1997 Minnesota Statutes

     268.08 Persons eligible to receive benefits. 

    Subdivision 1.    Eligibility conditions.  A claimant 
 shall be eligible to receive benefits for any week in the 
 claimant's benefit year only if: 

    (1) the claimant has made a continued claim for benefits in 
 person, by mail, by telephone, or by electronic transmission as 
 the commissioner shall require.  The commissioner may by rule 
 adopt other requirements for a continued claim; 

    (2) the claimant was able to work and was available for 
 employment, and was actively seeking employment.  The claimant's 
 weekly benefit amount shall be reduced one-fifth for each day 
 the claimant is unable to work or is unavailable for employment. 

    Benefits shall not be denied by application of this clause 
 to a claimant who is in training with the approval of the 
 commissioner, is a dislocated worker as defined in section 
 268.975, subdivision 3, in training approved by the 
 commissioner, or in training approved pursuant to section 236 of 
 the Trade Act of 1974, as amended. 

    A claimant serving as a juror shall be considered as 
 available for employment and actively seeking employment on each 
 day the claimant is on jury duty; 

    (3) the claimant has been unemployed for a waiting period 
 of one week during which the claimant is otherwise entitled to 
 benefits; and 

    (4) the claimant has been participating in reemployment 
 services, such as job search assistance services, if the 
 claimant has been determined likely to exhaust benefits and in 
 need of reemployment services pursuant to a profiling system 
 established by the commissioner, unless there is justifiable 
 cause for the claimant's failure to participate. 

    Subd. 1a.    Benefits due deceased persons.  Upon the 
 death of any claimant for benefits, and in the event it is found 
 by the commissioner that benefits have accrued and are due and 
 payable to that claimant and remain wholly or partially unpaid 
 at the time of the claimant's death, or in the event there have 
 been issued and unpaid one or more benefit checks, those checks 
 may, upon application therefor, be paid to the duly qualified 
 administrator or executor of the estate of the deceased 
 claimant.  In the event that no administrator or executor is 
 appointed to administer the estate of the deceased, if any, the 
 benefits may, upon the order and direction of the commissioner 
 be paid to any person designated by the commissioner in the 
 following order:  (1) the surviving spouse, (2) the surviving 
 child or children, or (3) the surviving parent or parents. 

    A person seeking payment under this subdivision shall 
 complete an affidavit on a form prescribed by the department and 
 the payment of benefits to a person pursuant to an affidavit 
 under this subdivision shall discharge the obligations of the 
 department to the claimant to the extent of the payment, and no 
 other person shall claim or assert any right with respect 
 thereto. 

    Subd. 2.    Not eligible.  A claimant shall not be 
 eligible to receive benefits for any week: 

    (1) unless it occurs subsequent to the establishment of a 
 reemployment insurance account; 

    (2) which occurs in a period when the claimant is a 
 full-time student in attendance at, or on vacation from an 
 established school, college, or university unless a majority of 
 the claimant's wages paid during the 52 weeks preceding the 
 establishment of a reemployment insurance account were for 
 services performed during weeks that the claimant was attending 
 school as a full-time student; 

    (3) in which the claimant is incarcerated.  The claimant's 
 weekly benefit amount shall be reduced by one-fifth for each day 
 the claimant is incarcerated; 

    (4) in which the claimant is on a voluntary leave of 
 absence; 

    (5) in which the claimant is performing services on a 
 full-time basis, in covered employment, noncovered employment, 
 self-employment, or volunteer work regardless of the amount of 
 any earnings; or 

    (6) with respect to which the claimant is receiving, has 
 received, or has filed a claim for reemployment insurance 
 benefits under any law of any other state, or the federal 
 government, but not including any federal or state benefits that 
 are merely supplementary to those provided for under this 
 chapter; provided that if the appropriate agency finally 
 determines that the claimant is not entitled to the benefits, 
 this clause shall not apply. 

    Subd. 2a.    Suspension from employment.  (a) A claimant 
 who has been suspended from employment for 30 calendar days or 
 less, as a result of misconduct as defined under section 268.09, 
 subdivision 12, shall be ineligible for benefits commencing the 
 Sunday of the week in which the claimant was suspended and 
 continuing for the duration of the suspension. 

    (b) A suspension from employment for more than 30 calendar 
 days shall be considered a discharge from employment under 
 section 268.09, subdivision 11. 

    Subd. 3.    Deductible payments.  A claimant shall not 
 be eligible to receive benefits for any week with respect to 
 which the claimant is receiving, has received, or has filed a 
 claim for payment in an amount equal to or in excess of the 
 claimant's weekly benefit amount in the form of: 

    (1) termination, severance, or dismissal payment or wages 
 in lieu of notice whether legally required or not.  This clause 
 shall apply to the first four weeks of payment and to one-half 
 of the total number of any additional weeks of payment.  This 
 clause shall be applied to the period immediately following the 
 last day of employment.  The number of weeks of payment shall be 
 determined as follows: 

    (i) if the payments are made periodically, the total of the 
 payments to be received shall be divided by the claimant's last 
 level of regular weekly pay from the employer; or 

    (ii) if the payment is made in a lump sum, that sum shall 
 be divided by the claimant's last level of regular weekly pay 
 from the employer; 

    (2) vacation allowance paid directly by the employer for a 
 period of requested vacation, including vacation periods 
 assigned by the employer under a collective bargaining 
 agreement, or uniform vacation shutdown; or 

    (3) compensation for loss of wages under the workers' 
 compensation law of this state or any other state or under a 
 similar law of the United States, or under other insurance or 
 fund established and paid for by the employer; or 

    (4) 50 percent of the pension payments from any fund, 
 annuity or insurance maintained or contributed to by a base 
 period employer including the armed forces of the United States 
 if the claimant contributed to the fund, annuity or insurance 
 and all of the pension payments if the claimant did not 
 contribute to the fund, annuity or insurance; or 

    (5) 50 percent of a primary insurance benefit under title 
 II of the Social Security Act, as amended, or similar benefits 
 under any act of Congress or this state or any other state. 

    Provided, that if the payment is less than the claimant's 
 weekly benefit amount, the claimant shall be entitled to receive 
 for that week, if otherwise eligible, benefits reduced by the 
 amount of the payment; provided, further, that if the 
 appropriate agency of this state or any other state or the 
 federal government finally determines that the claimant is not 
 entitled to payments, this subdivision shall not apply.  If the 
 computation of reduced benefits is not a whole dollar, it shall 
 be rounded down to the next lower dollar. 

    Subd. 3a.    Deductible earnings.  (a) If the claimant 
 has earnings, including holiday pay, with respect to any week, 
 from covered employment, noncovered employment, self-employment, 
 or volunteer work, equal to or in excess of the claimant's 
 weekly benefit amount, the claimant shall be ineligible for 
 benefits for that week. 

    (b) If the claimant has earnings, including holiday pay, 
 with respect to any week, from covered employment, noncovered 
 employment, self-employment, or volunteer work, that is less 
 than the claimant's weekly benefit amount, the following shall 
 be deducted from the claimant's weekly benefit amount: 

    (1) that amount in excess of $50 if the claimant's earnings 
 were $200 or less, and that amount in excess of 25 percent of 
 the claimant's earnings if those earnings were more than $200; 
 and 

    (2) that amount in excess of $200 for earnings from service 
 in the National Guard or a United States military reserve unit. 

    The resulting benefit, if not a whole dollar, shall be 
 rounded to the next lower dollar. 

    (c) No deduction shall be made from a claimant's weekly 
 benefit amount for earnings from service as a volunteer 
 firefighter or volunteer ambulance service personnel.  No 
 deduction shall be made for jury duty pay. 

    Subd. 3b.    Receipt of back pay.  Back pay received by 
 a claimant with respect to any weeks occurring in the 104 weeks 
 immediately preceding the payment of the back pay shall be 
 deducted from benefits paid for those weeks.  

    The amount deducted shall not reduce the benefits that the 
 claimant is otherwise eligible for that week below zero.  If the 
 amount of benefits after the deduction of back pay is not a 
 whole dollar amount, it shall be rounded to the next lower 
 dollar.  

    If the back pay awarded the claimant is reduced by benefits 
 paid, the amounts withheld shall be:  (a) paid by the employer 
 into the fund within 30 days of the award and are subject to the 
 same collection procedures that apply to past due contributions 
 under this chapter; (b) applied to benefit overpayments 
 resulting from the payment of the back pay; (c) credited to the 
 claimant's maximum amount of benefits payable in a benefit year 
 that includes the weeks for which back pay was deducted.  
 Benefit charges for those weeks shall be removed from the 
 employer's account as of the calendar quarter in which the fund 
 receives payment.  

    Payments to the fund under this subdivision shall be 
 considered as made by the claimant.  

    Subd. 4.    Social security amount deducted from benefits. 
  Any claimant aged 62 or over who has not established a 
 reemployment insurance account based on employment subsequent to 
 the first receipt of primary insurance benefits under Title II 
 of the federal social security act, as amended, or similar old 
 age benefits under any act of Congress or this state or any 
 other state shall be required to state in writing at the time of 
 establishing a reemployment insurance account whether the 
 claimant intends to seek Title II social security benefits for 
 any week during which the claimant will receive unemployment 
 benefits, and if the claimant so intends there shall be withheld 
 from the claimant's weekly unemployment benefits an amount 
 sufficient to cover the weekly equivalent of the social security 
 benefit.  Any claimant disclaiming such intention but who 
 nevertheless receives such social security benefits for weeks 
 for which the claimant previously received unemployment benefits 
 shall be liable for repayment of such unemployment benefits and 
 otherwise subject to the provisions of section 268.18. 

    Subd. 5.  Repealed, 1977 c 297 s 22 

    Subd. 5a.    Self-employment.  (a) A claimant who is 
 determined to be likely to exhaust regular reemployment 
 insurance benefits and is enrolled in a dislocated worker 
 program shall be considered in approved training for purposes of 
 this chapter for each week the claimant is engaged on a 
 full-time basis in activities, including training, relating to 
 the establishment of a business and becoming self-employed.  A 
 claimant who meets the requirements of this subdivision shall be 
 considered unemployed for purposes of this chapter.  Income 
 earned from the self-employment activity shall not be considered 
 for purposes of subdivision 3a.  Under no circumstances shall 
 more than five percent of the number of claimants receiving 
 regular reemployment insurance benefits be actively enrolled in 
 this program at any time.  This subdivision shall not apply to 
 claimants claiming state or federal extended or additional 
 benefits. 

    (b) This subdivision shall apply to weeks beginning after 
 April 18, 1995, or weeks beginning after approval of this 
 subdivision by the United States Department of Labor whichever 
 date is later.  This subdivision shall have no force or effect 
 for any purpose as of the end of the week preceding the date 
 when federal law no longer authorizes the provisions of this 
 subdivision, unless such date is a Saturday in which case this 
 subdivision shall have no force and effect for any purpose as of 
 that date. 

    Subd. 6.    Services performed for state, municipalities, 
 or charitable corporation.  Benefits based on service in 
 employment defined in section 268.04, subdivision 12, clauses 
 (7), (8) and (9), are payable in the same amount, on the same 
 terms and subject to the same conditions as benefits payable on 
 the basis of other service subject to this chapter; except that: 

    (a) Benefits based upon service performed in an 
 instructional, research, or principal administrative capacity 
 for an educational institution, shall not be paid for any week 
 of unemployment commencing during the period between two 
 successive academic years or terms, or during a similar period 
 between two regular but not successive terms, or during a period 
 of paid sabbatical leave provided for in the claimant's 
 contract, to any claimant if the claimant performs the services 
 in the first of the academic years or terms and if there is a 
 contract or a reasonable assurance that the claimant will 
 perform services in any such capacity for an educational 
 institution in the second of the academic years or terms; 

    (b) With respect to employment in any capacity other than 
 those described in paragraph (a), including educational 
 assistants, benefits shall not be paid based upon wage credits 
 earned with any educational institution for any week which 
 commences during a period between two successive academic years 
 or terms if the claimant was employed in the first academic year 
 or term by any educational institution and there is reasonable 
 assurance that the claimant will be employed under similar terms 
 and conditions by any educational institution in the second 
 academic year or term.  A claimant who has an agreement for a 
 definite period of employment between academic years or terms 
 shall be eligible for any weeks within that period the 
 educational institution fails to provide employment.  If 
 benefits are denied to any claimant under this paragraph and the 
 claimant was not offered an opportunity to perform the 
 employment in the second of the academic years or term, the 
 claimant shall be entitled to a retroactive payment of benefits 
 for each week in which the claimant filed a timely continued 
 claim for benefits, but the continued claim was denied solely 
 because of this paragraph; 

    (c) With respect to services described in paragraph (a) or 
 (b), benefits payable on the basis of the services shall not be 
 paid to any claimant for any week which commences during an 
 established and customary vacation period or holiday recess if 
 the claimant performs the services in the period immediately 
 before the vacation period or holiday recess, and there is a 
 reasonable assurance that the claimant will perform the services 
 in the period immediately following the vacation period or 
 holiday recess; 

    (d) With respect to services described in paragraph (a) or 
 (b), benefits shall not be payable on the basis of services in 
 any capacity specified in paragraphs (a), (b), and (c) to any 
 claimant who performed those services in an educational 
 institution while in the employ of an educational service 
 agency.  For purposes of this paragraph, "educational service 
 agency" means a governmental agency or governmental entity which 
 is established and operated exclusively for the purpose of 
 providing services to one or more educational institutions; and 

    (e) With respect to services to state and local government, 
 or nonprofit organizations covered by section 501(c)(3) of the 
 Internal Revenue Code of 1986, as amended through December 31, 
 1992, if services are provided to or on behalf of an educational 
 institution, benefits must be denied under the same 
 circumstances as described in paragraphs (a) to (d). 

    Subd. 7.    Professional athletes.  Benefits shall not 
 be paid to a claimant on the basis of any service substantially 
 all of which consist of participating in sports or athletic 
 events or training or preparing to so participate for any week 
 which commences during the period between two successive sport 
 seasons (or similar periods) if the claimant performed such 
 service in the first of such seasons (or similar period) and 
 there is a reasonable assurance that the claimant will perform 
 such service in the later of such seasons (or similar periods). 

    Subd. 8.    Illegal aliens.  (a) Benefits shall not be 
 paid on the basis of services performed by an alien unless such 
 alien is a claimant who was lawfully admitted for permanent 
 residence at the time such services were performed, was lawfully 
 present for the purposes of performing such services, or was 
 permanently residing in the United States under color of law at 
 the time such services were performed (including an alien who 
 was lawfully present in the United States as a result of the 
 application of the provision of section 203(a)(7) or section 
 212(d)(5) of the Immigration and Nationality Act). 

    (b) Any data or information required of claimants applying 
 for benefits to determine whether benefits are not payable to 
 them because of their alien status shall be uniformly required 
 from all applicants for benefits. 

    (c) In the case of a claimant whose application for 
 benefits would otherwise be approved, no determination that 
 benefits to such claimant are not payable because of alien 
 status shall be made except upon a preponderance of the evidence.

    Subd. 9.    Services for certain contractors.  Benefits 
 based upon services performed for an employer are subject to 
 subdivision 6, paragraphs (b) and (c) if:  

    (a) the employment was provided pursuant to a contract 
 between the employer and a public or private school; 

    (b) the contract was for services which the public or 
 private school could have had performed by its employees; 

    (c) the employment was not as defined in section 268.04, 
 subdivision 12, clauses (7), (8), and (9); and 

    (d) the claimant was notified in writing of the provisions 
 of this subdivision while employed in 1983 or prior to or at the 
 time of commencing the employment.  

    Subd. 10.    Seasonal employment.  (a) If a claimant has 
 wage credits from seasonal employment, benefits shall be payable 
 only if the claimant can establish a reemployment insurance 
 account under section 268.07, subdivision 2, excluding the wage 
 credits from seasonal employment.  For purposes of this 
 subdivision, "seasonal employment" means employment with a 
 single employer in the recreation or tourist industry that is 
 available with the employer for 15 consecutive weeks or less 
 each calendar year. 

    (b) Wage credits from seasonal employment may not be used 
 for benefit purposes during weeks outside the normal season. 

    Subd. 11.    Business owners.  Wages paid by an 
 employing unit may not be used for benefit purposes by any 
 claimant who:  

    (1) individually, jointly, or in combination with the 
 claimant's spouse, parent, or child owns or controls directly or 
 indirectly 25 percent or more interest in the employing unit, or 
 is the spouse, parent, or minor child of any individual who owns 
 or controls directly or indirectly 25 percent or more interest 
 in the employing unit; and 

    (2) is not permanently separated from employment. 

    This subdivision is effective when the claimant has been 
 paid four times the claimant's weekly benefit amount in the 
 current benefit year. 

    HIST: (4337-26) Ex1936 c 2 s 6; 1937 c 43 s 2; 1937 c 306 s 4; 
 1939 c 443 s 5; 1941 c 554 s 5; 1943 c 650 s 4; 1945 c 376 s 5; 
 1949 c 605 s 9; 1953 c 97 s 9; 1953 c 699 s 10; 1965 c 741 s 
 14-16; 1969 c 6 s 34; 1971 c 942 s 9,10; 1973 c 599 s 6-8; 1975 
 c 104 s 2; 1975 c 336 s 13-15; 1975 c 359 s 23; 1976 c 163 s 59; 
 1976 c 271 s 78; 1977 c 4 s 7; 1977 c 297 s 15-18; 1978 c 612 s 
 1; 1979 c 24 s 1; 1979 c 181 s 9,10,19; 1980 c 508 s 8; 1Sp1982 
 c 1 s 23-25; 1983 c 290 s 168; 1983 c 372 s 20-24; 1985 c 248 s 
 44; 1986 c 444; 1987 c 362 s 18; 1987 c 384 art 1 s 55; 1987 c 
 385 s 20-22; 1989 c 209 art 2 s 1; 1989 c 282 art 2 s 169; 1990 
 c 516 s 4; 1991 c 265 art 11 s 22; 1992 c 484 s 10; 1993 c 67 s 
 3,4; 1994 c 488 s 2,3,8; 1995 c 54 s 8,9; 1995 c 231 art 1 s 32; 
 1996 c 417 s 18,31; 1997 c 66 s 36-42