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DLLR's Unemployment Insurance Appeals

 

Monetary Eligibility - Sections 8-802, 8-803 - Maryland Unemployment Decisions Digest

 

Introduction

The provisions dealing with monetary eligibility were previously located in Article 95A, Sections 4(d) and 3(b) of the Annotated Code of Maryland. After the law was revised in 1991, these provisions were recodified as Sections 8-802 and 8-803 of the Labor and Employment Article of the Annotated Code.

In order to collect unemployment insurance benefits, a claimant must be monetarily eligible. To determine a claimant's monetary eligibility, the first issue to be addressed is whether the claimant worked in covered employment during his base period. A base period is the first four of the last five completed calendar quarters immediately preceding the start of the claimant's benefit year. A benefit year is a one-year period that starts on the first day of the first week for which a claimant initially files for benefits. Covered employment is defined as work that an individual performs for an employing unit that is the basis for benefits.

Section 8-802 provides that a claimant must have been paid wages for covered employment during at least two calendar quarters of his base period. To qualify for benefits, the claimant must have sufficient earnings during the applicable base period.

In determining whether a claimant has sufficient wages credited during his statutory base period to qualify him for unemployment compensation benefits, the clear, unambiguous legislative intent, as buttressed by the legislative history of the unemployment insurance law, is that eligibility is controlled by wages actually paid, and not by the wages earned, within the statutory base period. Maryland Department of Employment Security v. Werner, 231 Md. 474, 190 A.2d 786 (1963).

If a claimant has sufficient earnings, he is eligible for a weekly benefit amount. Section 8-803 provides a schedule for determining this. The schedule of benefits that is in effect on the first day of a claimant's benefit year applies to the claimant throughout that benefit year.

COMAR 09.32.02.10 provides for payment of partial benefits to a claimant who performs services for wages but earns less in gross wages than his weekly benefit amount. Section 8-803(d) provides a method for calculating the amount of partial benefits a claimant is paid.

If the agency makes a clerical error in determining the claimant's wages for a particular calendar quarter in the base period, giving the claimant a higher weekly benefit amount, the agency may issue a redetermination lowering the weekly benefit amount and creating an overpayment. See, Section 8-806(f)(1), which specifically gives the agency the authority to redetermine cases.

 

Monetary Eligibility - Sections 8-802, 8-803

I. In General

 
 

A. Wages Used in Determining Monetary Eligibility
Where it has been determined that a claimant's services are in covered employment within the meaning of Section 8-201, any wages he earned from those services in his benefit year should be counted in a determination of his weekly benefit amount under Section 8-803. Penley v. Mt. St. Joseph High School, 899-BH-83.

Similarly, where it has been determined that a claimant's services are not in covered employment within the meaning of Section 8-201, any wages he earned from those services in his benefit year should not be counted in a determination of his weekly benefit amount under Section 8-803. Feldman v. Yeshiva High School of Greater Washington, Inc., 878-BR-84

Gasoline expenses paid to the claimant delivery driver do not constitute wages within the meaning of Section 8-101(z), and should be deducted from his covered wages in the calculation of his eligibility for unemployment insurance benefits under Section 8-803. Nemerov v. Ken and Ray's Service Center, 1501-BH-81.

Payments made to the claimant were paid "under a plan or system" established by the employer "on account of ... sickness or accident disability..." within the meaning of Section 8-101(z), and those payments are not covered wages within the meaning of the law. Therefore, the claimant was not paid the qualifying amount of wages under Section 8-802 and is not eligible for benefits under Section 8-803. Sprow v. Prince George's County Government, 463-BR-82.

A fellowship awarded to the claimant during his base period, which was intended to defray his living expenses during the course of his studies, does not constitute "wages" within the meaning of Section 8-101(z). Since the claimant was not paid wages for insured work during his base period as required under Section 8-802, the claimant is ineligible for benefits. Taub v. Institute for Behavior Resources, 400-BH-85.

A post-doctorate fellow was held to be an employee who performed services in covered employment within the meaning of Section 8-802. The Board cited the presumption of Maryland Unemployment law in favor of coverage and found that exemptions set forth in, Labor & Employment, Article 8, Section 220 did not apply. The Board held, "The fact that the claimant was paid through a grant, rather than through more permanent funding and the fact that he was contractual, rather than permanent, does not change his status from employee to student." Francis P. Saitta v. Johns Hopkins University, 3058-BH-97.

Effective January 1, 1987, income from tips which is reported to the Internal Revenue Service is considered wages and may qualify a claimant for benefits monetarily. Silver v. David and Jonathan, Inc., 865-BR-86. See, COMAR 09.32.01.14A(1)(d).

B. Determination of Benefit Year
Under Section 8-803(c), the schedule of benefits which is in effect on the first day of an individual's benefit year shall be the schedule of benefits which shall apply to that individual throughout the benefit year. The term "benefit year" is defined in Section 8-101(d) as the one-year period beginning with the first day of the first week with respect to which the individual first filed a claim for benefits. Therefore, where a claimant deliberately chose her benefit year by filing her claim (after being advised that her weekly benefit amount would be higher if she waited an additional week), the claimant is subject to the provisions of Sections 8-101(d) and 8-803, and her weekly benefit amount is fixed for the duration of her benefit year. Berkovich, 1115-BH-81.

 

II. Claims for Benefits
Although there may exist some latitude in the law for the withdrawing of a claim, a claimant cannot withdraw a claim after she has waited 19 days after deliberately choosing her benefit year, and after she has received two checks in the weekly benefit amount calculated according to the benefit year she chose. At some point, the agency has the right and the obligation to consider a claim as finally filed and to apply the law as it relates to that filed claim. NOTE: The Board specifically reserved the question as to whether or not a claimant can withdraw a claim. Berkovich, 1115-BH-81.

Where a claimant reports to file a claim during the last week in a calendar quarter, the local office personnel should advise the claimant that the base period will change at the beginning of the next week, and the claimant should be given the option of filing a claim at that time or reporting back the following week. U.I. Division Instruction 15-79 (11-20-79). Where the claimant is not advised of this option and files a claim, the claimant may later withdraw that claim and refile, particularly where the change in quarters impacts upon the claimant's weekly benefit amount. Taylor, 493-BH-85.

 

III. Eligibility for Partial Benefits

 

A. Requirement: "Unemployment" or "Partial Unemployment"
The claimant was employed as a full-time real estate agent, working more than 50 hours per week. Section 8-803 permits weekly benefits for one who is partially unemployed. However, a claimant is not entitled to unemployment benefits where he is working on a full-time basis, and is therefore not unemployed, even though he is earning less than his weekly benefit amount. The claimant is not entitled to partial benefits under Section 8-803. Williams v. Trading Post, Inc., 896-SE-89.

B. Determining Eligibility
In determining eligibility for partial benefits under Section 8-803(d), it is incorrect to base the calculation on the amount of wages received by a claimant during the week. Rather, the correct calculation is done by determining which wages are due to the claimant or have been paid to the claimant for services performed during the week in question. Montague v. Baltimore City Schools, 1495-BR-82.

Where a claimant performed services in his own business for which he was remunerated, the remuneration should have been reported by the claimant and deducted from his benefit amount under Sections 8-801 and 8-803(d). Joy v. Atlantic Vinyl Repair Service, 392-BH-84.

 

IV. Schedule of Benefits
The claimant did not have sufficient wages in her base period because only wages that were actually paid during a quarter must be credited to that quarter for the purpose of determining monetary eligibility. The claimant's $60,000 in wages may be counted toward her monetary eligibility, but it all must be credited to the quarter when paid. Wages earned in only one quarter cannot qualify a claimant monetarily for unemployment insurance benefits under Section 8-803. The claimant did not have sufficient payment of wages within the base period in order to qualify for eligibility for unemployment insurance benefits within the meaning of Section 8-802. Zeman v. Mane, Inc., 127-BR-88.

The claimant originally filed for unemployment insurance benefits on July 7, 1991. At this time, she did not have sufficient wages in her base period (the last three quarters of 1990 and the first quarter of 1991) to qualify monetarily for a weekly benefit amount under Section 8-803. According to agency records, she was paid additional wages of $3112.27 in the second quarter of 1991. Under Section 8-803, the claimant qualified for benefits as of October 1, 1991. Albright v. Francis Scott Key Medical Center, 1537-BR-91.

 

V. Qualifying Wages Under Section 8-802
A disqualification under Section 8-909(c) is a disqualification only from benefits which are based on educational earnings. Benefits based on other noneducational earnings may still be payable. Silwick v. Baltimore County Schools, 127-BR-83.