35A-4-405 - Ineligibility for benefits.
35A-4-405. Ineligibility for benefits.
Except as otherwise provided in Subsection (5), an individual is ineligible for benefits orfor purposes of establishing a waiting period:
(1) (a) For the week in which the claimant left work voluntarily without good cause, if sofound by the division, and for each week thereafter until the claimant has performed services inbona fide, covered employment and earned wages for those services equal to at least six times theclaimant's weekly benefit amount.
(b) A claimant may not be denied eligibility for benefits if the claimant leaves workunder circumstances where it would be contrary to equity and good conscience to impose adisqualification.
(c) Using available information from employers and the claimant, the division shallconsider for the purposes of this chapter the reasonableness of the claimant's actions, and theextent to which the actions evidence a genuine continuing attachment to the labor market inreaching a determination of whether the ineligibility of a claimant is contrary to equity and goodconscience.
(d) Notwithstanding any other subsection of this section, a claimant who has left workvoluntarily to accompany, follow, or join the claimant's spouse to or in a new locality does sowithout good cause for purposes of Subsection (1).
(2) (a) For the week in which the claimant was discharged for just cause or for an act oromission in connection with employment, not constituting a crime, which is deliberate, willful,or wanton and adverse to the employer's rightful interest, if so found by the division, andthereafter until the claimant has earned an amount equal to at least six times the claimant'sweekly benefit amount in bona fide covered employment.
(b) For the week in which the claimant was discharged for dishonesty constituting acrime or any felony or class A misdemeanor in connection with the claimant's work as shown bythe facts, together with the claimant's admission, or as shown by the claimant's conviction of thatcrime in a court of competent jurisdiction and for the 51 next following weeks.
(c) Wage credits shall be deleted from the claimant's base period, and are not availablefor this or any subsequent claim for benefits.
(3) (a) (i) If the division finds that the claimant has failed without good cause to properlyapply for available suitable work, to accept a referral to suitable work offered by the employmentoffice, or to accept suitable work offered by an employer or the employment office.
(ii) The ineligibility continues until the claimant has performed services in bona fidecovered employment and earned wages for the services in an amount equal to at least six timesthe claimant's weekly benefit amount.
(b) (i) A claimant may not be denied eligibility for benefits for failure to apply, acceptreferral, or accept available suitable work under circumstances where it would be contrary toequity and good conscience to impose a disqualification.
(ii) The division shall consider the purposes of this chapter, the reasonableness of theclaimant's actions, and the extent to which the actions evidence a genuine continuing attachmentto the labor market in reaching a determination of whether the ineligibility of a claimant iscontrary to equity and good conscience.
(c) In determining whether work is suitable for an individual, the division shall considerthe:
(i) degree of risk involved to his health, safety, and morals;
(ii) individual's physical fitness and prior training;
(iii) individual's prior earnings and experience;
(iv) individual's length of unemployment;
(v) prospects for securing local work in his customary occupation;
(vi) wages for similar work in the locality; and
(vii) distance of the available work from his residence.
(d) Prior earnings shall be considered on the basis of all four quarters used in establishingeligibility and not just the earnings from the most recent employer. The division shall be moreprone to find work as suitable the longer the claimant has been unemployed and the less likelythe prospects are to secure local work in his customary occupation.
(e) Notwithstanding any other provision of this chapter, no work is suitable, and benefitsmay not be denied under this chapter to any otherwise eligible individual for refusing to acceptnew work under any of the following conditions:
(i) if the position offered is vacant due directly to a strike, lockout, or other labor dispute;
(ii) if the wages, hours, or other conditions of the work offered are substantially lessfavorable to the individual than those prevailing for similar work in the locality; or
(iii) if as a condition of being employed the individual would be required to join acompany union or to resign from or refrain from joining any bona fide labor organization.
(4) For any week in which the division finds that the claimant's unemployment is due to astoppage of work that exists because of a strike involving the claimant's grade, class, or group ofworkers at the factory or establishment at which the claimant is or was last employed.
(a) If the division finds that a strike has been fomented by a worker of any employer,none of the workers of the grade, class, or group of workers of the individual who is found to bea party to the plan, or agreement to foment a strike, shall be eligible for benefits. However, if thedivision finds that the strike is caused by the failure or refusal of any employer to conform to anylaw of the state or of the United States pertaining to hours, wages, or other conditions of work,the strike may not render the workers ineligible for benefits.
(b) If the division finds that the employer, the employer's agent or representative hasconspired, planned, or agreed with any of the employer's workers, their agents or representativesto foment a strike, that strike may not render the workers ineligible for benefits.
(c) A worker may receive benefits if, subsequent to the worker's unemployment becauseof a strike as defined in this Subsection (4), the worker has obtained employment and has beenpaid wages of not less than the amount specified in Subsection 35A-4-401(4) and has worked asspecified in Subsection 35A-4-403(1)(f). During the existence of the stoppage of work due tothis strike the wages of the worker used for the determination of his benefit rights may notinclude any wages the worker earned from the employer involved in the strike.
(5) (a) For each week with respect to which the claimant willfully made a false statementor representation or knowingly failed to report a material fact to obtain any benefit under theprovisions of this chapter, and an additional 13 weeks for the first week the statement orrepresentation was made or fact withheld and six weeks for each week thereafter; the additionalweeks not to exceed 49 weeks.
(b) The additional period shall commence on the Sunday following the issuance of adetermination finding the claimant in violation of this Subsection (5).
(c) (i) Each claimant found in violation of this Subsection (5) shall repay to the divisionthe overpayment and, as a civil penalty, an amount equal to the overpayment.
(ii) The overpayment is the amount of benefits the claimant received by direct reason offraud.
(iii) The penalty amount shall be regarded as any other penalty under this chapter.
(iv) These amounts shall be collectible by civil action or warrant in the manner providedin Subsections 35A-4-305(3) and (5).
(d) A claimant is ineligible for future benefits or waiting week credit, and any wagecredits earned by the claimant shall be unavailable for purposes of paying benefits, if any amountowed under this Subsection (5) remains unpaid.
(e) Determinations under this Subsection (5) shall be appealable in the manner providedby this chapter for appeals from other benefit determinations.
(f) If the fraud determination is based solely on unreported or underreported work orearnings, or both, and the claimant would have been eligible for benefits if the work or earnings,or both, had been correctly reported, the individual does not lose eligibility for that week becauseof the misreporting but is liable for the overpayment and subject to the penalties in Subsection(5)(c) and the disqualification periods for future weeks in Subsection (5)(a).
(6) For any week with respect to which or a part of which the claimant has received or isseeking unemployment benefits under an unemployment compensation law of another state orthe United States. If the appropriate agency of the other state or of the United States finallydetermines that the claimant is not entitled to those unemployment benefits, this disqualificationdoes not apply.
(7) (a) For any week with respect to which the claimant is receiving, has received, or isentitled to receive remuneration in the form of:
(i) wages in lieu of notice, or a dismissal or separation payment; or
(ii) accrued vacation or terminal leave payment.
(b) If the remuneration is less than the benefits that would otherwise be due, the claimantis entitled to receive for that week, if otherwise eligible, benefits reduced as provided inSubsection 35A-4-401(3).
(8) (a) For any week in which the individual's benefits are based on service for aneducational institution in an instructional, research, or principal administrative capacity and thatbegins during the period between two successive academic years, or during a similar periodbetween two regular terms, whether or not successive, or during a period of paid sabbatical leaveprovided for in the individual's contract if the individual performs services in the first of thoseacademic years or terms and if there is a contract or reasonable assurance that the individual willperform services in that capacity for an educational institution in the second of the academicyears or terms.
(b) (i) For any week in which the individual's benefits are based on service in any othercapacity for an educational institution, and that week begins during a period between twosuccessive academic years or terms if the individual performs those services in the first of theacademic years or terms and there is a reasonable assurance that the individual will perform theservices in the second of the academic years or terms.
(ii) If compensation is denied to any individual under this Subsection (8) and theindividual was not offered an opportunity to perform the services for the educational institutionfor the second of the academic years or terms, the individual shall be entitled to a retroactivepayment of compensation for each week for which the individual filed a timely claim forcompensation and for which compensation was denied solely by reason of this Subsection (8).
(c) With respect to any services described in Subsection (8)(a) or (b), compensationpayable on the basis of those services shall be denied to an individual for any week thatcommences during an established and customary vacation period or holiday recess if theindividual performs the services in the period immediately before the vacation period or holidayrecess, and there is a reasonable assurance that the individual will perform the services in theperiod immediately following the vacation period or holiday recess.
(d) (i) With respect to services described in Subsection (8)(a) or (b), compensationpayable on the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be deniedto an individual who performed those services in an educational institution while in the employof an educational service agency.
(ii) For purposes of this Subsection (8)(d), "educational service agency" means agovernmental agency or entity established and operated exclusively for the purpose of providingthe services described in Subsection (8)(a) or (b) to an educational institution.
(e) Benefits based on service in employment, defined in Subsections 35A-4-204(2)(d)and (e) are payable in the same amount, on the same terms and subject to the same conditions ascompensation payable on the basis of other service subject to this chapter.
(9) For any week that commences during the period between two successive sportseasons or similar periods if the individual performed any services, substantially all of whichconsists of participating in sports or athletic events or training or preparing to participate in thefirst of those seasons or similar periods and there is a reasonable assurance that individual willperform those services in the later of the seasons or similar periods.
(10) (a) For any week in which the benefits are based upon services performed by analien, unless the alien is an individual who has been lawfully admitted for permanent residence atthe time the services were performed, was lawfully present for purposes of performing theservices or, was permanently residing in the United States under color of law at the time theservices were performed, including an alien who is lawfully present in the United States as aresult of the application of Subsection 212(d)(5) of the Immigration and Nationality Act, 8U.S.C. 1182(d)(5)(A).
(b) Any data or information required of individuals applying for benefits to determinewhether benefits are not payable to them because of their alien status shall be uniformly requiredfrom all applicants for benefits.
(c) In the case of an individual whose application for benefits would otherwise beapproved, no determination that benefits to the individual are not payable because of his alienstatus shall be made except upon a preponderance of the evidence.
Amended by Chapter 225, 2007 General Session