Suitable Work SW 5

General

This section discusses the basic principles of what constitutes "suitable work." For information regarding specific situations, refer to the section that covers the reason for refusing the job offer or referral to work.

A. Statutory Provisions

California Unemployment Insurance Code, Section 1257(b), provides an individual is disqualified for unemployment compensation benefits if:

Title 22, California Code of Regulations, Section 1253(c)-1(c)(4), defines good cause:

While this reference relates, generally, to availability issues, the same concept applies to suitable work issues. "Good Cause" is defined as real circumstances, substantial reasons, objective conditions, adequate excuses that will bear the test of reason, just grounds for action and always the element of good faith. Reasons of such a compelling nature that would cause any reasonable person to conduct themselves in the same manner given the same circumstances. Compelling, in this sense, merely means that the claimant’s reasons exerted so much pressure upon him or her that it would be unreasonable to expect the claimant to do otherwise.

Section 1258 of the Code provides a definition of suitable work:

Sections 1258.5 and 1259 of the Code provide that no work or employment shall be deemed suitable if any of the following conditions exist:

• The offer of employment is from an employer who does not possess an appropriate state license to engage in the business, trade, or profession.
• The offer of employment is from an employer who does not withhold or hold in trust the employee contributions required for unemployment compensation disability benefits and does not transmit all such employee contributions to the department for the Disability Fund as required. (Note: This requirement does not apply to out-of-state employment or government employment.)
• The offer of employment is from an employer who does not carry either workers’ compensation insurance or possess a certificate or self-insurance as required by the Labor Code.
• The position offered is vacant due directly to a strike, lockout, or other labor dispute.
• 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.
• The individual, as a condition of being employed, would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

B. Elements of Suitable Work

Before any disqualification can be imposed for refusing suitable employment without good cause, the Department must show that all of the following elements exist:

• An opening exists.
• The offer is genuine.
• The claimant received the offer.
• The claimant received sufficient information about the prospective job.
• The work is suitable.

These principles are clearly stated in P-B-310. The claimant was last employed for four years as a saleslady in a dress shop. She had previously worked for another employer for seven years as a salesperson in ladies ready-to-wear. The Department referred the claimant to a sales position at the department store where she had been employed prior to her last position. When she was interviewed by the employer, she was told that she could "work out front some place" in notions or yardage. The claimant refused the offer because she wished to stay with ready-to-wear garment sales. There was no evidence in the record as to the wages, hours, or working conditions of the prospective work, nor did the record disclose that the claimant was informed thereof. In its decision, the Board stated:

1. An Opening Exists

   An opening exists when the employer is prepared to make a firm commitment to hire the claimant. If it cannot be established that a bona fide offer of a job was made, there is no issue of eligibility.

2. The Offer Is Genuine

   Any offer of work made by an employer is presumed to be genuine; however, this presumption may be open to rebuttal.

   When an offer is made during the course of a trade dispute or in relationship to a determination, ruling or appeal to which the employer is an interested party, it is possible that the offer is for the purpose of strengthening the employer’s argument that the claimant should be held ineligible and thereby protect his or her reserve account. If the manner in which the offer is made, or the facts concerning the alleged job opening, are such that the sincerity of the offer is questionable, careful fact-finding is necessary to establish that an actual opening exists and is, in fact, being offered to the claimant.

   For an offer of work to be genuine, it must be shown that the prospective employer would place the claimant in employment. It is not sufficient to show that a job existed for which the claimant might have been selected.

   The following are examples of proposals which do not constitute an offer of work.

   • An offer to consider a claimant’s application or an invitation to a claimant to file an application is not an offer of work.
   • A hypothetical question such as, "Would you consider a job with us when we have a vacancy?" is not an offer of work.
   • An offer which is dependent upon a contingency such as, "if we get the contract," or "if the former secretary doesn’t return from her leave" is not an offer of work.
   • An offer made by an employee of the employer to whom the employer has not delegated the power to hire (such as a supervisor, fellow worker, or outside consultant), is not an offer of work.

   The fact that an offer is made under circumstances which cast doubt on its validity does not, in itself, prove that the offer is not genuine. It merely raises a question regarding the offer and its purpose. When an unresolved conflict of evidence leaves doubt as to whether an offer was actually made, that doubt must be resolved in favor of the claimant. However, if the employer withholds a job offer because the claimant acts or speaks in such a way as to preclude the offer of work, the claimant may be subject to disqualification. (See SW 170 for a complete discussion of preclusion.)

3. The Claimant Received the Offer

   In some cases a personal interview between the claimant and a prospective employer may end with the claimant thinking he or she is being considered for the job, while the employer feels a definite offer of work has been made. A claimant cannot be disqualified for refusing an offer of work which was not actually communicated to him or her.

   An offer of work may be communicated in various ways. In addition to verbal communication, an offer may be made by mail or through another person (such as a union referral). The Board has consistently held that whenever there is doubt that the claimant actually received, or understood that he or she was receiving, an offer of a job, that doubt must be resolved in favor of the claimant unless the failure to communicate is the result of gross fault or negligence by the claimant.

   • Job Offer Made by Mail

     Claimants sometimes contend they did not receive offers made by mail. There is a presumption that a letter duly directed and mailed was received. However, this presumption can be rebutted and cannot be used to support a job refusal disqualification if the claimant’s denial of receipt is credible, and the claimant’s non receipt of the offer was not due to carelessness or other fault on his or her part.

     A claimant may be at fault in failing to receive an offer of work if he or she refuses to accept a communication containing an offer of work, or fails to read a communication once it has been received. Where mail is delivered to a mailing address different from that of the claimants residence, the claimant would be at fault if he or she does not exercise diligence in calling for the mail regularly.

     Likewise, a claimant would be at fault if, while on temporary layoff, he or she failed to keep the employer informed of his or her current mailing address.

     In P-B-92 the claimant was informed both verbally and in writing of the necessity of keeping the employer informed of her current address when she was placed on temporary layoff. Subsequent to her layoff, the claimant moved to another address. The claimant was recalled by means of a telegram sent to her last known address. No response was received from the claimant so her name was removed from the employment roll. The claimant was aware of the requirement to keep the employer informed of her current address. She contended she notified the employer of the change, but the evidence submitted did not confirm this. In its decision affirming the disqualification, the Board stated:

     Section 1257(b) of the code provides for the disqualification of a claimant if the claimant refuses an offer of suitable work without good cause. The claimant’s failure to notify the employer of her change of address was tantamount to a refusal of suitable work because she effectively prevented the employer from offering her work. No good cause has been established for the claimant’s failure to notify the employer as she was obligated to and we therefore conclude that she is subject to disqualification under Section 1257(b) of the code.

     However, where mail is delivered to or opened by someone other than the claimant or an authorized agent, and the offer is not communicated to the claimant in a timely manner, the claimant would not be subject to disqualification under Section 1257(b).

   • Job Offer Made Through Another Person

     Occasionally employers transmit offers of work through employees or others, not normally authorized to hire. When such means of communication are used, it must be determined that an offer of work was actually communicated to the claimant. If the claimant has reasonable doubt as to the authority of the person making the offer, he or she is under no obligation to contact the employer, and failure to pursue the matter further would not be considered a refusal of work.

     Example: The employer asked an employee, that he knew was a friend and neighbor of the claimants, to tell the claimant to report for work the following Monday. On her way home from work, the employee saw the claimant and, from her car, yelled to the claimant that she should call the employer. The employee did not tell the claimant that she was supposed to report for work. The claimant had been discussing continued insurance coverage with the employer and assumed that was what the call was about and felt no urgency in contacting the employer. On Wednesday, the employer recalled another employee for the job. In this case, the claimant would not be subject to disqualification because the job offer was not actually communicated to her.

     An offer of work made through a claimant’s union may be a valid offer of work. If an employer designates to the union the particular person he wishes to hire and the union transmits that offer to the claimant, the offer of work made to the claimant through the union representative is a valid offer of work. The claimant’s eligibility would be based on his or her reasons for refusing the job offer.

4. The Claimant Received Sufficient Information About the Job

   In P-B-310, the Board discussed the principles that must be present before a disqualification under Section 1257(b) may be assessed. In its decision the Board stated:

   . . . [W]e have held in a number of previous cases that before a disqualification may be imposed for refusing suitable employment without good cause it must be shown . . . that the claimant was given sufficient information relative to the duties, hours of work, and working conditions so that the claimant is able to determine whether the work, in his opinion, is suitable and if any reason exists which would constitute a cause for its refusal. . . . (The claimant) testified that she was not informed of any of the details concerning a specific opening, nor, as far as the record shows, was there any information given her concerning the wages, hours and working conditions of the prospective position. Under these facts, we are unable to find that the claimant was offered suitable employment and refused the offer without good cause.

   An offer of employment must be sufficient to notify the claimant of the basic working conditions, including hours of work and wages. However, in P-B-315 the Board held that the offer of work need not mention all of the terms of employment if the claimant was already sufficiently familiar with the employment conditions at the employer’s place of business so as to make the requirement unnecessary. Such a situation would occur if the claimant had previously worked for the employer.

5. The work offered is suitable.

   In P-B-310, cited above, the employer had a position available in notions and yardage; he did not have an opening for a salesperson in ready-to-wear garments. The claimant’s sales experience for the past 11 years had been in ready-to-wear garments, she was registered with the Department as ladies ready-to-wear salesperson. While the employer had an opening, the available position was determined not suitable for the claimant.

   The suitability of offered work was also discussed in P-B-306. The claimant, who had been employed for four years as a record tester, had been on a leave of absence. She was not reinstated at the end of her leave due to seasonal shutdown. The Department referred the claimant to work in the garment industry as an inspector-trainee at a starting wage 43% less than her prior salary. The claimant refused the referral. The Board held the claimant was not subject to disqualification because the work offered to the claimant was unsuitable in view of her prior earnings and experience and her prospects of obtaining work in her customary occupation within a reasonable time.

C. New Work

No claimant may be disqualified under the provisions of Section 1257(b) unless he or she has, without good cause, refused suitable new work. All work offered to an individual who has no employment relationship with the employer and no attachment to the employer or a job with the employer, is new work.

If the claimant has never before worked for the employer, clearly the offered work is new work. If the claimant has severed his employment relationship with the employer, and the employer offers to rehire him, this is new work.

There are several situations that arise that require particular attention to determine if the offered work is new work.

1. Transfer to Other Work

   A claimant who refuses a transfer to other work with the same employer has quit the job, not refused an offer of new work. (See VQ BDG for a complete discussion.)

   An offer of transfer to work with another company which would not preserve the former employment relationship would be an offer of new work. The refusal of a transfer under these circumstances, would be a refusal of new work.

   This was the finding of the Board in P-B-44. The claimant was employed by Pacific Telephone and Telegraph when she voluntarily quit to join her husband in Washington where he had chosen to live. The employer’s representative contacted the Pacific Northwest Bell Company in Washington to ascertain if a job opening existed there for the claimant. A job opening existed which was discussed with the claimant. She declined to accept the job with Pacific Northwest Bell because she desired to work the same hours her husband did. The Pacific Telephone and Telegraph Company and the Pacific Northwest Bell Telephone Company are both members of the Bell System, but each is a separate corporation. In its decision, the Board stated:

   The claimant’s last employment was with the Pacific Telephone and Telegraph Company. She was not employed by the Pacific Northwest Bell Telephone Company, nor can it be construed that the Pacific Telephone is the same employer as the Pacific Northwest Bell. Had the claimant accepted the purported transfer, the employer-employee relationship with the Pacific Telephone would not have continued . . . . We conclude therefore that the "transfer" to the Pacific Northwest Bell was not a transfer to other work with the same employer . . . .

   The Department had issued the decision as a voluntary quit. However, the Board remanded the case back to the Department to conduct a determination of eligibility under Section 1257(b) for the refusal of "new work."

   While the foregoing discusses transfers to another company, the same reasoning would apply to refusal to exercise bumping privileges to another company where the employment relationship would not be preserved.

2. Contract Employment

   When a claimant works under a contract of hire (either written or verbal), the claimant’s work expires when the specified period of work ends. Since the claimant in effect has been laid off, refusal of an offer to renew the contact, whether made on, before, or after its expiration, is a refusal of new work.

   In P-B-275, the claimant accepted a contract requiring him to work for two years in Arabia. Shortly before the expiration of the initial contact, he declined the employer’s offer to extend the contract for two more years. The Board concluded the claimant had not quit within the meaning of Section 1256. The refusal instead raised a suitable work issue under Section 1257(b).

   An employment contract also expires when ownership of a business changes. Therefore, a claimant’s refusal of an advance offer to remain with the successor employer raises a suitable work issue rather than a VQ issue.

   Such was the finding of the Board in P-B-264. The claimant had worked for the employer for approximately one and one-half years. In addition to his regular salary, the employer compensated the claimant for commuting costs. On April 18, the employer circulated a notice to its employees which stated the company was discontinuing operations effective April 30. The notice advised that during the next two-week period the new owner would be accepting applications from anyone who wished to be considered for continued employment. The claimant applied and was offered employment performing the same duties at the same weekly wage; however, the new employer would not compensate the claimant for commuting costs. The claimant refused the offer of employment. In its decision, the Board stated:

   The question presented for decision in this matter is whether the claimant’s employment terminated on April 30 . . . when the Neward Die and Manufacturing Company ceased operations or whether the claimant’s employment terminated when he declined to accept the offer of employment given to him by the successor employer. That is, we must decide whether the claimant was laid off on April 30 . . . or voluntarily quit his work on May 1 . . . the effective date of the offer of employment. . . .

   . . . [T]he verbal contract of employment that the claimant entered into with the Neward Die and Manufacturing Company terminated on April 30 . . . when the employer ceased business and the claimant was, in effect, laid off. Accordingly, the claimant is not subject to disqualification under section 1256 of the code.

   The offer of employment made to the claimant by the successor company was an offer of a new contract of employment. Since the claimant refused to accept this new contract, a question of his eligibility for benefits is raised under section 1257(b) of the code. (Emphasis added.)

   Since eligibility for refusal of new work had not been previously covered, the Board suggested the Department determine the claimant’s eligibility under Section 1257(b).

3. Employment Status When Offer Made

   A claimant on definite layoff, a school employee during recess period, a claimant on temporary partial disability status, or a claimant involved in a trade dispute, does not have good cause to refuse suitable temporary or part-time work solely on the grounds that the individual is maintaining an employer-employee relationship unless:

   • The offered work would prevent the claimant from returning to work for the regular employer, or
   • The part-time work conflicts with the reduced hours the claimant is working.

   For example, a claimant’s work schedule for her regular employer has been temporarily reduced from five days a week to two days a week. This condition is expected to last for several months. The claimant refuses a referral to one month temporary job, even though the prospective employer agrees that the claimant would work only on those days she is not working at her regular job. The claimant does not have good cause for refusing the offered work, since the job is temporary and it would not interfere with the hours of her regular employment.

D. Job Offer Made Prior to Filing a Claim

A refusal of suitable work without good cause may be disqualifying even when it occurs prior to the filing of a claim as long as there is a causal connection between the job refusal and the current unemployment.

It is not necessary for a claimant to be in claim status when the offer is made in order for there to be an issue under Section 1257(b). If the job offer takes place during a period of unemployment which is prior to the filing of a new, additional, or reopened claim and the refusal of the job offer is related to the claimant’s current unemployment (causal connection), a potential disqualification exists.

The Board has consistently held that the language of Section 1257(b) is clear and unambiguous, and under its terms a claimant is subject to disqualification from benefits even though the cause of the disqualification may have arisen prior to the filing of the claim. In other words, it is immaterial that the offer of employment was refused before the claim for benefits was made. However, any full-time, permanent employment after the refusal and prior to filing the claim breaks the causal connection. Work that is offered and accepted as temporary work does not break the causal effect unless the job offer was made while the claimant was actually employed.

Example 1: An employer, in response to a DE 1545, advised the Department that she had offered the claimant a full-time permanent job on June 22, which the claimant declined. The offer was made seven weeks prior to the claim filing. The claimant had worked on a two-week temporary job between June 22 and the claim filing date. It has been established that the employment offered was suitable and the claimant has not provided a good cause reason for refusal. In this case, there is a definite relationship between the claimant’s current unemployment and the offer of full-time permanent employment. The two-week temporary job does not break the causal connection.

Example 2: The same employer responded regarding another claimant stating she had offered the claimant a full-time permanent job on June 24, but the claimant was working on a full-time temporary job which was to last another four weeks. The employer could not wait and hired someone else to fill the position. The claimant completed the temporary assignment and filed a claim. In this case, the job offer was made while the claimant was fully employed. The claimant would not be subject to the disqualifying provisions of Section 1257(b).

The length of any intervening employment is not material. The controlling factor is whether the intervening employment was permanent rather than temporary in nature. If the claimant was hired as a permanent employee and, due to a slow down in the employer’s business, was laid off after a few weeks, there would be no causal connection between a prior job refusal and the claimant’s current period of unemployment. Additionally, it should be noted that the Board held in P-B-314 that a claimant who is employed on a part-time basis, earning less that his or her weekly benefit amount, is "unemployed" and subject to disqualification the same as a totally unemployed individual.

E. Prospect of Obtaining Work

Another factor which must be taken into consideration when determining whether offered work is suitable and whether the claimant had good cause to refuse it, is the claimant’s prospects of obtaining work. As Code Section 1258 provides in pertinent part:

The Board has consistently adhered to the principle that a claimant should be given a reasonable time to seek work in his or her usual occupation, but, where the evidence shows that there are no prospects of employment in that occupation, it would not be unreasonable to require the claimant to consider other related work for which he or she is reasonably suited.

On the other hand, when there are reasonable prospects of work in the locality for which the claimant is fitted by prior training and experience at a wage commensurate with the individuals prior earnings, the claimant is allowed a reasonable amount of time to obtain that work.

In P-B-306, the claimant had worked as a record tester until she was laid off. She was a member of the union and was on the union recall list. After three months of unemployment, the claimant was offered a referral to employment in the garment industry at a wage substantially less than she had been earning. The claimant had no experience in this field. The Board held that the offered work was not suitable, and stated:

F. Training or Experience

Unemployment Insurance Code Section 1258 states in part:

Thus, the claimant’s experience and training are considered only in conjunction with other factors in determining if the work offered is suitable work. It is, therefore, necessary to look at all factors when making a determination.

In P-B-320, the claimant had worked as a bookkeeper and office manager for a total of twelve years at a final wage in the high end of the prevailing wage scale. She was referred by the Department to employment as a bookkeeper at the low end of the prevailing wage for bookkeepers in her area. The claimant refused the job. The Board held that the claimant did not refuse "suitable employment" and stated:

Occasionally a claimant will refuse a referral or offer of work on the basis that he or she lacks sufficient experience or training to handle the offered job. Seldom will a claimant have good cause for refusing a job because he or she feels unqualified. This is usually for the employer to decide.

Usually, if the offered work is in the claimant’s normal occupation, or closely allied field, the claimant can be said to have sufficient experience to go for an interview. This was the decision of the Board in P-B-305. The claimant in this case had 15 years’ experience as a shoe salesman and that was the type of work he was seeking. The Department offered the claimant a referral to prospective work as an electrical appliance salesman in a department store. The claimant refused the referral on the grounds that his sole experience in selling had been as a salesman of high-class ladies’ footwear, and he consequently doubted his ability as an electrical appliance salesman. The Board held that the claimant was subject to disqualification, and said:

If a claimant refuses a referral or an offer of suitable work because the individual feels there is a risk of losing his or her skill, the claimant may have good cause for refusal. However, if the claimant refuses the lesser skilled job for this reason, and there is no actual risk of loss of skill, the claimant does not have good cause for refusal.

For example, a trained legal stenographer may refuse a job as a receptionist with good cause, since by not using her skill and knowledge of typing and shorthand, she could lose these skills and thus reduce her future earning power. However, this same legal stenographer would not have good cause for refusing a job as a general stenographer on the grounds that she would lose her proficiency in legal terms.

Rarely will a determination stand on the loss of skill factor alone. In addition, it must be determined if the wage offered is within the prevailing range, if the working conditions are customary, and how long the individual has been unemployed.

G. Successive Disqualifications

Unemployment Insurance Code Section 1261 provides:

Example:

The claimant reported she refused an offer of suitable employment. During the interview process the Department finds that the claimant refused several offers of suitable work on this claim and was disqualified each time. Under these circumstances the claimant should be assessed a successive disqualification under Section 1261in addition to the disqualification under Section 1257(b).

Note: To be considered as a prior disqualification for SD purposes the prior Determination Notice (DE 1080) must have been issued to the claimant at least 10 days prior to the commission of the subsequent act. This time lapse ensures that the claimant was warned a misstatement or refusal of work without good cause would lead to a penalty and the claimant committed another act subsequent to the warning.