12- 172 C.M.R. ch. 26, § 2 - DEFINITIONS

For purposes of this subsection and of subsection 5 of section 1051 of the Employment Security Law, the following terms shall have the following meanings:

A. "Amounts erroneously paid" means benefit payments made to a claimant to which, as a result of a later determination, reconsidered determination, redetermination, or decision by a deputy, the Division of Administrative Hearings, the commission, or a court, the claimant was not eligible or qualified for benefits.

B. "Without fault on his part" means that the claimant, in applying for benefits, made no misrepresentations or omissions as to any information used to determine his or her eligibility or qualification for benefits. Acceptance of a payment which the claimant knew, or could have been expected to know, was incorrect will constitute fault on the claimant's part. In determining whether a claimant is at fault, the commission shall consider all pertinent circumstances, including the claimant's age and intelligence as well as any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language).

C. "Against equity and good conscience" and "defeat the purpose of benefits otherwise authorized" shall be determined in the discretion of the commission and shall require consideration of the totality of the circumstances surrounding the erroneously paid amounts as well as the claimant's personal circumstances. Factors to be considered shall include, but are not limited to the following:

1. The claimant's general health and earning capacity;

2. Whether other individuals depend or rely upon the claimant for support and sustenance;

3. The claimant's employment status at the time of the request;

4. The claimant's current family income and reasonable expenses;

5. The claimant's assets, liquid and otherwise. Certain assets, such as a home, a car, basic household furnishings and other basic necessities will be excluded from consideration ;

6. The existing long and short-term debts of the claimant and his or her family;

7. Any extraordinary medical or other expenses of the claimant and his or her family;

8. Whether the claimant has received unemployment benefits as a windfall, for example, where a back-pay award is later received;

9. The notice, if any, and the clarity of such notice provided by the bureau to the claimant of the possibility of a later determination of erroneously paid amounts. This factor is intended to ensure that adequate notice be given, not to penalize a claimant for using unemployment benefits when they are received. For example, the Commission would consider the fact that adequate notice was not provided in determining to grant a waiver but would not deny a waiver solely because the claimant relied on the receipt of benefits with notice that to do so might result in an overpayment that must be repaid in the future.

Notes

12- 172 C.M.R. ch. 26, § 2