Able and Available AA 500
Wages And Time
Both the State of California and the Federal Government have minimum wage statutes. State requirements as to the wages which must be paid are set forth in the Orders of the Industrial Welfare Commission. Copies of these orders should be available in each field office as a guide to determining suitability of work. Information regarding specific complex cases may be obtained from field offices of the Division of Industrial Welfare, which are located in major cities throughout the State.
The general federal minimum wage laws are provided in the Fair Labor Standards Act which is administered by the Wage and Hour Division of the U.S. Department of Labor. This act sets minimum wages for persons employed in interstate commerce or in manufacturing or processing of articles which are distributed in other states, with certain exceptions. Additional information regarding the federal minimum wage may be obtained from the nearest office of the Wage and Hour Division of the U.S. Department of Labor.
Suitable work, within the meaning of Section 1258 of the Unemp. Ins. Code, is work in the claimant’s usual occupation, or work which he or she is reasonably qualified by prior training or experience to perform. Under Section 1259(b), however, such work is not suitable if the offered wages are substantially less favorable to the claimant than those prevailing for similar work in the locality. "Substantially less favorable" has been interpreted as being more than 10 percent less than the prevailing wage. Any work which pays less than the minimum wage set by law for such work is considered unsuitable.
In P-B-173, the Board considered the claimant’s qualifications, experience, and prior earnings in relation to her wage demand. The claimant, an executive secretary with many years experience, restricted to a wage near the top of the prevailing range for secretaries in the Los Angeles area. In holding that her restriction did not render her unavailable, the Board said:
". . . The evidence clearly establishes 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 in working for the top corporate officers of different companies . . . ."
A like conclusion was reached by the Board in P-B-204. The claimant was last employed as a legal secretary at a salary very near the top of the local labor market wage range. She restricted acceptable employment to a wage near the top of the wage range, but, less than she was earning on her last job. The claimant refused a referral to prospective employment on the ground that the offered wage was insufficient. She was disqualified on the basis that she had failed to apply for suitable work and that she was not available for work. The Board reversed the Department’s decision and stated:
"It is our further opinion that the claimant’s restriction on acceptable employment . . . was not unreasonable in view of her qualifications and prior experience, and that such wage was not in excess of the prevailing rates paid by employers . . . . As far as the record discloses, the claimant has imposed no other unreasonable restrictions or limitations on acceptable work and therefore must be considered available for work and eligible for benefits . . . ."
These decisions show the importance of determining the specific kind of work the claimant is qualified to do, particularly where the occupation has a wide wage range. For example, within the wage range for stenographers, various pay levels may represent salaries commensurate with the degree of specialization, such as medical or legal stenographer.
Consequently, when considering a claimant’s wage demands, the demands must be measured against the prevailing wage for work suitable for the claimant in the existing labor market area.
When it appears the claimant is placing a restriction upon the wages he or she will accept, it is essential to establish whether the claimant is actually restricting to that wage or merely expressing a preference for a certain wage.
2. Preference or Restriction
Claimants frequently quote either the last salary received or the highest wage they previously earned as an acceptable wage when filing a claim, completing a work application, or during an eligibility review. Such wages may have been earned in a different labor market area, an occupation which the claimant can no longer perform, a seasonal occupation, etc. Upon investigation, however, many of these "wage demands" turn out to be merely what the claimant sometimes earns, what he or she thinks employers are paying, or what the individual hopes to earn in the most ideal employment. In many instances, the claimant is not only willing to accept a lesser wage but may have already applied for lower paying jobs.
In any case, before a disqualification may be imposed on the basis of a wage restriction, the claimant must be made aware of what the prevailing wage actually is and given an opportunity to adjust any unreasonable restriction.
In P-B-182, the claimant was held ineligible under Section 1253(c) on the basis that her wage "restriction" was above prevailing for the area. The claimant was seeking sales work while on layoff from a food processing plant. During the hearing the claimant indicated that she did not actually know what the wage scales were for sales work, however, she stated she would accept "what they usually pay." In holding the claimant eligible, the Board stated:
". . . In either an interview before a departmental representative or a hearing before a referee where the question of wage restrictions is involved, we believe it is essential to the preservation of the rights of the claimant that the claimant be made aware of the wage scale in existence at the particular locality before a categorical answer is elicited as to the wage scale which is acceptable to him. If the claimant is required to state what wage scale he will accept before he is informed as to the wage scale prevailing in the locality, he is required to speculate . . . . It is the opinion of this board that such interview or hearing does not fully meet the requirements of affording the essential protection to which a claimant is entitled."
P-B-182 showed the importance of assuring that the claimant is fully aware of the prevailing wage scale, as well as, clearly establishing the lowest wage acceptable to the claimant.
If a claimant refuses to adjust an excessive wage demand after being informed of the prevailing wage scale for the particular labor market area, the wage demand becomes a restriction on acceptable employment. If that restriction results in a material reduction of the claimant’s work opportunities, he or she may be considered unavailable for work.
3. Prevailing Wage
The responsibility of establishing what constitutes the prevailing wage for suitable work for the claimant in a particular locality, and determining how the claimant’s wage demands affect his or her possibilities of obtaining work, rests with the Department.
It is, therefore, essential that interviewers clearly understand the concept of establishing a prevailing wage applicable to a specific claimant. This involves fact finding as to the actual wages received by a majority of the workers in the particular locality for work similar to the claimant’s usual occupation, or for work which the claimant is fitted by training or experience to perform. Such findings must be based on current factual data developed for the specific labor market area. The facts and the source of the facts must be documented.
P-B-320 discussed the importance of such factual basis for a finding as to the prevailing wage. In this case, the Department representative testified as to the prevailing wage for bookkeepers in the locality but offered no supporting evidence for this conclusion. The Board said:
". . . We have in prior cases accorded considerable weight to such testimony from representatives of the employment service, because of their specialized knowledge of the employment conditions in a particular locality are in a position to state with a reasonable degree of accuracy whether the hours, wages, or other conditions of work are substantially less favorable to the individual than those prevailing for similar work in a locality. However, in this case, there is no evidence in the record to establish the basis on which . . . the representative determined what constituted the prevailing rate of pay for full-time qualified bookkeepers in the locality . . . ." (Emphasis added.)
The prevailing wage for any occupation can be obtained from labor market surveys and reports issued by the Department, Chamber of Commerce, Bureau of Labor Statistics, city, county, state, or any combination thereof. Wage range information for a specific labor market can also be obtained by contacting local employers or unions.
Because of the many variables with any given occupation, the prevailing wage seldom constitutes a single figure but rather ranges from a low to a high. In addition, the prevailing wage may vary from locality to locality and may be subject to seasonal variations within a given locality. Consequently, in comparing a claimant’s wage demands with wage ranges reported in surveys, it is frequently impossible to depend on job titles alone. The interviewer must determine that the job duties, skill levels, and experience requirements of the survey job represent work suitable for the specific claimant, in view of his or her qualifications, and then determine the labor market conditions of the area in which the claimant is offering his or her services.
4. Union Wage
A claimant may restrict to union wages as long as all of the following conditions are met:
- The claimant is a member in good standing of the union whose standard of wages he or she demands.
- The union rules prohibit members from working for wages below union standards, and failure to follow these rules would result in disciplinary action being taken against the union member.
- The union of which the claimant is a member has agreements affecting a substantial portion of the jobs in the locality where the claimant is seeking work.
However, should the claimant move to an area where the jobs are not covered by union agreements, he or she must then be willing to accept the local labor market conditions including wage scale. In such a situation, the claimant’s failure to accept local labor market conditions would result in disqualification if his or her work opportunities were materially reduced by the restriction.
The eligibility of a claimant who imposes restrictions on acceptable work based on time factors, is determined the same as any other claimant who has placed restrictions on acceptable employment. In most cases, the reason for the restriction is the basis for the disqualification and the appropriate section of the BDG should be consulted, i.e., attending school, transportation problems, child care, etc.
1. Preference or Restriction
When examining restrictions imposed by the claimant, the distinction must be made between preference and restriction. A claimant’s limitation should not be considered as a true restriction unless all of the following conditions have been met:
- The claimant has been advised that the limitation is considered to be a restriction by the Department.
- The claimant has been made aware of the local labor market conditions.
- The claimant will not modify the restriction.
2. Hours, Days, and Shifts
When it appears the claimant is imposing a restriction on specific hours, days, or shifts of work, it is necessary to determine the nature of the restriction, if the restriction is reasonable, and its effect upon the claimant’s labor market.
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.
In Sanchez v. CUIAB, the claimant had worked for nine years as a restaurant waitress and manager; she had also performed some work in a factory. Although her normal workweek included Saturdays and Sundays, she had worked Saturdays but not Sundays on her most recent job. When she applied for benefits, she stated that she could not work either Saturdays or Sundays because of a lack of child care for her four-year-old child. The Department held her ineligible even though she was willing to accept factory work in addition to her usual occupation. The Supreme Court reversed prior administrative and judicial decisions, and remanded the case to examine the claimant’s existing field of employment within her restriction. The Court specifically found that the discharge of parental duties toward minor children to be "good cause" for restricting availability where there exist no reasonable alternatives. In its decision, the Court defined availability for work as follows:
"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 also held that, after the claimant has sustained the burden of proof that he or she is available for all suitable work and has no alternatives by which to alleviate the restriction, the burden of proving the claimant’s lack of attachment to a substantial field of employment rests with the Department .
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.
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.
When the claimant’s restriction has little or no effect on his or her availability because there is no conflict with local labor market conditions, there is no eligibility issue.
3. Temporary and Seasonal Work Restrictions
Some claimants may be willing to accept only temporary work, or may refuse to consider temporary work. Either circumstance raises an issue of availability.
When a claimant restricts to temporary work pending the start of a new job or while on layoff from the regular employer, and the return to work date is within a reasonable period of time, the claimant’s restriction would be considered compelling.
However, if the claimant restricts to work on temporary jobs through a temporary help agency because he or she enjoys the variety of working for different employers, the restriction would not be considered compelling.
The claimant’s reasons for excluding temporary work must be examined before a determination may be made in regard to availability. If the temporary work would genuinely prevent the claimant from securing full-time permanent work, the claimant may have good cause for his or her restriction.
A self-imposed unreasonable restriction may be acceptable depending on the portion of the labor market eliminated. If a substantial portion of the labor market is eliminated by the unreasonable restriction, the claimant would be considered unavailable for work.
The following discussion covers restrictions placed on off-season work. See BDG AA 195 for a discussion regarding restriction to seasonal employment.
In order to be considered available for work, a claimant who restricts off-season availability to temporary employment must:
- Show that he or she is available for all suitable work which he or she has no good cause to refuse during the off-season.
- Remain available to a substantial field of employment during the off-season.
The Board has repeatedly stated that a pattern of exclusively seasonal employment raises a presumption of unavailability during the off-season.
In Garcia v. California Employment Stabilization Commission, a 1945 Appellate Court decision, the Court considered the case of a unemployed seasonal worker. The claimant had lived in Riverbank for eleven years. During the latter part of that time she was seasonally employed from April to November at a cannery about five miles from her home. Transportation to and from her work was on a share-the-ride basis with neighbors. After the end of the canning season, the claimant registered for benefits. Her registration certificate shows that she registered for cannery or bottle labeling work only. The claimant refused an offer of a referral to a job in a cannery located ten miles from her home because she had no means of transportation. The claimant was disqualified because she was unavailable for work. The Court remanded the case to the Board for a further finding of facts. However, in discussing the nature of seasonal employment, the Court stated:
"From the quoted portion of section (1253) we find that an unemployed individual is eligible to receive benefits only if "able to work and available for work" while "suitable employment" as previously mentioned is defined in section (1257) as work in the "individual’s usual occupation or for which he is reasonably fitted." . . . These provisions suggest that a seasonal worker who cannot find employment in his usual occupation during the off season should endeavor to seek other work for which he is reasonably fitted."
If a claimant has been employed for only one or two seasons and the rights the individual has accrued by reason of this relatively brief employment are not substantial, the individual cannot restrict to temporary employment during the off-season if a substantial portion of the work for which he or she is qualified is permanent work.
However, a seasonal worker who regularly works for one employer or in one industry AND who has a definite prospect of recall to that work, may restrict acceptable employment to work which will permit him or her to return to the regular employer when the season begins. The prospect of recall by the regular employer must be certain, as normally occurs when union contract or employer policy preserves a claimant’s right to rehire on a seniority basis.