Total and Partial Unemployment TPU 325
Odd-Job or Subsidiary Work
This general category deals with the employment status of claimants who are working at odd-jobs or subsidiary work. Whether they are employed or unemployed is determined by whether they are performing services or receiving wages, the same as in any other category.
Odd-job work is work performed for the main purpose of earning a livelihood. Such work can be either in employment or self-employment, and earnings from such work are deductible from the weekly benefit amount. For the most part, odd-job earnings are readily recognizable. Typical odd-jobs include such things as yard work, such as mowing lawns, trimming hedges, and general cleanup work, washing windows, and painting. A job in a skilled occupation can also be an odd-job, such as auto or radio repair work, or typing. Any service which is performed on a job basis of short duration can be considered an odd-job.
A claimant who is earning his/her livelihood by picking up odd-jobs is fully employed or part-totally employed depending on the number of hours worked and the amount of remuneration. If the claimant works less than full time and his/her earnings are not XE, he/she is part- totally employed; if he/she works full-time, he/she is totally employed. Such a claimant can not be partially unemployed since he/she has no "regular employer."
Any voluntary quit or misconduct discharge from an odd-job must be considered under Section 1256 just as in the case of a separation from any other job.
B. Subsidiary Work
Subsidiary work is incidental or extra work and usually is done while the claimant is working at his/her regular job, and which he/she continues to do when he/she is laid off from his/her regular job.
- Working for an "Organization"
"Organization" as used in this subsection usually means such entities as nonprofit fraternal organizations, charitable organizations, religious organizations and other similar organizations where the practice is to have one or two individuals "helping out" usually on a part-time basis."
A claimant who works for an organization performing services in exchange for remuneration - either monetary or benefits such as dues or use of the facilities - is employed by the organization for wages. Under section 1252, the claimant is "unemployed" if this service is less than full time and if the "wages" are not XE, the claimant is eligible under Section 1279.
This situation was considered by the Board in Benefit Decision 6299. The claimant was treasurer of a fraternal organization. He worked less than full time and his earnings were not XE. The Board held that the claimant was "unemployed" and eligible for reduced benefits and said:
". . . the amount received by the claimant . . . constituted compensation for personal services which the claimant rendered to the organization. . . Therefore, under section 1279 of the code, the claimant was entitled to benefits. . ."
- Voluntary Uncompensated Work
It is quite possible that a claimant may be performing a type of voluntary uncompensated work. If it is agreed at the outset that no wages will be payable for this service and the claimant is performing this service without a contract of hire, he/she is unemployed.
In Benefit Decision 5567, the Board considered the case of labor relations consultants who were removed from the union payroll since there was no longer a contract due to a strike. The claimants spent most, if not all, of their time in carrying out various uncompensated activities for the strike committee. The Board held that these claimants were not employed, and said:
"From the evidence we hold that the claimants were not employed. . . Any voluntary uncompensated union activities performed during this period did not constitute employment. . ."
Note: The claimants were held to be ineligible on other issues.
- Working on own Property
A claimant will often work on his own property. If he is not developing the property for profit, thus not self-employed, such a claimant is not employed since he is performing no service under a contract of hire and no wages are payable to him. This circumstance was considered by the Board in Benefit Decision 6061. The claimant was on a leave of absence and moved to a rural area where he purchased a home and five acres of olive trees. The claimant spent his time working around the new home. In stating that the claimant was not employed, the Board said:
" . . . he was not performing services for his employer and was not in receipt of wages. Therefore, he was unemployed . . . "
This same general problem was considered by the Board in Benefit Decision 6508. The claimant, an unemployed painter, sold his own property consisting of old mattresses, a wrecked automobile, and scrap. The Board said that the claimant was unemployed and stated:
". . . it appears that the claimant was not engaged in the business of buying and selling junk. . . Because of his unemployment, he found it necessary to secure funds by selling some of his own property. . . When a person is not engaged in business and has no stock in trade, the sale of his property results only in the liquidation of such assets and does not constitute income or wages. Hence, the money which he received from the sale of his own property did not constitute ‘wages’ within the meaning of that term under the Unemployment Insurance Code."
On the other hand when a claimant is engaged in developing his property for profit, he is self-employed. This problem came before the Board in Benefit Decision 6094. The claimant, a carpenter by occupation, acquired a home and five acres of ground in a rural area. He began the accumulation of a small dairy herd and was milking five cows and selling the milk to the local dairy firm. The Board held that the claimant was self-employed and his net earnings had to be deducted from his weekly benefit amount in accordance with Section 1279 of the Code. In so holding the Board said:
"With respect to the claimant’s eligibility for . . . benefits . . . we must first determine whether the income the claimant received from the sale of milk constituted wages within the meaning of the Unemployment Insurance Act.
In the instant case, the claimant received net income which was directly attributable to personal services performed in the production and sale of milk. The fact that these services were rendered in the operation of a ‘subsistence homestead’ does not mean that this net income may not be deemed ‘wages’. . . "
C. Picket Duty
Picket duty may or may not constitute employment depending on the conditions under which the claimant is paid for picket duty. If the amount of remuneration is dependent upon the performance of picket duty, the claimant is in receipt of wages for personal service. If the claimant is paid according to need, or some other criteria, and not for services, the remuneration is not wages.
The Board considered this problem in Benefit Decision 4526. The claimant was performing picket duty less than full time, but was receiving earnings which were XE. under the union plan, striking members were required to perform picket duty three hours per day, or be subject to a ten dollar per day fine. Unemployed members of the union were allowed to perform "double" picket duty on a six hour per day shift for which they were paid "strike benefits" of five dollars per day. These benefits were not payable unless the claimant performed the "double" picket duty. This the claimant did.
In holding that this claimant was in receipt of wages for personal services, the Board said:
"The claimant in the instant case in performing picket duty six hours per day, six days per week unquestionably was performing personal services for his union. In return for those services, and conditioned in fact and in amount upon the performance of those services, he received a stated remuneration in the amount of thirty-six dollars per week. There is no evidence that had he not picketed the required time, he would have nevertheless received a like amount, or, in fact, any sum at all . . .
Under the facts presented, we are of the opinion that the payments in question were not strike benefits within the definition of that term which we have adopted, but that such payments must be regarded as ‘remuneration for personal services’ and therefore wages as defined in Section 11 of the Act. Since we have concluded that the claimant was performing services for wages during the weeks involved herein, he was not ‘unemployed’ . . ."
If the claimant is working less than full time and receiving no remuneration, or remuneration which is not XE, he is totally unemployed or part-totally employed. To be considered wages, the remuneration must be payable for the performance of personal services.
In Benefit Decision 5284, the Board considered the case of a claimant who was paid strike benefits by his union. The claimant did picket duty fifteen hours or less per week. The claimant received sums of money from his union ranging from $10 to $25. The claimant testified that the amounts received were not dependent on the number of hours he walked the picket line, and that in fact, he had received as much as $25 during weeks in which he walked the picket line less than fifteen hours.
The Board held that the claimant was not employed since he was not in receipt of wages, and said:
". . . sums paid to the claimants by the union were awarded upon the basis of need and not for services rendered as a picket.
. . . we are convinced . . . that the payments in question were ‘strike benefits’ not wages or remuneration for personal services. Consequently, the claimant was an ‘unemployed’ individual . . ."
(For a discussion of the distinction between wages for picket duty and "strike benefits," see Section TPU 460.65 and 460.65(FF).)