Able and Available AA 155
Restrictions caused by domestic circumstances appear in a variety of situations and in varying degrees. However, the various types of situations generally fall into one of the following two groups.
1. The claimant must devote full time to the domestic duties:
- If the claimant cannot, or will not make other arrangements, then the claimant would not be available, no matter how compelling the domestic circumstances.
- If the claimant is able and willing to make other arrangements if work is offered, then the claimant’s ability and demonstrated attempts to make other arrangements must be closely reviewed.
2. The claimant devotes part of his or her time to domestic duties.
If the claimant is only available for part-time work and he/she meets the criteria under UI Code Section 1253.8, the claimant would be found eligible under UI Code Section 1253C, regardless of the reason for the restriction. Refer to AA5 for a full discussion of the part-time work criteria under UI Code Section 1253.8.
If the claimant does not meet the provisions under 1253.8, then the claimant’s eligibility must be determined under section 1253(c) of the code. When adjudicating under section 1253(c), it must be determined if the domestic duties are of a compelling nature. That is, that they are of such a nature as would cause a conscientious person, genuinely desirous of securing employment, to perform them.
- If the domestic duties are not of a compelling nature, then if the restriction materially reduces the claimant’s labor market, the claimant would be ineligible under Section 1253 (c).
- If the domestic duties are of a compelling nature, it then must be determined if a substantial field of employment remains available to the claimant. A substantial field of employment will exist as long as the field of potential employers is not narrowed to such a degree that there is no reasonable possibility of securing or accepting suitable employment.
Thus, if the domestic duties are compelling, and a field of potential employers remains, the claimant may be held available, by demonstrating a diligent effort to seek work within that restriction and placing no further restrictions on availability.
Another important consideration in determining the availability of a claimant who must devote time to domestic duties, is whether this was the basis for leaving his or her most recent employment. If the claimant quit the most recent job because of the duties in question, consideration must be given to the amount of time elapsed since quitting, and how circumstances have changed to now permit the claimant to be available for work.
All the circumstances of a claimant’s domestic restrictions must be carefully covered before a determination can be made as to which of the above categories applies. Of primary importance, is determining whether or not the domestic duty is actually compelling. Once this determination has been made, it will be possible to give proper weight to the other factors.
If the claimant has young children and states that he or she must devote time to the care of the children, it becomes necessary to establish if childcare responsibilities limit the claimant’s availability for work.
Normally, a claimant will not continue child care arrangements during periods of unemployment. Lack of regular child care during these periods of unemployment is important to the claimant’s eligibility only as it affects his or her efforts to seek work. As long as the claimant is able to demonstrate that childcare can be arranged within a reasonable period of time, should employment be secured, the present lack of childcare should not affect availability. The claimant’s ability to secure childcare can be demonstrated in several ways. The claimant may have arrangements with relatives, neighbors, or friends to care for the child(ren). Or, if the claimant is planning on placing the child in a nursery school or day care facility, he or she should be able to demonstrate some knowledge of the location, hours, and costs of such facilities. The claimant’s childcare arrangements must be verified to establish his or her availability for work.
A claimant who must devote full time to the care of his or her children, and who has made no arrangements for their care should work be offered, would be ineligible under Section 1253(c). However, child care problems are seldom this clear cut.
Sometimes, the claimant has restrictions which limit his or her availability to less than what is considered normal working conditions for the claimant’s occupation, or which may prevent the claimant from accepting and beginning work immediately. If the claimant does not meet the criteria to restrict to part-time work under Section 1253.8, then the claimant’s eligibility must be determined under section 1253(c) of the code. When adjudicating under section 1253(c), it must be determined if the child care restrictions are of a compelling nature, and if so, whether a substantial field of employment remains available to the claimant.
In Sanchez v. CUIAB, the claimant had experience as a restaurant waitress or manager and factory worker. She was not available for work on Saturdays and Sundays because she was unable to obtain a baby-sitter for her four-year old son on those days. The Department and the Board held the claimant was not available for work and was ineligible for benefits under section 1253(c). In reversing the decision, the California Supreme Court specifically rejected concepts previously expressed in Board decisions and Attorney General Opinions and held instead:
"Availability for work" within the meaning of Section 1253, subdivision (c), requires no more than (1) that an individual claimant be willing to accept suitable work which he has no good cause for refusing and (2) that the claimant thereby make himself available to a substantial field of employment."
Regarding the responsibility of caring for one’s children, the Board went on to say:
"Because of the crucial importance of parental responsibility and supervision, it would be anomalous if the Legislature intended that the obligation of the prospective claimant of unemployment benefits to accept work be irreconcilable with the duties of parenthood . . . .
The responsibilities our laws place on parents, and the importance to their children and society that those duties be discharged, mandate that the "good cause" concept not be defined so narrowly as to compel unemployed parents who remain available to a significant labor market to fulfill their parental responsibilities only upon pain of losing their unemployment benefits.
We conclude that a claimant who is parent or guardian of a minor has "good cause" for refusing employment which conflicts with parental activities reasonably necessary for the care or education of the minor if there exist no reasonable alternative means of discharging those responsibilities."
Thus, compelling, as it relates to the care of children, means the claimant has checked all alternative means of securing child care and has found none. In these situations, eligibility would be based on whether there remains a substantial field of employment.
An obligation relating to parental responsibilities in the care of their children does not have to be an ongoing restriction. In P-B-459, the claimant was required to travel to another area to secure a modification to the child custody agreement. She was out of the labor market for an entire workday tending to these affairs. In its decision, the Board stated:
"Here we find the claimant was available for suitable work on all normal workdays during the week ending March 21 . . . with the exception of Monday, March 16. She was not available that day because she was out of her labor market to perform a parental activity necessary for the care and education of her minor child and no reasonable alternative means of discharging that responsibility existed. The claimant could not seek modification of the order on a weekend or holiday; she could only accomplish her mission on a weekday. Thus, she could not avoid the trip, and therefore she had good cause for her nonavailability . . . ."
If the days or hours of the claimant’s availability are limited due to compelling child care responsibilities, it must then be determined if a substantial field of employment remains open to the claimant. If the remaining field of employment is substantial, as defined in AA 5, the claimant would be eligible under the provisions of Section 1253(c).
However, if the claimant imposes additional restrictions on his or her availability, such as to a salary higher than the prevailing wage, or to working out of the home (telecommuting) rather than arrange child care, the restriction would be for noncompelling reasons. And, if the claimant’s labor market was materially reduced by the restriction, the claimant would be ineligible.
A claimant who must devote full time to the care of another person, because that person is ill or an invalid, cannot be considered available for work.
Occasionally, a claimant is only available for employment certain hours of the day, or certain days of the week, because he or she is needed to care for someone who is ill or an invalid. If the claimant does not meet the criteria to restrict to part-time work under Section 1253.8, then the claimant’s eligibility must be determined under section 1253(c) of the code. When adjudicating under section 1253(c), it must be determined if this care is compelling, that is, the claimant is the only person who reasonably can be held responsible for the care, and if so, whether a substantial field of employment remains available to the claimant. If it is determined that a substantial field of employment remains open to the claimant within the restrictions, the claimant could be held available. However, if the labor market was less than minimal or did not exist, the claimant could not be held available, no matter how compelling the care being provided.
For example, the claimant, a clerk typist, is the only person available to provide care for her invalid 90 year old mother. A family friend, who works Monday through Friday from 8:00 a.m. to 5:00 p.m., has agreed to look in on the claimant’s mother in the evenings and assist her in getting ready for bed. The friend also agreed to provide the same assistance on Saturdays. The claimant is willing to work any hours on Saturday and after 6:00 p.m. on weekdays. There are employers in the area that hire part-time clerk typists, but none of those employers work evenings or weekends. Even though the claimant’s restrictions are for compelling reasons, there is no labor market available to her.
If the care the claimant provides is not required for the welfare of the other individual, or if the care can be sufficiently provided by someone else, the claimant’s restriction cannot be considered compelling. When the reason for the restriction is not compelling, the claimant would be ineligible under Section 1253(c) if his or her availability is materially reduced by the restriction.
Whenever an interviewer is making a determination under Section 1253(c) and the claimant states he or she is unavailable because he or she is caring for another, the interviewer must determine if the claimant has also filed for Paid Family Leave (PFL). If the claimant is not aware of the PFL program, advise the claimant that if he or she is determined ineligible for UI benefits, he or she may qualify for PFL benefits.
The PFL benefits, which became effective July 1, 2004, are payable to eligible workers who take time off work to bond with a new minor child or to care for a seriously ill child, spouse, parent or domestic partner. The PFL program is part of California’s State Disability Insurance (SDI) program.
The Unemployment Insurance Code Section 2601 states:
"The purpose of this part is to compensate in part for the wage loss sustained by any individual who is unable to work due to the employee’s own sickness or injury, the sickness or injury of a family member, or the birth, adoption, or foster care placement of a new child, and to reduce to a minimum the suffering caused by unemployment resulting therefrom. This part shall be construed liberally in aid of its declared purpose to mitigate the evils and burdens that fall on the unemployed worker and his or her family."
Per Unemployment Insurance Code Section 2628 and Section 3303.1(a), a claimant cannot receive PFL payments for the same period of time in which UI benefits are paid. A claimant’s eligibility for UI benefits supersedes his or her eligibility for PFL benefits. Therefore, whenever a claimant concurrently files claims for both PFL benefits and UI benefits the Department must make a decision for UI benefits. The decision of eligibility for UI benefits must be based on the reason for the restriction and whether or not the claimant has good cause to restrict his or her availability to care for others. The PFL office must be notified of all decisions of eligibility for UI benefits when a claimant has also filed for PFL benefits.
The Unemployment Insurance Code Section 2628 prohibits paying DI (including PFL) for a period for which the claimant has UI eligibility:
"An individual is not eligible for disability benefits with respect to any period for which the director finds that he has received or is entitled to receive unemployment compensation benefits under Part 1 of this division or under an unemployment compensation act of any other state or of the Federal Government."
In addition, Unemployment Insurance Code Section 3303.1(a) states:
"An individual is not eligible for family temporary disability insurance benefits with respect to any day that any of the following apply:
The individual has received, or is entitled to receive unemployment compensation benefits . . . "
Restrictions involving household duties, normally are of a noncompelling nature. While this type of restriction is not common, it is one that requires careful analysis. What may at first appear to be a restriction because of household duties, can often develop into another type of restriction, such as child care.
In the absence of "another type of restriction," most household duties, such as, preparing meals, spouses objection to working hours, wishing to be home when older children get out of school, wanting to work same hours or days as spouse, are matters of personal preference or convenience, and cannot be considered as compelling reasons for restrictions.