Preface PR 5

Introduction

A. Purpose of the Benefit Determination Guide

The Benefit Determination Guide, an eight-volume compendium, is designed to present definitive discussions on points of unemployment insurance law for the field office determination interviewer. It is composed of the following titles:

• Able and Available
• Miscellaneous
• Misconduct
• Preface and Index
• Suitable Work
• Total and Partial Unemployment
• Trade Dispute
• Voluntary Quit

B. Derivation of the Benefit Determination Guide

Discussions in the Benefit Determination Guide are based on statutory law found in the Unemployment Insurance Code, other California codes, and federal statutes; regulations, found in Title 22 of the California Code of Regulations and various federal Titles; case law from the United States Supreme Court, the California Supreme Court, and lower federal and state courts; and Precedent Benefit Decisions, issued by the California Unemployment Insurance Appeals Board.

1. Federal and State Statutory Law: The Law Enacted

   Federal and state statutory law is law enacted by the respective law-making bodies: for the federal government, by the Congress of the United States; and for the state government, by the California Legislature. These duly-enacted laws are controlling on the unemployment insurance program as long as the laws remain in effect.

   California’s statutory law is found in 28 Codes, one of which is the Unemployment Insurance Code. The Unemployment Insurance Code does not operate in a vacuum, however; principles are drawn into UI law from other Codes, such as wages and hours laws (the Labor Code), licensing laws (the Business and Professions Code and the Motor Vehicle Code), school attendance laws (the Education Code), drug laws (the Welfare and Institutions Code), and criminal law (the Penal Code).

2. Federal and State Regulatory Law: The Law Implemented

   After laws are enacted by the respective law-making bodies, regulations may be enacted by the agencies responsible for administering the respective laws. The regulations are necessary so that the People are aware of the effect that the law will have upon them, their welfare and their property. The regulations give notice of how the law will be applied, and public input is generally sought before the regulation becomes effective.

3. Case Law: The Law Interpreted

   "Case law" refers to cases decided by the courts. The courts are interpreters of the law, and their interpretations are contained in their published decisions. Case law may set a precedent by creating new law, may extend a previous holding to a different set of facts, or may overturn the manner in which EDD is implementing statutory law.

   There are two court systems in which actions may be filed, the federal and the state. The plaintiff’s (appellant’s) decision to file a suit in one court in preference to another is essentially governed by procedural rules and the result sought, and no conclusion should be made concerning the decision because it is issued, for instance, from a state court rather than from a federal court. The highest court in the California State system is the California Supreme Court; the highest court in the land is the United States Supreme Court, which has review power over all federal courts and the states’ Supreme Court decisions. The U.S. Supreme Court’s decisions are binding (controlling) on all states, while the California Supreme Court’s decisions are binding only in California.

   California Appellate Courts: Appellate court decisions (the California Court of Appeal for the X District) are binding on the area served by the appellate court. In practice, however, EDD extends a state appellate court’s decision to the entire state rather than just the area served by the court, to achieve statewide parity in application of the court’s interpretation.

   Federal Appellate Court: Decisions published by the (federal) Ninth Circuit Court of Appeals are controlling on California, Washington, Oregon, Montana, Idaho, Nevada, Arizona, Alaska, Hawaii, and Guam.

   The BDGs have also incorporated holdings from other state or federal courts’ jurisdictions if there is no California law on point, considering the other states’ holding as persuasive, even though not controlling.

4. Precedent Benefit Decisions: The Law Unsettled

   Precedent Benefit Decisions are issued by the California Unemployment Insurance Appeals Board, acting together, and are binding upon all EDD staff, from interviewers to Administrative Law Judges. In making its decision to declare a decision to be a Precedent Benefit Decision, the Board applies statutory law, regulatory law, and case law to "cases of first impression" (the first time the issue or solution has arisen before the Board) and to unsettled matters of unemployment insurance law to achieve uniformity of application. The decisions are marked as Precedent Benefit Decisions and are reviewable by the courts, who may affirm, reverse, or modify the Board’s holding.

   Administrative Law Judges’ decisions are controlling only for the particular case decided, and have no precedential value.

C. Scope of the Benefit Determination Guide

The Benefit Determination Guide differs from a field office operating manual in that the Benefit Determination Guide does not address the mechanics of making a determination of eligibility. Rather, its emphasis is upon the reasoning that results in a proper decision. Each volume is composed of chapters devoted to one broad issue of unemployment insurance law. Within each chapter, there is:

• A narrative discussion of the legal principles to guide the interviewer’s decision (the white pages).

In addition, there may also be:

• A fact-finding guide to direct the interviewer to the salient points that will lead to a comprehensive interview (the green pages); and
• Reasons for Decision, statements that inform the claimant or the employer of the legal result of the interview (the pink pages).

D. How to Use the Benefit Determination Guide

1. Deciding the Issue

   The interviewer must make some initial decisions before the interview starts:

   • What is the broad issue under consideration? Is it, for instance, an alleged inadequate work search, a quit, a job refusal, or unreported income? The answer to this question directs the interviewer to the proper volume of the BDG.

   NOTE: If there is more than one issue identified, complete the determination on the first identified issue before going on to the next issue.

2. Finding the Elements of the Identified Issue

   Each identified issue - voluntary quit, discharge, job refusal, availability, search for work - has "elements," or sets of circumstances that must be present or absent before a certain conclusion may be reached. These elements are found either in the Code section that addresses the issue proper, or in the Code section’s implementing regulation(s), found in Title 22, California Code of Regulations. The first chapter of each BDG volume discusses the elements of its subject matter. Both the Code and the regulations may proscribe certain conduct or may define principles. For instance:

   • A11 of the elements are contained in the Code: In a false statement (FS) determination, the interviewer must consider both the elements and the alternatives offered in Unemployment Insurance Code Section 1257(a). Before a disqualification may issue, the interviewer must show that the claimant: 1) willfully, 2) for the purpose of obtaining benefits, either, 3a) made a false statement or 3b) representation, 3c) with actual knowledge of its falsity, or 4a) withheld a material fact 4b) in order to obtain benefits.
   • None of the elements are in the Code: In an availability (A&A) determination under Unemployment Insurance Code Section 1253(c), the interviewer must find that the claimant was "able to work and available for work for that week." The interviewer must consult the defining regulation (Title 22, Section 1253(c)-1), to determine what elements are required to be proven before the interviewer may decide that the claimant meets the criteria for payment of benefits.
   • Elements are in the Code, But are Too Broad to be Helpful: In an irregular (IRR) determination under either Section 1253(a) or 1326, the interviewer must show: 1) that there is an authorized regulation 2) addressing the problem identified. Then, the interviewer must look in the regulations for the specific elements of whatever issue is raised. Note that, if there is no regulation covering the issue raised, an IRR determination is not proper.
   • Elements are in the Code, But Need Further Explanation: In a voluntary quit (VQ) determination, the interviewer must consider the four elements of Unemployment Insurance Code Section 1256. Before a disqualification may be issued, the interviewer must show: 1) a leaving of 2) the most recent work 3) voluntarily 4) without good cause. But once the interviewer determines that the claimant 1) left 2) the most recent work 3) voluntarily, the interviewer must still determine whether that leaving was with "good cause." For an analysis of what constitutes "good cause" for the fact pattern presented, the interviewer must consult the regulations for the principles behind a "good cause" leaving of the most recent work.
3. Determining the Element of the Applicable Law That is in Question

   Rarely will a claimant agree, for instance, that he or she quit the employment without good cause. In the vast majority of cases, the claimant will feel that he or she had a reason sufficient to exonerate him or her from disqualification.

   If just one of the elements of a disqualification is not present (the quit is not voluntary, or the discharge was not from the last employment), there is either no issue for UI purposes, or the interviewer is looking at the wrong section of the Code.

   Example 1, Incarceration, Section 1256.1: The claimant agrees that he was 1) terminated 2) because of his absence from work 3) for a period in excess of 24 hours 4) because of his incarceration. Four of the elements of a quit for incarceration are present. But the claimant denies the fifth element: 5) having been convicted of that offense or a lesser included offense. Although all of the elements must be documented, the only element to be investigated is whether the claimant was convicted of the offense, or a lesser included offense, for which he was incarcerated. Information is readily available on that point through the applicable state, county or city court or police records, and no interpretation of facts is required.

   Example 2, Voluntary Quit Issue: The claimant agrees that she 1) left 2) her last employer. She contends the leaving wasn’t 3) voluntary and 4) without good cause, however, because if she hadn’t quit, the employer would have discharged her. The issues of whether or not the claimant’s leaving was voluntary and with good cause must be resolved.

   Example 3, Job Refusal Issue: The claimant agrees that she 1) refused 2) to accept 3) employment, but contends the job required four hours’ driving time each way - that the job was not suitable. The issue to be resolved is the suitability of the work.

   The difference between the incarceration example and the voluntary quit/job refusal examples:

   In the incarceration example, the claimant contended that the law is inapplicable to him because he was not convicted. If the claimant’s statement is found to be accurate after verification, Section 1256.1 does not apply to him because one of the elements of a Section 1256.1 quit is not present. (But note: a failed Section 1256.1 quit will become a discharge issue under Section 1256.)

   In the voluntary quit example, the claimant contended the leaving was with good cause. The issues of fact to be resolved are whether the leaving was voluntary and with good cause, elements of Section 1256.

   In the job refusal example, the claimant contended that the job was not suitable. The only issue of fact to be resolved is whether the job was, in fact, suitable for the claimant, one of the elements of Section 1257tb).

4. Use of the BDGs in Resolving Issues

   Once the interviewer determines the broad issues) such as job refusal, voluntary quit, efforts to seek work, misconduct, etc., the interviewer has identified the BDG volume to use. But this is not helpful without more.

   For illustrative purposes, suppose that there is only one issue to be decided: voluntary quit. The interviewer must do some fact-finding to determine why the claimant quit.

   Example 1: If the claimant states that she quit because she decided to retire, VQ 360, Personal Affairs, is the appropriate chapter to consult.

   Example 2: If the claimant states that she quit to go to school, VQ 40, Attendance at School or Training Course, is the appropriate chapter to consult.

   Example 3: If the claimant states that she quit because she moved with her husband to a community located two hundred miles from the job site, VQ 155, Domestic Circumstances, is the appropriate chapter to consult.

   Keeping in mind the elements of a voluntary quit - leaving, last employment, voluntarily, and without good cause, the interviewer must now determine any subissues:

   Example 1, Above, VQ For Retirement:

   The interviewer should refer to the (green) fact-finding guide card for the questions to ask. Included is, Why did the claimant elect to retire at this time? (The claimant may state that she elected to retire because she no longer wanted to work after she was laid off in a general layoff. The voluntariness of the leaving is missing, and the separation is not a VQ issue, but a layoff for lack of work followed by a withdrawal from the labor market. The interviewer will now investigate the BDG Volume Able and Available.) The interviewer should also inquire whether the claimant will be receiving a retirement pension.

   Example 2, Above, VQ to Go to School:

   The interviewer should refer to the (green) fact-finding guide card for questions to ask. The interviewer may determine that the claimant is attending college (personal but non compelling), or is attending an apprenticeship class (compelling if required by his union. )

   Example 3, Above, VQ to Accompany Husband to Remote Location:

   The interviewer should refer to the (green) fact-finding guide card for the questions to ask. The interviewer may determine, for instance, that the move was actually at the claimant’s insistence, or that the claimant could have transferred to a job site near the new home, or that the move was to be temporary only. There is also an availability issue, depending upon the field of employment available to the claimant in the new area and any restrictions the claimant may place upon suitable employment.

   Once the interviewer has completed the fact-finding and has determined what the actual issues are, the interviewer is then in a position to read the narrative portions of the applicable BDG chapter to determine the applicable law with respect to those issues developed.

   NOTE: The interviewer should resolve all issues of eligibility raised at the interview.