Able and Available AA 440
This section discusses the availability of claimants who place restrictions on acceptable work because of the conditions of work. If the restriction is imposed for a specific reason, refer to the section of this volume which covers the basis for the restriction, i.e., AA 90 - Conscientious Objection, AA 235 - Health and Safety, AA 360 - Personal Affairs, etc.
The term "working condition" is very general and can refer to anything from an employer’s dress code to equipment required to perform the work. Once the reason for the claimant’s restriction is determined to be due to the conditions of work, the interviewer must determine if the restriction is for compelling reasons and how the restriction affects the individual’s availability for work.
It is equally important to distinguish between a claimant’s preference and an actual restriction. Many claimants will express some type of preference when discussing their availability for work which should t be regarded as an actual restriction unless, (1) the claimant is advised that the limitation is considered by the Department to be a restriction and the claimant is made aware of the local labor market conditions, and (2) the claimant will not modify the restriction.
The eligibility of a claimant restricting availability due to a condition of work, is determined in the same manner as any other restriction on availability. The claimant must be ready, willing, and able to accept suitable employment, or have good cause for any restriction, and remain available to a substantial field of employment. (See AA 5 for a complete discussion.)
Title 22, Section 1253(c)-2 (c) (1) defines suitable work:
"Suitable work" means work in the claimant’s usual occupation or work for which the claimant is reasonably fitted. Whether the work is work for which the claimant is reasonably fitted depends upon such factors as the claimant’s age, health, prior training, and experience. . . ."
Calif. Unemp. Ins. Code, Section 1259, provides in part:
"Notwithstanding any other provisions of this division, no work or employment shall be deemed suitable and benefits shall not be denied to any otherwise eligible and qualified individual for refusing new work under any of the following conditions:
(b) If, the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality."
Although Section 1259 specifically pertains to questions of job refusal, it has been extended through precedent decisions and Department policy to questions of availability. A claimant need only be available for suitable work which he would have no good cause to refuse. It follows that a claimant need not be available for work which offers working conditions that are substantially less favorable than that prevailing in the community.
If the claimant’s restriction has no bearing on his or her availability because there is no conflict with the normal labor market conditions, there is no availability issue.
If the claimant establishes good cause for his or her restriction, the Department must then determine whether a substantial field of employment remains open to the individual in his or her labor market area.
If the claimant cannot establish a compelling reason for the restriction, eligibility would be based on whether his or her availability is materially reduced by the restriction.
In all occupations there are certain employer requirements that must be met by applicants. These requirements can include education, experience, marital status, gender, political affiliation, or passing certain preemployment tests. When considering a claimant’s availability, the reasonableness of a particular employer’s requirement is usually immaterial because the claimant’s eligibility is normally based on the individual’s availability to the entire labor market, not one employer.
The claimant may be restricted from working for certain employers because the employers impose requirements which the claimant cannot or will not meet. If the claimant will not meet the employer requirements through personal preference, refer to the section of the BDG that discusses the reason for the restriction.
Clearly, not all claimants will be able to meet certain employer requirements. If the claimant cannot meet the employer requirements the restriction would be considered a compelling restriction and the individual would be available for work provided he or she remains available to a substantial field of employment. For example, a male retail salesclerk would be considered available for work even though fifteen percent of the employers in his labor market are ladies clothing stores who hire only female salesclerks.
If all or nearly all of the employers in the claimant’s field of employment have the same requirement, (i.e., a high school diploma) and the claimant cannot meet the requirement, the claimant would be ineligible if he or she restricts to working in that occupation. Even with a compelling restriction, the claimant must remain available to a substantial field of employment. However, if the claimant expands availability to other areas or other occupations where the requirement is not imposed, the individual would meet the requirements of Section 1253(c).
Note: Where bonding is a condition of hire, refer persons who have been denied a surety bond to the Federal Bonding Specialist in Job Service. In many instances, bonding may be available through the Federal Bonding Program. If it is determined that bonding can be arranged, there is no availability issue.
In some occupations it is mandatory that all workers be covered by fidelity bond. A fidelity bond protects businesses from loss due to the actions of employees. If the claimant is not bondable and nevertheless restricts availability to occupations that require bonding, the individual is not available for work. However, as noted above, this would be an exceptional circumstance, since bonding can usually be arranged through the Federal Bonding Program.
If the claimant does not qualify for bonding through a private carrier or the Federal Bonding Program, determine whether the claimant remains available to a substantial field of employment. If some employers in the area, who hire persons in the claimant’s occupation, do not require a bond and this constitutes a substantial field of employment, the claimant would be considered available. Likewise, if the claimant has experience, training, or skills that can be transferred to other occupations and the claimant is willing to seek, accept, and perform such work under the prevailing conditions, the claimant would be considered available.
2. Appearance or Grooming
While an individual has a right to dress and groom himself in any manner he or she chooses, employers have equal rights to establish reasonable standards of dress and grooming for their employees. These include standards designed to insure the safety of employees working in dangerous areas, to protect the health and cleanliness of employees serving the public, or to project a certain atmosphere or an image of reliability to patrons. Employers have the right to hire whom they choose within these standards, except as limited by union, governmental, or other controls.
In recent years, most employers have relaxed their appearance standards as society’s values have changed. However, extreme appearance can still be a barrier to employment in some occupations. Since employer standards of appearance vary according to occupation and labor market, each determination must be based on local labor market information developed for the specific area that constitutes the claimant’s labor market.
Voluntarily imposed appearance restrictions should be viewed in the same manner as other noncompelling restrictions. If the claimant voluntarily presents a personal appearance that is unacceptable to a significant number of employers, an availability issue exists that requires resolution. If the claimant’s appearance does not materially reduce or preclude possibilities for obtaining work, there would be no issue under Section 1253(c).
Many occupations require some type of government requirement. This requirement may be a license, permit, security clearance, or any other legal requirement. Refer to MI 50 for information on citizenship requirements.
Certain occupations are subject to government regulation. Although many of these regulations place requirements on employers, some regulations place requirements on individuals who work in the occupations. To be considered available for work in one of these occupations, a claimant must conform to the government requirement. If not, the claimant cannot legally perform the work.
An important element of these requirements is that they are applied on a universal basis within a specific geographical boundary. The requirements may vary from city to city, county to county, or state to state. Employers within the area are prohibited by law from hiring persons who do not meet the requirement.
If the claimant is unwilling to meet the government requirement for his or her regular occupation, availability would be determined based on the reason for the restriction. Refer to the appropriate section of this volume, i.e., AA 90 - Conscientious Objection, AA 360 - Personal Affairs, etc.
When the claimant is unable to work in his or her usual occupation because of an inability to meet a government requirement, good cause is established for the restriction because the claimant has no alternative. The claimant would be eligible under Section 1253(c) if he or she remains available to a substantial field of employers, in an occupation for which the individual is reasonably fitted by experience, training, or skills.
A truck driver lost his driver’s license for six months. Although he can no longer legally drive a vehicle, he can load and unload trucks. This type of work exists in the claimant’s labor market area, and he is willing to accept the prevailing conditions. Therefore, the claimant is available for work.
The claimant is a certified nurse’s assistant. He must satisfy certain continuing education requirements in order to renew his certificate. He never found time to go to school and his certificate expired. His only other experience is as a security guard, which requires a guard card that has also expired. Since the claimant is legally prohibited from working in either of the occupations for which he is reasonably fitted, he is not considered available for work.
It is customary for workers in certain occupations to provide the equipment needed to perform their job. For example, most carpenters and auto mechanics are required to provide hand tools necessary to perform the work; sales representatives normally provide the vehicle they use to call on current and potential customers (with costs reimbursed by the employer); and some occupations require employees to provide certain uniforms.
If the claimant’s occupation requires that the individual provide his or her own equipment, and the claimant is unable or unwilling to do so, the claimant is not available for work in that occupation.
If the claimant is unwilling to provide his or her own equipment, eligibility will be based on the claimant’s reason for the restriction. Refer to the appropriate section of this volume relating to the basis for the restriction.
If the claimant is unable to provide his or her own equipment, and the inability is imposed by force of circumstances over which the claimant has no control, the restriction is regarded as compelling. Consequently, such restrictions will not render the claimant ineligible provided that the individual is available for other suitable work under all of the following conditions:
- The work must be in an occupation for which the claimant is reasonably fitted by education, experience, or skills.
- The work must exist in the area where the claimant is offering his or her services.
- The claimant must be willing to seek, accept, and perform the work under the prevailing labor market conditions.
If all of the preceding factors are present, the claimant is eligible under Section 1253(c). However, if one or more of the factors is missing, the claimant would not be available to a substantial field of employment and would be ineligible under Section 1253(c).
The claimant is a journeyman carpenter. His tools were stolen from his truck. All carpenters in the claimant’s area must furnish their own tools. Although he could work as a construction laborer without tools, the claimant will not accept such work because he expects to be able to replace the tools within four to six weeks. Since the claimant cannot work in his usual occupation and is not willing to accept other work for which qualified, the claimant is not eligible under Section 1253(c).
The claimant is an outside salesperson. He lost his last job when his personal vehicle required major repairs that he could not afford, and his employer required salespersons to provide their own car. There are no other occupations for which the claimant is reasonably fitted. Only two-thirds of the employers in his area require outside salespersons to provide their own vehicle. The remaining employers provide company vehicles for their sales staff. Although it is customary for outside salespersons to provide their own vehicle in the claimant’s area, the claimant has good cause for his restriction and remains available to a substantial field of employment in his usual occupation. However, if all of the employers in the area required outside salespersons to provide their own vehicle, the claimant would be ineligible for not being available to a substantial field of employment.