430 CMR, § 4.04 - Disqualification for Benefits

(1) A claimant who does not report as directed to continue his or her claim at the assigned time may be disqualified for the week in which he failed to report.

(2) A claimant who has been authorized to continue for benefits by mail shall be disqualified from receiving waiting period or compensable week credit for the week claimed if he or she fails to return the form provided by the Division of Unemployment Assistance (Division) for this purpose within 21 days after the Saturday of the last week of the bi-weekly reporting period or no later than the third Friday following the week in which said form was reissued unless he or she can prove to the satisfaction of the Commissioner or his or her authorized representative that he or she had good cause for not returning such form within the prescribed time.

(3) A claimant who fails, without good cause, to answer a call-in card, letter or other message requesting him to contact the public employment office relative to a job opening, shall be deemed to have failed to comply with reporting requirements and shall be disqualified for the week in which he failed to answer the call-in.

(4) A claimant who has been suspended from his work by his employing unit as discipline for breaking established rules and regulations of his employing unit shall be disqualified from serving a waiting period or receiving benefits for the duration of the period for which he has been suspended, but in no case more than ten weeks, provided it is established to the satisfaction of the Commissioner that such rules or regulations are published or established by custom and are generally known to all employees of the employing unit. that such suspension was for a fixed period of time as provided in such rules or regulations. and that a claimant has the right to return to his employment with the employing unit if work is available at the end of the period of suspension.

(5) Harassment.

(a) Definitions. The following words and phrases shall have the following meanings:

1. Racial harassment-conduct with racial content which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

2. Sexual harassment-sexual advances, requests for sexual favors, and other physical conduct of a sexual nature when

a. submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions;

b. such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance; or

c. such advances, requests or conduct have the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment.

3. Other unreasonable harassment-includes, but is not limited to, incidents of harassment related to age, religious creed, national origin, or handicap of any individual.

(b) Sexual, racial or other unreasonable harassment may result from conduct by the employer or the employer's agents, supervisory employees, co-employees or non-employees. Such conduct may occur on or off the worksite and on or off company time.

(c)

1. A claimant shall not be disqualified from receiving benefits under M.G.L. c. 151A, § 25(e)(1) for leaving work voluntarily without good cause attributable to the employing unit or its agent if he or she establishes to the satisfaction of the Commissioner that his or her reason for leaving work and separation from employment is due to:

a. sexual, racial or other unreasonable harassment by an employer, its agents or supervisor employees and the employer, its agents or supervisory employees knew or should have known of such harassment;

b. In the case of a non-employee, the Divison will consider the extent of the employer's control over the non-employee's conduct.

2. For purposes of determining a claimant's eligibility for benefits under 430 CMR 4.04(7)(c)1.a., an employer is deemed to have knowledge of sexual, racial or other unreasonable harassment committed by its agents and supervisory employees in connection with the employment relationship regardless of whether the employer had actual knowledge of these acts.

3. In all cases involving allegations of harassment (other than allegations of sexual, racial or other unreasonable harassment as defined at 430 CMR 4.04(7)(a)) by an employer, its agents or supervisory employees, a claimant shall not be disqualified from receiving benefits under M.G.L. c. 151A, § 25(e)(1) if he or she establishes to the satisfaction of the Commissioner that,

a. the employer, its agents or supervisory employees knew or should have known of the harassment and the employer failed to take immediate and appropriate corrective action; and

b. he or she took reasonable steps to preserve his or her employment, which may include notifying the employer of the harassment, unless the circumstances indicate that such efforts would be futile or result in retaliation.

(d) In determining whether a claimant's reason for leaving work is due to harassment, the Division will look at the totality of the factual circumstances resulting in the claimant's separation from employment, such as the nature of the alleged harassment and the context in which the alleged harassing incidents occurred.

(6) Lost Time. The cash value of time lost for reasons other than failure to furnish full-time work shall be determined by multiplying the average hourly earnings for the week by the number of hours lost. If it is not possible to ascertain the average hourly earnings for the week of such "lost time", such lost earnings shall be computed at four percent of the benefit rate for each hour lost.

(7) Reemployment Services.

(a) Definitions: The following words and phrases shall have the following meanings: Profiling System means, for the purposes of 430 CMR 4.01(10) and 430 CMR 4.04(9), a system established by the commissioner pursuant to Public Law 103-152 to identify claimants who are: permanently laid off, likely to exhaust their regular unemployment compensation benefits, and in need of reemployment services in order to make a successful transition to new employment.

Reemployment Services means job search assistance and job placement services, such as assessment counseling, testing, provision of labor market information, job search workshops, job clubs, referrals to potential employers and other similar services.

Similar Services means reemployment services that individuals are attending or have attended on their own initiative. Examples of "similar services" include, but are not limited to, services offered by a company prior to a permanent layoff.

(b) An individual who has been referred to reemployment services pursuant to a profiling system established by the commissioner shall be eligible to receive benefits with respect to any week only if the individual participates in such reemployment services or similar services (such as outplacement services) to the satisfaction of the commissioner, unless the commissioner determines that:

1. The individual has completed such services; or

2. There is justifiable cause for the individual's failure to participate in such services for such week.

(c) For the purpose of 430 CMR 4.04(9)(b), the term "justifiable cause" includes any reason which constitutes "good cause" under 430 CMR 4.01(10)(b). The commissioner shall apply the "reasonable person" test in determining if justifiable cause exists for failure to participate.

(d) An individual who fails to participate in reemployment services or similar services (either for justifiable cause or otherwise) shall participate as directed by the commissioner in any rescheduled services.

(e) An individual who has been determined to have justifiable cause for failure to participate shall be eligible for benefits, provided, that the individual is otherwise eligible for benefits under the other provisions of M.G.L. c. 151A.

(f) Any individual who is approved by the Division to attend training under M.G.L. c. 151A, § 30(c) shall not be required to participate in reemployment services or similar services.

(g) Any individual who has been determined to have failed to participate in reemployment services or similar services may appeal such determination under the provision of M.G.L. c. 151A, §§ 39 through 42.

(8) Temporary Help Firm Former Employees.

(a) Definitions. The following words and phrases shall have the following meanings: Temporary Help Firm means a firm that primarily hires its own employees and assigns them to clients to support or supplement the client's workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects.

Temporary Employee means an employee assigned to work for the clients of a temporary help firm.

(b) Unless the claimant satisfies the provisions of 430 CMR 4.04(8)(c), the commissioner shall determine that the claimant has voluntary quit employment if:

1. the claimant was employed by a temporary help firm; and

2. the temporary help firm advised the claimant in writing as provided in 430 CMR 4.04(8)(e) of the need to contact the temporary help firm for reassignment upon completion of an assignment; and

3. the temporary help firm submits information, supported by contemporaneous documentation prepared in the ordinary course of business, that the claimant did not request another work assignment upon completion of the most recent assignment.

(c) The claimant may avoid the commissioner's determination in 430 CMR 4.04(8)(b) above if the claimant shows that he/she:

1. did request another assignment; or

2. did not receive written notice from the temporary help firm of the obligation to request another assignment; or

3. had good cause, as determined by the commissioner, for failing to request another assignment.

(d) The request for a new assignment must be made by the claimant upon completion of the current assignment and before filing an initial (new or additional) claim for benefits.

(e) Any notice given by the temporary help firm to its temporary employees of the need to request a new assignment upon completion of their current assignment must be in writing and inform the employees of the method and manner for requesting a new assignment, such method and manner to be consistent with the normal method and manner of communication between the temporary employee and the temporary employment firm for which he/she works, and that a failure to request a new assignment may affect their eligibility for unemployment compensation.

Notes

430 CMR, § 4.04

Amended by Mass Register Issue 1356, eff. 1/12/2018.