Miscellaneous MI 20 - The Waiting Period
The Waiting Period
The "waiting period" requirement is provided by Section 1253 of the Unemployment Insurance Code.
(d) He has been unemployed for a waiting period of one week as defined in Section 1254, unless this waiting period has been waived pursuant to Section 8571 of the Government Code."
Section 1254 describes the "waiting period" as follows:
(a) Unless it occurs within the benefit year which includes the week with respect to which he claims payment of unemployment compensation benefits, but this requirement shall not interrupt the payment of such benefits for consecutive weeks of unemployment. The week immediately preceding a benefit year, if part of one uninterrupted period of unemployment which continues into that benefit year shall be deemed, for the purposes of this section only, to be within such benefit year as well as within the preceding year.
(b) If unemployment compensation benefits have been paid with respect to that week.
(c) Unless the individual was eligible for unemployment compensation benefits with respect thereto in all respects, except for the requirements of subdivision td) of Section 1253 and Section 1281 (no benefit entitlement remaining)."
Each of the situations indicated above will be addressed below. In each case, presuppose that the claimant has filed a valid claim and is monetarily eligible for benefits.
A. The Waiting Period on New Claims
If the claimant is otherwise eligible for benefits, the waiting period will normally be the first week of the new claim. The key to whether or not a week will qualify as a waiting period is in the phrase, "otherwise eligible." If the claimant would have been eligible for payment in every way but for the waiting period requirement, then the waiting period may be taken for that week. If the claimant could not have been paid because of his or her failure to certify for benefits, excessive earnings, or a disqualification, for instance, then the claimant is not entitled to waiting period credit. Exceptions to this requirement are indicated in B., C., and D., below.
Example 1: The claimant quits his job and files a claim for benefits. The interviewer denies payment of benefits because the quit is determined to be without good cause. The claimant may not be given waiting period credit for the first week of the claim, or until such time as he certifies for a week in which he is otherwise eligible for benefits.
Example 2: The claimant files an appeal to the denial of benefits assessed in Example 1, above, and an administrative law judge determines that the quit was with good cause. The interviewer must now give waiting period credit for the first week of the claim if the claimant is otherwise eligible, since the assessed reason for ineligibility no longer exists.
Example 3: The claimant files a claim but returns to work immediately after, failing to certify for any weeks of unemployment after the filing of the claim. She returns to file an additional claim a month later. The first week for which the claimant certifies and is otherwise eligible after the additional claim is filed, must be the waiting period week.
Example 4: The claimant files a claim but is in receipt of wages from the last employer. The interviewer determines that the wages are both deductible from the weekly benefit amount and are in excess of the weekly benefit amount. The interviewer must then take the waiting period for the first week in which the claimant's wages are not excessive, provided the claimant is otherwise eligible.
But if the claimant has already been paid benefits for a week that should have been used as the waiting period week:
- Another eligible week must be substituted in the place of the week that was paid: or
- If there is no week certified for but unpaid, the benefits must be recouped. See FOM, Overpayments.
Example 5: The claimant files a claim, indicating that she quit her last employment. The interviewer determines that the quit was with good cause, takes the waiting period week as the first week of the claim, and pays the subsequent week. The employer files a timely appeal. The ALJ determines that the quit was without good cause, that the claimant is subject to disqualification. The waiting period credit must be canceled, the benefits recouped for all weeks paid after this separation, and the claim flagged to take another waiting period when the claimant is again otherwise eligible.
Example 6: The claimant files a claim and was ill the second, third, and fourth days of the first week of the claim. By applying a benefit reduction (BR), Section 1253.5, the claimant would be otherwise eligible for some benefits for that week, and that week may be used as the waiting period even though a portion of the week would be subject to reduction if the claimant were eligible for payment.
Example 7: The claimant files a claim on which he appears to be otherwise eligible for benefits. The claimant, however, has a prior false statement disqualification assessed one year before, on which he has three unserved weeks. Since the claimant is not otherwise eligible on the latest claim because of the hold-over false statement disqualification, the claimant must now serve the three weeks remaining on the prior false statement disqualification before a waiting period may be taken and benefits paid on the latest claim.
NOTE: If the claimant were not otherwise eligible on the latest claim, the claimant could not serve the false statement disqualification; that disqualification would remain in effect during the claimant's period of ineligibility on the latest claim. Once the claimant becomes otherwise eligible (except for the false statement disqualification remaining) on the latest claim, the claimant must first serve the remaining weeks of false statement before a waiting period may be taken, or benefits paid.
B. The Deferred Waiting Period on Transitional Claims
A transitional claim is a claim that follows immediately after a previous claim; there can be no break between weeks on the old claim and on the new claim. In other words, the weeks must be "in sequence," or "consecutive."
Unemployment Insurance Code, Section 1254 provides an exception to the general waiting period requirement indicated in A.; in the language of the Code, "(the waiting period requirement) shall not interrupt the payment of such benefits for consecutive weeks of unemployment." Note, however, that the claimant must still be otherwise eligible for the last week on the old claim, for this exception to apply.
Example 1: The claimant files a claim in March. She claims ten weeks and then returns to work. She works until three weeks before her old claim expires, and then files an additional claim, claiming and being paid the last three weeks on her old claim. When her old claim expires, she files a new claim immediately. She is entitled to a deferral of the waiting period on the new claim since she is entitled to payment for an uninterrupted sequence of weeks.
Example 2: The claimant files a claim in March. The claimant exhausts his claim during the 26th week after the filing of that initial claim. He files a new claim in March of the following year, immediately after the expiration of his old benefit year. He is not entitled to a deferred waiting period because he neither claimed nor was paid benefits for the last week on the prior claim, and there is no interruption in the "payment of . . . benefits for consecutive weeks of unemployment."
Example 3: The claimant files a claim in March. She was disqualified from benefits because she was not available for work. She lifts the disqualification two weeks before the old claim expires and serves the waiting period on that claim (the first week for which she was otherwise eligible), but then is denied benefits for the last week of the old claim because she had not looked for work. She is not entitled to a deferred waiting period on the new claim because there is an interruption in the payment of benefits.
C. Serving the Waiting Period in the Old Benefit Year
There are two situations that may arise which, taken together, provide the second exception to the general rule stated in A, above. Briefly summarized, they are as follows:
- The claimant who has an expiring claim on which he has not had a waiting period taken, may have a one-week waiting period serve for both benefit years.
- The claimant who has an expiring claim on which no benefits remain (benefits are exhausted), may take the waiting period for the new claim from the last week of the exhausted claim.
Example 1, Waiting Period in Both Benefit Years: The claimant files a claim in March and was denied benefits for voluntarily quitting his job. He purges the disqualification and reports to file an additional claim during the last week of his expiring claim. There is no other eligibility issue. The last week of the expiring claim is the waiting period on the old claim (the first week for which he is otherwise eligible), but it is also the waiting period on the new claim.
Example 2, the So-called "Section 1254" Claim: The so-called "Section 1254" claim is one in which the claimant uses the last week on an exhausted and expiring claim as the waiting period on a new claim. In this example, the claimant files her claim in March and exhausts her entitlement to benefits in October. The following March, a week before her old claim expires, she reports to file a new claim. The waiting period for the new claim may be taken from the last week of the old benefit year if she is otherwise eligible for that week.
NOTE: Although all waiting periods are taken under the authority of Section 1254 of the Code, the "Section 1254" claim indicated in this example refers specifically to the waiting period taken in a week prior to the beginning date of a new claim and while no benefits remain on the prior claim. Refer to FOM Completion, Section 534.
Example 3, Both "Section 1254" and Waiting Period Served in Both Benefit Years: The claimant files the old claim as a transitional claim in March, and was paid benefits until the claim was exhausted. There was no waiting period served on the old claim because it was transitional. The claimant reports to file a new claim a week before the old claim expires; if otherwise eligible, she may be given credit for the waiting period on the last week of the expiring transitional claim (for the expiring claim) and as a "Section 1254" week (on the new claim) since she has no more monetary entitlement to benefits on the old claim.
D. Waiver of the Waiting Period
In 1990, the Legislature amended Government Code Section 8571 to provide:
This Code section is designed to waive any waiting period requirement that might be provided for by DUA or any other emergency-type claims put into effect to mitigate the effects of an emergency situation. The emergency must be proclaimed by the Governor before this section takes effect. Since the waiting period is waived on a case-by-case basis, the interviewer will not use this section in the absence of instructions from Central Office.
Extended Benefit claims do not have waiting periods, and therefore there is no waiting period to assess or waiver to be considered.