Miscellaneous MI 95

Efforts to Seek Work

This section discusses the claimant’s efforts to seek suitable employment. The claimant’s efforts to seek work are not intrinsically connected with the claimant’s availability for work, because they are legislatively two separate subsections of the Code. While a claimant’s inadequate search for work may be for reasons that suggest an unavailability for work, it does not follow that an inadequate search for work means the claimant is not available for work.

Such was the finding in Pacific Legal Foundation v. CUIAB (1981), a California Supreme Court case. The claimant, who was 64 years of age, normally worked as a gardener/caretaker. He was instructed by the Department to seek farm labor work as well as gardener/caretaker work. During a two-week claim period, the claimant’s search for work was restricted to responses to three newspaper ads and a contact with an employment office. Asked about his failure to contact farmers directly, he responded that the farmers he knew were not hiring, and he could not afford the gas to make futile contacts. He was denied benefits because of "lack of diligence" in seeking work under Section 1253(e), and failure to take an initiative in seeking work under Section 1253(c). The ALJ affirmed the Department’s decision. The Board reversed the ALJ on both sections, holding that Sections 1253(c) and 1253(e) were separate sections with separate requirements, and that while a claimant’s failure to seek work may be a factor to be considered along with restrictions and limitations on acceptable work when determining availability, the failure to seek work in and of itself cannot be a basis for a determination of unavailability. The Board elevated the decision to precedent status, P-B-292.

Pacific Legal Foundation asked the Superior Court to invalidate the Board’s decision to elevate the decision to precedent status. After review, the Superior Court reversed the Board and adopted the ALJ’s reasoning, finding that the claimant’s failure to seek work as instructed, and general lack of diligence in seeking work, rendered him unavailable for work. P-B-292 was invalidated in the process.

In 1981, the Appeals Board challenged the Superior Court’s ruling before the California Supreme Court, arguing that the trial court erred in its findings. The Supreme Court agreed, and held that the availability and seek work provisions of Section 1253 of the Code are separate eligibility criteria. Availability under Section 1253(c) is concerned with the restrictions a claimant imposes on the work he or she will accept, while Section 1253(e) is concerned with the claimant’s work search. P-B-292 was affirmed.

A. General

Calif. Unemp. Ins. Code, Section 1253 provides in part:

"An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that:

(e) He or she conducted a search for work in accordance with specific and reasonable instructions of a public employment office."

Title 22, Section 1253(e)-1(a) provides, in part:

"A claimant is ineligible for unemployment compensation benefits for any period for which the department finds that he or she has not made a reasonable effort to search for suitable work on his or her own behalf in accordance with specific and reasonable instructions of a public employment office. . . . "

1. Search for Suitable Work

Title 22, Section 1253(e)-1 provides in part:

". . . The claimant shall be required to show that he or she has, in addition to registering for work . . . followed a course of action which is reasonably designed to result in his or her prompt reemployment in suitable work, considering the customary methods of obtaining work in his or her usual occupation or for which he or she is reasonably suited, and the current conditions of the labor market. "

Suitable work is defined in Title 22, Section 1253(c)-1(c) as:

"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. . . ."

For a complete discussion of the factors that render work suitable or unsuitable, refer to the appropriate section of the AA and SW volumes of the BDGs.

2. Specific and Reasonable Instructions

Title 22, Section 1253(e)-1 provides in part:

". . . The department shall provide to each claimant written information and assistance, and upon request of a claimant or upon identification by the department of a claimant’s need, additional oral information and assistance, as to how, when, where, and in what manner to apply for and look for a job. The facts and circumstances in each case shall be considered in determining whether a claimant has made a reasonable effort to search for suitable work. . . . The following are examples of actions by a claimant which may be considered a reasonable effort for a claimant to search for suitable work on his or her own behalf.

• (1) Making application with such employers who may reasonably be expected to have openings suitable to the claimant.
• (2) Applying for employment with former employers.
• (3) Registering with the claimant’s union hiring or placement facility, and meeting all union dispatching calls and union registration requirements and all other union requirements affecting dispatch to a job. The department may find that this action alone is an adequate search for suitable work for particular claimants.
• (4) Making application or taking examination for openings in the civil service of a governmental unit with reasonable prospects of suitable work for the claimant.
• (5) Registering with a placement facility of a school, college, or university if one is available to the claimant in his or her occupation or profession.
• (6) Registering with a placement facility of the claimant’s professional organization.
• (7) Registering for suitable work with a private employment agency or an employer’s placement facility.
• (8) Responding to appropriate "want ads" for work which is suitable to the claimant."

Written instructions are provided to the claimant in the Handbook for Claimants. These instructions may direct the individual to "conduct an active search for work," or may advise the claimant to "register with his or her union and meet all union requirements," or, in certain cases, may exclude the claimant from the seek work requirements. A disqualification under Section 1253(e) cannot be assessed until the claimant has been issued his or her "seek work" plan.

The claimant should not be instructed to seek work that is defined as unsuitable under Unemp. Ins. Code Sections 1258.5 or 1259, nor should the claimant be instructed to seek work when his or her circumstances allow for exception of the seek work requirements under the Unemp. Ins. Code or Title 22.

B. Exceptions to Seek Work Requirements

Under certain provisions of the Code and Title 22, the claimant may be excluded from the provisions which require a "search for suitable work on his or her own behalf."

1. General

Title 22, Section 1253(e)-1(d) provides in part:

". . . (I)f the department finds that for a particular locality, occupation, or class of claimant or due to other extenuating circumstances during a certain interval, the prospects of suitable job openings other than those listed with the public employment service are so remote that any effort to search for suitable work other than by filing a claim for unemployment compensation benefits and reporting as required to a department field or branch office would be fruitless to the claimant and burdensome to employers, then such filing and such reporting by the claimant shall be a reasonable effort to search for suitable work on his or her own behalf. The circumstances to which the department may apply this subdivision include any of the following:

• (1) The claimant has a definite job promise within a reasonable time.
• (2) There is a temporary layoff due to inclement weather, or a temporary layoff for another cause with a return to work date within 30 days.
• (3) Claimant’s labor market has been virtually eliminated due to a trade dispute.
• (4) There is an agreement by employers, unions, and the department to serve applicants for work in the claimant’s occupation.
• (5) Claimant’s unemployment is due to a seasonal shutdown in the industry in which the claimant works and the likelihood of obtaining other work is remote.
• (6) The claimant’s specialized skill is such that a limited number of job prospects are available for him or her and he or she has exhausted the potential sources of these jobs."

2. Partial Claims

Unemp. Ins. Code Section 1253 provides, in part, that an unemployed individual is eligible to receive benefits if the director finds that:

"(b) He has registered for work, and thereafter continued to report, at a public employment office or such other place as the director may approve. Either or both of the requirements of this subdivision may be waived or altered by authorized regulations as to partially employed individuals attached to regular jobs. "

The "authorized regulation," Title 22, Section 1253(e)-1(e), provides that the seek work requirements "shall not apply to a claimant with respect to a first or subsequent partial claim for partial unemployment benefits."

3. Members of Certain Unions

Section 1253(e)-1(d)(4) waives the "reasonable search for work on his or her own behalf" requirement for certain union members when:

"There is an agreement by employers, unions, and the department to serve applicants for work in the claimant’s occupation."

Although excused from conducting a search for work on his or her own behalf, the claimant must meet the following conditions of Section 1253(e)-1(a)(3):

• Register with the claimant’s union hiring or placement facility, and
• Meet all union dispatch calls and union registration requirements, and
• All other union requirements affecting dispatch to a job.

4. Training or Retraining Benefits

Unemp. Ins. Code Section 1267 provides in part:

". . . (B)enefits shall not be denied to an individual for any week because he or she is in training or retraining with the approval of the director, or because of the application to any such week in training or retraining of any law of this state relating to availability for work, active search for work, refusal to accept work, or for leaving his or her most recent work, if continuing the most recent work would require the individual to terminate his or her training . . . ."

Therefore, claimant’s are excluded from conducting an active search for work while participating in Director approved training or retraining.

5. Apprentice Training

Title 22, Section 1267-2, excludes claimants in apprenticeship training from the work search requirements:

"Any apprentice, otherwise eligible for benefits under the code, who is in training is eligible to receive such benefits for any week during which he or she is otherwise unemployed and participates in training, and such benefits shall not be denied to any apprentice for any such week because of any provisions of the code relating to availability for work, active search for work, or refusal to accept work."

6. Jury Duty or Life-Threatening Hospitalization

Unemp. Ins. Code Section 1253.7, provides:

"For the purposes of subdivision (e) of Section 1253, an individual shall not be disqualified for any week solely because of either of the following:

• (a) The individual is before any court of the United States or any state pursuant to a lawfully issued summons to appear for jury duty.
• (b) The individual is hospitalized for treatment of an emergency or life-threatening condition."

The same provisions are applied to extended duration benefits under Unemp. Ins. Code Section 4554.

It should be noted that while the claimant may be excluded from the day-by-day search for work requirement while hospitalized for a life-threatening condition, such condition may render the claimant ineligible under Unemp. Ins. Code Sections 1253(c) or 1253.3.