detained or arrested, but the charge against such individual is subsequently dismissed.
(c) Notwithstanding any other provision of this division, any determination made pursuant to subdivision (b) of this section may, if no appeal has been filed therefrom, be reconsidered by the department within 15 days from the date that the charge is dismissed. Notice of any reconsidered determination shall be given to the claimant and any employer or employing unit which received notice under Section 1328 or 1331, and the claimant or employer may appeal therefrom in the manner prescribed in Section 1328."
If the claimant does not meet the specified conditions in (a) or (b) above, his or her eligibility will be determined under the provisions of Section 1253(c).
Title 22, Section 1253.1-1, provides:
"Unlawfully detained" means any restraint upon the claimant which deprives him of his personal liberty without authority of law, whether imposed by physical force applied to the claimant, or by words or conduct which would cause a reasonable person to fear that resistance would be overcome by force."
Examples of unlawful detention are:
- Being kidnapped.
- Being held as a hostage.
- Being held in the course of a robbery.
- Being told to stay at a certain place under threat of physical violence.
The same principles apply to unlawful detention as apply to lawful detention. The claimant is eligible only if he or she was unlawfully detained for not more than two working days.
Lawful detention is the period of time between arrest (being taken into custody) and arraignment. When an individual is arrested without a warrant, the person arrested must be taken before the nearest or most accessible magistrate and a complaint filed without unnecessary delay. "Unnecessary delay" is defined in Penal Code Section 825 as within two days after arrest, excluding Sundays and holidays.
If the claimant is released and no accusatory pleading is filed charging the individual with an offense, the period of time between arrest and release is deemed a lawful detention. Thereafter, such arrest shall not be deemed an arrest, but a detention only.
The consideration of "dismissed charges" does not arise in detention cases because the claimant has not been charged with anything.
At the time of the determination interview, it will not always be possible to ascertain whether or not the charges have been or will be dismissed. When the status of the charges cannot be verified, the determination should be made based on the eligibility criteria of Section 1253(c). If the charges are subsequently dismissed, and an appeal has not been filed, a redetermination can be done.
If found guilty of a crime, a claimant may be sentenced to a fixed period of incarceration. If the incarceration exceeds four hours of a workday during a week, the claimant would be ineligible under Section 1253(c).
Several types of incarceration alternatives are available to eligible individuals. The availability for work, of a claimant participating in an alternative program, will be determined by the particulars of his or her situation.
A claimant who is sentenced to serve a specific length of time in custody, but is allowed to serve his or her time on weekends, would be considered available for work if weekends are not normal workdays and the claimant meets other eligibility criteria of Section 1253(c). However, if the claimant’s occupation normally requires weekend work, the claimant would be ineligible under Section 1253(c) if his or her labor market was materially reduced.
The eligibility of a claimant involved in the Work Furlough program is determined under Section 1253(c) of the Code. The Work Furlough Rehabilitation Law allows individuals to be released from jail to work or to look for work. The individual resides at the jail or county facility when not working or looking for work. Work Furlough is available only to eligible prisoners; it may be denied to any individual who would "pose an unreasonable risk to the public" or for various offenses including conviction of a crime involving sex or arson; history of forced escape; drug use, sales, or addiction; history of serious institutional misconduct; and more than one conviction of a crime of violence, among others. The facility will generally not allow the claimant to work outside its jurisdictional area.
Since the terms of the claimant’s incarceration permit both the seeking and accepting of work, the claimant would be subject to the same eligibility standards as other claimants. If the claimant is ready, willing, and able to accept all suitable employment for which there is no good cause to refuse, the claimant would be eligible under Section 1253(c). However, before accepting the claimant’s voucher that he or she is eligible to participate in Work Furlough, the interviewer should contact the local facility’s Work Furlough Coordinator for verification.
The Work Alternative program is a program of public works in which the claimant works off his or her sentence by performing community service but remains in the home outside of working hours. Counties are granted the right to establish such programs by Section 4024.2(a) of the Penal Code. This section of the code provides that the person in charge of county correctional facilities may offer persons sentenced to the facility the opportunity to work a minimum of eight and a maximum of ten hours of manual labor to improve or maintain public facilities in lieu of one day of confinement. Such work is performed under the direction of a responsible county employee assigned to supervise the labor of such persons during the hours normally worked by the county employee. If the individual fails to appear for such work, he or she will be taken into custody to serve the balance of the sentence.
Because the Work Alternative enrollee serves his or her incarceration during normal working hours, a claimant who is serving in a public work capacity in lieu of confinement or fine for more than four hours of a normal workday during a week will be considered unavailable for work for that week and, as a result, ineligible under Section 1253(c).
D. Legal and Business Affairs
(Note: If the claimant’s appearance in court is as a subpoenaed witness, refer to subsection E - Public Service in this section.)
Involvement in legal matters, such as appearance in court or elsewhere, raises a question of availability if the activity involves a period exceeding four hours of a workday during a week. Eligibility in these circumstances is determined the same as any other availability issue; the claimant must be ready, willing, and able to accept suitable employment which he or she has no good cause to refuse and a substantial field of employment must remain open to the claimant.
In P-B-459, the claimant was unavailable for a full working day to attend a custody modification hearing for her child. The claimant could not have arranged to take care of this matter on a non workday because the courts only hear cases on weekdays. The Appeals Board held that the claimant had good cause for her unavailability, (i.e., parental activities necessary for the care of her minor child), and since she was available for work the remaining four working days of the week, she had made herself available to a substantial field of employment. The Board held the claimant eligible under Section 1253(c).
However, if other arrangements could have been made, or if the hearing had involved most of the workweek, the claimant would not have met the requirements of the availability test and would have been ineligible under Section 1253(c).
E. Public Service
1. Jury Duty or Subpoenaed Witness
A claimant is specifically exempted from meeting the availability requirements of Section 1253(c) during periods of service on jury duty or as a court subpoenaed witness. Section 1253.6 of the Code provides:
"For purposes of subdivision (c) of Section 1253, an unemployed individual who is in all respects otherwise eligible for unemployment compensation benefits, shall not be deemed to be not able to, or unavailable for, work for any week in which such person is not able to, or available for, work solely because such person is serving on a grand or petit jury, or is responding to a subpoena."
Consequently, even when the claimant devotes the entire week to jury or witness services, there is no issue under Section 1253(c). However, if the claimant is involved in such service less than a full week, the claimant must be available for suitable employment during the days not spent in court.
(See TPU BDG for a discussion of fees received for public service.)
2. Public Office
Before the question of availability for a claimant who holds public office can be considered, it must first be determined whether the claimant is fully employed. (Refer to TPU BDG.) If the claimant is determined to be fully employed there is no further issue because a claimant may not receive unemployment insurance benefits if fully employed.
If the claimant is determined to be part-totally employed, there may be an availability issue. Like all other claimants, this claimant must be willing to accept suitable employment without any undue restrictions. Title 22 has defined "suitable work" as work in the claimant’s usual occupation or work for which the claimant is reasonably fitted by age, health, prior training and experience. If the claimant’s availability is not restricted by the duties as a public official, he or she would be eligible under Section 1253(c).
For example, a hypothetical claimant is an unemployed bank manager who also serves as a city councilwoman. The council meets weekly in the evenings. Council members meet with constituents and attend public events during the day. Most banks in the area are open only during the day. The claimant states her constituents know she works during the day and are used to contacting her during the evening hours. She states she generally foregoes daytime events, which are largely ceremonial. The claimant has shown a history of full-time employment while serving as a city councilwoman. A check of her employment contacts shows she is placing no restrictions on available hours of employment. Under these circumstances the claimant would be eligible under Section 1253(c).
However, if the hypothetical claimant was required to attend a particular council event every Tuesday morning from 9:00 a.m. to noon and her availability was restricted accordingly, she would be ineligible under Section 1253(c) if her availability was materially reduced by the restriction.
When a claimant is seeking public office, it is necessary to know the amount of time the claimant is spending in campaigning and whether that time commitment imposes any restrictions on the individual’s availability. If the claimant’s campaign involvement is limited to mailing literature and an occasional speech which can be accomplished around normal working hours, he or she may be considered available. However, campaign involvement does raise a question of availability, and it is the responsibility of the claimant to overcome this presumption.
The receipt of retirement or pension benefits may or may not raise a (PWP) Prior Work Pension issue under Section 1255.3; however, the claimant’s eligibility under Section 1253(c) is generally questioned because application for retirement benefits implies a withdrawal from the labor market. The claimant can overcome this presumption of unavailability by complying with the requirements of Title 22, Section 1253(c)-1(b), which provide:
"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 . . ."
Some pension plans have provisions that may preclude the claimant working in his or her normal occupation while in receipt of the pension. For example, under some union pension plans, acceptance of the pension may preclude further dispatch through the union. When a claimant can no longer work in his or her normal occupation or trade, the claimant must show that he or she is ready, willing, and able to accept the labor market conditions of an occupation for which he or she qualifies through training or experience.
Other pension plans impose restrictions upon the amount of employment which the claimant may accept without jeopardizing pension rights. For example, Social Security benefits are reduced for persons under the age of 70 if earnings are in excess of specified exempt amounts. Depending on the pension plan, the penalty for exceeding the restrictions may result in reduction or loss of the pension benefit.
When a claimant states that he or she will not accept employment that will interfere with his or her pension benefits, a realistic approach must be taken. It must be recognized that the claimant may not actually understand how wages will affect his or her pension benefit. While the Department should not attempt to explain the provisions of the Social Security law or any other pension plan, it is the interviewers responsibility to refer the claimant to the Social Security office or to the pension provider to secure such information before the individual’s eligibility is determined. In no instance should a claimant be disqualified under Section 1253(c) simply because he or she will not give up his or her pension benefit. The availability issue relates to restrictions imposed by the claimant on acceptable employment, not the receipt of the pension.
If a claimant has performed other work since retirement from an employer or union, the presumption of unavailability is weakened considerably. However, it does not conclusively establish attachment to a labor market. The nature and duration of the work performed since retirement and the manner in which it was obtained may have a bearing upon whether or not the work can be viewed as evidencing a re-entry to the labor market.
Some occupations, such as patrol members and state safety workers have mandatory retirement ages established by law. When a claimant is mandatorily retired, availability is dependent upon whether he or she remains available to a substantial field of employment for which he or she is fitted by training or experience. Since the labor market has, in effect, withdrawn from the individual, the claimant would be eligible under Section 1253(c) as long as he or she imposes no unreasonable restrictions on availability, such as performing work in the same occupation.
G. Self Employment
A claimant who is engaged in self-employment on a full-time basis during normal working hours for his or her occupation will generally not be considered available. The Attorney General discussed this issue in Opinion 50/76, and said:
"If the claimant has been engaged in self-employment during those hours of the week which are usually required of persons in his usual occupation, or one to which he is reasonably suited and no other evidence is introduced, he is not available. By his own act of self-employment he has made it impossible for him to accept employment from others."
Thus a claimant is presumed to be unavailable if he or she is engaged in self-employment during normal working hours. The claimant may overcome this presumption by introducing evidence that he or she is available. Such evidence may be in the form of the claimant’s statement that he or she is willing to abandon the self-employment or in the claimant’s efforts to seek work.
A claimant who states he or she is willing to abandon self-employment to enter full-time employment may be eligible. However, the credibility of such a statement must be well established. By setting him or herself up in business, the individual implies an intention to continue operations, particularly where there are such factors as investment of capital, execution of contracts for the sale or purchase of goods, or a hiring of assistants. With any of these factors present it would not be to the claimant’s advantage to leave the self-employment.
Occasionally a claimant will state he or she will hire someone else to do the work the claimant was previously performing. Normally an individual would not engage the service of someone else to do his or her self-employment, while the owner sought work elsewhere in the same occupation. For example, a claimant with a watch repair business would not be likely to hire a watch repairman, then obtain a watch repair job for himself. His statement that he would do so would carry little weight.
The availability for work of a person in business for him or herself is generally not governed by showing that the business is yielding a profit or operating at a loss. But, if the business is actually a failure, offers no prospect of profit, and the proprietor is merely "hanging on" for want of something better to do, the circumstances may indicate that the proprietor is available for work. This may be true even though the business has not formally been closed.
Likewise, where the claimant is engaged in self-employment of a stop-gap nature, in a business where there is no lease or other contractual obligation, the investment is small and the assets fluid, the claimant may be held available.
The fact that a claimant has a proprietary interest in a business, carried on exclusively through the services of others, does not negate the claimant’s availability for work. The nature and extent of the claimant’s activities in the business are the controlling factors.
In People v. George Nest, a 1942 appellate court case, the claimant left his regular employment in July. He thereafter made many attempts to secure new employment. In October he opened a clothing business, with his wife and one employee doing the work. The claimant spent a few hours during the day and most of each evening at the store helping with the trade when necessary. The claimant intended to continue the business permanently, but it was financially unsuccessful; and, in December the store was closed. The claimant contends that he was available for and seeking work during the entire period, and that his presence at the store was not necessary. In its decision, the Court stated:
"Again the People made no effort to prove that defendant was not "able to work" (or that the Commission so found), and the defendant’s testimony was to the contrary. However, the Attorney General as amicus curiae strongly urges that the evidence establishes that defendant was not "available for work." With this we cannot agree. The only evidence in the record on the subject other than the defendant’s part-time activities was his own testimony, which was somewhat corroborated, to the effect that during all that time (while self-employed) he continued his search for work elsewhere, that his presence at the store was not necessary, that he was physically able to work, that he registered for work with the California Department of Employment, and that he did not refuse an offer of suitable work. In the face of such testimony we find there was no substantial evidence to support the trial court’s implied finding that the defendant was not "available for work" during the period in question."
A significant point in the Nest case is that the Department introduced no evidence in rebuttal of the claimant’s evidence. There was nothing to indicate that the claimant’s efforts to find work were not bona fide, or to rebut the claimant’s contentions of availability.
The performance of work by a claimant for his or her own personal convenience, satisfaction, comfort or cost of living reduction, i.e., building a home, repairing an automobile, etc., is not deemed self-employment as it is not a business enterprise. However, if such activity substantially restricts the claimant’s availability, he or she may be determined ineligible.
There is no availability issue in those cases where the self-employment is only during those hours and on those days when the claimant would not be engaged in his usual employment.
The availability of a claimant involved in pre-self-employment activities is determined the same as any other "personal affairs" restriction, eligibility is based on the reason for the restriction.
A strong presumption of unavailability is raised when a claimant is engaged in activities preliminary to entering into self-employment. The extent of commitments entered into, the imminency of the beginning date of the self-employment, the degree of the claimant’s planned participation in the business, the financial outlay, and the time spent in negotiation all play a part in determining the credibility of a claimant’s statement that he or she is available for work. Although the presumption of unavailability is strong, it can be rebutted.
If a claimant states his or her primary interest is the self-employment venture and has removed him or herself from the labor market, a disqualification under Section 1253(c) is appropriate.
However, if the claimant states that he or she is available for temporary work in the interim, the claimant must establish that he or she has a compelling reason for the restriction. If good cause for the restriction on availability is not established and the claimant’s labor market has been materially reduced by the restriction, the claimant would be ineligible under Section 1253(c). See AA 5 for a complete discussion of "good cause."
The effect that elective coverage has on determining the claimant’s availability, is that it may allow the claimant to restrict to self-employment. Once it has been determined that the claimant may restrict to self-employment, his or her eligibility would be determined using the same standards and consideration as would be used for any restriction.
For example, there must be a labor market for the claimant in self-employment and he or she must have reasonable prospects for securing self-employment in this labor market and the claimant must conduct an active effort to secure self-employment in the labor market.
In P-B-176 the claimant was licensed by the State of California as a contractor. Under this license he contracted to build swimming pools and other cement or gunite work, frequently employing other persons. The claimant had elective coverage under Section 708 of the Code and met all of the requirements of elective coverage. Even after filing his claim, the claimant maintained an advertisement in the local phone book and periodically placed an advertisement in the local newspaper. In addition, he maintained a telephone answering service. He obtained leads through personal contacts and through friends. All of these actions were directed towards obtaining further contracts either to build swimming pools or to do cement or gunite work. In its decision, the Board stated:
"In a number of prior decisions we have held that the availability of a claimant for self-employment does not make the claimant "available for work" within the meaning of section 1253(c) of the code . . . . However, in those cases, the claimants had not been granted elective coverage under the code, whereas in the case before us, the claimant having been granted elective coverage, the services he performed as a contractor constituted employment under the code, and in accordance with our prior reasoning would also constitute "work" within the meaning of section 1253(c) of the code. Therefore, our prior decisions relating to the availability of self-employed individuals who have not elected coverage under the code are not in conflict with the conclusions we have reached in this case."
In explaining why they held that a claimant was available who restricted acceptable employment to one field, self-employment, the Board went on to say:
". . . we have consistently held that a claimant may restrict his availability to one occupational field for a reasonable period of time as long as good prospects exist for obtaining employment in that field . . . . On the basis of the claimant’s past work experience, it is our opinion that the claimant’s usual occupation is as a contractor in the construction of swimming pools. It is our further opinion that the claimant’s restriction to work in his usual occupation at the time he filed his claim for benefits was not unreasonable since it appears from the evidence that good prospects existed for obtaining such work within a reasonable period of time. Therefore, we hold that the claimant was available for work during the period involved in this appeal. We also hold that the claimant’s efforts to seek work, considering the customary methods of obtaining work in his usual occupation, were reasonably designed to result in his prompt re-employment in suitable work."
Whether or not the claimant under elective coverage may be deemed to be available for work will depend on the availability of a substantial field of employment and the absence of any unreasonable restrictions.