TITLE 22. Social Security

Division 1. Employment Development Department*


* Formerly Department of Human Resources Development.


Prefatory Note

Division 1 contains two subdivisions:


Subdivision 1. Director of Employment Development

Subdivision 2. California Unemployment Insurance Appeals Board

Both the Director and the Appeals Board promulgate regulations and rules dealing with the various sections of the Unemployment Insurance Code. Subdivision 1 includes only those regulations promulgated by the director; Subdivision 2 includes only those rules promulgated by the Appeals Board. Since the regulations of the Director or the rules of the Appeals Board may implement the sections of the Unemployment Insurance Code, reference should be made to both Subdivision 1 and Subdivision 2 for complete coverage.

The regulations of Subdivision 1 only are arranged in correlation with the headings, subheadings, and section numbers of the Unemployment Insurance Code. Each regulation promulgated by the Director has been related to the most nearly appropriate section of the Unemployment Insurance Code by giving the regulation a section number composed of the same number as that of the code section followed by a dash and thereafter by an arabic numeral (e.g., Unemployment Insurance Code Section: 320.5; Regulation Section: 320.5-1). Succeeding regulations relating to the same Code section are given suffix numbers in sequence (e.g., 320.5-2, 320.5-3, etc.). In those instances where the Unemployment Insurance Code section has alphabetical subdivisions and the regulation section pertains to a particular subdivision, the alphabetical designation is included as a part of the regulation section number (e.g., subdivision (c) of Unemployment Insurance Code Section 1253; Regulation Section: 1253(c)-1). Further regulations on such particular subdivision are numbered in sequence (e.g., 1253(c)-2, etc.).

The rules of Subdivision 2 are neither grouped nor numbered in any direct relationship to the Unemployment Insurance Code format. Instead, rules promulgated by the Appeals Board are arranged according to areas of subject matter. The subheadings “part” and “chapter” are omitted in Subdivision 2 and the grouping is directly by “articles” which identify the areas of subject matter. Numbering of the rules is by “sections” which are consecutive but allow for expansion gaps between articles. The number series is 5,000 et seq.


Embedded Graphic  

Subdivision 1. Director of Employment Development


(Originally Printed 4-1-45)

Division 1. Unemployment and Disability Compensation

Part 1. Unemployment Compensation

Chapter 1. General Provisions

Article 1. Policy and Interpretation


(No regulations adopted)

Article 2. General Definitions

§125-1. Definitions.

Note         History



Unless the context otherwise requires, the terms used in these regulations and in interpretations, forms and other official pronouncements issued by the Employment Development Department shall have the following meaning:

(a) “Code” means the Unemployment Insurance Code.

(b) All terms which are defined in the code shall be defined in the same manner for purposes of these regulations.

(c) “Month” means the time beginning with any day of one month to the corresponding day of the next month, or if there is no corresponding day, then through the last day of the next month.

(d) “Day” means the period of time between any midnight and the midnight following.

(e) “Social security number” means the social security account number provided for in the order of the Commissioner of Internal Revenue approved by the Secretary of the Treasury of the United States on November 5, 1936.

NOTE


Authority: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 125 and 2602, Unemployment Insurance Code.

HISTORY


1. Department of Employment regulations originally published 4-1-45 (Title 22).

2. Repealer of Articles 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 20, 21, 22, 23, 24 and 25, of Subdivision 1, filed 9-24-54; new Subdivision 1 (§§ 125-1. through 3269-1.) filed 9-24-54; both designated effective 10-4-54 (Register 54, No. 20). For history note references to former sections see Table 3, supra.

3. Amendment filed 11-29-57; designated effective 12-9-57 (Register 57, No. 21).

4. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

5. Amendment filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

6. Amendment of introductory paragraph filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

7. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§135-1. Limited Partnerships.

History



HISTORY


1. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§143-1. Definition of “Week” for Contribution and Benefit Purposes.

Note         History



(a) “Week” for contribution purposes only means the period of seven consecutive days, commencing at 12:01 a.m. on Sunday and ending at 12 midnight on Saturday.

(b) “Week” for unemployment compensation benefit purposes is defined in Section 1253-1 of these regulations.

(c) “Week” for unemployment compensation disability benefit purposes is defined in subdivision (k) of Section 2601-1 of these regulations.

CROSS-REFERENCE: See Regulations 1253-2 through 1253-11, and 1254-1, 1260-1 and 1262-1 for related definitions of week for benefit purposes.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 143 and 2602, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment of subsection (c) filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

3. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

4. Change without regulatory effect amending subsection (c) filed 1-22-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 4).

Chapter 2. Administration

Article 1. Employment Development Department

§301-1. Request for Director's Consideration.

Note         History



NOTE


Authority cited: Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 301, Unemployment Insurance Code.

HISTORY


1. Renumbering from former Section 304-1 filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§305-1. Separability of Regulations.

Note         History



Each section of each article of these regulations is intended and shall be construed as a separate regulation within the meaning of Sections 305 to 310 of the code relating to the adoption, amendment, or repeal of regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 305 to 310, incl., Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-29-57; designated effective 12-9-57 (Register 57, No. 21). See history note to a 125-1.

2. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§305-2. Request for Regulation Action.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 305, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-29-57; designated effective 12-9-57 (Register 57, No. 21). See history note to Section 125-1.

2. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

3. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

4. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§305-3. Notice, Time and Place of Hearing on Change of Regulations.

Note         History



(a) Whenever the adoption, amendment or repeal of any regulation is proposed, a public hearing shall be held thereon at Sacramento, California, or at such other places as may appear necessary or desirable.

(b) At least 45 days' notice shall be given. This notice shall be published for one time by advertisement in a newspaper of general circulation in the City of Sacramento, California.

NOTE


Authority cited: Section 306, Unemployment Insurance Code. Reference: Section 305, Unemployment Insurance Code.

HISTORY


1. Amendment and renumbering of Section 308-1 to 305-3 filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§306-1. Repeal of Existing Regulations: Savings Clause.

History



HISTORY


1. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§307-1. Publication of Notice of Hearing on Change in Regulations.

Note         History



NOTE


Authority cited: Sections 306 and 2602, Unemployment Insurance Code. Reference: § 307, Unemployment Insurance Code.

HISTORY


1. New section filed 11-29-57; designated effective 12-9-57 (Register 57, No. 21).

2. Repealer filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

§308-1. Notice, Time and Place of Hearing on Change of Regulations.

Note         History



NOTE


Authority cited: Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 308, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-29-57; designated effective 12-9-57 (Register 57, No. 21). See history note to § 125-1.

2. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

3. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

4. Amendment and renumbering of Section 308-1 to 305-3 filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§308-2. Emergency Regulations.

Note         History



NOTE


Authority cited: Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 308, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-29-57; designated effective 12-9-57 (Register 57, No. 21). See history note to § 125-1.

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§311-1. Conflict of Interest Code.

Note         History




Note: It having been found pursuant to Government Code section 11344(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and that these regulations are of limited and particular application, these regulations are not published in full in the California Code of Regulations (CCR). The regulations are available to the public for review or purchase at cost at the following locations:


EMPLOYMENT DEVELOPMENT DEPARTMENT
LEGAL OFFICE
800 CAPITOL MALL, ROOM 5020
SACRAMENTO, CALIFORNIA 95814


FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 620
SACRAMENTO, CALIFORNIA 95814


ARCHIVES
SECRETARY OF STATE
1020 O STREET, 4TH FLOOR
SACRAMENTO, CALIFORNIA 95814

The Conflict of Interest Code is designated as Article 1, Chapter 2, CCR, title 22, section 311-1.

NOTE


Authority cited: Sections 87300 and 87306, Government Code. Reference: Sections 87300, 87301, 87302 and 87306, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer and new section (including Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9). 

4. Amendment filed 1-13-88; operative 2-12-88. Approved by Fair Political Practices Commission 12-7-87 (Register 88, No. 4).

5. Amendment of section and Appendix filed 8-7-95; operative 9-6-95. Approved by Fair Political Practices Commission 5-31-95. Submitted to OAL for printing only (Register 95, No. 32).

6. Amendment of section and Appendix filed 9-5-2000; operative 10-5-2000. Approved by Fair Political Practices Commission 7-19-2000 (Register 2000, No. 36).

7. Amendment of Appendix filed 8-9-2001; operative 9-8-2001. Approved by Fair Political Practices Commission 6-22-2001 (Register 2001, No. 32). 

8. Amendment of general provisions and appendix filed 9-27-2005; operative 10-27-2005. Approved by Fair Political Practices Commission 8-2-2005 (Register 2005, No. 39).

9. Amendment of appendix filed 11-20-2007; operative 12-20-2007. Approved by Fair Political Practices Commission 10-9-2007 (Register 2007, No. 47).

§311-2. Definition of Terms.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-3. Designated Employees.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-4. Disclosure Statements.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter, approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-5. Place of Filing.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter, approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-6. Time of Filing.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-7. Contents of Statements.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-8. Manner of Reporting.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-9. Disqualification.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practice Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-10. Manner of Disqualification.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-11. Appendix A.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§311-12. Appendix B.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code and Section 87300, Government Code. Reference: Section 87100, Government Code.

HISTORY


1. New section filed 7-22-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 77, No. 30).

2. Repealer and new section filed 4-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 16).

3. Repealer filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).

§320-1. Reports with Respect to Employment and Payroll Distribution.

Note         History



Under Section 320 of the code the director is required to make such reports to the Secretary of Labor as the Secretary may require. Section 1088-8 of these regulations sets forth the basic standards with respect to reports required by the director from employers subject to the Unemployment Insurance Code for the purpose of obtaining the information needed by the director to make reports required by the federal agency.

CROSS-REFERENCE: See Regulation 1088-1.

NOTE


Authority cited: Sections 305 and 306, Unemployment Ins. Code. Reference: Sections 320 and 1088, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; appeal filed with Calif. Unempl. Ins. Appeals Board; section refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-1. Annual and Monthly Reports for Current Employment Statistics with Respect to Activities, Products, Employment, Hours, Wages, Earnings, and Related Matters.

Note         History



(a) Purpose. Under Section 320.5 of the code the director is authorized to prescribe by regulations the information required to be reported to the department by employing units and employers subject to the Unemployment Insurance Code, in order that the director may make monthly reports on employment, hours, and earnings, as required by the Secretary of Labor, on federal reporting forms “Monthly Report on Employment” (Form BLS 1932-M) and “Monthly Report on Hours and Earnings” (Form BLS 1963-M). This section sets forth the basic standards and requirements for the purpose of obtaining the information needed by the director to make monthly reports and other reports as required by the Secretary of Labor. (For annual reporting requirements of such employers, see Section 320.5-2 of these regulations.)

(b) Definitions. For the purposes of this section and Section 320.5-2 of these regulations:

(1) “Reporting employer” means any employing unit or employer described by subdivision (a) of this section or subunit of any such employing unit or employer selected by the director in a representative sample and to whom the director gives notice that monthly and annual reports are required on forms prescribed by the Secretary of Labor and supplied to the employer by the department.

(2) “Establishment” means an economic unit, generally at a single physical location, where business is conducted, or where services or industrial operations are performed, or from which employees are dispatched, for example, a school, hospital, religious institution, office of a transportation company or a government agency, a farm, factory, mill, store, or mine, or a central administrative office or auxiliary unit at a separate location from the economic unit served, except that:

If a reporting employer maintains separate payroll and inventory records for separately classifiable activities conducted at a single location, including auxiliary activities such as a central administrative office or auxiliary unit performing supporting services for other economic units of the same reporting employer but which is not an integral part of the economic units at the same location, such activity shall be deemed a separate establishment.

(3) “Pay period” means any period of not more than 31 consecutive days for which a payment of remuneration is ordinarily made to employees by the reporting employer, and includes as to a particular reporting employer every type of pay period in actual use by that reporting employer. 

EXAMPLE: Since pay periods may be for varying durations such as weekly, daily, semimonthly, or some other duration, a particular reporting employer may have two or more types of pay periods. Under the above regulation definition each reporting employer would include all types of pay periods he used which include the twelfth day of the month or the working day nearest thereto, such as daily, weekly, and semimonthly payrolls if in actual use.

(c) General Reporting Requirements. Every reporting employer shall report, not later than the seventh day following the close of the pay period which includes the twelfth day of a calendar month, to the department for all establishments of the reporting employer on a monthly report form for such calendar month supplied by the department the following:

(1) The beginning and ending dates of the pay period which includes the twelfth day of the month.

(2) For the entire pay period reported, the number of days (to the nearest one-half day) on which the majority of production and related workers performed work plus the number of holidays and vacation days during the pay period for which the majority of such workers were paid. If the pay period is longer than a week, the number of such reported days worked or paid for during the 7-consecutive-day period which includes the twelfth day of the month and which falls entirely within the pay period reported under paragraph (1) of this subdivision.

(3) The total number of persons on the payroll or payrolls covered by the monthly report who worked full time or part time or received pay for any part of the pay period reported under paragraph (1) of this subdivision. The total number of persons so reported shall include salaried officers of corporations and executives and their staffs, but shall exclude proprietors, members of unincorporated firms, and unpaid family workers. The total number of persons so reported shall include persons on vacations and sick leave for which they received pay directly from the reporting employer for the pay period reported under paragraph (1) of this subdivision, but shall exclude persons on leave without pay from the reporting employer for the entire such pay period, and pensioners and members of the Armed Forces carried on the payroll of the reporting employer but not working during such pay period.

(4) The number of women employees included in the total number of persons reported under paragraph (3) of this subdivision.

(5) The number of workers, both full-time and art-time, on the payroll or payrolls of the reporting employer, whether paid by wages or by salary, who worked during or received pay for any part of the pay period reported under paragraph (1) of this subdivision, including persons on vacations or on sick leave if paid directly by the reporting employer.

(6) The amount of pay earned during the pay period reported under paragraph (1) of this subdivision by the workers reported under paragraph (5) of this subdivision. The amount of pay so reported shall be the amount before deductions for old age insurance, disability insurance under the Unemployment Insurance Code, group insurance, withholding tax, bonds, and union dues, and shall include portal-to-portal pay, pay for overtime and for holidays, vacations, and sick leave, if paid directly by the reporting employer to employees for the pay period reported under paragraph (1) of this subdivision. The amount of pay so reported shall exclude bonuses, unless earned and paid regularly each pay period, or other pay not earned in the pay period reported such as retroactive pay, and the value of free rent, fuel, meals, or other payment in kind.

(7) For workers reported under paragraph (5) of this subdivision, the sum of the following (without conversion of overtime or other premium paid hours to straight-time equivalent hours):

(A) Man-hours worked, including overtime hours;

(B) Hours for which portal-to-portal pay is received, hours paid for standby or reporting time; and

(C) Equivalent man-hours for which employees received pay directly from the reporting employer for holidays, vacations, sick leave, or other leave paid.

(8) The reporting employer's statement as to the main factors responsible for significant changes in employment, average hours worked, average hourly earnings, or other reported items, when compared with the monthly report by the reporting employer for the preceding month; for example, factors such as wage-rate increase, more business, strike, fire, overtime, or weather. If any general wage-rate changes, excluding individual changes for length of service, merit, or promotion, have occurred since the monthly report by the reporting employer for the preceding month, the reporting employer shall report the amount or percentage of the increase or decrease in wage-rate, the effective date of the change, and the approximate number of production and related workers affected.

(9) Such other information as the director may require. The reporting forms provided by the director to the reporting employer may require additional information depending upon the type of reporting employer.

(d) Confidentiality. Information reported by any reporting employer as required by this section and Section 320.5-2 of these regulations shall be published only in statistical form, except as provided by this subdivision. All information reported by any reporting employer as required by this section and Section 320.5-2 of these regulations and the identity of the reporting employer shall be held in strict confidence by the department and employment security agencies of other states. Such information or the identity of the reporting employer shall not be published or otherwise given to the public or any other governmental agency except employment security agencies of other states, by the department in any manner without the prior written permission of the reporting employer. No publication of statistical data shall be made which might reveal the identity of any reporting employer, without specific written permission of such reporting employer.

(e) Extension of Time. The director for good cause may extend for not to exceed 10 days the time for submission by an employer of a monthly report required under this section.

(f) Delinquent or Deficient Reports. If any reporting employer fails to submit to the department any annual or monthly report within the time required by Section 320.5-2 of these regulations, or if the department is not satisfied with any annual or monthly report submitted by a reporting employer under any of such sections, the department may by written notice demand that an annual or a monthly report be submitted or that the deficiency in an annual or a monthly report submitted shall be corrected by the reporting employer. The reporting employer shall, within 30 days after the date of the mailing of such written notice, submit the annual or monthly report or corrected annual or monthly report to the department.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 320.5, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-2. Industrial Classification--Employer's Annual Statement of Activities or Products--General.

Note         History



(a) This section sets forth the basic standards and requirements to obtain the information needed by the director in an annual or less frequent report to classify such employing units and employers or subunits of any such employing units or employers in the proper industrial classification for the director's report to the Secretary of Labor.

(b) General Reporting Requirements. When requested by the department, every reporting employer shall report to the department the following information for each establishment of the reporting employer on a form supplied by the department:

(1) The principal product or activity during the designated preceding calendar year, non-manufacturing and manufacturing activities, if applicable, and for each principal product or activity shall list the percentage of total value of production, sales, or receipts during such year represented by such principal product or activity. The form supplied by the department shall set forth details and examples of the types of information requested by the department in the reporting employer's description of activities.

(2) Whether the establishment is part of a multiple establishment company (see Section 1088-8, (C)(3) for the definition) and, if so, the name, physical location, description, and principal product or activity of each worksite.

(3) Whether the establishment is primarily engaged in performing auxiliary services for other units of the company and, if so, the activity of the auxiliary unit. Auxiliary units are defined as establishments primarily engaged in performing management or support services for other establishments of the same enterprise. Auxiliary units are recognized as special types of establishments. Some examples of activities commonly performed by auxiliary units are: management and other general administrative functions; research, development and testing; and warehousing.

(4) Whether the majority of workers in the establishment are covered by collective-bargaining agreements.

(5) Such other information as the director may require. The reporting forms provided by the director to the reporting employer may require additional information depending upon the type of reporting employer.

(c) Delinquent or Deficient Reports. If any reporting employer fails to submit to the department any annual report within the time required, or if the department is not satisfied with any annual report submitted by a reporting employer under any of such sections, the department shall contact the employer and may demand by written notice that an annual report be submitted or that the deficiency in an annual report submitted shall be corrected by the reporting employer. Within 30 days after the date of the mailing of such written notice, the reporting employer shall submit the annual report or corrected annual report to the department.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 320.5, Unemployment Insurance Code.

HISTORY


1. Amendment and renumbering of Section 320.5.-21 to 320.5-2 filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36). For prior history, see Register 74, No. 6.

2. Amendment filed 4-25-2000; operative 5-25-2000 (Register 2000, No. 17).

§320.5-3. Contract Construction--Intrastate Activities-- Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-4. Contract Construction--Multistate Activities-- Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-5. Manufacturing--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-6. Transportation, Communication, and Public Utilities--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-7. Telephone--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-8. Trade--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-9. Finance, Insurance, and Real Estate--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-10. Services--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-11. State and Local Government (Except Schools)--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-12. Education (Private and Government)--Reporting Employer's Monthly Report on Employment, Payroll, and Hours.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-13. Federal--Monthly Report on Government Employment and Payrolls--Department of Defense.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-14. Federal--Monthly Report on Government Employment and Payrolls--Federal Agencies Generally.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-21. Industrial Classification--Employer's Annual Statement of Activities or Products--General.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74, effective thirtieth day thereafter (Register 74, No. 6).

2. Amendment and renumbering of Section 320.5-21 to 320.5-2 filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-22. Industrial Classification--Employer's Annual Statement of Products--Mining Industry.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-23. Industrial Classification--Employer's Annual Statement of Activities --Contract Construction --Intrastate Activities.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-24. Industrial Classification--Employer's Annual Statement of Products--Manufacturing Industry.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-25. Industrial Classification--Employer's Annual Statement of Activities--Transportation, Communication, and Public Utilities.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-26. Industrial Classification--Employer's Annual Statement of Activities--Trade Industry.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-27. Industrial Classification--Employer's Annual Statement of Activities--Finance, Insurance, and Real Estate Industry.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§320.5-28. Industrial Classification--Employer's Annual Statement of Activities--Services Industry.

Note         History



NOTE


Authority cited: Sections 305, 306, 320.5 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§322-1. Disclosure of Information.

History



HISTORY


1. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

Article 3. California Unemployment Insurance Appeals Board


(No regulations adopted by the Director, but see rules of the

California Unemployment Insurance Appeals Board,

Subdivision 2 of this Division)

Article 4. Interstate and Federal Cooperation

§454(a)-1. Interstate Reciprocal Coverage Arrangement.

Note         History



Sections 454(a)-1 through 454(a)-6 of these regulations shall govern the department in its cooperation with other states in the administration of the Interstate Reciprocal Coverage Arrangement. The purpose of the Interstate Coverage Reciprocal Arrangement is to provide for coverage under the unemployment compensation law of one state of services performed by an individual for a single employing unit for whom such services are customarily performed by such individual in more than one jurisdiction, to the end that duplication of contributions with respect to the same services be avoided and continuity of coverage of services customarily performed in more than one jurisdiction be assured.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. Amendment of NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-2. Definitions.

Note         History



As used in Sections 454(a)-1 through 454(a)-6 of these regulations unless the context clearly indicates otherwise:

(a) “Interstate Reciprocal Coverage Arrangement” and “the Arrangement” mean the arrangement approved by the Interstate Conference of Employment Security Agencies to provide for coverage under the unemployment compensation law of one state of services performed by an individual for a single employing unit for whom such services are customarily performed by such individual in more than one jurisdiction, to the end that duplication of contributions with respect to the same services be avoided and continuity of coverage of services customarily performed in more than one jurisdiction be assured.

(b) “Jurisdiction” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico and, with respect to the Federal Government, the coverage of any Federal unemployment insurance law.

(c) “Participating jurisdiction” means a jurisdiction whose administrative agency has subscribed to the Arrangement and whose adherence thereto has not terminated.

(d) “Agency” means any officer, board, commission, or other authority charged with the administration of the unemployment compensation law of a participating jurisdiction.

(e) “Interested jurisdiction” means any participating jurisdiction to which an election submitted under Sections 454(a)-1 through 454(a)-6 of these regulations is sent for its approval; and “interested agency” means the agency of such jurisdiction.

(f) “Services customarily performed by an individual in more than one jurisdiction” means services performed in more than one jurisdiction during a reasonable period, if the nature of the services gives reasonable assurance that they will continue to be performed in more than one jurisdiction or if such services are required or are expected to be performed in more than one jurisdiction under the election. “Services customarily performed by an individual in more than one jurisdiction” does not include services which are localized in California or in any other state under the definition provided by Section 603 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New sections 454(a)-2 through 454(a)-6 filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-3. Submittal and Approval of Coverage Elections Under the Arrangement.

Note         History



(a) Any employing unit may file an election to cover under the laws of a single participating jurisdiction all of the services performed for him by an individual who customarily works for him in more than one participating jurisdiction. Such an election may be filed, with respect to an individual, with any participating jurisdiction in which any of the following applies:

(1) Any part of the individual's services are performed.

(2) The individual has his residence.

(3) The employing unit maintains a place of business to which the individual's services bear a reasonable relation.

(b) The agency of the elected jurisdiction, thus selected and determined, shall initially approve or disapprove the election. If such agency approves the election, it shall forward a copy thereof to the agency of each other participating jurisdiction specified thereon, under whose unemployment compensation law the individual or individuals in question might, in the absence of such election, be covered. Each such interested agency shall approve or disapprove the election, as promptly as practicable; and shall notify the agency of the elected jurisdiction accordingly. The California Employment Development Department shall, and in case its law so requires any such interested agency may, before taking such action, require from the electing employing unit satisfactory evidence that the affected employees have been notified of, and have acquiesced in, the election. The California Employment Development Department shall require that such evidence of employee acquiescence shall be retained in the employer's files during the period the election is in effect.

(c) If the agency of the elected jurisdiction, or the agency of any interested jurisdiction, disapproves the election, the disapproving agency shall notify the elected jurisdiction and the electing employing unit of its action and of its reasons therefore.

(d) Such an election shall take effect as to the elected jurisdiction only if approved by its agency and by one or more interested agencies.

(e) An election thus approved shall take effect, as to any interested agency, only if it is approved by such agency.

(f) In case any such election is approved only in part, or disapproved by some of such agencies, the electing employing unit may withdraw its election within ten days after being notified of such action.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. Amendment of subsection (b) filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Amendment of NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-4. Effective Period of Election.

Note         History



(a) Commencement. An election duly approved under Sections 454(a)-1 through 454(a)-6 of these regulations shall become effective at the beginning of the calendar quarter in which the election was submitted, unless the election, as approved, specifies the beginning of a different calendar quarter. If the electing unit requests an earlier effective date than the beginning of the calendar quarter in which the election is submitted, such earlier date may be approved solely as to those interested jurisdictions in which the employer had no liability to pay contributions for the earlier period in question.

(b) Termination.

(1) The application of an election to any individual under Sections 454(a)-1 through 454(a)-6 of these regulations shall terminate if the agency of the elected jurisdiction finds that the nature of the services customarily performed by the individual for the electing unit has changed, so that they are no longer customarily performed in more than one participating jurisdiction. Such termination shall be effective as of the close of the calendar quarter in which notice of such findings is mailed to all parties affected.

(2) Except as provided in paragraph (1) of this subdivision, each election approved hereunder shall remain in effect through the close of the calendar year in which it is submitted, and thereafter until the close of the calendar quarter in which the electing unit gives written notice of its termination to all affected agencies.

(3) Whenever an election under Sections 454(a)-1 through 454(a)-6 of these regulations ceases to apply to any individual under paragraph (1) or (2) of this subdivision, the electing unit shall notify the affected individual or individuals.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-5. Reports and Notices by the Electing Unit.

Note         History



(a) The electing unit shall promptly notify each individual affected by its approved election, on forms supplied by the elected jurisdiction, and shall furnish the elected agency a copy of such notice.

(b) Whenever an individual covered by an election under Sections 454(a)-1 through 454(a)-6 of these regulations is separated from his employment, the electing unit shall notify him immediately as to the jurisdiction under whose unemployment compensation law his services have been covered. If at the time of termination the individual is not located in the elected jurisdiction, the electing unit shall notify him as to the procedure for filing interstate benefit claims.

(c) The electing unit shall immediately report to the elected jurisdiction any change which occurs in the conditions of employment pertinent to its election, such as cases where an individual's services for the employer cease to be customarily performed in more than one participating jurisdiction, or where a change in the work assigned to the individual requires him to perform services in a new participating jurisdiction.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-6. Termination of the Arrangement.

Note         History



Any subscribing state agency may cease to participate in the Arrangement by filing notice of its intention with the Interstate Benefit Payments Committee of the Interstate Conference of Employment Security Agencies and its participation shall cease at the close of the next calendar quarter, which starts after the date of filing such notice.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-11. Interagency Reciprocal Agreement Covering Multi-State Employment (New Jersey).

Note         History



Sections 454(a)-11 through 454(a)-16 of these regulations shall govern the department in its cooperation with the State of New Jersey in the administration of the Interagency Reciprocal Agreement Covering Multi-state Employment. The Interagency Reciprocal Agreement Covering Multi-state Employment is a reciprocal agreement between the California Employment Development Department and the Commission of Labor and Industry of the State of New Jersey for the purpose of having services customarily performed by an employee in two or more states for a single employer or employing unit covered in one state in which part of the service is performed, or in which the employee has his residence, or in which the employer or employing unit maintains a place of business. No provision of the Interagency Reciprocal Agreement Covering Multi-state Employment that conflicts with the Interstate Reciprocal Coverage Arrangement under Sections 454(a)-1 through 454(a)-6 of these regulations shall be applicable in governing the cooperation of the State of California with the participating states in the Interstate Reciprocal Coverage Arrangement and in the event of any such conflict the provisions of the Interstate Reciprocal Coverage Agreement and of Sections 454(a)-1 through 454(a)-6 of these regulations shall prevail.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New sections 454(a)-11 through 454(a)-16 filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. Amendment filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

3. Amendment of NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-12. Definitions.

Note         History



As used in Sections 454(a)-11 through 454(a)-16 of these regulations unless the context clearly indicates otherwise:

(a) “State” means the States of New Jersey, California, and any state of the United States of America that is signatory to the Interagency Agreement.

(b) “Interagency Reciprocal Agreement Covering Multi-state Employment” and “Interagency Agreement” means the interstate reciprocal agreement between the States of New Jersey and California for the purpose of having services customarily performed by an employee in two or more states for a single employer or employing unit covered in one state in which part of the service is performed, or in which the employee has his residence, or in which the employer or employing unit maintains a place of business.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-13. Election to Cover Multi-State Employment (Interagency Agreement).

Note         History



(a) Services customarily performed in the course of a calendar year by an individual for an employer or employing unit in each of the States of New Jersey and California shall be covered in their entirety by one of the states if:

(1) The services performed in the two states constitute the entire services performed in the course of a calendar year by the employee for the employer or employing unit.

(2) An election has been duly executed by both the employer or employing unit and the employee to have the services covered in their entirety by one of the states.

(b) (1) Services customarily performed in the course of a calendar year by an individual for an employer or employing unit in each of the States of New Jersey and California and in another state or states shall be covered in any state which:

(A) Any part of the service is performed.

(B) The employee has his residence.

(C) The employer or employing unit maintains a place of business.

(2) This subdivision shall apply only if all of the following conditions exist:

(A) The services performed as described in this subdivision in the several states constitute the entire services performed in the course of a calendar year by the employee for the employer or employing unit.

(B) An election has been duly executed by both the employer or employing unit and the employee to have the services covered in their entirety by one of the states involved.

(C) A reciprocal arrangement exists between the signatory agencies and the agency or agencies of the other state or states involved.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-14. Approval, Commencement and Termination of Election.

Note         History



(a) An election under Section 454(a)-13 of these regulations shall not become effective until approved by the administrative agency of each state involved.

(b) The application of an election to any individual under Sections 454(a)-11 to 454(a)-16 shall be terminated by the state of coverage if it finds that the nature of services performed by the individual for the electing unit has changed. Termination of an election shall be effective at the close of the calendar quarter in which the electing unit is given written notice of the termination.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-15. State of Coverage and Effect of Election.

Note         History



(a) The state of coverage shall be the state agreed upon and chosen by the employer or employing unit and the employee.

(b) The rights, liabilities, and obligations of both employer or employing unit and employee as to services under the election shall be determined by the state of coverage.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(a)-16. Termination of Interagency Agreement.

Note         History



Either participating agency may terminate the Interagency Agreement by giving notice to the other in writing to that effect. The termination shall become operative and effective at the close of the calendar quarter following the notice.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(b)-1. Interstate Maritime Reciprocal Arrangement.

Note         History



Sections 454(b)-1 through 454(b)-8 of these regulations shall govern the department in its cooperation with other states in the administration of the Interstate Maritime Reciprocal Arrangement. The unemployment compensation laws of some of the participating jurisdictions in the Interstate Maritime Reciprocal Arrangement provide for the coverage of maritime service on a compulsory basis while the laws of other participating jurisdictions permit the coverage of such services on a voluntary basis. The purpose of the Interstate Maritime Reciprocal Arrangement is to coordinate and integrate the coverage of maritime service between the jurisdictions so that the coverage of persons engaged in maritime services shall be as extensive as possible, and so that duplication of contributions with respect to such services be avoided and continuity of coverage of services of individuals engaged in maritime service be assured.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New sections 454(b)-1 through 454(b)-8 filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(b)-2. Definitions.

Note         History



As used in Sections 454(b)-1 through 454(b)-8 of these regulations, unless the context clearly requires otherwise:

(a) “The Interstate Maritime Reciprocal Arrangement” and the “Arrangement” means the plan approved by the Interstate Conference of Employment Security Agencies under which coverage of maritime services is coordinated and integrated as between the jurisdictions, duplication of contributions with respect to maritime services is avoided, and continuity of coverage of services of individuals engaged in maritime service is assured.

(b) “Jurisdiction” means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

(c) “Participating jurisdiction” means a jurisdiction which has subscribed to the Arrangement and has not terminated its adherence thereto in accordance with the provisions thereof.

(d) “Agency” means any officer, board, commission, or other authority charged with the administration of the unemployment compensation law of a participating jurisdiction.

(e) “American vessel” means any vessel documented or numbered under the laws of the United States, and includes any vessel which is neither documented nor numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew is employed solely by one or more citizens or residents of the United States or corporations organized under the laws of the United States or of any state.

(f) “Maritime service” means service rendered on or in connection with any American vessel engaged in interstate or foreign operations by an officer or member of its crew entirely performed within the United States, or performed under a contract of service which is entered into within the United States or during the performance of which the vessel touches at a port in the United States, if the employee is employed on and in connection with such vessel when outside the United States, except services performed by any person on vessels in the categories set forth below:

(1) Vessels plying and operating wholly within the territorial limits of a single jurisdiction.

(2) Vessels which enter or traverse waters outside the territorial limits of a single jurisdiction only as an incident to navigation within such jurisdiction.

(3) Vessels which do not provide full subsistence facilities, include sleeping quarters for the entire crew and which traverse or travel on waters both within and without a single jurisdiction provided they dock nightly or regularly at docks or piers of such single jurisdiction.

(4) Fishing vessels starting from and returning to a port within a single jurisdiction without touching ports of another jurisdiction or touching such ports solely to dispose of catch or for emergency purposes.

(5) Yachts not used for commercial purposes.

(g) “Jurisdiction of coverage” with respect to a vessel operated by an employing unit means that participating jurisdiction in regard to which it is determined, in accordance with the provisions of the Arrangement, that maritime services rendered on or in connection with such vessel by persons for such employing unit is deemed performed entirely within such participating jurisdiction.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(b)-5. Notification of Change of Jurisdiction.

Note         History



(a) Each employing unit shall notify the agency of each participating jurisdiction of the names of those of its vessels regarding services on which, in its opinion, such participating jurisdiction has become the jurisdiction of coverage under the Arrangement. The agency of each such jurisdiction shall make a proper investigation in order to ascertain whether it has been correctly designated as the jurisdiction of coverage and shall give prompt notice of its findings to the agencies of all other participating jurisdictions. If it finds that the designation was correct and if none of the agencies of the other jurisdictions takes exceptions thereto within 20 days after notice, such agency shall give final notice of its findings to the employing unit and to the agencies of all other jurisdictions.

(b) If the agency of any participating jurisdiction raises objections against such findings within the specified time, or if the agency of that jurisdiction which was designated by the employing unit as the jurisdiction of coverage holds that such designation was erroneous, an Umpire shall be selected by the agencies of the jurisdictions involved who shall ascertain the facts and establish the identity of the jurisdiction of coverage.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(b)-6. Election of Coverage.

Note         History



(a) If the unemployment compensation law of any participating jurisdiction excludes maritime service from compulsory coverage but allows voluntary coverage thereof by election, the agency of such jurisdiction will cooperate by approving any election filed with it for this purpose by an employing unit in the event that such jurisdiction would be a jurisdiction of coverage under the Arrangement. The agency of any participating jurisdiction shall refrain from approving any such election in the event that it would not be a jurisdiction of coverage under the Arrangement.

(b) The provisions of the Arrangement shall not apply to maritime service performed for any employing unit to the extent that it would not be liable for contributions under the unemployment compensation law of a jurisdiction of coverage by not employing the required number of individuals, including those in maritime service, rendering it liable therefor under the provisions of such law, unless an application by such employing unit for voluntary coverage has been approved by the agency of such jurisdiction.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(b)-7. Effective Date of the Arrangement.

Note         History



(a) The terms of the Arrangement shall apply to employing units beginning with the date on which liability in regard to maritime service commences under the Federal Unemployment Tax Act to the extent that the jurisdiction or jurisdictions of coverage subscribed to the Arrangement before or during the year in which such liability commences.

(b) The terms of the Arrangement shall apply beginning with the first day of the calendar year in which a jurisdiction subscribes to the Arrangement to the extent that such subscription occurred in a calendar year beginning after such liability commenced.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§454(b)-8. Termination of Participation in the Arrangement.

Note         History



The department shall indicate the termination of its subscription to the Arrangement by filing with the Chairman of the Subcommittee on Maritime Coverage of the Interstate Conference of Employment Security Agencies 90 days prior to the effective date of such termination, its duly adopted termination of such subscription.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-1. Interstate Benefit Payment Plan.

Note         History



Sections 455-1 through 455-9 of these regulations shall govern the department in its administrative cooperation with other states adopting a similar regulation for the payment of benefits to interstate claimants under the Interstate Benefit Payment Plan. The purpose of the Interstate Benefit Payment Plan is to establish a method for the payment of unemployment compensation benefits to those unemployed individuals who have earned uncharged wage credits or who have accumulated uncharged credit weeks under the unemployment compensation laws of one or more states and who otherwise might be deprived of benefits because of their absence from a state (or states) in which their benefit credits had been accumulated.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 454, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-2. Definitions (Interstate).

Note         History



As used in Sections 455-1 through 455-8 of these regulations, unless the context clearly requires otherwise:

(a) “Interstate benefit payment plan” means the plan approved by the Interstate Conference of Employment Security Agencies under which benefits shall be payable to unemployed individuals absent from the state (or states) in which benefit credits have been accumulated.

(b) “Interstate claimant” means an individual who claims benefits under the unemployment insurance law of one or more liable states through the facilities of an agent state. The term “interstate claimant” shall not include any individual who customarily commutes from a residence in an agent state to work in a liable state unless the department finds that this exclusion would create undue hardship on such claimants in specified areas.

(c) “State” includes the States of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.

(d) “Agent state” means any state in which an individual files a claim for benefits from another state.

(e) “Liable state” means any state against which an individual files, through another state, a claim for benefits.

(f) “Benefits” means the compensation payable to an individual, with respect to his or her unemployment, under the unemployment insurance law of the liable state.

(g) “Week of unemployment” includes any week of unemployment as defined in the law of the liable state from which benefits with respect to such week are claimed.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Amendment of subsections (c) and (f) filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-3. Registration for Work (Interstate).

Note         History



(a) Each interstate claimant shall be registered for work through any public office in the agent state when and as required by the law, regulations, and procedures of the agent state. Such registration shall be accepted as meeting the registration requirements of the liable state.

(b) Each agent state shall duly report to the liable state in question whether each interstate claimant meets the registration requirements of the agent state.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-4. Benefit Rights of Interstate Claimants.

Note         History



(a) If a claimant files a claim against any state, and it is determined by such state that the claimant has available benefit credits in such state, then claims shall be filed only against such state as long as benefit credits are available in that state. Thereafter the claimant may file claims against any other state in which there are available benefit credits. For the purposes of Sections 455-1 through 455-8 of these regulations benefit credits shall be deemed to be unavailable whenever benefits have been exhausted, terminated, or postponed for an indefinite period or for the entire period in which benefits would otherwise be payable, or whenever benefits are affected by the application of a seasonal restriction.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-5. Claim for Benefits (Interstate).

Note         History



(a) Claims for benefits or waiting period shall be filed by interstate claimants on uniform interstate claim forms and in accordance with uniform procedures as may be required. Claims shall be filed in accordance with the type of week in use in the agent state. Any adjustments required to fit the type of week used by the liable state shall be made by the liable state on the basis of consecutive claims filed.

(b) Claims shall be filed in accordance with agent state regulations for intrastate claims in local employment offices, or at an itinerant point or by mail.

(c) The liable state shall accept any claim which is filed within the time limit applicable to such claims under the law of the agent state.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-6. Determination of Claims (Interstate).

Note         History



(a) The agent state shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable state such facts relating to the claimant's availability for work and eligibility for benefits as are readily determinable in and by the agent state.

(b) The agent state's responsibility and authority in connection with a determination of interstate claims shall be limited to investigation and report of relevant facts. The agent state shall not refuse to take an interstate claim.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-7. Appellate Procedure (Interstate).

Note         History



(a) The agent state shall afford all reasonable cooperation in the taking of evidence and the holding of hearings in connection with appealed interstate benefit claims.

(b) An appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable state on the date when it is received by any qualified officer of the agent state.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-8. Extension of Interstate Benefit Payments to Include Claims Taken in and for Canada.

Note         History



Sections 455-1 through 455-7 of these regulations shall apply in all their provisions to claims taken in and for Canada.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-9. Termination.

Note         History



Any subscribing state agency may cease to participate in the Interstate Benefit Payment Plan by filing notice of its intention with the Chairman of the Interstate Benefit Payments Committee of the Interstate Conference of Employment Security Agencies. In such event, its participation shall cease at the expiration of six months from the date of filing such notice.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455-21. Interstate Plan for Combining Wages (Basic). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code

HISTORY


1. New sections 455-21 through 455-34 filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-22. Definitions (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-23. Filing of Claims (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-24. Liability for Payment of Benefits (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-25. Determination of Claims (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-26. Reports (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-27. Reimbursement of Paying State (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-28. Exception to Combining Wages (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-29. Effect of Eligibility in Paying State (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-30. Termination of Combining Wages (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-31. Relation to Interstate Benefit Payment Procedures. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-32. Termination of the Plan. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-33. Employer Submission of Wage and Employment Information (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-34. Benefit Charges Under the Interstate Plan for Combining Wages (Basic). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-41. Extended Interstate Plan for Combining Wages. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 69, No. 52.

§455-42. Definitions (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-43. Filing Combined-Wage Claims (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-44. Payment of Benefits (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-45. Claimant's Election to Combine Wages (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-46. Determination of Combined-Wage Claims (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-47. Reports (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-48. Reimbursement of Paying State (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-49. Exception to Combining Wages (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-50. Termination. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-51. Employer Submission of Wage and Employment Information (Extended Plan). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-52. Benefit Charges Under the Extended Plan (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-61. Consolidated Interstate Plan for Combining Wages. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 70, No. 4.

§455-62. Relation to Other Interstate Plans for Combining Wages. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-63. Definitions (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-64. Filing Consolidated Combined-Wage Claims (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-65. Payments of Benefits (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-66. Determination of Claims (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-67. Reports (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-68. Reimbursement of Paying State (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-69. Exception to Combining Wages (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-70. Termination. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§455-71. Employer Submission of Wage and Employment Information (Consolidated Plan). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 70, No. 4.

§455-72. Benefit Charges Under the Consolidated Plan (Interstate). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 72, No. 24.

§455.5-1. Interstate Arrangement for Combining Employment and Wages--Purpose.

Note         History



Sections 455.5-1 through 455.5-13 of these regulations shall govern the department in its administrative cooperation with other states in the administration of the Interstate Arrangement for Combining Employment and Wages. The Interstate Arrangement for Combining Employment and Wages is approved by the Secretary under Section 3304(a)(9)(B) of the Federal Unemployment Tax Act to establish a system whereby an unemployed worker with covered employment or wages in more than one state may combine all such employment and wages in one state, in order to qualify for benefits or to receive more benefits.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. New sections 455.5-1-455.5-13 filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment of NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 31).

§455.5-2. Consultation with the State Agencies.

Note         History



As required by Section 3304(a)(9)(B) of the Federal Unemployment Tax Act, this arrangement has been developed in consultation with the state unemployment compensation agencies. For purposes of such consultation in its formulation and any future amendment the Secretary recognizes, as agents of the state agencies, the duly designated representatives of the Interstate Conference of Employment Security Agencies.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455.5-3. Interstate Cooperation.

Note         History



Each state will cooperate with every other state by implementing such rules, regulations and procedures as may be prescribed for the operation of this arrangement. Each state agency shall identify the paying and the transferring state with respect to combined-wage claims filed in its state.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455.5-4. Rules, Regulations, Procedures, Forms, Resolution of Disagreements.

Note         History



All states shall operate in accordance with such rules, regulations and procedures, and shall use such forms, as shall be prescribed by the Secretary in consultation with the state unemployment compensation agencies. All rules, regulations and standards prescribed by the Secretary with respect to intrastate claims will apply to claims filed under this arrangement unless they are clearly inconsistent with the arrangement. The Secretary shall resolve any disagreement between states concerning the operation of the arrangement, with the advice of the duly designated representatives of the state unemployment compensation agencies.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455.5-5. Effective Date (Interstate Arrangement). [Repealed]

History



HISTORY


1. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455.5-6. Definitions.

Note         History



As used in Sections 455.5-1 through 455.5-13 of these regulations and for the purpose of this arrangement and the procedures issued to effectuate it:

(a) “State” includes the States of the United States of America, the District of Columbia, and the Commonwealth of Puerto Rico, and includes the Virgin Islands.

(b) “State agency” means the agency which administers the unemployment compensation law of a state.

(c) “Combined-wage claim” means a claim filed under this arrangement.

(d) “Combined-wage claimant” means a claimant who has covered wages under the unemployment compensation law of more than one state and who has filed a claim under this arrangement.

(e) “Arrangement” and “Interstate Arrangement” means the Interstate Arrangement for Combining Employment and Wages described in Section 455.5-1 of these regulations.

(f) “Paying state” means a single State against which the claimant files a combined-wage claim, if the claimant has wages and employment in that State's base period(s) and the claimant qualifies for unemployment benefits under the unemployment compensation law of that State using combined wages and employment.

(g) “Transferring state” means a state in which a combined-wage claimant had covered employment and wages in the base period of a paying state, and which transfers such employment and wages to the paying state for its use in determining the benefit rights of such claimant under its law.

(h) “Employment” means all services which are covered under the unemployment compensation law of a state, whether expressed in terms of weeks of work or otherwise.

(i) “Wages” means all remuneration for “employment” as defined by subdivision (h) of this section.

(j) “Secretary” means the Secretary of Labor of the United States.

(k) “Base period” and “benefit year” means the base period and benefit year applicable under the unemployment compensation law of the paying state.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. Amendment of subsections (a) and (f) filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

2. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

3. Amendment of subsections (a) and (f) and repealer of subsections (f)(1)-(2) filed 1-21-2010; operative 2-20-2010 (Register 2010, No. 4).

§455.5-7. Election to File a Combined-Wage Claim.

Note         History



(a) Any unemployed individual who has had employment covered under the unemployment compensation law of two or more “states,” whether or not he or she is monetarily qualified under one or more of them, may elect to file a combined-wage claim. He or she may not so elect, however, if he or she has established a benefit year under any state or federal unemployment compensation law and:

(1) His or her benefit year has not ended; and

(2) He or she still has unused benefit rights based on such benefit year.

(b) For the purposes of this arrangement, a claimant shall not be considered to have unused benefit rights based on a benefit year which he or she has established under a state or federal unemployment compensation law if:

(1) He or she has exhausted his rights to all benefits based on such benefit year; or

(2) His or her rights to such benefits have been postponed for an indefinite period or for the entire period in which benefits would otherwise be payable; or

(3) Benefits are affected by the application of a seasonal restriction.

(c) If an individual elects to file a combined-wage claim, all employment and wages in all states in which he or she worked during the base period of the paying state must be included in such combining, except employment and wages which are not transferable under subdivision (b) of Section 455.5-9 of these regulations.

(d) Such a potential combined-wage claimant may withdraw his or her combined-wage claim within the period prescribed by the law of the paying state for filing an appeal, protest, or request for redetermination (as the case may be) from the monetary determination of the combined-wage claim, if he or she either:

(1) Repays in full any benefits paid to him or her thereunder; or

(2) Authorizes each state against which he or she files a substitute claim for benefits to withhold and forward to the paying state a sum sufficient to repay such benefits.

(e) If the combined-wage claimant files his or her claim in a state other than the paying state, he or she shall do so pursuant to the Interstate Benefit Payment Plan. (See Sections 455-1 through 455-9 of these regulations.)

(f) If a State denies a combined-wage claim, it must inform the claimant of the option to file in another State in which the claimant has wages and employment during that State's base period(s).

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, of the Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

2. Amendment filed 1-21-2010; operative 2-20-2010 (Register 2010, No. 4).

§455.5-8. Responsibilities of the Paying State--Transfer of Employment and Wages--Payment of Benefits.

Note         History



(a) The paying state shall request the transfer of a combined-wage claimant's employment and wages in all states during its base period, and shall determine his or her entitlement to benefits (including additional benefits, extended benefits and dependents' allowances when applicable) under the provisions of its law based on employment and wages in the paying state and all such employment and wages transferred to it hereunder. The paying state shall apply all the provisions of its law to each determination made hereunder, except that the paying state may not determine an issue which has previously been adjudicated by a transferring state. Such exception shall not apply, however, if the transferring state's determination of the issue resulted in making the combined-wage claim possible under paragraph (2) of subdivision (b) of Section 455.5-7 of these regulations. If the paying state fails to establish a benefit year for the combined-wage claimant, or if he or she withdraws his or her claim as provided herein, it shall return to each transferring state all employment and wages.

(b) Notices of Determination. The paying state shall give to the claimant a notice of each of its determinations on his or her combined-wage claim that he or she is required to receive under the Secretary's Claim Determinations Standard and the contents of such notice shall meet such Standard. When the claimant is filing his or her combined-wage claims in a state other than the paying state, the paying state shall send a copy of each such notice to the local office in which the claimant filed such claims.

(c) Redeterminations.

(1) Redeterminations may be made by the paying state in accordance with its law based on additional or corrected information received from any source, including a transferring state, except that such information shall not be used as a basis for changing the paying state if benefits have been paid under the combined-wage claim.

(2) When a determination is made, as provided in paragraph (a) of this section, which suspends the use of wages earned in employment with an educational institution during a prescribed period between successive academic years or terms or other periods as prescribed in the law of the paying state in accordance with Section 3304(a)(6)(A)(i)-(iv) of the Internal Revenue Code of 1954, the paying state shall furnish each transferring state involved in the combined-wage claim an adjusted determination used to recompute each state's proportionate share of any charges that may accumulate for benefits paid during the period of suspended use of school wages. Wages which are suspended shall be retained by the paying state for possible future reinstatement to the combined-wage claim and shall not be returned to the transferring state.

(d) Appeals.

(1) Except as provided in paragraph (3) of this subdivision, where the claimant files his or her combined-wage claim in the paying state, any protest, request for redetermination or appeal shall be in accordance with the law of such state.

(2) Where the claimant files his or her combined-wage claim in a state other than the paying state, or under the circumstances described in paragraph (3) of this subdivision, any protest, request for determination or appeal shall be in accordance with the Interstate Benefit Payment Plan. (See Sections 455-1 through 455-9 of these regulations.)

(3) To the extent that any protest, request for redetermination or appeal involves a dispute as to the coverage of the employing unit or services in a transferring state, or otherwise involves the amount of employment and wages subject to transfer, the protest, request for redetermination or appeal shall be decided by the transferring state in accordance with its law.

(e) Recovery of Prior Overpayments. If there is an overpayment outstanding in a transferring state and such transferring state so requests, the overpayment shall be deducted from any benefits the paying state would otherwise pay to the claimant on his or her combined-wage claim except to the extent prohibited by the law of the paying state. The paying state shall transmit the amount deducted to the transferring state or credit the deduction against the transferring state's required reimbursement under this arrangement. This subdivision shall apply to overpayments only if the transferring state certifies to the paying state that the determination of overpayment was made within three years before the combined-wage claim was filed and that repayment by the claimant is legally required and enforceable against him or her under the law of the transferring state.

(f) Statement of Benefit Charges.

(1) At the close of each calendar quarter, the paying state shall send each transferring state a statement of benefits charged during such quarter to such state as to each combined-wage claimant.

(2) Except as provided in paragraphs (c)(2), (f)(3), and (f)(5) of this regulation, each such charge shall bear the same ratio to the total benefits paid to the combined-wage claimant by the paying state as his or her wages transferred by the transferring state bear to the total wages used in such determination. Each such ratio shall be computed as a percentage, to three or more decimal places.

(3) Charges to the transferring state shall not include the costs of any benefits paid which are funded or reimbursed from the Federal Unemployment Benefits and Allowances account in the U.S. Department of Labor appropriation, including:

(A) Benefits paid pursuant to 5 U.S.C. 8501-8525; and

(B) Benefits which are reimbursable under Part B of Title II of the Emergency Jobs and Unemployment Assistance Act of 1974 (Pub.L. 93-567).

(4) With respect to benefits paid after December 31, 1978, except as provided in paragraphs (3) and (5) of this subdivision, all transferring states will be charged by the paying state for extended benefits in the same manner as for regular benefits.

(5) With respect to new claims established a benefit year effective on and after July 1, 1977, the United States shall be charged directly by the paying state, in the same manner as is provided in paragraphs (1) and (2) of this subdivision, in regard to federal civilian service and wages and federal military service and wages assigned or transferred to the paying state and included in combined-wage claims in accordance with Parts 609, 614, and 616 of Chapter V of Title 20 of the Code of Federal Regulations. With respect to new claims effective before July 1, 1977, prior law shall apply.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

2. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

3. Amendment of subsection (a) filed 1-21-2010; operative 2-20-2010 (Register 2010, No. 4).

§455.5-9. Responsibilities of Transferring States (Interstate).

Note         History



(a) Transfer of Employment and Wages. Each transferring state shall promptly transfer to the paying state the employment and wages the combined-wage claimant had in covered employment during the base period of the paying state. Any employment and wages so transferred shall be transferred without restriction as to their use for determination and benefit payments under the provisions of the paying state's law.

(b) Employment and Wages Not Transferable. Employment and wages transferred to the paying state by a transferring state shall not include:

(1) Any employment and wages which have been transferred to any other paying state and not returned unused, or which have been used in the transferring state as the basis of a monetary determination which established a benefit year.

(2) Any employment and wages which have been canceled or are otherwise unavailable to the claimant as a result of a determination by the transferring state made prior to its receipt of the request for transfer, if such determination has become final or is in the process of appeal but is still pending. If the appeal is finally decided in favor of the combined-wage claimant, any employment and wages involved in the appeal shall forthwith be transferred to the paying state and any necessary redetermination shall be made by such paying state.

(c) Reimbursement of Paying State. Each transferring state shall, as soon as practicable after receipt of a quarterly statement of charges described herein, reimburse the paying state accordingly.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455.5-10. Reuse of Employment and Wages (Interstate).

Note         History



Employment and wages which have been used under this arrangement for a determination of benefits which establishes a benefit year shall not thereafter be used by any state as the basis for another monetary determination of benefits.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455.5-11. Amendment of Interstate Arrangement. [Repealed]

History



HISTORY


1. Repealer filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

§455.5-12. Employer Submission of Employment and Wage Information (Interstate Arrangement). [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§455.5-13. Benefit Charges Under the Interstate Arrangement.

Note         History



(a) The department shall charge benefits paid pursuant to a combined-wage claim under the Interstate Arrangement for Combining Employment and Wages in the following manner:

(1) Whenever California is not the paying state and has transferred employment or wages to another state which are used for the payment of benefits for which California is liable, benefits paid to an unemployed individual based upon such transferred employment or wages paid to the individual by an employer covered in California shall be charged against the reserve account of the employer or shall be reimbursed to the Unemployment Fund by the employer if the employer is covered in California on an additional cost of benefits or a cost of benefits paid and charged basis, but if transferred employment or wages were paid to the individual by more than one employer covered in California such benefits paid shall be charged to the respective reserve accounts of such employers covered in California or be reimbursed by such employers covered in California on an additional cost of benefits or a cost of benefits paid and charged basis in the proportion that the total of such transferred employment or wages paid to the individual by each such employer covered in California bears to the total transferred employment or wages paid to the individual by all employers covered in California. Employers covered in California shall be entitled to rulings in accordance with the California Unemployment Insurance Code.

(2) Whenever California is the paying state, the provisions of the California Unemployment Insurance Code shall apply to the disposition of charges and liability for benefits paid that are not reimbursable by another state.

(b) Except as modified by this section, the provisions of Article 4 (commencing with Section 1025) of Chapter 4, Part 1, Division 1, and of Article 3 (commencing with Section 1326) of Chapter 5, Part 1, Division 1 of the California Unemployment Insurance Code with respect to procedures for rulings relating to benefit charges shall apply to a combined-wage claim under the Interstate Arrangement for Combining Employment and Wages.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 455.5, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 9-3-81; effective thirtieth day thereafter (Register 81, No. 36).

Chapter 3. Scope or Coverage

Article 1. Employment

§606-1. Assistant and Substitute Employees--Constructive Knowledge.

Note         History



(a) “Constructive knowledge” by an employing unit of the work of each individual employed to perform or to assist in performing the work of any employee of that employing unit, whether or not the individual was hired or paid directly by the employing unit, exists under any of the following circumstances:

(1) The extent of the territory to be covered, or the amount of work to be done is such that the work of the employee cannot be performed without the assistance of another individual.

(2) The nature of the business is such that the employment of an assistant or substitute individual will be required to perform or to assist in performing the work of the employee.

(3) The amount or the method of computation of the compensation indicates that the remuneration is in excess of that normally expected to be paid solely to one employee for the performance of the work.

(4) The employment of an assistant or substitute individual in the particular work involved is a customary practice, or is required by a union agreement or the contract of employment.

(5) The employing unit has given the employee general authority to take such action as in his judgment is required for performance of the work.

(b) The department shall not be precluded by this regulation from considering circumstances, in addition to those enumerated in subdivision (a) of this section, as constituting “constructive knowledge.”

(c) The fact that an employing unit pays a lump sum to an employee and that employee, in turn, hires, directs, controls and pays an assistant or substitute individual is not controlling. Neither is it controlling if a contract of employment provides that an individual engaged by an employee to assist him in performing or to perform his work shall be his employee rather than an employee of the employing unit.

NOTE


Authority cited: Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 606, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

§607-1. Segregation of Exempt Services and Subject Employment. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 607, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§607-2. Segregation. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 607, Unemployment Insurance Code.

HISTORY


1. Repealer filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

§612-1. Services in Connection with Christmas Trees, Forestry and Lumbering. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(a)-1. Land Leveling. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(a)-2. Fertilizing. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(b)-1. Sowing and Planting. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(b)-2. Grain and Seed Cleaning. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(c)-1. Cultivation and Thinning. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(c)-2. Weed Control. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(c)-3. Heating. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(c)-4. Fumigating, Spraying and Dusting. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(d)-1. Nonprofit Operation of Ditches, Canals, Reservoirs, or Waterways. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(e)-1. Harvesting. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(f)-1. Assembly and Storage. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§612(g)-1. Raising, Feeding, and Management of Livestock, Mink, Poultry, Rabbits, and Bees. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613-1. Major Part. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(a)-1. Agricultural Labor Performed in the Employ of the Owner or Tenant of a Farm in Connection with Handling, Drying, Packing, Processing, etc. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(a)-2. Drying. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(a)-3. Packing (Other Than Field Packing). [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(a)-4. Processing--Unmanufactured State. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(a)-5. Marketing. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(a)-6. Cotton Ginning, Cottonseed Oil, and Cottonseed Feed. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(a)-7. Specialized Services in Connection with Handling, Drying, Packing, Packaging, Processing, Freezing, Grading, Storing, or Marketing Facilities. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(b)-1. Specialized Services in Connection with Operation, Management, Conservation, Improvement or Maintenance of Farm--General. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(b)-2. Specialized Services--Construction, Maintenance and Repair of Dwellings, Buildings, Equipment, Roads, and Other Facilities. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(b)-3. Specialized Services in Connection with Storing, Transporting, and Ferrying Equipment. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(b)-4. Specialized Services--Water Well Drilling. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(c)-1. Irrigation or Operation or Maintenance of Ditches, Canals, Reservoirs, or Waterways in Employ of Owner or Tenant of Farm. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(d)-1. Nurseries--Commercial Operations. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§613(d)-2. Terminal Market. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§614-1. Definition of a Farm. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§614-2. Nurseries. Propagating, Growing, Harvesting, and Assembly and Storage of Nursery Stock. [Repealed]

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code. Issuing agency: Department of Benefit Payments.

HISTORY


1. New section filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

Article 1.5. Employee

§621(b)-1. Employer-Employee Relationship: Common Law Rules.

Note         History



The definition of a common law employee shall be in accordance with the regulations issued pursuant to Section 13004 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 621, Unemployment Insurance Code.

HISTORY


1. New article 1.5 (sections 621(b)-1 and 621(c)-1) filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment filed 6-18-81; effective thirtieth day thereafter (Register 81, No. 25).

3. Amendment filed 5-12-92; operative 6-11-92 (Register 92, No. 20).

§621(c)-1. Special Classes of Employees: Agent-Driver, Commission-Driver; Traveling or City Salesman; Home Worker.

Note         History



(a) Occupational Groups. Under subdivision (c) of Section 621 of the code, individuals are employees if they perform services for remuneration under certain prescribed circumstances in the following occupational groups:

(1) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services for his or her principal.

(2) As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his or her principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations.

(3) As a home worker performing work, according to specifications furnished by the person for whom the services are performed, on materials or goods furnished by such person which are required to be returned to such person or a person designated by him or her.

(b) General. In order for an individual to be an employee pursuant to subdivision (c) of Section 621 of the code, the individual must perform services in an occupation falling within one of the three occupational groups enumerated in subdivision (a) of this section. If the individual does not perform services in one of the designated occupational groups, he or she is not an employee under this section. An individual who is not an employee under this section may nevertheless be an employee pursuant to other subdivisions of Section 621 of the code. The language used to designate the respective occupational groups relates to fields of endeavor in which particular designations are not necessarily in universal use with respect to the same service. The designations are addressed to the actual services without regard to any technical or colloquial labels which may be attached to such services. Thus, a determination whether services fall within one of the designated occupational groups depends upon the facts of the particular situation.

The factual situations set forth below are illustrative of some of the individuals falling within each of the three occupational groups enumerated in subdivision (a) of this section. The illustrative factual situations are as follows:

(1) Agent-driver or commission-driver. This occupational group includes agent-drivers or commission-drivers who are engaged in distributing meat or meat products, vegetables or vegetable products, fruit or fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services for their principals. An agent-driver or commission-driver includes an individual who operates his or her own truck or the truck of a person for whom he or she performs services, serves customers designated by such person as well as those solicited on his or her own, and whose compensation is a commission on his or her sales or the difference between the price he or she charges his or her customers and the price he or she pays to such person for the product or service.

(2) Traveling or city salesman.

(A) This occupational group includes a city or traveling salesman who is engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his or her principal (except for sideline sales activities on behalf of some other person or persons) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations. An agent-driver or commission-driver is not within this occupational group. City or traveling salesmen who sell to retailers or to the others specified, operate off the premises of their principals, and are generally compensated on a commission basis, are within this occupational group. Such salesmen are generally not controlled as to the details of their services or the means by which they cover their territories, but in the ordinary case they are expected to call on regular customers with a fair degree of regularity.

(B) In order for a city or traveling salesman to be included within this occupational group, his or her entire or principal business activity must be devoted to the solicitation of orders for one principal. Thus, the multiple-line salesman generally is not within this occupational group. However, if the salesman solicits orders primarily for one principal, he or she is not excluded from this occupational group solely because of sideline sales activities on behalf of one or more other persons. In such a case, the salesman is within this occupational group only with respect to the services performed for the person for whom he or she primarily solicits orders and not with respect to the services performed for such other persons. The following examples illustrate the application of the foregoing provisions:

EXAMPLE 1. Salesman A's principal business activity is the solicitation of orders from retail pharmacies on behalf of the X Wholesale Drug Company. A also occasionally solicits orders for drugs on behalf of the Y and Z companies. A is within this occupational group with respect to his services for the X Company but not with respect to his services for either the Y Company or the Z Company.

EXAMPLE 2. Salesman B's principal business activity is the solicitation of orders from retail hardware stores on behalf of the R Tool Company and the S Cooking Utensil Company. B regularly solicits orders on behalf of both companies. B is not within this occupational group with respect to the services performed for either the R Company or the S Company.

EXAMPLE 3. Salesman C's principal business activity is the house-to-house solicitation or orders on behalf of the T Brush Company. C occasionally solicits such orders from retail stores and restaurants. C is not within this occupational group.

(3) Home Worker. This occupational group includes a worker who performs services off the premises of the person for whom the services are performed, in the home of the worker, under the conditions specified by the code.

EXAMPLE 4. A manufacturer of plumbing products hired workers to pick up parts at the plant, take the parts to the homes of the workers, assemble the parts into such products as pistons, flappers for toilet tanks, and repair kits stapled in envelopes, as specified by the manufacturer. The worker completed the assembly, delivered it to the plant, was paid on a piecework rate, and picked up another parts supply.

These workers are within the occupational group of home workers.

(c) Additional Conditions. 

(1) The fact that an individual falls within one of the enumerated occupational groups, however, does not make such individual an employee under this section unless all of the following conditions exist:

(A) The contract of service contemplates that substantially all the services to which the contract related in the particular designated occupation are to be performed personally by such individual.

(B) Such individual has no substantial investment in the facilities used in connection with the performance of such services (other than in facilities for transportation).

(C) Such services are part of a continuing relationship with the person for whom the services are performed and are not in the nature of a single transaction.

(2) “Contract of service,” as used in this section and subdivision (c) of Section 621 of the code, means an arrangement, formal or informal under which the particular services are performed. The requirement that the contract of service shall contemplate that substantially all the services to which the contract relates in the particular designated occupation are to be performed personally by the individual means that it is not contemplated that any material part of the services to which the contract relates in such occupation will be delegated to any other person by the individual who undertakes under the contract to perform such services.

(3) “Facilities,” as used in this section and subdivision (c) of Section 621 of the code, include equipment and premises available for the work or enterprise as distinguished from education, training, and experience, but do not include such tools, instruments, equipment, or clothing, as are commonly or frequently provided by employees. An investment in an automobile by an individual which is used primarily for his or her own transportation in connection with the performance of services for another person has no significance, since such investment is comparable to outlays for transportation by an individual performing similar services who does not own an automobile. Moreover, the investment in facilities for the transportation of the goods or commodities to which the services relate is to be excluded in determining the investment in a particular case. If an individual has a substantial investment in facilities of the requisite character, he or she is not an employee within the meaning of this section, since a substantial investment of the requisite character standing alone is sufficient to exclude the individual from the employee concept under this paragraph.

(4) If the services are not performed as part of a continuing relationship with the person for whom the services are performed, but are in the nature of a single transaction, the individual performing such services is not an employee of such person within the meaning of this section. The fact that the services are not performed on consecutive workdays does not indicate that the services are not performed as part of a continuing relationship.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 621, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

Article 2. Excluded Services

§626-1. Services in Connection with Christmas Trees, Forestry and Lumbering. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Sections 626, 627 and 628, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17). For history of former section see Register 59, No. 22.

2. Amendment of subsection (b) filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(a)-1. Land Leveling. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Sections 626 and 628, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(a)-2. Fertilizing. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; appeal filed with California Unemployment Insurance Appeals Board; section refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(b)-1. Sowing and Planting. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(b)-2. Grain and Seed Cleaning. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Sections 626 and 627, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; appeal filed with California Unemployment Insurance Appeals Board; amendment refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(c)-1. Cultivation and Thinning. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72, effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(c)-2. Weed Control. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(c)-3. Heating. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; appeal filed with California Unemployment Insurance Appeals Board; section refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(c)-4. Fumigating, Spraying and Dusting. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24)

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(c)-5. Fumigating, Spraying and Dusting. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; appeal filed with California Unemployment Insurance Appeals Board; Section refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§626(d)-1. Nonprofit Operation of Ditches, Canals, Reservoirs, or Waterways. [Repealed]

Note         History



NOTE


Additional authority cited: Section 305 and 1088, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(e)-1. Harvesting. [Repealed]

Note         History



NOTE


Specific authority cited: Section 626, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(f)-1. Assembly and Storage. [Repealed]

Note         History



NOTE


Additional authority cited: Sections 305 and 1088, Unemployment Insurance Code. Reference: Section 626, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

3. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

4. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§626(g)-1. Raising, Feeding, and Management of Livestock, Mink, Poultry, Rabbits, and Bees. [Repealed]

Note         History



CROSS-REFERENCE: For status of services in the use of cottonseed feed as feed for livestock, mink, poultry, or rabbits, see subdivision (b) of Section 627(a)-6 of these regulations.

NOTE


Specific authority cited: Section 626, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627-1. Major Part. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Sections 607 and 627, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(a)-1. Exempt Agricultural Labor Performed in the Employ of the Owner or Tenant of a Farm in Connection with Handling Drying, Packing, Processing, etc. [Repealed]

History



CROSS-REFERENCE: For provisions relating to subdivision (a) of 627 of the code see Regulations 626(b)-2, 626(f)-1, 626(g)-1, 627(a)-2 to 627(a)-7, and 627(d)-1 and 627(d)-2.

HISTORY


1. Repealer filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Modification of cross-reference filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§627(a)-2. Drying. [Repealed]

Note         History



NOTE


Specific authority cited: Section 627, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(a)-3. Packing (Other Than Field Packing). [Repealed]

Note         History



NOTE


Specific authority cited: Section 627, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24). For prior history of this section number, see Register 60, No. 17.

2. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(a)-4. Processing--Unmanufactured State. [Repealed]

Note         History



NOTE


Specific authority cited: Section 627, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(a)-5. Marketing. [Repealed]

Note         History



NOTE


Specific authority cited: Section 627, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(a)-6. Cotton Ginning, Cottonseed Oil, and Cottonseed Feed. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Sections 626 and 627, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(a)-7. Specialized Services in Connection with Handling, Drying, Packing, Packaging, Processing, Freezing, Grading, Storing, or Marketing Facilities. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Section 627, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(b)-1. Specialized Services in Connection with Operation, Management, Conservation, Improvement or Maintenance of Farm--General. [Repealed]

History



HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(b)-2. Specialized Services--Construction, Maintenance and Repair of Dwellings, Buildings, Equipment, Roads, and Other Facilities. [Repealed]

History



HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(b)-3. Specialized Services in Connection with Storing, Transporting, and Ferrying Equipment. [Repealed]

Note         History



NOTE


Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Sections 626 and 627, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; Appeal filed with California Unemployment Insurance Appeals Board; Amendment refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(b)-4. Specialized Services--Water Well Drilling. [Repealed]

History



HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(c)-1. Irrigation or Operation or Maintenance of Ditches, Canals, Reservoirs, or Waterways in Employ of Owner or Tenant of Farm. [Repealed]

History



HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer and new section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(c)-2. Terminal Market. [Repealed]

Note         History



NOTE


Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 627, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§627(c)-3. Winery. [Repealed]

Note         History



NOTE


Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 627, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§627(c)-4. Cider Production. [Repealed]

Note         History



NOTE


Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 627, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§627(d)-1. Nurseries--Commercial Operations. [Repealed]

Note         History



NOTE


Specific authority cited: Section 627, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§627(d)-2. Terminal Market. [Repealed]

Note         History



NOTE


Specific authority cited: Section 627, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§628-1. Definition of a Farm. [Repealed]

Note         History



NOTE


Sections 306 and 2602, Unemployment Insurance Code. Reference: Sections 626, 627 and 628, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§628-2. Nurseries. Propagating, Growing, Harvesting, and Assembly and Storage of Nursery Stock. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306 and 2602, Unemployment Insurance Code. Reference: Sections 626, 627 and 62, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§628.5-1. Hay Baling. [Repealed]

History



HISTORY


1. Repealer filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

§629-1. Domestic Service--Private Home.

Note         History



(a) “Domestic service in a private home” includes service of a household nature performed by an employee in or about a private home in connection with the maintenance of the private home or premises, or for the comfort and care of the individual or family, as distinguished from service which is directly related to the business or career of the employer.

(b) “Service of a household nature” includes service customarily rendered by cooks, waiters, butlers, housekeepers, governesses, maids, valets, baby sitters, janitors, laundresses, furnacemen, caretakers, handymen, gardeners, and by chauffeurs of automobiles, crews of private yachts, and pilots of private airplanes for family use. “Service of a household nature” does not include service performed by private secretaries, tutors, librarians, or musicians, or by carpenters, plumbers, electricians, painters or other skilled craftsmen.

(c) “Private home” means the social unit formed by an individual or family residing in a private household. “Private home” includes the fixed place of abode of an individual or family in a private house, or in a separate and distinct dwelling unit in an apartment house, hotel or other similar establishment. “Private home” also includes a summer or winter home of an individual or family. “Private home” does not include any dwelling house or premises used primarily as a boarding or lodging house for the purpose of supplying board or lodging to the public as a business enterprise, or used primarily for the purpose of furnishing accommodations or entertainment to clients, customers, or patrons.

(d) “Family” for purposes of this section includes foster relationships and relationships by blood, marriage, and adoption.

(e) “Domestic service” does not include:

(1) Service of a household nature performed in or about a private home in the employ of any employing unit engaged in furnishing such service, such as a gardening, janitorial, or maintenance enterprise.

(2) Service of a household nature performed in connection with the operation of rooming or lodging houses, boarding houses, clubs including college clubs or fraternity or sorority houses, hotels, hospitals, eleemosynary institutions, or commercial offices or establishments.

(f) If the person who pays the remuneration of a person performing domestic service in a private home is one other than the individual or family for whom the services are rendered, the domestic services are exempt to the extent provided by Section 629 of the code under any of the following circumstances:

(1) The individual or family has the right to direct and control the performance of the domestic services. For example, if X Company pays the remuneration of a housekeeper who performs services in the private home of Y, an employee of X Company, and the services are directed and controlled by Y's wife, the services are exempt to the extent provided by Section 629 of the code. (The determination of tax liability of X Company for additional remuneration indirectly paid to its employee Y, would be made pursuant to Article 2, (commencing with Section 926), Chapter 4, Part 1 of Division 1 of the code.)

(2) A family relationship exists between the payor and the individual or family. For example, if a son or daughter residing in his or her separate home pays the remuneration of a domestic who performs services in his or her mother's home, the services are exempt to the extent provided by Section 629 of the code.

(3) Contributions to the support of the individual or family have been assumed by the payor for charitable or moral reasons. For example, if a life-long friend of a disabled person pays the remuneration of a domestic who performs services in the disabled person's home, the services are exempt to the extent provided by Section 629 of the code.

(4) Contributions to the support of the individual or family are a legal obligation of the payor. For example, if the terms of a divorce or dissolution require the husband to pay the remuneration of a governess who performs services in a private home caring for children in the custody of the former wife, the services are exempt to the extent provided by Section 629 of the code. Similarly, if the guardian of a minor or incompetent person pays the remuneration of household servants in the private home of his ward, the services are exempt to the extent provided by Section 629 of the code.

NOTE


Authority cited: Sections 305, 306 and 2602, Unemployment Ins. Code. Reference: Sections 629 and 639, Unemployment Ins. Code.

HISTORY


1. Amendment filed 8-5-60; Appeal filed with Calif. Unemployment Ins. Appeals Board; Amendment refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Amendment of subsection (f) filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

3. Change without regulatory effect amending subsection (e)(2) filed 1-15-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 3).

§631-1. Family Employment.

Note         History



(a) “Father” and “mother” include adoptive parents but do not include stepparent, foster parent, father-in-law or mother-in-law.

(b) “Son” and “daughter” include adopted child but do not include stepchild, foster child, son-in-law, or daughter-in-law.

(c) “Child under the age of 18” includes adopted child under the age of 18 but does not include stepchild or foster child under the age of 18.

(d) With respect to the exempt status of a child under the age of 18 it is immaterial whether or not the child is living with his or her parents or is married or is independently self-supporting.

(e) Services performed in the employ of a partnership by a spouse, father, mother, or child under the age of 18 of a partner are excluded when such services would be excluded if performed for each partner individually. For example:

(1) The services of either spouse employed by a partnership composed of the other spouse and one or more of their children are excluded.

(2) The services of either parent employed by a partnership composed of their children are excluded. 

(3) The services of a child under the age of 18 employed by a partnership composed of his or her parents are excluded.

(4) The services of a married child under the age of 18 in the employ of a partnership composed of his or her father and his or her spouse are excluded.

(f) Services performed by an individual in the employ of relatives other than those referred to in Section 631 of the code are not excluded. For example, services performed by an individual in the employ of his or her brother, sister, niece or nephew are not excluded.

NOTE


Authority cited: Sections 305, 306 and 2608, Unemployment Insurance Code. Reference: Section 631, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

§631-2. Family Employment--Age of Majority. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 631, Unemployment Insurance Code.

HISTORY


1. Repealer filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50). For former history, see Register 72, No. 24.

§636-1. Election Campaign Employees.  [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 636, Unemployment Insurance Code.

HISTORY


1. New section filed 11-20-67; designated effective 11-30-67 (Register 67, No. 47). For history of former section, see Register 57, No. 21.

2. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

3. Amendment of subsection (a), repealing of subsection (b), and new subsection (b) filed 2-15-91; operative 3-17-91 (Register 91, No. 13).

4. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§637-1. Directors of Corporations and Associations. [Repealed]

History



HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 3-14-66; designated effective 3-24-66 (Register 66, No. 7).

§639-1. Extent of Domestic Service Exemption--College Clubs. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 639, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§640-1. Exempted Services Not in the Course of Employing Unit's Trade or Business.

Note         History



“Service not in the course of the employing unit's trade or business” means service which does not, in any way, promote, advance or further the trade or business of the employing unit, and in no way tends toward the preservation, maintenance or operation of its business, business premises or business property. “Trade or business” includes any business or professional undertaking irrespective of its size or scope without regard to the principal trade or business of the employing unit.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 640, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§641-1. Remuneration of Less Than $50 in Employ of Organization Exempt from Federal Income Tax.

Note         History



For the purpose of determining the status of service under Section 641 of the code, remuneration whenever paid shall be allocated to the periods of service to which it relates. For example, if payment of remuneration is made for service performed in two or more calendar quarters, the lump sum remuneration shall be allocated to the periods of service to which it relates. If the total remuneration allocated and attributable to service performed during a particular calendar quarter does not exceed $49.99, the service for that calendar quarter is exempt. If the total remuneration allocated and attributable to service performed during a particular calendar quarter exceeds $49.99, the service for that calendar quarter is not exempt.

NOTE


Authority cited: Secs. 305 and 306, Unemployment Insurance Code. Reference: Sec. 641, Unemployment Ins. Code.

HISTORY


1. New section filed 11-20-67; designated effective 11-30-67 (Register 67, No. 47).

§642-1. Agricultural or Horticultural Organizations. [Repealed]

Note         History



NOTE


Authority cited: Sections 306 and 2602, Unemployment Insurance Code. Reference: Section 642, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 3-14-66; designated effective 3-24-66 (Register 66, No. 7).

§642(a)-1. Student Employed by School, College, or University.

Note         History



(a) For purposes of Section 642 of the code, “school, college, or university” shall be taken in the commonly or generally accepted sense. The amount of remuneration for the service, the type of character or the service, and the place where service is performed are immaterial, except as provided in subdivision (c) of this section. The statutory tests under Section 642 of the code are whether the organization is a school, college, or university and whether the employee is a student who is enrolled and is regularly attending classes at the institution employing him.

(b) A student is “regularly attending classes” when he meets the minimum attendance requirement for his course of study established by the school, college, or university. For purposes of this section, attendance is the act of being present at the established place of meeting. A student who takes correspondence or extension courses is not “regularly attending classes.”

(c) An employee who performs service for the school, college, or university as an incident to, and for the purpose of pursuing a course of study at such school, college, or university has the status of a student for the purpose of this section. If the course of study is incidental to the employment, the exemption shall not apply.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 642, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§649(b)-1. Status of Newspaper and Magazine Salespersons. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 649, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§650-1. Status of Real Estate, Mineral, Oil and Gas, and Cemetery Brokers, and Real Estate and Cemetery Salespersons. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, and 306, Unemployment Insurance Code. Reference: Section 650, Unemployment Insurance Code.

HISTORY


1. New section filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§653-1. Status of Baseball Players.

Note         History



(a) The baseball player may be paid a fixed amount for each game if the amount meets the conditions of this section.

(b) The profit of a baseball club is the excess of income after payment of expenses. The profit may be determined at the completion of each game, at the end of the baseball season, or at such other period of time as may be specified by the baseball club, provided that the period of time is not in excess of one calendar year.

(c) Expense for which a baseball player may be compensated includes, but is not limited to, the following:

(1) Transportation.

(2) Meals.

(3) Lodging.

(4) Telephone, telegram, and postage.

Accounting for expenses shall be made between the baseball player and the baseball club as provided in subdivision (c) of Section 929-1 of these regulations.

(d) “Baseball player” means any individual engaged by a baseball club to play one or more of the customary positions, or a player-manager or a player coach.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 653, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§657-1. Status of Amateur Athletic Officials.

Note         History



The criteria which specify under what conditions amateur athletic officials may be considered employees are described in Section 4304-10 of these regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 621, 657 and 13004, Unemployment Insurance Code.

HISTORY


1. New section filed 8-22-96; operative 9-21-96 (Register 96, No. 34).

Article 3. Subject Employers [Repealed]

§675-1. Computing Number of Employees. [Repealed]

History



HISTORY


1. Repealer filed 11-29-57; designated effective 12-9-57 (Register 57, No. 21). See history note to #S 125-1.

§675-2. Computing Period of Employment. [Repealed]

History



HISTORY


1. Repealer filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

§675-3. Requesting Determination of Status. [Repealed]

History



HISTORY


1. Repealer filed 4-1-82; effective thirtieth day thereafter (Register 82, No. 14).

§675-4. Exempt Employment. [Repealed]

History



HISTORY


1. Repealer filed 4-1-82; effective thirtieth day thereafter (Register 82, No. 14).

§675-5. Bands and Orchestras. [Repealed]

History



HISTORY


1. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§676-1. Agricultural or Horticultural Organizations. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 3-14-66; designated effective 3-24-66 (Register 66, No. 7).

2. Repealer filed 6-8-72, effective thirtieth day thereafter (Register 72, No. 24).

§680-1. Musicians. [Repealed]

History



HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Change without regulatory effect repealing section filed 11-7-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 45).

Article 4. Elective Coverage

§701-1. Elective Coverage--General Provisions.

Note         History



(a) The effective date of an elective coverage agreement filed by an employing unit pursuant to all elections under Article 4 of Chapter 3 of Part 1 of Division 1, of the code, or by an individual pursuant to Section 708 or 708.5 of the code, shall not be prior to the first day of the calendar quarter in which the application for elective coverage is filed nor subsequent to the first day of the calendar quarter immediately following the calendar quarter in which the application for elective coverage is filed.

(b) Except as provided by Section 702.5 of the code, any relative who would be exempt pursuant to Section 631 of the code if the employing unit were subject to the compulsory provisions of the code shall not be included within the scope of any elective coverage agreement.

(c) Any individual who has the status of an independent contractor in relation to the employing unit electing coverage shall not be included within the scope of the elective coverage agreement.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 701, 702, 702.1, 702.5, 703, 708, 708.5, 709, 710, 710.4, and 710.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

4. Amendment of subsection (a) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§701-2. Elective Coverage--Retroactive Coverage.

Note         History



Notwithstanding any other provision of these regulations, if an employing unit or individual has service performed for it or him or her which is not subject to the compulsory coverage provisions of the code, but through error, inadvertence, or other reason, has reported and paid contributions to the Unemployment Fund or Disability Fund, such action:

(a) May be construed at the option of the director and with the consent of the local public entity or school employer authorized to elect coverage pursuant to Section 709, 710.4 or 710.5 of the code as an election by the local public entity or school employer that such nonsubject service become subject to disability insurance coverage under the code as of the commencement of the period to which the contributions relate or for the period to which the contributions relate.

(b) May be construed at the option of the director and with the consent of a public entity authorized to elect unemployment insurance coverage pursuant to Section 710 of the code as an election by the public entity that such nonsubject service become subject to unemployment insurance coverage under the code as of the commencement of the period to which the contributions relate or for the period to which the contributions relate. Unless an election is also made by a local public entity or school employer for disability insurance coverage under subdivision (a) of this section, any withheld worker contributions shall be refunded in accordance with these regulations since no election for disability insurance coverage is authorized under Section 710 of the code.

(c) May be construed at the option of the director and with the consent of the employing unit or individual authorized to elect coverage pursuant to Section 701, 702, 702.1, or 703, or subdivision (a) of Section 708 of the code as an election by the employing unit or individual that such nonsubject service become subject to the code as of the commencement of the period to which the contributions relate or for the period to which the contributions relate.

(d) May be construed at the option of the director and with the consent of the employing unit or individual authorized to elect coverage pursuant to Section 702.5 or 708.5 or subdivision (b) of Section 708 of the code as an election by the employing unit or individual that such nonsubject service become subject to disability insurance coverage under the code as of the commencement of the period to which the contributions relate or for the period to which the contributions relate.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 701, 702, 702.1, 702.5, 703, 708, 708.5, 709, 710, 710.4, and 710.5, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

3. Amendment of subsection (a) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§702-1. Elective Coverage of Excluded Services.

Note         History



(a) An application for elective coverage under Section 702 of the code may be approved for one or more separate and distinct establishments or places of business of the employing unit even though it does not apply to all establishments and places of business of the employing unit if the department finds that:

(1) The excluded establishments or places of business are readily distinguished by location and activity or type of operation from the establishments or places of business included in the application.

(2) The application covers all services performed (other than those performed by individuals mentioned in subdivisions (b) and (c) of Section 701-1 of these regulations) in the establishments or places of business to which the application applies.

(b) Sections 701-1, 701-2 and 705-1 of these regulations apply to elections filed pursuant to Section 702 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 701, 702, 702.1, 702.5, 703, 708, 708.5, 709, 710, 710.4 and 710.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§702.1-1. Elective Coverage--Nonprofit Organization.

Note         History



(a) Sections 701-1, 701-2, 702-1, and 705-1 of these regulations apply to elections filed pursuant to Section 702.1 of the code, except that services may be excluded pursuant to subdivision (d) of Section 702.1 of the code.

(b) A written application for elective coverage under subdivision (c) of Section 702.1 of the code by a nonprofit organization signed by a duly constituted official shall be approved if the director finds that:

(1) It is an application for coverage for all employees of the organization except that the organization may exclude from coverage any of the service set forth in Section 634.5 of the code.

(2) The applicant is a “nonprofit organization” as that term is defined in subdivision (a) of Section 702.1 of the code.

(3) A majority of the employees to be covered by the election have signed a petition requesting such coverage.

(4) It sets forth the name and address of the organization.

(5) It is accompanied by advance payments as required by Section 803 of the code.

(c) Notwithstanding Section 705-1 of these regulations, if a nonprofit organization is succeeded in whole or in part by another nonprofit organization, the successor may elect to continue the elective coverage agreement of the predecessor or may elect to terminate the elective coverage agreement of the predecessor. If the successor nonprofit organization was, prior to the acquisition of the predecessor, a nonprofit organization under an approved elective coverage agreement, the elective coverage agreement of the predecessor shall be continued to the same extent as the elective coverage agreement of the successor. If the successor nonprofit organization was, prior to the acquisition of the predecessor, a nonprofit organization not under an approved elective coverage agreement, the successor shall meet the requirements of this section if it elects to continue the elective coverage agreement of the predecessor.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 702.1 and 705, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment of subsection (c) filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

3. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§702.5-1. Elective Coverage--Family Employment.

Note         History



Sections 701-1, 701-2, 702-1, and 705-1 of these regulations apply to elections filed pursuant to Section 702.5 of the code, except that the application for elective coverage shall be limited to services performed by individuals specified in Section 631 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 702.5, Unemployment Insurance Code.

HISTORY


1. New section filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§703-1. Elective Coverage of Out-of-State Services.

Note         History



Sections 701-1, 701-2, and 705-1 of these regulations apply to elections filed pursuant to Section 703 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 703, Unemployment Insurance Code.

HISTORY


1. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§704-1. Elective Coverage--Disapproval of Election.

History



HISTORY


1. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§705-1. Elective Coverage-Termination.

Note         History



(a) An elective coverage agreement under Sections 701, 702, 702.1, 702.5, 703, 708, 708.5, 709, 710, 710.4 and 710.5 of the code shall be effective for not less than two complete calendar years unless terminated by the director pursuant to Section 704.1 of the code, except that retroactive coverage under Section 701-2 of these regulations may be approved by the director for lesser periods. If both retroactive and prospective coverage are elected, the minimum two-calendar-year period for which the agreement shall remain in effect commences with the effective date of prospective coverage.

(b) An applicant may withdraw an application for elective coverage pursuant to Section 701, 702, 702.1, 702.5, 703, 708, 708.5, 709, 710, 710.4 and 710.5 of the code prior to final approval of the application. The director may, upon the request of the applicant, cancel an elective coverage agreement which has been finally approved if the applicant shows that the application was submitted through justifiable mistake or error, or was submitted by a person not having proper authority to bind the applicant.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 701, 702, 702.1, 702.5, 703, 708, 708.5, 709, 710, 710.4 and 710.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

3. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

4. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§708-1. Employer's Election to Qualify for Benefits.

Note         History



NOTE


Authority cited: Section 708, Unemployment Insurance Code.

HISTORY


1. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. Amendment filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

3. Repealer filed 2-6-76; effective thirtieth day thereafter (Register 76, No. 6). Issuing agency: Department of Benefit Payments.

§708(a)-1. Employer's Election to Qualify for Benefits.

Note         History



(a) Sections 701-1, 701-2, 704-1, and 705-1 of these regulations apply to elections filed pursuant to subdivision (a) of Section 708 of the code.

(b) An election by an employer to have his or her services deemed to be services in employment filed pursuant to subdivision (a) of Section 708 of the code shall not be effective for any purpose until the application has been approved by the department. An application for such elective coverage shall not be approved by the department unless it complies with Sections 704-1 and 705-1 of these regulations and all of the following conditions are found to exist:

(1) The applicant is an employer as defined in the code or is a member of a copartnership or other form of business organization which has qualified as an employer under the code and is regularly performing services on behalf of the employer.

(2) The application requests that such elective agreement be effective for a period of not less than two complete calendar years or until the termination of the applicant's employment in his or her business.

(c) Except as provided by subdivision (d) of this section, an employer who elects coverage under subdivision (a) of Section 708 of the code shall report wages for each calendar quarter for each individual covered under the election as follows:

(1) $7,634 for each calendar quarter during which the individual performs services on one-half or more of the number of normal working days in each month.

(2) $2,545 for each month in the calendar quarter during which month the individual performs services on one-half or more of the number of working days of that month and for one or more other months in the same calendar quarter the provisions of paragraphs (3) and/or (4) of this subdivision apply.

(3) $1,273 for each month in the calendar quarter during which month the operation of the employer's business is temporarily interrupted or ceases or the individual becomes disabled and for these or other reasons the individual performs services during that month on less than one-half of the number of normal working days in that month.

(4) No wages if the individual performs no services during a month.

(d) If an individual covered by an employer who elects coverage under subdivision (a) of Section 708 of the code is paid unemployment compensation benefits, extended duration benefits, federal-state extended benefits, other extended unemployment benefits under any state or federal law, or unemployment compensation disability benefits for any week all or part of which is in a calendar month and in that same month performs services for the remainder of the month, the employer shall report wages for such month by reducing the normal amount of reportable wages of $2,545 provided under paragraph (2) of subdivision (c) of this section by $587 for each full calendar week during that month for which the individual was paid such benefits and by $84 for each day of any portion of a week during that month for which he or she was paid such benefits, and the employer shall report wages for the remainder.

EXAMPLE: The covered individual is paid unemployment compensation benefits for the week commencing July 27, 1997 and ending August 2, 1997 and for the week commencing August 3, 1997 and ending August 9, 1997. He performs services from July 1, 1997, through July 26, 1997 and from August 10 through August 31, 1997.


Computation of Reportable Wages:


 (A) July 1997:

     Normal reportable wages $2,545.00

     Reduced by:

       5 days (July 27, 28, 29, 30, 31) times $84     420.00

     Reportable wages $2,125.00


 (B) August 1997:

      Normal reportable wages $2,545.00

      Reduced by:

       2 days (August 1, 2)

       times $84 equals $168

       plus $587 (August 3-9) 755.00

      Reportable wages $1,790.00

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 708 and 1280, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Registers 78, No. 41; and 76, No. 6.

2. Amendment of section and Note filed 1-5-2000; operative 2-4-2000 (Register 2000, No. 1).  

§708(b)-1. Employer's Election to Qualify for Disability Benefits.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 708, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Registers 78, No. 41; and 76, No. 6.

2. Amendment of subsections (a), (b) and (d) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Change without regulatory effect repealing section filed 3-14-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 11).

§708.5-1. Elective Disability Coverage--Self-Employed Individual.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 708.5, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Registers 78, No. 41; 74, No. 6; and 72, No. 24.

2. Amendment of subsections (a) and (c) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Change without regulatory effect repealing section filed 3-14-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 11).

§710-1. Elective Coverage--Public Entity.

Note         History



(a) A written application for elective coverage under Section 710 of the code by a public entity signed by a duly constituted official shall be approved if the director finds that:

(1) It is an application for coverage of services performed for the public entity which do not constitute employment except that the public entity may exclude from coverage any of the service set forth in Section 634.5 of the code.

(2) The applicant is a “public entity” as that term is defined in Section 605 of the code.

(3) It sets forth the name and address of the public entity.

(4) It is accompanied by advance payments as required by Section 803 of the code.

(b) Sections 701-1, 701-2, and 705-1 of these regulations apply to elections filed pursuant to Section 710 of the code.

(c) Notwithstanding Section 705-1 of these regulations, if a public entity is succeeded in whole or in part by another public entity the successor may elect to continue the elective coverage agreement of the predecessor or may elect to terminate the elective coverage agreement of the predecessor. If the successor public entity was, prior to the acquisition of the predecessor, a public entity under an approved elective coverage agreement, the elective coverage agreement of the predecessor shall be continued to the same extent as the elective coverage agreement of the successor. If the successor public entity was, prior to the acquisition of the predecessor, a public entity not under an approved elective coverage agreement, the successor shall meet the requirements of this section if it elects to continue the elective coverage agreement of the predecessor.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 605, 705, 710, and 803, Unemployment Insurance Code.

HISTORY


1. New section filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47). 

§710(b)-1. Elective Coverage--Governmental Entity. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306,Unemployment Insurance Code. Reference: Sections 605, 705, 710, and 803, Unemployment Insurance Code.

HISTORY


1. Repealer filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50). For former history, see Register 72, No. 24.

§710(c)-1. Financing--Governmental Entities. [Repealed]

Note         History



NOTE


Authority cited: Section 305, 306, 711 and 2602, Unemployment Insurance Code. Reference: Section 710(c), Unemployment Insurance Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§710(d)-1. Governmental Entities--Time and Rate of Payment. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 an 2602. Unemployment Insurance Code. Reference: Sec. 710(d), 709, Unemployment Ins. Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72, effective thirtieth day thereafter (Register 72, No. 24).

§710.2-1. Elective Coverage--Political Subdivisions. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 710.2, Unemployment Insurance Code.

HISTORY


1. Repealer filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50). For former history, see Register 72, No. 24.

§710.5-1. Elective Coverage--State of California or Instrumentality. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 710.5, Unemployment Insurance Code.

HISTORY


1. Repealer filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50). For former history, see Register 72, No. 24.

§711(b)-1. Elective Coverage--Nonprofit Organization. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 and 2602. Unemployment Insurance Code, Reference: Sec. 711. Unemployment Ins. Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§711(c)-1. Elective Financing--Nonprofit Organizations. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 and 2602, Unemployment Insurance Code. Reference: Sections 711(c) and 709, Unemployment Ins. Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§711(c)-2. Bond Requirements--Nonprofit Organizations. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 and 2602, Unemployment Insurance Code, Reference: Sec. 711, Unemployment Ins. Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§711(c)(3)-1. Joint Accounts for Nonprofit Organizations. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 and 2602. Unemployment Insurance Code. Reference: Sections 711(c)(3) and 702, Unemployment Insurance Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§711(e)-1. Nonprofit Organizations--Time and Rate of Payment. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 and 2602, Unemployment Insurance Code. Reference: Secs. 711(e), 702, and 712. Unemployment Insurance Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter.

§712-1. Reimbursement Financing--Benefit Charges Required and Contributions Allowed. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 and 2602, Unemployment Insurance Code. Reference: Sec. 712, Unemployment Insurance Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§712-2. Reimbursement Financing--Reserve Balance Allowed. [Repealed]

Note         History



NOTE


Authority cited: Sections 305, 306, 711 and 2602, Unemployment Insurance Code. Reference: Sec. 712, Unemployment Insurance Code.

HISTORY


1. New section filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

Article 5. Elections for Financing Unemployment Insurance Coverage

§803-1. Elective Financing--Nonprofit Organizations, Public Entities.

Note         History



(a) A nonprofit organization or public entity under Sections 702.1, 710, 801, and 802 of the code may elect to reimburse the cost of benefits paid pursuant to Section 803 of the code and subdivision (b) of this section, in lieu of contributions required of employers. As used in this section, “entity” means any such employing unit that is authorized by Sections 702.1, 710, 801, and 802 of the code to elect the cost of benefits paid method of financing permitted under Section 803 of the code.

(b) An entity may elect to pay into the Unemployment Fund the cost of benefits (including extended duration benefits and federal-state extended benefits) paid based on base period wages with respect to employment for that entity and charged to its account in the manner provided by Section 1026 of the code. “The cost of benefits paid” means the proportion of the total amount of benefits paid to the claimant which the total wages paid to that claimant in his or her base period by that entity bears to the total wages paid to that claimant in employment by all employers in his or her base period.

The director shall prepare an annual statement, which shall be a public record, calculating the maximum potential liability of any reimbursing public entity and of any nonprofit organization. The federal government pays one-half the cost of federal-state extended benefits for reimbursing nonprofit organizations. Public entities bear the full cost of reimbursing federal-state extended benefits for weeks of unemployment on or after January 1, 1979.

(c) An application for elective financing under subdivision (b) of Section 803 of the code may be made at the time an application is made for elective coverage under the code and shall be effective on the effective date of the elective coverage agreement, or may be made in any calendar quarter and shall take effect with respect to services performed from and after the first day of the calendar quarter in which the election is filed with the director, pursuant to Sections 801 and 802 of the code.

(d) Except as provided in subdivisions (e) and (f) of this section and by subdivision (e) of Section 803 of the code, an approved elective financing agreement may not be amended or terminated until it has been in effect for not less than two full calendar years.

(e) If an entity under an approved elective coverage agreement is succeeded in whole or in part by another entity, the successor, if it elects to continue the elective coverage agreement of the predecessor in accordance with the provisions of subdivision (d) of Section 702.1-1 or subdivision (d) of Section 710-1 of these regulations, may elect to continue the method of financing elected by the predecessor or may elect one of the methods of financing set forth in this section in lieu of paying contributions required of employers. If the successor is required to continue the elective coverage agreement of the predecessor in accordance with the provisions of subdivision (d) of Section 702.1-1 or subdivision (d) of Section 710-1 of these regulations, the successor's elective financing agreement shall relate to the continued elective coverage agreement of the predecessor.

(f) If an approved elective coverage agreement is terminated as provided in Section 705-1 or subdivision (c) or (d) of Section 702.1-1 or subdivision (c) or (d) of Section 710-1 of these regulations, any approved elective financing agreement shall also terminate upon the date of the termination of the elective coverage agreement to which the financing relates.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 702.1, 705, 710, 801, 802 and 803, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50). For prior history, see Register 76, No. 6.

2. Amendment of subsection (b) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§803-2. Bond Requirements--Entities Electing Reimbursement Financing.

Note         History



(a) If the director requires a bond pursuant to subdivision (b) of Section 803 of the code, the bond shall be issued by a surety authorized to do business in this state and be deposited with the director within 15 days after demand. In lieu of the posting of such bond the entity may deposit security in one or more of the following forms:

(1) Cash deposit.

(2) Certificates of deposit issued by a bank or federally insured savings and loan association made payable to the department.

(3) Bearer bonds issued or guaranteed by the United States or by the State of California.

(b) The amount of the surety bond, cash deposit, certificate of deposit or bearer bond shall be in a sum equal to 2.7 percent of the entity's total remuneration paid for service which was or would have been taxable wages in subject employment had the election been in effect, for the four calendar quarters immediately preceding the effective date of the election. If the entity did not pay such remuneration in each of such four calendar quarters the amount of the bond or security shall be in an amount as determined by the director.

(c) The surety bond shall be in force and remain on file with the director for a period of eight complete consecutive calendar quarters and shall be renewed 30 days prior to the expiration of each such period, as long as the entity continues to be liable for payments in lieu of contributions. The director may increase or decrease the amount of the previously filed bond or security at such times as he or she deems necessary or appropriate. If the bond is to be increased, the entity shall file the adjusted bond with the director within 30 days from the date of the mailing or personal service by the director of the notice to the entity that an adjusted bond is required. If the security is to be increased, the entity shall make the deposit within 15 days from the date of mailing or personal service by the director of the notice to the entity that additional security is required. The director may for good cause extend for a period not to exceed 30 days the time within which the additional bond shall be furnished or the additional cash deposit made or security furnished. The failure by any entity covered by such bond to pay within 30 days from the date of a written demand or within any period of extension the amounts required to be paid under Section 803 of the code shall render the surety liable for such payments to the extent of the bond.

(d) The director shall retain in trust any deposit of security under this section for two years after the entity's election is terminated after which the director shall return the security to the entity less any deductions required by Section 803 of the code. The director may apply any security deposited under this section by an entity to amounts required to be paid under subdivision (c) of this section or Section 803 of the code that are not paid within 30 days from the date of the written demand and he or she may take the following action:

(1) If the security is a cash deposit, he or she may deduct from the amount so deposited the amount required to be paid under Section 803 of the code.

(2) If the security deposited is a certificate of deposit or a bearer bond, he or she may sell the bearer bond or withdraw from the deposit an amount sufficient to satisfy the written demand under subdivision (c) of this section.

(3) If as a result of such reduction in the amount of the security he or she believes an adjustment in the remaining balance of security is required, he or she may require the entity to make an additional deposit with the bank or federally insured savings and loan association or furnish additional bearer bonds.

(e) If any entity fails to post a bond or furnish security or increase security within the time specified by this section, the director may terminate the election upon written notice to the entity. The termination shall be effective on the first day of the calendar quarter following the date of the notice of termination.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 803, Unemployment Insurance Code.

HISTORY


1. Amendment of subsections (c), (d), and (e) filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

2. Amendment of subsection (e) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§803-3. Joint Accounts for Entities Electing Reimbursement Financing.

Note         History



(a) Application for Joint Account. Each entity desiring to participate in a joint account shall file an application in writing with the director signed by a duly constituted official. If the application is not filed at the time the application for elective coverage is filed, it shall be filed not later than December 31 of the year preceding that for which the joint rate is to apply. Each application shall list the name, address, and account number of the entity and the names, addresses, and account numbers of the other entities who are to be included in the joint account.

(b) Qualifications of Members. An application to establish a joint account shall be approved by the director if he or she finds that:

(1) The applicants for inclusion in a joint account are “entities” as defined in subdivision (a) of Section 803 of the code.

(2) Each applicant for inclusion in a joint account has elected the same method of financing the coverage for its employees.

(3) No applicant for inclusion in a joint account is a member of any other joint account.

(c) Maintenance of Joint Account. The department shall maintain a separate account for each member of a joint account. In computing the joint contribution rate applicable to or the amount due from the members of a joint account, the department shall summarize the records of all its members to determine the joint rate in accordance with the schedule provided in Section 977 or 978 of the code or the rate or amount of contributions by the members of the joint account on the basis of reimbursement of the cost of benefits charged in the manner provided by Section 1026 of the code.

(d) Additions. An entity may be added to an existing joint account if all of the employers involved file a new application with the director for a new joint account and otherwise qualify under this section.

(e) Successions to Joint Account Member. If a member of a joint account is succeeded in whole or in part by another employing unit, the successor may file a request with the director for an account transfer and may immediately withdraw the acquired account from the joint account subject to Section 1051 of the code. A new joint rate or amount of contributions shall be computed for the remaining members based upon their combined accounts. Such new joint rate shall be effective as provided in Section 1053 or 1060 of the code, whichever is applicable. Such new amount of contributions shall be effective as provided by the department. A new rate or amount of contributions shall be computed for the successor employing unit based upon the acquired account and any prior account which it has accumulated, subject to Section 1029 of the code. Such new rate shall be effective as provided in Section 1053 or 1060 of the code, whichever is applicable. Such new amount of contributions shall be effective as determined by the department.

If a successor employing unit, with the consent of the remaining members, elects to succeed the predecessor entity as a member of the joint account and meets the conditions of subdivisions (a) and (b) of this section, a new joint rate or amount of contributions shall be computed. Such new joint rate shall be effective as provided in Section 1053 or 1060 of the code, whichever is applicable. Such new amount of contributions shall be effective as provided by the department.

If a successor employing unit which is a member of a joint account files an application with the director for a transfer of the reserve account of a predecessor, including any predecessor which was a member of a joint account, Section 1052 of the code shall apply to the application for transfer. The joint rate of the joint account of which the successor is a member, and the joint rate of the joint account of which the predecessor is a member, where applicable, shall be recomputed in accordance with Section 1053 or 1060 of the code, whichever is applicable.

(f) Withdrawal of a Member.

(1) A member desiring to withdraw from a joint account may file with the director an application for withdrawal not later than December 31 of the year preceding the date of withdrawal. “Date of withdrawal” means January 1. The contribution rate or amount of contributions of the entities remaining within the joint account shall be recomputed upon the basis of their portion of the joint experience. The new rate so computed shall be binding upon the remaining members for the entire calendar year for which that rate is determined. The new amount of contributions so computed shall be binding upon the remaining members until amended by the department as provided in Section 803-4 of these regulations. A new rate or amount of contributions shall be computed for the withdrawing entity based upon its individual experience.

(2) A member's participation in a joint account shall cease effective upon the date of the member's termination of business or upon the effective date of the member's termination of its elective coverage agreement. Effective as of that date, a contribution rate or amount of contributions for the entities remaining within the joint account shall be recomputed on the basis of their portion of the joint experience. The new rate so computed shall be binding upon the remaining members for the remainder of the calendar year. The new amount of contributions so computed shall be binding upon the remaining members until amended by the department as provided in Section 803-4 of these regulations.

(3) Whenever a joint account is reduced to one member, it is dissolved and a separate rate or amount of contributions shall be computed as of the date of dissolution for each entity based on its individual experience.

(g) Dissolution of Joint Account. Except as provided in subdivision (f)(3) of this section, a joint account may only be dissolved as of January 1, if the members file an application with the director not later than December 31 of the preceding year, whereupon a separate rate or amount of contributions shall be computed for each entity based upon its individual experience.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 803, 977, 978, 1026, 1051, 1053, and 1060, Unemployment Insurance Code.

HISTORY


1. Amendment of subsections (b) and (c) filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

§803-4. Entities Electing Reimbursement Financing--Time and Rate of Payment.

Note         History



(a) Contributions--Due Date. Employer payments required under this Section 803 of the code are due and payable as provided by subdivision (d) of Section 803 of the code. Worker contributions required under Section 984 of the code are due and payable as provided by Article 7 (commencing with Section 1110) of Chapter 4 of Part 1 of Division 1 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 702, 712, 713, 803, and 984, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No 47).

Article 6. Financing Unemployment Insurance Coverage for Public School Employees [Repealed]

HISTORY


1. Repealer of article 6 (sections 821-1--821-2) filed 11-20-81; operative 12-20-81 (Register 81, No. 47).

Article 7. Financing Unemployment Insurance Coverage for Local Public Entity Employees [Repealed]

HISTORY


1. Repealer of article 7 (sections 842-1--844-1) filed 11-20-81; operative 12-20-81 (Register 81, No. 47).

Chapter 4. Contributions and Reports

Article 1. Definitions


(No regulations adopted)

Article 2. “Wages” the Basis of the Contribution

§926-1. Wages--When Taxable.

Note         History



(a) The basis upon which employer and worker contributions shall be computed is wages actually or constructively paid during a calendar quarter in subject employment by an employer subject to the code. Wages for contribution purposes are considered taxable when actually or constructively paid.

(b)(1) Wages are constructively paid when they are credited to the account of or set apart for an employee so that they may be drawn upon by him at any time, although not then actually reduced to possession. To constitute payment in such a case the wages must be credited to or set apart to the employee without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment is to be made, and must be made available to him so that they may be drawn at any time, and their payment brought within his own control and disposition.

(2) Wages are not constructively paid even though credited to the account of or set apart for an employee if the employer lacks sufficient funds to make the payment, since the wages cannot be brought within the control and disposition of the employee.

(c) Wages which are constructively paid to an employee as defined in subdivision (b) of this section are taxable even though the employer is unable to complete actual payment for reasons beyond his control, such as inability to locate the employee.

(d) Wages actually or constructively paid to an employee are taxable even though subsequently an amount equal to all or a part of such wages is voluntarily returned to the employer for any reason, for example, impairment of capital resulting from the payment of wages.

(e) Except as provided in Section 1088-3, of these regulations, individual wage earners' data must be reported on the basis of wages actually or constructively paid, which is the same basis as that upon which employer and worker contributions are to be computed for the same period.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 926 and 1088, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

3. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§926-2. Wages--Exclusions From--General.

Note         History



“Wages” does not include any of the following:

(a) Payments made by an employer under any of the following circumstances:

(1) Ordinarily, facilities or privileges (such as entertainment, cafeteria facilities, medical services, or so called “courtesy” discounts on purchases), furnished or offered by an employer to his employees generally, if such facilities or privileges are furnished or offered for the purpose of promoting the health, goodwill, contentment, or efficiency of the employees, are not made under a regular or systematic plan to compensate the employees for services rendered, and may be withdrawn by the employer at any time with no obligation for a corresponding increase in remuneration or the substitution of a like facility or privilege. (See Sections 926-3, 926-4, and 926-5, of these regulations for the inclusion of meals and quarters furnished employees as “wages.”)

(2) Gifts in cash or kind of nominal value voluntarily given by an employer to an employee on special occasions, such as Christmas or the marriage or the birthday of the employee, as an expression of goodwill and not based on the rate of pay, the length or degree of prior personal services rendered by the employee, nor paid by the employer as required by a labor union agreement or a contract of hire.

(3) Penalties or damage awards paid by an employer to an employee because of discriminatory practices or for violation of labor-management agreements or of the California Labor Code.

(4) Payments gratuitously made by an employer to a former employee in military service if the employment relationship has terminated.Payments are not gratuitous if they are made by the employer as required in a labor union agreement or a contract of hire. The exclusion under this paragraph does not apply to payments made:

(A) To an officer of a corporation or association who retains his status as an officer of the corporation or association during his military service.

(B) To an employee on temporary leave of absence while training with the United States Armed Forces or any state or National Guard, if it is agreed that the employee will return to employment with the employer upon completion of the training.

(5) Payments made by an employer to an individual not in its employ for leads submitted to the employer on potential customers or clients, commonly referred to as “bird-dog” payments.

(6) Compensation paid by an employer to the widow or estate of a deceased employee for which no services are performed.

(7) Remuneration paid or payable by an employer to a worker for services which are excluded from “employment” by the code (see Sections 606-1 to 653-1, inclusive of these regulations).

(8) Any payment made by an employer which excluded from “wages” by the code (see Sections 926-6, 929-1, 929-2, 931-1, 932-1, 933-1, 936-1, and 937-1 of these regulations).

(b) Compensation received by an employee under the provisions of the Workmen's Compensation Insurance and Safety Act of this state, or similar law of other states, or of the United States.

(c) Drawings by bona fide general partners whether designated as salary or otherwise.

(d) Returns on the capital investments of a limited partner as distinguished from remuneration for personal services of the limited partner.

(e) Payments made by a labor union to an individual under any of the following circumstances:

(1) Strike benefits paid by a labor union to members for the sole purpose of financial assistance during the strike, if there is no performance of, or obligation on the part of the member to perform, or to hold himself available to perform, picket duty or other services.

(2) Penalties or damage awards paid by a labor union to an individual because of discriminatory practices, or for violation of labor-management agreements or of the California Labor Code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 926, Unemployment Insurance Code.

HISTORY


1. Amendment filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§926-3. Taxable Value of Board and Lodging.

Note         History



(a) Board, lodging, or any other payment in kind, received by an employee in addition to, or in lieu of cash wages, shall be taxable on the basis of a reasonably estimated cash value to the employee, as determined or approved by the department as hereinafter provided:

(1) The reasonably estimated cash value of meals, lodging, or other payment in kind to an employee shall not be deemed less than:

(A) The bona fide value stipulated in a union agreement or contract of employment; or

(B) The value established as a basis of compliance with any applicable law governing minimum wages.

(2) Meals. In those cases where subdivision (a)(1) is not applicable, the department shall consider the following scale to be a reasonably estimated cash value of meals to employees:

For the calendar year 2011 and thereafter except as modified herein in accordance with the following provisions of this subdivision:


Three meals per day $10.30

Individual meals:

  Breakfast $2.25

  Lunch $3.15

  Dinner $4.90

A meal not identifiable as either breakfast, lunch, or dinner $3.60

Whenever the average of retail prices of foods in California cities during the twelve months of any fiscal year ending on June 30 varies from the average of prices during the same months ending on June 30, 1969, by 10 percent or more, according to the cost of living indexes published by the United States Department of Labor, Bureau of Labor Statistics, the director shall by authorized regulation modify the 2011 scale for meals upward or downward in substantially the same ratio for the ensuing calendar year.

If, however, it can be shown to the satisfaction of the department in any case that the scale as determined herein exceeds 120 percent of the cost of the raw materials used in preparing meals for employees, the department shall consider 120 percent of the cost of such raw materials to be the basis for a reasonably estimated value of meals to employees.

(3) Lodging.

(A) As a general rule, in those cases where subdivision (a)(1) is not applicable, the department shall consider a reasonable estimated cash value of lodging to an employee, for the calendar year 2011 and thereafter except as modified in accordance with this subdivision, to be 66 2/3 percent of the ordinary rental value to the public but not in excess of $1,193.00 per month or less than $38.70 per week. The following examples illustrate the computation of taxable wages in such cases:


EXAMPLE A

Ordinary rental value to public of lodging per month $500

Cash value of lodging to employee (66 2/3 percent


 of $500 equals $333.33) $333.33 Taxable

  Wages


EXAMPLE B

Ordinary rental value to public of lodging per month $1,800.00 

Cash value of lodging to employer (66 2/3 percent


 of $1,800.00 equals $1,200.00. The cash value for 

 2011 cannot be in excess of $1,193.00) $1,193.00 Taxable

Wages

EXAMPLE C

Ordinary rental value to public of lodging per week $50

Cash value of lodging to employee (66 2/3 percent 

 of $50.00 equals $33.33. The cash value for 2011 cannot

 be less than $38.70; 4 weeks times $38.70 equals 

 $154.80) $154.80 Taxable

Wages

(B) In those cases where subdivision (a)(1) is not applicable, if the employee receives part of his or her lodging in exchange for a cash payment and part in exchange for services rendered, the department shall consider that only the part received in exchange for services rendered is received in lieu of cash wages. The amount of the cash payment by the employee shall be deducted from the ordinary rental value of the lodging to the public, and the reasonably estimated cash value of the remainder, which is the part received by the employee in lieu of cash wages, shall be 66  2/3 percent of the ordinary rental value to the public but not in excess of $1,193.00 per month. The following examples illustrate the computation of taxable wages in such cases:


EXAMPLE A

Ordinary rental value to public of lodging per month. $660    

Employee pays cash for lodging   60    

Remainder 600    

Cash value of lodging to employee (66 2/3 percent


 of $600 equals $400) 400 Taxable

Wages


EXAMPLE B

Ordinary rental value to public of lodging per month. $400    

Employee pays cash for lodging 190    

Remainder 210    

Cash value of lodging to employee (66 2/3 percent

 of $210 equals $140) 140 Taxable

Wages

(C) Whenever the average of residential rent prices in the Los Angeles, San Diego, and San Francisco Metropolitan Areas during the twelve months of any fiscal year ending on June 30 varies from the average of prices during the same months ending on June 30, 1973, by 10 percent or more, according to the residential rent indexes published by the United States Department of Labor, Bureau of Labor Statistics, the director shall by authorized regulation modify the 2011 scale of maximum and minimum rates for lodging upward or downward in substantially the same ratio for the ensuing calendar year.

(4) Where there are unusual facts and circumstances which make any of the foregoing inapplicable, the department shall consider reasonably estimated cash value of meals or lodging to the employees.

(b) Employers shall maintain reasonably complete records of meals and lodging furnished employees as a part of their remuneration. Such records shall be in such form as to show the number and kind of meals actually consumed by employees. If, in any case, an employee objects to the amount of deductions made for contributions on the ground that the value and number of meals furnished or the value of any remuneration in kind is erroneous, he or she may protest to the department and request a determination thereon.

(c) It is immaterial for the purposes of this section that the facilities furnished by the employer are furnished for his or her convenience or the convenience of the employee.

(d) The provisions of this section shall not be construed to include as taxable wages items expended on behalf of the employer and designated as traveling allowance.

(e) This section is not applicable to meals and quarters furnished officers and crew members aboard merchant vessels, or the meals and quarters received by fishermen except as specifically provided in Sections 926-4 and 926-5 of these regulations.

(f) No right or cause of action founded upon any scale of reasonably estimated cash value of meals to employees in effect under provisions existing prior to the amendment of this section shall be abolished or impaired by such amendment.

NOTE


Authority cited: Sections 305, 306 and 310, Unemployment Insurance Code. Reference: Section 926, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-1-77; designated effective 1-1-78 (Register 78, No. 15). For prior history, see Register 76, No. 49. Issuing Agency: Department of Benefit Payments.

2. Amendment filed 11-27-78; designated effective 1-1-79 (Register 78, No. 48).

3. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

4. Amendment filed 12-12-80; effective thirtieth day thereafter (Register 80, No. 50).

5. Amendment filed 3-4-82; effective thirtieth day thereafter (Register 82, No. 10).

6. Amendment of subsection (a) filed 2-11-83; effective thirtieth day thereafter (Register 83, No. 7).

7. Amendment filed 1-6-84; effective upon filing pursuant to Government Code section 11346.2(d) (Register 84, No. 1).

8. Amendment of subsection (a) filed 12-21-84; designated effective 1-1-85 pursuant to Government Code section 11346.2(d) (Register 84, No. 51).

9. Amendment of subsection (a) filed 1-22-86; effective upon filing pursuant to Government Code section 11346.2(d) (Register 86, No. 4).

10. Amendment of subsection (a) filed 12-22-86; designated effective 1-1-87 pursuant to Government Code section 11346.2(d) (Register 86, No. 52).

11. Amendment of subsection (a) filed 1-5-88; operative 1-5-88 (Register 88, No. 3).

12. Amendment of subsection (a) filed 1-17-89; operative 1-17-89 pursuant to Government Code section 11346.2(d) (Register 89, No. 4).

13. Amendment filed 2-8-90; operative 2-8-90 (Register 90, No. 7).

14. Amendment filed 2-27-91; operative 2-27-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 13).

15. Amendment of subsections (a)(2) and (a)(3) filed 6-10-92; operative 7-10-92 (Register 92, No. 24).

16. Amendment of subsections (a)(2) and (a)(3)(A)-(a)(3)(C) filed 12-31-92; operative 1-1-93 (Register 93, No. 1).

17. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 3-2-94; operative 3-2-94 (Register 94, No. 9).

18. Editorial correction of subsections (a)(2) and (e) (Register 94, No. 51).

19. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 12-21-94; operative 1-1-95 pursuant to Government Code section 11346.2(d) (Register 94, No. 51).

20. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 1-26-96; operative 1-26-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 4).

21. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 2-6-97; operative 3-8-97 (Register 97, No. 6).

22. Amendment of subsections (a)(2) and (a)(3)(A)-(B) filed 2-9-98; operative 3-11-98 (Register 98, No. 7).

23. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 5-7-99; operative 5-7-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

24. Amendment filed 5-18-2000; operative 5-18-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 20).

25. Amendment of subsections (a)(2)-(a)(3)(C) filed 4-10-2001; operative 4-10-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 15). 

26. Amendment of subsections (a)(2)-(a)(3)(C) filed 3-21-2002; operative 3-21-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 12). 

27. Amendment of subsections (a)(2)-(a)(3)(C) filed 4-1-2003; operative 4-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 14).

28. Amendment of subsections (a)(2)-(a)(3)(C) filed 8-9-2004; operative 8-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 33).

29. Amendment of subsections (a)(2) and (a)(3)(A)-(B) filed 3-14-2005; operative 3-14-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 11). 

30. Amendment of subsections (a)(2) and (a)(3)(A)-(C) and Note filed 3-23-2006; operative 1-1-2006 pursuant to Unemployment Insurance Code section 310 (Register 2006, No. 12).

31. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 3-19-2007; designated effective date 1-1-2007 pursuant to Unemployment Insurance Code section 310 (Register 2007, No. 12).

32. Amendment of subsections (a), (a)(2) and (a)(3)(A)-(C) filed 3-3-2008; designated effective date 1-1-2008 pursuant to Unemployment Insurance Code section 310 (Register 2008, No. 10). 

33. Editorial correction of subsection (a)(3)(C) (Register 2008, No. 39).

34. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 6-17-2009; operative 1-1-2009 pursuant to Unemployment Insurance Code section 310 (Register 2009, No. 25). 

35. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 8-23-2010; operative 1-1-2010 pursuant to Unemployment Insurance Code section 310 (Register 2010, No. 35). 

36. Amendment of subsections (a)(2) and (a)(3)(A)-(C) filed 12-10-2012; operative 1-1-2011 pursuant to Unemployment Insurance Code section 310 (Register 2012, No. 50).

§926-4. Taxable Value of Meals and Quarters Furnished Officers and Crewmen Aboard Vessels.

Note         History



(a) Meals and quarters received by officers and crewmen aboard a vessel shall be taxable on the basis of a reasonably estimated cash value to the employee as determined or approved by the department as hereinafter provided:

(1) The reasonably estimated cash value of meals and quarters to an employee shall not be less than:

(A) The bona fide value stipulated in a union agreement or contract of employment; or

(B) The value established as a basis of compliance with any applicable law governing minimum wages.

(2) In those cases where subdivision (a)(1) is not applicable the department shall consider the following scale to be the reasonably estimated cash value to the employee of meals and quarters for the calendar year 2011 and thereafter, except as modified herein in accordance with the following provisions of this subdivision:

(A) Licensed Personnel. For each day or part of a day aboard a vessel, $10.30 for meals plus $8.10 for quarters, or a total of $18.40.

(B) Unlicensed Personnel. For each day or part of a day aboard a vessel, $10.30 for meals plus $5.50 for quarters, or a total of $15.80.

(C) Adjustment of Meals Values. Whenever the average of retail prices of foods in California cities during the twelve months of any fiscal year ending on June 30 varies from the average of prices during the same months ending on June 30, 1969, by 10 percent or more, according to the cost of living indexes published by the United States Department of Labor, Bureau of Labor Statistics, the director shall by authorized regulation modify the 2011 scale for meals upward or downward in substantially the same ratio for the ensuing calendar year.

If, however, it can be shown to the satisfaction of the department in any case that the scale as determined herein exceeds 120 percent of the cost of the raw materials used in preparing meals for employees, the department shall consider 120 percent of the cost of such raw materials to be the basis for a reasonably estimated value of meals to employees.

(D) Adjustment of Quarters Values. Whenever the average of residential rent prices in the Los Angeles, San Diego, and San Francisco Metropolitan Areas during the twelve months of any fiscal year ending on June 30 varies from the average of prices during the same months ending on June 30, 1973, by 10 percent or more, according to the residential rent indexes published by the United States Department of Labor, Bureau of Labor Statistics, the director shall by authorized regulation modify the 2011 scale of rates for quarters upward or downward in substantially the same ratio for the ensuing calendar year.

(b) “Vessel” as used in this section includes freighter, tanker, passenger or any other vessel, except fishing vessels. (Fishing Vessels--See Section 926-5.)

(c) “Licensed personnel” as used in this section includes masters, mates, engineers, pilots, radio telegraphers and any other persons who are licensed pursuant to the United States Shipping Code, and also includes pursers and surgeons and any other persons who are registered pursuant to the United States Shipping Code.

(d) “Unlicensed personnel” as used in this section includes all members of the crew other than persons described in subdivision (c) of this section.

(e) Notwithstanding the provisions of subdivision (a)(2) of this section, if an employer maintains records in such form as to show the number and kind of meals actually consumed by employees the scale for individual meals set forth in subdivision (a)(2) of section 926-3 of these regulations may apply.

(f) It is immaterial for the purposes of this section that the facilities furnished by the employer are furnished for his or her convenience or the convenience of the employee.

(g) No right or cause of action founded upon provisions for the reasonably estimated cash value to officers and crewmen aboard vessels of meals and quarters in effect prior to the amendment of this section shall be abolished or impaired by such amendment.

NOTE


Authority cited: Sections 305, 306 and 310, Unemployment Insurance Code. Reference: Section 926, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-1-77; designated effective 1-1-78 (Register 78, No. 15). For prior history, see Register 76, No. 49. Issuing Agency: Department of Benefit Payments.

2. Amendment filed 11-27-78; designated effective 1-1-79 (Register 78, No. 48).

3. Amendment of subsection (a) filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

4. Amendment filed 12-12-80; effective thirtieth day thereafter (Register 80, No. 50).

5. Amendment filed 3-4-82; effective thirtieth day thereafter (Register 82, No. 10).

6. Amendment of subsection (a) filed 2-11-83; effective thirtieth day thereafter (Register 83, No. 7).

7. Amendment filed 1-6-84; effective upon filing pursuant to Government Code section 11346.2(d) (Register 84, No. 1).

8. Amendment of subsection (a) filed 12-21-84; designated effective 1-1-85 pursuant to Government Code section 11346.2(d) (Register 84, No. 51).

9. Amendment of subsection (a) filed 1-22-86; effective upon filing pursuant to Government Code section 11346.2(d) (Register 86, No. 4).

10. Amendment of subsection (a) filed 12-22-86; designated effective 1-1-87 pursuant to Government Code section 11346.2(d) (Register 86, No. 52).

11. Amendment of subsection (a) filed 1-5-88; operative 1-5-88 (Register 88, No. 3).

12. Amendment of subsection (a) filed 1-17-89; operative 1-17-89 pursuant to Government Code section 11346.2(d) (Register 89, No. 4).

13. Amendment of subsection (a) filed 2-8-90; operative 2-8-90 (Register 90, No. 7).

14. Amendment filed 2-27-91; operative 2-27-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 13).

15. Amendment of subsection (a)(2) filed 6-10-92; operative 7-10-92 (Register 92, No. 24).

16. Amendment of subsections (a)(2)-(a)(2)(D) filed 12-31-92; operative 1-1-93 (Register 93, No. 1).

17. Amendment of subsections (a)(2)-(a)(2)(D) filed 3-2-94; operative 3-2-94 (Register 94, No. 9).

18. Amendment of subsections (a)(2)-(a)(2)(D) filed 12-21-94; operative 1-1-95 pursuant to Government Code section 11346.2(d) (Register 94, No. 51).

19. Amendment of subsections (a)(2)-(a)(2)(D) filed 1-26-96; operative 1-26-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 4).

20. Amendment of subsections (a)(2)-(a)(2)(D) filed 2-6-97; operative 3-8-97 (Register 97, No. 6).

21. Amendment of subsections (a)(2)-(a)(2)(D) filed 2-9-98; operative 3-11-98 (Register 98, No. 7).

22. Amendment of subsections (a)(2) and (a)(2)(D) filed 5-7-99; operative 5-7-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

23. Amendment filed 5-18-2000; operative 5-18-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 20).

24. Amendment of subsections (a)(2)-(a)(2)(D) filed 4-10-2001; operative 4-10-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 15). 

25. Amendment of subsections (a)(2)-(a)(2)(D) filed 3-21-2002; operative 3-21-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 12). 

26. Amendment of subsections (a)(2)-(a)(2)(D) filed 4-1-2003; operative 4-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 14).

27. Amendment of subsections (a)(2)-(a)(2)(D) filed 8-9-2004; operative 8-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 33).

28. Amendment of subsections (a)(2)-(a)(2)(D) filed 3-14-2005; operative 3-14-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 11). 

29. Amendment of subsections (a)(2)-(a)(2)(D) and Note filed 3-23-2006; operative 1-1-2006 pursuant to Unemployment Insurance Code section 310 (Register 2006, No. 12).

30. Amendment of subsections (a)(2)-(a)(2)(D) filed 3-19-2007; designated effective date 1-1-2007 pursuant to Unemployment Insurance Code section 310 (Register 2007, No. 12).

31. Amendment of subsections (a)(2)-(a)(2)(D) filed 3-3-2008; designated effective date 1-1-2008 pursuant to Unemployment Insurance Code section 310 (Register 2008, No. 10). 

32. Editorial correction of subsection (a)(2)(C) (Register 2008, No. 39).

33. Amendment of subsections (a)(2)-(a)(2)(D) filed 6-17-2009; operative 1-1-2009 pursuant to Unemployment Insurance Code section 310 (Register 2009, No. 25). 

34. Amendment of subsections (a)(2)-(a)(2)(D) filed 8-23-2010; operative 1-1-2010 pursuant to Unemployment Insurance Code section 310 (Register 2010, No. 35). 

35. Amendment of subsections (a)(2)-(a)(2)(D) filed 12-10-2012; operative 1-1-2011 pursuant to Unemployment Insurance Code section 310 (Register 2012, No. 50).

§926-5. Taxable Value of Meals and Quarters Received by Fishermen Aboard Fishing Vessels.

Note         History



(a) Meals and quarters received by fishermen aboard fishing vessels shall be taxable on the basis of a reasonably estimated cash value to the employee as determined or approved by the department as hereinafter provided: 

(1) Meals. The value of meals may be computed on one of the following bases, at the option of the employer: 

(A) The cost of food furnished to or consumed by fishermen shall be equally divided by the number of fishermen to determine the taxable value of meals to each fisherman. 

(B) If an employer maintains records in such form as to show the number and kind of meals actually consumed by fishermen the scale as set forth in Section 926-3(a)(2) of these regulations may be applied. 

(2) Quarters. 

(A) For the calendar year 2011 and thereafter except as modified in accordance with this subdivision, quarters furnished fishermen aboard fishing vessels have a cash value to the employee of $38.70 a week, or $5.50 a day for periods less than a week, where the facilities include the following minimum standards: 

1. Living compartment space that normally permits standing erect. 

2. Heat, light and ventilation. 

3. Gear locker. 

4. Head and bathing facilities. 

5. Individual bunks or berths with mattresses, assigned to each fisherman. 

(B) Quarters which do not meet the above minimum standards have no cash value to the fishermen.

(3) Adjustment of Quarters Values. Whenever the average of residential rent prices in the Los Angeles, San Diego, and San Francisco Metropolitan Areas during the twelve months of any fiscal year ending on June 30 varies from the average of prices during the same months ending on June 30, 1973, by 10 percent or more, according to the residential rent indexes published by the United States Department of Labor, Bureau of Labor Statistics, the director shall by authorized regulation modify the 2011 scale of rates for quarters upward or downward in substantially the same ratio for the ensuing calendar year. 

(b) It is immaterial for the purposes of this section that the cost of food consumed aboard fishing vessels is borne by the employer, by the employees or is shared by the employer and employees. The following examples illustrate the computation of taxable wages under two methods of accounting where the employer elects to apply the formula set forth in subdivision (a)(1)(A) of this section. It is assumed that the share for the owner or operator of the vessel is 40 percent and the fishermen's share is 60 percent. 

EXAMPLE A. All operating expenses, including the cost of food consumed aboard, are deducted from the gross receipts from sale of the catch. The remainder is divided into two shares, one for the owner or operator of the vessel and the other to be distributed among the fishermen. The fishermen's cash wages plus the total cost of food constitute taxable wages.


Gross proceeds from sale of the catch $1,000

Less fuel and other operating expenses $200

Less cost of food   100   300

700

Less: Owner or operator's share (40 percent)     280

Fishermen's share (60 percent) (cash wages)   420

Add cost of food consumed     100

  Total $520 Taxable

wages


(i) Taxable wages each person, assuming 5 men with equal shares--$104.


(ii) Taxable wages each person, assuming 5 men, 1 man having 2 shares, and 4 men having 1 share each: 


Add cost Total 


Cash of food taxable wages


Fisherman “A” $140 $20 $160

Fisherman “B”   70 20 90

Fisherman “C”   70 20 90

Fisherman “D”   70 20 90

Fisherman “E”     70   20   90

$420 $100 $520

EXAMPLE B. All operating expenses, except cost of food consumed aboard, are deducted from the gross receipts from sale of the catch. The remainder is divided into two shares, one for the owner or operator of the vessel and the other to be distributed among the fishermen. The amount of the fishermen's share before deduction of the cost of food constitutes taxable wages. 


Gross proceeds from sale of the catch $1,000

Less fuel and other operating expenses     200

800

Owner or operator's share (40 percent) 320

Fishermen's share (60 percent) 480 Taxable

wages

Less cost of food   100

Cash wages $380


(i) Taxable wages each person, assuming 5 men with equal shares--$96. 


(ii) Taxable wages each person, assuming 5 men, 1 man having 2 shares, and 4 men having 1 share each: 


Total 


Taxable Less cost 


wages of food Cash


Fisherman “A” $160 $20 $140

Fisherman “B”   80 20 60

Fisherman “C”   80 20 60

Fisherman “D”   80 20 60

Fisherman “E”     80   20   60

$480 $100 $380

(c) “Fishermen” as used in this section includes all persons aboard the vessel who are entitled to receive a share-of-the-catch or who are remunerated on any other basis. 

(d) It is immaterial for the purposes of this section that the facilities furnished by the employer are furnished for his or her convenience or the convenience of the employee. 

(e) No right or cause of action founded upon provisions for the reasonably estimated cash value to fishermen of meals and quarters in effect prior to the amendment of this section shall be abolished or impaired by such amendment. 

NOTE


Authority cited: Sections 305, 306 and 310, Unemployment Insurance Code. Reference: Section 926, Unemployment Insurance Code. 

HISTORY


1. Amendment filed 1-6-84; effective upon filing pursuant to Government Code section 11346.2(d) (Register 84, No. 1). For prior history, see Register 83, No. 7. 

2. Amendment of subsection (a) filed 12-21-84; designated effective 1-1-85 pursuant to Government Code section 11346.2(d) (Register 84, No. 51). 

3. Amendment of subsection (a) filed 1-22-86; effective upon filing pursuant to Government Code section 11346.2(d) (Register 86, No. 4). 

4. Amendment of subsection (a) filed 12-22-86; designated effective 1-1-87 pursuant to Government Code section 11346.2(d) (Register 86, No. 52). 

5. Amendment of subsection (a) filed 1-5-88; operative 1-5-88 (Register 88, No. 3). 

6. Amendment of subsection (a) filed 1-17-89; operative 1-17-89 pursuant to Government Code section 11346.2(d) (Register 89, No. 4). 

7. Amendment of subsection (a) filed 2-8-90; operative 2-8-90 (Register 90, No. 7). 

8. Amendment filed 2-27-91; operative 2-27-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 13).

9. Amendment of subsections (a)(2) and (a)(3) filed 6-10-92; operative 7-10-92 (Register 92, No. 24).

10. Amendment of subsections (a)(2)(A) and (a)(3) filed 12-31-92; operative 1-1-93 (Register 93, No. 1).

11. Amendment of subsections (a)(2)(A) and (a)(3)(B) filed 3-2-94; operative 3-2-94 (Register 94, No. 9).

12. Editorial correction of subsections (a)(1)(B) and (b) (Register 94, No. 51).

13. Amendment of subsections (a)(2)(A), (a)(3) and (b) filed 12-21-94; operative 1-1-95 pursuant to Government Code section 11346.2(d) (Register 94, No. 51).

14. Amendment of subsections (a)(2)(A) and (a)(3) filed 1-26-96; operative 1-26-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 4).

15. Amendment of subsections (a)(2)(A) and (a)(3) filed 2-6-97; operative 3-8-97 (Register 97, No. 6).

16. Amendment of subsections (a)(2)(A) and (a)(3) filed 2-9-98; operative 3-11-98 (Register 98, No. 7).

17. Amendment of subsections (a)(2)(A) and (a)(3) filed 5-7-99; operative 5-7-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).

18. Amendment of subsections (a)(2)(A) and (a)(3) filed 5-18-2000; operative 5-18-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 20).

19. Amendment of subsections (a)(2)(A)-(a)(3) filed 4-10-2001; operative 4-10-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 15). 

20. Amendment of subsections (a)(2)(A) and (a)(3) filed 3-21-2002; operative 3-21-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 12). 

21. Amendment of subsections (a)(2)(A) and (a)(3) filed 4-1-2003; operative 4-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 14).

22. Amendment of subsections (a)(2)(A) and (a)(3) filed 8-9-2004; operative 8-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 33).

23. Amendment of subsections (a)(2)(A)-(a)(3) filed 3-14-2005; operative 3-14-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 11). 

24. Amendment of subsections (a)(2)(A) and (a)(3) and Note filed 3-23-2006; operative 1-1-2006 pursuant to Unemployment Insurance Code section 310 (Register 2006, No. 12).

25. Amendment of subsections (a)(2)(A) and (a)(3) filed 3-19-2007; designated effective date 1-1-2007 pursuant to Unemployment Insurance Code section 310 (Register 2007, No. 12).

26. Amendment of subsections (a)(2)(A) and (a)(3) filed 3-3-2008; designated effective date 1-1-2008 pursuant to Unemployment Insurance Code section 310 (Register 2008, No. 10). 

27. Amendment of subsections (a)(2)(A) and (a)(3) filed 6-17-2009; operative 1-1-2009 pursuant to Unemployment Insurance Code section 310 (Register 2009, No. 25). 

28. Amendment of subsections (a)(2)(A) and (a)(3) filed 8-23-2010; operative 1-1-2010 pursuant to Unemployment Insurance Code section 310 (Register 2010, No. 35).

29. Amendment of subsections (a)(2)(A) and (a)(3) filed 12-10-2012; operative 1-1-2011 pursuant to Unemployment Insurance Code section 310 (Register 2012, No. 50).

§926-6. Wages--Advances and Loans.

Note         History



(a) “Wages” does not include a loan made by an employer to an employee, but earnings for services in employment applied to reduce the debt under the loan are “wages” at the time they are actually or constructively paid. (See Section 926-1 of these regulations for interpretation of “constructively paid.”) As used in this section, “loan” means a payment made by an employer to an employee in consideration of an oral or a written agreement between the employer and the employee for repayment in full, irrespective of earnings in the employ of the employer.

(b) “Wages” includes an advance made by an employer to an employee at the time the advance is actually or constructively paid, rather than at the time the prior advance is charged against later earnings for services in employment. (See Section 926-1 of these regulations for interpretation of “constructively paid.”) As used in this section, “advance” means a payment made by an employer to an employee to be charged against future earnings by the employee for services in employment, which does not create a debt, and which generates no obligation of repayment except from future earnings by the employee for services in employment by the employer.

(c) The employer's institution of legal proceedings or other evidence of his bona fide effort to recoup amounts paid to an employee in excess of the employee's earnings for services in employment creates an inference that the amounts paid to the employee are loans, rather than advances.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 926, Unemployment Insurance Code.

HISTORY


1. New section field 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Editorial correction of subsection (a) (Register 2008, No. 32).

§926-7. Wages--Inclusions--In General.

Note         History



“Wages” includes, but is not limited to, the following types of remuneration for services in employment:

(a) Any payment by an employer, without deduction from the remuneration of, or other reimbursement from an employee, for taxes imposed on the employee.

(b) Amounts in lieu of cash wages which are offset by an employer against a debt due from an employee, or applied against a debt owed to a third party by the employee.

(c) The ordinary rental value to the public of business premises furnished by an employer to an employee for his or her personal use in his or her own separate business in addition to or in lieu of cash wages.

(d) Any deduction from the remuneration due an employee made by an employer to accumulate a contingency reserve to reimburse the employer for a loss or liability resulting from the commission or omission of an act by the employee in the course of his or her employment.

(e) All remuneration paid by an employer for personal services whether or not at the time the payment is made the employer-employee relationship has terminated.

(f) Vacation payments made by or on behalf of an employer to or on behalf of an employee, whether or not the employee takes vacation or receives the payment in lieu of vacation time off, except as provided by Section 1265.5 of the code.

(g) Sick pay made by or on behalf of an employer to or on behalf of an employee, except as provided by Sections 931, 933, and 1265.5 of the code, and Sections 931-1 and 933-1 of these regulations.

(h) Holiday payments made by or on behalf of an employer to or on behalf of an employee, except as provided by Section 1265.5 of the code.

(i) Awards of back pay paid by an employer or jointly by the employer and a labor union to an employee pursuant to an order of the National Labor Relations Board, the Agricultural Labor Relations Board, the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission, or an employer's own grievance procedure.

(j) Additional wages or additional overtime compensation paid by an employer to an employee pursuant to the Fair Labor Standards Act or the Walsh-Healey Public Contracts Act, the Davis-Bacon Act or the California Labor Code.

(k) Not less than a minimum wage required by law to be paid to an employee, if the employer does not have records of the amount of wages actually or constructively paid. (See Section 926-1 of these regulations for interpretation of “constructively paid.”)

(l) Payments by an employer to an individual made as royalty payments for a license to manufacture patented articles, if the employer and the individual have an agreement under which the employer has the right, title, and interest to the patented article in consideration of the individual's employment by the employer and the royalty payments. Royalty payments are not “wages” if the individual has the right, title, and interest in the patent for the article and the employer makes royalty payments to the individual apart from any contract of employment.


CROSS-REFERENCE: For the inclusion of tips as “wages,” see Sections 927-1, 927.5-1, 986.5-1, and 987.7-1 of these regulations. For the inclusion of the value of meals and quarters as “wages,” see Sections 926-3, 926-4, and 926-5 of these regulations. For the inclusion of advances against future earnings as “wages,” see Section 926-6 of these regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 926, Unemployment Insurance Code.

HISTORY


1. New section filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of subsections (c), (d) and cross-reference filed 11-27-78; designated effective 1-1-79 (Register 78, No. 48).

3. Amendment of subsections (a), (i) and (j) filed 11-20-86; effective thirtieth day thereafter (Register 81, No. 47).

§927-1. Tips as Wages.

Note         History



(a) Statements by employees.

(1) Every employee who, in the course of his or her employment by an employer, receives in any calendar month cash tips of twenty dollars ($20) or more shall report all such tips in one or more written statements furnished to his or her employer on or before the tenth (10th) day following such month.

(A) If the cash tips received by an employee in a calendar month, in the course of his employment by an employer amount to twenty ($20) or more, none of the cash tips received by the employee in such calendar month are excluded from wages under this section. The cash tips to which this section applies include checks, tips added to the bill of a charge customer at his or her request, and other monetary media of exchange. Tips given by a patron to or for an employee in any medium other than cash, such as passes, tickets, or other goods or commodities do not constitute wages.

(B) If an employee in any calendar month performs services for two or more employers and receives tips in the course of his or her employment by each employer, the twenty dollar ($20) test is to be applied separately with respect to the cash tips received by the employee in respect of his or her services for each employer and not to the total cash tips received by the employee during the month.

(2) The employee's statement may be a completed “Employee's Report of Tips to Employer”, Federal Form 4070 Rev. 10/92, incorporated by reference, or any form giving the following information:

(A) Employee's name, address and Social Security account number;

(B) Employer's name and address;

(C) Calendar month covered by the statement;

(D) Amount of the tips received;

(E) Date and signature of the employee;

(3) The employee's statement should be prepared in duplicate with the original copy going to the employer and the duplicate copy dated and countersigned by the employer and returned to the employee for his or her record.

(4) Upon termination of employment, the employee shall furnish a statement of tips to his or her employer at the time he or she ceases to perform services.

(b) Employers.

(1) Tips reported by an employee to his or her employer in a written statement shall be deemed to be earned for purposes of this regulation and paid to the employee at the time the written statement is furnished to the employer.

Example (1) An employee received $40 in tips in the month of May. The employee reports to the employer the $40 on June 10. The tips received in May would be reported on the second quarter return.

Example (2) In the example above, the employee received the $40 in the month of June and reports the tips to the employer on July 10. The tips received would be reported in the third quarter.

Example (3) As in example (2), the employee received $40 in June; however, the employee reported the $40 in tips for that month on June 30. The tips received would be reported in the second quarter.

(2) The employer can collect the disability contribution from the employee's wage or from funds furnished to the employer by the employee. If the employer is unable to collect the disability insurance contribution, the employer can supply the employee with the Form DE 370 “Statement of Amount Due From Worker” Rev. 4: (9/89), incorporated by reference. Completion of the Form De 370 Rev. 4: (9/89) will relieve the employer of the uncollected employee liability.

(3) In the event that an employer estimates or allocates the amount of tips received by the employee, the employer will reconcile the estimate or allocation with the actual amount of tips reported by such employee and adjust for any differences. The actual amount of tips reported by the employee will be reflected in the contributions return filed for the quarter. The employer should adjust for any differences between the amount of disability insurance withheld and the amount due is indicated by the statement submitted by the employee.

(4) If the employee has made an attempt to report his or her tips to the employer, and the employer did not accept the employee's written statement of tips received, the amount of tips as reflected by the employee's records shall be deemed to have been reported and shall be considered wages within the meaning of section 927 of the code.

(c) In the absence of a monthly or other payroll period report of tips by the employee, any claim thereafter made by him or her for wage credit for tips for that month shall be deemed invalid, and unreported tips for that month shall not be included in the computation of benefits.

(d) When tips are pooled and the employer determines the split of the tips, the tips paid from the pool are wages under Section 926 of the code. The employee must receive the total amount of the tips from a customer or the total amount of the tips minus a maximum of 15 percent contribution to a tip pool, to be considered tips under Section 927. This includes tips paid in cash or the tip portion paid by the employer to the employee when a customer pays by check or charge card. If the employee is required to pay more than 15 percent to a tip pool, or the employer pays less than 85 percent of the total amount of its tips to the employee, then the amount retained by the employee or paid over by the employer is wages under Section 926. Wages under Section 926 of the code are taxable and reportable when actually or constructively paid.

(e) Service charges, even if designated as banquet tips or other name including the word “tips”, are not tips and are wages under Section 926 of the code. The term “service charge” refers to a sum of money which the patron pays to the employer and which meets two or more of the following criteria:

(1) The employer determines whether or not such a sum of money must be paid;

(2) The employer determines, or negotiates with the patron, the exact amount of the sum which the patron must pay, and

(3) The employer determines to which employee(s), if any, the sum is to be paid.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 926 and 927, Unemployment Insurance Code.

HISTORY


1. Amendment of subsection (c) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Amendment filed 8-18-93; operative 9-17-93 (Register 93, No. 34).

§927.5-1. Tips Are Wages for Disability Insurance Purposes Only. [Repealed]

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 927.5, Unemployment Insurance Code.

HISTORY


1. New section filed 2-21-78 as an emergency; effective upon filing (Register 78, No. 8).

2. Certificate of Compliance filed 5-8-78 in the week of Register 78, No. 19. Printed in Register 78, No. 39 for technical reasons.

3. Amendment of subsection (a) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

4. Change without regulatory effect repealing section filed 3-30-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).

§928-1. Allocations of Wages Paid at Irregular or Infrequent Intervals. [Repealed]

Note         History



NOTE


Authority cited: Sections 306, 928 and 2602, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer filed 9-5-61, designated effective 9-15-61 (Register 61, No. 18).

§929-1. Allowance for Traveling, Automobile, and Other Business Expenses.

Note         History



(a) “Wages” does not include the actual amount of traveling, automobile and other required or necessary business expenses incurred by an employee in connection with his employment; provided however, that the employee shall maintain such reasonable records as will enable him to account to his employer for the amount of the expenses actually incurred by him and that the employer shall keep such reasonable records as will show the portions of the total amount which represent respectively expenses and remuneration for services.

(b) If proper records are maintained, an expense may be allowed either where the employer pays the employee a gross sum out of which the employee pays his expenses, or where the employee expends his own funds and is reimbursed by the employer.

(c) The accounting between the employee and his employer shall be accomplished for periods not greater than a calendar quarter and not less often that once each quarter so the employer may have knowledge of that portion of the payment which is remuneration for personal services for the purpose of properly preparing the quarterly contribution and earnings returns.

(d) Nothing herein shall preclude a reasonable flat daily, weekly, monthly, or other periodic allowance to cover traveling and similar expenses actually incurred and not in fact remuneration for services performed. Where the employer computes expenses on a fixed flat allowance basis, the employer shall, at all times, be prepared to substantiate the amount claimed to be expense items and to show that no part of it represents additional remuneration for employment. A statement of expenses by the employee shall constitute a rebuttable presumption that the employer has complied with this section.

(e) Allowance for automobile expense may be computed on any one of the following bases:

(1) The actual expense incurred, if the records show the actual expenditures for fuel and other automobile expense.

(2) A reasonable fixed mileage rate, if the records show the actual miles traveled by the employee in the employer's business.

(3) A reasonable flat periodic allowance, if the employer substantiates the reasonableness of the computation at the request of the department.

(f) Payments to an employee made under an agreement providing for reasonable flat daily allowances for travel expense based on specified mileage zones measured from a fixed central point are reasonable flat periodic allowances and required or necessary business expenses under this section, regardless of the actual mileage traveled by the employee, if there is a reasonable inference that payments made for shorter trips will offset payments made for longer trips.

(g) Payments for time spent in travel by an employee who is compensated for time required to reach his job location are not required or necessary business expenses.

(h) An allowance for automobile expense incurred by an employee is not a required or necessary business expense if incurred in the use of his automobile for pleasure, or to go to and from his home and a fixed place of work, except as provided in subdivision (f), or for any other personal purpose.

(i) An allowance for personal expense incurred by an employee which is not directly attributable to employment, such as rent, clothing, dues, or assessments, is not a required or necessary business expense.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 929, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§929-2. Allowance for Rental of Space and Equipment and Cost of Supplies.

Note         History



(a) “Wages” does not include the reasonable rental value of land or building space or equipment, or the actual cost of supplies and materials, furnished by an employee to his employer, if the employer:

(1) Maintains a record of the portion of gross remuneration paid as rental or for supplies and materials and the portion of gross remuneration paid as wages.

(2) Substantiates the reasonableness of rental charges and the actual cost of supplies and materials at the request of the department.

(b) In determining the reasonable rental value of land or building space furnished by an employee to his employer, the reasonable rental value shall not exceed the rental price of similar facilities in the same locality, nor the actual rental price being paid by the employee if he is not the owner of the land or building.

(c) In determining the reasonable rental value of equipment furnished by an employee to his employer, other than equipment described in subdivision (d) of this section, the following shall apply:

(1) If the contract of employment specifies a reasonable division of the total amount paid between wages and equipment rental, the rental value is the amount established under the contract.

(2) If the contract of employment does not specify a reasonable division of the total amount paid between wages and equipment rental, the department may make an allocation on the basis of either the prevailing wage scale for the same type of services in the same locality, or the prevailing rental value of similar equipment in the same locality.

(d) In determining the reasonable rental value of power chain saws and other equipment furnished by fallers, buckers and limbers in the logging and lumbering industries, the following shall apply:

(1) The reasonable rental value of power chain saws shall, at the option of the employer, be computed on any of the following bases:

(A) Twenty percent of the gross remuneration paid for falling, bucking and limbing, regardless of the overall rate per thousand board feet felled.

(B) The actual expense incurred by the employee, if the records show the initial cost of the saw, depreciation, maintenance and operational overhead in connection with services performed for the employer, and the employer establishes to the satisfaction of the department that the actual expense differs from the estimated allowance provided in paragraph (1)(A) of this subdivision.

(C) The reasonable rental value specified in the contract of employment, but not to exceed the estimated allowance provided in paragraph (1)(A) of this subdivision.

(2) Power chain saw rental is limited to one allowance per saw whether the saw is owned solely by one employee or by several employees jointly. For example:

(A) If two employees work as a team with one employee furnishing the saw, the saw rental rate is applied against the total earnings of the team and the entire saw rental allowance is allocable to the employee furnishing the saw.

(B) If two employees work as a team and furnish the saw jointly, the saw rental rate is applied against the total earnings of the team and one-half of the saw rental allowance is allocable to each member of the team.

(3) No rental allowance is applicable to hand tools or equipment of nominal value including, but not limited to, axes, gunning sticks, peeling bars, plates, sledges, shims and wedges.

(e) The cost of hand tools and work clothing customarily furnished by an employee shall not be considered equipment or supplies furnished by an employee to his employer for purposes of this section.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 929, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§929-3. Period Allowable for Offset of Expenses Against Wages.

Note         History



If an employee incurs expenses which are allowable exclusions from wages under Section 929-1 or 929-2 of these regulations but does not receive reimbursement from his employer for such expenses, excesses of expenses over wages in any calendar quarter may be offset against wages in subsequent calendar quarters of the same calendar year, but they may not be carried over and offset against wages in any subsequent calendar year. If such expenses exceed wages in the last calendar quarter of a calendar year, or the last calendar quarter in which an employee is employed, the employee's wages for the entire year may be recomputed by deducting the total expenses for the year from the total wages for the year and thereafter the corrected net wages for each calendar quarter may be computed according to the length of employment in each such calendar quarter.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 929 and 1088, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§929-4. Burden of Proof of Substantiating Expenses or Allowances.

Note         History



Regardless of any of the methods described in Sections 929-1, 929-2, and 929-3 of these regulations which are used in computing expenses or allowances, the burden of proof shall be entirely upon the employer to establish the correctness of the expenses or allowances to the satisfaction of the department. Unless it can be established to the satisfaction of the department that the amount claimed represents only actual reimbursement for required or necessary expenses incurred in the course of the worker's employment, all or any part of the amount claimed may be disallowed.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 929, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§930-1. Limitation on Amount of Taxable Wages.

History



HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment filed 9-5-61; designated effective 9-15-61 (Register 61, No. 18).

3. Repealer filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

§930.5-1. Limitation on Amount of Taxable Wages-- Application to Acquiring Employer.

Note         History



(a) The following definitions apply to terms used in Section 930.5 of the code:

(1) “Acquiring employer” means an employing unit which qualifies as an employer as defined in Article 3 (commencing with Section 675) of Chapter 3 of Part 1 of Division 1 of the code under any of the following circumstances:

(A) Prior to the date of acquisition.

(B) In the calendar quarter in which the acquisition occurred.

(C) During the calendar quarter immediately succeeding the calendar quarter in which the acquisition occurred.

(2) “Acquisition” means a transfer of possession and control of the property by any means, including purchase, lease, gift, bequest, merger, or incorporation.

(3) “Substantially all the property used in a trade or business” or “used in a separate unit of a trade or business” is acquired if an employing unit acquires all of the property of a trade or business, or a separate unit thereof, of any employer which generates substantially all of the employment, except any property retained by the predecessor incident to the liquidation of his obligations.

(4) A “separate unit” is acquired if an employing unit acquires factors of any employer's trade or business sufficient to constitute an existing separable going business unit as distinguished from the acquisition of merely dry assets from which a new business may be built. The question of whether a separate unit is acquired is determined from all of the factors of the particular case. Among the factors to be considered are:

(A) The place of business.

(B) The staff of employees.

(C) The customers.

(D) The goodwill.

(E) The trade name.

(F) The stock in trade.

(G) The accounts receivable.

(H) The tools and fixtures.

(I) Other assets.

(b)(1) For the purpose of determining the application of the limitations on taxable wages under Sections 930 and 985 of the code, wages paid during a calendar year by the predecessor employer to an individual prior to the acquisition shall be considered as having been paid by the acquiring employer if not more than two pay periods elapse between the performance of services by the individual for the predecessor employer and for the acquiring employer and the individual performs services in employment either:

(A) For the predecessor employer during the calendar quarter in which the acquisition occurred, and for the acquiring employer either during such calendar quarter or during the calendar quarter immediately following such calendar quarter; or

(B) For the acquiring employer during the calendar quarter in which the acquisition occurred, and for the predecessor employer either during such calendar quarter or during the calendar quarter immediately preceding such calendar quarter.

(2) Notwithstanding paragraph (1) of this subdivision, an individual who performs services for the predecessor employer and the acquiring employer within the calendar quarters as specified by paragraph (1) of this subdivision shall be deemed to have been employed by the predecessor employer “immediately prior to the acquisition” and by the acquiring employer “immediately after the acquisition” if the acquiring employer temporarily closes the trade or business for a period not exceeding three months for the purpose of restocking or reconstruction or refurbishing of the business premises and the individual has not performed services for the acquiring employer during the period of, or performs services during a portion of the period of, the temporary closure of the trade or business.

(c) Wages paid by the predecessor employer for services performed in its employ after the date of acquisition shall not be considered as having been paid by the acquiring employer.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 930.5, Unemployment Insurance Code.

HISTORY


1. New section filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§931-1. Wages--Employers' Plans Providing for Payments to Employees on Account of Sickness, Accident Disability, Medical or Hospitalization Expense in Connection with Sickness or Accident Disability, or Death.

Note         History



(a) A plan or system established by an employer may provide for any one or more of the benefits specified by Section 931 of the code. Payments for any such benefits under a plan or system established by an employer solely for the benefit of the dependents of his employees are not excluded from “wages” under Section 931 of the code.

(b) A plan or system established by an employer for payment of benefits pursuant to Section 931 of the code shall:

(1) Provide that payment shall be made under conditions designated in the plan.

(2) Specify the amount of the payment or the formula by which the amount of payment is computed, and the duration of benefits.

(3) Specify the standards to be used in determining the eligibility of the beneficiary, such as length of service, salary, classification or occupation of an employee, and such other standards as the employer may establish to determine the eligibility of dependents of an employee.

(c) The employer shall inform employees affected by a plan or system under Section 931 of the code of the terms and conditions of the plan or system.

(d) Payments to an employee or his dependents under a plan or system established by an employer to provide for any of the benefits specified by Section 931 of the code are not excluded from “wages” under such section if such payments are made pursuant to a provision of the plan or system whereby the employee has:

(1) The option to receive any part of the payment made for benefits, or if such benefits are insured, any part of the premium (or contributions to premiums) paid by the employer.

(2) The right to assign such benefits.

(3) The right to receive a cash consideration either upon his withdrawal from the plan or system providing for such benefits or upon termination of such plan or system or policy of insurance, or upon termination of his employment with the employer.

(e) Dependents of an employee include the employee's husband or wife, children, and any other members of the employee's immediate family.

(f) If a plan or system otherwise meets the requirements of Section 931 of the code, amounts paid into such plan or system by the employer to provide for the specified benefits are not “wages,” even though some payments made from the plan or system may not be excluded from “wages” as described in subdivision (d) of this section.

(g) It is immaterial for purposes of this section whether the amount or possibility of the benefit payments is taken into consideration in fixing the amount of an employee's remuneration or whether such payments are required, expressly or impliedly, by the contract of service.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 931, Unemployment Insurance Code.

HISTORY


1. New Section filed 4-3-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of Note filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Change without regulatory effect amending heading and repealing cross-reference filed 8-26-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 35).

§931.5-1. Third Party Sick Pay.

Note         History



(a) Wages. Wages include payments made for sickness or accident disability pursuant to Section 931(a) of the code, unless the payment is made under a worker's compensation law or after the period specified in Section 933 of the code. Payments for sickness or accident disability made by a third party are considered wages for purposes of unemployment insurance and the employment training fund and are not wages for disability insurance purposes. Payments for sickness or accident disability made by a third party are not subject to California personal income tax withholding unless a request has been filed pursuant to Section 13028.6 of the code.

(b) Reporting Requirements. A third party payer who makes sick pay payments shall be treated as the employer unless the third party payer complies with the notification requirements of Section 931.5 of the code. If the third party payer does not meet the notification requirements of Section 931.5 of the code, then the third party payer must comply with the reporting requirements of subdivision (a) of Section 1088 of the code and must pay any contributions which are due for unemployment insurance and the employment training fund. See Section 13050(d) of the code for reporting requirements pursuant to Division 6 of the code.

(c) Third Party Payer. For purposes of this section a third party payer is the party who makes payments on account of sickness or accident disability and who is not the party for whom the employee performed services. The payments must be made on account of employment, as defined in Section 601 of the code, and must result from funding by an employer which was not includible in the gross income of the employee; therefore, payments made through funding by an employee for sickness and disability are excluded under this section. Contributions paid by an employee to fund the State disability insurance program pursuant to Part 2 of Division 1 of the code are a contribution by the employee, and therefore the benefits do not constitute third party sick pay. See subdivision (d) of this regulation for situations involving payments made partially by the employer and partially by the employee.

A party making a payment on account of sickness or accident disability as an agent of the employer or making such payment directly to the employer, is not a third party payer and will not be treated as the employer under subdivision (a). The determining factor, in distinguishing between a third party payer and an agent for this purpose, is whether the payer bears any risk. If the payer bears no insurance risk and is reimbursed on a cost plus fee basis, the payer is not a third party even if the payer is responsible for making determinations of the eligibility of individual employees of the employer. Without insurance risk the third party is making payments with the employer's money, and therefore the employer must report the sick pay as wages. If the payer is paid an insurance premium and is not reimbursed on a cost plus fee basis, the payer is a third party payer, but may be treated as the employer in accordance with subdivision (b).

The application of the provisions of this paragraph may be illustrated by the following examples: 

EXAMPLE 1. Pursuant to an agreement with Company U, Insurance Company V makes payments on account of sickness or accident disability to U's employees. Such payments are not made under a workers' compensation law. U reimburses V for all such payments and pays V a fee for its expenses of administering the payments. V is an agent of the employer and is not a third party payer. 

EXAMPLE 2. Pursuant to an agreement with Company W, Insurance Company X indemnifies W for the amount of any payments which W must make to an employee on account of sickness or accident disability. Such payments are not made under a workers' compensation law. X makes its indemnity payments directly to W. W makes the payments to its employees. X is not a third party payer. 

EXAMPLE 3. Pursuant to an agreement with Company Y, Insurance Company Z makes payments on account of sickness or accident disability to Y's employees. Such payments are not made under a workers' compensation law. Z does not notify Y of the amount of such payments within the time required by law. Z is treated as the employer with respect to such payments.

(d) Determination of taxable wages. In those cases where the employer and the employee each pay a portion of the premiums or payments to a plan, the amount attributable to the employer is taxable wages and shall be determined in accordance with the following:

(1) Individual policies. If the sick pay coverage is provided under an individual policy of accident or health insurance purchased by premiums paid partly by the employer and partly by the employee, the portion of the benefit amount received which is attributable to the employer's pro rata share of the premiums for the current policy year represents taxable wages. This rule may be illustrated by the following example: 

EXAMPLE. Employer A maintains a plan whereby he pays two-thirds of the annual premium cost on individual policies of sickness and accident disability insurance for his employee. The remainder of each employee's premium is paid by a payroll deduction from the wages of the employee. The annual premium for employee H is $240, of which $160 is paid by the employer. Thus, $160/$240 or two-thirds of all amounts received by H under such insurance policy are attributable to the premiums paid by the employer.

(2) Group Policies. If the sick pay coverage is provided under or is a part of a group insurance policy purchased with premiums paid by the employer and the employees, that portion of the benefit amount received by an employee which is attributable to employer's pro rata share of the net premiums for the last three policy years which are known at the beginning of the calendar year represents taxable wages. Net premiums are the total premiums less retroactive premium adjustments, such as dividends and credits. If the net premiums for coverage for a period of at least three policy years are not known at the beginning of the calendar year but are known for at least one policy year, the determination of taxable wages shall be made by using the net premiums which are known at the beginning of the calendar year. If the net premiums for coverage are not known at the beginning of the calendar year for even one policy year, the determination of taxable wages shall be made by using a reasonable estimate of the net premiums for the first policy year. These rules may be illustrated by the following examples: 

EXAMPLE 1. Company X purchased a package of group insurance benefits from an insurance company. The company pays $60 per month per employee and each employee pays $30 per month for the coverage. The company designated its payment of $60 per month as applying to the cost of long-term disability insurance (payable after the employee is off work more than 6 months), life insurance, and medical insurance, all of which are included in the coverage. The $30 paid by the employee is designated as a premium for short-term sickness and disability insurance also included in the coverage. Employee B is off sick and receives sick pay of $75 per week for two weeks. The benefit is fully attributable to B's own payments and does not constitute wages. 

EXAMPLE 2. Employee C received sick pay of $1,200 from an insurance company. The net premiums for the prior policy year were not known at the beginning of the calendar year because certain retroactive premium adjustments and credits are not determinable until after January 1. During the prior three policy years the net premiums were $5,000 the first year, of which the employer contributed $3,500; $6,500 the second year, of which the employer contributed $4,000; and $3,500 the third year, of which the employer contributed $2,500. C received taxable wages of $800 which was determined by using the ratio of $10,000 ($3,500 plus $4,000 plus $2,500) to $15,000 ($5,000 plus $6,500 plus $3,500). Thus, $10,000/$15,000 or two-thirds of the benefit received ($1,200) = $800.

(3) Noninsured plans. If the sick pay benefits are paid from a noninsured plan (such as a trust providing incidental sick and accident disability benefits or an association funded to pay sickness and accident disability benefits to which both the employer and employee contribute) the portion of the amounts received which are attributable to employer payments shall be determined in accordance with the rules contained in paragraph (2) of this subdivision.

(e) Last Employer. The last employer for whom the employee worked prior to becoming sick or disabled or for whom the employee was working at the time he became sick or disabled shall be deemed to be the last employer for purposes of this section, provided that the employer made contributions on behalf of the employee to the plan or system under which the employee is being paid. The application of these rules may be illustrated by the following examples: 

EXAMPLE 1. B is employed by Company M. B becomes sick and is absent from work for 3 months. While B is absent from work, he receives sick pay from Insurance Company N pursuant to a plan established by M and to which M has made contributions on behalf of B. M is the employer for purposes of this section. 

EXAMPLE 2. C is employed by Company O and is also employed on a part-time basis by Company Q. C becomes sick while at work a Q's place of business. C is absent from work for 3 months. While C is absent from work, he receives sick pay from Insurance Company P pursuant to a plan established by O and to which O has made contributions on behalf of C. Q is not a member of the plan and has made no contributions on behalf of C. O is the employer for purposes of this section. 

EXAMPLE 3. D is a member of a labor union whose members receive health and welfare benefit payments from a trust fund which is supported by the payments from the various employers who employ the labor Union's members. D has been employed by Company R for 4 days when be becomes sick and is absent from work for 3 months. While D is absent from work he receives sick pay from his union's trust fund to which R has made contributions on D's behalf. R is the employer for purposes of this section.

(f) Multiple employer plan. A multiple employer plan is a plan to which more than one employer provides contributions to fund payment on account of sickness or accident disability. The plan may be set up pursuant to a collectively bargained agreement or by employers who voluntarily join together to obtain insurance, to benefit from discounts or to provide a plan which would not be obtainable for small entities.

NOTE


Authority Cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 931, 931.5, 933, 1088, 13028.6 and 13050, Unemployment Insurance Code.

HISTORY


1. New section filed 10-27-89; operative 11-26-89 (Register 89, No. 45). 

§932-1. Wages--Retirement Payments.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 932, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Change without regulatory effect repealing Section 932-1 filed 5-26-89 (Register 89, No. 25).

§933-1. Wages--Disability Payments.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 933, Unemployment Insurance Code.

HISTORY


1. New section filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of NOTE filed 11-21-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§936-1. Wages--Payments Other Than Cash for Service Not in the Course of the Employer's Trade or Business.

Note         History




CROSS-REFERENCE: For circumstances under which cash remuneration for service not in the course of the employer's trade or business is “wages,” see Section 640-1 of these regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 936, Unemployment Insurance Code.

HISTORY


1. New section filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§937-1. Wages--Stand-By Payments Made to an Employee over 65 Years of Age.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 937, Unemployment Insurance Code.

HISTORY


1. New section filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Change without regulatory effect repealing Section 937-1 filed 5-26-89 (Register 89, No. 25).

Article 3. Contribution Rates

§976.7-1. Balancing Account Tax Rate--Agricultural Labor.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 976.7, Unemployment Insurance Code.

HISTORY


1. Repealer filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50). For former history, see Register 76, No. 6.

§982-1. Period When Reserve Account Is Subject to Benefit Charges.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 982 and 3702, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§985-1. Limitation on Amount of Taxable Wages--Disability Insurance.

Note         History



Remuneration for services which are subject to the unemployment insurance law of another jurisdiction shall not be included in determining the application of the limitation on taxable wages for disability insurance purposes as prescribed in Section 985 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 985, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

2. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§986-1. Employee Deductions.

Note         History



Contributions from employees at the rates prescribed in the code shall be deducted by the employer from wages paid to the employee at the time such wages are paid and shall be transmitted to the department by the employer, in addition to his own contributions, in accordance with the code and these regulations. Deductions for employee contributions shall not be made before the day on which the employing unit qualifies as subject to the provisions of the code. Where an employee is paid daily, weekly, biweekly, or upon a piece-time or other basis for services performed by him during a calendar month, the employer may elect to deduct the contribution required of such employee at one time during such month.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 986, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§986-2. Statement of Employee Deductions.

Note         History



(a) All employers subject to the provisions of the code shall furnish to each of their employees a periodic written statement in a form suitable for retention by the employee, covering all wages paid by him to the employee and all deductions therefrom made in accordance with the requirements of the code. Each statement shall cover a calendar year, or one, two, three, or four calendar quarters, whether or not within the same calendar year, and shall show the name of the employer, the name of the employee, the period covered by the statement, the total amount of wages paid within such period and the amount of the contributions which have been withheld. Such statement shall be furnished to the employee not later than the last day of the second calendar month following the period covered by the statement, except that if the employee leaves the employ of the employer, the final statement shall be furnished on the day on which the last payment of wages is made to the employee.

(b) The employer may, at his option, furnish such a statement to any employee at the time of each payment of wages to the employee during any calendar quarter in lieu of the statement covering such quarter and in such case, the statement may show the date of payment of the wages, in lieu of the period covered by the statement.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 986, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§986.5-1. Basis for Employers to Estimate Tips Received by Workers.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 986.5, Unemployment Insurance Code.

HISTORY


1. New section filed 2-21-78 as an emergency; effective upon filing (Register 78, No. 8).

2. Certificate of Compliance filed 5-8-78 in the week of Register 78, No. 8. Printed in Register 78, No. 39 for technical reasons.

3. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

4. Change without regulatory effect repealing section filed 11-7-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 45).

§987.7-1. Contents of Statement Given to Employee.

Note         History



NOTE


Authority cited: Sections 305.1 and 306.1, Unemployment Insurance Code.

HISTORY


1. New section filed 2-21-78 as an emergency; effective upon filing (Register 78, No. 8).

2. Certificate of Compliance filed 5-8-78 in the week of Register 78, No. 8. Printed in Register 78, No. 39 for technical reasons.

3. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§991(a)-1. Erroneous Payments to Another State or Federal Government Agency.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 991, Unemployment Insurance Code.

HISTORY


1. New section filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§991(b)-1. Erroneous Payments to Admitted Disability Insurers, Trustees Administering a Voluntary Plan, Self-Insured Plans and Other Agencies of State and Federal Government.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 991, Unemployment Insurance Code.

HISTORY


1. New section filed 12-18-78; effective thirtieth day thereafter (Register 78, No. 50).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

Article 4. Reserve Accounts

§1026-1. Experience Rating Chargebacks for Joint Accounts.

Note         History



(a) For the purpose of determining future rates of employer contributions, benefits paid on the basis of wages reported under the provisions of Sections 1096, 1097 and 1098 of the code for employment as to which the employment risk of all employers so reporting is found by the department to be virtually the same, shall be charged as provided herein. The provisions of any other section of these regulations, insofar as there may be conflict with this section, shall not be applicable to the charging of benefits.

(b) Benefits referred to in subsection (a) of this section shall be charged to a special account in the name of the reporting agent. Benefits so charged shall be allocated to the individual accounts of employers reporting through such agent in the proportion that the wages reported by each such employer through the agent bears to the total wages reported through such agent. Such allocation shall be made on the basis of wages reported through the agent for the allocation period of six calendar quarters preceding the last previous computation date.

(c) If the allocation period provided herein would not distribute among any group of employers reporting through such an agent, benefit charges in sufficiently close relationship to the amounts of wages upon which benefits were computed, the department may prescribe that there shall be applied such other allocation periods as may be determined will more closely relate such benefit charges to the wages upon which the benefits were computed.

(d) Notwithstanding the termination of the agency relationship as to any such employer, benefits shall be allocated to his account under this regulation so long as the current allocation period includes any calendar quarter during which such employer was a party to the agency relationship.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1026, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1029-1. Cancellation of Reserve Account.

Note         History



If a reserve account canceled in accordance with Section 1029 of the code is subsequently determined by the Department to have been canceled in error, it shall be reinstated.

Example: An employer notifies the Department that he or she has ceased to pay wages. After three consecutive years the reserve account is canceled. Subsequent to the cancellation, the Department determines wages were paid during the three-year period. In this case the reserve account was canceled in error and must be reinstated.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1029, Unemployment Insurance Code.

HISTORY


1. New section filed 7-18-97; operative 8-17-97 (Register 97, No. 29).

§1030(a)-1. Method of Filing Requests for Ruling Pursuant to Section 1030(a) of the Code

Note         History



(a) Every request for ruling by an employer under section 1030(a) of the code shall relate to a single claimant, shall be filed with the field office of the department in which the claim was filed as instructed on the notice of claim filed which is mailed to the employer by the department, and shall contain the following:

(1) The name, address, telephone number, and California account number of the employer.

(2) The claimant's name and social security account number.

(3) The effective date of the claim (if available).

(4) The date of separation from employment.

(5) Facts relating to the reason for or the circumstances resulting in the claimant's separation where any of the following is alleged:

(A) That he or she voluntarily left his or her employment without good cause.

(B) That he or she was discharged for misconduct connected with his or her work.

(C) That he or she was a student employed on a temporary basis and whose employment began within, and ended with his or her leaving to return to school at the close of, his or her vacation period.

(D) That he or she left the employer's employ to accompany or join his or her spouse, registered domestic partner or a person to whom marriage is imminent at a place from which it is impractical to commute to such employment, to which a transfer of the claimant by the employer is not available.

(E) That he or she voluntarily left his or her employment without notification to the employer of the reasons therefor.

(F) That he or she was discharged or quit his or her employment as a result of an irresistible compulsion to use or consume intoxicants, including alcoholic beverages.

(b) Each statement of facts submitted under subdivision (a)(5) of this section shall be supported by a statement signed by the person or persons having knowledge of or business records reflecting such facts.

(c) If a claimant was rehired after the date of a separation and in the same calendar quarter, a request for a ruling on that separation shall contain a statement of the date of rehire.

Registered domestic partners are defined in California Family Code Section 297.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1030 and 1032, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 57, No. 21.

2. Amendment of subsection (c) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Amendment of section number and heading, subsections (a), (a)(1), (a)(4), (a)(5)(D) and Note and new subsection (a)(5)(F) filed 10-13-92; operative 11-12-92 (Register 92, No. 42).

4. Amendment of subsection (a)(5)(D) and new last paragraph filed 11-5-2002 as an emergency; operative 11-5-2002 (Register 2002, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-5-2003 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 11-5-2002 order transmitted to OAL 2-25-2003 and filed 4-8-2003 (Register 2003, No. 15).

§1032.5-1. Required Form and Method of Filing Requests for Ruling Pursuant to Section 1032.5 of the Code.

Note         History



(a) Every request for ruling by an employer under Section 1032.5 of the code shall relate to a single claimant, shall be filed with the field office of the department in which the claim was filed, and shall contain the following:

(1) The name, address, telephone number, and employer account number of the employer.

(2) The claimant's name and social security account number.

(3) The effective date of the claim (if available).

(4) Facts disclosing that the claimant is rendering services for the employer in less than full-time work, and that he or she has continuously, commencing in or prior to the beginning of the base period, rendered services for the employer in such less than full-time work.

(b) Each statement of facts submitted under subdivision (a)(4) of this section shall be supported by a statement signed by the person or persons having knowledge of or business records reflecting such facts.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1032.5, Unemployment Insurance Code.

HISTORY


1. New section filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

§1034-1. Protest of Benefit Charges.

Note         History



(a) Adjustment of data or matters contained in the statements provided for in Section 1033 of the code shall originate with the mailing of such statements and the filing of a written protest thereto by an employer.

(b) Such protest shall include the employer's account number and shall specify the item or items to which exception is taken. If exception is taken to the accuracy of any amount shown on the statement of experience rating account, the protest should include a reference to and a reconciliation with the pertinent quarterly contribution reports previously filed by the employer, or statements furnished by the department. With respect to items representing benefits paid and charged to his account, the employer shall set forth the following information:

(1) Name of claimant.

(2) Claimant's social security number.

(3) Date on which the initial claim for benefits was filed (as shown on the statement).

(4) Amount of charges protested, and if known to the employer the week or weeks to which such charges relate.

(5) Amount of wages earned, stated by calendar quarters, protested.

(6) Full grounds for protest.

(7) A certification by the employer that either (A) he was not notified of the claimant's eligibility for benefits, or (B) the benefit charges shown on the statement are not in accordance with a determination by the department or a decision on an appeal in respect to such benefits.

(c) The department shall fully consider the items of the employer's statement of account to which exception is taken and shall make its determination thereon. The department shall furnish the employer promptly with a copy of its determination.

(d) A protest of benefit charges under the provisions of this section will not be considered where the employer was notified as required by the code and these regulations of a determination of the claimant's eligibility and either (1) a final decision of a referee or the Appeals Board affirmed the payment of benefits, or (2) the employer failed or neglected to file an appeal from such determination to a referee as provided in the code, or after a decision by the referee, failed or neglected to appeal to the Appeals Board as provided in the code.

(e) An employer need not file a protest as to any benefit charge appearing on his statement of benefit charges in respect to which there is an appeal pending at the time such statement is furnished to him. If the final decision on such an appeal holds that the charges were erroneously made to the employer's account, the department shall upon its own initiative, in accordance with the code and these regulations, remove the amount of such charges from the employer's experience rating account.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1034, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1036-1. Correction of Statement.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1036, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 9-5-61; designated effective 9-15-61 (Register 61, No. 18).

3. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

4. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1036-2. Correction of Duplicate Accounts.

Note         History



If an employer has reported wages and paid contributions under two or more accounts with separate contribution rates, the department shall combine the accounts, compute the corrected contribution rate, and give notice of the correction to the employer, pursuant to Section 1036 of the code, prior to the expiration of the rating period to which the corrected contribution rate applies. The contribution rates for rating periods which have expired are final. If contributions are due with respect to additional unreported wages for rating periods which have expired, the contributions shall be paid at the rate applicable to the expired rating period. No refund, credit, or assessment with respect to wages previously reported for the expired rating periods shall be based solely on the employer's use of two or more accounts with separate contribution rates.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1036, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

Article 5. Transfer of Reserve Accounts

§1051-1. Reserve Account Transfer--Definitions.

Note         History



(a) An acquisition of a business as used in Sections 1051 and 1052 of the code occurs through:

(1) Purchase,

(2) Merger,

(3) Lease,

(4) Except as provided in Section 135.1 of the code, any other transaction that causes substantially all property used in a business by one employer to be obtained by another employer.

(b) An “organization, trade or business” as used in Section 1051 of the code is acquired if an employing unit acquires factors of an employer's organization, trade or business sufficient to constitute an entire existing going business unit as distinguished from the acquisition of merely dry assets from which a new business may be built. The question of whether an organization, trade or business is acquired is determined from all the factors of the particular case. Among the factors to be considered are:

(1) The place of business.

(2) The staff of employees.

(3) The customers.

(4) The good will.

(5) The trade name.

(6) The stock in trade.

(7) The accounts receivable.

(8) The tools and fixtures.

(9) Other assets.

(c) “A substantial reduction in personnel” as used in Section 1051 of the code occurs when the number of employees employed by the successor is less than 75 percent of the number of employees employed by the predecessor, if the number of employees employed by the predecessor was 10 or more. If the predecessor employed less than 10 employees, the question of whether there was a substantial reduction in personnel is dependent upon all of the circumstances of the particular case.

(d) “Substantially all of the assets” as used in Section 1051 of the code are acquired if an employing unit acquires the assets of any employer which support substantially all of the employment, except those retained incident to the liquidation of obligations.

(e) A “distinct and severable portion” as used in Section 1051 of the code is acquired if an employing unit acquires factors of any employer's organization, trade or business sufficient to constitute an existing separable going business unit as distinguished from the acquisition of merely dry assets from which a new business may be built. The question of whether a distinct and severable portion is acquired is determined from all the factors of the particular case. Among the factors to be considered are:

(1) The place of business.

(2) The staff of employees.

(3) The customers.

(4) The good will.

(5) The trade name.

(6) The stock in trade.

(7) The accounts receivable.

(8) The tools and fixtures.

(9) Other assets.

(f) “Successor employer” as used in Section 1052 of the code and Section 1052-1 of these regulations means an employing unit which under Section 675 of the code:

(1) Became an employer prior to the date of acquisition; or

(2) Becomes an employer solely on the basis of employment in the operation of the acquired business on or before the end of the calendar quarter immediately succeeding the calendar quarter in which the acquisition occurred.

(g) “Transfer computation date” as used in Sections 1051-2 and 1052-1 of these regulations means the computation date (June 30th) immediately preceding the rating period (calendar year) in which the acquisition occurred.

(h) “Transfer percentage” as used in Section 1052-1 of these regulations means the quotient obtained by dividing the taxable pay rolls of the severable portion in the three calendar years (or such lesser period as the severable portion may have been in operation) immediately preceding the transfer computation date by the taxable pay rolls of the predecessor for such three-year period (or such lesser period as the severable portion may have been in operation).

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1051, 1052 and 1053, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer and new section filed 11-25-96; operative 12-25-96 (Register 96, No. 48).

§1051-2. Reserve Account Transfer--Severable Portion Application.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1051, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1052-1. Reserve Account Transfer--Severable Portion Formula.

Note         History



(a) On receipt of an application for transfer within the time limits prescribed in Sections 1051 and 1053 of the code that part of the separate account, actual contribution and benefit experience and pay rolls of the predecessor which pertains to such severable portion shall, for the purposes set forth in Section 1052 of the code be transferred to the successor employer in the manner set forth in the following table: 


Embedded Graphic

(b) If a predecessor or a successor considers that the part to be transferred to the successor or successors acquiring a severable portion as computed under subdivision (a) of this section is or may be inequitable, either the predecessor or a successor may submit information to the director with respect to the actual experience of the severable portion. The director may require such additional information and reports as may be necessary for the computation of the actual experience of the severable portion. If the information and reports necessary for the computation of the actual experience of the severable portion are submitted, the director shall transfer such actual experience in accordance with such information and reports. 

CROSS-REFERENCE: See Regulation 1051-1 for definitions applicable to Regulation 1052-1.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1052, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1052-2. Reserve Account Transfer--Disapproval.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1052, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1053-1. Reserve Account--Reacquisition by Predecessor.

Note         History



In the event application for transfer of reserve account is not made by the successor within the 90-day period provided for in Section 1051 of the code, the predecessor upon reentering business may reacquire that portion of the reserve account not transferred to the successor upon making proper application after said 90-day period but prior to the cancellation of the reserve account as provided in Section 1029 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1053, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1060-1. Reserve Account Transfer--Effective Date.

Note         History



“Effective date of the transfer” means the date on which an acquisition occurs pursuant to Section 1051 of the code.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1060, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

Article 6. Records, Reports and Contribution Payments

§1085-1. Identification of Employees.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1085, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Amendment filed 8-4-92; operative 9-3-92 (Register 92, No. 32).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1085-2. Required Work Records.

Note         History



(a) Each employing unit shall establish and maintain records with respect to each worker performing services for it which shall indicate:

(1) The period covered by the pay period.

(2) For each worker:

(A) His or her name;

(B) Social security number;

(C) The date on which he or she was hired, rehired, or returned to work after temporary lay-off, and the last date when he or she performed any services;

(D) The place of his or her work which shall be shown in accordance with such forms and instructions as the department may approve.

(3) The remuneration paid to each worker for each pay period, showing separately:

(A) Money paid;

(B) Cash value of all other remuneration received from the employing unit;

(C) Special payments in cash or kind for services other than those rendered exclusively in a given pay period such as annual bonuses, gifts, prizes, etc., showing the nature of such payments and the period during which the services were performed for which such special payments were made.

(4) All disbursement records which show payments to anyone who performed services.

(5) Such other information as may be necessary to enable the employing unit to determine the worker's total remuneration earned in each week.

(b) Each employing unit which considers that it is not an employer subject to the code or that it is engaged in exempt employment shall keep and maintain the records required of such employing units under this regulation for at least eight years after the period to which the records relate.

(c) Each employer subject to the code shall keep and maintain the records required under this section for a period of at least four years after the date the contributions to which they relate become due, or the date the contributions are paid, whichever is the later.

(d) If an employing unit processes and maintains records in the form of magnetic media such as tapes or disks, then records include, but are not limited to, these magnetic devices or other machine sensible media.

(1) The procedures built into a computer's accounting program shall include a method of producing from punched cards, disks or tapes visible and legible records which will provide the necessary information for the verification of information required by this regulation.

(2) Magnetic media records which reflect payments for personal services shall be retained. Examples of such records include, but are not limited to, the following:

(A) Calendar year to date payroll master file.

(B) Vendor transaction history file.

(C) General ledger account distribution file.

(3) The records shall provide the opportunity to trace any transaction back to the original source or forward to a final total. The audit trail shall be designed so that the details underlying the summary accounting data, such as invoices and vouchers, may be identified and made available to the director upon request.

(4) A description of the electronic data processing portion of the accounting system shall be available. The statements and illustrations as to the scope of operations shall be sufficiently detailed to indicate (a) the application being performed, (b) the procedures employed in each application (which, for example, might be supported by flow charts, block diagrams or other satisfactory descriptions or input or output procedures), and (c) the controls used to insure accurate and reliable processing. Important changes, together with their effective dates, shall be noted in order to preserve an accurate chronological record.

(5) Substitution of hard copy records maintained or magnetic media do not meet the requirements of this section.

(6) If an employer engages an outside service bureau to process and maintain any of the records described in this section then it is the responsibility of the employer to meet the requirements of this section.

(e) In the event the records of an employing unit do not indicate the particular days during any week on which a worker performed services it shall be presumed, in the absence of evidence to the contrary, that the worker performed services on each day of such week.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1085, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 1-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Amendment of subsections (a)-(b), new subsection (d) and relettering and amendment of subsection (e) filed 8-4-92; operative 9-3-92 (Register 92, No. 32).

§1085-3. Maintenance of Records by Out-of-State Employing Units.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1085, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1085-4. Reports with Respect to Employees.

Note         History



(a) Every employing unit shall report to the department upon request any information with respect to its employees as the department may require on forms approved by the department. Such information shall be set forth fully and clearly as required by the department and unless otherwise required each employing unit shall, within 10 days after the date of mailing of a request by the department, return the information to the department.

(b) Whenever another state requests that California submit employment information to the other state in order to determine the eligibility of a combined-wage claimant under a combined-wage claim filed under the Interstate Arrangement for Combining Employment and Wages (see Sections 455.5-1 through 455.5-11 of these regulations) for which the other state is the paying state, the department may by written notice require that the California employers for whom such claimant has performed services in the base period as defined under the law of the paying state, submit within the time prescribed by subdivision (a) of this section necessary wage and employment information as prescribed by the department.

If any employer fails to respond to a notice requesting wage and employment information within the time prescribed by subdivision (a) of this section the department shall submit wage and employment information to the other state based upon the oath of the claimant and other available information.

(c) Except as provided by subdivision (b) of this section and where the department has reasonable ground to suspect fraud, no employer shall be required to furnish information relative to a present or former employee's earnings other than on the basis of a calendar week or the employer's payroll period.

(d) This section is not applicable to the reports and information required pursuant to Sections 320.5-1, 320.5-2, 10881, 1088-2, 1088-3, 1088-4, and 1088-8, of these regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1085, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment filed 12-22-69; designated effective 1-1-70 (Register 69, No. 52).

3. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

4. Amendment filed 3-14-80; effective thirtieth day thereafter (Register 84, No. 11).

5. Amendment of subsection (d) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

6. Change without regulatory effect amending subsection (d) filed 12-4-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 49).

§1085-5. Burden of Proof.

Note         History



The burden of proof shall rest with an employing unit which employs any individual during any calendar year but which considers itself not an employer subject to the code to establish that it is not an employer subject to the code by proper records, including a record of the identity of the employees, number of employees employed during each week, and the particular days of each week on which services have been performed.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1085, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1085-6. Microfilm Record Guidelines.

Note         History



The following sets forth conditions under which microfilm (including microfiche) reproduction of general books of account will be considered books and records within the meaning of Section 1085 of the Code. General books of account include employee compensation records, books, journals, voucher registers, ledgers, and supporting records of detail.

(a) Employers shall set forth in writing the procedures governing the establishment of a microfilm system, and the individuals who are responsible for maintaining and operating the microfilm system with appropriate authorization from the Board of Directors, general partner(s), or owner, whichever is applicable.

(b) The microfilm system shall be complete and shall be used consistently in the regularly conducted activity of the business.

(c) Employers shall establish procedures with appropriate documentation so the original document can be followed through the micrographic system.

(d) Employers shall establish internal procedures for inspection and quality assurance.

(e) Employers shall be responsible for the effective identification, processing, storage, and preservation of microfilm, making it readily available for at least four calendar years after the period to which the records relate for periods for which a return was filed with the department or eight calendar years for periods in which no return was filed with the department.

(f) Employers shall keep a record of where, when, by whom, and on what equipment the microfilm was produced.

(g) When displayed on a microfilm reader (viewer) or reproduced on paper, the material must exhibit a high degree of legibility and readability. For this purpose, legibility is defined as the quality of a letter or numeral that enables the observer to identify it positively and quickly to the exclusion of all other letters or numerals. Readability is defined as the quality of a group of letters or numerals being recognizable as words or complete numbers.

(h) A detailed index of all microfilmed data shall be maintained and arranged in a manner that permits the immediate location of any particular record.

(i) The employer shall make available upon the Department's request a reader/printer in good working order at the examination site for reading, locating, and reproducing any record maintained on microfilm.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1085, Unemployment Insurance Code.

HISTORY


1. New section filed 8-4-92; operative 9-3-92 (Register 92, No. 32).

§1086-1. Reports with Respect to Location and Nature of Activity.

Note         History



NOTE


Authority cited: Sections 306 and 2602, Unemployment Ins. Code. Reference: Sections 320 and 1086, Unemployment Ins. Code.

HISTORY


1. New section filed 8-5-60; Appeal filed with Calif. Unemployment Ins. Appeals Board; section refiled 3-17-61, designated effective 3-27-61 (Register 61, No. 6).

2. Amendment filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

3. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1086-2. Reports with Respect to Location and Nature of Activity--Employers Subject to Personal Income Tax Withholding but Not Subject to Coverage Under Code.

Note         History



NOTE


Authority cited: Section 1086, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1088-1. Filing of Reports, Returns, and Payroll Tax Deposits with Payment of Taxes--General.

Note         History



(a) Except as provided in subdivisions (e) through (h), each employer shall file with the department a report of contributions (payroll tax deposit), a report of wages (quarterly wage and withholding report), and an annual reconciliation return of the employer and employee contributions required by Article 3 (commencing with Section 976) of Chapter 4 of Part 1 of Division 1 of the code, and the withheld personal income tax due as required by Chapter 2 (commencing with Section 13020) of Division 6 of the code based upon wages paid with respect to all establishments maintained within this state and computed in accordance with the code and these regulations on such forms and in such formats as the department may provide or approve and in accordance with the code and these regulations. The department shall not approve forms or formats that are not suitable for processing by the optical character reader or other processing methods used by the department. Failure to receive report and return forms shall not relieve the employer from his or her responsibility for filing the required reports and returns.

Employers who remit contributions by electronic funds transfer under Sections 1110(f) and 13021 of the code should refer to those sections of the code for the requirements for filing payroll tax deposit payments.

(b) Each payroll tax deposit shall include:

(1) The employer's business name, address, and the state employer account number.

(2) The payroll date for which the employer is required to make a deposit under Section 13021 of the code or the last date of the calendar quarter if the employer files quarterly.

(3) The payment type for the deposit period to which the employer is subject (i.e.; next banking day, semiweekly, monthly or quarterly) under Section 13021 of the code.

(4) The quarter during which the wages were paid.

(5) The amount of employer contributions for unemployment insurance, the amount of employer contributions for employment training tax, the amount of employee contributions for state disability insurance, the amount of California personal income tax withheld, the amount of any applicable penalty and interest, and the total amount due from the employer.

(6) The authorized signature and telephone number of the person who prepared the payroll tax deposit.

(7) The payment for the amount due.

(c) Each quarterly wage and withholding report shall include:

(1) The employer's business name, address, state employer account number, and the quarter during which the wages were paid and/or personal income tax was withheld.

(2) The number of employees earning wages subject to unemployment insurance during the pay periods which include the twelfth day of each month as set forth in subdivisions (i) and (j) of this regulation.

(3) The social security account number, the full first name, middle  initial and full last name of each employee, the total wages subject to unemployment and/or disability insurance paid to each employee performing services in employment and paid wages as defined in Division 1 of the code, the total wages paid to each employee subject to personal income tax, and the amount of personal income tax required to be withheld under Section 13020 of the code.

(A) Remuneration for services excluded from total subject wages under Article 2 of Chapter 4 of Part 1 of Division 1 of the code (except Section 930) or remuneration paid to workers whose services are excluded from employment under Chapter 3 of Part 1 of Division 1 of the code shall not be included on a quarterly wage and withholding report.

(B) Wages subject to both unemployment and disability insurance coverage shall be included in a quarterly wage and withholding report separate from a quarterly wage and withholding report which shall be required for either of the following:

1. Wages subject to unemployment insurance coverage only when excluded from disability insurance coverage under Sections 637.1, 931.5 and 2902 of the code.

2. Voluntary disability insurance plan wages.

(4) On each separate page, the total amount of wages subject to unemployment and/or disability insurance coverage or voluntary plan disability insurance, the total amount of wages subject to personal income tax, and the total amount of personal income tax withheld for all employees listed on that page.

(5) On the first or the last page, the grand total of all wages subject to unemployment and/or disability insurance coverage or voluntary plan disability insurance for the quarter, the grand total of the amount of wages subject to personal income tax for the quarter, and the grand total of the amount of personal income withheld for the quarter.

(6) On the first page only, the authorized signature, title (owner, responsible officer, or authorized agent of the employer), telephone number, the date, and a declaration that the information given is true and correct to the best of his or her knowledge and belief.

(7) Employers who are required under Section 6011 of the Internal Revenue Code to file magnetic media returns shall within 90 days of meeting this requirement either submit a magnetic media format to the department for approval of the quarterly wage and withholding report or file a written request for waiver from filing on magnetic media. Upon receiving a letter from the department, stating that the required magnetic media format is approved, each employer shall be required to file any subsequent quarterly wage and withholding reports by magnetic media. The department accepts various magnetic media formats. If an employer requests a waiver from filing on magnetic media, in subsequent years the employer must file by March 31 of each year either a copy of his/her federal exemption approval letter or a written request for waiver from filing quarterly wage report(s) on magnetic media. An approved waiver by the department shall be valid for six months or longer at the discretion of the director. The department may approve the waiver request if the employer establishes to the satisfaction of the director that there is a lack of automation, a severe economic hardship, a current exemption from submitting magnetic media information returns for federal purposes, or other good cause for not complying with the provisions of this paragraph.

(d) Each annual reconciliation return shall include:

(1) The employer's business name, address, state employer account number, and the calendar year during which the wages were paid and/or personal income tax was withheld.

(2) The employer's federal employer identification number (FEIN) and any additional FEINs related to the employer's state account number.

(3) The amount of total wages paid during the calendar year subject to unemployment insurance coverage and/or state disability insurance coverage including wages in excess of the limitations prescribed by Section 930 and/or 985 of the code. Wages subject to personal income tax, but not subject to unemployment insurance or state disability insurance, shall not be included unless the return is being filed for personal income tax only.

(4) The amount of wages paid during the calendar year subject to unemployment insurance contributions not in excess of the limitation prescribed by Section 930 of the code.

(5) The amount of wages paid during the calendar year subject to state disability insurance contributions not in excess of the limitation prescribed by Section 985 of the code.

(6) The amount of employer contributions for unemployment insurance and employment training tax, the amount of employee contributions for state disability insurance, and the amount of California personal income tax withheld during the calendar year.

(7) The amounts previously paid during the calendar year for unemployment insurance contributions, employment training tax contributions, state disability insurance contributions, and California personal income tax withheld.

(8) The total amount remaining due from or overpaid by the employer for the calendar year. The payment for the amount remaining due for the calendar year shall be submitted with a payroll tax deposit form as described in subdivision (b) of this regulation.

(9) The authorized signature, title (owner, responsible officer, or authorized agent of the employer), telephone number, the date, and a declaration that the information given is true and correct to the best of the signer's knowledge and belief.

(e) Employers with an approved voluntary disability insurance plan as described in Chapter 6 (commencing with Section 3251) of Part 2 of Division 1 of the code shall not file an annual reconciliation return under subdivision (d) of this regulation. These employers shall file payroll tax deposits, as described in subdivision (b) of this regulation, quarterly wage and withholding reports as described in subdivision (c) of this regulation, and quarterly contribution returns. Each quarterly contribution return shall include:

(1) The employer's business name, address, state employer account number, and the quarter during which the wages were paid.

(2) The number of employees earning wages subject to unemployment insurance during the pay periods which include the twelfth day of each month as set forth in subdivisions (i) and (j) of this regulation.

(3) The amount of total wages paid during the calendar quarter subject to unemployment insurance coverage and/or disability insurance coverage (including voluntary plan disability insurance) including wages in excess of the limitation prescribed by Sections 930, 985 and/or 3252(b) of the code.

(4) The amount of wages paid during the calendar quarter subject to unemployment insurance contributions not in excess of the limitation prescribed by Section 930 of the code.

(5) The amount of wages paid during the calendar quarter subject to state disability insurance contributions and the voluntary plan disability insurance assessment not in excess of the limitation prescribed by Sections 985 and 3252(b) of the code.

(6) The amount of employer contributions for unemployment insurance and employment training tax, the amount of employee contributions for state disability insurance, the amount of California personal income tax withheld, the amount of the voluntary plan disability insurance assessment, less amounts previously paid as prescribed by subdivision (b) of this regulation, and the total amount due from or overpaid by the employer for the calendar quarter.

(7) The payment for the amount due.

(8) For the last quarterly contribution return filed for each calendar year, the total amount of California personal income tax withheld as reported on Federal Forms W-2 and/or 1099-R.

(9) The authorized signature, title (owner, responsible officer, or authorized agent of the employer), telephone number, the date, and a declaration that the information given is true and correct to the best of his or her knowledge and belief.

(f) Employers who have elected coverage under Section 708(a) of the code shall refer to Section 708(a)-1 of these regulations for the filing requirements. Employers or self-employed individuals who have elected coverage under Section 708(b) or 708.5 of the code shall refer to those sections of the code for the filing requirements.

(g) Employers described in Sections 682 and 684 of the code who have an approved election under Section 1110(d) of the code may, but are not required to, file payroll tax deposits as described in subdivision (b) of this regulation. These employers shall file quarterly reports of wages and withholdings for employers of household workers which shall include the same information as described in subdivision (c) of this regulation. Instead of the annual reconciliation return as described in subdivision (d) of this regulation, these employers shall file an annual payroll tax return for employers of household workers which shall include the same information as described in subdivision (d) of this regulation.

(h) Employers described in Section 821.4 of the code who make payments into the School Employees Fund pursuant to Sections 823 and 828 of the code are not required to file payroll tax deposits or an annual reconciliation return to report contributions and wages subject to unemployment insurance coverage only. These employers shall file quarterly contribution returns and quarterly wage and withholding reports, as described in subdivision (c) of this regulation to report the employer contributions and wages subject to unemployment insurance coverage only. Each quarterly contribution return for school employers shall include:

(1) The employer's business name, address, state employer account number, and the quarter during which wages were paid.

(2) The number of employees earning wages subject to unemployment insurance during the pay periods which include the twelfth day of each month as set forth in subdivisions (i) and (j) of this regulation.

(3) The amount of total wages paid during the quarter subject to unemployment insurance coverage including wages in excess of the limitation prescribed by Section 930 of the code.

(4) The amount of employer contributions for unemployment insurance only and the total amount due from the employer.

(5) The payment for the amount due.

(6) The authorized signature, title (administrator, accountant, preparer, or other authorized agent of the employer), telephone number, fax number, the date, and a declaration that the information provided is true and correct to the best of the signer's knowledge and belief.

(i) “Number of employees” as used in subdivisions (c)(2), (e)(2) and (h)(2) of this regulation, means the number of full-time and part-time workers who worked during or received pay (subject to unemployment insurance wages) for the payroll period which includes the twelfth of the month, and includes, but is not limited to, the following categories of employees earning wages irrespective of whether such wages are actually or constructively paid during the applicable pay periods:

(1) Officers of corporations.

(2) Executives.

(3) Supervisory personnel.

(4) Clerical employees.

(5) Wage earners.

(6) Employees on paid vacations or paid sick leave.

(7) Employees paid by salary, by the hour, on a piece rate or by commission.

(8) Part-time employees.

(9) Employees earning wages in excess of the limitation prescribed by Section 930 of the code.

(j) “Number of employees” as used in subdivisions (c)(2), (e)(2) and (h)(2) of this regulation does not include:

(1) Employees who earned no wages during the applicable pay periods due to strikes, work stoppages, temporary layoffs, illnesses without pay, or vacations without pay.

(2) Employees who earned wages at other times during the month but did not earn wages during the applicable pay periods which include the twelfth day of the month.

(3) Individuals who earned remuneration for services not included in subject “employment” under the code.

(4) Individuals who were paid remuneration, but did not perform services during the applicable pay periods, which include the twelfth day of the month, such as individuals who were paid residual or royalty payments.

(k) “Pay periods,” as used in subdivisions (c)(2), (e)(2) and (h)(2) of this regulation, means periods of not more than 31 consecutive days for which a payment of remuneration is ordinarily made to employees by the employer, and includes as to a particular employer every type of pay period in actual use by that employer.

EXAMPLE: Employers may have two or more types of pay periods for different categories of workers, such as daily, weekly, biweekly, semimonthly, or monthly. Under this regulation, each employer would, in computing the “number of employees” in applicable “pay periods,” include all employees earning wages on all types of payrolls for pay periods which include the twelfth day of the month. For example, an employer who used daily, weekly, and semimonthly payrolls as to different categories of workers would include all employees earning wages on the daily payroll for the twelfth day or the working day nearest thereto, the weekly payroll for the weekly pay period which includes the twelfth day, and the semimonthly payroll for the semimonthly pay period which includes the twelfth day.

(l) The amendment of this regulation and the matter contained herein, shall not interrupt the running of interest or assessment of penalties with respect to contributions heretofore due and unpaid in accordance with such prior regulations as may have been in effect at the time such contribution liability was incurred.

CROSS-REFERENCE: For provisions concerning reports with respect to employment and payroll distribution required of certain multiple establishment employers, see Regulation Section 1088-8.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 637.1, 682, 684, 708, 708.5, 821.4, 823, 828, 930, 931.5, 985, 1026, 1088, 1110, 2902, 3252, 13020 and 13021, Unemployment Insurance Code.

HISTORY


1. Amendment filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

3. Amendment filed 2-28-64; designated effective 3-9-64 (Register 64, No. 5).

4. Amendment filed 3-14-80; effective thirtieth day thereafter (Register 80, No. 11).

5. Amendment of Cross-Reference and NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

6. Amendment filed 5-12-92; operative 6-11-92 (Register 92, No. 20).

7. Amendment of section heading, section and Note filed 6-5-2000; operative 7-5-2000 (Register 2000, No. 23).

§1088-2. Reports and Returns Covering Seamen Employed Under Shipping Articles.

Note         History



(a) For the purposes of this section the term “pay period established by shipping articles” means the period of the voyage or engagement of the crew under “Articles of Agreement” purporting to comply with Sections 10301(a) and 10302 of Title 46 of the United States Code, or any other agreement under which seamen are employed and under which they are not entitled to a final payment of wages until termination of the period of the articles.

(b) When a pay period established by shipping articles extends into more than one calendar quarter or into more than one calendar year, separate payroll tax deposits and quarterly wage and withholding reports shall be filed with respect to the wages paid in each such quarter (allotments, advances, and other wage payments in cash to be included in the quarter in which paid, and meals, lodging, and other wages in kind in the quarter in which furnished) and a separate annual reconciliation return shall be filed with respect to the wages paid in each such calendar year; payroll tax deposits and quarterly wage and withholding reports for the earlier quarters and annual reconciliation returns for the earlier years in such pay periods may be filed without penalty and interest if filed within the time required for the calendar quarter which includes the final wage payments made at the termination of the articles. Each payroll tax deposit and quarterly wage and withholding report covering such an earlier quarter shall be plainly marked “Supplemental Payroll Tax Deposit--Regulation 1088-2 and Supplemental Quarterly Wage and Withholding Report--Regulation 1088-2”; each annual reconciliation return covering such earlier year shall be plainly marked “Supplemental Annual Reconciliation Return--Regulation 1088-2”.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1088, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Amendment of section heading and section filed 6-5-2000; operative 7-5-2000 (Register 2000, No. 23).

§1088-3. Reports Covering Wages Due and Unpaid.

Note         History



For the purpose of Sections 1280 and 1281 of the code, wages due to an individual but unpaid within the time required by law, if still unpaid at the time the quarterly wage and withholding report is due, shall be included in a special quarterly wage and withholding report under a caption “Wages legally due but unpaid.” Except for employers described in Sections 682 and 684 of the code who have an approved election under Section 1110(d) of the code, contributions on such wages shall become due on the first day of the calendar month following the close of the calendar quarter in which the wages are actually or constructively paid as provided in Section 926-1 of these regulations and shall become delinquent if not paid on or before the last day of such month.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1088, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Amendment of section heading and section filed 6-5-2000; operative 7-5-2000 (Register 2000, No. 23).

§1088-4. Returns Covering Irregular Pay Periods.

Note         History



When wages are paid at irregular or infrequent intervals (as, for example, commissions or bonuses paid on infrequent settlement dates or wages paid under shipping articles) and when the period of employment covered by such wage payments extends into two or more calendar quarters, the employer shall, within 10 days after the date of mailing of a request by the department, furnish the beginning and ending dates of the pay period covered by any such wage payment.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1088, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1088-5. Returns Covering Wages in Excess of the $3,000 Wage Limitation.

Note         History



NOTE


Authority cited: Secs. 305 and 306, Unemployment Ins. Code. Reference: Sec. 1088, Unemployment Ins. Code.

HISTORY


1. Amendment filed 6-12-59; designated effective 6-22-59 (Register 59, No. 9).

2. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

3. Repealer filed 11-20-67; designated effective 11-30-67 (Register 67, No. 47).

§1088-6. Returns of Newly Subject Employers.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1088, Unemployment Insurance Code.

HISTORY


1. Amendment filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

2. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1088-7. Returns of Employers Electing Coverage.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1088, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1088-8. Reports with Respect to Employment and Payroll Distribution--Quarterly Multiple Worksite Report (BLS 3020).

Note         History



(a) Purpose. This section specifies the reports required by the director from employers subject to the Unemployment Insurance Code to obtain the information needed by the director to generate certain reports required by the federal Secretary of Labor, and to obtain information necessary to administer the code.

(b) Reporting Requirements.

(1) On or before the last day of the calendar month following the close of each calendar quarter, every multiple establishment employer shall report the following information to the department for each establishment, on a quarterly Multiple Worksite Report (federal form BLS 3020) supplied by the department:

(A) Verification of the preprinted name, address, and worksite description of each establishment.

(B) The number of employees, defined as the number of full-time and part-time workers who worked during or received pay (subject to Unemployment Insurance wages) for the payroll period which includes the twelfth of the month.

(C) The amount of total wages paid during the calendar quarter.

(D) An explanation of any large change in employment or wages at an establishment such as store closure, strikes, layoffs, bonuses, seasonal changes, etc.

(E) The addition of any worksites not preprinted on the form.

(F) For staff leasing firms and professional employer organizations that are multiple establishment firms, each client firm shall be listed as a separate establishment and the Unemployment Insurance account number for that client firm shall be included in the comments section of the Multiple Worksite Report form.

(2) Each multiple establishment employer shall submit the reports required by this section for any calendar quarter in which the employer meets the conditions of subdivision (c)(3) of this section and, unless otherwise directed by the department, shall also submit such reports for each calendar quarter in which the employer meets the conditions of subdivision (c)(3) of this section.

(3) Failure to receive report forms shall not relieve a multiple establishment employer from the responsibility of submitting the reports required by this section.

(c) Definitions. As used in this section:

(1) “Establishment” means an economic unit, generally at a single physical location, where business is conducted, or where services or industrial operations are performed, for example, a farm, factory, mill, store, or mine, or a central administrative office or auxiliary unit at a separate location from the economic unit served, except that if an employer maintains separate payroll and inventory records for separately classifiable activities conducted at a single location, including auxiliary activities such as a central administrative office or auxiliary unit performing supporting services for other economic units of the same employer but which is not an integral part of the economic unit at the same location, such activity shall be deemed a separate establishment.

(2) “Primary Establishment” is the establishment with the largest employment. “Secondary establishments” are all other establishments of the employer.

(3) “Multiple establishment employer” means an employer who has more than one establishment reporting under the same Unemployment Insurance Account Number within the State and has a total employment of ten or more in all of the secondary establishments combined.

(4) “Number of Employees” as used in subdivisions (a)(1)(A)(1), (a)(4)(A)(1) and (c)(2) of Section 1088-1, means the number of full-time and part-time workers who worked during or received pay (subject to Unemployment Insurance wages) for the payroll period which includes the twelfth of the month, and includes, but is not limited to, the following categories of employees earning wages irrespective of whether such wages are actually or constructively paid during the applicable pay periods:

(A) Officers of corporations;

(B) Executives;

(C) Supervisory personnel;

(D) Clerical employees;

(E) Wage earners;

(F) Employees on paid vacations or paid sick leave;

(G) Employees paid by salary, by the hour, on a piece rate, or by commission;

(H) Part-time employees; and

(I) Employees earning wages in excess of the limitation prescribed by Section 930 of the code.

(5) “Number of Employees” does not include:

(A) Employees who earned no wages during the applicable pay periods due to strikes, work stoppages, temporary layoffs, illness without pay, or vacations without pay;

(B) Employees who earned wages at other times during the month but did not earn wages during the applicable pay periods which include the twelfth day of the month;

(C) Individuals who earned remuneration for services not covered under the state Unemployment Insurance laws under the code; and

(D) Individuals who earned remuneration for services not provided during the applicable pay period which include the twelfth day of the month, such as individuals who earn residual or royalty payments.

(6) “Pay periods” means periods of not more than 31 consecutive days for which a payment of remuneration is ordinarily made to employees by the employer, and includes every type of pay period in actual use by a particular employer.

EXAMPLE: Employers may have two or more types of pay periods for different categories of workers, such as daily, weekly, bi-weekly, semi-monthly, or monthly. Under the above definition, in computing the “number of employees” in applicable “pay periods,” each employer would include all employees earning wages on all types of payrolls for pay periods which include the twelfth day. For example, an employer who used daily, weekly, and semi-monthly payrolls as to different categories of workers would include all employees earning wages on the daily payroll for the twelfth day or the working day nearest thereto, the weekly payroll for the weekly pay period which includes the twelfth day, and the semi-monthly payroll for the semi-monthly pay period which includes the twelfth day.

(d) Extension of Time. The director may extend for good cause, not to exceed 60 days, the time for submission by an employer of a Multiple Worksite Report required under this section.

(e) Delinquent or Deficient Reports. If any employer fails to submit to the department any report within the time required by this section, or if the department is not satisfied with any report submitted by an employer under this section, the department may demand, by written notice, that a report be submitted or that the deficiency in a report submitted shall be corrected by the employer. Within 30 days after the date of the mailing of such written notice, the employer shall, submit the report or corrected report to the department.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 320, 320.5, 1026, 1088, 1115, 1116 and 2117, Unemployment Insurance Code.

HISTORY


1. New section filed 8-5-60; Appeal with Calif. Unemployment Ins. Appeals Board; section refiled 3-17-61; designated effective 3-27-61 (Register 61, No. 6).

2. Amendment filed 2-28-64; designated effective 3-9-64 (Register 64, No. 5).

3. Amendment filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

4. Repealer of cross-reference and amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

5. Editorial correction of printing error in subsection (c)(2) (Register 91, No. 32).

6. Amendment of subsections (b) and (c), repealer of subsection (d) and subsection renumbering filed 8-2-91; operative 9-2-91 (Register 92, No. 4).

7. Amendment of section heading, section and Note filed 4-25-2000; operative 5-25-2000 (Register 2000, No. 17).

§1088-9. Reports with Respect to Employment and Payroll Distribution--Quarterly Reports by Employers Subject to Personal Income Tax Withholding but Not Subject to Coverage Under Code.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1088, Unemployment Insurance Code.

HISTORY


1. New section filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

2. Amendment filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

3. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1088.5-1. Reporting a Newly Hired Employee.

Note         History



(a) For the purposes of Section 1088.5 of the code, an individual is considered a new hire on the first day in which the individual performs services for wages, i.e. the individual's first day of work. In any case where an employer is required to give an individual a W-2 form, the employer must meet the new hire reporting requirements.

If an employee returning to work is required to complete a new W-4 form, the employer must report the individual as a new hire to the department. If however, the returning employee had not been formally terminated or removed from payroll records, there is no need to report that individual as a new hire.

Example A: An individual is hired by an employer and his first day of work is January 2. He submits a completed W-4 to his employer for personal income tax withholding purposes before he commences his employment and is reported as a new hire. Subsequently, the employee is laid off on May 31. The employer recalls the individual to work beginning on December 1. Because the employee was formally terminated on May 31, the employee is required to file a W-4 with his employer on or before he commences his employment on December 1 and must be reported as a new hire.

Example B: An individual is hired by an employer and his first day of work is January 2, He submits a completed W-4 to his employer before he commences his employment and is reported as a new hire. The employer furloughs the worker on  May 1 with a return work date of December 1. Because the employee was not terminated and remained on the payroll records of the employer, the employee is not required to file a W-4 with his employer when he returns to work on December 1 and is not reported as a new hire.

(b) The employer may submit the information required in Section 1088.5 of the code by completing a form DE 34 “Report of New Employee(s),” Rev. 3: (1/98), incorporated herein by reference.

(c) Any employer who transmits reports magnetically or electronically and has employees in two or more states may designate one state to report all new hires. An employer who makes this designation must notify, in writing, the Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement, Multistate Employer Notification.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1088.5, Unemployment Insurance Code. 

HISTORY


1. New section filed 3-31-93; operative 4-1-93 (Register 93, No. 14). For prior history, see Register 92, No. 50.

2. Editorial correction correcting placement of section and amending History 1 (Register 93, No. 31).

3. Repealer and new section filed 10-8-98; operative 11-7-98 (Register 98, No. 41).

§1089-1. Employers' Duties Regarding Notification to Employees of Potential Unemployment and Disability Insurance Benefits and Change of Status.

Note         History



(a) Unless the context otherwise requires, the following terms used in this section and in forms issued by the department pursuant to this regulation shall have the following meaning:

(1) “Unemployment insurance” means unemployment compensation benefits program;

(2) “Disability insurance” means the unemployment compensation disability benefits program.

(b) The director shall make available to each employer registered with the department under the provisions of Section 1086 of the code, the following forms and pamphlet:

(1) “Notice To Employees”, Form DE 1857D Rev. 9: (1/86), incorporated by reference, which informs employees of their rights to unemployment insurance for those employees covered only for unemployment insurance.

(2) “Notice To Employees”, Form 1857A Rev. 28: (2/88), incorporated by reference, which informs employees of their rights to unemployment insurance and disability insurance for those employees covered for both programs.

(3) “For Your Benefit, California's Program for the Unemployed,” Pamphlet DE 2320 Rev. 41: (10/90), incorporated by reference, which informs employees of the Department's unemployment insurance and disability insurance programs.

(c) Each employer shall post and maintain in places readily accessible to all employers the form identified in subdivision b(1) of this section if it employs individuals covered only for unemployment insurance and also the form in subdivision b(2) of this section if it employs individuals covered for unemployment and disability insurance.

(d) When an employer discharges, lays off, or places an employee on leave of absence, the employer shall give to the employee the following notices:

(1) Written notice of his or her unemployment insurance benefit rights by providing the pamphlet identified in subdivision (b)(3) of this section. The notice of unemployment insurance benefit rights shall be given no later than the effective date of the action;

(2) Written notice regarding the change in the employee's status. The notice of change of status shall be given no later than the effective date of the action and shall contain at a minimum:

(A) The name of the employer;

(B) The name of the employee;

(C) The social security account number of the employee;

(D) Whether the action was a discharge, a layoff, a leave of absence, or a change in status from employee to independent contractor; and

(E) The date of the action.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1089, Unemployment Insurance Code.

HISTORY


1. New section filed 10-7-93; operative 11-8-93 (Register 93, No. 41). For prior history, see Register 81, No. 47.

2. Change without regulatory effect repealing subsection (e) filed 9-4-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 36).

§1090-1. Notice Required of Representative of Deceased or Insolvent Employing Unit.

History



HISTORY


1. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1091-1. Notice and Return Required of Employers Terminating Business.

History



HISTORY


1. Repealer filed 11-4-61; designated effective 11-14-61 (Register 61, No. 22).

§1096-1. Joint Returns.

History



HISTORY


1. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1097-1. Experience Rating Chargebacks for Joint Accounts.




Section 1026-1 of these regulations applies to experience rating chargebacks for joint accounts.

Article 7. Payment of Reported Contributions

§1110-1. Application of Payments by Employers.

History



HISTORY


1. Repealer filed 6-8-72; effective thirtieth day thereafter (Register 72, No. 24).

§1111-1. Extensions of Time for Paying Contributions and Filing Returns.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1111, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

2. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1114-1. Wage Item Penalty.

Note         History



(a) For the purposes of Section 1114 of the code, the following definitions will apply:

(1) Report of Wages. The report of wages shall include all of the information required by Section 1088-1(c)(3) of these regulations, or if there is more than one employee, a listing of all of the information required by Section 1088-1(c)(3) of these regulations for all employees.

(2) Wage Item. All information required to be reported for each employee on the report of wages shall be considered a single wage item.

(b) If an employer fails to provide each item required in a report of wages for each employee, or if an employer reports incorrect information for any of the employees, then that employer has failed to furnish a report of wages. If the director makes a specific written demand in accordance with Section 1206 of the code, the penalty provided by Section 1114 of the code shall apply to each wage item when correct and complete information is not provided within 15 days of the demand.

(c) Good cause shall lie where the circumstances causing the delay are clearly beyond the control of the employer or where the delay was not reasonably foreseeable by the employer. Thus, catastrophic occurrences such as fire or flood which destroyed the records would give the employer good cause. Good cause for not furnishing a social security number shall be found where it can be shown that obtaining a social security number was a condition of employment and the employee has applied for, but not yet received, a social security number.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1114 and 1206, Unemployment Insurance Code.

HISTORY


1. New section filed 5-12-92; operative 6-11-92 (Register 92, No. 20).

2. Amendment filed 6-5-2000; operative 7-5-2000 (Register 2000, No. 23).

§1115-1. Accelerated Payments and Returns by Insolvent and Delinquent Employers and Employers Quitting Business.

History



HISTORY


1. Repealer filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

Article 8. Assessments

§1127-1. Negligence or Intentional Disregard.

Note         History



(a) Negligence is the failure to exercise the degree of care which a reasonably prudent person under similar circumstances would exercise in the performance or observance of a duty. The failure to act may, but need not, be caused by carelessness or oversight. Negligence includes, but is not limited to, the following:

(1) An employer's failure to maintain records presenting an accurate and complete picture of wages paid, taxes withheld and taxes paid.

(2) An employer's failure to make a status determination as to whether or not an individual who is providing services to that employer for payment is an independent contractor or an employee.

(3) An employer's failure to maintain records substantiating deductions taken from wages.

(4) An employer's failure to seek a ruling from the department when the status of an individual as an independent contractor or an employee is questionable.

(5) An employer's failure to maintain records to substantiate a claim that unreported payments to employees are loan repayments.

(b) Intentional disregard means to purposely or deliberately pay little or no attention to a required action. Intentional disregard includes, but is not limited to, the following:

(1) An employer's failure to report wages merely because it constitutes nuisance bookkeeping.

(2) An employer's reporting of employees under the Federal Insurance Contributions Act (FICA), but failure to report those employees under the California Unemployment Insurance Code (Code) merely because the employees have only a remote possibility of obtaining benefits.

(3) An employer's failure to seek a ruling on the status of the worker as an employee or independent contractor or to report the employee after being advised by an accountant to report.

(4) An employer's failure to report the wages of an employee after being informed by the department of the worker's correct status as an employee.

(5) An employer's failure to report the employee when the employer should have been aware or was aware of reporting requirements.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1127, Unemployment Insurance Code.

HISTORY


1. New section filed 10-27-93; operative 11-26-93 (Register 93, No. 44).

§1137-1. Review of Jeopardy Assessment.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1137 and 1137.1, Unemployment Insurance Code.

HISTORY


1. New section filed 8-11-76 as an emergency; effective upon filing (Register 76, No. 33).

2. Certificate of Compliance filed 11-3-76 (Register 76, No. 45).

3. Amendment of subsections (a) and (i) filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

4. Repealer filed 9-14-87; operative 10-14-87 (Register 87, No. 38).

§1137-2. Form of Security Required Under Section 1137 or 1221 of the Code.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1137 and 1137.1, Unemployment Insurance Code.

HISTORY


1. New section filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

2. Repealer filed 9-14-87; operative 10-14-87 (Register 87, No. 38).

§1138-1. Form of Security Required Under Section 1137 or 1138 of the Code.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1137, Unemployment Insurance Code.

HISTORY


1. Repealer filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 59, No. 22.

Article 9. Refunds and Overpayments

§1177-1. Refunds and Credits.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1177 and 1178, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Registers 72, No. 24 and 59, No. 22.

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1178(b)-1. Time for Filing Claim for Refund or Credit--Allowance of Credit.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1177 and 1178, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Registers 72, No. 24 and 59, No. 22. 

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1178(c)-1. Disposition of Erroneous Worker Contributions.

Note         History



(a) With respect to worker contributions withheld from individuals and included in any refund or credit allowed by the director, the employing unit, or other person who made the overpayment, or its or his successor, administrators, or executors, shall submit to the director satisfactory evidence that refund has been made to the individuals of such contributions or that the claimant has been unable to make the refunds or a portion of them. If the evidence is not submitted within one year after allowance of credit or approval of the claim for refund no refund of employer or employee contributions, penalty, or interest shall be made nor credit for employee contributions allowed. Satisfactory evidence of such refunds may be in the form of a certified list of paid checks by which the refunds were made or in the form of receipts signed by the individuals. If any of the refunds cannot be made for any reason, the employing unit or other person who made the overpayment, or its or his successor, administrators, or executors, shall submit to the director a certified list of such erroneous deductions for worker contributions showing the names, social security account numbers, and last known addresses of the individuals and the amounts due each of them. The director shall deduct from the refund or credit due the claimant for worker contributions included in the claim the aggregate amount of such worker contributions which have not been refunded to the individuals and shall withhold it in trust for the individuals to whom the overpayments are owing. Such worker contributions shall be refunded to the individuals by the director wherever it is practicable to do so.

(b) Any employing unit, or other person who makes an overpayment, or its or his successor, administrators, or executors, is not required to refund erroneous deductions for worker contributions as a condition precedent to receiving a refund of employer contributions, penalty, or interest if any of the following conditions exist:

(1) The employing unit or other person who made the overpayment has been declared a bankrupt.

(2) The employing unit, or other person who made the overpayment, or its or his successor, administrators, or executors, is unable to make such refund by reason of a pending court action.

(3) An employing unit under a voluntary plan makes deductions for worker contributions on voluntary plan wages for services which do not constitute “employment.”

(c) Compliance with the procedure for refund of erroneous deductions for worker contributions is required if either of the following conditions exist:

(1) Deductions have been made on wages in excess of the limitation prescribed by Section 985 of the code.

(2) Deductions have been made at a rate greater than the rate prescribed by Section 984 of the code.

NOTE


Authority cited: Sections 305, and 306, Unemployment Insurance Code. Reference: Sections 1178, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1179-1. Requisites of Claim for Refund or Credit.

Note         History



NOTE


Authority cited: Sections 305, 306, 1088 and 2602, Unemployment Insurance Code. Reference: Section 1179, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Repealer filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1180-1. Denial of Claim for Refund or Credit.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1180, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment filed 11-4-61; designated effective 11-14-61 (Register 61, No. 22).

3. Amendment of NOTE filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

4. Repealer filed 7-23-96; operative 8-22-96 (Register 96, No. 30).

§1181-1. “Date of the Allowance” of Refund or Credit.

Note         History



The “date of the allowance” of the refund or credit, as used in Section 1181 of the code, means that date on which either of the following first occurs:

A notice is mailed by the director advising the employing unit or other person by whom it was paid of the overpayment of any amount of contributions, penalty or interest.

(b) A claim for refund or credit has received final approval in accordance with procedures established by the director.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1181, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Repealer of Section 1181-1 and renumbering and amendment of Section 1181-2 to Section 1181-1 filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47).

§1181-2. “Date of the Allowance” of Refund or Credit.

History



HISTORY


1. Repealer of Section 1181-1 and renumbering and amendment of Section 1181-2 to Section 1181-1 filed 11-20-81; effective thirtieth day thereafter (Register 81, No. 47). (Next page is 76.85)

Chapter 5. Unemployment Compensation Benefits

Article 1. Eligibility and Disqualifications

§1251-1. Definitions.

Note         History



Unless the context otherwise requires, the terms used in these regulations relating to unemployment compensation benefits shall have the following meaning:

(a) “Applicant” means any individual who applies for employment services or registers for work.

(b) “Base period employer” means an employer by whom wages for employment were paid to a claimant during his or her base period.

(c) “Benefits” means the compensation payable to an individual, with respect to his or her unemployment, under the unemployment compensation law of any state or the federal government.

(d) “CalJOBS” means the department's Internet labor exchange system where claimants register for employment assistance by completing a resume. 

(e) “Claimant” means an individual who files a new claim with the department until such time as his or her claim is found invalid, or the expiration of his or her benefit year, extended duration period, or extended benefit period.

(f) “Department field office” or “department branch office” means an office maintained by the Employment Development Department in accordance with Sections 2054 and 2055 of the code.

(g) “Maximum benefits” means the maximum total amount of benefits payable to a claimant during his or her benefit year.

(h) “Register for work” means a claimant provides the department with information to include, but not limited to, name, social security number, date of birth, mailing address and/or telephone number. 

(i) “Weekly rate” means the weekly benefit amount payable for a week of total unemployment to a claimant during his or her benefit year.

(j) “Social Security Number,” “Social Security Account Number,” “SSAN” and “SSN” all mean the 9-digit account number issued by Social Security Administration to an individual for the purpose of recording that individual's earnings or for use by that individual when required by federal law to receive a benefit or service. 

(k) “Social Security Number Verification” means verification of the social security number, received by the department from the claimant, by either submission of a copy of his or her annual statement issued to him or her by the Social Security Administration, or by verification of that individual's social security number submitted to the department directly from the Social Security Administration. 

(l) “Photo Identification” means an official document issued by a local, state, or federal agency, or a foreign government, which contains an individual's photograph, first and last name, and date of birth. 

(m) “Date of Birth Verification” means a birth certificate issued by a local, state, or federal agency, or a foreign government, or other official certification of that individual's birth. A birth certificate marked “informational, not a valid document to establish identity,” is not acceptable verification. 

(n) “Address Verification” means an original utility bill (e.g. electricity, gas, garbage, water, or sewer), a bill for cable TV, telephone bill, insurance document or other correspondence from a bank or similar institution, a current residential rental or lease agreement; or a mortgage statement; provided the document shows that individual's name and residence address. If that individual does not have a residence address but has a Post Office Box or a Personal Mail Box, address verification will consist of the individual providing proof that he or she is the renter or the authorized user of the box. 

(o) “Employment Data” means a copy of that individual's Wage and Tax Statement (Form W-2), issued within the last 12 months, or a check stub or pay statement issued by that individual's employer within one year prior to the date that individual first filed a claim for unemployment compensation benefits. The check stub or pay statement must contain that individual's first name or initial, last name, that individual's social security number, the name of that individual's employer, the date the check stub or pay statement was issued, or the pay period for which the check stub or pay statement was issued. 

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1251, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Amendment of subsection (a) filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

3. Amendment filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

4. Amendment of subsections (c)-(e) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

5. Amendment filed 7-21-2003 as an emergency; operative 7-21-2003 (Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-2003 or emergency language will be repealed by operation of law on the following day.

6. Certificate of Compliance as to 7-21-2003 order transmitted to OAL 11-7-2003 and filed 12-24-2003 (Register 2003, No. 52).

§1252-1. Partially Unemployed Individual.

Note         History



(a) As used in these regulations, partially unemployed individual means a person who during a week meets all of the following conditions:

(1) He or she was employed by a regular employer.

(2) He or she worked less than his or her normal customary full-time hours for his or her regular employer because of lack of full-time work.

(3) He or she was continuously attached to his or her regular employer from the standpoint that there did not occur any severance of the employer-employee relationship.

(b) Notwithstanding subdivision (a) of this section:

(1) An individual who receives benefits under Section 1279.5 of the Code during a benefit year shall not receive benefits as a partially unemployed individual with respect to any week in such benefit year while in employment status with the regular employer who initiated the program of sharing work under Section 1279.5 of the Code.

(2) An individual may not claim benefits as a partially unemployed individual if the Department determines that the individual has been laid off for a period in excess of two consecutive weeks.

(3) If the person has claimed benefits as a partially unemployed individual for two consecutive weeks during which he or she performed no services for the regular employer, he or she may not claim additional benefits as a partially unemployed individual until he or she again performs services for his or her regular employer.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1252, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 79, No. 13.

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1252.1-1. Totally Unemployed Commercial Fishermen.

Note         History



(a) “Commercial fishermen” means individuals who are members of a crew of a vessel, engaged in the capture of fish for sale and not in pleasure or sport fishing.

(b) “Inclement weather” means weather of such severity as would cause a reasonable master to refrain from making a fishing voyage.

(c) “Absence of fish in fishable waters” means such a scarcity of fish in the normal fishing waters as would cause a reasonable master to refrain from making a fishing voyage.

(d) “Lack of orders for fish from buyers” means that the owner or operator of the vessel is without a commitment from a buyer of fish to purchase the vessel's catch in the event of a fishing voyage.

(e) “Boat is laid up for repairs” means that the vessel is inactive because it is either undergoing repairs or unseaworthy and awaiting repairs.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1252.1, Unemployment Insurance Code.

HISTORY


1. New section filed 12-22-59; designated effective 1-1-60 (Register 59, No. 22).

2. Amendment of NOTE filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1252.2-1. Partially Unemployed Commercial Fishermen.

Note         History



(a) “Commercial fishermen” means individuals who are members of a crew of a vessel, engaged in the capture of fish for sale and not in pleasure or sport fishing.

(b) A commercial fisherman is in the “act of catching or attempting to catch fish” from the time he is aboard a vessel which has left its dock or anchorage on a fishing voyage and until the vessel returns to its dock or anchorage, or the fish caught on the voyage are unloaded, whichever occurs later, except that a commercial fisherman who has no obligation to perform personal services with respect to the unloading of the fish will not be deemed in the “act of catching or attempting to catch fish” after the vessel returns to its dock or anchorage.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1252.2, Unemployment Insurance Code.

HISTORY


1. Renumbering filed 9-5-61; designated effective 9-15-61 (Register 61, No. 18). For prior history of Section 145-1 see Register 60, No. 17.

2. Amendment of NOTE filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253-1. The Term “Week” Defined.

Note         History



The term “week” for benefit purposes means the seven consecutive days commencing at 12.01 a.m., Sunday, and ending 12 midnight the following Saturday.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253-2. Week of Unemployment.

Note         History



“Week of unemployment” means the week of unemployment in which an individual registers in person at an employment office prior to the close of business on Friday of such week. Thereafter his or her week or weeks shall consist of seven-consecutive-day period(s) as defined in Section 1253-1 of these regulations, commencing immediately after the initial week. This section shall not apply to a claimant with respect to a first or subsequent partial claim for partial unemployment insurance benefits.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

2. Amendment filed 1-12-87; effective thirtieth day thereafter (Register 87, No. 3).

§1253-3. Week of Partial Unemployment.

Note         History



“Week of unemployment” means with respect to a partially unemployed individual whose wages are paid on a weekly basis, the individual's pay period week. With respect to a partially unemployed individual whose wages are not paid on a weekly basis, a week of partial unemployment shall consist of a week as defined in Section 1253-1 of these regulations, unless another seven-consecutive-day period is found to be appropriate under the circumstances. The individual's weekly claim period will remain unchanged until there is a break in continuous weekly certification. (See Section 1326-8 of these regulations for partial claim filing procedures.)

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253-4. Week--Late Filing of a Claim with Good Cause.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of Section heading filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Amendment filed 1-12-87; effective thirtieth day thereafter (Register 87, No. 3).

4. Repealer filed 8-24-92; operative 9-23-92 (Register 92, No. 35).

§1253-5. Week--Failure to File a Timely Claim.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Repealer filed 8-24-92; operative 9-23-92 (Register 92, No. 35).

§1253-6. Week--Remote Area--Itinerant Service.

Note         History



A week of unemployment of an individual who resides in an area served only by the itinerant service of the employment office shall be the first week in which he was unemployed, provided, that the individual registers in person with the itinerant service at the first opportunity afforded by such services. Thereafter his or her week(s) shall consist of seven-consecutive-day periods, as defined in Section 1253-1 of these regulations, commencing immediately after the initial week.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253-7. Week--Remote Area--No Itinerant Service.

Note         History



A week of unemployment of an individual who resides in a remote or isolated area not served by itinerant service shall be the first week in which he was unemployed, provided, that he requests a work registration by mail postmarked not later than 12 midnight Friday of such week. Thereafter his or her week(s) shall consist of seven-consecutive-day periods, as defined in Section 1253-1 of these regulations, commencing immediately after the initial week.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

2. Amendment filed 1-12-87; effective thirtieth day thereafter (Register 87, No. 3). 

§1253-8. Week--Delayed Filing with Good Cause--New, Additional, or Reopened Claim.

Note         History



A week of unemployment of an individual who for good cause, delays filing his or her new, additional, or reopened claim shall be the week in which he or she first becomes unemployed. Thereafter his or her week(s) shall consist of seven-consecutive-day periods, as defined in Section 1253-1 of these regulations, commencing immediately after the initial week. (See Section 1326-2 of these regulations for a definition of new claim, 1326-4 for a definition of additional claim, 1326-5 for a definition of reopened claim, and Section 1326-10 of these regulations for interpretation of “good cause.”)

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253-9. Week--Mass Separation or Trade Dispute.

Note         History



A week of unemployment of an individual affected by a mass separation or by a trade dispute, for which arrangements are made by the department for group registration, means the first week during which the individual is unemployed, provided that the individual files a claim in accordance with such arrangements prior to the end of the second week following the week in which he becomes unemployed.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253-10. Week--Privately Operated Hiring Facilities.

Note         History



“Week of unemployment” for benefit purposes for any individual utilizing a privately operated hiring facility approved by the department shall, with respect to an individual whose wages are paid on a weekly basis, be the individual's weekly pay period. This period shall consist of seven consecutive calendar days. If the pay period is not based on calendar days, a week shall consist of 168 consecutive hours. With respect to an individual whose wages are not paid on a weekly basis, a week of unemployment shall consist of the seven-consecutive-day period beginning on Sunday, 12:01 a.m. and ending 12 midnight Saturday. If necessary, the department shall determine and prescribe alternate seven-consecutive-day periods for an individual or group, as appropriate to the circumstances. If during a period of continuous unemployment the claimant ceases to utilize such approved hiring facilities, his or her claim period shall continue to be the week of his or her last certification for unemployment insurance until again employed, or there occurs a break in continuous weekly certification. Claims filed pursuant to this section shall be filed in the manner set forth in Section 1326-8 of these regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253-11. Week--Interstate Claimants.

Note         History



“Week of unemployment” as used in Sections 455-1 through 455-8 of these regulations relating to interstate claimants shall be the seven-consecutive-day period for which interstate claimants are required to file under the agent state procedures at the time of filing a claim for benefits.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253(a)-1. Claims for Benefits--How Filed.

Note         History



Claims for benefits shall be filed with the Employment Development Department in accordance with Sections 1326-1 through 1326-13 of these regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253(a), Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-23-70; designated effective 12-3-70 (Register 70, No. 48).

2. Amendment filed 2-8-74; effective thirtieth day thereafter (Register 74, No. 6).

3. Amendment filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

4. Amendment filed 7-21-2003 as an emergency; operative 7-21-2003 (Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-2003 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 7-21-2003 order transmitted to OAL 11-7-2003 and filed 12-24-2003 (Register 2003, No. 52).

§1253(b)-1. Registration for Work.

Note         History



(a) Except as provided by subsections (e) and (f) of this section, a claimant shall register for work by entering a resume on CalJOBS or by any other means as directed by the department.

(b) Except as provided in subsections (d) and (e) below, a claimant must register for work within 21 days after filing a claim for unemployment compensation benefits, or on a date specified by the department, if later.

(c) If a claimant does not register for work in accordance with subsections (a) and (b) above, the department will require the claimant to report in person to a department field or branch office to register for work, and to provide supplemental information to assist in his or her search for suitable work (see Section 1253(e)-2 of these regulations). The department shall provide written notice to the claimant of the date, time, and location of the nearest department field or branch office where he or she shall be required to report.

(d) Except as provided in subsections (e) and (f) below, a claimant who fails to register for work with the department shall be disqualified from receiving benefits.

(e)(1) A claimant may be excused from registering for work if he or she can establish “good cause.” “Good cause” for the purpose of this regulation includes, but is not limited to, compelling reasons affecting the safety and/or privacy of the claimant and/or his or her dependents.

(2) The department may waive the registration requirement if the claimant can establish “good cause.” See Section 1326-10 of these regulations for interpretation of “good cause” for delay in registration.

(f) The department will waive the requirement to register for work for a claimant who meets any of the criteria listed below:

(1) A Trade union member on good standing who is bound by his union to seek and/or obtain employment only through his union.

(2) A claimant with a definite offer to return to work within a reasonable period of time as defined by the department.

(3) A claimant receiving benefits under the Trade Adjustment Assistance Act (TAA), North American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA), or California Training Benefits (CTB) programs.

(4) A claimant receiving benefits under the Partial Claim or Work Sharing programs.

(5) A claimant residing in another state if the claimant is registered with that state's employment service.

(6) A claimant for whom there is little or no likelihood of job openings being listed with the department and for whom job development efforts by the department would not be productive.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253(b), Unemployment Insurance Code.

HISTORY


1. New section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Amendment filed 9-2-2003; operative 10-2-2003 (Register 2003, No. 36).

§1253(c)-1. Availability for Work--General Principles.

Note         History



(a) Scope. This section sets forth the principles the department shall apply to determine if a claimant is available for work as required by Section 1253(c) of the Code. A variety of conditions and circumstances affects a claimant's availability, including restrictions that are imposed by the claimant, such as the wages and other working conditions the claimant will accept, and legal restrictions, such as licensing requirements and the claimant's ability to establish his or her employment eligibility under Section 274A of the Immigration and Nationality Act, 8 USC 1324a. If a claimant has good cause for a restriction, the claimant will not be ineligible under Section 1253(c) so long as a substantial field of employment remains open to him or her.

(b) General Rule. A claimant is available for work during the week for which he or she claims benefits if the claimant is ready, willing, and able to accept suitable employment or has good cause for any restriction on his or her readiness, willingness, or ability to accept such employment and; notwithstanding such a restriction, a substantial field of employment remains open to the claimant in his or her labor market. A claimant is not available for work if he or she is unable to establish his or her employment eligibility upon hire in accordance with the requirements of Section 274A(b) of the Immigration and Nationality Act, 8 USC 1324a(b).

(c) Definitions. As used in the general rule, the following terms have the meanings assigned:

(1) “Suitable work” means work in the claimant's usual occupation or work for which the claimant is reasonably fitted. Whether the work is work for which the claimant is reasonably fitted depends upon such factors as the claimant's age, health, prior training, and experience. “Suitable work” does not include work under the conditions specified in Sections 1258.5 or 1259 of the Code.

(2) “Labor market” means that potential demand for the claimant's services in the locality where he or she offers them. A labor market may expand or contract with such factors as the season, weather, economic conditions, and consumer demands.

(3) “Substantial field of employment” means the presence of potential job openings with more than a minimal number of employers who would use the services offered by the claimant. It does not mean that vacancies exist or that there is a likelihood of employment. It means only that the type of services the claimant offers are generally performed in the area in which he or she offers them.

(4) “Good cause” means a compelling reason, one which would influence a prudent person in the same circumstances as the claimant, and who is genuinely desirous of working, to impose the restriction. A finding of good cause depends on a determination that the claimant had no reasonable alternative for discharging the obligation that led the claimant to place the restriction on his or her availability. Reasons of ambition, prestige, taste, or similar motives, though they may be commendable in certain instances, will usually not be considered to constitute good cause.

(d) Burden of Proof.

(1) With regard to a determination of availability under Code Section 1253 (c), and any appeal therefrom, the claimant has the burden of proving that he or she was ready, willing and able to accept suitable employment and that he or she had good cause for any restriction.

(2) If the claimant meets the burden set forth in subdivision (d)(1), the department has the burden of proving that, nevertheless, a substantial field of employment did not remain open to the claimant.

(e) Employment Eligibility.

(1) A claimant shall be unavailable and the department shall determine him or her ineligible under Section 1253(c) of the Code if the department finds that the claimant is unable to establish his or her employment eligibility. The claimant's inability shall be considered a restriction on his or her availability.

(2) As used in this regulation “establish his or her employment eligibility” means the claimant presents the document or documents and makes the attestations required by Section 274A(b) of the Immigration and Nationality Act, (“Act”) 8 USC 1324a(b), on the form designated by the United States Attorney General for such purposes, commonly referred to as the “I-9,” so that an employer can, if necessary to establish an affirmative defense to any liability asserted under the Act, verify the claimant's identify and work authorization.

(3) The department may base its finding that the claimant is unable to establish his or her employment eligibility on information from the claimant, information from prospective or former employers, information that results from the claimant's registration for work as provided by Section 1253(b)-1 of these regulations, or information that results from the department's request to the INS to verify the claimant's immigration status for purposes of determining his or her eligibility for unemployment compensation benefits under Section 1326-13 of these regulations.

(f) Licenses. To be considered available under Section 1253(c) of the Code, a Claimant must keep current all licenses, certificates, and memberships necessary for him or her to be legally employed in his or her usual occupation or profession, or in work for which the claimant is reasonably fitted if there is no substantial field of employment for the claimant in his or her usual occupation.

(g) Other Provisions. Except as provided by Sections 1253.1, 1253.12, 1253.15, 1253.2, 1253.5, 1253.7, 1258.8, or 1267 of the Code, a claimant who is determined to be unavailable for work is ineligible for benefits for the week in which the unavailability occurs and remains ineligible until the person demonstrates that he or she is available for work and is otherwise eligible for benefits.

(h) If any subdivision of this regulation or its application to any person or circumstance is held invalid, the invalidity shall not affect other subdivisions or applications of this regulation which can be given effect without the invalid subdivision or application, and in this respect the subdivisions of this regulation are severable.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1253(b), 1253(c) and 1326, Unemployment Insurance Code; Section 274A(b), Immigration and Nationality Act; 8 USC 1324a(b); and Precedent Benefit Decision No. 459, California Unemployment Insurance Appeals Board.

HISTORY


1. New section filed 10-3-88; operative 10-3-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 42).  For prior history, see Register 79, No. 13.

§1253(c)-2. Period of Ineligibility Under Section 1253(c) of the Code.

Note         History



Except as provided by Sections 1253.1, 1253.12, 1253.15, 1253.2, 1253.6 of the code, a claimant who is ineligible for benefits because he or she is not able to work or available for work shall be ineligible for the week in which such occurs and shall remain ineligible in subsequent weeks until he or she demonstrates to the satisfaction of the department that he or she is able to work, available for work.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253(c), Unemployment Insurance Code.

HISTORY


1. Amendment filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1253(e)-1. Effort to Search for Suitable Work.

Note         History



(a) A claimant is ineligible for unemployment compensation benefits for any period for which the department finds that he or she has not made a reasonable effort to search for suitable work on his or her own behalf in accordance with specific and reasonable instructions of a public employment office. The department shall provide to each claimant written information and assistance, and upon request of a claimant or upon identification by the department of a claimant's need, additional oral information and assistance, as to how, when, where, and in what manner to apply for and look for a job. The facts and circumstances in each case shall be considered in determining whether a claimant has made a reasonable effort to search for suitable work. The claimant shall be required to show that he or she has, in addition to registering for work pursuant to Section 1253(b)-1 of these regulations, followed a course of action which is reasonably designed to result in his or her prompt reemployment in suitable work, considering the customary methods of obtaining work in his or her usual occupation or for which he or she is reasonably suited, and the current condition of the labor market. The following are examples of actions by a claimant which may be considered a reasonable effort for a claimant to search for suitable work on his or her own behalf:

(1) Making application with such employers who may reasonably be expected to have openings suitable to the claimant.

(2) Applying for employment with former employers.

(3) Registering with the claimant's union hiring or placement facility, and meeting all union dispatching calls and union registration requirements and all other union requirements affecting dispatch to a job. The department may find that this action alone is an adequate search for suitable work for particular claimants.

(4) Making application or taking examination for openings in the civil service of a governmental unit with reasonable prospects of suitable work for the claimant.

(5) Registering with a placement facility of a school, college, or university if one is available to the claimant in his or her occupation or profession.

(6) Registering with a placement facility of the claimant's professional organization.

(7) Registering for suitable work with a private employment agency or an employer's placement facility.

(8) Responding to appropriate “want ads” for work which is suitable to the claimant.

(b) A claimant has not made a reasonable effort to search for suitable work on his or her own behalf if the department finds that he or she has wilfully followed a course of action designed to discourage prospective employers from hiring him or her in suitable work. The department shall consider a claimant to have followed such a course of action if it finds that the claimant has not made a good faith effort to obtain the documents necessary to establish his or her employment eligibility in accordance with the requirements of Section 1253(c)-1(e) of these regulations.

(c) No claimant shall be denied benefits solely on the ground that he or she has failed or refused to register with a private employment agency or any other placement facility which charges the job-seeker a fee for its services.

(d) Notwithstanding any of the foregoing, if the department finds that for a particular locality, occupation, or class of claimant or due to other extenuating circumstances during a certain interval, the prospects of suitable job openings other than those listed with the public employment service are so remote that any effort to search for suitable work other than by filing a claim for unemployment compensation benefits and reporting as required to a department field or branch office would be fruitless to the claimant and burdensome to employers, then such filing and such reporting by the claimant shall be a reasonable effort to search for suitable work on his or her own behalf. The circumstances to which the department may apply this subdivision include any of the following:

(1) The claimant has a definite job promise within a reasonable time.

(2) There is a temporary layoff due to inclement weather, or a temporary layoff for another cause with a return to work date within 30 days.

(3) Claimant's labor market has been virtually eliminated due to a trade dispute.

(4) There is an agreement by employers, unions, and the department to serve applicants for work in the claimant's occupation.

(5) Claimant's unemployment is due to a seasonal shutdown in the industry in which the claimant works and the likelihood of obtaining other work is remote.

(6) The claimant's specialized skill is such that a limited number of job prospects are available for him or her and he or she has exhausted the potential sources of these jobs.

(e) This section shall not apply to a claimant with respect to a first or subsequent partial claim for partial unemployment benefits.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253(e), Unemployment Insurance Code.

HISTORY


1. New section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Amendment of subsection (b) filed 10-3-88; operative 10-3-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 42).

§1253(e)-2. Effort to Search for Suitable Work--Supplemental Information.

Note         History



Every claimant shall upon request of the department submit supplemental information to assist in his or her search for suitable work and to determine his or her eligibility for unemployment benefits. The supplemental information required of a claimant may include:

(a) The length of time he or she has been unemployed.

(b) His or her estimate of his or her chances of finding work, and his or her reasons.

(c) His or her statement of any definite promise of a job with an employer, with the employer's name and the approximate date the job will begin.

(d) Whether he or she is engaged in or plans to engage in self-employment or farming.

(e) Whether he or she is selling on commission.

(f) Whether he or she is enrolled in or plans to enroll in a school or training course of any kind.

(g) The kind of work for which he or she is registered with his or her union, if he or she is a union member, and when he or she last attended roll call or dispatch call.

(h) What he or she did to find work during a specified period, including the employers, labor unions and other places he or she contacted for work during the period, except that this information is not required if he or she customarily obtains all of his or her jobs through his or her union.

(i) If he or she did not look for work, an explanation of his or her reasons.

(j) Whether he or she is able to establish his or her employment eligibility if hired as required by Section 1253(c)-1(e) of these regulations.

(k) A certification that the information is true and correct to the best of his or her knowledge and belief, and that he or she understands that the law provides for a fine and/or imprisonment for making false statements or withholding facts to receive benefits.

(l) His or her signature.

(m) Such other information as the department may require.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253(e), Unemployment Insurance Code.

HISTORY


1. New section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of subsection (h) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Amendment of introductory paragraph, new subsection(j) and relettering of former subsections (j)-(l) to subsections (k)-(m) filed 10-3-88; operative 10-3-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 42).

§1253.1-1. Eligibility--Unlawful Detention.

Note         History



“Unlawfully detained” means any restraint upon the claimant which deprives him or her of his or her personal liberty without authority of law, whether imposed by physical force applied to the claimant, or by words or conduct which would cause a reasonable person to fear that resistance would be overcome by force.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253.1, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-30-79, designated effective 1-1-80 (Register 79, No. 48). For prior history, see Register 60, No. 17 and 59, No. 22.

§1253.12-1. Eligibility--Death in Family.

Note         History



“Immediate family” means the spouse or registered domestic partner of the claimant or the parent, stepparent, foster parent, grandparent, child, foster child, grandchild, brother, sister, son-in-law, or daughter-in-law of the claimant or of the claimant's spouse or registered domestic partner, whether or not the same live in a common household.

Registered domestic partners are defined in California Family Code Section 297.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1253.12, Unemployment Insurance Code.

HISTORY


1. New section filed 11-30-79; designated effective 1-1-80 (Register 79, No. 48).

2. Amendment filed 11-5-2002 as an emergency; operative 11-5-2002 (Register 2002, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-5-2003 or emergency language will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 11-5-2002 order transmitted to OAL 2-25-2003 and filed 4-8-2003 (Register 2003, No. 15).

§1254-1. Week--In Two Benefit Years.

Note         History



(a) When the major portion of a week of unemployment falls within the expiring benefit year, the entire week shall be deemed to fall within the expiring benefit year.

(b) Where less than the major portion of a week of unemployment falls within the expiring benefit year, the entire week shall be deemed to fall within the new benefit year. (See Section 1253-3 of these regulations for a description of a week of partial unemployment.)

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1254, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1255.3-1. Pension Deduction--General Principles.

Note         History



(a) Scope. This section sets forth the principles the department shall apply to determine whether the pension payments a claimant is receiving are deductible from his or her unemployment compensation benefits as provided by Section 1255.3 of the code.

(b) General Rule. The amount of unemployment compensation benefits, extended duration benefits, and federal-state extended benefits an individual is receiving shall be reduced, but not below zero, for any week with respect to which that individual, having received an initial pension payment, is currently receiving a periodic governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of the individual if the following three conditions are met:

(1) The pension, retirement or retired pay, annuity, or similar periodic payment is under a plan maintained (or contributed to) by a base period or chargeable employer;

(2) The services performed by the individual for the employer after the beginning of the base period of the unemployment compensation claim affect eligibility for, or, increase the amount of such pension, retirement or retired pay, annuity, or similar periodic payment; and

(3) The individual has made no contribution to the pension, retirement or retired pay, annuity, or similar periodic payment.

If the individual has made any contribution to the pension, retirement or retired pay, annuity, or similar periodic payment, the pension payment shall not be deductible.

(c) Definitions. As used in the general rule, the following terms have the meanings assigned:

(1) “Pension” means a sum of money paid regularly as a retirement benefit to an individual; and the pension is based on the individual's own work. “Pension” also includes retirement, retired pay, annuity, or any other similar periodic payment.

(2) “Periodic payment” means that the payment is being made at regular intervals, e.g., monthly, annually, etc. A payment is not periodic if the full pension entitlement (whether at the employer's or the worker's option) is paid out in a lump sum.

(3) “Base period” means base period as defined in Section 1275 of the Code.

(4) “Base period employer” means an employer for whom the claimant worked during the base period of the unemployment compensation claim and who paid wages which were used in the calculation of the claim award.

EXAMPLE 1: The claimant worked for employer C for 30 years and retired when the company transferred its operations out of state. The base period of the claim is the calendar year of 1990. The claimant worked only for employer C during the base period and the claim is based entirely on wages paid to the claimant by employer C. Employer C is a base period employer.

EXAMPLE 2: The claimant filed a claim effective May 5, 1991. The base period of the claim is from January 1, 1990, through December 31, 1990. The claimant worked for two employers during the base period of the claim. He worked for employer A through April 1990 and he worked for employer B beginning in July 1990 and continuing until April 1991. Employer A is a church. Wages paid by a church are not subject to coverage for unemployment compensation purposes. Therefore, employer A is not a base period employer since the wages from this employment are not used in the calculation of the unemployment compensation claim which in this case is based solely on wages earned with employer B.

(5) “Chargeable employer” means the same as a “base period employer”.

(6) “Maintained or contributed to” for purposes of subdivision (b)(1) of these regulations means that the base period employer made all contributions to the pension fund or, as a member of a multi-employer pension fund, contributed to the pension fund from which the pension is being paid. Examples of multi-employer pension funds are Social Security, union pension funds, PERS (Public Employees Retirement System) STRS (State Teachers Retirement System), etc.

(7) “Affect eligibility” for purposes of subdivision (b)(2) of these regulations means that the services performed by the claimant after the beginning of the base period result in the individual meeting the minimum requirements (requisite age plus years of service) for being eligible to receive the pension.

EXAMPLE 3. The claimant retired from employer D. The company pension provides an individual has to be at least age 55 and have completed 20 years of service to be eligible for the company pension. The base period of the unemployment insurance claim is the calendar year of 1990. The claimant worked for the employer for 25 years but did not attain age 55 until May 5, 1990. The claimant's services after the beginning of the base period, i.e., January 1, 1990, were necessary for her to become eligible to receive the pension, the pension is deductible.

(8) “Increase the amount of” for purposes of subdivision (b)(2) of these regulations means that the services performed by the claimant after the beginning of the base period resulted in the claimant's receiving a higher pension award than he or she would have received without having performed such additional services.

EXAMPLE 4. The claimant worked for employer E who laid the claimant off effective March 31, 1991. At the time of the layoff, the claimant had worked for employer E for 31 years. The claimant began work on March 1, 1960. Since he was laid off, the claimant applied for his pension. The claimant also applied for unemployment insurance benefits. The base period of his claim is the calendar year of 1990. To calculate an employee's pension award, the company takes a certain dollar amount times years of service. At the time the claimant applied for his pension the dollar amount used by the employer was $26.75. The claimant's monthly pension amount was $829.25 ($26.75 x 31 years). Had the claimant applied for retirement in March 1990, the monthly amount of his pension would have been $802.50 ($26.75 x 30 years). The pension is deductible since the additional work after the beginning of the base period resulted in a higher monthly pension award.

(9) “Made no contributions to the pension fund” means that the individual did not contribute to the pension fund during any period of his or her employment. The contributions need not have been made during the base period of the unemployment insurance claim.

(d) If the criteria listed in subdivision (b) above are met and the pension is deductible, then the entire monthly award of the pension shall be deductible, not just the amount by which the pension award increased because of the work after the beginning of the base period. The deductible amount of the pension shall be determined by taking the monthly award and prorating it over a weekly basis. The weekly amount of the pension shall be deductible dollar for dollar, but not below zero, from the unemployment insurance weekly benefit amount.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1255.3 and 1275, Unemployment Insurance Code.

HISTORY


1. New section filed 6-16-93; operative 7-16-93 (Register 93, No. 25).

§1256-1. Voluntary Leaving or Discharge--Relationship to and Distinction from Discharge, Layoff and Other Types of Unemployment.

Note         History



(a) Scope. This section relates to a voluntary leaving of work within the meaning of Section 1256 of the code and contrasts it with those situations in which an individual leaves work involuntarily as the result of a discharge, a layoff, a disciplinary suspension or any other cause of cessation of employment. This section distinguishes a suspension of work arising out of a trade dispute pursuant to Section 1262 of the code. This section also distinguishes causes of unemployment in which a separation issue does not arise.

If an individual is separated from his or her “most recent work,” as defined in Section 1256.3 of the code and Section 1256-2 of these regulations, the individual is disqualified under Section 1256 of the code only if he or she quits work voluntarily and without good cause or is discharged by the employer for work-connected misconduct. A claimant is not disqualified under Section 1256 of the code if his or her employment is terminated either as the result of a voluntary leaving with good cause or as the result of a discharge or suspension by the employer for reasons other than work-connected misconduct of the claimant.

If an individual voluntarily leaves his or her most recent work, the disqualification under Section 1256 of the code depends upon whether or not the leaving was with good cause. Section 1256-3 of these regulations sets forth general principles of good cause. Sections 1256-4 to 1256-23 of these regulations describe circumstances which are or are not good cause.

Sections 1256-30 to 1256-43 of these regulations relate to discharges for misconduct.

(b) Voluntary Leaving. A voluntary leaving of work occurs when an employee is the moving party causing his or her unemployment. A voluntary leaving includes, but is not limited to, the following common situations in which the employee is the moving party in causing his or her own unemployment:

(1) A leaving of work at a time when work is available.

(2) The employee's voluntary act or conduct is not work-connected misconduct, but compels the employer to discharge the employee which the employee knew or reasonably should have known would be the result (see subdivision (f) of this section).

(3) A leave of absence requested by the employee (see Section 1256-16 of these regulations).

(c) Involuntary Leaving. An involuntary leaving of work occurs when the employer is the moving party in causing the unemployment of an employee at a time when the employee is able and willing to continue working. An involuntary leaving includes, but is not limited to, the following common situations in which the employer is the moving party in causing the employee's unemployment: 

(1) A discharge or disciplinary suspension for work-connected misconduct (see Sections 1256-30 to 1256-43 of these regulations).

(2) A discharge for reasons other than misconduct.

(3) A layoff, due to a lack of work, for an indefinite period of time. However, a temporary layoff, due to a lack of work, for a reasonably definite period of time does not sever the employment relationship and if the employee terminates the employment relationship during such temporary layoff, the leaving is a voluntary leaving.

(4) A layoff due to a mandatory leave of absence policy pursuant to employer rules or to the provisions of a collective bargaining agreement to which the employer is a party (see Section 1256-16 of these regulations).

(5) A layoff due to limited tenure or job rotation provisions of a collective bargaining agreement between the employer and the union (see Section 1256-16 of these regulations).

(6) A layoff of an employee during the course of a trade dispute in which he or she is not involved.

(7) A change in the ownership of a business which results in an indefinite layoff of the employee even though the successor business extends an offer of new work to the employee. This would raise an issue of refusal of suitable employment under subdivision (b) of Section 1257 of the code.

(d) Moving Party. Whether an individual leaves work voluntarily or involuntarily depends upon which party initiated a termination or suspension of the employment. The employer who refuses to permit an able and willing employee to continue working or the employer who is unable to provide continuing work is the moving party and the employee is involuntarily unemployed due to a discharge or layoff. Therefore, a voluntary leaving occurs only when work is available and the employee leaves work of his or her own free will.

An employee who leaves work when asked by the employer to either resign or be fired, or an employee who resigns rather than agree to a forced leave of absence, has not left work of his or her own free will. In these situations, since the employee did not choose to quit, the employer is the moving party in the separation and the employee becomes involuntarily unemployed.

The employer is also the moving party if the employer discharges the employee but then gives the employee the option of either leaving immediately or remaining a few days longer, and the employee elects to leave immediately. However, the employer must in fact discharge the employee. For example, if the employer, in response to a complaint by the employee, replies that the employee can quit if the job is not satisfactory and the employee then does so, the employee is the moving party.

In the following situations the employee is the moving party in terminating the employment and thus the employee has voluntarily left his or her employment:

(1) The employee resigns in anticipation of a discharge or layoff and before the employer takes any action.

(2) The employee resigns but delays the effective date of the resignation at the request of the employer.

(3) The employee resigns effective as of a future date, the employer accepts the resignation and makes a firm offer to a potential replacement or incurs substantial expenses in recruiting or other efforts to obtain a replacement, and the employee subsequently unsuccessfully attempts to withdraw the resignation prior to its effective date.

(4) The employee leaves work prior to the effective date of a discharge and is not paid beyond the last day actually worked. However, if the employee leaves work on the effective date of discharge but prior to the end of the normal workday, there is a discharge rather than a voluntary leaving, even if the employee is paid for that day's work. The employer would also become the moving party if the employer terminates the employee's employment prior to the effective date of the employee's resignation and does not pay the employee any wages beyond the date of the termination.

(5) The employee refuses to exercise his or her right to “bump” another employee and instead elects to be laid off.

(e) Termination of Employment.

(1) General. Employment is terminated when, at the time of leaving, neither the employer nor the employee contemplates a resumption of the employment relationship. A termination of the employment relationship or a disciplinary suspension is necessary before there can be either a voluntary leaving or a discharge, but is not essential to other types of leaving. For example, there may be a physical leaving of work by the employee and yet the employment relationship continues in certain situations where the employee is on leave of absence, is temporarily laid off, suspended for a definite period, or is unemployed because of a trade dispute.

(2) Leave of Absence or Layoff. Although an employee neither performs services nor receives wages during an authorized true leave of absence or a temporary layoff due to lack of work, the employment relationship continues because the work will resume at a later date, and there has been no termination of employment. A layoff for an indefinite period, or for an unreasonable length of time, or where there is no contemplation that the employee will resume his or her work in the future may sever the employer-employee relationship. In such cases there can be no leaving after the date of such a layoff.

A true leave of absence exists if the employer and the employee mutually agree that the employee will return to his or her work after a period of absence and that the employment relationship is not terminated although the performance of services is suspended for the period of the absence from work. A leaving of work occurs when an employee voluntarily commences a true leave of absence. If the employer is unable to return the employee to his or her work upon the expiration of a true leave of absence, the employment is terminated at that point and the employee is laid off due to a lack of work. However, if an employee merely leaves for a fixed period of time with an understanding that he or she would be rehired at the end of that period only if work were available, then a true leave of absence does not exist. If no work is available when the period expires, the employment has been terminated and the employee has voluntarily left work as of the commencement of the period. A termination and voluntary leaving of work also occur if upon expiration of a true leave of absence the employee fails to return to work, or, if unable to return, the employee fails to request or requests without success an extension of the leave.

Section 1256-16 of these regulations should be consulted for a detailed discussion of a true leave of absence as it relates to the question of a voluntary quit with or without good cause.

(3) Suspension. A disciplinary suspension of an employee for a specific period of time raises a separation issue if the employee files an unemployment insurance claim during the period he or she is suspended. Whether or not the claimant will be eligible for benefits depends upon the reason the claimant was suspended by the employer. If the claimant was suspended for willfully and knowingly violating reasonable employer rules, the claimant will be disqualified on the basis of a discharge for misconduct connected with the work.

This situation is similar to a constructive voluntary leaving, discussed below in subdivision (f) (see also Section 1256-43 of these regulations which discusses discharge for misconduct for violation of employer's rules).

(4) Termination by Mutual Agreement. There may be a separation by mutual agreement if the employer and employee have mutually agreed to separate, either at the time of termination or, initially, at the time of hire. In such cases the termination is neither a discharge nor a leaving and thus a disqualification cannot arise under Section 1256 of the code. The expiration of a fixed term contract of hire to which the parties initially agreed is an example of a termination by mutual agreement.

EXAMPLE 1. A's employment was under a written contract which required two years of service in a foreign country. Approximately two weeks before the expiration of this contract the employer offered A similar contract for another two-year term. For personal reasons, A declined to enter into the new contract and did not continue working after the expiration of the contract.

Since A satisfied the terms of a specific period of employment, A became involuntarily unemployed and A's refusal to enter into a new contract of employment is not a voluntary leaving.

(5) Trade Dispute. A leaving of work by an employee because of a trade dispute pursuant to Section 1262 of the code results in merely a suspension of the employment relationship rather than a termination of employment. Such a leaving is not treated as a leaving under Section 1256 of the code (see Section 1262-1 of these regulations). An individual may not be directly involved in a trade dispute but may become unemployed due to the actions of others. For example, a nonunion employee who becomes unemployed, due to a plant closure arising out of a trade dispute with union employees, is temporarily laid off due to lack of work. Section 1256 of the code is not applicable at the time of the temporary layoff and would become applicable only by a subsequent termination of employment. This could arise by a refusal of either the employer or the employee to continue the employment relationship at the time work is resumed following the end of the trade dispute. An employee may voluntarily quit during a trade dispute if there is an unequivocal severance of the employment relationship. This could occur where the employee intends to sever the employment relationship and to abandon the employment. If this does occur, it raises an issue under Section 1256 of the code.

(f) Constructive Voluntary Leaving. In some cases, the employee is deemed to have left work voluntarily even though the apparent cause of termination is the employee's discharge by the employer. Such a leaving is designated as a constructive voluntary leaving and it occurs when an employee becomes the moving party by engaging in a voluntary act or in a course of conduct which leaves the employer no reasonable alternative but to discharge the employee and which the employee knew or reasonably should have known would result in his or her unemployment. However, an employee is not required to comply with an unreasonable order of an employer, and a discharge in such circumstances would be a discharge for reasons other than misconduct and not a constructive voluntary leaving. The following examples involve a constructive voluntary leaving since the loss of employment is directly caused by the employee's voluntary action which set in motion the events leading to the employer's action of discharging the employee

EXAMPLE 2. The driver's license of B, a truck driver, was revoked by the state due to a drunk driving conviction. The employer discharges B because B is no longer able to continue operating the employer's delivery truck.

EXAMPLE 3. C refuses to join a labor organization within the required time limit or fails to pay C's union dues as required by the terms of a collective bargaining agreement between the employer and a union representing the employees. The employer discharges C as required by the agreement with the union.

EXAMPLE 4. D is hired by a cannery for a workweek of Monday through Saturday. D works under such conditions for several years but then decides that for personal reasons D will no longer work on Saturdays. The employer discharges D due to D's refusal to work Saturdays.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1257, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Change without regulatory effect repealing subsection (b)(3) and renumbering subsection (b)(4) to subsection (b)(3) (Register 87, No. 40).

§1256-2. Voluntary Leaving--Most Recent Work.

Note         History



(a) Scope. This section interprets what is and is not “work” as used in Section 1256 of the code relating to disqualification for unemployment compensation benefits for leaving “most recent work” voluntarily without good cause, and how the date of filing a claim in person or by mailing a continued claim or other claim affects what is the “most recent work,” defined by Section 1256.3 of the code as that work in which a claimant last performed compensated services:

(1) Prior to and nearest the date of filing a valid new, reopened, or additional claim for unemployment compensation benefits, a valid primary, reopened, or additional claim for extended duration benefits, or a valid application, or reopened or additional claim for federal-state extended benefits.

(2) During the calendar week for which a continued claim is filed.

(b) Work--Inclusions. For the purposes of Section 1256 of the code, “work” means service, including full-time, casual, part-time, permanent, or temporary service, performed for wages or remuneration, including call-in, show-up, or standby pay and in-kind compensation, including, but not limited to, service by:

(1) An employee as defined in Section 621 of the code.

(2) An employee under the usual common law or admiralty rules regardless of whether the services are in “employment” under the code.

(3) A self-employed individual who has elected coverage under Section 708 of the code.

(4) An individual in military service or federal civilian service.

(5) An individual who is a participant in an on-the-job training, work experience, or public service employment program under the Job Training Partnership Act of 1982, as amended, or as a participant in public service employment under the Public Works Employment Act of 1976.

(6) An individual in antipoverty programs based on wages for work such as the work study programs and the Neighborhood Youth Corps.

(c) Work--Exclusions. For the purposes of Section 1256 of the code, “work” does not include:

(1) Uncompensated service, such as service performed during unpaid training periods provided by employers to applicants for employment who are hired only after successful completion of the training.

(2) Service performed as a self-employer or independent contractor, except as provided by subdivision (b) of this section.

(3) Institutional training under the Job Training Partnership Act of 1982, as amended.

(4) Service performed in training programs designed to prepare persons for future employment, such as the Job Corps.

(5) Service performed in jury or witness duty.

(d) Filing Claims. As used in this section, “filing” generally refers to the day a claimant mails a continued claim, or other claim, or reports in person to a department field or branch office in order to commence the process of claiming benefits, except where the claimant fails to report for a later scheduled completion appointment (see Sections 1326-1 through 1326-11 of these regulations for details of filing procedures).

(1) Valid Claim. An unemployed individual files a new claim which is a “valid claim” if monetary eligibility for unemployment compensation benefits has been established on the basis of wages earned or paid in the applicable base period to meet the requirements of Section 1281 of the code (see Section 1326-2 of these regulations). If the claim is invalid no benefits could be payable and there is no issue. Reemployment immediately after filing a valid new claim is not the most recent work since most recent work does not include employment which occurs subsequent to the filing date of the new claim. However, such reemployment would be the most recent work if a separation occurred during a week for which a continued claim was filed. If a claimant holds two or more jobs simultaneously, the most recent work is with the employer for whom the claimant performed any compensated services prior to and nearest to the actual filing date of the claim. Any issue as to separation from most recent work that potentially falls within the definitions of Section 1256 of the code must be resolved before benefits are paid. The same rules apply to a valid primary claim under Section 3652 of the code, or a valid application under Section 4652 of the code, or reopened or additional claims.

EXAMPLE 1. On Friday the claimant quit work for Employer A. On the following Monday the claimant worked for Employer B and was discharged on that day. On the following Tuesday he filed a claim for unemployment benefits.

Although the filing day is Tuesday, the effective date of the claim is the preceding Sunday (see Section 1253-2 of these regulations). The “most recent” work is for Employer B on Monday, the last work performed prior to the filing date, even though performed after the effective date and even though the work for Employer A was the last work prior to Sunday. Whether the claimant is eligible will depend upon his discharge by Employer B, not his leaving of work for Employer A.

EXAMPLE 2. The claimant quit work for Employer C on Thursday and filed a claim for unemployment benefits on the following Friday. The claimant worked for Employer D on the following Saturday

The claim is effective on the preceding Sunday (see Section 1253-2 of these regulations). The most recent work is the work for Employer C prior to the filing date, not the work for Employer D on Saturday.

EXAMPLE 3. The claimant held two jobs simultaneously. Although the claimant was on leave of absence from Employer E, he worked part time for Employer F. The claimant was separated by Employer F, and thereafter by Employer E without performing further service for Employer E. The claimant filed a claim for unemployment benefits.

The most recent work is for Employer F, since the claimant neither performed services nor received wages from Employer E.

(2) Other Claims. An unemployed claimant may file one or more of several claims subsequent to the valid claim. These claims and the effect on “most recent work” are as follows:

(A) Continued Claim. If a claimant can certify for benefits following a week or two of unemployment, a continued claim or partial claim is filed. (See Sections 1326-6 and 1326-8 of these regulations.)Here, the most recent work is the last employment the claimant had during the calendar week for which the continued claim is filed. Each week is separately considered. For example, an unemployed claimant may mail a continued claim on Monday, and if the claimant worked only in the first of the two weeks for which he or she is claiming benefits, then the last day of this employment in the first week is the most recent work for that week and remains the most recent work for the second week.

EXAMPLE 4. The claimant mailed a continued claim on Sunday, April 12, for the two weeks ending Saturday, April 4, and Saturday, April 11. During the second week he earned $15 on Tuesday, April 7, for Employer G and is laid off for lack of work. He also earned $15 from Employer H on Thursday, April 9, and quit. He had no other work during that week.

The most recent work for the second week is for Employer H on Thursday, April 9, the last compensated day in the second week for which the continued claim is filed. It would still be the most recent work for that week, even if the claimant had worked Monday, April 13, and mailed a continued claim on Tuesday, April 14, for the week ending Saturday, April 11.

(B) Additional Claim. If a claimant has a break in the claims series because he or she has performed services in employment since the last claim, an additional claim is filed (see Section 1326-4 of these regulations). Most recent work is determined in the same manner as for a new claim.

(C) Reopened Claim. If the conditions specified in Section 1326-5 of these regulations are satisfied, a reopened claim is filed. Most recent work is determined in the same manner as for a new claim.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1256.3, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Change without regulatory effect amending subsections (b)(5), (c)(3), and (d)(1) Example 2, and repealing of subsections (b)(7) and (c)(6) filed 3-30-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).

§1256-3. Voluntary Leaving--Good Cause--General Principles.

Note         History



(a) Scope. This section relates to general principles of good cause for the voluntary leaving of most recent work, the employee's duty to take affirmative steps to preserve the employment relationship before leaving work, and the manner in which this duty may be negated. For examples of specific circumstances which may constitute good cause for leaving work, see Sections 1256-4 to 1256-23 of these regulations.

(b) Good Cause for Leaving Work. “Good cause” exists for leaving work, when a substantial motivating factor in causing the claimant to leave work, at the time of leaving, whether or not work connected, is real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances. Generally good cause for leaving work is decided on the facts at the time the claimant left work. Unless there is a timely connection between any alleged reason for leaving and the actual leaving, the employee has waived what might otherwise justify termination of the employment relationship and has negated the required causal connection between any given alleged reason for leaving and leaving. The claimant may submit several reasons for leaving work, some of which, when considered individually, do not constitute good cause. However, if one reason which is good cause is a substantial motivating factor in causing the claimant to leave work, the claimant's leaving is with good cause.

(c) Duty to Preserve the Employment Relationship. Prior to leaving work, the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause. This duty may be satisfied by reasonable steps, including, but not limited to, any of the following:

(1) Seeking an adjustment of the problem by allowing the employer an opportunity to remedy the situation if the employer can reasonably do so.

(2) Seeking a leave of absence or transfer to other employment with the same employer if likely to remedy the problem and if the claimant knew or should have known that a leave or a transfer probably would have been granted had one been requested.

(3) Taking steps within his or her own control, such as hiring a sitter for child care to solve a child care problem, or joining a car pool or repairing an automobile or purchasing a replacement vehicle to solve a transportation problem.

COMMENTS. Section 1256.1 of the code relates to terminations of employment which result from absences from work due to incarceration. In such cases, Section 1256.1-1 of these regulations should be consulted in order to establish whether the individual has left work voluntarily without good cause.

Pursuant to Section 1256.2 of the code, an individual who terminates employment due to intentional deprivation of equal employment opportunities, unless deprivation is based on a bona fide occupational classification or certain security regulations, is deemed to have left work voluntarily with good cause and is not under a duty to take affirmative steps to preserve the employment relationship prior to leaving work. However, if the deprivation is unintentional, the individual is not exempt from the duty to allow the employer an opportunity to correct the situation prior to leaving work (see Section 1256.2-1 of these regulations for interpretation).

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-4. Voluntary Leaving--Good Cause--Apprenticeship Training.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving most recent work when the individual leaves work to participate in an apprenticeship training program. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) An individual who leaves work to enter an apprenticeship program, including any apprenticeship program under the Job Training and Partnership Act of 1982, as amended, does so with good cause if the following conditions exist:

(1) The apprenticeship program is fostered by the State of California.

(2) The new work is potentially as permanent as and potentially substantially better than the former work.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Change without regulatory effect amending subsection (b) filed 3-30-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).

§1256.4-1. Purge of Disqualification for Irresistible Compulsion to Use or Inability to Abstain from Using Intoxicants.

Note         History



(a) An individual who has been disqualified for unemployment benefits because of a discharge from work or a leaving of employment resulting from an irresistible compulsion to use or consume intoxicants may purge the disqualification under Section 1256.4 of the code by participation in a treatment program which satisfies the conditions of subdivision (b) and by submitting to the department a written certification from a physician or authorized treatment program administrator that the individual is in or has completed the treatment program and is able to work.

(b) Participation in a treatment program, public or private, will permit the purging of a disqualification if the treatment program meets one of the following conditions:

(1) The treatment program is officially licensed or certified by the State Department of Alcohol and Drug Programs (ADP) or the State Department of Health Services (DHS) or is licensed by or satisfies a program review by the state in which the program is located.

(2) The treatment program is an established self-help program as determined by the department as having a recognized record in the community for success in treating individuals addicted to alcohol or drugs. This includes programs such as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA), even though they do not meet the minimum standards for ADP licensure or certification.

(c) The written certification shall contain a statement that the individual has entered into and is continuing in, or has completed a treatment program for his or her condition, and is able to work. The statement shall be completed by one of the following:

(1) A physician

(2) An authorized treatment program administrator from a program which satisfies either subdivision (b)(1) or (b)(2). If there is no authorized treatment program administrator to certify to an individual's participation in an established self-help program and his or her ability to work, the individual shall provide to the department a physician's statement certifying that the individual has entered into and is continuing in, or has completed the program for his or her condition, and is able to work.

(d) Upon receipt by the department of the written certification, the department shall determine whether the written certification and the treatment program in which the individual is participating or has participated meets the requirements of this regulation. If the department determines that the requirements of this regulation are met, the department shall purge the disqualification.

NOTE


Authority cited: Section 305 and 306, Unemployment Insurance Code. Reference: Section 1256.4, Unemployment Insurance Code.

HISTORY


1. Change without regulatory effect renumbering former section 1256.5-1 to new section 1256.4-1 and amending section and Note filed 8-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 35).

§1256-5. Voluntary Leaving--Good Cause--Attendance at a School or a Training Course.

Note         History



(a) Scope. This section relates to whether good cause exists to leave most recent work when the individual leaves work to enroll in or attend a school or a training course. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) General Rule. Voluntarily leaving the most recent work to enroll in or attend a school or a training course is not a compelling reason to constitute good cause within the meaning of Section 1256 of the code, except as provided in subdivision (c) of this section.

(c) Good Cause to Leave to Attend School or Training Course. An individual who voluntarily leaves the most recent work to attend a school or training course leaves with good cause if, at the time of leaving, any of the following conditions exists:

(1) The employer has requested that the individual participate in a school or a training course.

(2) Prior to obtaining the most recent work, the individual had been enrolled in a retraining or training course, including institutional training under Job Training and Partnership Act of 1982, as amended, conducted in California and scheduled on a full-time basis under the requirements of the particular institution, approved by the director under Section 1267 of the code, continuing the work would require termination of the retraining or training course, and the employer does not or cannot adjust the individual's hours of work to allow continuation of the work and the retraining or training course.

(3) The individual was legally required to attend school due to compulsory attendance requirements based on age and could not arrange to continue working for the same employer while attending school.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of NOTE filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Change without regulatory effect amending subsection (c)(2) filed 3-30-92  pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).

§1256.5-1. Purge of Disqualification for Irresistible Compulsion to Use or Inability to Abstain from Using Intoxicants.

Note         History



NOTE


Authority cited: Section 305 and 306, Unemployment Insurance Code. Reference: Section 1256.5, Unemployment Insurance Code.

HISTORY


1. New section filed 10-22-92; operative 11-23-92 (Register 92, No. 43).

2. Change without regulatory effect renumbering former section 1256.5-1 to new section 1256.4-1 filed 8-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 35).

§1256-6. Voluntary Leaving--Good Cause--Conscientious Objection.

Note         History



(a) Scope. This section relates to whether good cause exists to leave most recent work when an individual leaves work due to conscientious objection to the work conditions or work assigned. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Religious, Ethical, or Philosophical Beliefs. If an individual has, or after working for a time newly acquires, a conscientious objection to the work conditions or assigned work based on religious beliefs founded on the tenets or beliefs of a church, sect, denomination, or other religious group, or on ethical or philosophical grounds, an individual's voluntary leaving of the most recent work based on religious beliefs or other grounds is with good cause if all of the following conditions are met:

(1) If religious beliefs are involved, the tenets or beliefs of the religious group expressly forbid the adherent from engaging in the assigned work or meeting the work conditions.

(2) The conscientious objection is bona fide and not a sham or a means of avoiding work.

(3) The individual has, whenever feasible, sought other means, such as transfer to other work to resolve the conscientious objection before voluntarily leaving the work.

(4) The work or work conditions have a direct, rather than an indirect or incidental, relationship to the individual's religious, ethical, or philosophical beliefs.

(5) The individual was not aware of the objectionable aspects of the work at the time he or she was hired, or the conscientious objection arose later when the individual first acquired the belief on which the conscientious objection is based.

EXAMPLE 1. A objects to liquor based on religious beliefs. A works in a restaurant which serves no intoxicating beverages. The religious beliefs expressly forbid adherents from engaging in work on any premises where liquor is sold. The restaurant applies for and obtains an on-sale liquor license. The restaurant is part of a chain of several restaurants in the area. Other outlets do not serve intoxicating beverages. A requests that the employer transfer A to another restaurant in the chain in which A could work without violating religious beliefs. The employer refuses the transfer, even though the employer has no valid business reason to refuse A's request. A leaves the work due to adherence to the objections to liquor based on religious beliefs.

A's leaving is with good cause based on religious beliefs.

EXAMPLE 2. On ethical grounds, B is opposed to war and objects to work which directly relates to military activities. B works for an employer not engaged in any war-related activity. The employer decides to start producing bombs and assigns B to this project. B leaves the work due to ethical objections to the project. 

B's leaving is with good cause based on ethical conscientious objections.

EXAMPLE 3. C accepts work with full knowledge that Saturday work is required contrary to C's religious beliefs. After working on Saturdays, for some weeks, C leaves the work due to eventual refusal of the Saturday work.

C's leaving is without good cause because C was aware of the Saturday work requirement when C was hired.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-7. Voluntary Leaving--Good Cause--Disciplinary Action by Employer.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving most recent work when an individual leaves work due to disciplinary action by the employer. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Reasonable Employer Rule. The employer has protectable interests and the right to take reasonable corrective disciplinary action against employee infractions of employer-promulgated reasonable rules, or reasonable employer expectations which relate to standards of behavior, performance, and care which are:

(1) Work-connected or related to the employee's duties and obligations to the employer's interests, which include economic interests, day-to-day business operations, business good will and reputation.

(2) Reasonable when measured against local customs or practices in similar businesses or industries.

(c) Disciplinary Action by Employer. Employer discipline commonly takes the form of reprimand, criticism, changes in working hours, reduction in wages, reassignment or transfer, restitution for employee-caused losses due to culpable negligence or willful dishonesty, or threats of firing.

(d) Unreasonable Employer Disciplinary Action as Good Cause for Leaving Work. If the employee leaves the work in response to corrective disciplinary action by the employer, the leaving is with good cause if the employee prior to leaving did everything that could be reasonably expected of a person genuinely desirous of preserving the employment relationship, and the employer's disciplinary action is unreasonable because any of the following conditions exists:

(1) The employer disciplined the employee for an act or conduct that was not work-connected or detrimental to the employer's interests.

(2) The employer disciplined the employee for violating an employer rule of which the employee had no actual or constructive knowledge.

(3) The substance of the disciplinary action or the manner in which it was administered was excessive or unreasonable under the circumstances.

(4) The employer's disciplinary action violated the employee's constitutional guarantees.

(5) The employer disciplined the employee for failure to comply with requirements which imposed new or unreasonable burdens on the employee or which would require a violation of law.

(6) The employer's disciplinary action imposed an undue risk of injury or illness upon the employee (see Section 1256-15 of these regulations).

(7) The employer engaged in a pattern of hostility or abuse towards the employee.

(8) The employer demanded restitution for shortages, breakages, or loss of equipment which was either of minor consequence or the result of an isolated incident of mere inefficiency, inability or incapacity, inadvertence or error, or ordinary negligence, and not due to the gross negligence or willful act of the claimant, or the amount of restitution required to be paid at any one time is unreasonable in view of the claimant's financial circumstances.

(9) The employer's disciplinary action did not timely follow the employee's act or omission. Failure to act promptly may condone or excuse the offense.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (d)(1) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-8. Voluntary Leaving--Good Cause--Transportation to Work.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving most recent work when an individual leaves work due to distance or other problems of transportation to work. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) General. An individual who leaves work due to distance or other problems of transportation to work does so with good cause if a reasonable person genuinely desirous of retaining employment and similarly situated would have been compelled to leave work after having sought without success all reasonable alternatives by which to provide transportation to work. Transportation to work is the personal responsibility of the employee unless special circumstances or local custom reasonably require the employer to furnish transportation.

(c) Leaving Work--Good Cause. An individual leaves work with good cause if all of the following conditions exist:

(1) The problem of transportation to work which causes the leaving of work is the result of a substantial change such as a change in the customary means of transportation, a change of circumstances beyond the claimant's control such as a health problem or a change in work shifts or work hours by the employer, a change in the employer's place of business, or a change of the claimant's place of residence for compelling reasons.

(2) Neither private nor public transportation is reasonably available or feasible when all pertinent factors are considered such as the ease or difficulty of access to transportation facilities, distance to work, travel time, cost of transportation in relation to earnings, the individual's age and physical condition, risks to the individual's safety which may be incurred by the use of available transportation, and local customs and practices.

(3) Prior to leaving work, the individual explored without success reasonable alternatives to solve a transportation problem such as a carpool, a transfer to a different shift or a more convenient location with the same employer, or a temporary leave of absence from employment pending the availability of suitable transportation, or other reasonable alternatives which would not cause undue hardship to the individual.

COMMENTS. Transportation problems vary from case to case. Precise guidelines are impractical. Each situation is decided on its own particular facts according to the objective test of whether a reasonable person genuinely desirous of retaining employment would be compelled to leave work under the same circumstances. Nevertheless, certain considerations cut across all cases. For example, distance to work is not alone a controlling factor but is examined in relation to the required travel time, the cost of travel in relation to the claimant's earnings, local commuting practices, and other factors. A claimant who changes residence to a location from which commuting to work is still reasonable does not have good cause for leaving work due to transportation shifts even if the change in residence is for compelling reasons. If commuting from the claimant's new residence is unreasonable, good cause for leaving work turns upon whether the claimant's reasons for moving are compelling. A claimant who changes residence for noncompelling reasons leaves work without good cause even if commuting from the new residence is unreasonable.

EXAMPLE 1. Claimant A left work in one California community to preserve A's marriage and to go with the family to a nearby California community. There was no public transportation between the two communities, and no carpool arrangement to the former work was available. No transfer was possible. The pay in the former job was 85 cents an hour. The daily cost of commuting from the new community would have been about $2.

A's leaving is with good cause because the cost of commuting by private car was excessive in relation to the earnings, there was no reasonable alternative available, and the preservation of the marriage is a compelling reason for leaving.

EXAMPLE 2. B commuted for about 3/4 of an hour from California Community X to work in a plant in Community W. B left the work in Community W when B moved with the family to Community Y from which the travel time to commute to Community W was about 1 hour. The increase in the cost of commuting was nominal. Public transportation was reasonably available. Employees of the employer in Community W had ongoing carpool programs. B decided not to use the family car to commute to Community W, made no effort to locate public transportation, and did not explore carpool arrangements.

B's leaving is without good cause, since the increased cost and time of commuting was not substantial, and B did not make any effort to use available solutions of public transportation or carpool arrangements.

EXAMPLE 3. C left her work because she had to walk a considerable distance in the city to take her employer's bus to work, and repeat that long walk alone at 2 a.m. upon returning from work. There was a threat to her personal safety during the night-time walk. The travel time on the bus was over 1 hour. C had no private car, and no public transportation or carpool arrangement was available.

C's leaving is with good cause due to the threat to her safety, in view of the lack of transportation or other reasonable alternative, and the distance and total travel time involved.

EXAMPLE 4. D commuted by private car to work 60 miles each way daily, approximately 2 hours each way. D was 66 years of age. D's work duties included climbing ladders and moving in and out of planes. Although D was in good health, D began to suffer fatigue during the commute to work. On one occasion D dozed off during the commute and D's car struck a barricade. D left work after and due to this incident, although D was not injured. No transfer, carpool, or other alternative was available

D's leaving is with good cause, due to advanced age related to the substantial hazard in commuting to and from work, and the excessive distance and travel time in commuting.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-9. Voluntary Leaving--Good Cause--Domestic Circumstances, Generally.

Note         History



(a) This section relates to whether good cause exists for leaving most recent work due to domestic circumstances. This section deals with general principles. Sections 1256-10, 1256-11, and 1256-12 of these regulations deal with particular factual situations involving domestic circumstances. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) A claimant voluntarily leaves work with good cause based on domestic circumstances if the claimant's obligation is of a real, substantial, and compelling nature such as would cause a reasonable person genuinely desirous of retaining employment to take similar action, and the claimant's reason for leaving work is due to a legal or moral obligation relating to any of the following:

(1) The health, care, or welfare of the claimant's family.

(2) The exercise of parental control over the claimant who is an unemancipated minor.

(3) The existing or prospective marital status of the claimant.

(c) For purposes of this section and Sections 1256-10 to 1256-12, inclusive, of these regulations, “family,” means the spouse or registered domestic partner of the claimant, or any parent, child, brother, sister, grandparent, grandchild, son-in-law, or daughter-in-law, of the claimant or of the claimant's spouse or registered domestic partner, including step, foster, and adoptive relationships, or any guardian or person with whom the claimant has assumed reciprocal rights, duties, and liabilities of a parent-child, or a grandparent-grandchild relationship, whether or not the same live in a common household. Registered Domestic Partners as defined in Family Code Section 297 are considered “family” for the purposes of unemployment insurance.

COMMENTS. This section states general principles establishing “good cause” for voluntarily leaving work due to domestic reasons. It requires: (1) the existence of an obligation due to domestic circumstances; and (2) a “compelling reason” for leaving work.

Several major categories are domestic circumstances, such as care of a family member who is ill or disabled, joining a spouse or registered domestic partner in another locality, leaving work to be married, and household duties. These are dealt with more specifically in Sections 1256-10 to 1256-12, inclusive, of these regulations. Such situations, however, usually are one of the following types: (1) the health, care, or welfare of the family; (2) the parent-child relationship; or (3) the marital or registered domestic partner status of the claimant. If a claimant's particular factual circumstance falls within any of these three major categories, causing the claimant to leave work out of a sense of duty to respond to the particular situation, a domestic circumstances issue is raised. The claimant has left work with good cause, if other conditions are met.

However, while the claimant's particular domestic circumstance is the basis for voluntarily leaving his or her job, the claimant must also demonstrate that his or her decision to leave work was reasonable in view of all the facts. Important considerations are that an obligation exists, that it is substantial, that the claimant took the necessary steps to preserve his or her employment, and that no reasonable alternative exists for meeting that obligation. The only exception to the requirement that no reasonable alternative exists for meeting the obligation is found in Section 1256-10.

“Family” includes any person with whom the claimant has had substantially the same relationship of parent-child or grandparent-grandchild. For example, the claimant may have been raised by an aunt or uncle rather than his or her actual parents. Yet, the relationship that develops as a result of such circumstances is equivalent to that of a parent-child relationship. As such, the claimant may feel just as obligated to his or her aunt or uncle where the facts raise a domestic circumstances issue. Thus, if the claimant in such a relationship leaves work to care for an aunt or uncle as a family member who is seriously ill, the claimant has left work for “good cause” due to domestic circumstances, if other conditions are met.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (c) and second paragraph of Comments filed 11-5-2002 as an emergency; operative 11-5-2002 (Register 2002, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-5-2003 or emergency language will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 11-5-2002 order transmitted to OAL 2-25-2003 and filed 4-8-2003 (Register 2003, No. 15).

4. Amendment of third and fourth paragraphs of subsection (c) filed 5-12-2011; operative 6-11-2011 (Register 2011, No. 19).

§1256-10. Voluntary Leaving--Good Cause--Domestic Circumstances Involving the Health, Care, or Welfare of Family.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving the most recent work if the claimant leaves work due to the health, care, or welfare of the claimant's family. Sections 1256-1, 1256-2, 1256-3, and 1256-9 of these regulations set forth general principles also applicable under this section.

(b) Good Cause. A claimant leaves the most recent work with good cause if the claimant left work due to circumstances relating to the health, care, or welfare of the claimant's family of such a compelling nature as to require the claimant's presence, and the claimant has taken reasonable steps to preserve the employment relationship.

(c) Compelling circumstances requiring the claimant's leaving of work and presence as described in subdivision (b) include, but are not limited to, the following:

(1) The claimant knows or reasonably believes that a member of the claimant's family is seriously ill or disabled, physically or mentally, or a family member is in danger of death.

(2) The claimant knows or reasonably believes that a member of the claimant's family is seriously ill or disabled so as to require the claimant to make a change of residence for that person's care or welfare and making it impossible or impractical for the claimant to commute to work (see Section 1256-8 of these regulations for discussion of commuting problems).

(3) A member of the claimant's family has died and the claimant wishes to attend the funeral or is required to make the final arrangements or otherwise attend to the final affairs of the decedent.

(4) A member of the claimant's family is elderly and unable to care for himself or herself.

(5) The claimant's minor child requires care and supervision and there is no reasonable alternative.

(6) There is a need to preserve family unity.

EXAMPLE 1. A's spouse is an asthmatic. The spouse suddenly becomes ill with a lung infection. The asthma reaches a critical stage. A leaves work to care for the spouse.

A's leaving is with good cause to care for the seriously ill spouse.

COMMENTS. Generally, the claimant's presence must be necessary in order to care for the ill or disabled family member. The claimant may need to personally provide nursing care for the ill or disabled person, or the claimant's presence may be necessary in order to care for minor children belonging to the ill or disabled family member. For example, the claimant's mother may be critically ill, and the claimant's presence is necessary to care for his or her younger brothers and sisters, and/or the normal household duties, such as cooking and cleaning, require the claimant's attention.

If the illness of the family member is such as to make death seem likely to occur, the claimant's presence need not be necessary for purposes of providing care. Rather, good cause exists if the claimant at the time of leaving his or her job knew or reasonably believed that there existed a substantial likelihood that a member of his or her family was in danger of death and that the claimant's presence would provide emotional support and comfort. Under such circumstances, the claimant's presence is necessary and the leaving of work is with good cause.

EXAMPLE 2. B's mother becomes seriously ill with arthritis. A change to a warmer climate is prescribed by the doctor. B is primarily responsible for the mother's care. The change to a warmer climate makes commuting to work impossible or impractical for B. B leaves work.

B's leaving is for good cause to care for B's ill mother who must be relocated.

COMMENTS. In assessing impracticality of commuting under paragraph (2) of subdivision (c), such factors as time, distance, and expense are significant (see Section 1256-8 of these regulations).

An unreasonable delay by the claimant in changing his or her residence after voluntarily leaving work may negate good cause. If an obligation is so compelling as to require the claimant's presence, it is reasonable that the claimant should attend to that obligation as soon as possible. Thus, if the claimant delays unreasonably in changing his or her residence, the inference is that the circumstances were not compelling.

Paragraph (5) of subdivision (c) is concerned with a claimant's eligibility where the claimant has left work because of child care problems.

If the claimant has primary responsibility for the care and management of minor children and no other reasonable alternatives are available for satisfying that obligation, such as securing services of a baby-sitter or day nursery, changing work hours or location, or taking a temporary leave of absence, the claimant's voluntary leaving of work is with good cause, as his or her presence, under such circumstances, is necessary.

A claimant's choice of alternatives may vary depending on the particular facts. A child day-care center may, in many cases, resolve the problem. If exceptional circumstances exist, such as the claimant's child is seriously ill or disabled, the claimant may be acting reasonably in personally caring for the child as described in this Section.

The cost of providing child care services is a factor to consider if a claimant must expend an exceptional amount of money with no increase in wages to compensate for the considerable extra expenses. For example, where the claimant's work schedule is changed so as to require child care at odd hours and additional expense, as well as other accommodations at a substantial cost, such as additional commuting costs, the claimant has voluntarily left work for good cause.

Under paragraph (6) of subdivision (c), a claimant voluntarily leaves work with good cause if there is a need to preserve the family unit. The danger of disintegration of the family unit must be substantial so as to compel the claimant to voluntarily leave his or her work. For example, if the claimant's spouse indicates that the spouse intends to take their children and leave the locality where the claimant is working, thus forcing the claimant to make a choice between the job and the family, the claimant is justified in leaving work to join the spouse and family. The fact that a claimant's spouse's reason for forcing the claimant to make a choice may seem unreasonable is not controlling. Rather, the controlling factor is the actual jeopardy to the continued existence of the claimant's family unit. On the other hand, where the nature of the claimant's job is such that a minor inconvenience to the claimant's family life style is created, but there is no danger that the family unit will be substantially disrupted, the claimant does not have good cause for leaving work. The claimant must act as a reasonable person would in deciding to voluntarily leave his or her work.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsections (c)(1), (c)(2) and (c)(4) and fourth, sixth and twelfth paragraphs of subsection (c)(6) filed 5-12-2011; operative 6-11-2011 (Register 2011, No. 19).

§1256-11. Voluntary Leaving--Good Cause--Domestic Circumstances--Minor.

Note         History



(a) A claimant leaves the most recent work with good cause if, as an unemancipated minor, he or she is compelled by his or her parent to accompany the parent to another locality, making it impossible or impractical for the claimant to continue commuting to his or her place of employment. Sections 1256-1, 1256-2, 1256-3, 1256-8, and 1256-9 of these regulations set forth general principles also applicable under this section, including the definition of “family” and related interpretation of “parent” under Section 1256-9 of these regulations.

(b) A minor is unemancipated if the minor's parents have not expressly or impliedly relinquished their right to control the minor's place of residence. The minor-claimant is compelled to follow his or her parent's orders, including the right of a parent to determine his or her child's place of residence. On the other hand, if a minor is emancipated, the minor-claimant does not have good cause for voluntarily leaving work since he or she is not legally compelled to follow his or her parent's orders. However, “emancipation” of a child by his or her parents can be conditional or absolute, or complete or partial. For example, the minor-claimant may have to fulfill certain conditions, such as obtain a minimum wage-earning job in order to be self-sustaining, before the parents will relinquish complete control over the minor. Or, the minor-claimant may have only some activities typical of adulthood, such as entering and leaving the parental home at will, keeping or spending his or her earnings at will, or managing his or her affairs for the most part, but still be reliant, generally, or his or her parent for overall care and supervision. Thus, where the minor-claimant is only partially or conditionally emancipated, the important issue is whether that minor's parents have relinquished complete control over his or her place of residence. If so, then the minor-claimant who voluntarily leaves work does so without good cause.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-12. Voluntary Leaving--Good Cause--Domestic Circumstances Involving Marriage.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving the most recent work when an individual leaves work due to compelling obligations relating to his or her prospective or existing marital status. Sections 1256-1, 1256-2, 1256-3, and 1256-9 of these regulations set forth general principles also applicable under this section.

(b) Good Cause. A claimant leaves the most recent work with good cause if the claimant has taken reasonable steps to preserve the employment relationship and the claimant left work due to circumstances relating to the claimant's prospective or existing marital status of such a compelling nature as to require the claimant's presence, including any of the following:

(1) The claimant's prospective marriage is imminent and involves a relocation to another area because the claimant's future spouse has established or intends to establish his or her home there, and it is impossible or impractical for the claimant to commute to work from the other area.

(2) The claimant is required to leave his or her work to accompany his or her spouse to, or join his or her spouse at, another location because it is impossible or impractical for the claimant to commute to his or her work from the new location, due to any of the following:

(A) The desire of the claimant and his or her spouse to accomplish a marital reconciliation.

(B) The claimant's spouse is seriously ill and a change of residence is necessary for his or her care or welfare (see Section 1256-10 of these regulations).

(C) The need to preserve family unity (see Section 1256-10 of these regulations).

COMMENTS. This section considers compelling circumstances relating to a claimant's prospective or existing marital status where difficulties of commuting exist because the claimant's spouse or prospective spouse is located in an area substantially removed from the locality where the claimant was employed. Subdivision (b) refers to various situations in which good cause for leaving work exists. The section reflects this state's policy in favor of the establishment and maintenance of the marital relationship. However, leaving work solely to go on a honeymoon is a leaving without good cause.

Regarding the requirement of imminent marriage, there may be additional considerations depending on the facts. If a claimant stops working substantially prior to the marriage, good cause will depend on the nature and extent of the advance preparations such as packing, moving, and transportation necessary, and whether such preparations could have been made without the claimant's leaving work. If the marriage is delayed, good cause is not negated if at the time the claimant stopped working a marriage was imminent, the claimant could not have foreseen a delay, and the delay was beyond the control of the claimant.

Under the second provision of subdivision (b)(1), relocation must be necessary because the claimant's future spouse either could not or would not forego his or her established or intended place of residence. The future spouse's position on residential location is not material since the issue is what reasonable alternatives were available to the claimant. In assessing the impossibility or impracticality of the commute due to relocation, Section 1256-8 of these regulations is applicable.

Subdivision (b)(2) of this section concerns itself with problems of commuting relating to the claimant's existing marital status. The first provision is that a person who leaves his or her work to accomplish a marital reconciliation leaves with good cause. The reason is the state's policy to encourage parties to a marriage to live together and to prevent separation. As a matter of good faith, the claimant and the spouse must intend to reunite and conduct their affairs in such a manner as to reflect that intent. Further, the fact that the claimant and his or her spouse are legally separated or within the interlocutory stage of dissolution proceedings is immaterial since neither situation is a final severance of the marital relationship. Hence, reconciliation is still a possible alternative.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-13. Voluntary Leaving--Good Cause--Equipment.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving the most recent work when an individual's leaving of work is due to the lack of equipment necessary to do the work, or the improper, inadequate, or defective nature of such equipment, or the employer's requirements that the employee furnish certain equipment. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Lack of Equipment. An employee who leaves the most recent work due to the lack of equipment necessary to do the work has voluntarily left with good cause if the following conditions are met:

(1) It is the employer's duty to furnish the equipment.

(2) He or she complained to the employer of the lack of necessary equipment and the employer took no steps to remedy the situation.

(c) Improper, Inadequate, or Defective Equipment. An employee who leaves the most recent work because the employer has furnished improper, inadequate, or defective equipment which causes an undue risk of injury or illness to the employee, or because the employee is subjected to reprimands for improper work due to such equipment, or because the employee's piece-rate remuneration is reduced due to reduced production caused by such equipment, voluntarily leaves with good cause if the employee prior to leaving took reasonable steps to complain to the employer concerning the equipment and the employer took no steps to remedy the situation. As used in this section, “undue risk of injury or illness” means a reasonably foreseeable and substantial probability of incurring any injury or illness which would require hospitalization or the services of a physician for proper medical care, or would cause any degree of permanent disability, and which meets any one of the following conditions:

(1) The risk on the particular job is more hazardous than normal for the occupation or industry.

(2) The risk is more hazardous for the claimant than for other employees in like work due to circumstances peculiar to the claimant.

(3) The claimant establishes that he or she has a reasonable basis to believe that the working conditions would cause a reasonably foreseeable and substantial probability of incurring an injury or illness which would require hospitalization or the services of a physician for proper medical care, or would cause a degree of permanent disability, even though the risk is normal for the occupation or industry, excluding conditions inherent in the nature of the work which the claimant must accept.

EXAMPLE 1. A truck driver had complained repeatedly to the employer that the assigned truck was defective. The employer did not remedy the defects. The truck's emergency brake was disconnected, the foot brake was inadequate, and the battery was so low that the motor would start only by hand cranking. While the employee was cranking the motor, the truck slipped over the rear wheel block and crashed into a nearby building. The employee returned the truck to the employer's terminal, waited two hours for supervision without success, and left the work.

The employee's leaving was with good cause due to dangerously defective equipment which the employer chose to ignore despite the employee's complaints.

COMMENTS. Under this subdivision, mere inconvenience or extra work due to inadequate equipment is not a justification for leaving. For example, a typist leaves without good cause if the leaving of work is due to preference for an electric rather than a manual typewriter. Similarly, a messenger leaves without good cause if the leaving is because a bicycle rather than a motor scooter is furnished to do the work.

(d) Employee Required to Furnish Equipment. An employer's requirement that the employee furnish tools or equipment is reasonable if this is customary in the occupation or industry or is required pursuant to a collective bargaining agreement with a union. If an employer reasonably requires that an employee furnish tools and equipment to do the work, the employee who leaves the work because he or she is unwilling to furnish the tools or equipment has voluntarily left the work without good cause. In many areas the rental of tools or equipment at a reasonable rate from commercial rental facilities is available to an employee as a temporary step to preserve the employment relationship. If an employee is unable for reasons beyond the employee's control to furnish tools or equipment as reasonably required, a leaving of work for these reasons is with good cause under either of the following circumstances:

(1) Prior to leaving, the employee has requested, and the employer has refused, a transfer to other suitable work which is available.

(2) Prior to leaving, the employee has requested the employer who has the necessary tools to furnish these tools on a short-term basis until the requesting employee can obtain his or her own tools and the employer has refused.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-14. Voluntary Leaving--Good Cause--Experience or Training.

Note         History



(a) Scope. This section interprets whether an individual leaves most recent work with or without good cause when the leaving is because the work did not utilize the individual's skills or the individual believes that his or her experience or training is insufficient to do the work or the work did not present an opportunity to acquire the experience or training desired in another job or occupation. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Nonutilization of Skills. An individual who leaves the most recent work because it does not utilize his or her highest work skills has left the work without good cause. However, an individual may be hired to perform work requiring the use of certain skills but instead at the time of first reporting to work is permanently assigned by the employer to other work. If the individual after a brief period of working finds that the skills cannot be utilized in the assigned work, and leaves the work for this reason, the leaving is with good cause.

(c) Insufficient Experience or Training. An individual who leaves the most recent work due to a belief that the individual has insufficient experience or training to do the work does not have a compelling reason for leaving and has left the work without good cause.

(d) Lack of Opportunity for Experience or Training. An individual who leaves the most recent work because it does not offer experience or training in another occupation which the individual desires to enter has left work without good cause. For example, a food server who is studying typing and leaves the work due to a desire to obtain routine office work with some required typing to obtain experience has left work without good cause.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-15. Voluntary Leaving--Good Cause--Health, Safety, or Morals.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving the most recent work when an individual's leaving of work is for reasons related to the individual's health, safety, or morals. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section. For discussion of the claimant's duty to request or accept a leave of absence, rather than leave work, see Section 1256-16 of these regulations.

(b) General. A claimant leaves work with good cause if a reasonable person genuinely desirous of remaining employed would have left work due to an undue risk of injury or illness caused by health reasons, physical impairment, impairment of hearing, speech, or vision, pregnancy, or unsanitary conditions, temperature or ventilation problems, adverse weather or climate conditions, or other working conditions, or for a reasonably foreseeable and substantially probable serious risk to his or her morals, and the claimant has taken reasonable steps under the circumstances to preserve the employment relationship such as seeking sick leave where health factors are involved, or other leave, if available, or a transfer to other available work the claimant can perform (see Section 1256-3 of these regulations). However, a claimant who fraudulently fails to disclose or materially misrepresents his or her health or physical condition at the time of hire negates what would otherwise be good cause for that claimant to leave work due to the health or physical condition if the employer could have lawfully refused to hire the claimant had the condition been disclosed.

A high risk of illness or injury is ordinary and inherent in the nature of the work for some occupations such as a miner, sand hog, or firefighter. A worker in such occupations accepts these inherent high risks. However, if working conditions violate the law or are so intolerable as to adversely affect the health of employees, and the employer is aware of and does not correct the conditions, good cause for leaving work exists. For example, the employer may knowingly violate sanitation standards required by law for the occupation or industry or for women or minors, and in such case the claimant affected who leaves due to poor sanitation leaves with good cause.

Generally, an individual must, prior to leaving work due to an objection to working conditions, use any existing grievance procedure to review a complaint or objection in order to have good cause for leaving work (see Section 1256-21 of these regulations). However, if an individual believes based on reasonable grounds that a substantial and immediate threat of serious injury or illness exists due to a working condition, the individual has good cause to refuse to work and if necessary under the particular circumstances leave the premises or work without using any existing grievance procedure prior to leaving, since immediate protective action is necessary. “Serious injury or illness” means a risk of an injury or illness of sufficient gravity to require immediate emergency medical treatment and pose a danger of probable loss or substantial impairment of a member of the body, or any degree of permanent disability, or death.

(c) Undue Risk. As used in this section, “undue risk of injury or illness” means a reasonably foreseeable and substantial probability of incurring any injury or illness which would require hospitalization or the services of a physician for proper medical care, or would cause any degree of permanent disability, and which meets any one of the following conditions:

(1) The risk on the particular job is more hazardous than normal for the occupation or industry.

(2) The risk is more hazardous for the claimant than for other employees in like work due to circumstances peculiar to the claimant.

(3) The claimant establishes that he or she has a reasonable basis to believe that the working conditions would cause a reasonably foreseeable and substantial probability of incurring an injury or illness which would require hospitalization or the services of a physician for proper medical care, or would cause a degree of permanent disability, even though the risk is normal for the occupation or industry, excluding conditions inherent in the nature of the work which the claimant must accept.

(d) Health or Safety.

(1) General. Mere concern with one's health or safety is not sufficient to justify good cause for leaving work. The work must cause an undue risk of injury or illness to the claimant. A claimant who leaves work due to fear of becoming ill or being injured has good cause if the claimant has a reasonable basis to believe that there is an undue risk of injury or illness. A physician's advice or objective factors showing detriment to health or safety such as a prior adverse medical history are a reasonable basis for a claimant's belief. A reasonable basis for a claimant's belief that there is an undue risk of injury or illness can be established due to objective factors such as heavy lifting, constant standing, or chemical fumes, if consideration of the claimant's age, height, strength and physical condition, prior medical history, work experience and the job duties disclose a reasonable basis for the claimant's belief in detriment to his or her health or safety even through a physician's advice is not sought. Minor chronic health conditions that are not aggravated or significantly affected by the work do not justify leaving the work. A desire to rest is not a basis for good cause to leave work, unless a physician's advice is involved. On the other hand, a claimant who leaves work because he or she has a contagious illness leaves with good cause if no sick leave is available.

(2) Drugs. A claimant addicted to alcohol or other drugs has good cause to leave work if he or she has competent professional advice that entry into a treatment facility or program is necessary and cannot be accomplished unless work ceases, or that the work is a factor in the addiction or poses an undue risk of injury or illness related to the addiction. “Competent professional advice” includes a statement from a physician, psychiatrist, counselor, director, or administrator of a drug or alcohol treatment facility or program. Due to the nature of alcohol and drug addiction, good cause to leave work is not negated by an addicted claimant's failure to request a leave of absence or sick leave. The claimant may not be sufficiently rational, or may fear effect on the job or future employment, at the time of leaving, and a leave request could be detrimental to the claimant. A claimant who has previously had leave for these same reasons from the employer, however, has no good cause for not requesting leave.

(3) Pregnancy. If a claimant's leaving work is voluntary due to pregnancy, the leaving is with good cause if pregnancy rendered the claimant unable to continue work. This is usually established by a physician's advice but is also present if a claimant has a history of miscarriages or difficult pregnancies, or if there is a threat to the health or safety of the fetus, or if objective factors exist such as heavy lifting or other strenuous tasks which are required in the work. Some pregnant women are able to do other light work and, if such light work is available, such a claimant must request a transfer to light work or her leaving work due to pregnancy will be without good cause (see also Section 1256-16 of these regulations). A claimant's leaving work due to pregnancy is voluntary if the employer has no requirement that pregnant women leave work at a specific time, or if the claimant requests and is granted leave by the employer, or if the claimant leaves prior to a time set by an employer's policy. If the claimant leaves due to an employer rule requiring pregnant women to leave work, or to accept leave of absence due to pregnancy required by employer rule, the leaving is involuntary and not disqualifying under Section 1256 of the code.

(e) Morals. If a claimant reasonably believes that continued work will cause a reasonably foreseeable and substantially probable serious risk to his or her morals, the claimant's leaving of work for this reason is with good cause. There is a reasonably foreseeable and substantially probable serious risk to morals if the claimant is required to engage in immoral, dishonest, illegal, or unethical acts, or discriminate against minorities, or is subjected to improper advances from co-workers or the employer. Prior to leaving, the claimant must have objected to the employer or taken other reasonable steps to preserve the job. (Under circumstances specified by Section 1256.2 of the code, a claimant need not object prior to leaving where discrimination exists; see Section 1256.2-1 of these regulations.) For example, a salesperson who unsuccessfully objects to the employer's requirement that false and misleading sales pitches be used and thus leaves the work has good cause for leaving. Similarly, a cannery inspector who unsuccessfully objects to the employer's insistence that the inspector approve products known to be below standards set by law and thus leaves the work has good cause for leaving.

EXAMPLE 1. A, a sailor, while on a voyage had a severe cold and pleurisy pains. A informed the purser but was not given medicine or aid. At the next port, A left the ship, purchased medicines, and went to bed for six days. A had a similar prior experience. A had been on several continuous voyages with the ship.

A's leaving was with good cause, since A was ill and though A's failure to see a physician may have been poor judgment, work would have been an undue risk to A's health.

EXAMPLE 2. B worked full time as a bank teller from 8:30 a.m. to 5 p.m. B also worked part time for another employer as an intermediate file clerk 25 hours a week, Monday through Friday, from 5:30 p.m. to 10:30 p.m. B left the part-time job because the long hours of both jobs were too much of a strain.

B's leaving was with good cause since the part-time job was an undue risk to health under the circumstances, and the purpose was to remain fully employed. (This example applies only to employer ruling situations.)

EXAMPLE 3. C had worked many years for a paper box manufacturing company. The employer ordered C and other employees to work in an adjacent building which was unheated with a cement floor, and cold enough to numb feet and hands. C and the other employees refused. The employer then told C and the other employees that the next day all should wear warm clothing because they would be expected to work in the unheated building. Even though C did not have warm clothing on that day, the employer ordered C to immediately work in the building. C refused and left work. Shortly thereafter the employer was ordered by State officials to provide heat in the building in question before assigning workers in the area.

C's leaving was with good cause, since the employer's failure to provide heat and reasonable temperature for work was an undue risk to C's health and intolerable.

EXAMPLE 4. D had a controlled tuberculosis condition, and had previously suffered a perforated ulcer. D complained to the employer of air-conditioning drafts at work, and moved about to try to escape the drafts. The employer took no action. D suffered a cold for two days in each of two weeks, and D's ulcer began to trouble D. D left the work due to the air-conditioning problems, and the next day consulted a physician, who prescribed two weeks' rest.

D's leaving was with good cause, since there was an undue risk to D's health. D sought corrective action unsuccessfully and D's good faith is further established by the prompt consultation of a physician.

EXAMPLE 5. E had a job in Pomona, California, and lived in Montclair. E read books and articles about smog in the area. E's opinion was that E and the family members had suffered occasional eye irritation and possible respiratory irritation, but neither E nor any member of the family had consulted a doctor. E requested a transfer to another area but no transfer was available. E left the work due to the smog and moved to Portland, Oregon.

E's leaving was without good cause, since there was no medical advice of an immediate problem, and E took no steps to secure another job before leaving based on E's own opinions. Smog, in and of itself, is not an undue risk and is not good cause to leave work.

EXAMPLE 6. F had worked for a firm in a large office in which several other co-workers smoked. The employer had not established any separate nonsmoking areas and had placed no restrictions on smoking at work, although several employees did not smoke and had previously requested some limitations or protection from smoking. F developed sensitivity to tobacco smoke for which F had consulted a doctor. F requested that the employer make an adjustment by limiting or restricting smoking in the work area, or to transfer F to other work. The employer declined the request. F suffered nausea, dizziness, and general chronic irritation from the tobacco smoke in the surrounding work area. F left the work for this reason.

F's leaving was with good cause due to the undue risk to F's health caused by tobacco smoke in the work area.

EXAMPLE 7. G was a truck driver. G had repeatedly complained to the employer about defective emergency and foot brakes, but the employer took no action. Finally, in addition to defective brakes, the truck's battery became so low G had to crank the truck which rolled backwards and crashed into a nearby building. G left the work due to the defective truck.

G's leaving was with good cause due to the undue risk as to safety.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 418-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-16. Voluntary Leaving--Good Cause--Leave of Absence.

Note         History



(a) Scope. This section deals with the effect that a leave of absence has under Section 1256 of the code. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section. Whether an individual is disqualified for benefits because he or she has voluntarily left his or her most recent work to take time off from work depends upon whether the purpose of the absence was for good cause. Sections 1256-4 through 1256-23 of these regulations discuss what circumstances are good cause.

(b) Leave of Absence--Existence and Effect. A true leave of absence does not exist if an employee merely leaves for a fixed period of time with an understanding that he or she will be rehired at the end of that period only if work is available. In such a case if no work is available when the period expires the employment has been terminated when the employee first left and the employee has voluntarily left work at the commencement of the period.

A true leave of absence exists if the employer and the employee mutually agree that the employee will return to his or her work after a period of absence and that the employment relationship is not terminated although the performance of services is suspended for the period of the absence from work. A leaving of work occurs at the commencement of a true leave of absence. If the true leave of absence is not mandatory but is requested by the employee, or if the employee refuses a mandatory leave and files a claim after the reason for the mandatory leave has ended, then the employee has left work voluntarily. Whether the employee has left for good cause is determined by the purpose or reason for which the employee takes or refuses the true leave of absence. If an employee has good cause for leaving but either fails to request a leave of absence or refuses to take one which is available or offered, the good cause may be nullified. Although a true leave of absence preserves the employment relationship, there is a termination of the employment relationship if the claimant during the leave demonstrates an intent not to return to work by resigning, securing another job, or registering for work.

If during or at the expiration of a true leave of absence the employer replaces, lays off, or discharges an employee, or if the employer fails to return the employee to his or her work at the expiration of the leave and thus lays off the employee, there is a layoff or discharge at the time of such action.

If a true leave of absence is mandatory due to an employer policy or pursuant to a collective bargaining agreement and the employee resigns or files a claim before the reason for the mandatory leave has ended, the employer is the moving party and the employee has left his or her work involuntarily and is not subject to disqualification under Section 1256 of the code.

(c) Employee's Refusal of Leave. An employee who may have good cause to leave work temporarily but who refuses a true leave of absence offered by his or her employer has voluntarily left work without good cause.

EXAMPLE 1. The employer required that A leave work because of her pregnancy. The employer offered A a leave of absence which, if accepted, would have extended for three months after the birth of the child. A refused the leave because she felt she would be too busy after the birth of the child. Subsequent to the birth of the child, A filed a claim for benefits.

When A refused the leave of absence she voluntarily left her work for reasons that were not good cause.

(d) Employee's Failure to Request Leave. Good cause for leaving work is nullified if the employee fails to request a leave of absence and the following conditions exist:

(1) The employer has an established leave of absence policy which the employee knew or should have known.

(2) The employer would probably have granted the leave.

(3) An effort by the employee to maintain the employment relationship would have been reasonable under the circumstances.

(4) The leave of absence would have preserved the employment relationship.

EXAMPLE 2. B was required to have surgery. B's employer had no provision for any leave of absence. B quit without asking for a leave, underwent surgery and, upon recovery, filed a claim for benefits.

Since B had good cause for leaving, the employer had no leave policy, and it was clear that a request for a leave would have been futile, B's failure to request a leave did not nullify B's good cause due to health problems for leaving work.

EXAMPLE 3. C had child care problems which required C to leave work temporarily. Although C was aware of the employer's leave policy, C did not request a leave because C did not believe it would be granted, and C's employer had indicated a leave would probably have not been granted.

Since it was improbable that C would have been granted a leave, C's failure to request a leave did not nullify C's good cause due to child care problems for leaving work.

EXAMPLE 4. D had been granted a two months' leave of absence for reasons of health. The collective bargaining agreement provided sick leaves could be extended for a maximum of two years. D was still ill after the two months and it was unknown when D's health would improve. D and the employer mutually agreed an extension of the leave would be useless and D resigned.

Since D had acted reasonably in obtaining a leave for two months, and no useful purpose would be served by an indefinite extension, D's good cause due to health reasons for leaving work was not nullified.

EXAMPLE 5. E left work because E had child care problems. E did not request a leave of absence because E stated E thought leaves were granted only for personal illness. However, E's employer had previously granted E two separate leaves because of E's child care problems.

Since E knew the employer's leave policy and had taken leave in the past, E's voluntary leaving is without good cause due to E's unreasonable failure to request a leave which nullifies E's good cause for leaving.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (b) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-17. Voluntary Leaving--Good Cause--Pensions and Retirement.

Note         History



(a) Scope. This section relates to whether good cause exists for leaving the most recent work when an individual's leaving of work is due to retirement. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Mandatory Retirement. An individual who leaves work due to mandatory retirement provisions does so involuntarily and no issue arises of disqualification for voluntarily leaving the most recent work without good cause. Compulsory retirement of an individual is involuntary and does not raise an issue under Section 1256 of the code regardless of whether the retirement is required under collective bargaining agreement provisions or a policy or practice of an employer in the absence of such an agreement.

COMMENTS: In general, mandatory retirement is no longer allowed, with certain exceptions (see Sections 20980 and 20980.5, Government Code, and 29 United States Code 623, 631).

(c) Optional Early Retirement. General Rule. An individual who exercises an option for early retirement prior to compulsory retirement ordinarily leaves the most recent work without good cause in the absence of other factors. If an employer offers employees who elect to retire prior to compulsory retirement age an increased pension or other monetary inducement, the individual who elects optional early retirement does not have good cause to leave work solely due to such monetary inducements. An early retirement by a worker under any pension system due to a desire to work under and establish pension rights in another pension system is a leaving of work without good cause in the absence of other factors. However, if additional factors influence an individual's decision to retire early, there may be good cause for leaving the work under the circumstances set forth in subdivision (d) of this section.

If an individual who has retired and draws social security benefits returns to work in a job which the individual leaves voluntarily because the earnings from the job will exceed the earnings limitation under the social security law and affect social security retirement benefits, the leaving of work is without good cause.

(d) Other Factors. An individual whose decision to elect early retirement is substantially motivated by a factor other than monetary inducements may have good cause for leaving the work if a reasonable person genuinely desirous of retaining employment would have retired under the circumstances which motivate that individual to retire. Other factors which may motivate early retirement include, but are not limited to, the following:

(1) The individual's age.

(2) The individual's health (see Section 1256-15 of these regulations).

(3) Whether the individual's job will be abolished, and if so, the date the job will be abolished.

(4) The length of time between the retirement and the date of mandatory retirement or the abolition of the job, if applicable.

(5) The individual's wage at the time of early retirement (see Section 1256-22 of these regulations).

(6) The extent and degree of encouragement of early retirement given an individual by his or her supervisory personnel.

(7) Whether a transfer to other employment was offered by the employer

(8) Whether a leave of absence was available to the individual, and if so, whether the leave would meet the individual's needs (see Section 1256-16 of these regulations).

(9) If the employment is federal employment, consideration is given to the findings of the federal agency. The fact that the individual leaves federal work due to a desire to work in private employment to establish wages for the purpose of federal social security benefits is not, taken alone, good cause for leaving work.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Change without regulatory effect amending COMMENTS paragraph filed 3-30-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).

§1256-18. Voluntary Leaving--Good Cause--Personal Affairs.

Note         History



(a) Scope. This section relates to voluntary leaving of the most recent work due to personal affairs concerning financial difficulties, legal and business affairs, rest or vacation, return to a former home, or self-advancement or self-employment. An exhaustive listing of all types of personal affairs which may cause an individual to leave work is not feasible. However, the principles stated apply to the conduct of personal affairs generally. In addition, other regulations also deal with personal affairs, such as Sections 1256-9 to 1256-12 of these regulations on leaving due to domestic circumstances. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Financial Difficulties. An individual who leaves work due to financial difficulties has left work without good cause unless there are compelling circumstances to establish that a reasonable person genuinely desirous of retaining employment would have left the work.

EXAMPLE 1. A left the work because A was being harassed by creditors and did not wish to work and turn over A's pay to the creditors.

A's leaving of work due to financial difficulties was without good cause since avoiding payment of debts is not a compelling circumstance.

EXAMPLE 2. B had an infectious skin disease and needed funds for medical care. B could obtain money due B under the employer's annuity plan only be resigning. B resigned and received the money for medical care.

B's leaving was with good cause due to the compelling need for funds for medical treatment B could obtain in no other way.

(c) Legal and Business Affairs. An individual who leaves work to attend to legal or business affairs has left work without good cause unless there are compelling circumstances requiring the individual's personal attention and the affairs cannot be handled by obtaining a leave of absence.

EXAMPLE 3. C, a cook, was scheduled to work on a ship for an extended trip. While on shore leave prior to the trip, C was served with subpoena in a divorce proceeding. The proceeding could not be continued. It would substantially affect C's property rights. C informed the ship's captain, and left the ship to appear in the proceeding.

C's leaving was with good cause since C's appearance was necessary for protection against substantial threat to C's property rights, and C could appear only if C left the work. Neither the court proceeding nor the ship's sailing could be delayed.

(d) Rest or Vacation. An individual who leaves work due to a desire to rest or take a vacation has left work without good cause unless the leaving is reasonably necessary for the protection of the individual's health and a leave of absence or transfer to other work was requested but denied or would not have been granted by the employer. (For provisions as to leaving due to health or physical condition, see Section 1256-15 of these regulations.)

(e) Return to Former Home. An individual who leaves work due to a desire to return to a former home has left work without good cause unless there are compelling circumstances to establish that a reasonable person genuinely desirous of retaining employment would have left the work.

EXAMPLE 4. D's wife desired to leave California and return to her former home in Pennsylvania. She told D that she would go and take the children whether D came or not. D objected but chose to give up his California job and return with his family to the former family home in Pennsylvania.

D's leaving was with good cause under compelling circumstances to preserve family unity and his marriage.

(f) Self-advancement or Self-employment. An individual who leaves work to look for other work and has no definite offer of or prospects of other work has left work without good cause unless the individual leaves part-time work which makes it impossible to look for full-time work so that the individual can look for full-time work under circumstances where reasonable prospects of other work exist. An individual who leaves work to enter self-employment ordinarily has left work without good cause but leaves work with good cause if the leaving is from temporary work or short-term work to end in the near future and the self-employment provides reasonable assurance that a livelihood will be obtained for a reasonable period of time. (For provisions as to an individual who leaves work and has prospects of other work, see Section 1256-19 of these regulations.)

EXAMPLE 5. E who was an employee in a boat works had an opportunity to engage in self-employed crop dusting two weeks before E would be laid off at the boat works. E left the boat works and engaged in the crop dusting activity for several months.

E's leaving of short-term work was with good cause to engage in promising self-employment when confronted with imminent loss of E's job.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-19. Voluntary Leaving--Good Cause--Prospects of Other Work.

Note         History



(a) Scope. This section relates to whether good cause for leaving the most recent work exists when an individual leaves work to seek other work or to accept other work. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Seek Other Work. An individual who leaves work to seek other work does not have good cause for leaving the work unless the individual leaves part-time work to seek full-time work because the part-time work prevents an effective search for full-time work.

(c) Accept Other Work. An individual who leaves work to accept other work has good cause for leaving the work if there was a definite assurance of employment in another substantially better job which is at least as permanent as the job the individual leaves, or if other circumstances establish that a reasonable person genuinely desirous of retaining employment would have left work to accept the other work.

(1) Definite New Job. Since an individual is expected to take every reasonable step to preserve continuous employment, good cause for leaving a job for another job requires a definite assurance of a starting date on the new job. A hope or speculative expectation of obtaining a new job is not sufficient to establish good cause for leaving work. However, good cause is not negated by leaving the prior job a few days early to move closer to the new job or otherwise prepare for the new job, including a reasonable rest period if the individual has not recently had a vacation.

EXAMPLE 1. A, a bookkeeper, left the job the day before A's definite starting day on a new permanent job for which A had been hired at a substantial pay increase. A was to replace a retiring employee on the new job. On A's starting date for the new job, A was unable to begin work because the employer notified A that the employee scheduled to retire had delayed the retirement. The delay in retirement continued for several weeks.

A's leaving was with good cause because A had a definite promise and commitment to a new job with a definite starting day but the job failed to materialize through the new employer's failure to provide the new job.

EXAMPLE 2. B left the job on the day B was told by B's new employer of a definite starting date a week later. The new job was a permanent job closer to B's residence and was offered at a substantial pay increase. B had not had a recent vacation. B used the one-week interval between jobs to rest and take a vacation.

B's leaving was with good cause for a substantially better job and the one-week vacation interval between jobs was reasonable and did not negate good cause.

(2) Permanence of Jobs. Leaving permanent full-time work to take temporary work generally is without good cause. However, it may be with good cause if an individual has accumulated substantial rights in customary seasonal work and leaves a nonseasonal permanent job to return upon recall to the normal seasonal job to preserve the substantial rights acquired. Leaving temporary work to accept permanent work is generally with good cause even if the permanent work pays the same or even less than the temporary work. Similarly, leaving part-time work to accept full-time permanent employment is with good cause, but leaving full-time work to accept part-time work is without good cause unless the individual has compelling reasons such as protection of health for taking part-time work (see Section 1256-15 of these regulations for provisions as to leaving due to health).

A claimant who leaves a job due to obtaining a new job by false representations of his or her capability to do the work and is discharged from the new job for lack of such capability has left the first job without good cause.

(3) Comparison of Jobs. In determining whether a new job is substantially better than the prior job, all factors which influence an individual's decision to leave the prior job for the new job are considered. These include relative pay, opportunities for advancement, skills required, seniority rights, working conditions, and the location and the permanency of the jobs.

Comparing pay and other factors of the old and new jobs to determine if the new job is substantially better than the old job cannot be reduced to definite standards or a prescribed formula. However, if other factors are equal, a pay increase in the new job of more than 10% is usually substantial. Pay includes the basic wage, shift differentials, board and room furnished by the employer, and guaranteed overtime. Pay also includes fringe benefits such as vacation pay and insurance if such fringe benefits are currently available or set schedules and information to value the fringe benefits for both jobs is available. Speculative fringe benefits whose receipt is dependent on contingencies, such as pension, vacation and sick leave, are given less weight in pay comparison to the extent that their values and the probability of future realization are uncertain.

In some cases the retention of skills used on a new job but not on the old job may justify leaving the old job even if the pay is not substantially better on the new job. For example, a stenographer might leave a clerk-typist job to take a stenographic job, with good cause, even if no pay increase were involved, due to the importance of preserving stenographic skills to maintain ability for employment at the higher skill.

EXAMPLE 3. C, an operating engineer, worked varying shifts on any day of the workweek and the job was about 25 miles from C's home. C left work for a permanent job of regular 8-hour shifts on only five days a week, located four miles from C's home at a 5% pay increase.

C's leaving was with good cause since the new job was substantially better because it was permanent regular shift work located closer to C's home, although the pay was not substantially better.

EXAMPLE 4. D, a sales representative, left one job for another at more than a 20% base pay increase and a car allowance more than 40% better than the old job. The new job offered no immediate pension plan whereas the old job had a pension plan. Considering the pension plan and other pay and fringe benefits the new job was substantially more valuable than the old.

D's leaving was with good cause for a new job with substantially better pay and fringe benefit rights. However, the pension benefit was of little weight since the future realization of pension was speculative and uncertain.

EXAMPLE 5. E was told by the employer that the employer's operations were to be moved in the near future. The new location would involve a trip from E's residence excessive in both cost and distance. E sought work with another employer by whom E had previously been employed, and obtained an offer of work. E left the work to take E's new job.

E's leaving was with good cause to take the new job since E would have had compelling reasons to leave the old job when the transfer to the new plant occurred, and loss of E's old job was imminent.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (c) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-20. Voluntary Leaving--Good Cause--Time.

Note         History



(a) Scope. This section relates to whether good cause for leaving the most recent work exists when an individual's leaving of work is due to various time elements which may cause the individual to leave a job, including days of the week, hours, overtime, part-time or full-time work, seasonal employment, and temporary employment. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Good Cause. An individual has voluntarily left the most recent work with good cause if all of the following conditions exist:

(1) There was a real, substantial, and compelling reason for leaving work due to those conditions of work that relate to the elements of time considered in this section.

(2) The individual informed the employer of the reason for leaving.

(3) The individual allowed the employer a reasonable opportunity to adjust the situation.

(c) Elements of Time. An individual who leaves the most recent work due to objections based on an element of time leaves with good cause only if the conditions of subdivision (b) of this section exist and if the leaving is due to any of the following:

(1) Days of the Week. The employer has an unreasonable requirement that an employee work on a particular day, holiday, or number of days in a week.

COMMENTS. Paragraph (1) of subdivision (c) refers to a course of conduct on the part of the employer that is unreasonable. An employer's requirement that an employee work on a particular day, holiday, or number of days in a week is reasonable if it is necessary for the conduct of the employer's business and is not unusual, arbitrary, or imposed for the purposes of harassment of the employee. However, satisfaction of the reasonable requirement test by the employer does not disqualify an individual for leaving work without good cause. If the individual meets all of the conditions set forth in subdivision (b), he or she has voluntarily left work with good cause.

EXAMPLE 1. Change in Days of Work. A works in a bakery six days a week from Monday through Saturday. A has maintained this schedule for two years. Representatives from A's union and the employer negotiate an agreement requiring the employer to change the shifts of the workers from six days a week to five days and week. As a result of this change A is required to work on Sundays as part of A's five-day shift. A is no longer able to obtain adequate child care services for A's three young children. A objects to this new work schedule and seeks to modify it by discussing the basis for the objection with the employer. Since the employer does not accommodate A's request, A leaves work.

A's leaving was with good cause since adequate child care service is a compelling reason for voluntarily leaving work if no reasonable alternative is possible (see Section 1256-10 of these regulations).

(2) Hours. The individual leaves work because of an objection to split shifts, a work schedule that lacks uniformity as to beginning and ending times, or to the number of hours worked each day, week or month.

COMMENTS. Paragraph (2) of subdivision (c) refers to an employee's dissatisfaction over the hours of work, whether they involve split shifts, hours that he or she considers either too long or too short, or the total number of hours worked each day, week, or month. It also refers to an employee's dissatisfaction with the hours to the point that it serves as a basis for an employee to leave work. If the individual meets all of the conditions set forth in subdivision (b), he or she has voluntarily left work with good cause. However, mere preference, inconvenience, or slight hardship as a result of a claimant's objection to or insistence upon the hours of work is not a compelling reason for leaving work.

EXAMPLE 2. Split Shifts. B is employed as a service station attendant on a split shift basis and works 7:00 a.m. to 11:00 a.m. and 4:00 p.m. to 8:30 p.m., Monday through Friday. The distance from home to work is 30 miles, which requires a 45-minute commute. Although B attempted to rest between shifts, the employer does not permit resting on the premises. Since there is no other place where B could reasonably have been expected to rest, B voluntarily left work.

B's leaving is with good cause because the requirement that the employee be away from home for 15 hours a day is a compelling reason for voluntarily leaving work.

(3) Overtime, Part-time, or Full-time Employment, Seasonal Employment Shift, and Temporary Employment. The individual leaves work because of an objection to or insistence upon working overtime, part-time or full-time, seasonally, a specific shift, or temporarily.

COMMENTS. Paragraph (3) of subdivision (c) applies to an individual who voluntarily leaves work either because of an insistence upon working certain periods of time or because of an objection to working certain time periods and who bases his or her leaving work on that restriction or objection. An individual has left work with good cause only if all of the conditions in subdivision (b) have been met. In those instances of employment that are less than full-time jobs, such as temporary work, or part-time work, an individual has a compelling reason for leaving work if he or she is prevented from seeking other work while working less than full time. Usually an individual working part time has ample opportunity to seek additional work. However, if an undue hardship is created or if other reasons exist that meet all of the conditions set forth in subdivision (b), then the individual has voluntarily left work with good cause (see Sections 1256-1 to 1256-23, inclusive of these regulations for other compelling reasons for leaving work).

EXAMPLE 3. Part-time Employment Restriction. Over the years C had been employed as a sugar beet thinner for several different labor contractors and farmers and had developed a back injury as a result of that work. On the advice of C's physician, C secured work as an irrigator for two days a week for 10 hours each day. However, due to changes in the weather, the employer needed additional help to irrigate the fields. The employer needed three irrigators, who could work full-time on a rotating shift to cover the full 24-hour period per day, 7 days a week. The employer was pleased with C's work, and offered C additional hours. C informed the employer that working additional hours would aggravate C's back injury, but that C still wanted to maintain C's part-time hours of employment even if C had to work a different shift. Since this plan was not suitable to the nature of the employer's labor needs, the employer denied C's request. C left the employment.

C's leaving is with good cause for health reasons.

EXAMPLE 4. Part-time Employment Restriction. D was employed as a practical nurse in a rest home and worked there on a part-time basis. D's hours were increased and for about a year D generally worked full time, approximately forty hours each week. Subsequently, D's hours were reduced to two days per week, eight hours each day, at the same rate of pay. D objected to this new schedule and offered to work vacation relief. Since this plan was not suitable to the employer, the employer denied D's offer. D left the employment.

D's leaving is without good cause since D could look for full-time work and there was no undue hardship.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (c)(2) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-21. Voluntary Leaving--Good Cause--Union Relations.

Note         History



(a) Scope. This section relates to whether good cause for leaving the most recent work exists when an individual's leaving of work is caused by occurrences relating to union status, union rules, union activities, or other circumstances relating to union relations. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Objections to Union.

(1) An individual's refusal to join or retain membership in or pay an agency service fee to a bona fide labor organization which has a collective bargaining agreement with the employer which provides that union membership or fee payment is a condition of hire or continued employment, or an individual's personal objection to all unions, some specific unions, union officials, or union practices and policies, is not good cause for voluntarily leaving work unless based on a bona fide conscientious objection. (For discussion of conscientious objection as a basis for leaving work, see Section 1256-6 of these regulations.)

(2) The result is different if a worker does not have to join a union or pay a union fee. If union membership or payment of a union agency service fee is not a condition of hire or continued employment under a collective bargaining agreement, an individual's refusal to join or to retain membership in a bona fide labor organization or pay the fee is not good cause for voluntarily leaving work unless the individual's refusal is based on a bona fide conscientious objection or the individual is threatened with and has a reasonable fear of, or is subjected to, physical injury to force him or her to join or to remain a member of a union.

(c) Union Rule. An individual who voluntarily leaves work as required by a union rule to which an employer has not agreed voluntarily leaves work without good cause.

EXAMPLE 1. X and Y, members of the Sailors Union of the Pacific, sailed under a Class B permit. A union rule required Class B permit men to leave ship after 90 days. X left ship after 90 days at the request of union representatives. Y left ship after 90 days on Y's own initiative due to the union rule. The employer had not agreed to the union rule.

X and Y left work without good cause since they could have remained on ship except for the union rule to which the employer was not a party.

(d) Union Disciplinary Action. An individual who leaves work because of union disciplinary action taken against the individual due to an infraction of a union rule or other offense against union discipline has voluntarily left work without good cause if the action of the union is not arbitrary or capricious and if the individual has an opportunity to protest the union charge through any customary union procedure.

(e) Grievance Procedure. Except as provided by Section 1256.2 of the code, and except as provided by Section 1256-15 of these regulations with respect to a serious injury or illness, an individual who leaves work due to any complaint or objection to working conditions, but has not used an existing grievance procedure to review the complaint or objection, or has filed a grievance but left work prior to disposition of the grievance, has voluntarily left work without good cause unless a grievance has been filed and there is an unreasonable delay in the disposition of the grievance.

COMMENTS. Under Section 1256.2 of the code, an individual leaves work with good cause if he or she leaves because his or her employer intentionally deprived him or her of equal employment opportunities because of race, color, religious creed, sex, national origin, ancestry, or physical handicap. However, this provision does not apply if the deprivation is based upon a bona fide occupational qualification or applicable federal or state security regulations, or if the employer's action is unintentional. If the deprivation by the employer is unintentional, the employee must make reasonable efforts to provide the employer an opportunity to remove the unintentional deprivation of equal employment opportunities (see Section 1256.2-1 of these regulations).

(f) Collective Bargaining Agreement. Except as provided by Section 1256.2 of the code, and except as provided by subdivision (e) of this section, if an individual leaves work due to an employe's violation of a provision of a collective bargaining agreement, the individual's leaving is with good cause if a reasonable person genuinely desirous of retaining employment would have left work under the same circumstances because of undue hardship or other real, substantial, and compelling reasons (see subdivision (i)(1) of this section for the effect of an employer's violation of collective bargaining agreement provisions on wages and hours of work). An individual who leaves work as required by a collective bargaining agreement provision, to which the employer has agreed, leaves work involuntarily in accordance with the agreement and is not subject to disqualification under Section 1256 of the code for voluntarily leaving work without good cause. If an arbitrator or court has held in a final decision that an employer has violated a substantial provision of the collective bargaining agreement and thereafter the employer persists in the same violation, an individual's leaving of work for this reason is for good cause if the violation is of such nature as to cause a reasonable person genuinely desirous of retaining employment to leave work.

(g) Employer Discrimination Due to Union Relations. If an individual leaves work because the employer has engaged in harassment, discrimination, or coercion against the individual to compel him or her to resign from or not to join a bona fide labor organization, or because of authorized union activity, the individual's leaving of work is with good cause, except as provided by subdivision (e) of this section. If an individual leaves work because the employer requires, as a condition of continuing employment, that the individual join or retain membership in a company union dominated by the employer, the leaving is with good cause.

(h) Union Intimidation of Employee.

(1) In the absence of a trade dispute with the employer, if the individual is directly threatened with and has a reasonable fear of, or is subjected to, physical injury by union members unless the individual conforms to union practices or demands not contained in a collective bargaining agreement, the individual's voluntary leaving of the work due to the threat of, or subjection to, physical injury is with good cause. An example is direct threats by union members to physically assault an individual who produces more than a maximum work quota enforced by a union.

(2) If an individual who is not a union member has been working but is prevented from reporting for work and voluntarily resigns from the work because in a trade dispute the union has established picket lines which the individual refuses to cross because he or she is directly threatened with and has a reasonable fear of or is subjected to, physical injury by the union members, the individual has voluntarily left work with good cause.

(i) Wages and Hours of Work.

(1) Collective Bargaining Agreement. If an individual voluntarily leaves work because the employer changes wages or hours of work in violation of the terms of a collective bargaining agreement, the individual leaves with good cause if prior to leaving the individual has used any existing grievance procedure or complaint remedy, or has filed a grievance or complaint and the employer's violation continues after an unreasonable delay in the disposition of the grievance or complaint, and either of the following conditions exists:

(A) The wages paid are substantially less than those specified in the collective bargaining agreement, or the hours of work are substantially changed from those specified in the collective bargaining agreement.

(B) The wages paid or hours of work differ from those specified in the collective bargaining agreement and the individual is subject to union disciplinary action if he or she continues to work under conditions in violation of the collective bargaining agreement.

COMMENTS. Occasional requests by the employer that a worker work a few minutes overtime ordinarily would not be substantial breach of the collective bargaining agreement. A minor difference in wages would justify a complaint by the worker with the Labor Commissioner but would not justify leaving work with good cause unless the worker is subject to union disciplinary action if the individual continues working. Wages and hours of work may have been negotiated at conditions more favorable than those prevailing for similar work in the locality. Thus, the employer's changed wages or hours of work in violation of the collective bargaining agreement might be equal to or more favorable than the prevailing conditions but still be a substantial change to justify leaving work for good cause. Wages and hours of work changed by the employer in violation of the collective bargaining agreement to be substantially less favorable than those prevailing for similar work in the locality would always be a substantial change to justify leaving work for good cause. In every instance, the individual must take steps to preserve the job, including use of complaint and grievance procedures, prior to leaving work. A failure to do so results in a leaving without good cause.

(2) No Collective Bargaining Agreement. If an individual voluntarily leaves work because the employer changes wages or hours of work to conditions not conforming to union rules, and the employer has no collective bargaining agreement with the union, the individual has left work without good cause unless any of the reasons specified by subdivision (b) of Section 1256-22 of these regulations exists.

(j) Trade Dispute. During a trade dispute the employer-employee relationship is suspended but not terminated. Thus, issues may arise under the trade dispute disqualification provided by Section 1262 of the code. No issue arises under the voluntary leaving without good cause provisions of Section 1256 of the code unless there is an unequivocal severance of the employment relationship during the trade dispute. Section 1256-1 of these regulations interprets the circumstances under which this severance does or does not occur. When a trade dispute ends, an employee's failure to return to work is a voluntary leaving of work raising an issue under Section 1256 of the code (see the regulation applicable to the particular facts in the series interpreting “good cause” for voluntary leaving, Sections 1256-4 to 1256-23, to determine whether there is “good cause” for the leaving).

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-22. Voluntary Leaving--Good Cause--Wages.

Note         History



(a) Scope. This section relates to whether good cause for leaving the most recent work exists when an individual leaves work due to dissatisfaction with wages. Section 1256-21 of these regulations governs if a collective bargaining agreement exists. For provisions as to an individual who leaves work to seek other work or to accept other work, see Section 1256-19 of these regulations. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

(b) Good Cause. An individual who leaves work due to dissatisfaction with some aspect of wages has left work with good cause if the leaving of work is for any one or any combination of the following reasons:

(1) The wages paid by the employer are less than the minimum wages required by federal or state law and the employer refuses to pay such minimum wages.

(2) The individual has no reasonable assurance of payment of wages when due, or the employer repeatedly does not pay wages when due, or the employer willfully refuses to pay wages when due.

(3) The individual is notified of a transfer or demotion to another position with the employer at a substantial reduction in pay, or under any conditions which render the other position not “suitable employment” under Section 1258, 1258.5, or 1259 of the code. For example, an individual leaves work for good cause, pursuant to Section 1259 of the code, if the leaving is due to the fact that an individual after diligently working on a piece-rate or commission basis for a reasonable time is paid substantially less than the wages prevailing for similar work in the locality.

(4)The employer substantially breaches the agreement with an employee as to the agreed rate of pay. (For breach of other conditions of hire, see Sections 1256-21 and 1256-23 of these regulations.)

(5) The employer makes substantial misrepresentations to the employee as to the duties, hours, working conditions, or wages for the job.

COMMENTS. Under paragraph (3) of subdivision (b), if factors other than a pay reduction influence an individual's decision to leave the work, all such factors are evaluated to determine whether a reasonable person genuinely desirous of retaining employment would have left the work. Additional factors may include skills required and the possible loss of skills in the other position, opportunities for advancement and increase in pay, seniority and recall rights affected, working conditions, hours of work, location of the position and the effect on the distance and cost of commuting, any additional expenses due to the other position, time worked in the prior job and relative permanency of the new position, the individual's prospects for obtaining other employment at a wage commensurate with prior earnings, and the individual's awareness of the labor market and the effect upon employment prospects, among others.

However, a pay decrease of 20% or more, taken alone, is a substantial reduction in pay to establish good cause for leaving work where the employee is notified of a transfer or demotion to another position with the employer. Pay includes the basic wage, shift differentials, board and room furnished by the employer, and guaranteed overtime. Pay also includes fringe benefits such as vacation pay and insurance if such fringe benefits are currently available or set schedules and information to value the fringe benefits for the former and other position are available.

Speculative fringe benefits whose receipt is dependent on contingencies, such as pension, vacation and sick leave, are given less weight to the extent that their values and the probability of future realization are uncertain. Incentive pay would not be compared unless it is prevailing practice in the industry. Moreover, regardless of pay, in some cases the loss of skills in another position may justify leaving the work; for example, a stenographer might refuse a downgrade to a clerk-typist position due to the importance of preserving stenographic skills to maintain ability for employment at the higher skill.

(c) No Good Cause. An individual who leaves work due to dissatisfaction with some aspect of wages has left work without good cause if the leaving of work is for any one or any combination of the following reasons:

(1) The individual knew the wages at the time of hire but later leaves work because such wages are not commensurate with his or her experience, or are less than wages paid in prior employment, or are less than prevailing wages paid for similar work in the locality.

(2) The work has incidental expenses and the employer has no duty to provide for such incidental expenses, such as special clothing, tools, or gasoline, and (A) it is customary that the individual worker pays the incidental expenses; or (B) it is not customary that the individual worker pays the incidental expenses but such expenses are minor or are compensated by bonus, premium wages, or other remuneration paid by the employer.

(3) The employer demands reasonable periodic deductions from the individual's wages for cash shortages, or breakage or loss of equipment caused by the individual's culpable negligence or willful dishonesty.

(4) The individual's request for a wage increase was denied by the employer, if the wages paid were not substantially less than the prevailing rate for similar work in the locality and the employer's refusal was not a breach of the contract of hire or an act of discrimination. However, if the employer's act is discriminatory, such as a denial of like wages to the individual for like work performed by other employees of like seniority, the individual's leaving of work for such discrimination is with good cause.

(5) The employer refuses to make an advance on wages, except that good cause exists if advances are required by the employer's rules and the individual meets the requirements of such rules.

(6) The individual leaves work because it is compensated on a commission or piece-rate basis but the compensation is not substantially less than the prevailing wage for a reasonable time for similar work in the locality and the method of compensation is customary in the industry or occupation, or the individual fails to work for a reasonable time in order to determine the level of compensation. If the prevailing wage cannot be determined, the individual who leaves work because it is compensated on a commission or piece-rate basis has left without good cause unless his or her commissions or other remuneration are substantially less than prior earnings and the reduction is not due to any fault of the individual such as lack of effort or failure to follow the employer's instructions.

COMMENTS. Subdivisions (b) and (c) of this section do not attempt to cover every possible type of situation in which wages issues may arise. If a new type of situation not treated in this section arises, the general principles of Sections 1256-1, 1256-2, and 1256-3 of these regulations would apply.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-23. Voluntary Leaving--Good Cause--Working Conditions.

Note         History



(a) Scope. This section relates to whether good cause for leaving the most recent work exists when an individual leaves work due to various aspects of working conditions. Sections 1256-1, 1256-2, and 1256-3 of these regulations set forth general principles also applicable under this section.

The “working conditions” discussed in this section include duties or requirements of the work, employer rules for the work, the method, manner, quality, or quantity of work, relations with other employees, and work transfer situations. Other working conditions situations are discussed in separate regulations (see Section 1256-14 concerning opportunity for advancement; Section 1256-15 concerning health, safety, or morals; Section 1256-20 concerning days, hours, and shifts of work; Section 1256-21 concerning union relations, including violation of collective bargaining agreements; Section 1256-22 concerning wages issues; and Section 1256.2-1 concerning discrimination by employers).

(b) General Principles. An individual who leaves work due to mere personal dislike, distaste, or minor inconvenience caused by working conditions leaves without good cause. If the working conditions are so unsatisfactory as to be intolerable to a reasonable person genuinely desirous of retaining employment and prior to leaving work the individual has taken steps to preserve the job as provided under Section 1256-3 of these regulations, there is good cause for leaving the work. An individual who has good cause to leave work for intolerable working conditions is not required to seek an adjustment from the employer prior to leaving work if the employer is unable to remedy the working condition or has previously refused the individual's request for adjustment, or the individual knows that the employer has refused the requests of other employees for an adjustment of the same working condition.

EXAMPLE 1. The employer repeatedly criticized A in a sarcastic manner in front of customers and other employees, despite A's objections. The criticism was for A's errors in the work, for errors not attributable to A, and for matters unrelated to the work. The criticism was so severe that A on several occasions had to leave the work station in tears. A left the work due to the repeated criticism.

A's leaving was with good cause due to abusive, hostile, and intolerable treatment.

EXAMPLE 2. B was a painter and hand decorator. B was placed at work near kilns where the heat was intense, then was moved to a location with improper lighting. Plaster and water dropped into B's paint and on B. On numerous occasions, B complained to the employer of these conditions. The employer took no action. The conditions continued, and B began to have headaches.

B's leaving was with good cause under intolerable working conditions.

EXAMPLE 3. C was a statistician. C left the work because C objected to the employer's general policies and to the rote character of the work.

C's leaving was without good cause since it was due merely to personal distaste and unreasonable.

EXAMPLE 4. D, a retail salesclerk, was required to work a shift from 4:30 p.m. to 1 a.m. and report to work again at 7 a.m. without a break of at least 8 hours, in violation of state law. D did not complain and did not seek a transfer to another shift or work arrangement. D left due to these working conditions.

Although D's leaving would have been with good cause had D complained and sought adjustment of shifts, D's failure to complain negated good cause and the leaving was without good cause, since D's duty to preserve the job had not been performed.

(c) Duties or Requirements of Work. An individual may leave work because the employer's work requirements violate the agreement of hire, impose duties beyond those of the employee's occupation, or reassign work to or from another employee or make changes in the distribution of workload among employees. The leaving of work is without good cause unless the employer's requirements cause undue hardship to or discriminate against the individual worker, or are unreasonable under the circumstances. The employer's requirements are unreasonable under any of the following circumstances:

(1) The claimant is required to perform duties beyond his or her physical ability or skills.

(2) The duties required impose an undue risk of injury or illness upon the claimant (see Section 1256-15 of these regulations).

(3) The required duties would be demeaning to the claimant in view of the occupation and status of the claimant.

(4) The employer's requirements are intended to abuse or harass the claimant.

(5) The primary duties assigned to the claimant entitle the claimant to a higher wage but the employer pays a lower wage level (see Section 1256-22 of these regulations concerning wages).

(6) The primary duties assigned to the claimant are for work on a substantially lower skill and status level than the claimant's usual work.

(7) The claimant reasonably objects to the employer's requirements on moral grounds (see Section 1256-15 of these regulations concerning leaving work on moral grounds).

(8) The employer's requirements will substantially increase the claimant's workload.

(9) The primary duties assigned to the claimant could cause a loss of proficiency in the skills of the claimant's usual occupation.

EXAMPLE 5. E worked as a parking attendant in a storage garage. Initially, E checked automobiles in and out of the garage, and collected fees from customers. Due to a shortage of help, the employer required E to begin parking automobiles. E made no complaint to the employer or E's union, although E was dissatisfied. After several months of work under these conditions, E left due to the requirement that E park cars and because E considered this a violation of the agreement of hire with the employer.

E's leaving was without good cause since the employer's action was reasonable and E made no complaint or effort to seek adjustment.

EXAMPLE 6. F was over 50 years old and worked in a warehouse. F originally had a workload of lifting and stacking not over 300 cases weighing 65 to 80 pounds over a 10-day period. The employer increased this to 1,000 cases in a 10-ay period. F requested aid, but the employer refused. F left the work because F believed F's health was threatened and there was an undue risk.

F's leaving was with good cause in view of the undue risk.

EXAMPLE 7. G requested a transfer to another department or a salary increase, when a new supervisor took over and assigned minor additional duties to G on a temporary basis. The employer refused the transfer and salary increase. G would have continued the work had the salary increase been granted. G left the work when G's requests were refused.

G's leaving was without good cause, since the additional duties were temporary and minor, and the employer's requirements were not unreasonable.

EXAMPLE 8. Situation 1. H, a doctor's receptionist, left work because H was required to wash windows daily.

Situation 2. I, a cook's helper, left work because I was required to wash kitchen windows daily.

H's leaving was with good cause since washing windows is demeaning for the occupation of receptionist. I's leaving was without good cause since washing kitchen windows is not demeaning for the occupation of cook's helper and is not a substantial departure from the usual work.

(d) Employer Rule. If a claimant leaves work because he or she objects to an employer's rule which applies to all or a group of employees, the leaving is without good cause unless the employer enforces the rule only against and harasses the claimant who suffers significant inconvenience, or enforcement of the rule would create undue hardship for the claimant, or the rule is unreasonable. An employer rule is unreasonable under any of the following circumstances:

(1) Compliance with the rule is impossible for the claimant due to reasons such as physical limitations which are peculiar to him or her and, if the reasons are not apparent, are made known to the employer or the employer's representative.

(2) A new and unreasonable burden would be imposed on the claimant.

(3) The rule is not designed to protect or preserve the employer's business interests.

(4) The claimant reasonably and in good faith believes compliance with the rule would result in a violation of the law, objects or makes a reasonable effort to object to the employer, and the employer makes no reasonable effort to explain the basis for the rule to the employee. Whether compliance with the rule would be a violation of the law is not determinative.

(5) The claimant reasonably believes compliance with the rule would cause an undue risk of injury or illness (see Section 1256-15 of these regulations).

EXAMPLE 9. J agreed when hired to submit to a polygraph test requested of all employees by the employer in the event of cash shortages or thefts from the employer. One year later the employer had cash shortages and required that J submit to the polygraph test as a condition of continued employment. J left the work as a result.

J's leaving was with good cause since J is entitled to the presumption of innocence and the rule is unreasonable even though agreed to by J. Note: For nongovernmental employers, demanding or requiring a polygraph test as a condition of employment or continued employment is prohibited by Section 432.2, Labor Code.

EXAMPLE 10. K, a retail clerk, submitted some incorrect prior employment experience information at the time of hire. On several occasions after hire, K was required to submit further prior employment experience information in accordance with employer procedures for all employees. K left work in anger when a further request for such information was made by the employer.

K's leaving was without good cause since the employer is entitled to insist on accurate prior employment experience information and mere anger is not sufficient to justify leaving the work. There was no harassment and no abuse.

(e) Method, Manner, Quality, or Quantity of Work. A claimant who leaves work due to an objection to the method or manner of work performance or to the quality or quantity of the work required or to materials used in the work leaves without good cause unless one or more of the following circumstances is present:

(1) The employer uses a method or manner of work which is not customary and thus reduces or will reduce the claimant's earning power.

(2) The methods and quality of work are inferior and will adversely affect the reputation and integrity of workmanship which is an essential customary feature of the claimant's usual occupation.

(3) The claimant will suffer a potential loss of skills due to a low quantity of work.

(4) The employer substantially increases the quantity of work required without increasing wages (see Section 1256-22 of these regulations for discussion of wages issues).

(5) There is an undue risk of injury or illness or a serious risk to morals (see Example 6 above, and see Section 1256-15 of these regulations for discussion of situations involving health, safety, or morals). 

EXAMPLE 11. L is paid on a piecework basis for packing crates of produce. The prevailing custom is to deliver crates on a gravity belt. The employer does not use a gravity belt, although prevailing wages per crate are offered. This reduces L's earning power. L complains to the employer, who refuses to supply a gravity belt delivery system. For this reason, L leaves the work.

L's leaving is with good cause since L's earnings power is adversely affected by the employer's failure to use customary work methods.

EXAMPLE 12. M is a highly skilled carpenter with a reputation for integrity of work. M's employer issues instructions for production of clearly inferior products. The work would have been identified with M and M's reputation damaged. M objects; the employer insists on the instructions. M leaves the work due to the threat to M's reputation.

M's leaving is with good cause since M's reputation is essential in M's highly skilled occupation and it is threatened by the employer's ordered work methods.

(f) Relations With Other Employees. A claimant who leaves work due to mere annoyance with or general dislike to another employee or his or her supervisor leaves without good cause. A claimant leaves with good cause if he or she leaves work due to a course of conduct by another employee or his or her supervisor which subjects the claimant to continued abuse, endangers the claimant's health or safety by such conduct as actual or threatened violence or acts affecting the claimant's mental well-being, causes demands for an unreasonable quantity of work to be produced by the claimant, or unreasonably discriminates against the claimant.

EXAMPLE 13. N, a new employee, believed that another employee was not doing a fair share of filing work. N's workload was not increased by any shirking of the other employee. N's request for transfer to other work was denied. N left the work due to the other employee's low production.

N's leaving was without good cause since no increased workload was imposed on N and the shirking of another employee was the problem of the employer without significant effect on N.

EXAMPLE 14. O was an automobile messenger required to use O's own automobile in the work. O had advised the employer of prior breakdowns but did not tell the employer about a broken spring because O was “tired” of doing so. O's supervisor reprimanded O for failure to report the problem. O thereupon left the work.

O's leaving was without good cause since the supervisor was reasonable and did not engage in a course of conduct amounting to hostility or harassment or abuse. O had no good reason for failure to report the broken spring.

EXAMPLE 15. P had worked as a senior investment analyst for 18 years. P's new supervisor was 15 years younger. P believed the supervisor refused to recognize P's experience, and P did not report details of the work to the supervisor, as required. The supervisor tried to discuss improvements in relationships with P, but P was unreceptive. P left the work on the following day due to the relationship with the supervisor.

P's leaving was without good cause, since the supervisor was not abusive or hostile but in fact was trying to improve the situation in good faith. Mere resentment and a “generation gap” do not establish good cause to leave work.

EXAMPLE 16. Q, a bookkeeper, objected to her supervisor about repeated offensive rubbing and touching of her body. The supervisor became extremely critical of Q's work, yelling and cursing at Q, and asked personal questions about Q's relationship with her boyfriend. The supervisor became angry over Q's misunderstanding of work instructions, shoved Q, and shouted that Q was stupid and ignorant. Q left the work due to these occurrences.

Q's leaving was with good cause due to the pattern of abusive conduct and intolerable treatment by the supervisor.

(g) Transfer.

(1) A claimant who either resigns or elects to be laid off or discharged rather than accept a transfer to other work has voluntarily left the work. If the transfer is to reasonably related work at a reasonably comparable rate of pay, the leaving of work is without good cause.

(2) A leaving of work rather than accept a transfer to other work is with good cause under any of the following conditions:

(A) The transfer is to work unrelated to the last work and also unrelated to any work within the claimant's prior training, experience or qualifications.

(B) The transfer is to work which would cause the claimant to lose proficiency in his or her highest skill, except that there is no good cause for leaving work if the transfer is a return to work previously performed where the claimant's work in a new position has been unsatisfactory.

(C) The transfer would cause the claimant to suffer a substantial wage reduction (see Section 1256-22 of these regulations for interpretation of wages issues, including what is a “substantial” reduction).

(D) The transfer is to work which the claimant cannot perform due to his or her health, safety, or morals factors (see Section 1256-15 of these regulations for discussion of leaving due to health, safety, or morals factors).

(3) A claimant who leaves work because a requested transfer is refused by the employer leaves work without good cause if the leaving is for noncompelling personal reasons, such as personal convenience, prestige, or self-advancement. The claimant's leaving of work because a requested transfer is not made by the employer is with good cause if either of the following conditions exists:

(A) The employer's refusal or failure to make the requested transfer is the result of a misrepresentation of the claimant's work or due to discrimination by the employer against the claimant.

(B) The claimant has requested the transfer for compelling reasons such as his or her health, morals, or safety factors (see Section 1256-15 of these regulations for discussion of leaving due to health, morals, or safety factors).

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-30. Discharge for Misconduct--General Principles.

Note         History



(a) Scope. This section relates to general principles for discharge for misconduct connected with the most recent work. Sections 1256-31 to 1256-43, inclusive, of these regulations, relate to specific reasons for discharge for misconduct. An individual who accepts future work but engages in conduct which causes the employer to prevent or prevents commencement of this work, has not been discharged for misconduct but the issue is raised of whether the individual has refused suitable work without good cause and is disqualified under subdivision (b) of Section 1257 of the code. See Sections 1256-1 and 1256-2 of these regulations for interpretations of voluntary leaving, as distinguished from discharge, and of most recent work.

(b) Elements of Misconduct. Misconduct connected with his or her most recent work exists for an individual's discharge if all of the following elements are present:

(1) The claimant owes a material duty to the employer under the contract of employment.

(2) There is a substantial breach of that duty.

(3) The breach is a willful or wanton disregard of that duty.

(4) The breach disregards the employer's interests and injures or tends to injure the employer's interests.

(c) Causal Connection. To constitute a discharge for misconduct, there must be a causal relationship between the individual's act or acts of misconduct and the discharge. Condonation results when the employer does not with reasonable promptness exercise the right to discharge an employee who has engaged or participated in an act or acts of misconduct. However, delays imposed upon the employer's prompt discharge action by collective bargaining procedures or other circumstances beyond the employer's control do not result in condonation.

(d) Other Acts or Omissions. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances or good faith errors in judgment or discretion are not misconduct, except that in cases of ordinary negligence, misconduct may be found where the claimant has been previously warned or reprimanded for prior similar acts of ordinary negligence and has the ability and capacity to perform satisfactorily. Prior warnings or reprimands, however, do not convert to misconduct an employee's failure to perform satisfactorily due to inability or incapacity. A claimant's participation in illegal or criminal actions while away from the place of employment usually is not connected with the work and is not misconduct.

(e) Discharge--Right of Employer. Misconduct is not established merely because an employer has and exercises a right to discharge an employee.

COMMENT. Subdivision (a) refers to the distinction between a discharge for reasons constituting misconduct and a failure to accept suitable work because of acts of misconduct. On the one hand, the employee is already working and is discharged for engaging in an act or acts which are misconduct under Section 1256 of the code. On the other hand, the misconduct occurs before the claimant has started working for an employer. In the latter case, the claimant is disqualified under subdivision (b) of Section 1257 of the code, while in the former, the disqualification is based on Section 1256 of the code.

EXAMPLE 1. A received a referral from a private employment agency. After an interview, A was told to report for work the following day. Before reporting for work, A had “a few drinks.” Upon reporting for work, A was told by the foreman that there was no work because A had been drinking.

A has not been discharged, but instead has refused an offer of work. The issue is whether A is disqualified for refusing an offer of suitable work without good cause, not whether A has been discharged for work-connected misconduct.

Paragraph (1) of subdivision (b) requires that a claimant oe a duty to the employer under the contract of employment. Thus, an individual subject to the misconduct provisions, must have violated an express or implied agreement of employment with his or her employer. The violation must either injure or tend to injure the employer's legitimate business interests, or both.

The claimant's misconduct must be connected with the claimant's work. This includes not only acts of misconduct which occur during normal working hours at the place of employment, but also includes conduct off the job which injures or tends to injure the employer's interests (see Section 1256-33 of these regulations).

EXAMPLE 2. B, a pharmacist, was arrested in B's home and charged with illegal possession of narcotics. Upon return to work, B was suspended and ultimately discharged after being convicted of the charge.

B's discharge is for misconduct as the conduct injures the interests of, and violates the material duty owed to, the employer even though B's activities took place away from the job.

Paragraph (2) of subdivision (b) requires that there be a substantial breach of the material duty owed to the employer. This requires an analysis to determine the severity of the employee's actions. Where the ordinary negligence of the claimant has resulted in the minimal injury to the employer's interests, the breach is not substantial unless the claimant has been previously warned or reprimanded about this type of negligence and has the ability and capacity to perform satisfactorily. Thus, a janitor who negligently fails to empty a wastebasket or dust a desk and is discharged is not disqualified for misconduct unless there had been previous warnings or reprimands for this type of conduct and the janitor has the ability and capacity to perform satisfactorily.

On the other hand, where the employer's interests have been more severely damaged by the grossly or substantially negligent or deliberate acts of the claimant, misconduct may be found even without previous warnings or reprimands for prior similar acts. Typically, such acts usually involve gross negligence or an element of willfulness and are more serious than cases of ordinary negligence. Employees having responsibility for large sums of money or valuable property, or employees whose actions directly affect the safety of themselves or others, are held to a stricter standard of conduct.

EXAMPLE 3. C, a taxi driver, fell asleep while transporting passengers and became involved in an accident with another car. C admitted that prior to the accident, C had not obtained customary sleep and felt tired and that the car heater was on and the windows closed. C asserted that C had not felt tired enough to fall asleep and had no idea that C might fall asleep. C produced no medical explanation of a physical ailment which would cause any sudden sleepiness. The employer discharged C.

C's discharge was for misconduct. Since a motor vehicle is recognized as a dangerous instrumentality, C had a high degree of responsibility to the employer, to the drivers of other automobiles, and to the taxicab passengers who had to rely upon C for safe passage. It is well known that falling asleep is a common cause of automobile accidents. C, as the driver of the taxicab, had an added responsibility in taking proper precautions for C's safe handling of the vehicle. C's failure to take such precautions manifests a high degree of carelessness if not a deliberate disregard of the standards of behavior which the employer had the right to expect of C. C did not deliberately fall asleep but did willfully continue to drive the cab even though C felt tired and was fully aware of what could happen if C were to fall asleep at the wheel.

EXAMPLE 4. D, a registered nurse, changes the dosage of medication administered to a patient without first consulting with a prescribing physician or anyone else with authority to give permission. The employer discharged D.

D's discharge is for misconduct since D was acting negligently in a particularly responsible position.

EXAMPLE 5. E, a normally efficient clerk, fails to file correspondence properly, causing difficulty within the office. E was discharged.

E's discharge is not for misconduct since the incident is an isolated instance of negligence without prior warning.

Paragraph (3) of subdivision (b) requires that the breach be a willful or wanton disregard of the duty owed by the claimant to the employer under the contract of employment. This does not mean that the claimant must deliberately perform the act of misconduct to injure the employer's interests. It means that the claimant knew or should have known that the actions were not in line with the standards of behavior expected as an employee of the employer. Thus, misconduct generally does not exist if the claimant has been merely inefficient, has failed to perform well due to inability or incapacity, or has been inadvertent or ordinarily negligent in isolated instances or good faith errors of judgment or discretion. This is because the element of willfulness is not present. However, this element of willfulness may be found despite acts of ordinary negligence if the claimant has been previously warned or reprimanded for prior similar acts and has the ability and capacity to perform satisfactorily.

Examples of unsatisfactory conduct which usually are not misconduct in the absence of prior warnings or reprimands are isolated instances of tardiness or absence, annoying other employees such as horseplay or joking or excessive conversation or talking at work, or the violation of any minor and less significant rule or standard of behavior.

EXAMPLE 6. F, a pasteurizer at a creamery, failed to pasteurize milk on occasions at proper temperature. F held milk in vats an excessive time, resulting in milk with an undesirable flavor. In one instance, the improper pasteurization caused the spoilage of about three hundred gallons of milk, and a considerable financial loss to the employer. The employer discharged F. Prior to the discharge, F and supervisor had discussed the quality of work. Although F was of the opinion that the work had improved after those discussions, the supervisor believed that F had failed to improve sufficiently to warrant retention of F's services.

F's discharge is not for misconduct since the facts disclose no more than inefficiency or unsatisfactory performance. F did not willfully or intentionally disregard the employer's interests. The occurrences forming the basis for the discharge were not deliberate violations of the standard of good behavior which the employer had the right to expect of F.

A claimant will often be discharged for actions deliberately committed. If an employee deliberately embarks upon a course of action which the employee knew, or reasonably should have known, is substantially injurious to the employer's interests, the employee demonstrates a willful or wanton disregard of the employer's interests. Accordingly, in such cases the determination usually will be that the claimant was discharged for misconduct, even in the absence of prior warnings or reprimands. On the other hand, if the injury to the employer's interests is trivial and inconsequential, and not substantial, such action standing alone, will not usually amount to misconduct, even though deliberate.

Paragraph (4) of subdivision (b) requires that the claimant's actions injure or tend to injure the employer's interests. Acts which tend to injure the employer's interests are acts on the claimant's part that could possibly cause financial loss, or loss of business, property, or customers, and damage incurred such as disruption of production, of normal lines of communication, or control, or discipline. The employer does not have to actually suffer any financial loss or a loss of control or discipline or a slow-down in production by the claimant's actions. It is sufficient if the claimant's actions logically and reasonably injure or tend to injure the employer's interests. This potential injury to the employer's interests may exist even if the claimant's acts are committed away from work. 

EXAMPLE 7. G, a pharmacist, is arrested in G's home and charged with illegal possession of narcotics. Upon return to work, G was suspended and ultimately discharged after being convicted of the charge.

G's discharge is for misconduct even though the act was committed at home and away from the job. G's illegal possession of narcotics was an offense so closely related to G's occupation with the employer as to destroy G's suitability for employment as a pharmacist. The fact that the employer was not tangibly or financially injured by G's arrest and conviction is not relevant in view of the potential injury.

Subdivision (c) states the requirement that there be a causal relationship between the individual's act or acts of misconduct and the subsequent discharge. The discharge must be for misconduct in order for the claimant to be disqualified under Section 1256 of the code. If a substantial motivating factor for the discharge is not an act of misconduct, the discharge is not for misconduct. Additionally, even though the claimant has engaged in acts which are misconduct under this section, condonation may be inferred if the employer does not reasonably promptly initiate procedures to exercise the right to discharge the claimant.

Several situations pose a problem as to condonation. One is where the claimant has engaged in an act of misconduct but is not promptly discharged by the employer. Subsequently, the claimant is discharged for another reason. Unless this other reason amounts to misconduct as defined under this section, the discharge is not for misconduct.

EXAMPLE 8. H, a bookkeeper, embezzled $250 from the employer to keep H's son from going to jail. The employer discovered the embezzlement but in view of the circumstances decided to give H another chance if H agreed to repay the money in weekly payments. Two weeks later the employer concluded that the probability was high that H would again embezzle due to the need for money for the son, and discharged H.

H's discharge is not for misconduct since the direct cause was the employer's conclusion that H would embezzle again. The indirect cause was the prior embezzlement. The fact that H's discharge had an indirect connection with the prior embezzlement does not mean the discharge was for .embezzlement. The direct cause was not an act of misconduct committed by H.

Another situation under subdivision (c) arises when the employer condones an act of misconduct and does not promptly exercise the right to discharge the employee. Later, in a change of mind, the employer discharges the employee for the prior misconduct. Once the prior misconduct has been condoned, it can no longer be the direct cause of discharge. The most frequent act of condonation occurs when the employer fails to promptly discharge an employee.

EXAMPLE 9. J fought with a co-worker while on the employer's premises. This created a strained relationship between the two workers and continued until J's discharge a year later. About nine months after the encounter J attempted to resign but was dissuaded by the employer. A few months later, while J was on vacation, two co-workers, including the one with whom J had previously fought, demanded that J be discharged or accept their resignations. The employer told J not to return to work.

J's discharge is not for misconduct since the basic cause was not the altercation with the co-worker, but rather the ultimatum of the two co-workers. The one-year delay resulted in condonation in view of the employer's reluctance to accept J's previous resignation attempt.

EXAMPLE 10. K was absent from work and failed to give notice to the employer. A month later, K was allegedly drinking during working hours, which led to difficulties with other employees. About a month after the alleged drinking incident, the employer discharged K.

K's discharge is not for misconduct. While there was justification to discharge K for the unreported absence or for the alleged drinking on the job, the discharge was not related to these acts of misconduct. The employer's three-week delay implied condonation of the two known acts of misconduct and there was no causal connection between the acts and the discharge.

The two preceding examples illustrate the need for the employer to make a prompt decision on whether to retain an employee who engages in an act of misconduct. Any delay of longer than a few days implies that the alleged act of misconduct was not the direct cause of discharge. However, it is possible for an employer to initiate procedures promptly to discharge an employee after the misconduct but have the actual termination delayed for reasons beyond the employer's control. This may occur when the collective bargaining agreement requires an employer to follow certain procedures before discharging an employee for cause. Also, the actual discharge date may be delayed due to the necessity of locating a replacement.

EXAMPLE 11. L, a guard, left L's security post early and had another guard punch L's time card out at the regular quitting time. The employer questioned L, but told L to return to work and did not dismiss L. The employer requested a guard from a plant protection service. However, the service could not obtain the needed personnel to fill the order for 13 days. When the service became available, the employer discharged L and told L that the reason was the previous misconduct.

L is disqualified even though the discharge came 13 days after the misconduct. This delay did not amount to condonation since the employer immediately after the incident took steps to interview L and the others involved and initiated arrangements to replace L and did so as soon as the arrangements could be completed.

In another situation a claimant may be discharged for misconduct based upon a prior pattern of misconduct for which warnings or reprimands were given even though the last act of the claimant may not be misconduct by itself (see also Section 1256-36 of these regulations relating to insubordination).

EXAMPLE 12. M repeatedly overstayed M's lunch hours and coffee breaks and was repeatedly warned. M was given one final warning about this activity. M was shown a diagram of the way the employer wanted books displayed for sale. M refused to follow the instructions and was discharged. The employer cited M's record of overstaying rest periods and M's refusal to display books as instructed as the reasons for the discharge.

M's discharge is for misconduct. While the act which finally culminated in the discharge was different from the previous misconduct, M's long record of overstaying rest periods, for which prior warnings were given, indicated that the discharge was for misconduct.

Subdivision (d) states a negative definition of misconduct. A claimant's mere inefficiency, unsatisfactory conduct, a failure to perform well as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances, or good faith errors in judgment are not misconduct because the basic elements of the positive definition of misconduct are not fulfilled.

EXAMPLE 13. N had a single heated exchange with the employer in which N shouted an offensive and obscene remark after being threatened with a future discharge. N was discharged.

N's discharge is not for misconduct. The conduct was a simple mistake or an error in judgment. This is not a substantial breach of the duty owed to the employer's interests.

The last sentence of subdivision (d) states that a claimant's participation in alleged or criminal actions while away from the place of employment usually is not connected with the work and is not misconduct. However, Section 1256.1 of the code may be applicable; see Section 1256.1-1 of these regulations.

EXAMPLE 14. (See also Example 2 above.) O was discharged from O's job as a janitor at a military base after being arrested and convicted of drunk driving while off duty.

O's discharge is not for misconduct because O was off duty and the acts did not tend to substantially injure the employer's interests.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1257, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (e) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-31. Discharge for Misconduct--Absence from Work.

Note         History



(a) Scope. This section relates to discharges for misconduct due to absence from work. Section 1256-30 of these regulations set forth general principles also applicable under this section.

(b) Excused Absences. If an employer has given an employee prior approval for an absence from work, or grants approval when notified by the employee of an absence, a discharge of that employee for that absence from work is not for misconduct unless unusual circumstances are presented.

Employer rules or collective bargaining agreement terms may provide procedures governing requests for extension of a leave of absence. Reasonable steps to substantially comply with such procedures is a duty of the employee, and a discharge for failure to so comply is for misconduct.

An employee who has been granted an indefinite leave of absence for a specific purpose which is accomplished and who thereafter engages in other unauthorized activities for the balance of his or her absence without notice to the employer, may be discharged for this reason. This employee is discharged for misconduct unless there are compelling reasons for the continued absence and the failure to give notice.

If an employee deliberately gives false reasons to the employer to obtain a leave of absence from work and the employee knew or should have known that the leave of absence would not have been approved by the employer had the true reasons for the absence been known, a discharge of the employee for dishonesty in these circumstances is for misconduct.

(c) Unexcused Absences. Except for an isolated instance of a short period of unexcused absence for the first time due to an employee's good faith error in judgment, and except as provided in subdivision (d) of this section, an employee who is discharged by the employer due to the employee's absence from work without prior approval of the employer is discharged for misconduct if any of the following conditions exists:

(1) The employee did not have a real, substantial, and compelling reason for, and continuing during the period of, the absence from work of such nature that a reasonable person genuinely desirous of retaining employment would have been absent from work, and the employer has not condoned the employee's absence by failing to warn or reprimand the employee if prior similar unexcused absences from work have occurred.

(2) The employee has not, personally if reasonably possible or by a reliable agent and with reasonable promptness under the circumstances, notified the employer of the employee's absence from work and the reasons for the absence, where notice to the employer is reasonably feasible, and there is no real, substantial, and compelling reason to excuse the failure to give such notice.

COMMENTS. An employee who is absent from work without prior approval of the employer under circumstances which reasonably justify an inference that the employee intends never to return to work has voluntarily left his or her work, even if the employer later purports to discharge the employee (see Sections 1256-1 to 1256-23, inclusive, of these regulations for interpretations as to whether particular reasons for voluntarily leaving work are good cause for the leaving).

In determining whether a discharge is for misconduct where an unexcused absence is involved, the primary elements are whether the absence was due to compelling reasons, and whether the employee notified the employer in order to protect his or her job or, if not, had compelling reasons for the failure to give notice. A first-time short period of absence generally is not misconduct warranting discharge, unless aggravated by facts imposing an unusual duty in a particular case. Compelling reasons for absence combined with adequate and prompt notice to the employer mean that any discharge based on the absence is not for misconduct. Compelling reasons for absence but an inexcusable failure to give notice to the employer mean that a discharge for the failure to give notice is for misconduct, even though the absence itself is justified by the compelling reasons. Noncompelling reasons for absence justify discharge for misconduct even if prompt notice to the employer is given, unless condoned by lack of prior warnings or reprimands as discussed below.

If compelling reasons for an employee's absence from work exist, as interpreted under subdivision (c) above, prior warnings or reprimands by the employer do not negate the compelling reasons. Prior warnings or reprimands are pertinent, however, if the employee does not have compelling reasons. In that case, since the lack of prior warnings or reprimands by the employer condones a pattern of unexcused absences, the employee's lack of willfulness in violating any duty to the employer is apparent; there is no misconduct. On the other hand, an employer's prior warnings or reprimands for unexcused absences due to noncompelling reasons followed by a repeated similar absence justifies a discharge for misconduct even if the employee notifies the employer of his or her unwarranted absence for noncompelling reasons. Prior notice does not convert noncompelling reasons to compelling reasons, and the employer has not condoned unexcused absences.

A compelling reason for an unexcused absence may also justify failure to give notice to the employer. For example, a death of a member of the employee's family, as defined by Section 1256-9 of these regulations, excuses the absence and also excuses failure to give notice, and there is no misconduct to warrant a discharge.

The employee's obligation to give notice to the employer of the reasons for an unexcused absence include the duty to give continuing notice and the probable date of return to work. For example, an ill employee should tell the employer when the employee expects to recover and return to work, or advise that the employee can return to work only when released by a doctor if such is the case and promptly inform the employer of any change in the circumstances as to return to work.

(d) Incarceration.

(1) A voluntary leaving without good cause exists, and not a discharge, where an individual's employment is terminated due to his or her absence from work for a period in excess of 24 hours because of incarceration and the individual is convicted of the offense or any lesser offense or pleads guilty or nolo contendere. In the following three situations where incarceration and absence from work are involved, however, an individual terminated from his or her work for such absence from work is discharged:

(A) Incarceration for 24 hours or less, including such incarceration where an individual in a narcotics or drug abuse case is diverted to a program of education, treatment, or rehabilitation pursuant to Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code.

(B) Incarceration following conviction for any period in lieu of a fine which the individual is unable to pay due to indigency.

(C) A verdict of not guilty of the offense or any lesser included offense for which the individual was incarcerated.

(2) If any of the circumstances proposed in subparagraphs (A) to (C) of paragraph (1) of this subdivision exists, any failure by the individual to give notice to the employer of absence from work, as required by paragraph (2) of subdivision (c) of this section, is ordinarily excusable since the dominant motivation of an incarcerated person is to obtain release from incarceration as soon as possible.

COMMENTS. The basis for disqualification under Section 1256 of the code requires a distinction between voluntary leaving of work and a discharge. An individual who voluntarily commits and is convicted of a crime for which a fine is imposed but who is indigent and unable to pay the fine and is thereupon incarcerated in essence loses his or her job when discharged for absence due to incarceration because of indigency and not due to the voluntary criminal act. The act is voluntary, but the failure to pay is involuntary. But for the individual's involuntary indigency, there would have been no incarceration and no absence from work despite the commission of a crime. Similarly, the individual who has been found not guilty of the offense or any lesser included offense charged has been incarcerated involuntarily through no fault or action on his or her part and has not voluntarily left the work. In these situations then, the termination from employment due to involuntary incarceration and absence from work is a discharge, the reasons for discharge do not constitute misconduct, and the individual is not disqualified unless there has been an inexcusable failure to notify the employer where it was reasonably feasible to give such notice and a reasonable person would have given notice of absence from work.

This section does not deal with situations in which an employee is discharged due to the commission of an illegal act itself, rather than for absence from work caused by incarceration due to the illegal act. For discussion of discharge due to an illegal act itself, see Section 1256-43 of these regulations.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1256.1, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Change without regulatory effect of subsection (d) (Register 87, No. 40).

§1256-32. Discharge for Misconduct--Duty to Employer.

Note         History



(a) Scope. This section relates to discharge for misconduct in connection with the most recent work based upon acts or statements of an employee detrimental to the employer's interests. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) Employee's Duty Toward Employer. An employee owes an implicit duty to support and serve the employer's interests and not to willfully or wantonly engage in acts or statements which evince an attitude of disregard of the employer's interests. Except in aggravated circumstances, ordinarily the first instance of an employee's isolated willful or wanton act or statement showing disregard of the employer's interests would not be sufficiently substantial to constitute misconduct. If the employee continues the acts or statements after warning or reprimand, his or her conduct viewed as a whole may constitute a willful and substantial breach and justify a discharge for misconduct, particularly if the repeated acts or statements occur within a relatively short span of time.

(c) Types of Acts or Statements. An employee who makes disparaging statements concerning his or her supervisor, the employer, or the employer's product, service or business, or who deliberately incites or agitates co-employees to damage the employer's premises, equipment or materials, has engaged in acts which may be misconduct. Mere griping or normal complaints through proper channels, or in a customary manner about some aspect of the work, however, does not injure or tend to injure the employer's interests, and may even be desirable or encouraged by the employer as a method to improve work conditions and employee morale. Proper channels for complaints ordinarily would be through an employee's immediate supervisor, or a grievance committee if one exists or in accordance with any applicable collective bargaining agreement procedure. Bona fide union activities not in violation of the employer's rules are not grounds for a discharge for misconduct.

EXAMPLE 1. An employee argued at work with a co-employee about a work assignment. The employer reprimanded the employee who responded that “if the employer would stay around there would not be any trouble.” The remark was not in the presence of others. The employer discharged the employee for this remark.

While the remark showed a lack of good judgment, there was no substantial harm to the employer's interests. There was no misconduct.

(d) Aid to Competition. An employee who deliberately aids the employer's competitor, for example, by sending customers to the competitor, except as an accommodation allowed by the employer, or giving the competitor confidential business information, lists of customers or trade secrets, has engaged in misconduct. If an employee, without the knowledge and approval of his or her employer, accepts work for a competitor, the employee has engaged in misconduct. An employee who, while working for the employer, diverts customers to the employee's own independent business, has engaged in misconduct. However, an employee who merely discusses with co-employees an intention to engage in his or her own independent business in the future has not engaged in misconduct, even if the discussion continues after a warning from the employer, if there is no disruption of the employer's business or dissatisfaction among employees caused by this activity.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-33. Discharge for Misconduct--Connected with Most Recent Work.

Note         History



(a) General. This section interprets when a discharge for misconduct is or is not “connected with” the most recent work under Section 1256 of the code. A claimant who has been discharged from work for misconduct is disqualified under Section 1256 of the code only if the misconduct is “connected with” his or her most recent work (see Section 1256.3 of the code and Section 1256-2 of these regulations for definition of most recent work). Misconduct is connected with work if the activity involved injuries or tends to injure the employer's interests. This connection or lack of connection is usually easily determined or apparent when the activity is on the job. Situations which present problems are treated in the following interpretations. For additional related discussion, see Section 1256-43 of these regulations.

(b) Off-the-Job Activity.

(1) Usually, the off-the-job activity of an employee does not injure or tend to injure the employer's interests. If there is no injury or potential injury to the employer's interests, the employer cannot reasonably impose the employer's standards of behavior on an employee during his or her off-duty time. However, there are off-the-job situations where the interests of an employer are either injured or tend to be injured by the conduct of an employee during these off-duty periods, usually involving illegal or criminal activity.

EXAMPLE 1. A, an official of a local bank, is arrested and convicted for theft. The bank's business reputation is damaged. This would be so even if the theft was not from the bank and committed during off-duty hours. On the other hand, the off-duty theft by a janitor of this same bank would have little effect on the bank's reputation and public trust and confidence in this bank.

A discharge of the bank official would be for misconduct connected with the work. A discharge of the bank's janitor would not be for work-connected activity.

EXAMPLE 2. B, a pharmacist, was arrested at B's home for the illegal possession of various drugs. When B disclosed to the employer that the arrest was valid because B had possessed such narcotics, the employer discharged B.

B's discharge is for misconduct connected with B's job because it tended to injure the interests of the employer and there was a substantial breach of the duty owed by B to the employer. B knew, or should have known, the laws governing the possession of narcotics and B's responsibility as a dispenser of drugs and narcotics upon prescription. B's role as a registered pharmacist required that B not engage in any activity which would lessen the public faith and confidence in the employer's pharmacy.

EXAMPLE 3. C, a janitor, was arrested during C's off-duty hours for drunk driving. Upon returning to work, C was discharged.

C's discharge is not for misconduct connected with C's most recent work. There was no duty owed to the employer's interests.

(2) While the off-the-job conduct which creates problems is usually illegal or criminal activity, other behavior by an employee may injure or tend to injure the employer's interests.

EXAMPLE 4. D was a camp counselor for youth camps. The employer had warned D to avoid conduct which might reflect on D's qualifications to guide youth. The employer discharged D because of adverse community reaction and protests to D's frequent patronage of a pornographic retail sales outlet.

D's discharge is for misconduct connected with the work since the employer's interests in a favorable business reputation were injured by D's off-duty conduct.

EXAMPLE 5. E, a professional tennis athlete, had agreed with the employer, who had engaged E's exclusive services, not to engage in hazardous participation in contact sports activities. The employer discharged E when E engaged in rough-and-tumble football.

E's discharge is for misconduct connected with the work since the employer's interest in E's unique athletic services was seriously affected by E's off-duty conduct, even though no injury to E in fact occurred.

(c) Pre employment Activity.

(1) In situations involving pre employment activity, the claimant is discharged for conduct occurring before the employment relationship was begun. Usually this is not connected with the most recent work.

EXAMPLE 6. F was hired by Taxi Cab Company X. F was stopped for a traffic violation while driving on duty and cited by a police officer. Company X found that F had been drinking prior to the traffic violation and discharged F. Shortly after, F was hired by Taxi Cab Company Y. In the first week with Company Y, the police department revoked F's probationary driver's permit. Company Y then discharged F since F lacked a permit to drive a vehicle.

F's discharge by Company Y is not for misconduct connected with F's most recent work since the misconduct occurred while employed with a prior employer, Company X. (Note: Although there is no discharge for misconduct, F's actions raise an issue of “constructive voluntary leaving” from the last job with Company Y without good cause. See Section 1256-1 of these regulations.)

(2) In other situations, a claimant's pre employment activity may be the basis for a newly-hired employee to be denied insurance or a surety bond. In such cases, if there are no alternative means for insuring or bonding the employee, a subsequent discharge for lack of a bond or insurance policy is not connected with the work. However, if the claimant has falsified his or her work application and concealed information which would have precluded the initial hiring, the discharge may be for misconduct (see Section 1256-34 of these regulations).

(d) Garnishment of Wages. A discharge because an employee's wages are garnisheed by a creditor is not for misconduct connected with the work unless all of the conditions set forth in Section 1256-35 of these regulations are met.

(e) Union Disputes.

(1) A discharge may be caused by a dispute between an employee and a union. This usually occurs in the context of a collective bargaining agreement which provides that an employee must be discharged after having been expelled or suspended from the union. If this is the only reason for the discharge, there is no misconduct regardless of the underlying reason for the expulsion or suspension from the union. However, if the employer would have discharged the claimant for the misconduct even if there had been no expulsion or suspension by the union, then the discharge for misconduct is connected with the most recent work.

EXAMPLE 7. G was expelled from the union after another union member filed charges against G. Under the provisions of the existing collective bargaining agreement, the employer discharged G.

G's discharge is not for misconduct connected with the most recent work since it was caused by difficulty between the union and G and was not a breach of a duty owed to the employer. 

Note: Although the example is not a discharge for misconduct, a “constructive voluntary leaving” issue exists. See Sections 1256-1 and 1256-41 of these regulations.)

EXAMPLE 8. H while at work started an argument with H's supervisor, a union official, concerning union policies. H struck and injured the supervisor, without provocation. The supervisor was unable to continue working and left work. The union promptly expelled H. Under the provisions of the collective bargaining agreement, the employer discharged H.

H's discharge is for misconduct connected with the most recent work, since the employer's interests in orderly work behavior and discipline are damaged and H would have been discharged for the violation had not the discharge been required under the collective bargaining agreement.

(2) The issue of connection with the work arises also when there is a trade dispute. During such a dispute the employer-employee relationship is merely suspended and not terminated. If the claimant has engaged in misconduct which injures or tends to injure the interests of the employer, the connection between the misconduct and the most recent work is present. Any standards of behavior which the employer has the right to expect, or any duty or obligation owed the employer by the employee, continue during the trade dispute.

EXAMPLE 9. During a strike called by J's labor union, J threw rocks at nonstriking employees as they entered and left the premises. Upon completion of the strike the employer denied reinstatement to J.

J's discharge is for misconduct because J's acts were designed to interfere and annoy the nonstriking workers and thus interfere with the employer's operations. The conduct was not excused by the trade dispute.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (d) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-34. Discharge for Misconduct--Dishonesty.

Note         History



(a) Scope. This section relates to discharge for misconduct in connection with the most recent work based upon an employee's dishonesty. “Dishonesty” includes such acts and statements as lying, theft, making false entries on records, and other actions showing a lack of truthfulness and integrity. “Dishonesty” includes both criminal and noncriminal dishonest acts and statements. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) General. An employee who has engaged in dishonest acts or statements connected with the most recent work and for that reason is discharged has been discharged for misconduct even though other employees engaged in similar past acts or conduct or the employee has previously successfully engaged in substantial dishonesty without reprimand or warning or the employer has no specific rule forbidding dishonesty. Dishonesty does not exist if the employee's act or statements arise from a good-faith misunderstanding between the employer and employee where a reasonable person would not have interpreted the acts or statements as dishonest under the circumstances.

An employee who willfully urges or aids another person to engage in a dishonest act which injures or tends to injure the employer's interests, or in a dishonest statement which is intended to and does cause or threaten substantial economic damage to the employer or a substantial threat to the health or safety of the employer, has engaged in dishonesty and misconduct even though the dishonest act or statement is committed or made by the other person. An employee who willfully fails to report to the employer the dishonest acts or statements of a co-employee causing substantial harm to the employer has engaged in dishonesty. No duty usually exists to report a dishonest act or statement if the effect is minor and insubstantial. An example is the pilfering of the employer's property of little value such as a pencil. However, supervisory employees or guards charged with a duty to prevent any acts of dishonesty must prevent even minor and insubstantial acts or report such acts to the employer if they occur.

EXAMPLE 1. X observed a co-employee steal a stack of paper money from the employer's cash till. X did not report the theft to the employer. The employer discharged X for this failure.

X has engaged in dishonesty by failing to report a theft of a co-employee causing substantial harm to the employer. The discharge is for misconduct.

(c) Cash.

(1) Shortages. Cash shortages refers to an employee's loss of the employer's money without intent to convert or the conversion of the money to the employee's own use. Cash shortages arise from an employee's misconduct only where the employee fails to follow a rule of the employer for handling cash or the employee has shown negligence of such degree or recurrence as to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligation to the employer. If negligence is involved, including a failure to follow a rule of the employer for handling cash, prior warnings or reprimands are relevant to the degree or recurrence of negligence. If an employee acts in good faith and to the best of his or her ability in handling the employer's cash, a loss is ordinarily attributed to inefficiency, inability, incapacity, or good-faith errors in judgment or discretion, or some combination of these factors, and not to misconduct. An employee's inexcusable failure to report known cash shortages where the employee is responsible for the handling of the cash is misconduct.

(2) Misappropriation. Cash misappropriation refers to an employee's willful taking or withholding the employer's money with the intent to convert or the conversion of the money to the employee's own use. Cash misappropriation is misconduct regardless of whether there have been any prior warnings or reprimand for similar prior conduct or whether there is any employer rule against theft.

(d) Conversion of Other Property. An employee's theft or unauthorized possession or use of noncash property of the employer, other employees, or customers is misconduct. An employee who reasonably believes he or she is authorized to possess or use the employer's noncash property engages in misconduct if he or she refuses to return such property to the employer or other person upon request.

(e) False Work Records or Statements About Co-workers, Employer, Work. An employee who willfully makes false statements which relate to work records, co-employees, the employer or the work, and which substantially injure or tend to injure the employer's interests or are a substantial violation of the employee's duty and obligation to the employer has engaged in misconduct. False statements are willful when made with the employee's full knowledge of falsity, or made when the employee does not believe the statement is true, or made carelessly when the employee does not care whether the statement is true or not and has no basis for believing that the statement is true. Examples of false statements include, but are not limited to:

(1) Giving false reasons for absence from work to induce the employer to grant a leave which would not have been granted had the true reasons been given.

(2) Making malicious false statements, more serious than common gossip, about the employer or co-employees which cause customers to withdraw patronage, or damage employee morale or cause serious friction between employees.

(3) Representing that the employee has performed a task when he or she has not done so, resulting in a reasonably foreseeable substantial injury or potential injury to the employer's interests.

(4) Submitting false work time reports, false travel expense claims, or false reports of the employer's income or expenditure of the employer's money.

(5) Making false statements on work applications concerning information reasonably and materially related to the selection of qualified applicants for the job or the employer's interests.

COMMENTS. Under subdivision (e)(5) relating to false work applications, provisions of California codes may govern the questions an employer may legally ask prospective employees. For example, Section 432.7 of the Labor Code prohibits asking an employment applicant for information concerning an arrest which did not result in conviction except for certain peace officer or law enforcement positions, certain positions at health facilities for specified criminal charges, and instances where the applicant is out on bail or on his or her own recognizance pending a trial of a criminal charge.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-35. Discharge for Misconduct--Garnishment of Wages.

Note         History



An employee's discharge due to the garnishment of his or her wages causing a disruption to or a burden on the employer is a discharge for misconduct if all of the following conditions are met:

(a) The employee's wages have been previously garnisheed for a different judgment on a different debt while employed by the discharging employer.

(b) The employee has been expressly forewarned by the employer's rules, prior warnings, or prior reprimands, of the possible action to be taken by the employer resulting from a writ of garnishment for a different judgment.

(c) The employee knew or could reasonably know that a wage garnishment would be instituted for a different judgment by a creditor.

(d) The employee has not made a good-faith effort to meet his or her financial obligations or the employee has made a good-faith effort to meet obligations but failed to take reasonable action that would have prevented the garnishment for a different judgment.

COMMENTS. Subdivision (a) recognizes that a claimant cannot be lawfully discharged under state or federal law if the garnishment results from a single judgment or indebtedness (Labor Code Section 2929; 15 U.S.C. 1674). Thus, a discharge because of one or more garnishments on a single debt or judgment is not for misconduct. However, when a claimant has had wages attached for two or more debts, the specific facts leading to the discharge are determinative on whether the discharge was for misconduct.

Under subdivision (b), unless a claimant has been expressly forewarned by the employer of the possible action the employer may take resulting from a wage garnishment, the discharge is not for misconduct. The employer's rules or any prior warnings or reprimands show that the claimant was aware of the possible discharge resulting from a wage garnishment. If there is no such forewarning, the discharge is not for misconduct, since there is no willful or wanton disregard of the employer's interests.

EXAMPLE 1. A is separated from employment with X. While unemployed a writ of attachment is filed against A with X. Upon returning to work, A is not informed of the attempted garnishment and is rehired by X. Another creditor executes a writ of attachment with X on A and X discharges A.

A's discharge is not for misconduct since A's action was not willful because A was not aware of X's policy or rules on wage garnishments and had not been warned that A would be discharged if repeated garnishments occurred.

COMMENTS. Under subdivision (c), a claimant must know or be charged with reasonable knowledge that a garnishment could be instituted against him or her. This knowledge is generally acquired when a debt has been incurred and the creditor has sought payment from the claimant.

EXAMPLE 2. B is employed by Y. After a prior garnishment for another debt of B's, a writ of attachment is executed by a collection agency for unpaid attorney's fees. Y discharges B. B claims that B had the understanding that B's spouse would liquidate this debt.

B's discharge cannot be for misconduct since B could not reasonably know that a writ of attachment could be instituted against B and did not act willfully.

COMMENTS. Under subdivision (d), if a discharged claimant tries in good faith to meet his or her financial obligations and succeeding garnishments for a different debt still result from circumstances the claimant cannot prevent by any reasonable action or conduct, the discharge is not for misconduct. No misconduct would exist if an impatient creditor resorted to garnishment, or if the claimant was financially unable to pay or make satisfactory arrangements despite his or her best efforts. However, if the claimant fails to stop garnishment when reasonable action would have prevented garnishment, a discharge is for misconduct.

The nature of the purchase resulting in the garnishment is rarely significant in determining misconduct. The fact that a garnishment stemmed from the purchase of a luxury item does not usually establish misconduct. However, if a claimant has had several garnishments, has been warned that another garnishment for a different judgment can result in discharge, and still creates a frivolous new debt which results in garnishment, the claimant's actions are not those of a reasonably prudent person who wants to preserve employment. Reasonable conduct by the claimant would have prevented the garnishment.

EXAMPLE 3. C makes arrangements to pay C's creditors but a succeeding wage attachment for a different debt is nevertheless levied by an impatient creditor who had agreed to the arrangements.

C's discharge resulting from this garnishment is not for misconduct since C made good-faith efforts but could not prevent the garnishment.

EXAMPLE 4. D suffers a substantial loss of income, such as a wage cut, demotion, new job paying less money, or loss of outside income. D after prior garnishments fails to keep up with reduced payments.

D's discharge for garnishment on a different debt does not constitute misconduct if D has explained the situation to the creditors, tried to make satisfactory arrangements, and cannot prevent further garnishments by any reasonable steps.

EXAMPLE 5. E is unable to meet debts due to a serious family illness requiring a large financial outlay. Creditors decide to levy wage garnishments on separate judgments despite E's attempts to make satisfactory arrangements. E is discharged.

E's discharge is not for misconduct since no reasonable action could have prevented the garnishments.

EXAMPLE 6. F has been warned by Employer Z on several occasions that continued wage attachments on different debts would result in discharge or other disciplinary action. During a period of six months, four writs of attachment had been served on Z, and two wage assignments were made. At least twice, F took time off from work to arrange to have F's wages released. F had repeatedly obtained an immediate release of F's wages by paying the amounts due. F is able to make timely payments. Z finally warns F that another attachment will result in discharge. Upon service of the next attachment, Z discharges F.

F is disqualified for misconduct based on F's awareness of the existence of F's indebtedness and the possibility that the creditors would take steps to insure collection. F was able to pay and could obtain immediate release of F's wages by making arrangements with the creditors. F could have prevented the garnishment by reasonable action.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (a) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-36. Discharge for Misconduct--Insubordination.

Note         History



(a) This section relates to discharge from the most recent work for misconduct due to insubordination. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) Implicit in the agreement of hire is the concept that an employee is subject to some degree of authority exercised by the employer or the employer's representative. An employee is insubordinate if he or she intentionally disregards the employer's interest and willfully violates the standard of behavior which the employer may rightfully expect of employees in any of the following ways:

(1) Refuses, without justification, to comply with the lawful and reasonable orders of the employer or the employer's representative. Compliance is not required in the following circumstances:

(A) The order is unreasonable because compliance is impossible for the employee due to reasons such as physical limitations which are peculiar to him or her and, if the reasons are not apparent, are made known to the employer or the employer's representative.

(B) The order is unreasonable because compliance would impose a new and unreasonable burden on the employee.

(C) The order is unreasonable because it does not relate to or affect the employer's business interests.

(D) The employee reasonably and in good faith believes compliance would result in a violation of the law, objects or makes a reasonable effort to object to the employer, and the employer makes no reasonable effort to explain the basis for the order to the employee. Whether compliance with the order would be a violation of the law is not determinative.

(E) The employee reasonably believes compliance with the order would cause an undue risk of injury or illness (see Section 1256-15 of these regulations).

(F) The employee has a reasonable and good-faith doubt of the authority of the individual issuing the order.

(2) Commits an act which exceeds the authority either expressly granted by the employer or impliedly created by failure of the employer to object to a particular course of conduct, except that insubordination does not exist under any of the following circumstances:

(A) The employee's act is incidental, accompanies, or is reasonably necessary to accomplish an authorized duty.

(B) The employee reasonably believes the act is necessary to prevent substantial loss to the employer's interests and it is impracticable for the employee to communicate with the employer or the employer's representative.

(C) The employee makes a good-faith error in judgment.

(3) Makes a statement or remark, which is not the result of an error in judgment, under the circumstances which damage or tend to damage the employer's interest.

(4) Addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer or the employer's representative when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee.

COMMENTS. Generally, insubordination requires cumulative acts with prior reprimands or warnings. However, a single act without prior reprimands or warnings can be insubordinate if the act is substantially detrimental to the employer's interest. If an employee is discharged after an act of disobedience of an employer's reasonable order and that act is not of itself misconduct but is part of a prior pattern of cumulative acts of insubordinate conduct, the employer must have given prior reprimands or warnings for the acts in the prior pattern in order for the ultimate discharge to be for misconduct (see Example 12, Section 1256-30 of these regulations).

Under paragraph (1) of subdivision (b), the element of willfulness exists if the employee has a basic understanding of the order and knowingly fails to comply. The employee need not thoroughly comprehend the order, but merely understand the essence of the act expected.

EXAMPLE 1. A was employed as a paint and processing utility person. Five times A refused to dust fire extinguishers because A reasonably believed that the work was outside A's job classification. The employer discharged A. Although A's job classification did not specify that A was to dust fire extinguishers, neither did it specify that A was to perform other duties which A readily performed. Six other employees with the same classification did dust their fire extinguishers.

The instructions to A were not unreasonable or unlawful. A deliberately refused to obey after having been warned of the serious consequences. A was discharged for misconduct due to insubordination.

COMMENTS. The following example is applicable to paragraph (1) (B) of subdivision (b), which excuses an employee's noncompliance with an employer's order if the order imposes a new and unreasonable burden on the employee.

EXAMPLE 2. B was hired by a steel supply company as an outside salesperson on a straight commission basis. After a desk order clerk resigned, B's employer assigned the outside salespeople to work on the desk on a rotational basis without compensation. On several occasions B refused to accept the assignment because B's earnings would be reduced by the lack of contact with customers. Consequently, the employer discharged B.

B's failure to comply with the order was not misconduct due to insubordination because the order imposed a new and unreasonable burden on B.

COMMENTS. Under paragraph (1)(C) of subdivision (b), the employee does not have to comply with his or her employer's orders if they are unrelated to the employer's business interest. The employer's control of his or her employees is not absolute. (For additional interpretation of the employer's business interest and reasonableness of employer rules, see subdivision (b) of Section 1256-13 of these regulations.)

EXAMPLE 3. C, who is interested in entering business on C's own behalf, discussed with three other employees the possibility of organizing a new company. The employer told C to forget the idea of starting C's own business and to cease discussions with the other employees. C refused to comply. The employer discharged C.

C's failure to comply did not constitute misconduct due to insubordination, since C's activities did not disrupt the employer's operations.

COMMENTS. Paragraph (1)(D) of subdivision (b) limits the duty of the employee to obey the employer's order if the employee reasonably believes the order is not consistent with the law and so advises the employer who has an opportunity to explain. If the employee concludes solely on his or her own judgment that an order is illegal and does not object to the employer as to the legality of the order, a discharge for noncompliance with the order is for misconduct due to insubordination.

EXAMPLE 4. D was in charge of hiring and firing for D's employer. The employer ordered D to fire a certain employee but did not explain that the employee was to be fired because of lack of work. Because the employee was a good worker, D thought the reason was that the employee was a union member. D believed this would be a violation of the National Labor Relations Act but did not make this objection known to the employer. D refused to fire the employee. The employer discharged D.

D's discharge was for misconduct due to insubordination since the employer was never told of D's objections as to the legality of the order. Whether the order was or was not lawful is immaterial.

COMMENTS. Under paragraph (1)(E) of subdivision (b), the employee does not have to in fact sustain injury if he or she complied with the order. If the employee had a reasonable belief that he or she would sustain injury, then refusal to comply with the order would not be misconduct.

EXAMPLE 5. E was assigned to work which E considered unsatisfactory and detrimental to E's health. E requested a transfer but the employer took no action. E's supervisor asked that E perform certain duties which, as far as E knew, required stooping. E refused to comply with the requests because E was under a physician's care for an ailment which E felt would be aggravated by excessive stooping. The employer discharged E.

E's conduct was not misconduct due to insubordination since E's belief that E would be injured was reasonable.

COMMENTS. Under paragraph (1)(F) of subdivision (b), if the employee's doubts were reasonable, then he or she cannot be discharged for misconduct.

EXAMPLE 6. F, a practical nurse, failed to comply with instructions given to F by another nurse, not knowing that the superintendent issued the order. F refused to follow the instructions because F had been instructed to perform a certain task by the superintendent and did not believe the employee had any authority to countermand orders of the superintendent. F did not inquire as to the extent of the nurse's authority. On a prior occasion an instruction by this employee to F had been countermanded by the superintendent. F had never been informed that the employee occupied a position of authority higher than F's own. The employer subsequently discharged F.

F's discharge was not for misconduct due to insubordination, because F had good reason to doubt the validity of the order given to F.

COMMENTS. Paragraph (3) of subdivision (b) refers to those instances where the employee openly ridicules or openly engages in a dispute with the employer or the employer's representative thereby damaging the employer's interests. Damage in this context includes deterioration of employer control over workers, and negative effects on employee morale or the public or customers of the employer.

Damage occurs when the manner in which an employee disputes with the employer or employer's representative or the time and place of the dispute is inappropriate, especially if there have been prior reprimands or warnings to discontinue such conduct. For instance, insubordination exists when an employee refuses to comply with a reasonable directive and ridicules or engages in a heated argument with the employer or the employer's representative in the presence of the general public, customers or other employees. Threats of violence, insults to the employer or the employer's representative, or remarks made to create dissension among the employees damage the employer's interests because of their negative effect on public reaction, company morale and employer control.

EXAMPLE 7. G, a grocery store wrapper, engaged in a heated argument with G's immediate supervisor on the sales floor after the supervisor had requested that G work a few minutes overtime. G had refused to do so on numerous occasions. This resulted in arguments between G and the employer, often in the presence of customers. The employer discharged G.

G's discharge was for misconduct due to insubordination. The supervisor's request that G work a few minutes overtime did not warrant G's engaging in heated argument with the supervisor in the presence of customers.

COMMENTS. Under paragraph (3) of subdivision (b), not all exchanges between employer and employee result in discharge of the employee for misconduct. In the normal working situation there is a degree of “give and take” between the employer and employee. Ridicule, if used in the joking, kidding sense is not misconduct unless such actions are repeated after warnings or reprimands. Differences of opinion, disagreements, and misunderstandings arise, and participation in such discussions is not misconduct. The circumstances under which the argument or remarks were made are taken into consideration. An isolated instance of an error in judgment is not misconduct.

Under paragraph (4) of subdivision (b), in determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store or government office. The normal exchange among workers differs according to the occupation.

Vulgar language is also used among employees as friendly banter. However, the common and friendly banter of vulgar language between co-workers constitutes insubordination if directed to a supervisor, unless there was a prior relationship between the supervisor and employee which allowed such friendly banter.

The circumstances under which the employee made the remarks are also taken into consideration.

EXAMPLE 8. H was having emotional problems of which H's supervisor was aware. H was also being trained for new and unfamiliar work. One day, while H was engaged in a heated argument with H's employer, H addressed the employer with vulgar language. The employer discharged H for using such language.

Given the circumstances, the single instance of an outburst by H was a mere mistake and error in judgment, and did not constitute misconduct due to insubordination.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-37. Discharge for Misconduct--Intoxication and Use of Intoxicants.

Note         History



(a) This section relates to discharges from the most recent work for misconduct due to intoxication or the use of intoxicants. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) Except as provided in subdivision (c) of this section, an employee's conduct constitutes misconduct due to intoxication or the use or consumption of intoxicants if any of the following occurs:

(1) He or she is intoxicated at the time he or she reports to work or returns to work following a lunch or rest period or similar break period. As used in this subdivision, “intoxicated” means under the influence of any intoxicant to the extent that a reasonable observer would conclude that there is a significant adverse effect upon an individual's normal ability, skill, or competence to perform the usual duties of the work assigned.

(2) He or she uses or consumes any intoxicant other than alcohol during a lunch or rest period or similar break period.

(3) He or she uses or consumes any intoxicant during working hours.

(4) He or she uses or consumes alcohol during a lunch or rest period or similar break period after prior warning or notice of an employer rule that use or consumption of alcohol during such break periods will result in discharge.

(5) He or she reports to work not intoxicated but with offensive physical effects due to the use or consumption of any intoxicant which adversely affects his or her ability or performance on the job, after receiving at least one warning or reprimand.

(c) An employee's discharge is not for misconduct due to intoxication or the use or consumption of intoxicants if the intoxication-induced behavior was the product of an irresistible compulsion to use or consume intoxicants or a total inability to abstain from the use or consumption of intoxicants, or if the use or consumption of intoxicants was permitted or condoned by the employer.

(d) For purposes of this section, “intoxicant” includes:

(1) Any alcoholic beverage or distilled spirit.

(2) Any drug or other substance included in Sections 11054, 11055, 11056, 11057, and 11058 of the California Health and Safety Code, when not medically prescribed by a licensed physician for medical treatment.

COMMENTS. This section generally relates to intoxication or the use of intoxicants on the job. However, if an employee's off-duty activities injure or tend to injure the employer's interest then the employee may be discharged for misconduct.

EXAMPLE 1. A, a janitor, was arrested for drunk driving while off duty. The employer discharged A.

A's off-duty intoxication did not relate to A's work performance and did not substantially injure or tend to injure the employer's interest. Therefore A's conduct did not constitute misconduct due to intoxication.

COMMENTS. Under subdivision (b), use or consumption of any intoxicant while on the job, or any intoxicant except alcohol during break periods at work, constitutes misconduct if in violation of an employer rule or in willful disregard of a standard of behavior which the employer has the right to expect. Reporting to work or returning to work after breaks intoxicated is misconduct. Prior reprimands or warnings or notice of an employer rule are necessary for alcohol use or consumption during work breaks to be misconduct, but are not necessary for other intoxicants where the use or consumption is illegal and the violation or breach is substantial.

This subdivision also recognizes the exception under subdivision (c) that in certain occupations, using or consuming intoxicants on the job may be permitted or condoned. For instance, it is common for a bartender to have a drink with his or her customers. However, if the use or consumption of intoxicants on the job is uncommon to the occupation, it is misconduct if the other conditions are met.

Paragraph (5) of subdivision (b) refers to circumstances where physical effects of the use or consumption of intoxicants affect the employee's performance of his or her duties on the job. For instance, the odor of liquor on an employee's breath would interfere with an employee's performance on a job which entails close contact with the public, such as a dental assistant, or salesclerk. Offensive physical effects due to the use of intoxicants may also interfere with an employee's ability to perform his or her duties.

EXAMPLE 2. B's job as a food checker entailed handling large sums of money and meeting the public constantly. On one occasion when B was not at B's post at the appointed hour, the acting manager went to the back of the store to look for B. The manager found B with bloodshot eyes, wrinkled clothes, liquor on B's breath, and a sleepy appearance. On prior occasions B had been warned that reporting to work late and in such condition would result in a discharge. The employer discharged B.

B had a duty to arrive at work in proper physical condition and ready to work. B's conduct was misconduct due to the use of intoxicants.

COMMENTS. Subdivision (c) recognizes that an employee's discharge is not for misconduct due to intoxication if the intoxication-induced behavior was the product of an irresistible compulsion to drink or use intoxicants

EXAMPLE 3. C was a ramp service person for an airline. C was discharged because of chronic absenteeism. C's absenteeism was caused by chronic intoxication which was ascribed to alcoholism.

Because an essential element of misconduct is the volitional “willful and wanton” test, C's intoxication-induced behavior was a product of an irresistible compulsion to drink and therefore C's behavior was neither willful nor wanton. C's acts did not constitute misconduct due to intoxication.

COMMENTS. This section recognizes that intoxication or the use or consumption of intoxicants includes not only alcoholic beverages but also drugs or controlled substances.

EXAMPLE 4. D was a taxi driver. On several occasions D's supervisor had observed that D acted as though D was under the influence of alcohol or drugs. D's supervisor confronted D and warned D that D must come to work able to perform D's duties effectively. D stated that D had taken a drug before coming to work to calm D's nerves. D was not addicted to the drug. When D again arrived at work apparently under the influence of an intoxicant, the employer discharged D.

D had a duty to arrive at work ready to perform D's duties effectively. The drug D took was not prescribed by a physician for medical treatment. D's conduct constituted misconduct due to intoxication.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-38. Discharge for Misconduct--Manner of Work Performance.

Note         History



(a) Scope. This section relates to whether misconduct exists under Section 1256 of the code where an employee is discharged for neglect of duty or failure to perform the assigned work properly. Section 1256-30 of these regulations set forth general principles also applicable under this section.

An individual's failure to perform work properly or neglect of duty is willful and misconduct if he or she intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests.

EXAMPLE 1. Deliberate Failure. A was employed by a large winery. A was assigned to assist the operator of a filter pump in transferring wine to an empty vat. A's known duty was to attach the end of the hose to the intake valve of the tank and then to check the lower valve to see that it was closed. A and other employees, however, had devised an alternate form of operation which was at variance with the one prescribed by the employer. In performing this transferring operation, A failed to check the lower valve and several hundred gallons of wine were lost before it could be closed. The employer discharged A.

A's action was deliberate and was misconduct.

(b) Intentional, Knowing, or Deliberate Failures. Some of the situations in which intentional, knowing, or deliberate failures of work performance occur are failures in quality or quantity of work or in relationships with the public.

(1) Quality of Performance. Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct. However, misconduct exists if inability, incapacity, or inefficiency is due to one's willful failure to perform to the best of his or her abilities. Thus, if an employee's inadequate performance is the result of circumstances within his or her control and he or she does nothing to improve the performance, there is a willful failure to perform adequately which is misconduct. An employee's inefficiency may be misconduct if he or she previously demonstrated the ability to do better, work performance has substantially deteriorated, and there is no reasonable explanation for the deterioration.

EXAMPLE 2. Deliberate Inefficiency in Quality. B was a precision assembler who was discharged from employment. For the first three years of employment, B's work had been entirely satisfactory but then had deteriorated. B had no excuses to the employer for B's poor work other than the fact that B's poor eyesight had hampered B in doing close work. B refused to consult an optometrist because B was unwilling to wear corrective lenses. The employer discharged B.

B's discharge was for misconduct since the reason for B's inefficiency was within B's power to control and the failure was willful.

(2) Quantity of Work. An employee's failure to produce the required quantity of work is misconduct if the employee was capable of meeting, could have met, and continually failed to meet the employer's reasonable quantity standards after reprimands or warnings. If an employee's unsatisfactory quantity of work is caused by some factor within his or her control, there is a duty to do whatever is reasonably necessary to bring the quantity of work up to an acceptable level.

To establish misconduct for failure to perform the required quantity of work, the employer's quantity standards must be reasonable. A standard is reasonable if the employee has, in the past, met or surpassed that quantity standard. Moreover, standards are reasonable if other employees of like age, experience, intelligence, and abilities have consistently met or surpassed the employer's quantity standard.

The fact the employer has, on several occasions, raised the quantity standards does not alone negate misconduct. It is the employer's right to adjust the standards in a manner consistent with the best interests of the employer so long as this adjustment does not exceed the bounds of reasonableness.

If an employee has a logical and reasonable explanation justifying failure to provide the minimum quantity of work required, this negates misconduct.

EXAMPLE 3. Deliberate Inefficiency in Quantity. C was a salesperson expected to call on old customers, develop new customers, and submit weekly reports. The employer had reprimanded C for poor performance. C agreed that C should call on at least 30 customers each week. Yet C, without excuse, in 5 weeks made 14 calls in a week, 19 calls in another, and 12 calls in the other 3 weeks, and failed to file 3 weekly reports. The employer discharged C.

C's discharge was for misconduct due to repeated inexcusable failure to meet reasonable quantity standards after reprimands and was willful failure to perform satisfactorily.

(3) Relations with the Public. An employee's discourtesy to the public is misconduct if the acts of discourtesy continued after prior warning or reprimand and the employee has the ability to control the performance. Usually a single or isolated instance of discourteous behavior is not misconduct, but the degree of discourtesy to a patron may be so serious that a single instance alone is misconduct.

EXAMPLE 4. Deliberate Discourtesy to Public. D was a cab driver. His passengers, a group of women, became somewhat noisy and boisterous. D then made improper and suggestive remarks to them and was discharged.

D's discharge was for deliberate serious acts of misconduct.

(c) Gross Negligence. A single incident of grossly negligent work performance or failure at work, including an accident due to gross negligence, is misconduct. To be gross negligence, the following elements must be present:

(1) The employer's rules require the work to be performed in a certain manner, since if the employee is allowed to use his or her discretion, there is no gross negligence while operating within the limits of reasonable discretion.

(2) The employee is aware of the employer's rules relative to how the work is to be performed.

(3) The employee knows that failure to perform the work as required could result in substantial loss to the employer.

(4) The employee has no logical and reasonable explanation for the failure to perform the work as required.

EXAMPLE 5. Gross Negligence. As a captain-pilot for a large airline, E was in charge of a plane with 29 passengers and 5 crew members aboard. The first officer was piloting the plane as it approached for a landing, with the captain-pilot under flight rules responsible to carry out the first officer's orders. The first officer ordered “gear down” for landing, but E failed to put the gear lever in full operating position and check the performance in accord with standard procedures. E thought the gear was down. The plane landed with wheels up, resulting in about $250,000 damage but no injury to passengers or crew. The employer discharged E.

E's failure was gross negligence and was misconduct. E knew and failed to follow employer rules resulting in the hazard of substantial loss of life and property with no reasonable explanation.

(d) Repeated Negligence--Substantial Disregard.

(1) Repeated negligent performance after prior warning or reprimand and in substantial disregard of the employer's interests is misconduct where the employee has the ability and capacity to perform satisfactorily. Substantial disregard of the employer's interests is determined after consideration of the following criteria:

(A) The number of negligent acts or omissions.

(B) The span of time within which the negligence occurred.

(C) The seriousness of each incident.

(D) The similarity of the incidents.

(2) It is neither desirable nor feasible to establish arbitrary numerical limits or descriptions in determining the number, time span, seriousness, or similarity of negligent acts or omissions which will constitute an employee's substantial disregard of the employer's interests. Rather, the totality of the circumstances of each case must be considered.

EXAMPLE 6. Repeated Negligence After Warning. F was a cutter in a shirt factory. F was instructed that in order to prevent damage to the shirts, each cutting machine was equipped with a wide blade for use with heavy materials and a smaller blade for use with light materials. Nevertheless F continued to use a wide blade on light materials. On each occasion the employer admonished F to use the proper blade for the proper material until finally the employer discharged F.

F's action was negligent after repeated warnings and was misconduct.

(e) Accidents. Accidents or behavior creating a danger of an accident are a frequent cause for the discharge of employees. Involvement in an accident or near-accident is not misconduct unless an individual's actions which lead to an accident or could have led to an accident were grossly negligent or substantially negligent. Gross negligence is discussed in subdivision (c) of this regulation. To determine whether an accident or a near-accident is due to an employee's negligence, relevant factors include:

(1) The degree of one's job responsibilities and the failure to meet such responsibilities.

(2) The nature of the loss or possible loss from an accident. An accident which could cause loss of life is much more serious, for example, than one involving only loss of property.

(3) The probability of one's actions causing an accident.

(4) The manner in which the accident occurred.

(5) The costs of the accident.

(6) The number, frequency, and regularity of accidents in which the individual has been involved.

EXAMPLE 7. Substantial Negligence. G, a taxicab driver, was involved in a series of six accidents within a short period of time while driving a cab. In addition, G repeatedly violated traffic laws by failing to make boulevard stops, by driving on the wrong side of the street, and by making prohibited mid-block “U” turns. The employer had given G a safety course and as each accident occurred discussed preventive measures. The employer gave G a disciplinary suspension following one of the accidents. Shortly after a later accident, the employer was held liable in damages and discharged G.

G's action was misconduct because it was clearly substantial, prejudicial to the employer's interests, and not the result of mere inefficiency.

EXAMPLE 8. Good Faith Error in Accident. H was a cab driver. H was en route to pick up a passenger when H was hailed by a person on the opposite side of the street. H glanced off the road toward the person in accordance with a company policy to identify possible customers and report cab requests to the company dispatcher. H was involved in a minor accident as a result of this action. The employer discharged H.

H's action was not misconduct, but at most was a good faith error in judgment in an attempt to carry out company policy.

(f) Judgment. An individual's good faith error in judgment is not misconduct if he or she has exercised reasonable diligence and has not knowingly acted in a manner prejudicial to his or her employer (see Example 8 above for good faith error in an accident situation; see Section 1256-30 of these regulations for general discussion of several types of acts or omissions that are not misconduct).

EXAMPLE 9. Good Faith Error in Judgment Not Shown. I, a security guard who has been assigned to a certain highly classified radio installation in an aircraft plant, was informed of its priority and importance. I was told that I cannot receive overtime pay but was never specifically instructed to remain on guard until such time as relief arrives. At I's normal quitting time, no one was sent to relieve I. I left the classified area unguarded. The employer discharged I for leaving the post unguarded.

In this instance, I, unrelieved at quitting time, was called upon to make a decision that requires considerable judgment--whether to continue work and possibly receive no overtime pay for time worked or whether to leave the radio installation unguarded. I's failure was misconduct because I failed to exercise reasonable diligence and knowingly acted in a manner prejudicial to the employer.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (d)(2) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-39. Discharge for Misconduct--Relations with Other Employees.

Note         History



(a) Scope. This section relates to discharge from the most recent work for misconduct due to some unsatisfactory relationship of an employee with co-workers (see Section 1256-36 of these regulations for discussion of relationships of an employee to the employer or supervisors). Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) General. Some unsatisfactory relations of an employee with co-workers involve an employee's deliberate acts which may constitute a wanton disregard of an employee's duty to the employer and substantially injure or tend to injure the employer's interest without regard to whether the employee has been given prior warnings or reprimands concerning similar acts. This type of misconduct can include an employee's inexcusable fighting on the job with co-workers, use of offensive language in relations with co-workers, or dishonesty on the job towards co-workers.

On the other hand, other acts of an employee in relation to co-workers may be negligent in nature and may cause less severe or minimal damage to the employer's interests. This type of conduct usually will not be misconduct unless the employee persists in the conduct after prior warnings or reprimands for similar acts. This type of act arises in cases of annoying co-workers, failing to pay debts to co-workers resulting in fights or controversy, or failing to cooperate with co-workers in performing the work.

(c) Deliberate Wanton Disregard of Employer's Interests.

(1) Fighting on the Job. Fighting with co-workers on the job is misconduct if the employee has provoked an attack or is the aggressor, regardless of provocation. Fighting on the job is not misconduct if an employee who is attacked on the job without provocation defends himself or herself against an attack.

EXAMPLE 1. A, a taxicab driver, signaled for a left turn when B, a fellow employee, drove over a double line, cut in front of A's cab, and drove into a taxi stand. A decided to report the incident and therefore talked to another co-worker to ask if the co-worker had seen the incident. B objected and grabbed A and struck a blow which A deflected. A moved away. B charged A again. A in self-defense knocked B to the ground. The employer discharged A.

A did not seek or provoke a fight with B. A's acts were reasonable and proper and A's self-defense was not misconduct.

EXAMPLE 2. D became irritated when co-employee C deliberately placed a filled tile container on D's hand truck of empty containers. D swore at C and slammed the container down in front of C, nearly hitting C. C thereupon hurled pieces of tile at D and injured D. The employer discharged C.

C had substantial provocation for attacking D, but this does not excuse C's fighting on the job. C's acts were not in self-defense and were misconduct.

(2) Offensive Oral Statements. An employee's acts constitute misconduct if the employee addresses a co-worker on the job in vulgar, profane, abusive, obscene, derogatory, or offensive language of a vile nature if the language is unjustified and not within the normal exchange and customary good-natured banter between employees.

COMMENTS. Normal practices in the establishment where the employee is employed and the circumstances under which oral statements were made are relevant to whether misconduct is involved. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office. The normal exchange among workers differs according to the occupation. Vulgar language is also used among employees in some occupations as friendly banter. The circumstances under which the employee makes oral statements are taken into consideration.

EXAMPLE 3. In an industrial establishment, a woman employee asked E for certain supplies. E was unable to give her immediate service. E believed that the woman employee complained to her supervisor about the incident. When E saw the woman employee later in the day E said, “Some people sure are asinine.” The woman employee complained to the employer. The employer discharged E for using alleged abusive and profane language.

E's statement was not misconduct because it was not abusive or profane and did not go beyond the customary give and take between employees in an industrial establishment.

EXAMPLE 4. F waved an open pocket knife at a co-worker and stated, “This blade would reach your heart. You could be lying on the floor dead.” The co-worker was frightened and intimidated. F later apologized and declared that F was joking. The employer discharged F due to the incident.

F's act was well beyond normal banter, disrupted order on the job, and was misconduct.

(3) Dishonesty to Co-workers. An employee who engages in dishonest conduct on the job affecting co-workers, such as stealing the tools or other personal property of a co-worker on the job, commits an act of misconduct.

(d) Willful Acts After Prior Warning or Reprimand.

(1) Annoying Co-workers. An employee who is discharged for unjustifiably annoying co-workers by frequent bickering or by horseplay on the job, after prior warning or reprimands for similar conduct, is discharged for misconduct.

EXAMPLE 5. G frequently argued with co-workers on the job despite repeated warnings to stop this conduct. Another co-worker participated with G in starting arguments and bickering among co-workers. The employer discharged G and the other co-worker due to their annoying of co-workers.

G was discharged for misconduct by persistently annoying co-workers after prior warnings.

EXAMPLE 6. H played various on-the-job pranks on new employees despite the employer's warnings to stop this conduct. H handed a broken glass jar to a co-worker on the job whose hand was cut on the jar. H leaped over moving machinery on the job. H's co-workers complained to the employer about H's horseplay and annoying and dangerous conduct. The employer discharged H due to the horseplay and dangerous conduct.

H's discharge was for misconduct due to repeated horseplay dangerous to co-workers.

(2) Debts to Co-workers. A worker's failure to pay a debt due to a co-worker is a personal matter not affecting the employer's interest. However, if the nonpayment of the debt results in on-the-job fights or disputes, the employer's interest is affected and whether misconduct exists is determined under the interpretations set forth under subdivision (c) or other applicable provisions of this section.

(3) Noncooperation with Co-workers. Ordinarily an employee's failure to cooperate with co-workers on the job in isolated instances would not be misconduct in the absence of prior warnings or reprimands. However, if the specific acts of noncooperation relate to the scope of an employee's defined work duties, Sections 1256-30 and 1256-36 of these regulations interpret the circumstances under which misconduct is or is not present.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (a) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256-40. Discharge for Misconduct--Tardiness.

Note         History



(a) Scope. This section relates to discharge for misconduct in connection with one's most recent work due to single or repeated instances of tardiness in reporting to work. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) Employee's Duty to Employer. The employee's obligation to arrive at work on time is an implied obligation which the employer does not have to set forth at the time of hire.

(c) Tardiness as a Breach of the Employee's Duty. Tardiness breaches the standard of punctual behavior which the employer has the right to expect. Tardiness is misconduct if it results in a substantial breach and disregard of the duty owed to the employer and shows a willful or wanton disregard of and injures or tends to injure the employer's interests, such as any of the following circumstances:

(1) Repeated inexcusable tardiness to work despite a recent warning that inexcusable tardiness may result in discharge.

(2) An instance of inexcusable tardiness considered in conjunction with violations of other employer standards and prior reprimands or warnings for those violations.

(3) A single instance of inexcusable tardiness which causes reasonably foreseeable substantial injury to the employer's interests.

(d) Excusable Tardiness.

(1) The following circumstances do not establish a willful or wanton disregard of the employer's interests and are not misconduct:

(A) Occasional or isolated lapses of tardiness without previous reprimands or warnings, except as provided by subdivision (c) of this regulation.

(B) Compelling reasons for tardiness regardless of the number of prior instances of tardiness, reprimands, or warnings.

(2) If a claimant has a compelling reason for his or her tardiness, his or her discharge cannot be for misconduct, regardless of previous instances of tardiness or prior reprimands and warnings. Substantially compelling reasons outweigh a claimant's obligation to arrive at work on time regardless of the adverse effect on the employer's operations. Less compelling circumstances tend to show disregard of the employer's interests, if the tardiness adversely affects the employer's operations. Mere personal inconvenience, failure to allow ample traveling time to work, oversleeping, or missing the bus are not reasonable excuses for repeated tardiness.

EXAMPLE 1. Minor Infraction--No Harm. Z's employer expected Z to be at Z's post by 7:00 a.m. Z was required to punch in at the time clock two to three minutes before 7:00. Z arrived at the post late on several occasions. The employer warned Z that tardiness would result in discharge. On the day Z was discharged, Z was ten to fifteen yards away from Z's post at 7:00. The employer's operations were not affected by Z's tardiness.

Although Z had no justification for tardiness, the infraction was minor, and the conduct did not interfere with the employer's operations. Therefore, Z's conduct was not so unreasonable as to constitute misconduct.

EXAMPLE 2. Repeated Inexcusable Tardiness. Y was a storeroom manager for a hotel. Y's duties included opening the storeroom at 7:00 a.m. so that supplies could be obtained for various needs of the hotel. In the last year of Y's employ, Y reported to work late on several occasions, despite reprimands and warnings. Y's tardiness ranged from ten minutes to four and a half hours. The employer discharged Y for tardiness.

Y's pattern of reporting late without reasonable excuse was a substantial breach of the duty owed to the employer and was a willful and wanton disregard of the employer's interest. Y was discharged for misconduct due to tardiness.

EXAMPLE 3. Repeated Inexcusable Tardiness. X was an offset press operator in charge of a three person crew. X's presence was necessary to prepare for the operation of the press. X was late for work on 47 occasions in seven months of employment. The employer warned X twice that continued tardiness would result in discharge. X was tardy several times after the second warning and for no justifiable reason. The employer discharged X for tardiness.

X was discharged for misconduct due to tardiness, since X's conduct showed a substantial breach of the duty to be punctual and a willful and wanton disregard of the employer's interest.

EXAMPLE 4. Single Instance of Tardiness--Other Violations. W received permission to report to work one hour late. W reported in two and one-half hours late and had no compelling reason for tardiness. The employer immediately discharged W. Prior to the discharge, the employer had reprimanded W for being absent from work without notifying the employer, taking longer lunch periods than authorized, leaving work early, and refusing to follow instructions.

The first instance of W's tardiness when considered in conjunction with W's previous conduct showed a willful and wanton disregard of the employer's interests and the employee's duty and therefore was misconduct due to tardiness.

EXAMPLE 5. Single Instance of Tardiness--Substantial Foreseeable Harm. T was a chemist responsible for operating controls to insert catalytic agents at several steps during a factory production process. The work could not proceed without the addition of the catalysts. T had never before been tardy at work but one day showed up 2 hours late to work without excuse, resulting in the loss of valuable production and the payment of wages to production workers for nonproductive time on line. The employer discharged T for this single instance of tardiness.

T's discharge was for misconduct even though for only a single instance of tardiness not preceded by reprimands or warnings, since the substantial loss to the employer was foreseeable.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-41. Discharge for Misconduct--Union Relations.

Note         History



(a) This section relates to discharge for misconduct due to an employee's union-related acts. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) An employee may be discharged during the course of a trade dispute if the discharge is unequivocal. Lawful union activity is protected. An employee may engage in union-related activities, but if during the course of the union activity the employee engages in independent acts, such acts are misconduct if any of the following conditions exists:

(1) The act is illegal.

(2) The act violates the collective bargaining agreement between the employer and the employee's union.

(3) The act violates an employer rule or a standard of behavior which the employer has the right to expect, as specified in Section 1256-32 of these regulations.

COMMENTS. Under subdivision (b) a trade dispute merely suspends, but does not sever the employer-employee relationship. Severance of the relationship during a trade dispute requires an unequivocal discharge.

EXAMPLE 1. A's union was involved in a trade dispute with management. A left work because of the dispute and engaged in lawful activities in furtherance of the strike. However, A also addressed employees who continued to work and management personnel with obscene and insulting language and threw rocks at vehicles entering the plant. The employer discharged A.

A's acts went beyond the bound of A's right to peacefully picket. A's employer unequivocally discharged A because of A's independent acts of misconduct. The employer-employee relationship was severed. The discharge was for misconduct.

COMMENTS. Under subdivision (b) an employee's act is not misconduct simply because he or she has participated in a trade dispute or in lawful picketing or engaged in any union-related act. The act itself must be considered misconduct against the employer. The use or failure to use or outcome of any grievance or arbitration procedure is not relevant on the issues. An employee may be discharged because his or her union has requested such action. If an employee is discharged because of acts against his or her union, the discharge is not for misconduct unless the acts also constitute misconduct against the employer. An employee who by his or her own act loses good standing in the union when this is required by the collective bargaining agreement for employment, and who is terminated, has constructively voluntarily left the job without good cause, rather than been discharged (see Section 1256-21 of these regulations).

EXAMPLE 2. A strike was called by B's union and picket lines were set up. B took an active part in the strike. B attempted to dissuade other employees from entering the employer's plant, but never used profane language or threats of violence in doing so. The employer discharged B.

B did picket energetically but peacefully as was B's constitutional right. At all times B's acts were a lawful exercise of the right to picket. Although B was discharged for strike activities, the acts did not constitute misconduct.

COMMENTS. Under paragraph (2) of subdivision (b), knowledge of the collective bargaining agreement terms is imputed to the employee. The terms of the agreement establish a rule of conduct and the employee owes a duty to the employer to comply with these terms. If the employee violates this duty, his or her acts constitute misconduct.

EXAMPLE 3. C, a member of a union, was employed to work on the construction of a dam. One of the terms of the collective bargaining agreement was that the employees would not engage in strikes or picketing and the employer would not engage in a lockout. When grievances presented to the management were not resolved promptly, the business manager of the union called for a picket line. The next day C and all the other union members picketed. C was discharged.

C's discharge was for misconduct because C violated the no-strike clause of the collective bargaining agreement.

COMMENTS. Under paragraph (3) of subdivision (b), an employee owes a duty to his or her employer to comply with the employer's rules and to conduct himself or herself in an appropriate manner while on the job. I the employee disregards this duty and the employer's interests, he or she may be discharged for misconduct. However, as under paragraph (2) of subdivision (b), inadvertences, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not misconduct. In such cases of ordinary negligence, misconduct may be found where the employee has been previously warned or reprimanded for prior similar acts of ordinary negligence and has the ability and capacity to perform satisfactorily.

EXAMPLE 4. D often engaged in arguments with D's supervisor or other employees in the presence of customers. The employer warned D that continued instances of such conduct would not be tolerated. Later D's employer asked D to work a few minutes overtime without pay based on an oral agreement between the employer and the union that compensation would not be given for less than nine minutes overtime. D engaged in a heated argument with the employer in the presence of customers. The employer discharged D.

Even though D was unaware of the oral agreement and felt that the union terms required D receive overtime compensation, D's conduct was not warranted especially since D had been previously warned. D's discharge was for misconduct.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-42. Discharge for Misconduct--Violation of Employer's Rules.

Note         History



(a) Scope. This section relates to discharges from the most recent work due to an employee's violation of a rule of the employer. Section 1256-30 of these regulations sets forth general principles also applicable under this section. For interpretations of violations of employer rules relating to the manner of performance of work by an employee, see Section 1256-38 of these regulations.

(b) General. A discharge by an employer of an individual for violation of an employer rule is for misconduct connected with the work if the rule is reasonable, the individual knew or should have known the rule, and the violation is willful or wanton, material, and substantially injures or tends to injure the employer's interests. If the individual has previously violated a minor employer rule or has previously violated the same or a similar employer rule with the knowledge of the employer, a discharge is for misconduct connected with the work if the violation substantially injures or tends to injure the employer's interests and has been preceded by prior warnings or reprimands for previous violations, or if the individual's course of conduct as a whole demonstrates a substantial disregard of the employer's interests following prior warnings or reprimands for violations of other employer rules. (See Section 1256-36 of these regulations relating to an employee's insubordination which includes interpretation of the circumstances under which an employer's rule is reasonable or unreasonable.)

EXAMPLE 1. Nurse A, a medication nurse, was discharged for deliberately reducing by 50 percent the prescribed amount of medication administered to a patient in a hospital without the permission of a doctor. Nurse A knew the hospital rule that medication could not be reduced without consulting the doctor, intentionally did not consult the doctor, and used the nurse in charge as an excuse for reducing the prescribed medication while knowing that the medication was the sole responsibility of nurse A. Nurse A was discharged by the hospital for violating the medication rule.

Nurse A's discharge is for misconduct since the rule was known, reasonable, deliberately disobeyed, material, and affected the employer's interest. However, there would be no misconduct had nurse A established a bona fide belief that a full dosage would be detrimental to the patient, that the regular nurse in charge agreed with this opinion, and that the doctor for the patient had made known to nurse A that the doctor would not object to a reduced prescription dosage in the discretion of the medication nurse and that this practice was common in the hospital. Under the latter circumstances, there is no willful violation of a rule and the practice would have been condoned by the employer, with the result that no misconduct would have been present.

(c) Clothes and Appearance. Some employers may establish reasonable rules which include standards of hygiene, mode of dress, or personal appearance. Individual employees may choose to maintain a mode of dress or grooming or personal appearance in such matters as hair style or beard which does not comply with standards established by reasonable employer rules. Some employers' standards are established to protect the health, safety or welfare of other employees or of the public, or to protect and preserve a particular business atmosphere or a business image of reliability to patrons. The individual employee may decline any reasonable alternative offered by the employer to meet the employer's standards. Under these circumstances, the employer's discharge of an employee is for misconduct and a compelling state interest exists if all of the following three conditions are met: (1) the employer's rule rationally relates to the enhancement of the employer's business; (2) the benefit to the employer outweighs the impairment of the employee's constitutional rights; and (3) there is no available alternative which would be less restrictive of constitutional rights of mode of dress or grooming or personal appearance. Thus, an employer's order to an employee to shave his beard would be reasonable if the beard was unsanitary or would adversely affect the patronage or production of the employer's particular business. The order would be unreasonable if it results from mere personal distaste of the employer or a mere ruse to discharge the employee. Also, an employer's rule that employees must confine long hair, if worn, by a hair net while at work for health or safety reasons or because customers objected to long hair is reasonable; the employee's refusal to wear a hair net at work or trim long hair as required by the employer rule is misconduct.

(d) Gambling or Game Playing. Some employers have specific rules prohibiting gambling or other game playing on the job. Nearly all employers expect and require that employees perform the work for which the employees were hired during normal work hours. Thus, an employee's gambling or game playing on the job during normal work hours may be misconduct. Usually an employee's gambling or game playing on the employer's premises during off-duty hours would not be misconduct. It would be misconduct if the employee had been given prior warnings or reprimands for similar acts and the employee's ability to work is affected or there is a substantial injury to the employer's interests. An employee's gambling or game playing off the job would not be misconduct unless this affected the employee's ability to work or caused a substantial injury to the employer's interests. This could occur if an employee who holds a position of financial, supervisory, or executive trust engaged in public gambling with adverse effect on the employer. The employer would be affected if customers or potential customers identified the employee with the employer and criticized the employee's public gambling, or withheld or withdrew business from the employer. In no event would an employee's gambling or game playing be misconduct if the employer had ordered, participated in, or condoned the employee's activity.

(e) Marriage. If an individual is discharged by an employer because the employer has a rule forbidding the employment of married persons of one sex or of both sexes and the individual either conceals married status at the time of employment or is married after employment, the discharge is not for misconduct connected with the work. The rule is an unreasonable intrusion on the right to marry. Neither is it misconduct connected with the work for an individual who holds a job for which an employer prohibits employment of married persons, to fail to seek transfer, prior to marriage, to another job with the employer to which the employer's prohibition against married employees does not apply.

(f) Money Matters. Many employers establish rules governing the handling of an accountability for money by employees in their work. Some intentional violations of these rules can have a potential for substantial injury to the employer's interests and a single violation can be misconduct. Other violations can cause relatively minor injury to the employer's interests and not be misconduct in the absence of prior warnings or reprimands by the employer for similar prior violations (see Section 1256-34 of these regulations for interpretation of what is misconduct if a cash shortage concerning money matters is involved).

An employee who substantially violates the terms of an arrangement by the employer allowing the employee to purchase items from the employer at a discount has engaged in misconduct. A typical substantial violation would be the employee's reselling of a purchased item without required prior approval of the employer or in violation of written employer prohibitions known to the employee.

EXAMPLE 2. B, a grocery checker, had been old of the employer's written rule requiring a written record of each individual sale. B's work station as a grocery clerk was near the liquor department which did not have a separate checker. When a customer came to B with a single liquor purchase, B accepted the money and after the grocery transaction was completed would either record the single liquor purchase or combine the single liquor purchase with other single purchases and record one purchase. B did this to avoid making the customer wait in line. The employer knew that B and other grocery checkers followed these practices, despite the written rule to the contrary. B's supervisor knew of the practices and participated in them. The employer discharged B for violating the single purchase rule.

B's discharge is not for misconduct because the action was condoned by the employer and served the employer's interests by promoting efficient checking service. The error was at most ordinary negligence in isolated instances or good faith errors in judgment.

EXAMPLE 3. A sales checker, C, while checking one customer, would accept money from another customer in the exact amount for a purchase and delay ringing up that sale until the current customer had been served. The employer's rule prohibited this practice. On some occasions, C would defer ringing up the sale until several customers had been served, but also deposited any cash received in the cash drawer. The employer discharged C for violating the purchase rule.

C's violations are not misconduct since C was never warned or reprimanded for a violation of procedure and at most the violations are isolated instances of negligence or good faith errors in judgment.

EXAMPLE 4. A cab driver, D, was required by the employer to keep a log of daily fares on a trip sheet. The cab meter also recorded the mileage and fare paid for each trip. The cab company operated under strict state and city regulations requiring detailed trip information for every driver. On one workday, a comparison of D's trip sheet and the meter recording showed a discrepancy of 20 unpaid miles. D blamed the discrepancy on faulty recording by the meter, but the meter was found to be accurate. The employer discharged D for failure to explain the discrepancy, but did not allege theft or misappropriation of the fares by D.

D's discharge is for misconduct due to potential loss by the employer of licensing because of strict regulations and D's failure to explain the discrepancy must be considered a deliberate and substantial violation.

(g) Motor Vehicles. Section 1256-43 of these regulations interprets what is or is not misconduct where a violation of law is involved in an employee's use or operation of motor vehicles. If an employee's willful or wanton violation of an employer rule for the use, maintenance, or operation of a motor vehicle involves potential substantial injury to the employer's interests, a discharge for violation of the rule is for misconduct. If a violation of an employer rule involves less serious consequences, a discharge for the violation is not for misconduct in the absence of prior warnings or reprimands for similar violations by the employee.

EXAMPLE 5. The duties of employee E were to drive the employer's new cars from a freight depot to the employer's storage warehouse. The employer's rule was that employees should check oil levels when driving the cars. E failed to check the oil level and damaged a connecting rod in a car E drove because the car had no oil. The employer discharged E.

E's discharge is not for misconduct since a single act of negligence with relatively minor damage to the employer's interest is involved and there was no prior violation or warning or reprimand.

(h) Property--Removal by Employee. An employee's willful or wanton removal of an employer's property from the employer's premises in violation of an employer rule known to the employee and without the express or implied permission of the employer is misconduct, unless the property is of little or no use to the employer.

EXAMPLE 6. Employee F while in route at work to the restroom saw a damaged padlock on the ground near a trash can. F took the padlock away from F's work station and hammered it to see if it would open. F was away from F's work station for five minutes. The employer discharged F for destroying the employer's property in violation of the employer's rule against damaging the employer's property.

F's discharge is not for misconduct since the property had no value, and F's violation of the employer's rule was trivial and casual and lacking in the willful or wanton disregard for the employer's interests required for misconduct.

(i) Safety. Employers may establish rules to protect the safety of employees or those who purchase or use the employer's product or service. Safety rules are almost always reasonable. An employee's willful or wanton violation of such safety rules is misconduct if the employer's interests are substantially jeopardized or injured or if the violation is repeated after the employee has been given warnings or reprimands. For interpretation of whether misconduct exists where the violation is of employer rules for safety of co-employees, see also Section 1256-39 of these regulations. For interpretation of whether misconduct exists where an employee violates a law or violates both an employer rule and a related law, see Section 1256-43 of these regulations.

EXAMPLE 7. G, an assembler for an aircraft manufacturer, rode a bicycle without authorization across an airport runway. This act violated the employer's posted signs prohibiting unauthorized entry on the runway. A plane approaching the runway for landing pulled up and circled to avoid hitting G. The employer discharged G for violating the rule.

G's discharge is for misconduct involving violation of a reasonable rule for the protection of the safety of plane, passengers and crews as well as employees, with a substantial danger created by violations.

(j) Store Purchases. Many employers in retail merchandising establish rules governing the purchase of merchandise by their own employees. For example, an employer might require that each purchase by an employee be accompanied by a sales slip, or entered into a ledger or record book. The purpose of employer rules of this type is often to prevent theft by employees. An employee's willful or wanton violation of an employer's rules relating to the employee's own store purchases ordinarily involves substantial injury or tendency to injure the employer's interests and is misconduct. Employers may also establish rules governing the wrapping, mailing, delivery, charging or exchange of purchases by customers. An employee's violation of employer rules relating to store purchases by customers usually will be relatively minor in consequences and is not misconduct, unless the violation occurs after prior warnings or reprimands for similar violations (see subdivision (f) of this section and Section 1256-34 of these regulations for interpretation of whether misconduct exists where an employee's violation relates to employer rules concerning the handling of money).

EXAMPLE 8. H was discharged by the employer because H eft the employer's store with a 33-cent purchase not accompanied by a sales slip as required by an employer rule. However, H had not been told of the employer's rule, and had previously purchased items without sales slips or any warning by the employer. The employer discharged H for the violation.

H's discharge is not for misconduct because H had no knowledge of the employer's rule, had not been previously warned, and H's violation was not deliberate. However, if H had been warned for any prior violations and then had violated the rule, a discharge would have been for deliberate acts and thus for misconduct.

(k) Time Clock. Employers in some establishments have rules for employees reporting into and out of work requiring punching time clocks. Often the rule is that each employee must personally punch the time clock. An employee's knowing violation of such a rule is misconduct, unless there is no falsification of time worked by the employee and the violation is an isolated instance. Intentional substantial falsification of time worked is misconduct.

EXAMPLE 9. J, a security guard, left J's post early and had another guard punch J's time card out at the regular quitting time. The employer discharged J for violating the employer's rule that each employee must personally punch out the time card when leaving work.

J's discharge is for misconduct due to a deliberate violation of a substantial employer interest and involves falsification of time worked.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256-43. Discharge for Misconduct--Violation of Law.

Note         History



(a) Scope. This section relates to discharge from the most recent work for misconduct due to violation of law. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) Off-Work Violations of Law. Criminal acts or other violations of law are not necessarily misconduct. For example, an individual's criminal act outside of working hours and away from the employer's premises usually would have no connection with the work and would not be misconduct under Section 1256 of the code (see related discussion in Section 1256-33 of these regulations). However, an employee's criminal act or other violation of law outside of working hours and away from the employer's premises can be misconduct if the employee uses information obtained from the work to carry out the crime or other violation of law, or there is any other substantial connection with the work.

EXAMPLE 1. A janitor, A, was arrested for drunk driving while off duty. The employer discharged A.

A's discharge is not for misconduct because A's off-duty intoxication did not relate to work performance and did not substantially injure the employer's interests.

EXAMPLE 2. B, a television repair person, while repairing a customer's television set in the customer's home, noted the layout of the home, access characteristics, and the nature and location of property in the home. That night B returned and stole property from the customer's home. B was convicted of the theft. The employer discharged B.

B's violation of law is misconduct due to the clear connection with the work even though the act was off duty and away from the employer's premises.

EXAMPLE 3. C, a bookkeeper in a bank, persisted in drawing personal checks against C's account in that bank when there were insufficient funds to cover the checks. The bank discharged C for this violation.

C's violation was misconduct even though off duty since bank employees are expected to reflect honesty and integrity due to the special character of their work. An employee's lack of integrity reflects on the bank's integrity and adversely affects the employer's interests.

(c) On-the-Job Violations of Law. An employee's on-the-job criminal act or other violation of law is misconduct if the act is substantial in nature, regardless of the employer's prior warnings or reprimands. An employee's on-the-job criminal act or other violation of law is not misconduct if the act is minor in nature, unless the employee commits the act after prior warnings or reprimands by the employer for similar acts. However, in no event will an employee's criminal act or other violation of law be misconduct if the employer had ordered, participated in, or condoned the employee's action.

EXAMPLE 4. D, a taxicab driver, was en route to pick up a passenger when D was hailed by a person on the opposite side of the street. D glanced off the road toward the person in accordance with a company policy to identify possible customers and report cab requests to the company dispatcher. D was involved in a minor accident as a result of this action. The employer discharged D.

D's action was not misconduct, but at most was a good faith error in judgment in an attempt to carry out company policy.

EXAMPLE 5. E, a taxicab driver, was involved in a series of six accidents within a short period of time while driving cab. In addition, E repeatedly violated traffic laws by failing to make boulevard stops, by driving on the wrong side of the street, and by making prohibited mid-block “U” turns.The employer had given E a safety course and as each accident occurred discussed preventive measures. The employer gave E a disciplinary suspension following one of the accidents. Shortly after a later accident, the employer was held liable in damages and discharged E.

E's action was misconduct because it was clearly substantial, prejudicial to the employer's interests, and not the result of mere inefficiency.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

§1256.1-1. Incarceration--Absence from Work.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1256.1, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (d)(1) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Change without regulatory effect repealing Section 1256.1-1 (Register 87, No. 40).

§1256.2-1. Voluntary Leaving--Good Cause--Deprivation of Equal Employment Opportunities.

Note         History



(a) Scope. This section interprets Section 1256 and 1256.2 of the code concerning whether an individual leaves with or without good cause when the leaving of work is due to deprivation by the employer of equal employment opportunities due to the individual's race, color, religious creed, sex, national origin, ancestry, or physical handicap under Section 1256.2 of the code, or due to age, medical condition or marital status or other unlawful basis under Section 1256 of the code. “Employment opportunities” include, but are not limited to, assignments to jobs, work atmosphere, compensation, including fringe benefits, promotions, transfer, upgrading, rights and duties of employees under work rules, and the terms, conditions or privileges of employment.

(b) Applicable Law. Sections 1256 and 1256.2 of the code, with respect to equal employment opportunity issues, and this section are to be construed in harmony with and subject to applicable and controlling federal and California law on the subject of equal employment opportunities, including, but not limited to, Section 8 of Article 1 of the California State Constitution, the California Fair Employment Practice Act (Sections 1410 and following, Labor Code), Titles VI and VII of the Civil Rights Act of 1964, as amended (42 United States Code 2000d and 2000e), Section 1197.5 of the Labor Code relating to equal pay for equal work, the federal Equal Pay Act of 1963, as amended (29 United States Code 206(d)), the federal Age Discrimination Employment Act of 1967, as amended (29 United States Code 621 et seq.), the federal Rehabilitation Act of 1973, as amended (29 United States Code 701 et seq.), and comparable statutes (for pertinent federal regulations, see especially Title 29, Code of Federal Regulations, Chapter XIV: Part 1604, Sections 1604.1 to 1604.10, relating to sex discrimination; Part 1605, Section 1605.1, relating to discrimination based on religion; and Part 1606, Section 1606.1, relating to discrimination based on national origin).

(c) Bona Fide Occupational Qualification. Under Sections 1256 and 1256.2 of the code, there is an exception that otherwise prohibited discrimination by an employer is excused if based on a bona fide occupational qualification. The bona fide occupational qualification exception shall be interpreted narrowly, and the burden to establish it shall rest on the party relying upon the exception. Most jobs can be performed equally well by all otherwise qualified persons without regard to race, color, religious creed, sex, national origin, ancestry, physical handicap, age, medical condition, or marital status. Specifications that are clearly job-related even though based on otherwise prohibited discrimination tests are permitted in the rare case where a bona fide occupational qualification can be justified. For example, if a male actor-employee in the movie industry were denied a particular role in a movie where a woman was necessary for the purpose of authenticity or genuineness, sex would be a bona fide occupational qualification, and leaving work due to the denial would be without good cause. Job-related specifications unrelated to prohibited discriminatory classifications are permitted, such as required licenses, permits, special driving or other job skills, and the like. An individual who left work due to denial of pay raises, promotions, or other employment opportunities based on failure to meet such nondiscriminatory job-related specifications would not have good cause for the leaving of work.

(d) Security Clearance. An individual who leaves work because a promotion, pay raise, or other employment opportunity has been denied due to failure to meet applicable security requirements of California or federal law leaves without good cause under Sections 1256 and 1256.2 of the code.

(e) Other Remedies of Employee. If an individual is intentionally and unlawfully deprived of equal employment opportunities by an employer who persists in the deprivation, and the individual leaves work for this reason, there is good cause for leaving work under Sections 1256 and 1256.2 of the code even if the individual does not first file a complaint with the state or federal agency with jurisdiction to provide relief for and stop the violation. If the employer's acts are unintentional, however, the individual does not have good cause to leave work due to prohibited deprivation of rights if the individual fails to make reasonable efforts to put the employer on notice and give an opportunity to make adjustments. Reasonable efforts are made if the individual takes reasonable steps to call the matter to the employer's attention, with a reasonable time and opportunity for adjustment, and it is not necessary that the individual file a formal complaint or charge with any state or federal agency to meet the “reasonable efforts” condition.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1256.2, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (b) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1256.5-1. Purge of Disqualification for Irresistible Compulsion to Use or Inability to Abstain from Using Intoxicants.

Note         History



(a) An individual who has been disqualified for unemployment benefits because of a discharge from work or a leaving of employment resulting from an irresistible compulsion to use or consume intoxicants may purge the disqualification under Section 1256.5 of the code by participation in a treatment program which satisfies the conditions of subdivision (b) and by submitting to the department a written certification from a physician or authorized treatment program administrator that the individual is in or has completed the treatment program and is able to work.

(b) Participation in a treatment program, public or private, will permit the purging of a disqualification if the treatment program meets one of the following conditions:

(1) The treatment program is officially licensed or certified by the State Department of Alcohol and Drug Programs (ADP) or the State Department of Health Services (DHS) or is licensed by or satisfies a program review by the state in which the program is located.

(2) The treatment program is an established self-help program as determined by the department as having a recognized record in the community for success in treating individuals addicted to alcohol or drugs. This includes programs such as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA), even though they do not meet the minimum standards for ADP licensure or certification.

(c) The written certification shall contain a statement that the individual has entered into and is continuing in, or has completed a treatment program for his or her condition, and is able to work. The statement shall be completed by one of the following:

(1) A physician

(2) An authorized treatment program administrator from a program which satisfies either subdivision (b)(1) or (b)(2). If there is no authorized treatment program administrator to certify to an individual's participation in an established self-help program and his or her ability to work, the individual shall provide to the department a physician's statement certifying that the individual has entered into and is continuing in, or has completed the program for his or her condition, and is able to work.

(d) Upon receipt by the department of the written certification, the department shall determine whether the written certification and the treatment program in which the individual is participating or has participated meets the requirements of this regulation. If the department determines that the requirements of this regulation are met, the department shall purge the disqualification.

NOTE


Authority cited: Section 305 and 306, Unemployment Insurance Code. Reference: Section 1256.5, Unemployment Insurance Code.

HISTORY


1. New section filed 10-22-92; operative 11-23-92 (Register 92, No. 43).

§1260(a)-1. Purging Disqualification--Voluntary Leaving or Discharge for Misconduct.

Note         History



(a) Scope. This section interprets subdivision (a) of Section 1260 of the code which provides for a purge of a disqualification under Section 1256 of the code if a disqualified individual, after the act causing disqualification, performed service in bona fide employment for which remuneration is received equal to or in excess of five times his or her weekly benefit amount. Sections 1256-1 to 1256-43, inclusive, of these regulations interpret various circumstances relating to what is good cause for voluntary leaving of most recent work and when a discharge is for misconduct connected with the most recent work.

(b) Bona Fide Employment. The basic test to determine whether employment is “bona fide” to purge a disqualification under Section 1256 of the code is whether the total facts lead reasonably to a conclusion that the individual was in good faith genuinely attached to the labor market. An individual was not engaged in bona fide employment, however, if he or she admittedly worked for the sole, primary, or dominant purpose of avoiding and purging a disqualification under Section 1256 of the code. No fixed rule can govern when employment is “bona fide,” but the following factors shall be considered by the department:

(1) The manner in which the employment was obtained, and the nature and extent of the claimant's search for work.

(2) Whether the employment was in the regular course of the employer's business.

(3) Whether the employer had previously hired someone for the job, and whether someone was hired for the job after the claimant asserting purging relief was separated from the job.

(4) Whether the employment was in the claimant's usual occupation.

(5) Whether the wages for the employment were equivalent to the claimant's wages in his or her usual occupation or last preceding employment.

(6) Whether the claimant is willing to accept future employment of the same kind and under the same conditions as the employment asserted as the purging employment.

(7) The claimant's reasons for accepting the employment, the length of the employment, and the reasons for the termination of the employment.

(c) Types of Work. Normally, self-employment or work as an independent contractor indicates a withdrawal from the labor market, and not a genuine attachment to the labor market, and is not bona fide employment under Section 1260 of the code. However, self-employment may be bona fide employment if the claimant has qualified for elective unemployment insurance coverage based on such self-employment. In such cases, the net earnings from self-employment determined to be bona fide are counted to determine whether the claimant has received remuneration of five times the weekly benefit amount to purge a disqualification under Section 1256 of the code.

Military service, any work in a common law employment relationship whether or not covered for unemployment insurance purposes, and all work covered for unemployment insurance purposes except illegal employment such as prohibited gambling or narcotics sales, are “employment” for purposes of purging under Section 1256 of the code, and remuneration for such work may be counted if the work is “bona fide” under all the facts. (For discussion of the common law employment relationship and who is an “employee” see Sections 606-1, 621(b)-1, 621(c)-1, and 680-1 of these regulations. For interpretation of some exemptions from covered employment, see Sections 629-1 to 653-1 of these regulations.)

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1256 and 1260, Unemployment Insurance Code.

HISTORY


1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

2. Amendment of subsection (c) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1260-1. Week of Ineligibility--Fixed Disqualification.

History



HISTORY


1. Repealer filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1262-1. Week of Ineligibility--Trade Disputes.

Note         History



With respect to acts or periods of ineligibility under Section 1262 of the code “week of ineligibility” shall be any week or weeks applicable to the individual under these regulations, during any portion of which his or her unemployment is due to his or her having left his or her work because of a trade dispute and for the period during which he or she continues out of work by reason of the fact that the trade dispute is still in active progress in the establishment in which he or she was employed.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1262, Unemployment Insurance Code.

HISTORY


1. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1262-2. Trade Disputes--Notification to Department.

Note         History



(a) Whenever individuals leave their work because of a trade dispute under conditions which may disqualify such individuals from benefits pursuant to the provisions of Section 1262 of the code, the employing unit, within ten days of the date individuals left such work, shall notify the department at its office in Sacramento or such other office of the department as may be designated by an authorized representative of the department. Such notification shall include separately for each union involved:

(1) The name and address of the employing unit;

(2) A statement that a trade dispute exists;

(3) The name and address of the union (or unions) claiming to represent the individuals who left work because of a trade dispute; and

(4) Such other information as may be prescribed by the department.

(b) The employing unit may be granted additional time by the department in which to comply with the requirements of subdivision (a) of this section, provided that any notice submitted after expiration of the time limits set forth in this section should include a statement of the reasons why such delay should be considered with “good cause.”

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1262, Unemployment Insurance Code.

HISTORY


1. New NOTE filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

2. Amendment of subsection (a), repeal of subsections (a)(2)-(3) and renumbering and amendment of subsections filed 12-14-93; operative 1-14-93 (Register 93, No. 51).

§1264-1. Services Performed by Aliens.

Note         History



(a) The wages that compensate the services performed by an alien may be used as the basis for the payment of unemployment compensation benefits, extended duration benefits, and federal-state extended benefits to the extent that the alien was in one of the following immigration statuses while performing the services:

(1) Lawfully admitted to the United States for permanent residence.

(2) Lawfully present in the United States for the purpose of performing the services.

(3) Permanently residing in the United States under color of law, also referred to as “PRUCOL.”

(b) An alien has the burden of proving the extent to which he or she performed base period services while in one or more of the statuses listed in subdivision (a). Any determination by the department that an alien was not, or was not to the extent stated in the determination, in one of the statuses listed in subdivision (a) during his or her base period, shall be based on a preponderance of the evidence. Such evidence may include evidence that the Immigration and Naturalization Service (INS) was unable to verify the alien's immigration status under Section 1326-13 of these regulations and any other relevant information provided by the INS in response to the department's request for such verification.

(c) As used in this regulation, the following terms have the meanings assigned:

(1) “Alien” means a claimant who was neither a United States citizen nor a United States national during all of his or her base period.

(2) “Preponderance of the evidence” means such evidence that, as when weighed against the evidence opposed to it, has the more convincing force and the greater probability of truth.

(3) “Base period services” means the services that are compensated by the wages paid in the claimant's base period as defined in Section 1275 of the code.

(4) “INS” means the United States Immigration and Naturalization Service.

(d) As a condition of eligibility and in order for the department to determine the extent to which base period wages may be used in the computation of benefits, all claimants shall state whether and to what extent they were United States citizens, nationals, or in one of the immigration statuses listed in subdivision (a) of this section, when they performed base period services.

(e) If any subdivision of this regulation or its application to any person or circumstance is held invalid, the invalidity shall not affect other subdivisions or applications of this regulation which can be given effect without the invalid subdivision or application, and in this respect the subdivisions of this regulation are severable.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1264, 1275 and 1326, Unemployment Insurance Code; Section 3304(a)(14), Title 26, United States Code.

HISTORY


1. New section filed 10-3-88; operative 10-3-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 42). For prior history, see Register 78, No. 28.

2. Change without regulatory effect amending subsection (a)(3), repealing subsections (c)(5)-(c)(5)(P) and (e) and relettering subsection, and amending Note filed 2-6-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 6).

§1265.6-1. Allocation of Holiday Payments.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1265.6, Unemployment Insurance Code.

HISTORY


1. New section filed 11-3-94 as an emergency; operative 11-3-94 (Register 94, No. 44). A Certificate of Compliance must be transmitted to OAL by 4-3-95 or emergency language will be repealed by operation of law on the following day.

2. New section refiled 2-28-95 as an emergency; operative 3-3-95 (Register 95, No. 9). A Certificate of Compliance must  be transmitted to OAL by 7-3-95 or emergency language will be repealed by operation of law on the following day.

3. Repealed by operation of Government Code section 11346.1(g) (Register 95, No. 50).

Article 1.5. Retraining Benefits

§1267-1. Training Benefits--Definitions.

Note         History



For the purposes of Section 1267-2 of these regulations and Section 1267 of the code:

(a) “Apprentice” means only an individual at least 16 years of age who is in training under apprenticeship standards and a written apprenticeship agreement pursuant to Chapter 4 (commencing with Section 3070) of Division 3 of the Labor Code.

(b) “Training” means work-related programs approved by the department, including but not limited to, classroom training, instruction, or on-the-job training for an apprentice.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1267, Unemployment Insurance Code.

HISTORY


1. New section filed 8-3-79; effective thirtieth day thereafter (Register 79, No. 31).

2. Change without regulatory effect repealing subheading filed 1-24-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 4).

§1267-2. Eligibility.

Note         History



Any apprentice, otherwise eligible for benefits under the code, who is in training is eligible to receive such benefits for any week during which he or she is otherwise unemployed and participates in training, and such benefits shall not be denied to any apprentice for any such week because of the application of any provisions of the code relating to availability for work, active search for work, or refusal to accept work.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1267, Unemployment Insurance Code.

HISTORY


1. New section filed 8-3-79; effective thirtieth day thereafter (Register 79, No. 31).

§1267-3. Approved Training.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1267, Unemployment Insurance Code.

HISTORY


1. New section filed 7-13-2000 as an emergency; operative 7-13-2000 (Register 2000, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-10-2000 or emergency language will be repealed by operation of law on the following day.

2. New section refiled 11-6-2000 as an emergency, including amendment of subsection (b); operative 11-6-2000 (Register 2000, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-6-2001 or emergency language will be repealed by operation of law on the following day.

3. Repealed by operation of Government Code section 11346.1(g) (Register 2001, No. 38).

Article 2. Computation  (Amount and Duration)

§1277-1. Computation of Benefits Under Sections 1277 and 1281 of the Code--Base Period and Calendar Quarter.

Note         History



NOTE


Authority cited: Section 1277, Unemployment Insurance Code.

HISTORY


1. Amendment filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15).

2. Repealer filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1277-2. Definition of “Work.”

Note         History



For the purposes of Sections 1277 and 1277.5 of the code:

(a) “Work” means services performed by a person for remuneration under a bona fide contract with and payable by another person, including any employing unit, and includes services performed for income or earnings in self-employment, or as an employee as defined by Section 621 of the code, or as an independent contractor for a principal, or as an employee under the usual common law or admiralty rules regardless of whether the services are in “employment” under the code, and services which an employee is ready, willing and able to perform but is involuntarily prevented from performing by the actions of his or her employer.

(b) “Remuneration” as used in subdivision (a) of this regulation includes call-in or stand-by pay, but does not include “other benefits” as defined by Section 2629 of the code, pay for sick leave, vacation pay, back pay, supplemental unemployment benefit payments, severance, dismissal or separation pay, in-lieu-of-notice pay, or prizes, awards, or other gains received in any drawing, game, or contest.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1277, Unemployment Insurance Code.

HISTORY


1. New section filed 4-13-73; effective thirtieth day thereafter (Register 73, No. 15). For history of former section 1277-2, see Register 72, No. 24.

2. Amendment of subsection (b) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Amendment of subsection (a) filed 8-24-92; operative 9-23-92 (Register 92, No. 35).

Article 2.4. Work Sharing Unemployment Insurance Benefits

§1279.5-1. Definitions.

Note         History



The following definitions apply to the regulations in this article and Unemployment Insurance Code section 1279.5.

(a) “Affected work unit” means the entire work force or unit(s) within the total work force that are assigned by the work sharing employer to participate in the work sharing program.

(b) “Application” means the work sharing plan application submitted by an employer to the department.

(c) “Certification” means the work sharing certification which the work sharing employer issues to the employee so that the employee may file a claim for work sharing benefits.

(d) “Normal weekly wages” means the wages earned in a week that the employee would usually earn from the work sharing employer if there was no reduction in wages or hours due to work sharing, or wages earned for 40 hours, whichever is less.

(e) “Normal weekly hours of work” are either those hours an employee in the same position or job classification would have worked for the work sharing employer, if there had been no reduction in hours due to work sharing, or 40 hours, whichever is less.

(f) “Week” means the work sharing employer's payroll week. If the work sharing employer does not pay wages on a weekly basis, a “week” shall be a seven consecutive day period beginning at 12:01 a.m. Sunday and ending at midnight the following Saturday.

(g) “Work sharing benefits” means the unemployment insurance benefits payable under the provisions of Section 1279.5 of the Unemployment Insurance Code.

(h) “Work sharing employer” means the employer participating in the work sharing program.

(i) “Work sharing plan” means all the information submitted by the employer in the application to the department for participation in the work sharing program. (Refer to Section 1279.5-2 of these regulations for the required information.)

(j) “Work sharing program” means the program described in Section 1279.5 of the Unemployment Insurance Code which provides employers with an alternative to layoffs and their employees with the payment of reduced unemployment insurance benefits.

(k) “First contact date” means the date of the first contact between the department and the work sharing employer with regard to an application to participate in the work sharing program.

(l) “Regular employer” means (for work sharing purposes) the employer responsible for the following:

(1) Payment of wages,

(2) Withholding and payment of tax contributions,

(3) Determining the individual's normal weekly hours of work,

(4) Determining the individual's normal weekly wages,

(5) Reduction of the individual's normal weekly hours of work, and

(6) Reduction of the individual's normal weekly wages.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New article 2.4  and section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 and filed 8-18-94 (Register 94, No. 33).

3. Amendment of first paragraph and subsection (c) and new subsections (l)-(l)(6) filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

§1279.5-2. Application for Plan Approval.

Note         History



(a) An employer who wishes to permit employees to participate in the work sharing program shall submit an application to the department. The application shall include:

(1) The employer name, telephone number, address, and California employer account number.

(2) The employer's specific type of business.

(3) The employer name that will be used on the work sharing certification.

(4) The employer name, address, and telephone number of the location(s) where the work sharing will occur, if different from subsection (a)(1).

(5) Whether the business/organization is a public entity. If so, the type of public entity that best describes the organization. For example, city, county, state, federal, school district, etc.

(6) The effective date of the work sharing plan. (Refer to Section 1279.5-3 of these regulations for the effective date of a new or renewal work sharing plan.)

(7) The effective date of the expanded coverage if adding employee(s) or work unit(s) to an existing work sharing plan. (Refer to Section 1279.5-4 of these regulations for the effective date of the expanded coverage.)

(8) The estimated weekly percentage reduction in hours and wages of employees participating in the work sharing plan.

(9) The work unit(s), the number of employees in the unit(s), and the number of employees participating in the work sharing plan.

(10) Whether the payroll periods are weekly, bi-weekly, monthly, or other. If the payroll periods are weekly, the day of the week the payroll ends.

(11) Whether the work sharing plan is part of a transition to a permanent layoff or closure.

(12) The circumstances which require the employer to participate in the work sharing program to avoid layoffs.

(13) Whether any participating employees are covered by a union/collective bargaining agreement. If so, the union name, local number, title and position of the collective bargaining agent authorized to approve the work sharing plan, and the date signed.

(14) Whether the employer is willing to have its name released when the Employment Development Department receives requests for the names of companies that would be willing to share their experiences in the work sharing program, bearing in mind that participating in the work sharing program is confidential.

(15) Whether the employer's work sharing plan involves at least two employees, at least ten percent of the work force or work unit(s), and at least a ten percent reduction in both hours worked and wages earned.

(16) The original signature of the corporate officer, sole proprietor, or general partner, authorized to approve the working sharing plan, if the employer is in private business.

(17) The original signature of the executive officer or person with authorization, substantiated in writing, to approve the work sharing plan, if the employer is a public entity.

(18) The printed or typed name of the signatory in subsections (16) and (17) of these regulations, their position or title, the contact person of the employer and his/her telephone number.

(b) The employer shall certify as follows:

(1) We understand that if we are a participating employer using the tax rate method, our reserve account will be charged in the usual manner for benefits paid under this program. In addition, these charges may increase the employer's unemployment insurance contribution rate in future years.

(2) We understand that if we are a participating reimbursable employer, we will be billed quarterly for the cost of benefits paid in the same manner as they are currently billed for other unemployment insurance benefits.

(3) We understand that a holiday cannot be used as a work sharing day unless the employee(s), in the same position, performed compensated services as part of the employee's normal weekly hours of work in that holiday, during the twelve month period prior to the employer's participation in the work sharing program. Furthermore, we understand that we are not to issue certification forms to employees that contain a holiday as the only work sharing day.

(4) We will provide the Employment Development Department with the weekly percent of reduction in hours and wages for each participating employee as a result of this work sharing program.

(5) We understand that in order to be eligible, an employee must have worked at least one normal work week with no reductions prior to issuance of a certification for benefit payment.

(6) We understand that if any employee is working for a school district and/or non-profit entity providing services to a school district, we must provide the Employment Development Department with the dates individual employees are between successive academic terms and/or in a recess period. Furthermore, we understand that we are not to issue certification forms to employees for those weeks the employee is between successive terms or in a recess period, where there is reasonable assurance that the employee will return to work. (Section 1253.3 of the California Unemployment Insurance Code.)

(7) We understand that a plan approved by the Employment Development Department shall expire six months after its effective date. Expanded coverage approved to add other work unit(s) shall expire on the same date as the plan. A new plan may be approved immediately following the expiration of the previous plan if the employer submits the new plan no more than ten days after the prior plan expired and the employer finds it necessary to provide employees with continuous coverage under this program.

(8) We understand that leased or temporary service employees that are provided by another employer cannot be covered under this work sharing plan.

(9) We understand that leased or temporary service employees we provide to other employers cannot be covered under this work sharing plan.

(c) The director shall approve or disapprove the work sharing plan by the close of business no later than five working days from the date the completed work sharing plan is received.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 and filed 8-18-94 (Register 94, No. 33).

3. Editorial correction of subsections (a)(6) and (14) (Register 94, No. 33).

4. Amendment of subsections (a)(1) and (a)(10) and new subsections (b)(8)-(c) filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

§1279.5-3. Effective Date of Work Sharing Plan.

Note         History



(a) An application for a new work sharing plan must be mailed and have a postmark date within 28 days of the first contact date to be considered timely.

(1) If a timely application for a new work sharing plan has been submitted to the department, the effective date of the work sharing plan shall be no earlier than the Sunday before the first contact date with the department to apply for the work sharing program. If the contact is made by mail, the postmark date of the envelope containing the employer's correspondence shall be considered the first contact date.

(b) If a timely application for a renewal of a work sharing plan has been submitted, the effective date of the work sharing plan shall be no earlier than the day after the prior plan expires, providing the plan application is submitted no more than ten days after the prior plan expired.

(c) A delayed filing of the new or renewal application shall be considered timely if good cause for the delay in filing is established. Good cause shall include:

(1) A diligent attempt by the employer, as determined by the department, to obtain the required original signature on the application of the authorized person who was unavailable to sign the document within the prescribed time limit.

(2) A diligent attempt by the employer, as determined by the department, to obtain the required original signature(s) on the application of the collective bargaining agent(s) who were unavailable or undecided on signing the document within the prescribed time limit.

(d) The department may elect to apply two exceptions to the rule set forth above in subsection (a)(1) of these regulations as follows:

(1) The Sunday after the first contact date with the department to apply for the work sharing program, if requested by the employer on the work sharing plan application, or

(2) Two Sundays before the first contact date with the department to apply for the work sharing program, if one of the following conditions is met:

(A) The employer's payroll week ends on a day other than Saturday, or

(B) The hours and wages of employees who will be participating in the work sharing plan will be reduced during the week which includes the Sunday before the first contact date with the department to apply for the work sharing program.

(e) If the employer fails to submit a timely application, without good cause, the plan shall have an effective date no earlier than the Sunday prior to the postmark date of the application.

(f) The department shall not approve a work sharing plan if the effective date is prior to the expiration date of another work sharing plan for the same California employer account number.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 and filed 8-18-94 (Register 94, No. 33).

§1279.5-4. Expanding Coverage.

Note         History



(a) To add work unit(s) covered by the collective bargaining agreement to a previously approved work sharing plan, the work sharing employer shall submit an additional application and provide the information as described in Section 1279.5-2 of these regulations.

(b) The effective date of the expanded coverage shall be no earlier than the previously approved work sharing plan.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 and filed 8-18-94 (Register 94, No. 33).

§1279.5-5. Work Sharing Employer Responsibilities in the Claim Filing Process.

Note         History



(a) The work sharing employer shall complete a certification to enable an employee to file a claim for weekly or bi-weekly work sharing benefits.

(b) The work sharing employer shall issue the certification to the employee by the later of either the fourteenth calendar day after the end of the week to which the certification applies, or the fourteenth calendar day after the department sends written notification to the work sharing employer that its work sharing plan has been approved.

(c) The issuance date of the certification may be extended, with the approval of the department, in cases where the department deems the work sharing employer has attempted, in good faith, to meet the timelines in Section 1279.5-5 subsection (b) of these regulations.

(d) The certification shall be considered “issued” to the employee on the date of the occurrence of any of the following events:

(1) Hand delivered to the employee, or

(2) Mailed to the employee, or

(3) Made available to the employee at a pickup point familiar to the employee.

(e) On each certification, the information provided by the work sharing employer shall include:

(1) The name and social security number of the employee.

(2) The ending date(s) of the week(s) to which the certification applies.

(3) The normal weekly wages earned by the employee.

(4) The reduced wages paid due to work sharing during the week(s) to which the certification applies. (See Section 1279.5-7 of these regulations.) The reduced wages paid shall include any type of pay received for work performed (or leave taken) during that week including, but not limited to:

(A) Regular wages,

(B) Overtime pay,

(C) Bonus pay (allocated to the week(s) in which the service was performed, not the week in which the bonus pay was paid),

(D) Vacation, sick leave, holiday or personal leave pay.

(5) The percentage of wage reduction due to work sharing. This is the normal weekly wages in above subsection (3) of these regulations minus the reduced wages described in subsection (4) of these regulations and divided by the normal weekly wages in subsection (3).

(6) A The normal weekly hours of work and the employee.

(7) The reduced hours worked due to work sharing by the employee during the week(s) to which the certification applies. The reduced hours worked shall not exceed 36 hours. (See Section 1279.5-8 of these regulations.)

(8) The percentage of hour reduction due to work sharing. This is the normal weekly hours of work in above subsection (6) of these regulations minus the reduced weekly hours described in subsection (7) of these regulations and divided by the normal weekly hours of subsection (6).

(9) A statement as to whether or not the employee was absent from work for reasons other than a reduction in hours/days under the work sharing plan. If so, the work sharing employer shall indicate whether or not the absence was approved by the work sharing employer. If the absence was not approved, the work sharing employer shall provide the date(s) of the absence and the reason for the absence.

(10) A statement as to whether or not the employee refused an offer of work that was offered for the hours and/or day(s) during which the employee had originally been scheduled to be off work due to the work sharing plan.

(11) The day(s) and hours used for reductions due to the work sharing plan.

(12) A statement that:

(A) The information concerning the status of the work sharing employer and the status/earnings of the employee for the purposes of participating in the work sharing program are true and correct to the best of the work sharing employer's knowledge.

(B) Two of the work sharing employer's employees, and not less than ten percent of the work sharing employer's regular permanent work force involved in the affected work unit or units, participated in the Work Sharing plan in each week or in at least one week of a consecutive two-week period.

(13) The work sharing employer's name, California employer account number, and telephone number.

(14) The original signature, typed or printed name, and the title of an authorized representative of the work sharing employer.

(15) The date the certification was issued to the employee. This date must be later than the week ending date(s) to which the certification applies.

(f) If the work sharing employer elects to submit a completed certification on behalf of the participating employee, the work sharing employer must submit the completed certification to the Department within 14 calendar days from the date issued to the employee.

(g) Upon a request by the employer, the requirements of this section may be waived upon approval by the department for the purposes of allowing the certifications to be filed by the work sharing employer through another medium, such as computer magnetic tape. The department may approve a request for a waiver if the employer can demonstrate to the department that it meets specified conditions including, but not limited to, the following:

(1) The employer is capable of providing the department with all information required by this section through another medium, such as electronic filing or computer magnetic tape filing;

(2) The information will be provided in a format which the department is capable of processing based upon available facilities, equipment and personnel;

(3) The claims for benefits can be processed in a more timely manner; and

(4) That other statutory and regulatory requirements pertaining to claims for benefits will be satisfied.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 with new subsections (f)-(f)(4) and filed 8-18-94 (Register 94, No. 33).

3. Amendment filed 2-15-96; operative 3-14-96 (Register 96, No. 7).

4. Amendment of subsections (b), (e)(4), (e)(5), (e)(7), (e)(8) and (e)(13), new subsections (e)(4)(A)-(e)(4)(D) and (f), and subsection relettering filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

§1279.5-6. Claimant Responsibilities in the Claim Filing Process.

Note         History



(a) Filing the initial claim. The employee shall file the first certification received from the work sharing employer with the department and complete a new claim as specified in Section 1326-2 of these regulations no later than fourteen calendar days after the date the certification was issued by the work sharing employer.

(b) Filing continued certifications. The claimant shall complete and present to the department the certification received from the work sharing employer no later than fourteen calendar days after the date it was issued by the work sharing employer. If the certification is mailed to the department, it must be postmarked no later than fourteen calendar days after the date it was issued by the work sharing employer.

(c) On each certification the information provided by the claimant shall include:

(1) Whether the claimant had a change of address or telephone number that week. If so, the claimant shall supply the new address and/or telephone number.

(2) If there were any reasons, other than work sharing, for not accepting all work offered to the claimant by the work sharing employer during the week to which the certification applies, such as, jury duty, holiday, illness, or personal leave. If so, the claimant shall provide the date(s) and reason the claimant could not work.

(3) Whether the claimant worked for someone other than the work sharing employer or was self-employed during the week to which the certification applies. If so, the claimant shall provide the following:

(A) The name and address of the non-work sharing employer.

(B) The last date worked for the non-work sharing employer.

(C) The gross earnings from the non-work sharing employer, or from jury duty, or net earnings from self-employment for the week to which the certification applies, whether paid or not.

(D) A statement as to whether or not the claimant is still working for the non-work sharing employer and, if not, the date and reason for the separation from employment.

(4) A statement that:

(A) The information provided is true and correct to the best of the claimant's knowledge, and

(B) The claimant understands that the law provides for a fine and/or imprisonment for making false statements or withholding facts to receive unemployment insurance benefits.

(5) The claimant's original signature and the date signed.

(d) The 14-day time limit for filing the certifications may be extended for good cause as provided in Section 1326-10 of these regulations.

(e) Upon a request by the employer, the requirements of this section may be waived upon approval by the department for the purposes of allowing the certifications to be filed by the work sharing employer through another medium, such as computer magnetic tape. The department may approve a request for a waiver if the employer can demonstrate to the department that it meets specified conditions including, but not limited to, the following:

(1) The employer is capable of providing the department with all information required by this section through another medium, such as electronic filing or computer magnetic tape filing;

(2) The information will be provided in a format which the department is capable of processing based upon available facilities, equipment and personnel;

(3) The claims for benefits can be processed in a more timely manner; and

(4) That other statutory and regulatory requirements pertaining to claims for benefits will be satisfied.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 with new subsections (e)-(e)(4) and filed 8-18-94 (Register 94, No. 33).

3. Amendment filed 2-15-96; operative 3-14-96 (Register 96, No. 7).

4. Amendment of subsections (a), (b) and (c)(4)(B) filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

§1279.5-7. Calculation of Wage Reduction.

Note         History



(a) To calculate the percentage by which an employee's normal weekly wages were reduced during a week as a result of a work sharing plan, the work sharing employer shall:

(1) Subtract the actual (reduced) wages earned during the work sharing week (wages are described below in subsection (b) of these regulations) from the normal weekly wages (wages the employee earned before the implementation of the work sharing plan), and

(2) Divide the difference (obtained in above subsection (a)(1) of these regulations) by the normal weekly wages.

Example: The claimant's normal weekly wages are $420.00. However, due to work sharing reductions, the claimant's actual wages earned during the work sharing week are $336.00. The claimant's wages have been reduced by $84.00 ($420.00 - $336.00 = $84.00). To determine the percentage of wage reduction, divide the amount the wages have been reduced by the normal weekly wages, this figure is the percentage by which the normal weekly wages were reduced ($84.00 ÷ $420.00 = .20, or a 20% reduction in the normal weekly wages.

(b) Wages earned during the work sharing week shall include:

(1) Wages for services performed by the employee during the week to which the certification applies for the work sharing employer.

(2) Vacation pay, holiday pay, sick leave pay, and other types of paid leave for time off from work. These wages are allocable to the week of the vacation, holiday, sick leave, or other paid leave.

Example: The employees of work sharing employer A recently worked three days, received holiday pay for the fourth day, and were on an unpaid day off due to work sharing on the fifth day. For work sharing purposes, the employees are considered to have a corresponding reduction in wages and hours for the week of the holiday of 20% (the fifth day only) and are entitled to 20% of the weekly unemployment insurance benefit amount.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 and filed 8-18-94 (Register 94, No. 33).

3. Amendment of subsections (a)(1) and (a)(2) filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

4. Editorial correction of subsection (a)(2) (Register 2002, No. 45).

§1279.5-8. Calculation of Hour Reduction.

Note         History



(a) To calculate the percentage by which an employee's normal weekly hours of work were reduced as a result of a work sharing plan, the work sharing employer shall:

(1) Subtract the actual (reduced) hours worked during the work sharing week (hours worked are described below in subsection (b) of these regulations) from the normal weekly hours of work (hours the employee would have worked) before the implementation of the work sharing plan), and

(2) Divide the difference (obtained in above subsection (a)(1) of these regulations) by the normal weekly hours of work.

Example: The claimant's normal weekly hours of work are 40. However, due to work sharing, the claimant's hours were reduced to 32. The claimant's hours have been reduced by 8 hours (40 - 32 = 8). To determine the percentage of hour reduction, divide the amount the hours have been reduced by the normal weekly hours worked, this figure is the percentage by which the normal weekly hours were reduced (8 ÷ 40 = .20, or a 20% reduction in the normal weekly hours of work).

(b) Hours worked during the work sharing week shall include:

(1) Hours an employee is paid for performing services for the work sharing employer.

(2) Hours an employee is paid for time off due to vacation, holiday, sick leave, and other types of paid leave. The hours are allocable to the week the vacation, holiday, sick leave, or other paid leave was taken.

(3) Volunteer (unpaid) hours worked performing services during the week to which the certifications applies for the work sharing employer.

(c) Holidays. An employee is not entitled to work sharing benefits for holidays on which no services are performed by the employee and for which no wages are paid unless that holiday was considered part of the employee's normal weekly hours of work during the twelve months prior to the effective date of the work sharing plan. To be considered part of the employee's normal weekly hours of work during that period, an employee in that same position or job classification must have been scheduled to perform compensated services for the work sharing employer on that holiday.

The claimant in example 1 is entitled to work sharing benefits for the holiday:

Example 1: Claimant A, a security guard, worked and was paid for the July 4th holiday last year. The holiday was considered part of the security guard's normal days of work during the week. The employer is now participating in the work sharing program and decides that, for the upcoming July 4th holiday, security guards in the claimant's work unit will not work and will not be paid. This is the only unpaid day off during that week. For work sharing purposes, the claimant is considered to have suffered a corresponding reduction in the normal weekly hours of work and wages (20%) and would, therefore, be entitled to work sharing benefits.

The employees in example 2 are not entitled to work sharing benefits for the holiday:

Example 2: The employees of ABC Company, a work sharing employer, will not work and will not be paid for the Veterans Day holiday. They will be working the other four workdays that week. Last year, when the work sharing employer was not in the work sharing program, Veterans Day was a paid day off for all employees. Although there will be a reduction in wages, claimants will not be entitled to work sharing benefits for the week of the holiday since there will be no corresponding reduction in hours from the normal weekly hours of work.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 and filed 8-18-94 (Register 94, No. 33).

3. Amendment of subsections (a)(1), (a)(2)  and (c) filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

§1279.5-9. Refusal to Approve Work Sharing Plan.

Note         History



(a) The director may refuse to approve a new or subsequent work sharing plan for good cause. Good cause shall include but not be limited to:

(1) The work sharing employer's failure to comply with the timeliness requirements contained in Section 1279.5-5 of these regulations with respect to a prior work sharing plan submitted by that work sharing employer, or

(2) The work sharing employer's failure to provide the information (described in Section 1279.5-5 of these regulations) necessary to process claims under a prior work sharing plan submitted by that work sharing employer, or

(3) The work sharing employer willfully providing false information, or withholding material information, related to the approval of a prior work sharing plan submitted by that work sharing employer, or

(4) The work sharing employer including employees in the work sharing plan who are leased or temporary service employees from another employer, or

(5) The work sharing employer including employees in the work sharing plan who are provided to another employer either as leased or temporary service employees.

(b) The director may elect to apply an exception and approve a subsequent work sharing plan if the work sharing employer provides assurances satisfactory to the department that similar negligent or willful acts or failures to act will not take place with respect to the new work sharing plan.

(c) The employer may submit a request for review of the disapproved work sharing plan to the director's work sharing administrator. The request shall be submitted within twenty (20) days of the mailing date of the notice of disapproval. The request shall include the following information:

(1) The name of the business,

(2) The employer's California employer account number,

(3) The requested effective date of the disapproved work sharing plan, and

(4) A statement by the employer supporting its position as to why the director does not have good cause to disapprove the work sharing plan.

(d) The director's work sharing administrator shall conduct the review and determine whether or not good cause exists for the disapproval of the work sharing plan.

(1) If the director's work sharing administrator determines that the work sharing plan was disapproved with good cause, the director's work sharing administrator shall mail written notification of the decision to the employer within twenty (20) days of receipt of the request for review. 

(2) If the director's work sharing administrator determines that the work sharing plan was disapproved without good cause, the director's work sharing administrator shall mail written notification of the decision to the employer within twenty (20) days of receipt of the request for review. The written decision shall also notify the employer of the effective date of the work sharing plan.

(e) The director`s work sharing administrator's decision on the approval or disapproval of a work sharing plan is the final administrative decision.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 with amendment of subsections (a)(1)-(3) and filed 8-18-94 (Register 94, No. 33).

3. Amendment of subsection (a) and new subsections (c)-(e) filed 2-15-96; operative 3-14-96 (Register 96, No. 7).

4. Amendment of subsections (a)-(a)(3), new subsections (a)(4) and (a)(5), and amendment of subsection (d) filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

§1279.5.-10. Termination of a Work Sharing Plan.

Note         History



(a) The director may terminate a work sharing plan for good cause. Good cause shall include but not be limited to:

(1) The work sharing employer's failure to comply with the timeliness requirements of Section 1279.5-5 of these regulations, unless the work sharing employer provides evidence satisfactory to the department that such failure was inadvertent, and that the work sharing employer at all times acted diligently, and without procrastination, negligence, or carelessness, or

(2) The work sharing employer's failure to provide the necessary information to process the claims for work sharing benefits as contained in Section 1279.5-5 of these regulations, or

(3) The work sharing employer willfully providing false information or withholding material information related to the approval of a work sharing plan, or related to the filing of certifications for work sharing benefits, for the purpose of gaining approval of the work sharing plan, or

(4) The work sharing employer includes employees in the work sharing plan who are leased or temporary service employees from another employer, or

(5) The work sharing employer includes employees in the work sharing plan who are provided to another employer either as leased or temporary service employees.

(b) The employer may submit a request for review of the terminated work sharing plan to the director's work sharing administrator. The request shall be submitted within twenty (20) days of the mailing date of the notice of termination. The request shall include the following information:

(1) The name of the business,

(2) The employer's California employer account number,

(3) The requested effective date of the terminated work sharing plan, and

(4) A statement by the employer supporting its position as to why good cause does not exist for the termination of the work sharing plan.

(c) The director's work sharing administrator shall conduct the review and determine whether or not good cause exists for the termination of the work sharing plan.

(1) If the director's work sharing administrator determines that the work sharing plan was terminated with good cause, the director's work sharing administrator shall mail written notification of the decision to the employer within twenty (20) days of receipt of the request for review.

(2)  If the director's work sharing administrator determines that the work sharing plan was terminated without good cause, the director's work sharing administrator shall mail written notification of the decision to the employer within twenty (20) days of receipt of the request for review. The written decision shall also notify the employer of the effective date of the work sharing plan.

(d) The director's work sharing administrator's decision on the approval or disapproval of a work sharing plan is the final administrative decision.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1279.5, Unemployment Insurance Code.

HISTORY


1. New section filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94 and filed 8-18-94 (Register 94, No. 33).

3. Redesignation of first paragraph and subsections (a)-(c) as subsections (a)-(a)(3) and new subsections (b)-(d) filed 2-15-96; operative 3-14-96 (Register 96, No. 7).

4. Amendment of subsections (a)(1)-(3) and new subsections (a)(4) and (a)(5) filed 1-8-98; operative 2-7-98 (Register 98, No. 2).

Article 2.7. Irregular or Infrequent Wage Payments

§1282-1. Allocations of Wages Paid at Irregular or Infrequent Intervals.

Note         History



For the purpose of determining a claimant's maximum benefits and weekly benefit amount for unemployment compensation benefits, when because of the irregular or infrequent intervals of the wage payments, wage records would not otherwise fairly indicate the claimant's employment during his base period, the department shall apportion the amount of such wage payments among the calendar quarters covered by the wages according to the length of employment in each of such quarters.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1282, Unemployment Insurance Code.

HISTORY


1. New section filed 9-5-61; designated effective 9-15-61 (Register 61, No. 18).

2. Amendment of NOTE filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. New article 2.7 heading filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of  law on  the following day.

4. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94  and filed 8-18-94 (Register 94, No. 33).

Article 3. Filing, Determination, and Payment of Unemployment Compensation Benefit Claims

§1326-1. Benefit Claims--In General.

Note         History



(a) Any person who has become separated from his or her work, who is working on a part-time basis, or who is a partially unemployed individual may file a claim for benefits. Benefits shall be claimed as prescribed in Sections 1326-2 through 1326-12 of these regulations.

(b) There are four basic steps in the usual procedures for handling a typical unemployment benefit claim. Sections 1326-2 through 1326-13 of these regulations give detailed definitions and procedures applicable to the several different types of claims and should be referred to for greater detail and exceptions to usual procedures. The usual procedures are as follows:

(1) STEP 1. First contact filing of a new claim for unemployment benefits, and benefit rights interview.

(A) An individual who becomes unemployed and wishes to claim unemployment benefits is required to contact an Employment Development Department field or branch office,  to file  a new claim for unemployment insurance benefits. The claimant provides his or her last employer's name and address. The department mails that employer notice of the filing of the claim. The employer responds with any information relating to the claimant's eligibility. When the new claim is filed, the claimant completes an employment history and registers for work. The department interviews the claimant in detail as to the reasons for his or her unemployment and any other facts which might raise a question of eligibility. The department informs the claimant in writing of  his or her benefit rights and duties, gives assistance in filing the new claim, and provides written instructions on his or her responsibility to look for work. 

(B) If there is no eligibility issue, the claimant is told to file continued claims every two weeks in order to be paid benefits, assuming continued eligibility. (See STEP 2.) The department directs the claimant to report in person to the department field or branch office for an in-depth periodic eligibility review. (See STEP 3.) The review is scheduled two weeks subsequent to the first interview, or at a later date if in the judgment of the department this is warranted by the circumstances relevant to the particular claimant.

COMMENTS: Some of the factors the department may consider in determining when a claimant will be required to report in person for an in-depth periodic eligibility review include: the likelihood that eligibility issues will arise, the condition of the labor market, work opportunities for the claimant, the claimant's attachment to the labor market, the seasonal nature of the claimant's work, transportation facilities available to the claimant, and remoteness of claimant's residence from department field offices.

(C) If a potential eligibility issue arises and is not readily clarified or removed by the claimant's explanation, the claimant is scheduled for a determination interview. (See STEP 4.)

(2) STEP 2. First and continuous biweekly continued claims and payments.

In the third week, or as directed by the department, in order to receive credit for the waiting week and to receive payment for the second week, the claimant files by mail, or as directed by the department, a “continued claim” form certifying that he or she meets all eligibility requirements. (See Section 1326-6 of these regulations.) This certification includes whether he or she worked during the weeks for which benefits are claimed, how much pay was earned, if any, that he or she was physically able to work each day, tried to find work, and whether he or she refused any work. The certification also includes a statement that he or she declares under penalty of perjury that he or she is a U.S. citizen or national; or an alien in satisfactory immigration status and permitted to work by the Immigration and Naturalization Service; and that he or she is aware the law provides penalties for the commission of a misrepresentation of facts to receive benefits, and that he or she is signing the application for benefits after the date for which benefits are claimed. The certification under penalty of perjury complets the procedures for filing a new claim.

Under the mail payment system, the claimant mails to the department the continued claim form which he or she has completed. The department reviews the continued claim to determine whether a question of eligibility is raised. If an answer raises a potential eligibility issue, the department requires the claimant to explain that answer. If the claimant is eligible, the department mails a benefit check to the claimant. The same process is completed every two weeks until the claimant is required to report in person, as scheduled, for a periodic eligibility review. (See STEP 3.)

(3) STEP 3. Periodic eligibility review in-person reporting for all claimants.

The claimant reports in person, as scheduled, to the department for an in-depth interview focusing on the specific efforts the claimant has made to find work and his or her job prospects. That interview is designed to discover any potential eligibility issue. The department reviews all available information. If eligible, the claimant is mailed his or her benefit check and the department again schedules the claimant to report in person to the department for the next periodic eligibility review. This step is repeated throughout the life of the claim.

(4) STEP 4. Determinations of eligibility--interviews by telephone or in-person reporting.

If at any time during any of STEPS 1 through 3 the department identifies any potential eligibility question, the claimant is notified that an interview by telephone or in person reporting may be required. The department interviews the claimant in depth on all eligibility issues raised and completes a written determination of the claimant's eligibility or ineligibility.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1326, Unemployment Insurance Code.

HISTORY


1. Amendment filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of subsection (a) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Amendment of subsections (b)(2) and (b)(5) filed 2-1-88 as an emergency; operative 2-1-88 (Register 88, No. 7). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-31-88.

4. Certificate of Compliance transmitted to OAL 5-13-88 and filed 6-1-88 (Register 88, No. 23).

5. Editorial correction of printing error inadvertently omitting text in STEP 5 (Register 91, No. 10).

6. Amendment filed 8-24-92; operative 9-23-92 (Register 92, No. 35).

7. Editorial correction restoring History 3 and 4 and renumbering subsequent History Notes (Register 95, No. 15).

8. Amendment of subsections (b)(1)(A) and (b)(2) filed 5-6-96; operative 6-5-96 (Register 96, No. 19).

§1326-2. New Claim for Unemployment Insurance Benefits--Filing and Contents.

Note         History



(a) “New Claim” means an application for the establishment of a benefit year and a computation of the maximum benefits payable and the weekly rate. (For a general description of the claims filing procedures for unemployment benefits, see Section 1326-1 of these regulations.)

(b) Any person who is an unemployed individual, as defined in Sections 1252 or 1279.5 of the code, may file a new claim. (See Sections 1252-1, 1252.1-1, and 1252.2-1 of these regulations.) The claimant shall file the new claim by contacting the department and shall set forth:

(1) His or her first and last name, and middle initial if applicable.

(2) His or her social security account number, and any other names and social security account numbers by which the claimant is or was known.

(A) The department may require the claimant to verify the social security account number as being the one issued to him or her by the Social Security Administration if the information available to the department indicates that the social security account number presented by the claimant may belong to another individual, is not a valid social security account number, or was never issued by the Social Security Administration, or that the wages shown in the base period of the claim may belong to another individual. 

(B) If the department requires a claimant to verify the social security account number which he or she has provided to the department during the claim application, the claimant must submit verification of his or her social security account number through the Social Security Administration, or he or she may submit to the department a copy of his or her annual statement issued to him or her by the Social Security Administration. 

(3) His or her date of birth, including month, day, and year. 

(4) His or her gender.

(5) His or her current mailing address.

(6) His or her current residence address. 

(7) His or her driver's license number or identification card number, provided that the driver's license or identification card was issued by a local, state, or federal agency, or a foreign government, and the card contains his or her full name, date of birth, and photograph. 

(8) The date he or she last worked for his or her most recent employer. 

(9) The reason he or she is no longer working for his or her most recent employer. The department shall promptly notify the individual's most recent employer of the reason the individual has given as to the reason he or she is no longer working for his or her most recent employer. The department may use the claimant's statement as to the reason he or she is no longer working for his or her most recent employer to assign the individual an appropriate seek work plan. 

(10) The name and mailing address of his or her most recent employer, except in cases where due to reasons beyond the claimant's control, the claimant does not know the name or address of his or her most recent employer. For example, the claimant may have no record of wages paid, or his or her most recent employer may now be out of business, the employer may have moved, or the employer may have died. 

(11) The name or names of his or her base period employer or employers; the estimated wages that individual earned during the base period; and the approximate periods of employment for that individual with the base period employer or employers. If the information available to the department indicates that the wages reported for that individual may not belong to that individual, the department may require that individual to provide information to substantiate that he or she earned the reported wages 

(12) Whether he or she in the 19 months preceding the filing of a new claim served in the United States armed forces, or worked for an agency of the State of California, of another state or of the federal government, or worked for an employer in another state.

(13) Whether he or she has filed a claim for unemployment insurance or disability insurance against California, against another state or against the federal government in the past 24 months.

(14) Whether he or she is a member of a union, and if so, the name and number of the union local, and whether he or she is registered as out of work with his or her union.

(15) Whether he or she is unemployed or working part time and knows the law requires true and complete answers, and that he or she may be required to register for work (as defined in Section 1251-1 of these regulations).

(16) A statement that the claimant is a citizen or national of the United States and, if not, that the claimant is in a satisfactory immigration status, as defined in Section 1326-13(c)(1) of these regulations. The claimant shall also make the statement set forth in Section 1264-1(d) of these regulations, as to his or her citizenship or immigration status during the base period.

(17) Such other information as the department may require.

(c) Immediately following filing of the new claim, the department shall:

(1) Notify the claimant in writing of his or her claim information, as provided by the claimant to the department. The claimant notification may include, but shall not be limited to the following information:

(A) The beginning date of the claim filed.

(B) The last employer name, address, city, state, and zip code as provided by the claimant.

(C) The last day worked as provided by the claimant.

(D) The reason no longer working as provided by the claimant.

(E) Whether or not the claimant is receiving a pension or other income.

(F) Whether or not the claimant is able and available to accept full time work.

(G) Whether or not the claimant has the legal right to work in the United States.

(H) The social security number provided by the claimant, or the Employment Development Department Client Number assigned to that claimant by the department. 

(2) Notify the claimant that he or she may contact the department by telephone or in writing to correct any omissions or errors within ten (10) days from the mailing date of the claimant notification. The notification shall specify how to contact the department by telephone or in writing.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1264, 1279.5, 1326 and 1327, Unemployment Insurance Code; Section 1324a(b), Title 8, United States Code; Section 1320b-7(d), Title 42, United States Code; and Section 55, Chapter 329, Statutes of 1998.

HISTORY


1. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of subsection (b) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Renumbering of amendment of former subsection (b)(1) to subsection (b)(2) and renumbering of former subsection (b)(2) to subsection (b)(1), repealer of subsection (b)(6), renumbering of subsections (b)(7)-(b)(14) to subsections (b)(6)-(b)(13) and new subsection (b)(14) filed 10-3-88; operative 10-3-88 pursuant to Government Code section 11346.2(d) (Register 88, No. 42).

4. Editorial correction of printing error inadvertently including obsolete copy of subsection (6), consequently mislabelling subsections (7) through (13), and omitting new subsection (14) text. (Register 91, No. 10).

5. Amendment of section heading, text and Note  filed 3-11-94 as an emergency; operative 3-11-94 (Register 94, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-11-94 or emergency language will be repealed by operation of  law on  the following day.

6. Certificate of Compliance as to 3-11-94 order transmitted to OAL 7-11-94  and filed 8-18-94 (Register 94, No. 33).

7. Amendment of subsections (b), (b)(2) and (b)(8), repealer of subsection (b)(13) and (b)(15) and subsection renumbering and amendment of newly designated subsection (b)(13) filed 5-6-96; operative 6-5-96 (Register 96, No. 19).

8. New subsections (c)(1)-(2) and amendment of Note filed  8-5-99 as an emergency; operative 8-5-99 (Register 99, No. 32). A Certificate of Compliance must be transmitted to OAL by 12-3-99 or emergency language will be repealed by operation of law on the following day.

9. Certificate of Compliance as to 8-5-99 order transmitted to OAL 10-25-99 and filed 12-8-99 (Register 99, No. 50).

10. Amendment filed 7-21-2003 as an emergency; operative 7-21-2003 (Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-2003 or emergency language will be repealed by operation of law on the following day.

11. Certificate of Compliance as to 7-21-2003 order transmitted to OAL 11-7-2003 and filed 12-24-2003 (Register 2003, No. 52).

12. Editorial correction of subsection (b)(15) (Register 2004, No. 10).

§1326-3. Identity Verification.

Note         History



(a) A claimant will be required to provide information to the department as described in Sections 1326-2, 1326-4, 1326-5, or 1326-6 of this Division. The information provided by the claimant must be sufficient for the department to: 

(1) establish the identity of the claimant, and; 

(2) verify that the wages reported under the social security number provided belong to the claimant. 

(b) If the information provided to the department by the claimant under Sections 1326-2, 1326-4, 1326-5, or 1326-6 of this Division does not sufficiently establish the identity of the claimant, or if the department cannot verify that the wages reported under the social security number provided belong to the claimant, the department shall: 

(1) Require the claimant to verify his or her identity by presenting a photo identification and one of the following document(s) as defined in Section 1251-1 of this Division: 

(A) Social security number verification. 

(B) Date of birth verification. 

(C) Address verification. 

(D) Employment data. 

(2) Ask the last employer of the claimant, and all of the claimant's base period employers, to provide the following information: 

(A) Any other names used by the individual who earned the wages. 

(B) Any other social security numbers used by the individual who earned the wages. 

(C) Dates of employment for the individual who earned the wages. 

(D) Last known phone number for the individual who earned the wages. 

(E) Last known mailing and residence addresses of the individual who earned the wages. 

(c) If the information available to the department indicates that the identity of the claimant may not be the same as the individual who earned the wages reported to the department, the department shall request the individual who claims to be the true owner of the identity to certify under penalty of perjury whether or not he or she filed the claim for unemployment insurance compensation. 

(d) The claimant shall have a reasonable opportunity, as determined by the department, to provide the information requested pursuant to paragraph (b)(1) above to the department. The claimant shall have the right to request additional time to provide the requested information to the department. 

(e) If, within ten (10) days from the mailing date of the request, the claimant has not supplied the requested information, and has not contacted the department to request additional time to provide the requested information, the department shall grant or deny the benefits based on the information available to the department, pursuant to Section 1253(a) of this Division. 

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1085, 1092, 1257, 1326 and 1327, Unemployment Insurance Code.

HISTORY


1. New section filed 7-21-2003 as an emergency; operative 7-21-2003 (Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-2003 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 79, No. 13.

2. Certificate of Compliance as to 7-21-2003 order transmitted to OAL 11-7-2003 and filed 12-24-2003 (Register 2003, No. 52).

3. Editorial correction of subsection (c) (Register 2004, No. 10).

§1326-4. Additional Claims for Unemployment Benefits Filing and Contents.

Note         History



(a) “Additional claim” means an application which certifies to the beginning date of a period of unemployment:

(1) Which falls within a previously established benefit year, extended duration period, or extended benefit period,

(2) When a break of one or more weeks has occurred in the claim series with intervening employment. There has been a break in the claim series with intervening employment under any of the following circumstances:

(A) The claimant filed a continued claim or partial claim for a week in which he or she was ineligible for benefits pursuant to section 1279 of the code due to excessive earnings from services performed in employment during such week. (See sections 1326-6 and 1326-8 of these regulations for definitions of continued claim and partial claim.)

(B) The claimant was ineligible to file a continued claim or partial claim for a week because he or she was not unemployed, as defined in section 1252 of the code, in such week.

(C) The claimant failed to file a continued claim or partial claim for a week during which he or she performed compensated services in employment.

(b) If a claimant who is unemployed wishes to resume or to continue claiming benefits, and the conditions specified in subdivision (a) of this section are satisfied, an additional claim shall be filed except as provided in subdivision (d) of this section. The claimant shall file the additional claim by contacting a department field or branch office. When filing the additional claim, the claimant shall set forth the information specified in subdivision (b) of section 1326-2 of these regulations.

(c) Notwithstanding subdivision (b) of this section, an additional claim may not be filed by a claimant who is:

(1) Under a disqualification for a fixed period pursuant to subdivision (b) of section 1257 or 1261 of the code, unless he or she has appealed the disqualification or unless he or she is also subject to disqualification pursuant to subdivision (a) of section 1257 of the code.

(2) Awaiting an eligibility decision by the department on a prior claim filed in the same benefit year or extended benefit period.

(d) The department shall give prompt notice of the filing of the additional claim to the employing unit by whom the claimant was last employed immediately preceding the filing of the additional claim.

(e) Immediately following filing of the additional claim, the department shall:

(1) Notify the claimant in writing of his or her claim information, as provided by the claimant to the department. The claimant notification may include, but shall not be limited to the following information:

(A) The beginning date of the claim filed.

(B) The last employer name, address, city, state and zip code provided by the claimant.

(C) The last day worked as provided by the claimant.

(D) The reason no longer working as provided by the claimant.

(E) Whether or not the claimant is receiving a pension or other income.

(F) Whether or not the claimant is able and available to accept full time work.

(G) Whether or not the claimant has the legal right to work in the United States.

(2) Notify the claimant that he or she may contact the department by telephone or in writing to correct any omissions or errors within ten (10) days from the mailing date of the claimant notification. The notification shall specify how to contact the department by telephone or in writing.

(f) If the claimant had a change of address during the benefit year of any regular claim or extended benefit claim, the department may require the claimant to provide proof of identity in accordance with the provisions set forth in Section 1326-3 of these regulations. 

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 1326 and 1327, Unemployment Insurance Code; and Section 55, Chapter 329, Statutes of 1998.

HISTORY


1. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Editorial correction of printing error in subsection (c) (Register 91, No. 32).

4. Amendment of subsection (b), repealer of subsections (c)-(c)(2), subsection relettering, repealer of formerly designated subsection (d) (2) and subsection renumbering filed 5-6-96; operative 6-5-96 (Register 96, No. 19).

5. New subsections (e)(1)-(2) and amendment of Note filed  8-5-99 as an emergency; operative 8-5-99 (Register 99, No. 32). A Certificate of Compliance must be transmitted to OAL by 12-3-99 or emergency language will be repealed by operation of law on the following day.

6. Certificate of Compliance as to 8-5-99 order transmitted to OAL 10-25-99 and filed 12-8-99 (Register 99, No. 50).

7. New subsection (f) filed 7-21-2003 as an emergency; operative 7-21-2003 (Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-2003 or emergency language will be repealed by operation of law on the following day. 

8. Certificate of Compliance as to 7-21-2003 order transmitted to OAL 11-7-2003 and filed 12-24-2003 (Register 2003, No. 52).

§1326-5. Reopened Claim for Unemployment Benefits--Filing and Contents.

Note         History



(a) “Reopened claim” means an application which certifies to the beginning date of a period of unemployment:

(1) Which falls within a previously established benefit year, extended duration period, or extended benefit period, and

(2) Which follows any of the following:

(A) A period of one or more weeks for which the claimant failed to file a continued claim or partial claim and during which the claimant did not perform services in employment.

(B) A period of one or more weeks for which the claimant was ineligible for benefits for a definite period and for which continued claims or partial claims were filed, unless with respect to any week during such period, the claimant was ineligible for benefits pursuant to Section 1252 of the code or pursuant to Section 1279 of the code due to excessive earnings from services performed in employment that week. If the latter condition is met, an additional claim would be filed following the end of the period of ineligibility. (See Section 1326-4 of these regulations.)

(b) If a claimant who is unemployed wishes to resume or continue claiming benefits, and the conditions specified in subdivision (a) of this section are satisfied, a reopened claim shall be filed, except as provided in subdivision (c) of this section. The claimant shall file the reopened claim by contacting a department field or branch office. In filing the reopened claim the claimant shall, to the extent required by the department, set forth the information specified in subdivision (b) of Section 1326-2 of these regulations.

(c) Notwithstanding the provisions of subdivision (b) of this section, a reopened claim may not be filed by a claimant who is:

(1) Under a disqualification for a fixed period pursuant to subdivision (b) of section 1257 or 1261 of the code, unless he or she has appealed the disqualification pursuant to subdivision (a) of section 1257 of the code.

(2) Ineligible for benefits for an indefinite period pursuant to subdivision (a), (b) or (c) of section 1253 of the code or section 1253.3, 1253.4, 1255.3, 1255.5, 1256, 1262, or 1264 of the code, unless he or she has appealed the disqualification.

(3) Awaiting an eligibility decision by the department on a prior claim filed in the same benefit year or extended benefit period.

(d) If the claimant had a change of address during the benefit year of any regular claim or extended benefit claim, the department may require the claimant to provide proof of identity in accordance with the provisions set forth in Section 1326-3 of these regulations. 

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1326, Unemployment Insurance Code.

HISTORY


1. Amendment filed 8-5-60; designated effective 8-15-60 (Register 60, No. 17).

2. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

3. Amendment filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

4. Repealer of subsection (a)(2)(C), amendment of subsection (b), repealer of subsections (c)-(c)(2) and subsection relettering, amendment of newly designated subsection (c), and new subsections (c)(1)-(c)(3) filed 5-6-96; operative 6-5-96 (Register 96, No. 19).

5. New subsection (d) filed 7-21-2003 as an emergency; operative 7-21-2003 (Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-2003 or emergency language will be repealed by operation of law on the following day.

6. Certificate of Compliance as to 7-21-2003 order transmitted to OAL 11-7-2003 and filed 12-24-2003 (Register 2003, No. 52).

§1326-6. Continued Claim for Unemployment Benefits--Filing and Contents.

Note         History



(a) “Continued claim” means an application to serve a waiting period or for the receipt of benefits which certifies to a week of unemployment. (For a general description of the claims filing procedures for unemployment benefits, see Section 1326-1 of these regulations.)

(b) The claimant may file a continued claim at a department field or branch office by mail and be paid benefits by mail. The claimant shall file a continued claim for the first compensable week or weeks at a department field or branch office in person, except as provided in Section 1326-11 of these regulations. The claimant shall report at a department field or branch office in person at other times for an eligibility interview, and for periodic eligibility reviews every two to ten weeks, as required by the department. The continued claim shall set forth the claimant's social security account number and the claimant shall certify with respect to each week:

(1) That he or she was unemployed or working on a part-time or reduced earnings basis.

(2) The amount of his or her earnings for work, whether paid or not.

(3) Whether he or she was physically able to work full time each of the seven days in the week. If no, the number of days he or she was unable to work.

(4) Whether there was any other reason he or she could not have worked full-time each workday.

(5) Whether he or she did try to find work. If requested by the department, the date applied for work, the company name and address, the person contacted, the type of work applied for, and the results of the contact.

(6) Whether he or she refused any work.

(7) Whether he or she began attending any school or training.

(8) That he or she did not have a change in address, or his or her new address if he or she has had a change of address.

(9) If he or she did any work during that week, the following:

(A) The employer for whom he or she worked, and the employer's address.

(B) The number of hours worked during the week and the last day he or she worked.

(C) The reason he or she is no longer working.

(10) That he or she declares under penalty of perjury that he or she is a U.S. citizen or national; or an alien in satisfactory immigration status and permitted to work by the Immigration and Naturalization Service.

(11) That he or she is aware the law provides penalties for the commission of a misrepresentation of facts to receive benefits and that he or she is signing the application for benefits after the date for which benefits are being claimed.

(12) Such other information as the department may require.

(c) The claimant shall, to maintain his or her eligibility to file continued claims during a continuous period of unemployment, file continued claims at intervals of not more than two weeks, or such other interval as the department shall require, unless he or she shows good cause for his or her delay in filing his or her continued claim.

(d) If a claimant who is directed by the department to file in person is unable to appear at a department field or branch office because he or she has returned to work or for other good cause, he or she may notify such office of such fact and file a continued claim by mail for any week of unemployment with respect to which a continued claim was not filed because of his or her reemployment or any other good cause found by the director. If a claimant who is directed by the department to file in person is unable to appear at the department field or branch office at which the claimant has previously filed claims because the claimant is seeking work in another locality, he or she may report to and file a continued claim at the department field or branch office in that locality.

(e) Extensions of time to file a continued claim for good cause are subject to the limitations provided by Section 1326-10 of these regulations.

(f) When a claimant has a right to file an appeal from a determination of the department to an administrative law judge, or from a decision of an administrative law judge to the California Unemployment Insurance Appeals Board, or the right to seek judicial review of a decision of the Appeals Board, the department shall advise the claimant that in order to preserve his or her right to benefits for weeks during which the matter is under appeal or judicial review, he or she should file a continued claim for each of such weeks.

(g) If the claimant had a change of address during the benefit year of any regular claim or extended benefit claim, the department may require the claimant to provide proof of identity in accordance with the provisions set forth in Section 1326-3 of these regulations. 

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1326, Unemployment Insurance Code; Noemi L. Gutierrez v. Employment Development Department (1993) 14 Cal.App.4th, 1791; and 18 Cal.Rptr.2d 705.

HISTORY


1. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of subsections (a), (b), and (f) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

3. Amendment of section and Note filed 4-4-95; operative 5-4-95 (Register 95, No. 14).

4. New subsection (g) filed 7-21-2003 as an emergency; operative 7-21-2003 (Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-2003 or emergency language will be repealed by operation of law on the following day. 

5. Certificate of Compliance as to 7-21-2003 order transmitted to OAL 11-7-2003 and filed 12-24-2003 (Register 2003, No. 52).

§1326-7. Employer Responsibility in the Initiation of a First Claim for Partial Unemployment Benefits.

Note         History



Every employer shall, not later than five days after the termination of any payroll week in which the employer has had in his or her employ a partially unemployed individual as defined by subdivision (c) of Section 1252-1 or by Section 1252.2-1 of these regulations, give the individual a notice of reduced earnings on a form supplied by the department which shall set forth:

(a) The name and social security number of the individual.

(b) The ending date of the payroll week and the date last worked.

(c) The amount of wages earned in such week, or that no wages were earned during the week. For commercial fishermen, the days the claimant was engaged in the act of catching or attempting to catch fish, or the reasons the boat was tied up such as absence of fish, inclement weather, lack of buyers' orders, or boat laid up for repairs.

(d) Whether the individual reported for all work that was available during the payroll week and if he or she did not, the date and the reasons for not reporting for available work.

(e) The following certification (individual or rubber stamped): “I certify that the above amount represents reduced earnings in a week of less than full-time work because of lack of work,” except as shown on the form.

(f) The name and address of the employer.

(g) A signature (actual or facsimile) by the employer.

(h) The date the notice was issued to the employee.

(i) Such other information as the department may require.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1326, Unemployment Insurance Code.

HISTORY


1. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

§1326-8. First and Subsequent Partial Claims for Partial Unemployment Benefits--Filing and Contents.

Note         History



(a) “First partial claim” and “subsequent partial claim” for partial unemployment benefits means an application for a determination of eligibility for partial benefits which certifies to the completion of a week of partial unemployment either to satisfy a week of the waiting period requirement or to claim partial benefits for a compensable week or two compensable weeks.

(b) A claimant who is a partially unemployed individual may, within 28 days after he or she has been furnished by his or her regular employer with the notice of his or her reduced earnings in any week as prescribed in Section 1326-7 of these regulations, file a first or subsequent partial claim for partial unemployment benefits at a department field office by mail or in person as required by the department. The 28-day period may be extended as provided by Section 1326-10 of these regulations. The first or subsequent partial claim for partial unemployment benefits shall set forth:

(1) Whether there was any reason, other than lack of work, why he or she could not have worked full time each regular workday in the week.

(2) Whether he or she received any workers' compensation pay.

(3) Whether he or she worked for anyone other than his or her regular employer on any day in the week, including self-employment.

(4) Whether he or she has filed a claim for benefits in the past 12 months, and if he or she has, the department field or branch office at which the claim was filed.

(5) His or her address.

(6) His or her signature.

(7) If he or she did work for anyone other than his or her regular employer, the following:

(A) The name of the other employer for whom he or she worked.

(B) His or her earnings from the other employer.

(C) That he or she is still working for, or why he or she left work for, the other employer.

(8) Such other information as the department may require, including the filing of a new claim under Section 1326-2 of these regulations.

(c) When a claimant has filed partial claims for two consecutive weeks during which he or she performed no services for the regular employer, he or she may not file a partial claim for a subsequent week of unemployment until he or she again performs services for the regular employer. For any subsequent weeks in which the claimant is ineligible to file partial claims, he or she may, if unemployed, file continued claims in accordance with Section 1326-6 of these regulations.

NOTE


Authority cited: Sections 305, 306 and 1252, Unemployment Insurance Code. Reference: Sections 1326, 1327 and 1252, Unemployment Insurance Code.

HISTORY


1. Amendment filed 11-20-67; designated effective 11-30-67 (Register 67, No. 47).

2. Amendment filed 3-28-79; effective thirtieth day there after (Register 79, No. 13).

3. Amendment of subsection (c) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1326-9. Partial Unemployment--Employer Responsibilities--Records and Notices.

Note         History



NOTE


Authority cited: Sections 305 an 306, Unemployment Insurance Code. Reference: Section 1326, Unemployment Insurance Code.

HISTORY


1. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Repealer filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1326-10. Delayed Registration for Work and Filing of Unemployment Claims with Good Cause--Extension of Time.

Note         History



(a) The department shall, at the request of the claimant, extend the period prescribed for the filing of a new, additional, continued, or reopened claim, or the period within which to register for work, or the 28-day period prescribed for the filing of a first or subsequent partial claim under Section 1326-8 of these regulations, if the department finds that the failure of the individual to file any such claim or to register for work within the prescribed time was due to good cause, including, but not limited to, any of the following:

(1) Failure on the part of the employer with respect to partial unemployment benefits to comply with any of the provisions of Sections 1326-7 and 1326-9 of these regulations.

(2) His or her employer warned, instructed or coerced him or her to prevent the prompt filing of such claim, or his or her registration for work.

(3) He or she reasonably relied on misleading, incomplete, or erroneous advice given to him or her by personnel of the department, or relied on the failure of the department to perform an affirmative duty to provide advice reasonably necessary for the protection of his or her rights and the understanding of his or her duties relating to the claim or registration for work. Reliance is reasonable if all of the following conditions exist:

(A) He or she acted reasonably in informing the department of pertinent facts and of the need for specific advice as to his or her rights and duties.

(B) The department's advice was intended by the department to be the basis of his or her conduct or he or she reasonably believed the advice was so intended, or he or she reasonably relied upon the department which failed to provide advice reasonably necessary to the protection of his or her rights or the understanding of his or her duties.

(C) He or she was not aware that the department's advice was misleading, incomplete or erroneous, or through no fault or inexcusable neglect on his or her part was not aware of the true information concerning his or her rights or duties.

(4) Failure by the department to discharge its responsibilities promptly in connection with such partial or other unemployment.

(5) Compelling reasons, or circumstances which would prevent a reasonable person under the circumstances presented from filing the claim or registering for work. Depending on the circumstances, this can include illness or injury of the claimant or any member of the claimant's immediate family, a job interview, working, lack of transportation or the unavailability of mail service for a claimant in a remote area, a natural catastrophe such as an earthquake or a fire or flood, a claimant who is awaiting reduced earnings statements from the employer, or compelling personal affairs or problems that could not reasonably be postponed such as an appearance in court or an administrative hearing or proceeding, substantial business matters, attending a funeral, or relocation to another residence or area.

EXAMPLE 1. Claimant A is scheduled by the department to report biweekly on Thursday. On A's first regular report day, he is working and does not report. A did not work on any other day, and returns to the office on his second regular report day.

A's continued claims may be accepted if he is otherwise eligible for the weeks preceding his first, as well as the weeks preceding his second, report day. A's working was a compelling reason for not reporting to the department, and reporting on his second regular report day was acceptable.

EXAMPLE 2. B was laid off from his job on Friday. The following Sunday B's wife was seriously injured and hospitalized. B spent all week attending to his family's needs and personal affairs due to the wife's injury, and seeking day care for his minor child. The following week B sought to file a new claim for unemployment insurance backdated to Sunday after his layoff.

B's claim can be backdated since B's failure to file the preceding week was due to compelling reasons and excusable neglect.

(6) The department assigned a claim filed to the wrong program.

(7) Mistake, inadvertence, surprise, or excusable neglect. However, “good cause” does not include negligence, carelessness, or procrastination, in the absence of circumstances excusing these causes for delay.

EXAMPLE 3. Claimant C has previously filed unemployment insurance claims. The department has advised C of the requirements for filing continued claims by mail. Claimant C for four weeks puts off or forgets to file any continued claims. After several weeks, C seeks to file his continued claims for all past weeks.

Claimant C's continued claims cannot be accepted for any past weeks, since the failure to file is due to negligence or inexcusable neglect.

EXAMPLE 4. Claimant D drew unemployment benefits and then got a job. Claimant D was laid off from that job after a week but believed he would quickly get another job. Thus, D delayed filing any additional claim for unemployment benefits. After 3 weeks of unemployment, D sought to have his additional claim backdated to the week after his layoff.

D's additional claim cannot be backdated, since D's delay was due to his own decision to delay filing for benefits because he expected to be reemployed. Such circumstances do not establish a basis for good cause.

(b) The individual shall file such claim or register for work with reasonable diligence after the termination of good cause, usually not later than during the week following the week in which such termination occurs.

(c) A first or subsequent partial claim or other claim for benefits or registration for work shall not be valid if it is filed more than 13 weeks after the end of the benefit year (actual or potential) during which the week of partial unemployment or week of unemployment occurred.

NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1326, Unemployment Insurance Code.

HISTORY


1. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Amendment of subsections (b) and (c) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

§1326-11. Mail Claims--Inability to Report in Person.

Note         History



NOTE


Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1326, Unemployment Insurance Code.

HISTORY


1. Repealer and new section filed 3-28-79; effective thirtieth day thereafter (Register 79, No. 13).

2. Repealer filed 5-6-96; operative 6-5-96 (Register 96, No. 19).

§1326-12. Payment of Unemployment Compensation Benefits Appeal by Claimant.

Note         History



(a) Scope. This section interprets whether unemployment compensation benefit payments continue in situations where the department determines a claimant is initially eligible for benefits, but subsequently determines the claimant is ineligible or disqualified for benefits for further weeks, and the claimant files an appeal from the subsequent determination.

(b) General. If the department finally determines that a claimant is initially eligible for benefits, subsequently determines that the claimant is ineligible or disqualified or subject to a reduction of further benefits, and the claimant files a timely appeal from the subsequent determination, within 20 days pursuant to Unemployment Insurance Code Section 1328, and a written election with the department on a prescribed form “Notice of Right to Receive Benefits Pending Appeal” DE Form 63155 CC Rev. 3: 6/86) to have benefits continued and files continued claims pending disposition of the appeal, the department shall continue to pay benefits until the appeal has been resolved by the decision of an administrative law judge, except that benefit payments shall cease if the appeal is dismissed or if a criminal complaint for fraud is filed against the claimant under Section 2101 of the code.

(c) Claimant Finally Determined Initially Eligible. The department has finally determined that a claimant is initially eligible for benefits if, after the filing of a new or additional claim, the department determines that all of the following conditions exist:

(1) The claimant is unemployed.

(2) The claimant has filed a claim in accordance with authorized regulations, which appear in Title 22, California Code of Regulations, Division 1, Part 1, Chapter 5, Article 3.

(3) The claimant has a monetarily valid claim.

(4) The claimant has not exhausted the maximum benefit amount for the benefit year of the claim.

(5) The claimant is otherwise eligible.

(6) The initial determination is not subject to reconsideration under Section 1256.1, 1332, or 1332.5 of the code.

(d) Factors Making Claimant Ineligible. A claimant is not eligible for benefits for any period for which the department determines that at the time the claimant was otherwise eligible any of the following conditions exist:

(1) There has been no wage loss because of:

(A) The receipt of residuals or rerun payments (see Sections 678, 926 and 926.5 of the code).

(B) Commissions (see Section 926 of the code).

(C) Wages as a fisherman for fish previously caught (see Section 1252.1 and 1252.2 of the code).

(2) The extent to which benefits are offset against an overpayment of unemployment compensation benefits previously paid under the code if the overpayment determination is final (see Section 1379 of the code).

(3) The extent to which claimant is entitled to duplicate benefits under:

(A) The unemployment compensation law of any other state or of the federal government (see Section 1255 of the code).

(B) The workers' compensation law of any state or of the federal government (see Section 1255.5 of the code).

EXAMPLE 1. Claim Filing. Claimant A files a new claim and the department discovers A may not have reported the correct last employer. The department questions A and A agrees that A did not furnish the department with the name and address of the most recent employer and refuses to do so. The department determines A has failed to submit required information and holds A ineligible because A has not filed a valid claim in accordance with subdivision (b) of Section 1326-2 of these regulations. Claimant A appeals. Since A has not complied with department regula