DAR File No. 27471

Workforce Services, Workforce Information and Payment Services

R994-403

Claim for Benefits

NOTICE OF PROPOSED RULE

DAR File No.: 27471
Filed: 10/01/2004, 07:19
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This proposed repeal and reenactment updates the rule to conform to current practices and the changes in technology and the law.

Summary of the rule or change:

The Department is in the process of rewriting all of its rules to insure they conform to current practice and law. The Department determined to do a repeal and reenactment of this rule because some sections and provisions in the rule were moved to a different rule, most of the rule numbers changed, and some of the sections referred to antiquated practices before the advent of telephone claims and computers. Crossing out and underlining would have been too confusing and complicated. It is also hoped that this rewrite is easier to understand. While some sections have been moved to other rules filed for this issue, there are no substantive changes to procedure or eligibility contemplated by this rule change. (DAR NOTE: The other rules filed for this issue are: the proposed repeal and reenactment of Rule R994-401 under DAR No. 27469; the proposed amendment to Section R994-201-101 under DAR No. 27470; the proposed amendment of Rule R994-405 under DAR No. 27472; and the proposed amendment to Section R994-406-505 under DAR No. 27473.)

State statutory or constitutional authorization for this rule:

Title 35A, Chapter 103; and Title 35A, Chapter 403

Anticipated cost or savings to:

the state budget:

There will be no costs or savings to the State budget because this is a federally-funded program and there are no substantive changes being made to this rule. These changes reflect current Department practices.

local governments:

In addition to the reasons stated in relation to the State budget, there will be no costs or savings to local government as this is a federally-funded, state-wide program that does not affect local government.

other persons:

There will be no costs or savings to any person for the reasons stated in relation to the State budget. This amendment does not make any substantive changes to current law or rule.

Compliance costs for affected persons:

There will be no compliance costs to any person for the reasons stated in relation to the State budget. This amendment does not make any substantive changes to current law or rule.

Comments by the department head on the fiscal impact the rule may have on businesses:

This proposed repeal and reenactment will have no fiscal impact on business as there are no compliance costs and the rule merely reflects current statutory authority.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/15/2004

This rule may become effective on:

11/16/2004

Authorized by:

Raylene G. Ireland, Executive Director

RULE TEXT

R994. Workforce Services, Workforce Information and Payment Services.

R994-403. Claim for Benefits.

[R994-403-101a. Timely Filing - General Definition.

The following rules define the procedures for filing new and continued claims or for reopening claims. These rules also determine how the effective date of the new or reopened claim is established as well as circumstances under which a claim may be canceled.

R994-403-102a. Filing a New Claim.

(1) Effective Date of a New Claim.

When a claimant believes he may be entitled to unemployment insurance benefits, it is his responsibility to file a claim during the week he desires to claim the benefits, not after the week has passed. Backdating prior to the week of filing will be allowed only if good cause can be established in accordance with Section R994-403-107a, and Subsections 35A-4-403(1)(a) and 35A-4-406(1)(a). The effective date of the new claim establishes the period of time during which wages can be used for determining the monetary entitlement, and in the case of law changes, the laws under which eligibility is determined. A claim for benefits or waiting week credit shall be filed as follows:

(a) An individual must contact the claim center to file a claim for benefits.

(b) The effective date of the claim for benefits shall be the Sunday immediately preceding the date the claim is filed, provided that during that week the claimant is not entitled to earnings in excess of his weekly benefit amount. An exception to this rule may be made if the claimant can show it is more advantageous to have his claim effective the week in which he reported, provided he did not work full-time hours during that week.

(2) Filing a New Claim by Mail.

The Department may allow registration for work and claim filing by mail. If an individual completes and mails the forms as instructed, no later than twelve days following the date upon which they were mailed, as established by a postmark, his claim shall be effective the Sunday immediately preceding the date the request was made. If he fails to complete and mail his claim forms within the period prescribed above, his claim shall be effective on the Sunday immediately preceding the date the forms are received by the Department, provided, however, if good cause is established for the delay in accordance with Section R994-403-107a, the Department may permit an effective date as provided above.

(3) Social Security Number and Proof of Identity.

Unemployment insurance claims are identified by a claimant's social security number. A claimant filing a new claim for benefits shall be required to provide his social security number and proof of identity. Acceptable proof of identity will generally not be established without two reliable forms of identification. Failure to provide sufficient proof of identity or a social security number within three weeks of the effective date of the claim shall result in a denial of benefits in accordance with Subsection 35A-4-403(1)(e) of the Act.

R994-403-103a. Cancellation of Claim.

(1) Once a weekly claim has been filed and a monetary determination has been issued, the claim is considered to have been established even if no payment has been made or waiting week credit granted. The claim then remains established for 52 weeks during which time another regular claim may not be filed against the state of Utah. However, a claim may be canceled if the claimant submits a written request to cancel the claim and he can show one of the following circumstances:

(a) no weekly claims have been filed;

(b) cancellation is requested prior to the issuance of the monetary determination;

(c) the request is made within the same time period permitted for an appeal of the monetary determination and the claimant either returns any warrants that have been issued or he makes full repayment of benefits paid;

(d) the claimant had earnings equal to or greater than his weekly benefit amount in the form of severance or vacation payments applicable to all weeks for which claims were filed;

(e) the claimant returned to work and reported earnings equal to or greater than his weekly benefit amount applicable to all weeks for which claims were filed;

(f) the claimant meets the requirements for filing a new claim under the Worker's Compensation provision of Section 35A-4-404 or meets the eligibility requirements for filing a new claim following a disqualification due to a strike in accordance with the requalifying provisions of Subsection 35A-4-405(4)(c);

(g) the claimant meets the requirements for cancellation established under the provisions for combined wage claims; or

(h) the claimant has filed a UCX claim, unemployment compensation for ex-military, and it is determined he does not have wage credits under Title 5, chapter 85, U.S. Code.

R994-403-103f. Monetary Eligibility Requirements- General Definition.

Generally, claimants must have earned base period wages of 1 and 1/2 times the high quarter wages plus a minimum dollar amount. If the claimant is not monetarily eligible under the 1 and 1/2 times requirement, but meets the monetary base period wage requirement as defined in Section 35A-4-202 of the Act, the claimant may establish that he was paid wages for the insured work in at least 20 weeks during the base period with earnings of not less than 5 percent of the monetary base period requirement for each week. The requirement in the Act that the claimant show work and earnings in 20 weeks is only met if the claimant was paid wages as defined by the definition of "wages paid" in Section R994-401-204.

(1) Timeliness.

To preserve the original effective date of the claim, the claimant will have 10 days from the date of the notice of "Determination of Benefit Amount" plus five days if the determination is mailed, to make a written request for revision and to show that he has 1 and 1/2 times the base period wages or meets the alternative requirement of monetary eligibility consistent with Section R994-401-204. If a timely protest is not made, the claimant must establish good cause for failing to request a monetary determination recomputation within these time limitations to have the monetary determination recomputed or establish eligibility for a recomputation as provided by R994-406-305. If good cause cannot be shown, the claim will become effective on the Sunday of the week in which a new claim is filed and the claimant is able to show eligibility under the 20 week standard.

(2) Monetary Base Period.

The monetary base period wage is established by the Department for each calendar year. The Department publishes that amount in the Benefit Schedule which is given to claimants when they file an initial claim. The calculation is made in accordance with Section 35A-4-202 of the Act. The dollar amount for each of the 20 weeks required to establish eligibility will be determined by the calendar year in which the initial claim is filed.

(3) Claimant Responsibility.

When the claimant is determined monetarily ineligible under the 1 and 1/2 times standard, it becomes the claimant's responsibility to show that he has 20 weeks of covered employment which meet the minimum dollar amount.

(4) Acceptable Proof of 20 Weeks of Covered Employment.

Acceptable proof shall include:

(a) Appropriately dated check stubs issued by the employer;

(b) A written statement from the employer showing dates of employment and the amount of earnings for each week;

(c) Time cards;

(d) Canceled payroll checks; or

(e) Personal or business records kept in the normal course of employment that would substantiate work and earnings.

R994-403-104a. Closing a Claim.

(1) A claim for benefits may be considered "closed" when a claimant:

(a) reports he is permanently back to work,

(b) is denied benefits for more than one week,

(c) discontinues filing weekly claims,

(d) reports relocation to an area served by a different local office,

(e) exhausts his rights under a specific benefit program,

(f) reports four consecutive weeks of earnings in excess of his weekly benefit amount, or

(g) has been notified to provide information and fails to report as instructed.

R994-403-105a. Reopening a Claim.

(1) A claimant may reopen his claim any time during the 52-week period after first filing, by following procedures outlined in Section R994-403-102a. The effective date of the reopened claim will be the Sunday immediately preceding the date the claimant reports unless good cause is established for failure to report during a prior week in accordance with Section R994-403-107a.

(2) Proof of identity shall be required when reopening a claim as prescribed under Subsection R994-403-102a(3).

R994-403-106a. Filing Weekly Claims.

(1) The claimant is solely responsible for filing weekly claims. To maintain continuing eligibility for benefits an individual shall file weekly claims in person, by mail or by telephone in accordance with instructions from the Department.

(2) Time Limit for Filing Telephone Claims.

Each claim should be filed as soon as possible after the Saturday week ending date. The Department will permit a period of 20 days after the week ending date to file a timely claim by telephone. A telephone claim filed 21 or more calendar days after the week ending date shall be denied unless good cause for late filing is established in accordance with Section R994-403-107a.

(3) Time Limit for Filing Bi-Weekly Claim Cards.

If filing by mail or in person through a local office, each week of the bi-weekly claim card shall be considered separately to determine if it has been filed timely. The card must be received by the Department within 20 days from the week ending date of week one in order for week one to be considered timely. Both week one and week two will be considered late if the bi-weekly card is received by the Department 21 or more calendar days after the week ending date for week two.

(4) When circumstances prevent the preparation of the bi-weekly claim card by the Department prior to the week ending date of week two, the print date of the claim card, rather than the week ending date is then reviewed to determine timeliness. Both week one and week two shall be considered late if received 21 or more calendar days after the print date.

R994-403-107a. Good Cause for Late Filing.

(1) A claimant has the duty to establish, by competent evidence, that good cause existed for not claiming benefits as prescribed. The Department has a responsibility to NOT apply excessive harshness or technicality in determining good cause. Some reasons for the time limitations on filing claims with respect to the claims filing process are:

(a) to pay the first claim in a prompt manner consistent with federal payment standards,

(b) to pay benefits in a sequential manner,

(c) to monitor the claim for potential violations of eligibility requirements, or

(d) to allow a claimant to correctly respond to the questions on his claim with respect to the week for which the claim is filed.

(2) Good cause for late filing will generally be established by evidence a claimant was prevented from filing a timely claim. The proof of inability to properly file may establish unavailability for work. Some examples that may establish good cause for late filing but may raise an availability issue are:

(a) a crisis of several days duration that interrupts the normal routine during the time the claim should be filed,

(b) hospitalization or incarceration,

(c) coercion or intimidation exercised by the employer to prevent the prompt filing of a claim, and

(d) failure of the Department to discharge its responsibilities promptly in connection with a claim.

(3) Some examples of reasons for late filing that may NOT be considered good cause are:

(a) failure to affix correct postage or otherwise properly mail the claim, including placing for mailing somewhere other than in an approved Postal Service mail box or mail drop,

(b) failure to mail the claim far enough in advance to reasonably insure delivery to the Department within the allowable time frame,

(c) delegation of the mailing or filing responsibility to another person,

(d) procrastination for non-compelling reasons,

(e) misplacing the claim, the claim filing telephone number or Personal Identification Number (PIN),

(f) vacation,

(g) temporary or minor illness,

(h) transportation problems,

(i) failure to notify the Department of the proper name, address or an address change, and

(j) failure to properly label a personal mail box to insure mail delivery, and

(k) reliance upon inaccurate advice from friends, relatives, other claimants or similar sources as the Department is, and shall remain, the only acceptable source of information about unemployment insurance.

R994-403-108a. Time Limitation on Backdating.

No claim may be backdated if filed over 65 weeks following the date of separation.

R994-403-109b. Registration, Workshops, Deferrals -General Definition.

(1) A claimant shall register for work at an Employment Center unless, at the discretion of the Department, registration is waived or deferred. Thereafter, he must continue to report, as required by the Department.

(2) Failure, without good cause, to register for work or to report to the Department, when required, may result in a denial of benefits. Good cause for failure to register for work or to report to the Department when required will be established by evidence that the claimant was prevented from registering or reporting. The proof of inability to register or report may raise an availability issue.

R994-403-110b. Job Search Workshops and Conferences.

The Department may require attendance at special conferences or workshops designed to assist claimants with job seeking skills, developing resumes, telephone usage, personal interviewing techniques, and other, necessary skills. Failure, without good cause, to participate in a Job Search Workshop or other required conference may result in a denial of benefits in accordance with Section R994-403-109b. The denial will begin with the week the claimant failed to attend the workshop or conference and ends with the week he contacts the Department and schedules an appointment to attend the next available session.

R994-403-111b. Deferral of Work Application.

(1) The Department may elect to defer the work registration requirement. If a claimant is placed in a deferred status, he is not required to actively seek work, but must meet all other availability requirements of the Act. Employers shall be notified when former employees filing for benefits are not required to seek work with other employers. Deferrals are generally limited to the following circumstances:

(a) Labor Disputes.

If a claimant is unemployed due to a labor dispute, he may have his work application deferred while an eligibility determination under Subsection 35A-4-405(4) is pending. If benefits are allowed, he must register for work immediately.

(b) Union Attachment.

If a claimant is a union member in good standing, is on the out of work list or otherwise eligible for referral to union work and has received substantially all his base period employment through the union, he may be eligible for a deferral. If a deferral is granted to a union member, it shall not be extended beyond the mid-point of the claim unless the claimant can demonstrate he has a reasonable expectation of obtaining employment through the union.

(c) Employer Attachment.

If a claimant is attached to a regular employer with a definite date of recall, he may have his work registration deferred to the date of recall. However, the deferral should not extend beyond the mid-point of a claim or for more than ten weeks.

(d) Three Week Deferral.

A claimant who obtains an offer of full-time work to begin on a definite date within three weeks, shall be deferred for that period.

(e) Seasonal.

A claimant may be deferred when, due to seasonal factors, work is not available in his established, base period occupation, if other suitable work is not available in the area.

R994-403-112b. Four Week Delayed Work Registration.

A new claimant may be given the option, at the discretion of the Department, to delay completion of the department's work application until the fifth consecutive week of filing. However, claimants are required to actively seek work each week. A claimant who wishes to complete a work application when filing a new claim may do so. A claimant whose work application is not otherwise deferred, must register for work during the fifth week of eligibility.

R994-403-113b. Not Eligible for Deferral.

There are specific groups of claimants who may not have their work applications deferred. Claimants who are filing for special federal benefits that require a work search are not eligible for deferrals unless Department approval for training has been granted.

R994-403-114b. Profiled Claimants.

(1) Individuals who are likely to exhaust unemployment benefits will be identified through a profiling system and required to participate in reemployment services. These services may include job search workshops, job placement services, counseling, testing, and assessment.

(2) To be excused from reemployment services, the claimant must show:

(a) that he has completed equivalent services within the twelve month period immediately preceding the date he is scheduled for reemployment services; or

(b) that he had justifiable cause for not participating in reemployment services. Justifiable cause is established if the claimant's failure to participate is reasonable for the circumstance or beyond his control.

(3) Failure to participate in reemployment services without justifiable cause will result in a denial of benefits beginning with the week the claimant refuses or fails to attend scheduled services and continuing until the week he contacts the Employment Center to arrange participation in the required reemployment service.

(4) A claimant who fails to participate in reemployment services will have his availability for work evaluated under the rules of Subsection 35A-4-403(1)(c).

R994-403-115c. Able and Available - General Definition.

The primary obligation of the claimant is to become reemployed. A claimant may meet all of the other criteria established for eligibility but, if he cannot demonstrate ability, availability, and an active good faith effort to obtain work, benefits cannot be allowed. A principal requirement of the Employment Security Act is that the claimant must be attached to the labor force. This means the claimant can have no encumbrances to immediate acceptance of full-time work. He must be actively engaged in efforts to obtain employment. He must have the necessary means to become employed including tools, transportation, licenses, and child care. He must desire to obtain employment. The main reason for his continued unemployment must be the lack of suitable job opportunities. There is a presumption of non-availability when an individual voluntarily leaves work, has physical or mental restrictions, or is otherwise responsible for becoming or remaining unemployed. The only exception to the requirement to be available for, actively seeking and able to accept work is established under Subsections 35A-4-403(2)(a)and 35A-4-403(2)(b) for Department Approval, which defines availability for those in approved schooling in other terms.

R994-403-116c. Able.

(1) Physical or Mental Impairments.

The claimant has the responsibility to show that he has no physical or mental impairments which would preclude immediate acceptance of full-time work. A recent history of employment is one indication of a claimant's ability to work. If there has been a change in the claimant's physical or mental capacity since his last employment, there is a presumption of inability to work which must be overcome by competent evidence that there is some reasonable likelihood that jobs exist which the claimant is capable of performing before unemployment insurance benefits can be allowed. Pregnancy is treated the same as other physical limitations.

(a) Past Work History.

If an individual earned his base period wages while working with a physical or mental impairment, and is otherwise eligible, and is willing to accept any work within his ability and is actively seeking that work, his unemployment is due to lack of employment opportunities and not due to inability to work. Under these circumstances, benefits should not be denied solely on the basis of the physical or mental disability.

(b) Medical Verification.

When an individual has a physical or mental impairment, medical information from a health care specialist is one form of evidence used to determine the claimant's ability to work. The competent specialist's recommendations are presumed to be accurate with regard to the claimant's ability to work; however, the claimant may overcome the opinions of specialists by showing other evidence that the impairment does not interfere with ability to work. If the claimant is not currently under professional care, verification may not be required.

(2) Temporary Disability.

A claimant's ability to work may be affected any time there is an illness or injury that is expected to continue for a short period of time.

(a) Medical Absence from Work.

A claimant is not eligible for benefits if he is not able to work at his regular job due to a temporary disability provided the employer has agreed to allow him to return to his job when he is able to do the work. In this case, the claimant's unemployment is due to an inability to work rather than lack of available work. The claimant is not eligible for benefits even if there is other work he is capable of performing with his disability.

(b) No Employer Attachment.

If the claimant has been separated from employment with no expectation of being allowed to return when he is again able to work, or his temporary disability occurred after he became unemployed, benefits may be allowed even though he cannot work in his regular occupation provided he can show there is work he is capable of performing, and for which he reasonably could be hired. The claimant must also meet other eligibility requirements including making an active work search.

(3) Hospitalization.

While a claimant is hospitalized, he is not able to work unless the hospitalization is on an out-patient or residency basis and there is professional verification that the claimant is not restricted from immediately working full-time. Immediately following hospitalization, a rebuttable presumption of physical inability continues to exist for the period of time needed for recuperation or adjustment.

(4) Workers' Compensation.

(a) Compensation for Lost Wages.

A "Temporary Total" award of workers' compensation is made initially to replace lost wages based on a conclusion that the individual is unable to work. If the claimant has been granted an award based on his contention or medical verification that he is unable to work, eligibility for unemployment insurance benefits cannot be established. When the claimant is no longer entitled to a Temporary Total award he must file his unemployment insurance claim within 90 days after he is released for work to establish a claim using wage credits earned prior to the injury. Section 35A-4-404 details claimant eligibility for benefits after receiving workers' compensation or occupational disease compensation. He will not be considered able to work without a medical release or other evidence that he is able to perform full-time work.

(b) Subsequent Awards.

The worker may subsequently receive a "permanent partial" or "permanent total" award under the state workers' compensation laws. A claimant may be eligible for unemployment insurance benefits while receiving an award if he can show he is able and available to perform any full-time work which he reasonably could expect to obtain even though he has a physical or mental impairment. However, the receipt of such an award may raise a presumption of non-availability, which is determined consistent with the preceding provisions dealing with physical or mental impairments. Disability payments are not reportable as wages under Subsection 35A-4-401(3).

R994-403-117c. Available.

(1) General Requirement.

The primary obligation of a claimant is to be available for full-time work. Any restrictions on availability, whether self-imposed or beyond the control of the claimant, lessen his opportunities to obtain or accept suitable work. When a claimant was recently employed under restrictive conditions and is unemployed for some other reason, the claimant shall initially be considered available without regard to that restriction. However, a claimant cannot continue to restrict his availability to certain hours, types of work, rate of pay, or conditions not usual or customary in his occupation, trade, or industry and still maintain his eligibility for benefits. The claimant must be available for any work which meets the suitable work test as defined in Subsection 35A-4-405(3) and Section R994-405-309.

(a) Requirement for Modification of Restrictions.

The number of weeks permitted before restrictions, beyond what is customary for the occupation, must be modified will depend upon: prospects of employment, severity or number of restrictions, extent of work search efforts, and the average time required to become reemployed considering the entire labor market and the specific occupation. Other types of restrictions which could interfere with reemployment include residence outside the normal service area of an Employment Center, lack of transportation, domestic problems, school attendance, military obligations, church or civic activities. When modifications of restrictions are required, the claimant shall be expected to contact employers and make work applications consistent with the modifications to enhance employability. Necessary changes will also be made on his Employment Center work application to facilitate referrals to prospective employers.

(i) At least four weeks shall be allowed during which the claimant may restrict his availability to work consistent with the base period employment which was most advantageous to him before modifications of restrictions would be required. During the fifth week of the claim, if a restriction contributes in any way to the continuing unemployment, the claimant shall be advised by a Department representative that he has restrictions that reduce his chances of becoming employed and adjustments will be required to maintain eligibility. Failure to follow reasonable advice from the representative may result in a conclusion of non-availability.

(ii) The maximum number of consecutive weeks that a claimant may be eligible for benefits while having restrictions, beyond those customary in the occupation, shall be half the number of weeks of his claim.

(2) How Use of Time Affects Eligibility.

A claimant cannot be considered as meeting the requirement of being available for work if he is involved in any activity which precludes acceptance of employment. It is not the intent of the Act to subsidize vacations, personal pursuits, no matter how compelling, or other leisure time activities that would in any material way interfere with immediate reemployment. While it is not expected that a claimant will be confined to his home or telephone at times not actually engaged in work seeking activities, a claimant shall not be considered available for work if he is precluded for any reason from accepting work. Examples of activities which preclude a claimant from accepting work include: absence from the area where he is living or willing to accept employment, hospitalization, illness, incarceration, vacation, time spent in conjunction with funerals or other family gatherings, or time spent on any activity which cannot be immediately abandoned or interrupted to seek and accept work.

(a) Rebuttable Denial of Benefits.

Any activity which occupies the claimant for more than 24 consecutive hours during his normal working days, shall be presumed to adversely affect the claimant's opportunities to seek and accept employment and therefore he shall be determined ineligible for benefits. Days customarily worked in the claimant's occupation includes as appropriate, weekends and holidays, or business days which are Monday through Friday. Activities which may adversely affect opportunities to obtain employment include travel, incarceration, illness, hospitalization, self-employment, civic or church activities, or any other leisure time activity that would interfere with immediate reemployment. This presumption can be overcome by a showing that the activity did not preclude offers of work, referrals to work, contacts from an Employment Center, or an active search for work. For example, if the claimant had been in contact with an employer and was told that he would be called, it must be presumed that if the claimant was absent from his residence beyond what is usual for daily activities, he may have missed an offer of work. Unless the employer verifies that no attempt was made to contact the claimant, benefits will be denied. However, when a claimant is away from his residence but has made arrangements to be contacted and can return quickly enough to respond to any opportunity for work, the presumption of non-availability may be overcome. The conclusion of non-availability may also be overcome in the following circumstances:

(i) Travel Which is Necessary to Seek Work.

If it is necessary to travel to seek work, the travel is not delayed and primarily for the purpose of applying for or accepting a job, such travel shall not result in a denial of benefits regardless of the number of days required for the trip.

(ii) Definite Offer of Work or Recall.

If the claimant already had, or obtained a definite offer of full-time employment or date of recall to begin within three weeks, he has demonstrated his attachment to the labor market and accomplished the purpose of the work search. Therefore, he does not have to demonstrate further availability provided there is no reasonable expectation that the date of hire will be changed. He is no longer required to seek other work. Therefore, in this limited circumstance, if being away for short periods of time or otherwise removing himself from the labor market does not adversely affect his reemployment, benefits may be allowed provided he has made arrangements to be contacted. Benefits shall nevertheless be denied for a week of substantial illness or hospitalization because the statute requires that a claimant be able to work.

(iii) Jury Duty or When Court Attendance is Required.

If a claimant is not available to seek or accept work because he is before any court due to a lawfully issued summons where he is neither a defendant or a plaintiff, or his presence is required by the court for jury duty, he will not be denied benefits. Since jury service or court attendance is a public duty required by law, an otherwise eligible claimant will be considered available for work unless he has employment which he is unable to continue because of his court duties, or is offered available, suitable employment, which he refuses or delays because of his court service. The time spent in court service is not a personal service performed under a contract of hire in an employment situation; therefore, even though it involves an individual's full time, he is not considered employed.

(b) Non-Rebuttable Denial of Benefits.

(i) Refusal of Work.

A claimant generally demonstrates that he is not available for work if there is any suitable work he does not or cannot accept. If he was not available for work, even though he had valid reasons for not accepting the work, benefits will not be allowed for the week or weeks in which the work could have been performed. Benefits would also be denied when a claimant fails to be available for job referrals or a call to work under reasonable conditions consistent with a previously established work relationship. Examples of when this would apply include referral attempts from: a temporary employment service, a school district for substitute teaching, or any other employer for which work is "on-call."

(ii) Failure to Perform All Work During the Week of Separation.

(A) Benefits will be denied for the week in which separation from employment occurs if the claimant's unemployment was caused because he was not able or available to do his work. In this circumstance, there is a presumption of continued inability or unavailability and an indefinite disqualification will be assessed until there is proof of a change in the conditions or circumstances.

(B) If the claimant was absent from work during his last week of employment and he was not paid for the day(s) of absence, benefits will be denied for that week. The claimant will be denied benefits under this Section regardless of the length of the absence.

(3) Hours of Availability.

(a) Full-Time.

To meet the availability requirement, a claimant must be ready and willing to immediately accept full-time work. Full-time work generally means 40 hours a week, but may vary due to customary practices in an occupation. If the claimant was last employed less than full-time, there is a rebuttable presumption that the claimant continues to be available for only part-time work.

(b) Full-Time Work for Permanently Disabled Claimants.

If a claimant has an actual physical limitation and therefore is available for less than the customary full-time hours of work, all of the following circumstances would have to be met before the claimant could be considered available for work as required for eligibility:

(i) The claimant must be able to work, but must have an actual involuntary physical limitation. There must be substantial evidence of the nature, duration, prognosis and severity of the medical limitation to establish that it clearly leaves the claimant incapable of customary full-time hours of work. A limitation of hours caused by other than physical limitation may not be considered; and

(ii) The prior work must have been substantial in amount but part-time, at least throughout the claimant's base period. "Substantial" is defined as over 50 percent of the hours customarily worked in the occupation. It must have been part-time because of the physical limitations as described in the preceding paragraph; and

(iii) An active local market of employment must exist for workers in claimant's occupation under the conditions within which the claimant is capable of working; and

(iv) The claimant must be making a current active personal search for work.

(c) Other Than Normal Working Hours.

If the claimant worked for an employer under other than normal working hours and the adjustment was made to accommodate the peculiar circumstances of the claimant, availability for normal full-time work as defined for the industry is not established, even though the hours previously worked by the claimant may have been 40 or more.

(4) Wage Restrictions.

(a) No claimant will be expected as a condition of eligibility to accept a wage that is less than the state or federal minimum wage, whichever is applicable, or a wage that is substantially less favorable to the claimant than wages prevailing for similar work in the locality. Benefits cannot be allowed if the claimant is restricting himself to a wage that clearly is not available. The following are the limits that a claimant may place on his wage demands while maintaining eligibility:

(i) At the initial time of filing the claimant may not restrict his wage requirements to an amount greater than the highest wage earned during his base period or the highest wage available in the locality, whichever is lower, and there must be some reasonable expectation that work can be obtained at that wage.

(ii) After four consecutive weeks of filing the claimant may be instructed by a Department representative that he must be available for any wage earned during the base period of the claim, if the highest wage earned during the base period is not reasonably available.

(iii) When the claimant has been filing continuously for a period of time equal to 1/3 of the maximum number of weeks of his entitlement, he cannot require a wage higher than the lowest wage he earned during his base period.

(iv) After filing continuously for 1/2 of his weeks of entitlement, he must be willing to accept a 10% reduction from the lowest base period wage if his wage requirement is higher than the prevailing wage for his occupation because it shall be concluded that his continued unemployment is at least in part due to his wage demand. He must also gradually make additional reductions in his wage demand as necessary to reach a wage demand equal to the prevailing rate for similar work in the locality by the time he has filed continuously for 2/3 of his weeks of entitlement.

(v) After filing continuously for 2/3 of his weeks of entitlement, a claimant must be willing to accept the prevailing wage for similar work in the locality.

(vi) When a claimant reopens a claim after employment, he must be willing to accept the wage last earned and make additional reductions as required after continuous weeks of filing. If the claimant has had intervening employment at the higher wage, the wage reductions will not be required until he has received those portions of his benefits in consecutive weeks of filing.

(b) Evidence of the claimant's compliance with this requirement will be shown by the wage the claimant indicates as acceptable on work applications when applying for work with prospective employers, or on work applications with Employment Centers.

(c) Exception for Deferred Claimants.

The provisions of this section shall not apply to those claimants who qualify for deferrals as explained in the Subsection 35A-4-403(1)(b) and R994-403-203.

(5) Type of Work.

(a) One of the purposes of the unemployment insurance program is to help a claimant to preserve his highest skill by providing an income during a period of unemployment during which the claimant can seek work similar to that which he had prior to becoming unemployed. A skill is defined as a marketable ability which was developed over an extended period of time by training or experience that could be lost if not used. It is not the intent of the program to subsidize individuals who wish to improve their employment status. The following are the limits that a claimant may place on the type of work he is willing to accept and maintain eligibility:

(i) At the time of filing an initial claim or reopening a claim following employment, a claimant may restrict his availability to the highest skilled employment performed during his base period provided he has a reasonable expectation of obtaining that type of work. A claimant who is not willing to accept employment consistent with that performed during the base period must show some compelling reason for that restriction in order to be considered available for work.

(ii) After the claimant has filed continuously for 1/3 of his weeks of entitlement, a claimant shall not be eligible for benefits unless he is willing to accept work in all the occupations in which he worked during the base period of his claim. However, the Department representative may advise the claimant after four consecutive weeks of continuous filing that his work search needs to be expanded to include other base period occupations.

(iii) After the claimant has filed continuously for 2/3 of the weeks of his entitlement, availability is not demonstrated unless the claimant is willing to accept work in other occupations that he is reasonably fitted to perform by past experience or training or to which his skills could logically be transferred.

(b) Contract Obligation.

If a claimant is restricted due to a contract obligation with a former employer from competition with or acceptance of employment in the claimant's regular occupation, the claimant would not be eligible for benefits unless he can show that there is another occupation for which he has sufficient skills or training in which he could reasonably obtain employment, and he is actively seeking that type of work.

(c) Restriction to Former Employer.

If a claimant is not willing to consider or accept work except with a former employer and does not have a definite date of recall within the period of time during which a deferral could be granted in accordance with Subsection 35A-4-403(1)(b) or Section R994-403-203 he cannot be considered available for work. One indication of the claimant's restriction to a former employer is a failure to actively seek other permanent employment. However, the claimant may be eligible for benefits even though he chooses to remain available for recall to a former employer and does not qualify for a deferral if he is actively seeking temporary work which he reasonably could obtain. Such temporary work may have to be in a different occupation and at a lower rate of pay. Therefore, the claimant will have to make such adjustments in his attitudes and on work applications to establish eligibility.

(6) Employer/Occupational Requirements.

If the claimant does not have the license or special equipment customarily required for the type of work he wants to obtain, the claimant cannot be considered available for work unless there are other types of work which he is actively seeking and has a reasonable expectation of obtaining, based on his skills and abilities.

(7) Temporary Availability.

When an individual is limited to temporary work because of anticipated military service, school attendance, travel, church service, relocation, or any other anticipated restriction on the claimant's future availability, availability is only established if the claimant is willing to accept, and is actively seeking temporary work. The claimant must also show there is a realistic expectation that the type of work sought is available on a short-term basis. A claimant may have to accept work in another occupation if short term employment is not customary in his regular occupation. Evidence of a genuine desire to obtain temporary work may be shown by registration with and willingness to accept work with temporary employment services.

(8) Distance to Work.

(a) Customary Commuting Patterns.

A claimant must be available and willing to commute within reasonable commuting patterns for his occupation and community. The claimant must show that he has reasonable access to transportation, whether public or private. Acceptable means of transportation include: walking, bicycling, public busses, taxis, private vehicles including motor bikes and scooters, riding with friends, relatives, co-workers or in car pools. If the claimant used means other than private transportation in order to earn wage credits, availability is established for as long as there exists a labor market available to the claimant within his ability and willingness to commute.

(b) Removal to a Locality of Limited Work Opportunities.

The individual who moves from an area of substantial work opportunities to an area of limited work opportunities must demonstrate that the new locale has work for which he is qualified and willing to perform. If the work which the claimant can and will perform is so limited in the new locale that he has little expectation of becoming reemployed, his continued unemployment is the result of the move and not the failure of the labor market to provide opportunities for employment. Once this has been established, after the claimant has had an opportunity to explore the labor market, he is no longer eligible for benefits because he has removed himself from the labor market. If a claimant moves to an area where there is no work which the claimant can do, benefits shall be denied immediately.

(9) Retirement.

(a) When a claimant is retired there is a presumption of withdrawal from the labor market, regardless of the reason for the retirement, because a retired claimant may have fewer incentives to work than other claimants. Circumstances which cause a presumption that a retired individual lacks attachment to the work force are:

(i) income sufficient to meet financial requirements,

(ii) income or retirement penalties which motivate against substantial employment,

(iii) intended uses of leisure time including hobbies, travel, civic or church responsibilities,

(iv) the absence of a plan and program for becoming employed consistent with realistic opportunities for employment of a retired individual,

(v) personal circumstances of the claimant's spouse,

(vi) health,

(vii) consistency, intensity, and reasonableness of efforts to obtain work.

(b) If the retired claimant can show by his actions that he is genuinely interested in obtaining employment and he is actively seeking work, benefits may be allowed provided he meets other requirements for eligibility.

(10) Other Restrictions.

(a) School.

A claimant attending school who has not been granted "Department approval" must meet all requirements with respect to being able, available and actively seeking work. Areas that need to be examined when making an eligibility determination with respect to a student include reviewing a claimant's work history while attending school, coupled with his efforts to secure full-time work. If the hours of school attendance conflict with the claimant's established work schedule or with the customary work schedule for the occupation in which the claimant is seeking work, benefits will generally be denied. An announced willingness on the part of a claimant to discontinue school attendance or change his school schedule, if necessary, to accept work, must be weighed against the time already spent in school as well as the financial loss the claimant may incur if he were to withdraw.

A presumption of non-availability may also be raised if a claimant moves, for the purpose of attending school, from an area with substantial labor market to a labor market with more limited opportunities. In order to overcome this presumption, the claimant must demonstrate there is full-time work available in the new area which he could reasonably expect to obtain.

(i) Employment of Youth.

Title 34, Chapter 23 of the Utah Code imposes limitations on the number of hours youth under the age of 16 may work. The following limitations do not apply if the individual has received a high school diploma or is married. An age certification issued by the school merely gives correct age, not authority to work. Claimants under the age of 16 who do not provide proof of meeting one of these exceptions are under the following limitations whether or not in student status because they have a legal obligation to attend school. Youth under the age of 16 may not work:

(A) During school hours except as authorized by the proper school authorities,

(B) Before or after school in excess of 4 hours a day,

(C) Before 5:00 a.m. or after 9:30 p.m. on days preceding school days,

(D) In excess of 8 hours in any 24 hour period,

(E) More than 40 hours in any week.

(b) Domestic Obligations.

(i) When a claimant has an obligation to care for children or other dependents, he must show that other arrangements for the care of those individuals has been made for all hours that are normally worked in the claimant's occupation and must show a good-faith, active work search effort.

(ii) Following childbirth, there is a period of time when the need or desire to care for the newborn infant is stronger than the desire or need to work. Since an infant cannot be left without proper supervision, it is presumed that the mother has the obligation to care for the infant and she is not available for work until arrangements are made for the child's care. A re-entry into the labor market is not established until the claimant has indicated a desire to re-enter the labor market by making all necessary physical and mental adjustments, and other arrangements, to enable her to work and she has demonstrated this by beginning a good faith, active search for work. The claimant must also be willing to accept work at a wage consistent with Subsection R994-403-117c(4), even though faced with additional child care expenses.

R994-403-118c. Work Search.

(1) General Requirements.

The Employment Security Act requires, by direct statutory language, that a claimant must act in good faith in an active effort to secure employment each and every week for which benefits are claimed. Efforts to find work must be judged by the standards of the occupation and the community. As an example, it may not be appropriate for professionals to call in person upon prospective employers without first submitting resumes and making an appointment by phone. However, in the case of a non-professional, unannounced personal contacts may be appropriate.

(2) Active.

An active effort to look for work is generally interpreted to mean that a claimant should contact a minimum of two employers not previously contacted each week who would hire people in the occupation which the claimant has work experience or would otherwise be qualified and willing to accept employment. Although the minimum number of contacts required by the Department without specific instructions is two, individuals genuinely desirous of obtaining employment will generally make a work search in excess of the minimum requirement. Because the primary obligation of the claimant is to become re-employed, not merely to comply with the requirements of the Department, claimants are encouraged to develop a realistic plan for becoming re-employed which may mean making more than the minimum number of contacts. However, Department representatives, after taking into consideration the type of work the claimant is seeking and the opportunities available for contacting employers who could reasonably be expected to hire in those occupations, may individually advise claimants of a specific number of contacts the claimant is expected to make each week. The Department may not assign varying number or types of contacts for claimants in the same occupation or locality, as work search requirements should be consistent for all claimants in similar occupations unless unique circumstances warrant a reduction in the requirement. Failure of a claimant to make at least the minimum number of contacts as instructed by a Department representative shall create a rebuttable presumption that the claimant is not making an active work search. The claimant may overcome this presumption by showing that he has pursued a job development action that would be at least as likely to result in employment as the specific minimum number of employer contacts given him by the Department representative.

(3) Good Faith.

Good faith efforts are defined as those methods which a reasonable person, anxious to return to work, would make if sincerely desirous of obtaining employment. A good faith effort is not established simply by making a specific number of contacts to satisfy the Department requirement. A good faith effort requires that the claimant, when contacting employers, emphasize his interest in the job and conduct himself in such a way as to provide the maximum possibility of his being considered for hire. He should contact employers at the designated time, place and in the manner specified. He should be dressed and groomed appropriate for type of work he is seeking and present no unreasonable restriction on acceptance of the work. Answers on employment applications should be reasonable, honest, show a genuine interest in obtaining employment, and emphasize those skills, experience or aptitudes which the claimant has that are consistent with the job requirements. Contacts should be made directly with persons having the authority to hire.

(4) Union Attachment.

(a) Union attachment is sufficient to meet the requirements of an active work search if the claimant is eligible for a deferral as established under Subsection 35A-4-403(1)(b). When a claimant is deferred, it is because he has reasonable prospects of employment through the union and his union attachment puts him in contact with the majority of the employers he normally would be expected to contact. Therefore, for those claimants who meet the qualification for deferral, the union attachment is an acceptable substitute for a personal work search.

(b) If the claimant is not in a deferred status because he did not earn substantially all his wage credits in employment as a union member or the deferral has ended, he must meet the requirements of an active, good faith search for work by contacting employers in addition to contacts with the union. This work search is required even though unions may have regulations and rules which penalize members for making independent contacts to try to find work or for accepting non-union employment.

R994-403-119c. Extended Benefit Requirements.

Extended benefits are those additional benefits paid in times of high unemployment. Claimants filing for extended benefits established under specific state or federal programs are required to be available under different conditions and make a more extensive work search effort than is required of claimants receiving regular program benefits. Disqualification for failure to meet the work search requirements are made in accordance with extended benefit rules established under Sections 35A-4-402 and R994-402-201 through R994-403-113. Other special programs may be governed by various sections of the Act or federal public laws.

R994-403-120c. Burden of Proof.

Proof of eligibility for benefits is the responsibility of the claimant. The claimant has an obligation to report any information that might affect his eligibility and provide any information requested by the Department which is required to establish that he is able, available, and actively seeking work. He must keep a detailed record of the employers contacted each week for which benefits are claimed. The records will include the company name, address and telephone number, date of contact, type of work, name of the person contacted, and the results of the contact.

R994-403-121c. Period of Ineligibility.

(1) Eligibility for benefits is established on a weekly basis. When the claimant has demonstrated that he is not able or available for work or actively seeking work, there may be a presumption that the circumstances will continue and an indefinite disqualification may be assessed. This disqualification shall end when the claimant establishes that conditions have changed and he meets the requirements for eligibility. A claimant may have his eligibility under Subsection 35A-4-403(1)(c) of the Act reconsidered on a weekly basis by reporting to the local office and requesting a reassessment of his eligibility following a disqualification.

(2) If lack of a good faith work search is established with regard to prior weeks, a disqualification will be for only the weeks in which the work search was inadequate and not in excess of four weeks preceding the interview unless benefits were allowed on the basis of false reports by the claimant of work search contacts. The Department shall disqualify all weeks in which it is discovered that a claimant was not able or available to accept work without regard to the four-week limitation.

R994-403-122e. Failure to Furnish Information.

Fundamental to the proper administration of the Unemployment Insurance Program is the gathering and exchange of information. When a claimant or employer cannot or will not provide information, proper determinations with regard to the claimant's eligibility cannot be made. The failure of the claimant to provide information may come at various times during the benefit year, and to avoid improper payments, benefits must be denied under Subsection 35A-4-403(e) until the information is provided. Where time limitations are not prescribed by law, the claimant and employer must be allowed a reasonable amount of time to provide the information requested by the Department.

R994-403-123e. Period of Disqualification.

For failure to provide wage or separation information or any other information identified at the initial filing of the claim, the disqualification period begins with the effective date of the claim. All other denials will begin with the week in which the allotted time for responding ends. In all cases, the disqualification will continue until the Saturday of the week prior to the week in which the claimant provides the information or contacts the Department to make arrangements to provide the information, whichever is first.

R994-403-124e. Good Cause.

No disqualification or penalty will be assessed under this provision of the law if the claimant or employer can show good cause for failing to provide the information within the time-frame as requested. Good cause, as it applies to this section of the law, may be established if the claimant or employer makes reasonable attempts to provide the information within the time-frame requested, or the claimant or employer was prevented from complying due to circumstances which were compelling or beyond their control.

R994-403-125e. Information Claimants Must Provide.

(1) Utah law requires that the claimant's weekly benefit amount be computed based upon his total wages for insured work during his base period. The wage information must be requested from employers based on the employment reported by the claimant. The claimant has failed to provide information necessary to establish his claim if he does not list all base period employers and provide the correct business name and address for each employer listed. If, after being found monetarily ineligible, he subsequently identifies sufficient additional employment to establish a claim, the monetary determination will be revised to include the additional employment and benefits may be allowed under Subsection R994-403-125e(2) after the disqualification period.

(2) Claimants must provide information which is needed to determine eligibility as requested on the initial claim form, or on any other official document of the Department. Claimants are required to correctly report the reasons for separation from past employers when filing a new claim, reopening a claim, or any time the claimant is separated from employment during the benefit year. The Department may require a complete statement of the circumstances precipitating the separation. Information with regard to work search and other availability restrictions may be requested by the Department on a regular basis. Claimants may be required to provide documentary information, including medical reports, class schedules and school grades.

(3) Benefits may also be denied when claimants fail to report at the time and place designated for an in-person interview with a Department representative which is necessary to determine claimant eligibility or make job referrals.

R994-403-126e. Wage Information.

It is the employer's responsibility to report correct wage information. The claimant may be requested to supply wage information. However, since it is not the claimant's responsibility to report wage information, no disqualification will be assessed for failure to do so under Subsection 35A-4-403(1)(e).

R994-403-127e. Reporting Incorrect Information.

Providing incomplete or incorrect information shall be treated the same as a failure to provide information if the incorrect information results in an improper decision with regard to the claimant's monetary or non-monetary eligibility. This includes failure to report or list all work search contacts as requested at eligibility interviews or on written documents.

R994-403-128e. Overpayments.

If benefits have been improperly allowed based on the claimant's failure to provide information, or based on incorrect information provided by the claimant, the resultant overpayment may be assessed in accordance with Subsection 35A-4-406(4).

R994-403-129e. Employer Penalty.

If the employer fails to provide wage information as requested on Form 625, or separation information as requested on Form 606, he relinquishes his rights with regard to the affected claim and ceases to be an interested party with respect to that claim. The employer may raise questions concerning the claimant's eligibility with the Department which may then choose to exercise continuing jurisdiction with respect to the claim, under Subsection 35A-4-406(2) The Department may subpoena or call the employer and claimant as witnesses to determine the claimant's eligibility. The employer will not be eligible to appeal decisions with regard to the claimant's right to benefits and relief of charges resulting from payments to that claimant will not be granted. However, if the Department exercises continuing jurisdiction and denies benefits, any overpayment established and collected will be credited to the employer's benefit ratio account.

R994-403-131g. Eligibility for Benefits and Requalifying Wages - General Definition.

When establishing a new claim, a claimant may have unused wage credits sufficient to establish monetary elibibility for a subsequent claim. However, before benefits may be paid on the subsequent claim, a claimant who has received during the first benefit year must have worked since the beginning of that benefit year.

R994-403-132g. Subsequent Employment in Insured Work.

Each of the following three elements must be satisfied to meet the requirements of Subsection 35A-4-403(1)(g):

(1) Work must have been performed after the effective date of the original claim, but not necessarily during the benefit year of the original claim.

(2) Actual services must have been performed, not just the establishment of insured wages attributable to a period of time subsequent to the effective date of the original claim including vacation, severance pay, or a bonus.

(3) Earnings from insured work must be equal to at least six times the weekly benefit amount of the original or subsequent claim, whichever is lower. Insured work is employment subject to state or federal unemployment insurance programs, including railroad employment and active military duty. Active military duty includes any duty authorized by military orders, even if insufficient to monetarily qualify an ex-service member for a claim totally based on military wages.

R994-403-133g. Period of Disqualification.

(1) If a claimant satisfies the requirements of monetary eligibility under Subsection 35A-4-403(1)(f) he may establish a new claim. However, benefits shall be denied under Subsection 35A-4-403(1)(g) from the effective date of the claim and continuing until the week the claimant provides proof of insured earnings equal to at least six times his weekly benefit amount.

(2) Exception to Disqualification

The provisions of Subsection 35A-4-403(1)(f), do not apply unless the claimant actually received benefits during the original benefit year.

R994-403-201. Department Approval - General Definition.

Unemployment insurance is not intended to subsidize schooling. However, it is recognized that training may be a practical way to reduce chronic and persistent unemployment due to a lack of work skills, job obsolescence or foreign competition. The Employment Security Act limits the extent to which unemployment funds may be expended on behalf of claimants who need training. With the exception of very short-term training, Department approval is intended for classroom training as opposed to on-the-job training. Department approval is to be used selectively and judiciously. It is not to be used as a substitute for selective placement, job development, on-the-job training, or other available programs.

R994-403-202. Request for Department Approval.

Department approval shall not be granted unless a claimant would be disqualified under Subsection 35A-4-403(1)(c) due to school attendance. After it has been determined the claimant's school attendance is disqualifying under Subsection 35A-4-403(1)(c) he must submit a written request before Department approval shall be considered.

R994-403-203. Availability Requirements.

If Department approval is granted, the Act provides relief from the requirement to seek and accept work after the training begins. A claimant must make a work search prior to the onset of training, even if he has been advised that the training has been approved. However, a claimant shall not be required to conduct an active work search each week while in school or during the break period between successive terms as long as that break period is four weeks or less. A claimant attending approved schooling shall be placed in a deferred status and shall not be required to register for work. In addition, benefits shall not be denied when work is refused as satisfactory attendance and progress in school serves as a substitute for the availability requirements of the Act. Absences from school shall not result in a denial of Department approval if a claimant can demonstrate he is making up any missed work and is still making satisfactory progress in school. For the purposes of the subsection, satisfactory progress is defined as passing all classes with a grade level sufficient to qualify for graduation, licensing or certification, as appropriate.

(1) A disqualification under Subsection 35A-4-403(2)(a) shall be effective with the week the claimant knew or should have known he was not going to receive a passing grade in any of his classes or was otherwise not making satisfactory progress in school. The Department shall instruct the claimant at the time Department approval is granted that it is his responsibility to immediately report any information that may indicate a failure to maintain satisfactory progress. This includes incomplete work, unsatisfactory test scores and mid-term grades. A claimant also has the responsibility to report any sickness, injury or other circumstances that prevented him from attending school. If a claimant discontinues school attendance, drops or changes any classes before the end of the term, Department approval may be terminated immediately. However, discontinuing a class that does not reduce the school credits below full-time status, as defined by the educational institution, shall not result in the termination of Department approval. Department approval may be reinstated during any week a claimant demonstrates, through appropriate verification, he is again attending class regularly and making satisfactory progress.

(2) A claimant shall be ineligible for Department approval if he is retaking a class that was originally taken while he was receiving benefits under Department approval. However, if Department approval was denied during the time the course being taken was originally in progress, approval may be reinstated to cover that portion of the course not previously subsidized if the claimant can demonstrate he is making satisfactory progress.

R994-403-204. Qualifying Elements.

All of the following elements must be satisfied for a claimant to qualify for Department approval of training:

(1) The claimant's unemployment is chronic or persistent due to ANY ONE of the following three circumstances:

(a) A lack of basic work skills. A lack of basic work skills may not be established unless a claimant:

(i) Has a history of repeated unemployment attributable to lack of skills,

(ii) has no recent history of employment earning a wage substantially above the federal minimum wage,

(iii) has had no formal training in occupational skills,

(iv) does not have skills developed over an extended period of time by training or experience, and

(v) does not have a MARKETABLE degree from an institution of higher learning, or

(b) A change in the marketability of the claimant's skills has resulted due to new technology, major reductions within an industry, or

(c) Inability to continue working in occupations using the claimant's skills due to a verifiable, permanent physical or emotional disability,

(2) A claimant must have a reasonable expectation for success as demonstrated by:

(a) an aptitude for and interest in the work he is being trained to perform, or course of study he is pursuing,

(b) sufficient time and financial resources to complete the training,

(3) The training is provided by an institution approved by the Department,

(4) The training is not available except in school. For example, on-the-job training is not available to the claimant.

(5) The length of time required to complete the training should generally not extend beyond 18 months. However, it is recognized there are special circumstances where a longer course may be essential to achieve the purposes of a particular state or federal program.

(6) The training should generally be vocationally oriented unless the claimant has no more than two terms, quarters, semesters or similar periods of academic training necessary to obtain a degree. However, it is again recognized that due to the particular requirements of a special program, training which is not vocationally oriented may be approved beyond a two term limit.

(7) A claimant did not leave work to attend school, except as permitted under special state or federal programs, even if the employer required the training for advancement or as a condition of continuing employment,

(8) The schooling is full-time, as defined by the training facility.

R994-403-205. Requirements for Continuation.

Initial approval shall be granted for the school term beginning with the week in which the attendance was reported to the Department. Continued approval may be granted by the Department if the claimant establishes proof of:

(1) Satisfactory attendance,

(2) Passing grades,

(3) Continuance of the same course of study and classes originally approved, and

(4) Compliance with all other qualifying elements.

R994-403-206. Waiver of Requirements.

Exceptions to the Requirements for Department Approval.

(1) The requirements for Department approval may be waived or modified when required by state or federal law for specific training programs.

(2) Short Term Training.

Department approval may be granted even though a claimant has marketable skills and does not meet the requirements for Department approval as defined in R994-403-204 if the training is for eight weeks or less. This is intended as a one-time approval and may not be extended.]

R994-403-101a. Filing a New Claim.

(1) A new claim for unemployment benefits is made by filing with the Department of Workforce Services Claims Center. A new claim can be filed by telephone, completing an application at the Department's web site, or as otherwise instructed by the Department.

(2) The effective date of a new claim for benefits is the Sunday immediately preceding the date the claim is filed, provided the claimant did not work full-time during that week, or is not entitled to earnings equal to or in excess of the WBA for that week. A claim for benefits can only be made effective for a prior week if the claimant can establish good cause for late filing in accordance with R994-403-106a.

(3) When a claimant files a new claim during the last week of a quarter and has worked less than full-time for that week, the Department will make the claim effective that week if it is advantageous to the claimant, even if the claimant has earnings for that week that are equal to or in excess of the WBA.

(4) Wages used to establish eligibility for a claim cannot be used on a subsequent claim.

R994-403-102a. Cancellation of Claim.

(1) Once a weekly claim has been filed and the claimant has been deemed monetarily eligible, the claim is considered to have been established, even if no payment has been made or waiting week credit granted. The claim then remains established for 52 weeks during which time another regular claim may not be filed against the state of Utah unless the claim is canceled.

(2) A claim may be canceled if the claimant requests that the claim be canceled and one of the following circumstances can be shown:

(a) no weekly claims have been filed;

(b) cancellation is requested prior to the issuance of the monetary determination;

(c) the request is made within the same time period permitted for an appeal of the monetary determination and the claimant returns any benefits that have been paid;

(d) the claimant had earnings, severance, or vacation payments equal to or greater than the WBA applicable to all weeks for which claims were filed;

(e) the claimant meets the eligibility requirements for filing a new claim following a disqualification due to a strike in accordance with the requalifying provisions of Subsection 35A-4-405(4)(c);

(f) the claimant meets the requirements for cancellation established under the provisions for combined wage claims in R994-106-107; or

(g) the claimant has filed an unemployment compensation for ex-military (UCX) claim, and it is determined the claimant does not have wage credits under Title 5, chapter 85, U.S. Code.

R994-403-103a. Reopening a Claim.

(1) A claim for benefits is considered "closed" when a claimant reports four consecutive weeks of earnings equal to or in excess of the WBA or does not file a weekly claim within 27 days from the last week filed. In those circumstances, the claimant must reopen the claim before benefits can be paid.

(2) A claimant may reopen the claim any time during the 52-week period after first filing by contacting the Claims Center. The effective date of the reopened claim will be the Sunday immediately preceding the date the claimant requests reopening unless good cause is established for failure to request reopening during a prior week in accordance with R994-403-106a.

R994-403-104g. Using Unused Wages for a Subsequent Claim.

(1) A claimant may have sufficient wage credits to monetarily qualify for a subsequent claim without intervening employment.

(2) Before payment can be made on a subsequent claim using those unused wages, each of the following elements must be satisfied:

(a) the claimant must have performed work in covered employment after the effective date of the original claim, but not necessarily during the benefit year of the original claim;

(b) actual services must have been performed. Vacation, severance pay, or a bonus cannot be used to requalify;

(c) the claimant must have earnings from covered employment, as defined in R994-201-101(9), equal to at least six times the WBA of the original or subsequent claim, whichever is lower;

(d) the claimant must have actually received benefits during the preceding benefit year; and

(e) benefits will not be paid under Subsection 35A-4-403(1)(g) from the effective date of the claim and continuing until the week the claimant provides proof of covered employment equal to at least six times the WBA.

R994-403-105a. Filing Weekly Claims.

(1) Claims must be filed on a weekly basis. For unemployment benefit purposes, the week begins at 12:01 a.m. on Sunday and ends at midnight on Saturday. The claimant is the only person who is authorized to file weekly claims. The responsibility for filing weekly claims cannot be delegated to another person.

(2) Each weekly claim should be filed as soon as possible after the Saturday week ending date. If the claim has not been closed, the Department will allow 20 days after the week ending date to file a timely claim. A weekly claim filed 21 or more calendar days after the week ending date will be denied unless good cause for late filing is established in accordance with R994-403-106a.

R994-403-106a. Good Cause for Late Filing.

(1) Claims must be filed timely to insure prompt, accurate payment of benefits. Untimely claims are susceptible to errors and deprive the Department of its responsibility to monitor eligibility. Benefits may be paid if it is determined that the claimant had good cause for not filing in a timely manner.

(2) The claimant has the burden to establish good cause by competent evidence. Good cause is limited to circumstances where it is shown that the reasons for the delay in filing were due to circumstances beyond the claimant's control or were compelling and reasonable. Some reasons for good cause for late filing may raise other eligibility issues. Some examples that may establish good cause for late filing are:

(a) a crisis of several days duration that interrupts the normal routine during the time the claim should be filed;

(b) hospitalization or incarceration; or

(c) coercion or intimidation exercised by the employer to prevent the prompt filing of a claim.

(3) The Department is the only acceptable source of information about unemployment benefits. Relying on inaccurate advice from friends, relatives, other claimants or similar sources does not constitute good cause.

(4) Good cause for late filing cannot extend beyond 65 weeks from the filing date of the initial claim.

R994-403-107b. Registration, Workshops, Deferrals - General Definition.

(1) A claimant must register for work with the Department, unless, at the discretion of the Department, registration is waived or deferred.

(2) The Department may require attendance at workshops designed to assist claimants in obtaining employment.

(3) Failure, without good cause, to comply with the requirements of Subsections (1) and (2) of this section may result in a denial of benefits. The claimant has the burden to establish good cause through competent evidence. Good cause is limited to circumstances where it is shown that the failure to comply was due to circumstances beyond the control of the claimant or which were compelling and reasonable. The proof of inability to register or report may raise an able or available issue.

(4) The denial of benefits begins with the week the claimant failed to comply and ends with the week the claimant contacts the Department and complies by either registering for work, reporting as required, or scheduling an appointment to attend the next available workshop or conference. The denial can be waived if the Department determines the claimant complied within a reasonable amount of time.

R994-403-108b. Deferral of Work Registration and Work Search.

(1) The Department may elect to defer the work registration and work search requirements. A claimant placed in a deferred status is not required to actively seek work but must meet all other availability requirements of the act. Deferrals are generally limited to the following circumstances:

(a) Labor Disputes.

A claimant who is unemployed due to a labor dispute may be deferred while an eligibility determination under Subsection 35A-4-405(4) is pending. If benefits are allowed, the claimant must register for work immediately.

(b) Union Attachment.

A claimant who is a union member in good standing, is on the out-of-work list, or is otherwise eligible for a job referral by the union, and has earned at least half of his or her base period earnings through the union, may be eligible for a deferral. If a deferral is granted to a union member, it shall not be extended beyond the mid-point of the claim unless the claimant can demonstrate a reasonable expectation of obtaining employment through the union.

(c) Employer Attachment.

A claimant who has an attachment to a prior employer and a date of recall within ten weeks of filing or reopening a claim may have the work registration requirement deferred to the expected date of recall. The deferral should not extend longer than ten weeks.

(d) Three Week Deferral.

A claimant who accepts a definite offer of full-time work to begin within three weeks, shall be deferred for that period.

(e) Seasonal.

A claimant may be deferred when, due to seasonal factors, work is not available in the claimant's primary base period occupation and other suitable work is not available in the area.

(2) Deferrals cannot be granted if prohibited by state or federal law for certain benefit programs.

R994-403-109b. Profiled Claimants.

(1) The Department will identify individuals who are likely to exhaust unemployment benefits through a profiling system and require that they participate in reemployment services. These services may include job search workshops, job placement services, counseling, testing, and assessment.

(2) In order to avoid disqualification for failure to participate in reemployment services, the claimant must show good cause for nonparticipation. Good cause for nonparticipation is established if the claimant can show:

(a) completion of equivalent services within the 12 month period immediately preceding the date the claimant is scheduled for reemployment services; or

(b) that the failure to participate was reasonable or beyond the claimant's control.

(3) Failure to participate in reemployment services without good cause will result in a denial of benefits beginning with the week the claimant refuses or fails to attend scheduled services and continuing until the week the claimant contacts the Employment Center to arrange participation in the required reemployment service.

(4) Some reasons for good cause for nonparticipation may raise other eligibility issues.

R994-403-110c. Able and Available - General Definition.

(1) The primary obligation of the claimant is to become reemployed. A claimant may meet all of the other eligibility criteria but, if the claimant cannot demonstrate ability, availability, and an active good faith effort to obtain work, benefits cannot be allowed.

(2) A claimant must be attached to the labor force, which means the claimant can have no encumbrances to the immediate acceptance of full-time work. The claimant must:

(a) be actively engaged in a good faith effort to obtain employment; and

(b) have the necessary means to become employed including tools, transportation, licenses, and childcare if necessary.

(3) The continued unemployment must be due to the lack of suitable job opportunities.

(4) The only exception to the requirement that a claimant actively seek work is if the Department has approved schooling under Section 35A-4-403(2) and the claimant meets the requirements of R994-403-107b.

(5) The only exception to the requirements that the claimant be able to work and actively seeking full-time work are that the claimant meets the requirements of R994-403-111c(5).

R994-403-111c. Able.

(1) The claimant must have no physical or mental health limitation which would preclude immediate acceptance of full-time work. A recent history of employment is one indication of a claimant's ability to work. If there has been a change in the claimant's physical or mental capacity since his or her last employment, there is a presumption of inability to work which the claimant must overcome by competent evidence. The claimant must show that there is a reasonable likelihood that jobs exist which the claimant is capable of performing before unemployment insurance benefits can be allowed. Pregnancy is treated the same as other physical limitations.

(2) For purposes of determining weekly eligibility for benefits, it is presumed a claimant who is not able to work more than one-half the normal workweek will be considered not able to perform full-time work. The normal workweek means the normal workweek in the claimant's occupation. A claimant will be denied under this section for any week in which the claimant refuses suitable work due to an inability to work, regardless of the length of time the claimant is unable to work.

(a) Past Work History.

Benefits will not be denied solely on the basis of a physical or mental health limitation if the claimant earned base period wages while working with the limitation and is:

(i) willing to accept any work within his or her ability;

(ii) actively seeking work consistent with the limitation; and

(iii) otherwise eligible.

Under these circumstances, the unemployment is considered to be due to a lack of employment opportunities and not due to an inability to work.

(b) Medical Verification.

When an individual has a physical or mental health limitation, medical information from a competent health care provider is one form of evidence used to determine the claimant's ability to work. The provider's opinion is presumed to be an accurate reflection of the claimant's ability to work, however, the provider's opinion may be overcome by other competent evidence. The Department will determine if medical verification is required.

(3) Temporary Disability.

(a) Employer Attached.

A claimant is not eligible for benefits if the claimant is not able to work at his or her regular job due to a temporary disability and the employer has agreed to allow the claimant to return to the job when he or she is able to work. In this case, the claimant's unemployment is due to an inability to work rather than lack of available work. The claimant is not eligible for benefits even if there is other work the claimant is capable of performing with the disability. If a claimant is precluded from working due to Federal Aviation Administration regulations because of pregnancy, and the employer has agreed to allow the claimant to return to the job, the claimant is considered to be on a medical leave of absence and is not eligible for benefits.

(b) No Employer Attachment.

If the claimant has been separated from employment with no expectation of being allowed to return when he or she is again able to work, or the temporary disability occurred after becoming unemployed, benefits may be allowed even though the claimant cannot work in his or her regular occupation if the claimant can show there is work the claimant is capable of performing and for which the claimant reasonably could be hired. The claimant must also meet other eligibility requirements including making an active work search.

(3) Hospitalization.

A claimant is unable to work if hospitalized unless the hospitalization is on an out-patient basis or the claimant is in a rehabilitation center or care facility and there is independent verification that the claimant is not restricted from immediately working full-time. Immediately following hospitalization, a rebuttable presumption of physical inability continues to exist for the period of time needed for recuperation.

(4) Workers' Compensation.

(a) Compensation for Lost Wages.

A claimant is not eligible for unemployment benefits while receiving temporary total disability workers' compensation benefits.

(b) Subsequent Awards.

The Department may require that a claimant who is receiving permanent partial disability benefits from workers' compensation show that he or she is able and available for full-time work and can reasonably expect to obtain full-time work even with the disability.

(c) Workers' compensation disability payments are not reportable as wages.

(5) Physical or Mental Health Limitation.

(a) A claimant who is not able to work full-time due to a physical or mental health limitation, may be considered eligible under this rule if:

(i) the claimant's base period employment was limited to part-time because of the claimant's physical or mental health limitations;

(ii) the claimant's prior part-time work was substantial. Substantial is defined as at least 50 percent of the hours customarily worked in the claimant's occupation;

(iii) the claimant is able to work at least as many hours as he or she worked prior to becoming unemployed;

(iv) there is work available which the claimant is capable of performing; and

(v) the claimant is making an active work search.

(b) The Department may require that the claimant establish ability by competent evidence.

R994-403-112c. Available.

(1) General Requirement.

The claimant must be available for full-time work. Any restrictions on availability, such as lack of transportation, domestic problems, school attendance, military obligations, church or civic activities, whether self-imposed or beyond the control of the claimant, lessen the claimant's opportunities to obtain suitable full-time work.

(2) Activities Which Affect Availability.

It is not the intent of the act to subsidize activities which interfere with immediate reemployment. A claimant is not considered available for work if the claimant is involved in any activity which cannot be immediately abandoned or interrupted so that the claimant can seek and accept full-time work.

(a) Activities Which May Result in a Denial of Benefits.

For purposes of establishing weekly eligibility for benefits, a claimant who is engaged in an activity for more than half the normal workweek that would prevent the claimant from working, is presumed to be unavailable and therefore ineligible for benefits. The normal workweek means the normal workweek in the claimant's occupation. This presumption can be overcome by a showing that the activity did not preclude the immediate acceptance of full-time work, referrals to work, contacts from the Department, or an active search for work. When a claimant is away from his or her residence but has made arrangements to be contacted and can return quickly enough to respond to any opportunity for work, the presumption of unavailability may be overcome. The conclusion of unavailability can also be overcome in the following circumstances:

(i) Travel Which is Necessary to Seek Work.

(A) Benefits will not be denied if the claimant is required to travel to seek, apply for, or accept work within the United States or in a foreign country where the claimant has authorization to work and where there is a reciprocal agreement. The trip itself must be for the purpose of obtaining work. There is a rebuttable presumption that the claimant is not available for work when the trip is extended to accommodate the claimant's personal needs or interests, and the extension is for more than one-half of the workweek.

(B) Unemployment benefits cannot be paid to a claimant located in a foreign country unless the claimant has authorization to work there and there is a reciprocal agreement concerning the payment of unemployment benefits with that foreign country. An exception to this general rule is that a claimant who travels to a foreign country for the express purpose of applying for employment and is out of the United States for two consecutive weeks or less is eligible for those weeks provided the claimant can prove he or she has a legal right to work in that country. A claimant who is out of the United States for more than two weeks is not eligible for benefits for any of the weeks.

(ii) Definite Offer of Work or Recall.

If the claimant has accepted a definite offer of full-time employment or has a date of recall to begin within three weeks, the claimant does not have to demonstrate further availability and is not required to seek other work. Because the statute requires that a claimant be able to work, if a claimant is unable to work for more than one-half of any week due to illness or hospitalization, benefits will be denied.

(iii) Jury Duty or Court Attendance.

Jury duty or court attendance is a public duty required by law and a claimant will not be denied benefits if he or she is unavailable because of a lawfully issued summons to appear as a witness or to serve on a jury unless the claimant:

(A) is a party to the action;

(B) had employment which he or she was unable to continue or accept because of the court service; or

(C) refused or delayed an offer of suitable employment because of the court service.

The time spent in court service is not a personal service performed under a contract of hire and therefore is not considered employment.

(b) Activities Which Will Result in a Denial of Benefits.

(i) Refusal of Work.

When a claimant refuses any suitable work, the claimant is considered unavailable. Even though the claimant had valid reasons for not accepting the work, benefits will not be allowed for the week or weeks in which the work was available. Benefits are also denied when a claimant fails to be available for job referrals or a call to return to work under reasonable conditions consistent with a previously established work relationship. This includes referral attempts from a temporary employment service, a school district for substitute teaching, or any other employer for which work is "on-call."

(ii) Failure to Perform All Work During the Week of Separation.

(A) Benefits will be denied for the week in which separation from employment occurs if the claimant's unemployment was caused because the claimant was not able or available to do his or her work. In this circumstance, there is a presumption of continued inability or unavailability and an indefinite disqualification will be assessed until there is proof of a change in the conditions or circumstances.

(B) If the claimant was absent from work during the last week of employment and the claimant was not paid for the day or days of absence, benefits will be denied for that week. The claimant will be denied benefits under this section regardless of the length of the absence.

(3) Hours of Availability.

(a) Full-Time.

Except as provided in R994-403-111c(5), in order to meet the availability requirement, a claimant must be ready and willing to immediately accept full-time work. Full-time work generally means 40 hours a week but may vary due to customary practices in an occupation. If the claimant was last employed less than full-time, there is a rebuttable presumption that the claimant continues to be available for only part-time work.

(b) Other Than Normal Work Hours.

If the claimant worked other than normal work hours and the work schedule was adjusted to accommodate the claimant, the claimant cannot continue to limit his or her hours of availability even if the claimant was working 40 hours or more. The claimant must be available for full-time work during normal work hours as is customary for the industry.

(4) Wage Restrictions.

(a) No claimant will be expected, as a condition of eligibility, to accept a wage that is less than the state or federal minimum wage, whichever is applicable, or a wage that is substantially less favorable to the claimant than prevailing wages for similar work in the locality. Benefits cannot be allowed if the claimant is restricting himself or herself to a wage that is not available.

(b) A claimant must be given a reasonable time to seek work that will preserve his or her earning potential. At the time of filing an initial claim, or at the time of reopening a claim following a period of employment, the claimant may restrict his or her wage requirement to the highest wage earned during or subsequent to the base period and prior to filing the claim or the highest wage available in the locality for the claimant's occupation, whichever is lower, but only if there is a reasonable expectation that work can be obtained at that wage.

(i) After a claimant has received1/3 of the maximum benefit amount (MBA) for his or her regular claim, the claimant must accept any wage that is equal to or greater than the lowest wage earned during the base period, as long as that wage is consistent with the prevailing wage standard.

(ii) After a claimant has received 2/3 of the MBA for his or her regular claim, the claimant must be willing to accept the prevailing wage in the locality for work in any base period occupation.

(c) Exception for Deferred Claimants.

The provisions of this section do not apply to those claimants who qualify for deferrals under Subsection 35A-4-403(1)(b) and R994-403-202 during the period of deferral.

(5) Type of Work.

(a) One of the purposes of the unemployment insurance program is to help a claimant preserve his or her highest skill by providing unemployment benefits so the claimant can find work similar to what the claimant had prior to becoming unemployed. A skill is defined as a marketable ability developed over an extended period of time by training or experience which could be lost if not used. It is not the intent of the program to subsidize individuals who are limiting their availability because of a desire to improve their employment status.

(i) At the time of filing an initial claim or reopening a claim following a period of employment, a claimant may restrict availability to the highest skilled employment performed during or subsequent to the base period provided the claimant has a reasonable expectation of obtaining that type of work. A claimant who is not willing to accept employment consistent with work performed during or subsequent to the base period must show a compelling reason for that restriction in order to be considered available for work.

(ii) After the claimant has received 1/3 of the MBA for his or her regular claim, the claimant must be willing to accept work in any of the occupations in which the claimant worked during the base period.

(iii) After the claimant has received 2/3 of the MBA for his or her regular claim, the claimant must be willing to accept any work that he or she can reasonably perform consistent with the claimant's past experience, training, and skills.

(b) Contract Obligation.

If a claimant is restricted due to a contractual obligation from competing with a former employer or accepting employment in the claimant's regular occupation, the claimant is not eligible for benefits unless the claimant can show that he or she:

(i) is actively seeking work outside the restrictions of the noncompete contract;

(ii) has the skills and/or training necessary to obtain that work; and

(iii) can reasonably expect to obtain that employment.

(6) Employer/Occupational Requirements.

If the claimant does not have the license or special equipment required for the type of work the claimant wants to obtain, the claimant cannot be considered available for work unless the claimant is actively seeking other types of work and has a reasonable expectation of obtaining that work.

(7) Temporary Availability.

When an individual is limited to temporary work because of anticipated military service, school attendance, travel, church service, relocation, a reasonable expectation of recall to a former employer for which the claimant is not in deferral status, or any other anticipated restriction on the claimant's future availability, availability is only established if the claimant is willing to accept and is actively seeking temporary work. The claimant must also show there is a realistic expectation that there is temporary work in the claimant's occupation, otherwise the claimant may be required to accept temporary work in another occupation. Evidence of a genuine desire to obtain temporary work may be shown by registration with and willingness to accept work with temporary employment services.

(8) Distance to Work.

(a) Customary Commuting Patterns.

A claimant must show reasonable access to public or private transportation, and a willingness to commute within customary commuting patterns for the occupation and community.

(b) Removal to a Locality of Limited Work Opportunities.

A claimant who moves from an area where there are substantial work opportunities to an area of limited work opportunities must demonstrate that the new locale has work for which the claimant is qualified and which the claimant is willing to perform. If the work is so limited in the new locale that there is little expectation the claimant will become reemployed, the continued unemployment is the result of the move and not the failure of the labor market to provide employment opportunities. In that case, the claimant is considered to have removed himself or herself from the labor market and is no longer eligible for benefits.

(9) School.

(a) A claimant attending school who has not been granted Department approval for a deferral must still meet all requirements of being able and available for work and be actively seeking work. Areas that need to be examined when making an eligibility determination with respect to a student include reviewing a claimant's work history while attending school, coupled with his or her efforts to secure full-time work. If the hours of school attendance conflict with the claimant's established work schedule or with the customary work schedule for the occupation in which the claimant is seeking work, a rebuttable presumption is established that the claimant is not available for full-time work and benefits will generally be denied. An announced willingness on the part of a claimant to discontinue school attendance or change his or her school schedule, if necessary, to accept work must be weighed against the time already spent in school as well as the financial loss the claimant may incur if he or she were to withdraw.

(b) A presumption of unavailability may also be raised if a claimant moves, for the purpose of attending school, from an area with substantial labor market to a labor market with more limited opportunities. In order to overcome this presumption, the claimant must demonstrate there is full-time work available in the new area which the claimant could reasonably expect to obtain.

(10) Employment of Youth.

Title 34, Chapter 23 of the Utah Code imposes limitations on the number of hours youth under the age of 16 may work. The following limitations do not apply if the individual has received a high school diploma or is married. Claimants under the age of 16 who do not provide proof of meeting one of these exceptions are under the following limitations whether or not in student status because they have a legal obligation to attend school. Youth under the age of 16 may not work:

(a) during school hours except as authorized by the proper school authorities;

(b) before or after school in excess of 4 hours a day;

(c) before 5:00 a.m. or after 9:30 p.m. on days preceding school days;

(d) in excess of 8 hours in any 24-hour period; or

(e) more than 40 hours in any week.

(11) Domestic Obligations.

When a claimant has an obligation to care for children or other dependents, the claimant must show that arrangements for the care of those individuals have been made for all hours that are normally worked in the claimant's occupation and must show a good faith, active work search effort.

R994-403-113c. Work Search.

(1) General Requirements.

A claimant must make an active, good faith effort to secure employment each and every week for which benefits are claimed. Efforts to find work must be judged by the standards of the occupation and the community.

(2) Active.

An active effort to look for work is generally interpreted to mean that each week a claimant should contact a minimum of two employers not previously contacted unless the claimant is otherwise directed by the Department. Those contacts should be made with employers that hire people in the claimant's occupation or occupations for which the claimant has work experience or would otherwise be qualified and willing to accept employment. Failure of a claimant to make at least the minimum number of contacts creates a rebuttable presumption that the claimant is not making an active work search. The claimant may overcome this presumption by showing that he or she has pursued a job development plan likely to result in employment. A claimant's job development activities for a specific week should be considered in relation to the claimant's overall work search efforts and the length of the claimant's unemployment. Creating a job development plan and/or writing resumes may be reasonable and acceptable activities during the first few weeks of a claim, but may be insufficient after the claimant has been unemployed for several weeks.

(3) Good Faith.

Good faith efforts are defined as those methods which a reasonable person, anxious to return to work, would make if desirous of obtaining employment. A good faith effort is not necessarily established simply by making a specific number of contacts to satisfy the Department requirement.

(4) Union Attachment.

(a) Union attachment is sufficient to meet the requirements of an active work search if the claimant is eligible for a deferral as established under Subsection 35A-4-403(1)(b).

(b) If the claimant is not in deferred status because the claimant did not earn at least 50 percent of his or her base period wage credits in employment as a union member, or the deferral has ended, the claimant must meet the requirements of an active, good faith work search by contacting employers in addition to contacts with the union. This work search is required even though unions may have regulations and rules which penalize members for making independent contacts to try to find work or for accepting nonunion employment.

R994-403-114c. Claimant's Obligation to Prove Weekly Eligibility.

The claimant:

(1) has the burden of proving that he or she is able, available, and actively seeking full-time work:

(2) must report any information that might affect eligibility;

(3) must provide any information requested by the Department which is required to establish eligibility; and

(4) must keep a detailed record of the employers contacted, as well as other activities that are likely to result in employment for each week benefits are claimed.

R994-403-115c. Period of Ineligibility.

(1) Eligibility for benefits is established on a weekly basis. If the Department has determined that the claimant is not able or available for work, and it appears the circumstances will likely continue, an indefinite disqualification will be assessed, and the claimant must requalify by showing that he or she is able and available for work.

(2) If the Department has reason to believe a claimant has not made a good faith effort to seek work, or the Department is performing a routine audit of a claim, the Department can only require that the claimant provide proof of work search activities for the four weeks immediately preceding the Department's request. However, if the claimant admits he or she did not complete the work search activities required under this rule, the Department can disqualify a claimant for more than four weeks.

(3) The claimant will be disqualified for all weeks in which it is discovered that the claimant was not able or available to accept work without regard to the four-week limitation.

R994-403-116e. Eligibility Determinations: Obligation to Provide Information.

(1) The Department cannot make proper determinations regarding eligibility unless the claimant and the employer provide correct information in a timely manner. Claimants and employers therefore have a continuing obligation to provide any and all information and verification which may affect eligibility.

(2) Providing incomplete or incorrect information will be treated the same as a failure to provide information if the incorrect or insufficient information results in an improper decision with regard to the claimant's eligibility.

R994-403-117e. Claimant's Responsibility.

(1) The claimant must provide all of the following:

(a) his or her correct name, social security number, citizenship or alien status, address and date of birth;

(b) the correct business name and address for each base period employer and for each employer subsequent to the base period;

(c) information necessary to determine eligibility or continuing eligibility as requested on the initial claim form, or on any other Department form including work search information. This includes information requested through the use of an interactive voice response system or the Internet;

(d) the reasons for the job separation from base period and subsequent employers when filing a new claim, requalifying for a claim, or any time the claimant is separated from employment during the benefit year. The Department may require a complete statement of the circumstances precipitating the separation; and

(e) any other information requested by the Department. This includes requests for documentary evidence, written statements, or oral requests. Claimants are required to return telephone calls when requested to do so by Department employees.

(2) Claimants are also required to report, at the time and place designated, for an in-person interview with a Department representative if so requested.

(3) By filing a claim for benefits, the claimant has given consent to the employer to release to the Department all information necessary to determine eligibility even if the information is confidential.

R994-403-118e. Disqualification Periods if a Claimant Fails to Provide Information.

(1) A claimant is not eligible for benefits if the Department does not have sufficient information to determine eligibility. A claimant who fails to provide necessary information without good cause is disqualified from the receipt of unemployment benefits until the information is received by the Department.

(2) If insufficient or incorrect information is provided when the initial claim is filed, the disqualification will begin with the effective date of the claim.

(3) If a potentially disqualifying issue is identified as part of the weekly certification process and the claimant fails to provide the information requested by the Department, the disqualification will begin with the Sunday of the week for which eligibility could not be determined.

(4) If insufficient or incorrect information is provided as part of a review of payments already made, the disqualification will begin with the week in which the response to the Department's request for information is due.

(5) The disqualification will continue through the Saturday prior to the week in which the claimant provides the information.

R994-403-119e. Overpayments Resulting from a Failure to Provide Information.

(1) Any overpayment resulting from the claimant's failure to provide information, or based on incorrect information provided by the claimant, will be assessed as a fault overpayment in accordance with Subsection 35A-4-406(4) or as a fraud overpayment in accordance with Subsection 35A-4-405(5).

(2) Any overpayment resulting from the employer's failure to provide information will be assessed as a nonfault overpayment in accordance with Subsection 35A-4-406(5).

(3) If more than one party was at fault in the creation of an overpayment, the overpayment will be assessed as:

(a) a fraud or fault overpayment if the claimant was more at fault than the other parties; or

(b) a nonfault overpayment if the employer and/or the Department was more at fault, or if the parties were equally at fault.

R994-403-120e. Employer's Responsibility.

Employers must provide wage, employment, and separation information and complete all forms and reports as requested by the Department. The employer also must return telephone calls from Department employees in a timely manner and answer all questions regarding wages, employment, and separations.

R994-403-121e. Penalty for the Employer's Failure to Comply.

(1) A claimant has the right to have a claim for benefits resolved quickly and accurately. An employer's failure to provide information in a timely manner results in additional expense and unnecessary delay.

(2) If an employer fails to provide information in a timely manner without good cause, the ALJ will determine on appeal that the employer has relinquished its rights with regard to the affected claim and is no longer a party in interest. The employer's appeal will be dismissed and the employer is liable for benefits paid.

(3) The ALJ may, in his or her discretion, choose to exercise continuing jurisdiction with respect to the case and subpoena or call the employer and claimant as witnesses to determine the claimant's eligibility. If, after reaching the merits, the ALJ determines to reverse the initial decision and deny benefits, the employer is not eligible for relief of charges resulting from benefits overpaid to the claimant prior to the date of the ALJ's decision.

(4) In determining whether to exercise discretion and reach the merits, the ALJ may take into consideration:

(a) the flagrancy of the refusal or failure to provide complete and accurate information. An employer's refusal to provide information at the time of the initial Department determination on the grounds that it wants to wait and present its case before an ALJ, for instance, will be subject to the most severe penalty;

(b) whether or not the employer has failed to provide complete and accurate information in the past or on more than one case; and

(c) whether the employer is represented by counsel or a professional representative. Counsel and professional representatives are responsible for knowing Department rules and are therefore held to a higher standard.

R994-403-122e. Good Cause for Failure to Comply.

(1) If the employer or claimant has good cause for failing to provide the information in the time frame requested, no disqualification or penalty will be assessed. Good cause, as it applies to this section of the rule, may be established if the claimant or employer:

(a) made reasonable attempts to provide the information within the time frame requested, or

(b) was prevented from complying due to circumstances which were compelling or beyond their control.

R994-403-201. Department Approval for School Attendance - General Definition.

(1) Unemployment insurance is not intended to subsidize schooling. However, it is recognized that training may be a practical way to reduce chronic and persistent unemployment due to a lack of work skills, job obsolescence or foreign competition. Even though the claimant is granted Department approval, the claimant must still be able to work. With Department approval, a claimant meets the availability requirement based on his or her school attendance and successful performance. With the exception of very short-term training, Department approval is intended for classroom training as opposed to on-the-job training. Department approval is to be used selectively and judiciously. It is not to be used as a substitute for selective placement, job development, on-the-job training, or other available programs.

(2) If a claimant is ineligible under 35A-4-403(1)(c) due to school attendance, Department approval will be considered.

(3) Department approval will be granted when required by state or federal law for specific training programs.

R994-403-202. Qualifying Elements for Approval of Training.

All of the following eight elements must be satisfied for a claimant to qualify for Department approval of training. Some of these elements will be waived or modified when required by state or federal law for specific training programs.

(1) The claimant's unemployment is chronic or persistent, or likely to be chronic or persistent, due to any one of the following three circumstances:

(a) A lack of basic work skills. A lack of basic work skills may not be established unless a claimant:

(i) has a history of repeated unemployment attributable to lack of skills;

(ii) has no recent history of employment earning a wage substantially above the federal minimum wage;

(iii) has had no formal training in occupational skills;

(iv) does not have skills developed over an extended period of time by training or experience; and

(v) does not have a marketable degree from an institution of higher learning; or

(b) a change in the marketability of the claimant's skills has resulted due to new technology, or major reductions within an industry; or

(c) inability to continue working in occupations using the claimant's skills due to a verifiable, permanent physical or emotional disability,

(2) a claimant must have a reasonable expectation for success as demonstrated by:

(a) an aptitude for and interest in the work the claimant is being trained to perform, or course of study the claimant is pursuing; and

(b) sufficient time and financial resources to complete the training.

(3) The training is provided by an institution approved by the Department.

(4) The training is not available except in school. For example, on-the-job training is not available to the claimant.

(5) The length of time required to complete the training should generally not extend beyond 18 months.

(6) The training should generally be vocationally oriented unless the claimant has no more than two terms, quarters, semesters, or similar periods of academic training necessary to obtain a degree.

(7) There is a reasonable expectation of employment following completion of the training. Reasonable expectation means the claimant will find a job using the skills and education acquired while in training pursuant to a fair and objective projection of job market conditions expected to exist at the time of completion of the training.

(8) A claimant did not leave work to attend school even if the employer required the training for advancement or as a condition of continuing employment.

(9) The schooling is full-time, as defined by the training facility.

R994-403-203. Extensions of Department Approval.

Initial approval shall be granted, for the school term beginning with the week in which the attendance began, or the effective date of the claim, whichever is later. The Department may extend the approval if the claimant establishes proof of:

(1) satisfactory attendance;

(2) passing grades;

(3) continuance of the same course of study and classes originally approved; and

(4) compliance with all other qualifying elements.

R994-403-204. Availability Requirements When Approval is Granted.

If Department approval is granted, the claimant will be placed in deferred status once the training begins and will not be required to register for work or to seek and accept work. The deferral also applies to break periods between successive terms as long as the break period is four weeks or less. A claimant must make a work search prior to the onset of training, even if the claimant has been advised that the training has been approved. Benefits will not be denied when work is refused as satisfactory attendance and progress in school serves as a substitute for the availability requirements of the act.

(2) Absences from school will not necessarily result in a denial of benefits during those weeks the claimant can demonstrate he or she is making up any missed school work and is still making satisfactory progress in school. Satisfactory progress is defined as passing all classes with a grade level sufficient to qualify for graduation, licensing, or certification, as appropriate.

(3) A disqualification will be effective with the week the claimant knew or should have known he or she was not going to receive a passing grade in any of his or her classes or was otherwise not making satisfactory progress in school. It is the claimant's responsibility to immediately report any information that may indicate a failure to maintain satisfactory progress.

(4) The claimant must attend school full-time as defined by the educational institution. If a claimant discontinues school attendance, drops or changes any classes before the end of the term, Department approval may be terminated immediately. However, discontinuing a class that does not reduce the school credits below full-time status will not result in the termination of Department approval. Department approval may be reinstated during any week a claimant demonstrates, through appropriate verification, the claimant is again attending class regularly and making satisfactory progress.

(5) Notwithstanding any other provisions of this section, if the claimant was absent from school for more than one-half of the workweek due to illness or hospitalization, the claimant is considered to be unable to work and unemployment benefits will be denied for that week. A claimant has the responsibility to report any sickness, injury, or other circumstances that prevented him or her from attending school.

(6) A claimant is ineligible for Department approval if the claimant is retaking a class that was originally taken while receiving benefits under Department approval. However, if Department approval was denied during the time the course was originally in progress, approval may be reinstated to cover that portion of the course not previously subsidized if the claimant can demonstrate satisfactory progress.

R994-403-205. Short-Term Training.

Department approval may be granted even though a claimant has marketable skills and does not meet the requirements for Department approval as defined in R994-403-202 if the entire course of training is no longer than eight weeks and will enhance the claimant's employment prospects. A claimant will not be granted a waiver for training that is longer than eight weeks even if the claimant needs only eight weeks or less to complete the training. This is intended as a one-time approval per benefit year and may not be extended beyond eight weeks.

R994-403-301. Requirements for Special Benefits.

Some benefit programs, including Extended Benefits, have different availability and work search requirements. The rule governing work search for Extended Benefits is R994-402. Other special programs are governed by the act or federal law.

KEY: filing deadlines, registration, student eligibility, unemployment compensation

[November 4, 2002]2004

Notice of Continuation June 27, 2002

35A-4-403(1)

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

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