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CHAPTER 65. EMPLOYEE PROVISIONS
Subchap. Sec.
A. GENERAL PROVISIONS 65.1
B. PREREQUISITES FOR ELIGIBILITY 65.11
C. APPLICATION PROCEDURE 65.31
D. PARTIAL UNEMPLOYMENT AND DECEASED OR INCOMPETENT CLAIMANTS 65.71
E. ELIGIBILITY IN CONJUNCTION WITH OTHER PAYMENTS 65.91
F. COMPUTATIONS 65.111
G. INTERSTATE CLAIMS 65.131
H. ALLOWANCES FOR DEPENDENTS 65.151
I. BENEFITS BASED ON SERVICE FOR EDUCATIONAL
INSTITUTIONS 65.161Notes of Decisions School Employes
It is well settled that teachers and other school employees not working during term breaks who can reasonably expect to return are not entitled to unemployment compensation benefits. Therefore, the Board of Unemployment Compensation appropriately denied claimants request for unemployment where budget constraints forced a cutback in the summer program, but where all claimants were offered jobs in the fall. Croft v. Unemployment Compensation Board of Review, 662 A.2d 24 (Pa. Comwlth. 1995).
Subchapter A. GENERAL PROVISIONS
Sec.
65.1. Definitions.§ 65.1. Definitions.
In addition to the terms defined in § 61.1 (relating to definitions), the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Agent stateA state in which an individual files a claim for benefits from another state.
BenefitsCompensation payable to an individual with respect to the individual employment, under the unemployment insurance law of a state.
Interstate Benefit Payment PlanThe plan approved by the Interstate Conference of Employment Security Agencies, under which benefits are payable to unemployed individuals absent from the state in which benefit credits have been accumulated.
Interstate claimantAn individual who claims benefits under the unemployment insurance law of one or more liable states through the facilities of an agent state. The term does not include an individual who customarily commutes from a residence in an agent state to work in a liable state unless the Bureau finds that this exclusion would create undue hardship on the claimants in specified areas.
Liable stateA state against which an individual files, through another state, a claim for benefits.
Registered for workWhen a claimant has appeared at a regularly established public employment office and has completed and signed an Application for Benefits, Form UC-42; and when, upon request, he has furnished that office with the accepted title for the occupations at which he is usually employed.
Registration for workWhen an individual has appeared in person at a public employment office and has furnished that office with his name, usual occupation and correct post office address and has declared his availability for suitable work.
StateThe term includes Puerto Rico, the Virgin Islands and the District of Columbia.
Week of unemploymentAny week of unemployment as defined in the law of the liable state from which benefits with respect to the week are claimed.
Source The provisions of this § 65.1 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731.
Cross References This section cited in 34 Pa. Code § 65.11 (relating to effective period).
Subchapter B. PREREQUISITES FOR ELIGIBILITY
REGISTRATION FOR WORK Sec.
65.11. Effective period.
65.12. Registration renewals.
65.13. Predated claims.
65.14. Additional information.
65.15. Claims filed in other states.
OFFERS OF SUITABLE WORK
65.21. Disqualification for benefits.
65.22. Applicable rules.
REGISTRATION FOR WORK
Notes of Decisions Disqualification
A claimant may be disqualified from receiving compensation only for those amounts overpaid during those weeks in which the claimants failure to disclose income from part-time employment affected the amount of her benefits. Schaeffer v. Unemployment Compensation Board of Review, 467 A.2d 67 (Pa. Cmwlth. 1983).
§ 65.11. Effective period.
A registration for work created by the actions stated in § 65.1 (relating to definitions) shall continue in effect as follows:
(1) For a period of 3 weeks following the date of the valid application for benefits.
(2) As long as the claimant continues to file claims for weeks of unemployment ending at intervals of not more than 3 weeks, the first of which claims was for a week ending within the 3 week period following the date of the valid application for benefits.
Source The provisions of this § 65.13 adopted July 1, 1969; amended September 27, 1974, effective September 28, 1974, 4 Pa.B. 2077; amended July 25, 1975, effective July 26, 1975, 5 Pa.B. 1920. Immediately preceding text appears at serial pages (18416) to (18417).
§ 65.14. Additional information.
Nothing in this subchapter shall be construed to prevent the Department from requiring of a claimant additional information with respect to his work history and occupational aptitudes in a manner and on forms which it may require.
Source The provisions of this § 65.14 adopted July 1, 1969.
§ 65.15. Claims filed in other states.
A claimant, filing claims in another state under the section 312 of the law (43 P. S. § 792), will be considered to have registered for work when he has complied with the registration for work requirements of the state in which he is filing his claim. Registration for work shall continue in effect for the length of time provided by the laws, regulations and procedures of the state in which he is filing his claim.
Source The provisions of this § 65.15 adopted July 1, 1969.
OFFERS OF SUITABLE WORK
§ 65.21. Disqualification for benefits.
In accordance with the provisions of section 402(a) of the law (43 P. S. § 802), an employe shall be ineligible for benefits for any week in which he is unemployed because he has refused without good cause an offer for suitable work made either by the local public employment office or by an employer who notifies the employment office within 7 working days of his offer to the potential employe.
Source The provisions of this § 65.21 adopted July 1, 1969; amended December 20, 1974, effective December 21, 1974, 4 Pa.B. 2567. Immediately preceding text appears at serial page (9311).
Notes of Decisions Good Cause
When the employe of a temporary employment agency did not report for her assigned work because she mistakenly believed that the assigned work had been cancelled, she did not have good cause for not reporting where she did not call the employment agency to make sure that the assignment had indeed been cancelled. MacDonald v. Unemployment Compensation Board of Review, 333 A.2d 199 (Pa. Cmwlth. 1975).
Notification by Employer
It is error to grant compensation to an applicant merely because an employer did not properly notify the Bureau of an employes failure to accept a work assignment. MacDonald v. Unemployment Compensation Board of Review, 333 A.2d 199 (Pa. Cmwlth. 1975).
After the Board determines that an offer of suitable employment was refused, it is without authority, absent a showing of prejudice, to grant compensation merely because the form of the notice of an offer of work by a claimants prior employer was defective. General Motors Corp. v. Unemployment Compensation Board of Review, 322 A.2d 762 (Pa. Cmwlth. 1974).
§ 65.22. Applicable rules.
(a) With respect to offers of suitable work made by an employer, the following rules apply:
(1) A work offer may be considered as suitable irrespective of whether the work is in employment as defined in sections 4 and 402(a) of the law (43 P. S. § § 753 and 802(a)).
(2) The notification shall be made to the local public employment office at which the employe has filed or may file an application for benefits or a registration renewal.
(3) The offer to the employe may be in writing in which case a carbon copy or an exact duplicate shall be furnished to the employment office within 7 working days after the mailing of the offer. If the employers offer is not made in writing, as, for example, where it is made by telephone, the employer shall provide the employment office with a detailed written description of the offer within 7 working days after the making thereof. Regardless of the manner in which the offer is communicated to the employe, it shall include all of the following:
(i) The rate of pay and unit of work or period of time which the rate represents.
(ii) The scheduled working hours during each day of the week.
(iii) The location of the work.
(iv) A description of the duties or a generally recognized term covering the duties.
(v) An unusual requirement or condition of work.
(b) Where the employer who makes the offer has employed the employe after the beginning of the employes base year and, in his offer of employment to the employe, states that the conditions of the job are substantially the same as those under which the employe last worked for the employer, the requirements enumerated in subsection (a) are not required to be included.
(c) If the job offered the employe is covered under a labor-management agreement and a statement to this effect is made in the offer of employment, no further description will be required.
(d) It will be the responsibility of the Department, before issuing a decision on a claim for benefits, to determine on the basis of facts whether the work offer was suitable within the meaning of section 4(t) of the law (43 P. S. § 753(t)).
Source The provisions of this § 65.22 adopted July 1, 1969; amended December 20, 1974, effective December 21, 1974, 4 Pa.B. 2567. Immediately preceding text appears at serial pages (9311) and (13479).
Notes of Decisions Work Offer
It is error to grant compensation to an applicant merely because an employer did not properly notify the Bureau of the failure of an employe to accept a work assignment. MacDonald v. Unemployment Compensation Board of Review, 333 A.2d 199 (Pa. Cmwlth. 1975).
After the Board determines that an offer of suitable employment was refused, it is without authority, absent a showing of prejudice, to grant compensation merely because the form of the notice of an offer of work by a claimants prior employer was defective. General Motors Corp. v. Unemployment Compensation Board of Review, 322 A.2d 762 (Pa. Cmwlth. 1974).
Subchapter C. APPLICATION PROCEDURE
CLAIMS FOR COMPENSATION Sec.
65.31. Filing.
65.32. Week of unemployment.
65.33. Predating.
65.34. [Reserved].
65.35. Ineligibility.
APPLICATION FOR BENEFITS
65.41. Procedure.
65.42. Date of filing.
65.43. Places of filing.
65.44. Information as to eligibility.
65.51. [Reserved].
65.52. [Reserved].
65.53. [Reserved].
65.54. [Reserved].
65.55. [Reserved].
DECISIONS AND DISQUALIFICATIONS
65.61. Opportunity for refutations.
65.62. Duration of disqualification.
65.63. Filing of appeals.
CLAIMS FOR COMPENSATION
§ 65.31. Filing.
Claims for compensation shall be filed personally by the claimant on official forms available for that purpose at local public employment offices, Monday through Friday, unless closed due to a holiday or by official pronouncement.
Source The provisions of this § 65.31 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended July 13, 1973, effective July 14, 1973, 3 Pa.B. 1309. Immediately preceding text appears at serial page (9312).
Notes of Decisions Because the unemployment compensation claimants backdating of an application for unemployment benefits could not be justified on the basis that the employer misrepresented about eligibility for benefits, claimants application was considered untimely. Mitchelree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993).
A claimant has not complied with the reporting requirements if he is aware of the reporting requirements but only visits the local office informally and irregularly and merely keeps a friend who works at the office apprised of his situation on an informal basis. Zinicola v. Unemployment Compensation Board of Review, 407 A.2d 474 (Pa. Cmwlth. 1979).
§ 65.32. Week of unemployment.
(a) The week of unemployment with respect to which a claim is filed shall be the calendar week preceding the week which includes the day on which the claim is actually or constructively filed; except that those individuals who are filing claims for compensation for a period of unemployment which began prior to the effective date of this section shall continue to file claims for weeks of any 7 consecutive days for as long as that period of unemployment continues and they are otherwise eligible.
(b) Notwithstanding the provisions contained in this section, the local offices shall insure that claimants be scheduled to report for the purpose of processing the first compensable week of their application on the first local office work day possible within the applicable time limits of this section regardless of the last digit of their Social Security number. Thereafter, claimants may be rescheduled in accordance with the digit reporting schedule.
Source The provisions of this § 65.32 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended July 13, 1973, effective July 14, 1973, 3 Pa.B. 1309. Immediately preceding text appears at serial pages (9313) to (9314).
Notes of Decisions Reporting Requirements
A claimant has not complied with the reporting requirements if he is aware of the reporting requirements but only visits the local office informally and irregularly and merely keeps a friend who works at the office apprised of his situation on an informal basis. Zinicola v. Unemployment Compensation Board of Review, 407 A.2d 474 (Pa. Cmwlth. 1979).
Timeliness
Because the unemployment compensation claimants backdating of an application for unemployment benefits could not be justified on the basis that the employer misrepresented about eligibility for benefits, claimants application was considered untimely. Mitchelree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993).
§ 65.33. Predating.
(a) A claim for a week of total, partial or part-total unemployment may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed when, in the opinion of the Bureau, the claimant was prevented, through no fault of his own, from filing his claims during the week immediately subsequent to the week for which the claim is filed because of one or more of the following reasons:
(1) The inability of the local public employment office to handle currently all claims, or the postponement of claims-taking by the local office for administrative reasons shall permit not more than 6 weeks of predating.
(2) The inaccessibility of the office in isolated areas, or the infrequency of the periodic itinerant service established for the area in which the claimant resides shall permit not more than 2 weeks of predating.
(3) The closing of an office due to a holiday or by official pronouncement shall permit not more than 2 weeks of predating.
(4) The refusal of an office to accept a claim as a result of an error or mistake shall permit not more than 52 weeks of predating.
(5) Sickness or death of another member of the claimants immediate family or an act of God shall permit not more than 2 weeks of predating, provided the claimant was available for work during the week for which the claim is being filed.
(6) Illness or injury which incapacitates the claimant shall permit predating for the duration of the incapacitation plus 2 weeks but in no instance for more than 52 weeks, provided the claimant meets the eligibility requirements during the week for which the claim is being filed.
(7) If the claimant is employed not more than 4 weeks of predating shall be permitted. Where a claimant is filing claims for partial or part-total benefits not more than 4 weeks predating shall be permitted, commencing with the date on which the employer paid wages for the claim week in question.
(8) An appeal of a claimant from disqualification may permit not more than 4 weeks of predating while the appeal is pending.
(b) When a combination of more than one of the reasons outlined in subsection (a) has prevented the claimant from filing a claim and adherence to the most liberal limitation applicable to his case would be inequitable to the claimant, the predating provisions for applicable reasons shall be added and predating to the number of weeks which is equal to the sum of all applicable limitations shall be permitted.
(c) A claim for a week of total or part-total unemployment may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed, when a determination of the eligibility of similarly situated employes under section 402(d) of the law (43 P. S. § 802(d)) is pending, provided that the claim is filed within 6 weeks after the determination has become final.
Source The provisions of this § 65.33 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended March 29, 1974, effective March 30, 1974, 4 Pa.B. 581; amended July 25, 1975, effective July 26, 1975, 5 Pa.B. 1920. Immediately preceding text appears at serial pages (19128) to (19129).
Notes of Decisions Conflict
A conflicting appointment with an employment counselor is not an acceptable reason for not reporting a claim for a week, especially since the applicant could have kept the appointment with the counselor as well as her scheduled appointment at the offices of the Bureau some other time of that day. Seibert v. Unemployment Compensation Board of Review, 403 A.2d 1369 (Pa. Cmwlth. 1979).
Delay
Claimant was not entitled to 2 weeks of predating pursuant to subsection (a)(5) of this section following the death of claimants father, because the regulation gives claimants only a 2-week reprieve to take care of family matters, and did not excuse claimants 5-month failure to file for benefits. Ascheim v. Unemployment Compensation Board of Review, 694 A.2d 4 (Pa. Cmwlth. 1997).
Misrepresentation by Employment Office
Claimant failed to meet his burden of showing that he was misled or prevented from filing claims for the weeks at issue, where he admitted that he received and read the unemployment compensation handbook which sets forth the reporting requirements, he assumed on his own that he was no longer eligible for benefits due to the receipt of a pension, and there was no evidence or testimony that anyone connected to the Job Center prevented the claimant from filing claims. Menalis v. Unemployment Compensation Bd. of Review, 712 A.2d 804 (Pa. Cmwlth. 1998).
Because an unemployment compensation claimants backdating of an application for unemployment benefits could not be justified on the basis that the employer made misrepresentations about eligibility for benefits, claimants application was considered untimely. Mitchelree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993).
Cross References This section cited in 34 Pa. Code § 65.42 (relating to date of filing).
§ 65.34. [Reserved].
Source The provisions of this § 65.34 adopted July 1, 1969; reserved March 29, 1974, effective March 30, 1974, 4 Pa.B. 581. Immediately preceding text appears at serial pages (13481) to (13482).
§ 65.35. Ineligibility.
An employe shall be ineligible for compensation for any week with respect to which or a part of which he has received or is seeking compensation under the provisions of an unemployment compensation law of any other state or of the United States. If it is finally determined that he is not entitled to compensation for the week this disqualification does not apply.
Source The provisions of this § 65.35 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731.
APPLICATION FOR BENEFITS
§ 65.41. Procedure.
(a) Applications for benefits shall be filed on Form UC-42 in local public employment offices, Monday through Friday, unless closed due to a holiday or by official pronouncement.
(b) Claimants reporting to file new applications for benefits shall be served and their claims processed on the day they report, or are scheduled to report, regardless of the last digit of their Social Security numbers, unless it is factually determined that rescheduling, within applicable time limits of this section, is deemed necessary by the local office manager for administrative reasons.
(c) An application for benefits may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed when, in the opinion of the Bureau, the claimant was prevented or persuaded, through no fault of his own, from filing the application because of one of the following reasons; and in each instance the term week or weeks means the calendar week or weeks, Sunday through Saturday.
(1) The inaccessibility of the local public employment office in isolated areas, or the infrequency of the periodic itinerant service established for the area in which the claimant is filing an application shall permit not more than 2 weeks of predating.
(2) The closing of an office due to a holiday or by official pronouncement may permit not more than 2 weeks of predating.
(3) The inability of an office to take the claimants application on the day on which he reported for the purpose, or the postponement of application taken by the office for administrative reasons may permit not more than 6 weeks of predating.
(4) Erroneous advice by his employer that he would be recalled to work within 1 week may permit not more than 2 weeks of predating.
(5) The refusal of the office to accept the application as a result of an error or mistake shall permit not more than 52 weeks of predating.
(d) Notwithstanding the criteria set forth in this section establishing maximum time limitations to and reasons for backdating an application for benefits, and for the purpose of insuring prompt adjudication of each application, the local employment office shall schedule or reschedule claimants, regardless of the last digit of their Social Security numbers, to report on the first local office work day possible within the applicable time limits of this section following the day on which their failure or inability to report was due to a reason specified in this section.
(e) An application for benefits may be deemed to be filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed, when a determination of the eligibility of similarly situated employes under section 402(d) of the law (43 P. S. § 802(d)) is pending, provided that the application is filed within 6 weeks after the determination has become final.
Source The provisions of this § 65.41 adopted July 1, 1969; amended October 22, 1971, effective October 23, 1971, 1 Pa.B. 2016; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended March 29, 1974, effective March 30, 1974, 4 Pa.B. 581; amended July 25, 1975, effective July 26, 1975, 5 Pa.B. 1920. Immediately preceding text appears at serial pages (15238) to (15239).
Notes of Decisions Backdating
Where the claimant was misled when job center personnel failed to provide him with the standard notice of the approaching end of his benefit year, it was error not to permit backdating of the claimants renewal application. Russell v. Unemployment Compensation Review Board, 812 A.2d 780 (Pa. Cmwlth. 2002).
Because the unemployment compensation claimants backdating of an application for unemployment benefits could not be justified on the basis that the employer misrepresented about eligibility for benefits, claimants application was considered untimely. Mitchelree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993).
A claimants application for Trade Readjustment Assistance (TRA) benefits may not be backdated more than 52 weeks due to misinformation by a State employe unless the misinformation constitutes gross negligence or fraud. Sturni v. Unemployment Compensation Board of Review, 625 A.2d 727 (Pa. Cmwlth. 1993).
Claimant was not misled by OES in regard to proper reporting requirements and she could not rely on a backdating of an application for benefits. Strichko v. Unemployment Compensation Board of Review, 547 A.2d 496 (Pa. Cmwlth. 1988).
The failure of § 65.41 to permit predating for incapacitation due to illness or injury is not violative of section 3 of the Unemployment Compensation Law (43 P. S. § 752). Edwards v. Unemployment Compensation Board of Review, 426 A.2d 237 (Pa. Cmwlth. 1981).
Predating
Section 65.41(c)(5) bars recovery in the absence of the Bureaus gross negligence or willful and wanton misrepresentation amounting to fraud. Kear v. Unemployment Compensation Board of Review, 397 A.2d 468 (Pa. Cmwlth. 1979).
Reporting Requirements
A conflicting appointment with an employment counselor is not an acceptable reason for not reporting a claim for a week, especially since the applicant could have kept the appointment with the counselor as well as her scheduled appointment at the Bureaus offices some other time of that day. Seibert v. Unemployment Compensation Board of Review, 403 A.2d 1369 (Pa. Cmwlth. 1979).
Validity
Section 65.41(c)(5) is neither unreasonable nor inconsistent with the purposes of the Unemployment Compensation Law. Kear v. Unemployment Compensation Board of Review, 397 A.2d 468 (Pa. Cmwlth. 1979).
Cross References This section cited in 34 Pa. Code § 65.13 (relating to predated claims); and 34 Pa. Code § 65.42 (relating to date of filing).
§ 65.42. Date of filing.
(a) Notwithstanding the provisions of § 65.41(b) (relating to procedure) an application for benefits shall be deemed to be filed as of the first day of any week for which a claim is filed for compensation for partial unemployment within the time limits prescribed under § 65.33 (relating to predating), if the claimant has not previously established a benefit year applicable to that week.
(b) A claim for a week of total or part-total unemployment may not be filed with respect to an application for benefits which is prior to the first day of the week which includes the day on which the application for benefits is actually filed, except within the time limits prescribed in § 65.41(b) and (c).
Source The provisions of this § 65.42 adopted July 1, 1969; amended March 29, 1974, effective March 30, 1974, 4 Pa.B. 581. Immediately preceding text appears at serial page (13484).
Cross References This section cited in 34 Pa. Code § 65.13 (relating to predated claims).
§ 65.43. Places of filing.
Notwithstanding the provisions of this chapter that applications for benefits, claims and work registrations shall be filed at local public employment offices, the Bureau may accept applications for benefits, claims and work registration at any other places which may be advisable and expedient.
Source The provisions of this § 65.43 adopted July 1, 1969.
Notes of Decisions Places
The provisions of § 65.43 authorize the Bureau to provide for receiving applications and registrations in places other than public employment offices, but do not empower a claimant to determine where his weekly reporting and filing are to be done or which public employment office he will use for that purpose. Regoli v. Unemployment Compensation Board of Review, 427 A.2d 1275 (Pa. Cmwlth. 1981).
Cross References This section cited in 34 Pa. Code § 65.13 (relating to predated claims).
§ 65.44. Information as to eligibility.
A base-year employer or last employer, who, under the provisions of section 501(c) of the law (43 P. S. § 821(c)), desires to raise a question as to the eligibility of a claimant, may do so only in writing delivered to the local public employment office indicated on the form by which he has been notified that the claimant has filed an application for benefits.
Source The provisions of this § 65.44 adopted July 1, 1969.
§ 65.51. [Reserved].
Source The provisions of this § 65.51 adopted July 1, 1969; reserved September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (27683).
§ 65.52. [Reserved].
Source The provisions of this § 65.52 adopted January 14, 1972, effective January 15, 1972, 2 Pa.B. 59; reserved September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (27683).
§ 65.53. [Reserved].
Source The provisions of this § 65.53 adopted January 14, 1972, effective January 15, 1972, 2 Pa.B. 59; reserved September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (27683).
§ 65.54. [Reserved].
Source The provisions of this § 65.54 adopted January 14, 1972, effective January 15, 1972, 2 Pa.B. 59; reserved September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (27683).
§ 65.55. [Reserved].
Source The provisions of this § 65.55 adopted July 1, 1969; reserved September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (27684).
DECISIONS AND DISQUALIFICATIONS
§ 65.61. Opportunity for refutations.
The Bureau will not issue a decision invalidating a claim until the claimant has been given an opportunity to refute any alleged facts or circumstances which are being considered as a basis for invalidating his claim.
Source The provisions of this § 65.62 adopted July 1, 1969; amended June 11, 1976, effective June 12, 1976, 6 Pa.B. 1329. Immediately preceding text appears at serial page (9318).
Notes of Decisions Temporary Employment
The limitation on ineligibility provided by subsection (b) applies to claimants who refuse temporary or casual employment opportunities, and does not confer eligibility upon employes disqualified as a matter of law under section 402(b). Awarding this claimant benefits would be advocating a system under which any employe could quit employment and still be eligible to receive compensation benefits by establishing a future departure date despite leaving employment in advance of that date. Thus, a law student who knowingly enters into a temporary part-time employment arrangement with a law firm, voluntarily leaves that employment prior to the end of the specified period to study for exams, fails to request extension of the letter agreement or to seek regular full-time employment with the law firm upon graduation, does not fall within the class of employes the legislature intended to protect. Evans v. Unemployment Compensation Board of Review, 665 A.2d 548 (Pa. Cmwlth. 1995).
Employe who refuses to report to an interview for temporary employment because the employe was only interested in permanent employment has, without good cause, failed to pursue a referral of suitable employment and, under subsection (b), is ineligible to receive unemployment benefits for the entire period of time such temporary work would have been furnished. Raffaele v. Unemployment Compensation Board of Review, 465 A.2d 85 (Pa. Cmwlth. 1983).
Voluntary Termination
Employe who voluntarily terminated a permanent job to seek treatment for nerves was not eligible for benefits. Weaver v. Unemployment Compensation Board of Review, 544 A.2d 554 (Pa. Cmwlth. 1988).
§ 65.63. Filing of appeals.
Appeals filed under the provisions of section 501(e) of the law (43 P. S. § 821(e)) and further appeals filed under the provisions of section 502 of the law (43 P. S. § 822) shall be filed through the local public employment office at which the claimant has filed his application or claim with respect to which the appeal is taken. Appeals and further appeals shall be in writing and shall state the reasons for the appeal.
Source The provisions of this § 65.63 adopted July 1, 1969.
Cross References This section cited in 34 Pa. Code § 63.23 (relating to unacceptable reasons).
Subchapter D. PARTIAL UNEMPLOYMENT AND DECEASED OR INCOMPETENT CLAIMANTS
Sec.
65.71. Compensation for partial unemployment.
65.72. Payments for deceased or incompetent claimants.
65.81. [Reserved].
65.82. [Reserved].
65.83. [Reserved].
65.84. [Reserved].
65.85. [Reserved].§ 65.71. Compensation for partial unemployment.
(a) In determining the amount of compensation to which an eligible claimant is entitled for a week of partial unemployment which has caused the claimant a loss of earnings, due either to lack of work or unavailability for work, the Bureau shall estimate the amount of earnings which the claimant would have earned had he been actually employed during that week.
(b) Compensation for the week shall be made in an amount equal to the weekly benefit rate of the claimant, less the sum of the estimated amount of his earnings and his actual earnings for the week, to the extent that the payments are in excess of partial benefit credit of the claimant.
(c) In estimating the amount of earnings which a claimant would have received for the hours during which he was unavailable for work the Bureau shall prorate his actual hourly earnings for the week, unless some other method of estimation would be fairer and more reasonable.
Source The provisions of this § 65.72 adopted July 1, 1969.
§ 65.81. [Reserved].
Source The provisions of this § 65.81 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (9321).
§ 65.82. [Reserved].
Source The provisions of this § 65.82 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (9321).
§ 65.83. [Reserved].
Source The provisions of this § 65.83 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (9321).
§ 65.84. [Reserved].
Source The provisions of this § 65.84 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (9322).
§ 65.85. [Reserved].
Source The provisions of this § 65.85 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (9322).
Subchapter E. ELIGIBILITY IN CONJUNCTION WITH
OTHER PAYMENTS
VACATION PAY
65.91. Type of pay.
65.92. Determination of eligibility.
65.93. Reductions in unemployment compensation.
65.94. Identification of vacation periods.
65.95. Time of payment.
65.96. Calculation of vacation period.
RETIREMENT PENSIONS AND ANNUITIES
65.101. Purpose.
65.102. Application of the deduction.
65.103. [Reserved].
65.104. Initial payments.
65.105. Lump-sum retirement payments.
65.106. [Reserved].
65.107. [Reserved].
65.108. Rules of arbitration.
VACATION PAY
§ 65.91. Type of pay.
(a) Whether a payment constitutes vacation pay for purposes of this subchapter shall depend on the purpose for which it is in fact paid or payable rather than the label which may have been given to the payment or to the fund from which it is paid. Unemployment compensation may not be used to finance vacations.
(b) When a plant or department-wide period is granted for vacation and vacation pay is payable to an individual, he may not claim the period is a layoff for him due to lack of work and that his vacation pay should be assignable to some other period, so as to obtain unemployment compensation for one vacation with vacation pay from the employer for another.
(c) The Superior Court has, in effect, held that where the employer of the claimant has designated or approved a vacation period for him, other than the general vacation shutdown, any vacation pay he receives shall first be allocated to the special vacation period the employer has designated or approved for him.
(d) Apart from section 404 of the law (43 P. S. § 804), claimant may not meet the employment tests of eligibility for unemployment compensation while he is actually taking a vacation from work.
Source The provisions of this § 65.93 adopted July 1, 1969; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 441. Immediately preceding text appears at serial pages (9323) to (9324).
§ 65.94. Identification of vacation periods.
For the purposes of this subchapter, the term vacation period means the following:
(1) A period designated or approved by the claimants employer as his vacation.
(2) The period of any plant-wide or departmental closing for vacation except to the extent that the employer of the claimant has granted him a separate vacation period in substitution, in whole or in part, for the general shutdown.
Source The provisions of this § 65.94 adopted July 1, 1969.
Notes of Decisions Vacation Period
Because there is a presumption of eligibility attached to involuntarily unemployed claimants, and to effectuate the legislative intent underlaying the definition and application of credit week as a condition of eligibility, every week of vacation time, scheduled or unscheduled, earned during a base year must be allocated as a credit week. Poola v. Unemployment Compensation Board of Review, 555 A.2d 97 (Pa. 1989).
A temporary employer shutdown was properly allocated as a vacation period; and, therefore, claimant was not entitled to collect unemployment despite claimants contention that the employers decision to shut down was merely a negotiating strategy. Appel v. Unemployment Compensation Board of Review, 556 A.2d 973 (Pa. Cmwlth. 1989).
Although employer complied with terms of bargaining agreement permitting 2 week annual shutdown for vacation, the shutdown did not meet the definition of vacation since employes were not required to use available vacation leave during shutdown and, in fact, took approved vacation leaves later in year. The employes simply were not scheduled to work as opposed to being excused from working. Iceland Products v. Unemployment Compensation Board of Review, 492 A.2d 457 (Pa. Cmwlth. 1985).
§ 65.95. Time of payment.
(a) Vacation pay shall be deemed to have been paid with respect to the vacation period irrespective of the time it is actually received by the claimant if it is for the calendar year in which the vacation period occurs.
(b) If, at the time of the vacation period, the claimant, due to insufficient service, has not yet established entitlement to vacation pay but will later accumulate the necessary amount of service, and if the claimant or his bargaining agent has not agreed to the particular time of the vacation period, the vacation pay may not be allocated to the vacation period.
Source The provisions of this § 65.95 adopted July 1, 1969.
§ 65.96. Calculation of vacation period.
The Department shall determine the number of days or weeks of the vacation period to which the vacation pay shall be applied by dividing the total amount of vacation pay by the regular full-time daily or weekly wage of the claimant. When the allocation of the payment is made on the basis of the number of days, the payment shall be apportioned to the customary working days in the calendar week.
Source The provisions of this § 65.96 adopted July 1, 1969.
Notes of Decisions Calculation
Unemployment compensation Board was not able to reapportion yearly vacation pay between two periods since it had already made a finding of fact that excess earnings made in a particular month were allocable only to that month and as such the Board would be requesting an alternative factual finding unsupported by substantial evidence. LaSota v. Unemployment Compensation Board of Review, 547 A.2d 865 (Pa. Cmwlth. 1988).
RETIREMENT PENSIONS AND ANNUITIES
§ 65.101. Purpose.
(a) In accordance with section 404(d)(2) of the law (43 P. S. § 804(d)(2)), section 402(c) of the Internal Revenue Code of 1986 (26 U.S.C.A. § 402(c)) and section 3304(a)(15) of the Federal Unemployment Tax Act (FUTA) (26 U.S.C.A. § 3304(a)(15)), the Department has promulgated regulations governing the deduction of certain pension payments from unemployment compensation benefits (UC benefits).
(b) The Department has balanced the interests of employes and employers of this Commonwealth, consistent with the law. The Department seeks to maximize the Commonwealths share of competitive employment in a global economy, thereby serving the needs of all Pennsylvanians by reducing the number of unemployed individuals and ensuring that UC benefits are available to those who need and are entitled to them.
(c) For any week with respect to which a claimant is receiving certain pension payments, the Department will deduct from the weekly compensation otherwise payable to the claimant the prorated weekly amount of those pension payments which fulfill the prerequisites for deductibility specified in this chapter.
Source The provisions of this § 65.102 adopted July 1, 1969; amended November 8, 1974, effective November 9, 1974, 4 Pa.B. 2358; amended September 3, 1976, effective September 4, 1976, 6 Pa.B. 2107; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 21. Immediately preceding text appears at serial page (224421).
Notes of Decisions
Excluded Contributions
Employers temporary disability salary continuation plan, fully paid and maintained by the employer, was specifically excluded as a deduction by this regulation. York Cable Television, Inc. v. Unemployment Compensation Board of Review, 654 A.2d 270 (Pa. Cmwlth. 1995).
Cross References This section cited in 34 Pa. Code § 65.105 (relating to lump-sum retirement payments).
§ 65.103. [Reserved].
Source The provisions of this § 65.103 adopted July 1, 1969; amended September 3, 1976, effective September 4, 1976, 6 Pa.B. 2107; reserved January 2, 1998, effective January 3, 1998, 28 Pa.B. 21. Immediately preceding text appears at serial pages (224421) to (224423).
Notes of Decisions Benefit Eligibility
Claimant was not entitled to benefits based upon assertion that claimant retired due to impending layoff when claimant did so after attaining maximum pension benefit amount. Boyle v. Unemployment Compensation Board of Review, 566 A.2d 1259 (Pa. Cmwlth. 1989).
Normal Retirement Date
This regulation makes no mention of a normal retirement date determination. Therefore, when the employer makes an offer of full pension rights to an employee to retire, and the employee accepts such an offer, a finding of when the normal retirement date occurs is not necessary to the application of the statute or regulation. Dannerth v. Unemployment Compensation Board of Review, 682 A.2d 55 (Pa. Cmwlth. 1996).
Offset of Benefits
Exemption did not apply to unemployment compensation claimants because they were eligible to retire under their employers retirement plan at the time the plant closed regardless of the special plant closing retirement plan; in order for the exemption to apply, the claimant must be permanently and involuntarily separated from employment prior to his retirement date. Hornsberger v. Unemployment Compensation Board of Review, 718 A.2d 359 (Pa. Cmwlth. 1998); appeal denied by 758 A.2d 1203 (Pa. 1999).
Unemployment compensation benefits are reduced by the amount of pension moneys paid by an employer to an employe who has elected to retire under an enhanced retirement program. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 36 (Pa. Cmwlth. 1996).
The Unemployment Compensation Board properly determined that the employe received a pension of $494 per week and that this pension was entirely contributed to by the employer and because the employes weekly pension exceeded the calculated weekly benefit rate of $340, the unemployment benefits were reduced to zero. Kelly v. Unemployment Compensation Board of Review, 682 A.2d 29 (Pa. Cmwlth. 1996).
When the employe accepted the plan which permitted retirement at age 50, that age then became for the employe the age of retirement and the employe was therefore not separated from employment prior to the retirement date. Since the employe was not separated from employment, however voluntarily or involuntarily, prior to retirement date, the regulatory exception to the rule of pension offset does not apply. The plain language of the excepting regulation requires that an employe be separated prior to retirement date, and, because the employe was not so separated, pension benefits could be deducted from the unemployment benefits. Dannerth v. Unemployment Compensation Board of Review, 682 A.2d 55 (Pa. Cmwlth. 1996).
Claimant reached the actual retirement date. The age at which claimant may have intended to retire, the offer of an enhancement plan that actually enabled claimants earlier retirement without penalty, claimants preference for delaying retirement in order to receive a larger pension, as well as other circumstances pertaining to normal retirement age, are not part of the relevant inquiry under this regulation. Therefore, claimants pension could be deducted from any unemployment compensation which claimant would otherwise be entitled to receive. Salerno, Jr. v. Unemployment Compensation Board of Review, 674 A.2d 776 (Pa. Cmwlth. 1996).
Although Claimant neither intended to retire nor considered self to be retired, at the time of separation claimant was admittedly eligible to retire under employers plan and was eligible to receive pension money without penalty. Contrary to claimants assertions, claimants eligibility to retire was determinative, and the Unemployment Compensation Board correctly applied 43 Pa.C.S. § 804(d)(2) to determine claimants weekly benefit rate by reducing the benefit amount from monthly retirement income even though claimant took retirement benefits in a lump sum payment. Rathvon v. Unemployment Compensation Board of Review, 663 A.2d 893 (Pa. Cmwlth. 1995).
This section was not inconsistent with Unemployment Compensation Law (43 P. S. § 804(d)(2)) or Multiemployer Pension Plan Amendments Act of 1980 (26 U.S.C.A. § 3304(a)(15)) even though it did not allow for the offset of retirement benefits against unemployment benefits in certain cases involving liquidation of pension benefits as a result of plant closings. Teledyne Columbia-Summerill Carnegie v. Unemployment Compensation Board of Review, 634 A.2d 665 (Pa. Cmwlth. 1993).
Unemployment compensation claimants who were separated from employment prior to retirement due to a plant closing were entitled to receive unemployment compensation without a deduction for pension benefits because this section was designed to protect a worker from the devastating effects of a plant closing. Westinghouse Electric Corp. v. Unemployment Compensation Board of Review, 549 A.2d 623 (Pa. Cmwlth. 1988).
Retirement benefits paid to an employe separated from employment due to a plant closing before employe reaches retirement age are not deducted from unemployment compensation. Westinghouse v. Unemployment Compensation Board of Review, 561 A.2d 80 (Pa. Cmwlth. 1989).
Separation
Claimant was not permanently and involuntarily separated from employment prior to retirement date, as claimant was eligible to retire at anytime. The fact that the claimant had no plans to retire at the time of separation was irrelevant. Grace v. Unemployment Compensation Board of Review, 631 A.2d 748 (Pa. Cmwlth. 1993).
Separation
Claimants remained on lay-off status after the plant closed and continued to accrue service credit. Because of this ongoing relationship, claimants were not fully, and not necessarily permanently, separated from employment; thus, employer was entitled to offset the weekly amount of the pensions against any unemployment benefits to which claimants were entitled. Attenberger v. Unemployment Compensation Board of Review, 682 A.2d 68 (Pa. Cmwlth. 1996).
§ 65.104. Initial payments.
(a) When, following the retirement of an employe and, as part of a general pension plan, an initial payment is made in lieu of or in addition to the regular pension amount to which the employe is entitled, the initial payment will be considered a pension payment, and will be subject to this chapter.
(b) Initial payments are independent of regular pension payments. To the extent that they meet the requirements for deductibility provided in this chapter, the Department will deduct them from compensation otherwise payable to a claimant even if the claimants regular pension payments are not deductible. The Department will not deduct initial payments if they do not meet the requirements for deductibility provided in this chapter, even if the claimants regular pension payments are deductible.
(c) When the initial payment includes an amount paid for any reason other than pension, including unused vacation, only that amount which is attributable to the pension is deductible.
(d) When the initial pension payment is received by a claimant in a lump-sum, the deduction of this initial pension amount will be calculated by dividing the initial pension amount by the number of weeks for which the pension plan specifies the initial payment is being made. The number of weeks attributable to unused vacation or other payments will not be used in determining the weekly pension amount to be deducted. The result of this calculation, if not a multiple of 1 dollar, will be computed to the next higher multiple of 1 dollar and will be considered the prorated weekly deductible amount of the initial payment and is the amount by which the weekly benefit rate will be reduced, but not below zero.
Source The provisions of this § 65.104 adopted July 1, 1969; amended March 12, 1976, effective March 13, 1976, 6 Pa.B. 450; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 21. Immediately preceding text appears at serial page (224423).
§ 65.105. Lump-sum retirement payments.
(a) When a claimant receives a lump-sum payment in lieu of a periodic pension payment, the prorated weekly pension amount which the employe could have received will be deducted in accordance with § 65.108 (relating to rules of attribution).
(b) When a claimant cannot receive periodic pension payments and must take a mandatory lump-sum payment, no pension deduction will be made.
(c) When a claimant receives a deductible lump sum payment and transfers only a portion of that payment into an eligible retirement plan within 60 days of receipt, the remainder of the lump sum payment which is not transferred into an eligible retirement plan will be deducted, along with any other deductible pension payments made to the claimant under § 65.102 (relating to application of the deduction) and § 65.108.
Source The provisions of this § 65.105 adopted July 1, 1969; amended March 12, 1976, effective March 13, 1976, 6 Pa.B. 450; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 21. Immediately preceding text appears at serial page (209615).
§ 65.106. [Reserved].
Source The provisions of this § 65.106 adopted July 1, 1969; reserved March 12, 1976, effective March 13, 1976, 6 Pa.B. 450. Immediately preceding text appears at serial pages (9326) to (9327).
§ 65.107. [Reserved].
Source The provisions of this § 65.107 adopted July 1, 1969; reserved March 12, 1976, effective March 13, 1976, 6 Pa.B. 450. Immediately preceding text appears at serial page (9327).
§ 65.108. Rules of attribution.
If a pension, retirement, annuity or other similar periodic payment deductible under section 404(d)(2) of the law (43 P. S. § 804(d)(2)) is received on other than a weekly basis, the amount to be deducted will be prorated as follows: The claimants monthly pension is the amount the claimant could have received each month had the claimant opted to take periodic payments in lieu of a lump sum. The Department will use the deductible amount of that monthly pension, convert it to a yearly amount, and divide by 52. If not a multiple of one dollar, the Department will determine the prorated weekly deductible amount of the pension by rounding to the next higher multiple of one dollar. The weekly benefit amount payable to the claimant will be reduced, but not below zero, by the prorated weekly deductible amount of the pension, in accordance with section 404(d)(2) of the law.
Source The provisions of this § 65.108 adopted January 2, 1998, effective January 3, 1998, 28 Pa.B. 21.
Cross References This section cited in 34 Pa. Code § 65.102 (relating to application of the deduction); and 34 Pa. Code § 65.105 (relating to lump-sum retirement payments).
Subchapter F. COMPUTATIONS
DETERMINATION OF WEEKLY BENEFIT RATE Sec.
65.111. Benefit table.
65.112. Extending or contracting benefit table.
65.113. Computation of weekly wage.
65.114. High quarter rate determination.
65.115. Ascertainment of full-time weekly wage.
65.116. Application for benefits.
65.117. Appeals.
WEEKLY NET EARNINGS IN SIDELINE SELF-EMPLOYMENT
65.121. Computation of weekly net earnings.
65.122. Seasonal businesses.
65.123. Application of computed earnings.
DETERMINATION OF WEEKLY BENEFIT RATE
§ 65.111. Benefit table.
(a) The table specified for the determination of rate and amount of benefits, as provided in Appendix A, shall be extended or contracted annually as prescribed in section 404(e)(2) of the law (43 P. S. § 804(e)(2)) as follows:
(1) The total number of persons in covered employment reported by employers to the Department for the 12-month period ending June 30 is divided by 12 and rounded to the nearest unit to produce the average monthly number of covered workers.
(2) The total amount of covered wages reported by employers to the Departmentirrespective of the limit on the amount of wages subject to employer contributionsfor the 12-month period ending June 30 is then divided by the monthly number of covered workers. The result is rounded to the nearest cent to produce the average annual wage.
(3) The average annual wage is then divided by 52, rounding to the nearest cent, to produce the average weekly wage.
(4) The average weekly wage is then multiplied by 2 and the product is divided by 3. The result becomes the maximum weekly benefit rate. If the result is not a whole dollar amount, it shall be rounded to the next higher multiple of $1.
(b) The amount of qualifying wages set forth in the benefit table for the highest quarterly wage, not the base year wages of the employe, shall be subject to section 401(a) of the law (43 P. S. § 801(a)).
(c) The Secretary shall annually submit the table specified for the determination of rate and amount of benefits to the Legislative Reference Bureau for suggested publication as a notice in the Pennsylvania Bulletin under 45 Pa.C.S. § 725(a)(6) (relating to additional contents of the Pennsylvania Bulletin) and for suggested codification in the Pennsylvania Code, as Appendix A, under 45 Pa.C.S. § 702(7) (relating to contents of the Pennsylvania Code).
Authority The provisions of this § 65.111 issued under sections 201(a) and 404(e)(2) of the Unemployment Compensation Law (43 P. S. § § 761(a) and 804(e)(2)).
Source The provisions of this § 65.111 adopted December 17, 1971, effective December 18, 1971, 1 Pa.B. 2319; corrected December 24, 1971, effective January 1, 1972, 1 Pa.B. 2346; amended December 15, 1972, effective January 1, 1973, 2 Pa.B. 2327; amended December 15, 1973, effective January 1, 1974, 3 Pa.B. 2817; amended December 20, 1974, effective 30 days subsequent to final approval of act of December 5, 1974, 4 Pa.B. 2568; amended December 19, 1975, effective January 4, 1976, 5 Pa.B. 3272; amended December 17, 1976, effective January 2, 1977, 6 Pa.B. 3113; amended December 17, 1977, effective January 1, 1978, 7 Pa.B. 3784; amended December 30, 1978, effective January 1, 1979, 8 Pa.B. 3812; amended December 22, 1979, effective January 1, 1980, 9 Pa.B. 4168; amended December 25, 1981, effective January 1, 1982, 11 Pa.B. 4439; amended December 31, 1982, effective January 1, 1983, 13 Pa.B. 17; corrected January 21, 1983, effective January 1, 1983, 13 Pa.B. 522; amended December 30, 1983, effective January 1, 1984, 13 Pa.B. 4013; amended December 28, 1984, effective December 29, 1984, 14 Pa.B. 4688; amended December 28, 1984, effective January 1, 1985, 14 Pa.B. 4719; amended January 3, 1985, effective January 1, 1986, 15 Pa.B. 50; amended December 26, 1986, effective January 1, 1987, 16 Pa.B. 5004; amended December 25, 1987, effective January 1, 1988, 17 Pa.B. 5359; amended December 23, 1988, effective January 1, 1989, 18 Pa. B. 5675; amended December 22, 1989, effective January 1, 1990, 19 Pa.B. 5467. Immediately preceding text appears at serial page (134103) to (134108).
Cross References The provisions of this § 65.112 adopted December 3, 1971, effective December 4, 1971, 1 Pa.B. 2231; amended December 20, 1974, effective 30 days subsequent to final approval of the act of December 5, 1974, 4 Pa.B. 2568. Immediately preceding text appears at serial pages (13491) to (13492).
§ 65.113. Computation of weekly wage.
(a) It is an objective of the Pennsylvania Unemployment Compensation Program that an unemployed, eligible claimant shall be compensated for at least 50% of his weekly wage loss, subject to the maximum weekly benefit rate fixed by law.
(b) Prior to 1955, computation of the weekly benefit rate of the claimant was based exclusively upon his weekly earnings during that calendar quarter of his base year in which he has the greatest amount of wages in covered employment.
(c) When a claimant has experienced irregular or short term employment in his base year, the high quarter formula of subsection (b) has occasionally failed to compensate the claimant at the rate of 50% of his weekly wage. Section 404(a) of the law (43 P. S. § 804(a)) remedies this condition effective with benefit years commencing on or after May 1, 1955, to provide an alternate formula for computing a claimants compensation rate, that is 50% of his full-time weekly wage, whichever is greater.
Source The provisions of this § 65.113 adopted July 1, 1969.
Notes of Decisions Weekly Wage
Claimants employed as intermittent intake interviewers by the Office of Employment Security were entitled to receive benefits at 50% of their weekly wage, since, when working, they never worked less hours per week than a full-time work week. Brennan v. Unemployment Compensation Board of Review, 484 A.2d 430 (Pa. Cmwlth. 1984).
Cross References Invalid
This section was held invalid because it excludes from the benefits of the optional calculation method allowed by 43 P. S. § 804(a)(1) a category of employes which was intended to be included, and because it is inconsistent with the broad humanitarian purpose and the language of the Unemployment Compensation Law. Brennan v. Unemployment Compensation Board of Review, 484 A.2d 430 (Pa. Cmwlth. 1984).
Weekly Wage
Working 30 out of a possible 35-hour work week does not qualify an applicant as a full-time weekly wage earner and benefits must be computed by the table located at 43 P. S. § 804(e)(1) as required by 43 P. S. § 804(a)(1). Figliomeni v. Unemployment Compensation Board of Review, 382 A.2d 1311 (Pa. Cmwlth. 1978).
§ 65.115. Ascertainment of full-time weekly wage.
The full-time weekly wage of an employe shall be that wage which an employe would receive if he were employed for a full-time week of not less than 5 full work days, and shall be ascertained as follows:
(1) In all cases, the wages paid by the employer from whom the claimant earned the greatest amount of wages in his base year, as shown on the Notice of Financial Determination (Form UC-44F), shall be used as the basis for ascertaining the full-time weekly wage. If the claimant was paid at more than one wage rate based upon a unit of time by the employer, the wage rate at which he earned the greatest amount of wages in his base year shall be used.
(2) In all cases, the full-time weekly wage shall be computed to the nearest dollar.
(3) If the wages are fixed by the week, the amount so fixed shall be the full-time weekly wage.
(4) If the wages are fixed by the month, the full-time weekly wage shall be the monthly wage so fixed, multiplied by 12 and divided by 52.
(5) If the wages are fixed by the year, the full-time weekly wage shall be the yearly wage so fixed, divided by 52.
(6) If the wages are fixed by the day, the full-time weekly wage shall be the daily wage rate multiplied by not less than five.
(7) If the wages are fixed by the hour, the full-time weekly wage shall be the hourly wage rate multiplied by the regularly scheduled number of hours in a full-time work day, and the result multiplied by not less than five.
(8) If the wages are fixed on a piece rate or tonnage basis, the full-time weekly wage shall be determined as follows:
(9) Wages earned in the calendar quarter in which the claimants earnings were the greatest in his base year shall be divided by the actual number of hours worked for the wages to establish the average hourly rate. The average hourly rate thus obtained shall be multiplied by the regularly scheduled number of hours in a full-time work day and the result multiplied by not less than five.
(10) If the wages are fixed on a combination of an hourly wage rate plus a piece work or tonnage rate, the full-time weekly wage shall be determined by the piece rate method, as explained in this section.
Source The provisions of this § 65.117 adopted July 1, 1969.
WEEKLY NET EARNINGS IN SIDELINE SELF-EMPLOYMENT
§ 65.121. Computation of weekly net earnings.
(a) Since an accurate determination of weekly net earnings for a particular week or month will usually be impossible because of the time lapse between the performance of services and the receipt of resulting income. Weekly net earnings for a current calendar year shall be based on net earnings in a previous calendar year or on anticipated earnings in the current calendar year, if operations were not conducted in a previous calendar year, in accordance with the following:
(1) For a claimant engaged in farming, gross income from sales and services shall be reduced by subtraction of expenses for labor, feed, seeds and plants, fertilizer and lime.
(2) For a claimant engaged in a business other than farming, gross income from sales and services shall be reduced by subtraction of the cost, if any, of goods sold. Cost of goods sold shall include the total cost of merchandise, cost of labor and cost of material and supplies.
(3) The remainder shall be divided by the number of weeks during which the farm or business operated or will operate during a year. The quotient shall represent the weekly net earnings to be used for the purpose of computing benefits payable.
(b) Weekly net earnings computed in accordance with subsection (a) applies throughout the benefit year for as long as the business operates in the benefit year.
Notes of Decisions Net Earnings
The provisions of 34 Pa. Code § 65.121 provide only for the deduction of labor and material costs from gross income in computing the net earnings of a single sideline business; nothing suggests that losses from failing sideline ventures may be deducted from profits of successful sideline businesses in computing weekly income from sideline activities. Frederick v. Unemployment Compensation Board of Review, 423 A.2d 801 (Pa. Cmwlth. 1980).
Source The provisions of this § 65.121 adopted July 1, 1969.
§ 65.122. Seasonal businesses.
When seasonal businesses are involved, weekly net earnings computed in accordance with § 65.113 (relating to computation of weekly wage) apply to any weeks in the benefit year during which the business normally operates.
Source The provisions of this § 65.122 adopted July 1, 1969.
§ 65.123. Application of computed earnings.
Application of computed weekly net earnings apply whether or not a benefit year overlaps a calendar year.
Source The provisions of this § 65.123 adopted July 1, 1969.
Subchapter G. INTERSTATE CLAIMS
COMPENSATION TO INTERSTATE CLAIMANTS Sec.
65.131. Registration for work.
65.132. Benefit rights of interstate claimants.
65.133. Unavailable benefit credits.
65.134. Claims for benefits.
65.135. Filing of claims.
65.136. Determination of claims.
65.137. Appellate procedure.
65.138. Claims taken in Canada.
65.141. [Reserved].
65.142. [Reserved].
COMPENSATION TO INTERSTATE CLAIMANTS
§ 65.131. Registration for work.
(a) Each interstate claimant shall be registered for work through a public employment office in the agent state, when and as required by the law, regulations and procedures of the agent state. The registration shall be accepted as meeting the registration requirements of the liable state.
(b) Each agent state shall report to the liable state in question whether each interstate claimant meets the registration requirements of the agent state.
Source The provisions of this § 65.137 adopted July 1, 1969.
§ 65.138. Claims taken in Canada.
This subchapter applies to claims taken in and for Canada.
Source The provisions of this § 65.138 adopted July 1, 1969.
§ 65.141. [Reserved].
Source The provisions of this § 65.141 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (14339).
§ 65.142. [Reserved].
Source The provisions of this § 65.142 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (14339).
Subchapter H. ALLOWANCES FOR DEPENDENTS
Sec.
65.151. Definitions.
65.152. Purpose.
65.153. Amount to remain fixed.
65.154. Payments.
65.155. Claimants without a dependent spouse.
65.156. Reserve accounts of employers.
65.157. Extended benefits.§ 65.151. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Dependent childAn individuals unmarried child, stepchild, legally adopted child or illegitimate child, who at the beginning of the individuals current benefit year, was wholly or chiefly supported by the individual and was 17 years of age or younger, or if 18 years of age or older, because of physical or mental infirmity was unable to engage in a gainful occupation.
Dependent spouseAn individuals lawful husband or wife who is living in the same household and who is being wholly or chiefly supported by the individual at the beginning of such individuals benefit year.
Wholly or chiefly supportedThe dependent is receiving more than 1/2 of the cost of his support from the individual.
Source The provisions of this § 65.151 adopted October 22, 1971, effective October 23, 1971, 1 Pa.B. 2017; amended December 7, 1973, effective December 8, 1973, 3 Pa.B. 2790; amended November 5, 1976, effective November 6, 1976, 6 Pa.B. 2817. Immediately preceding text appears at serial page (17314).
§ 65.152. Purpose.
This subchapter is intended to effectuate those provisions of the law which deal with the payment of an allowance for dependents to eligible claimants for unemployment compensation.
Source The provisions of this § 65.152 adopted October 22, 1971, effective October 23, 1971, 1 Pa.B. 2017.
§ 65.153. Amount to remain fixed.
The amount of allowance for dependents as computed at the time of the application for benefits shall remain fixed for the duration of the claimants benefit year, except in instances of error in the original determination.
Source The provisions of this § 65.153 adopted October 22, 1971, effective October 23, 1971, 1 Pa.B. 2017.
§ 65.154. Payments.
Dependents allowance shall be paid for valid claim weeks whether full or partial weekly benefit amount is payable. The number of payments shall be limited to 30 under section 404(e)(3) of the law (43 P. S. § 804(e)(3)), and the number of payments shall be limited to nine under section 405A of the Law (43 P. S. § 815).
Source The provisions of this § 65.154 adopted October 22, 1971, effective October 23, 1971, 1 Pa.B. 2017.
§ 65.155. Claimants without a dependent spouse.
In the event a claimant does not have a dependent spouse, a $5 allowance shall be payable for the first dependent child, plus $3 for one other dependent child, if any.
Source The provisions of this § 65.156 adopted October 22, 1971, effective October 23, 1971, 1 Pa.B. 2017; amended March 29, 1974, effective March 30, 1974, 4 Pa.B. 581. Immediately preceding text appears at serial pages (15241) to (15242).
§ 65.157. Extended benefits.
The terms and conditions of the law which apply to claims for and payment of regular compensation apply to claims for and payment of extended compensation under Article IV-A of the law (43 P. S. § § 811818), except that a claimant otherwise eligible for extended benefits under Article IV-A of the law is not subject to the terms and conditions of the following provisions:
(1) To have worked and earned requalifying wages between benefit years as required by section 4(w)(2) of the law (43 P. S. § 753(w)(2)).
(2) To meet the monetary requirements specified by section 401(a) of the law (43 P. S. § 801(a)).
Source The provisions of this § 65.157 adopted October 22, 1971, effective October 23, 1971, 1 Pa.B. 2017; amended March 2, 1973, effective March 3, 1973, 3 Pa.B. 484; amended September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (15242).
Subchapter I. BENEFITS BASED ON SERVICE FOR
EDUCATIONAL INSTITUTIONS
Sec.
65.161. Reasonable assurance.
Authority The provisions of this Subchapter I issued under section 201(a) of the Unemployment Compensation Law (43 P. S. § 761(a)), unless otherwise noted.
Source The provisions of this Subchapter I adopted January 3, 2003, effective immediately and apply to applications for benefits effective on or after the date of publication, 33 Pa.B. 25, unless otherwise noted.
§ 65.161. Reasonable assurance.
(a) For purposes of section 402.1 of the law (43 P. S. § 802.1), a contract or reasonable assurance that an individual will perform services in the second academic period exists only if both of the following conditions are met:
(1) The educational institution or educational service agency provides a bona fide offer of employment for the second academic period to the individual.
(2) The economic terms and conditions of the employment offered to the individual for the second academic period are not substantially less than the terms and conditions of the individuals employment in the first academic period.
(b) For the purposes of subsection (a), an offer of employment is not bona fide if both of the following conditions exist:
(1) The educational institution or educational service agency does not control the circumstances under which the individual would be employed.
(2) The educational institution or educational service agency cannot provide evidence that the individual or similarly situated individuals normally perform services in the second academic period.
(c) For the purposes of subsection (a), economic terms and conditions of employment include wages, benefits and hours of work.
Notes of Decisions Substitute Teacher Not Eligible for Unemployment Benefits
School District sought review of order of Unemployment Compensation Board of Review that found substitute teacher eligible for unemployment compensation benefits; even though substitute teacher enjoyed several long-term assignments, districts offer of per diem employment was the same as previous school years offer and therefore, terms and conditions were not substantially less precluding eligibility for unemployment benefits. Carlynton School District v. Unemployment Compensation Board, 929 A.2d 680, 684 (Pa. Cmwlth. 2007)
Teacher Unemployed During Break Not Entitled to Unemployment Benefits
A teacher who is unemployed during a break between academic terms and has a reasonable assurance of employment in the next term is not entitled to unemployment compensation when the employer provided a bona fide offer of employment for the second term, with economic terms and conditions not substantially less than those provided in the first term. Glassmire v. Unemployment Compensation Board of Review, 856 A.2d 269, 273 (Pa. Cmwlth. 2004).
APPENDIX A
Part A Highest Part B Part C Quar