2001 Minnesota Statutes

     268.085 Eligibility requirements. 

    Subdivision 1.    Eligibility conditions.  An applicant 
 shall be eligible to receive unemployment benefits for any week 
 if: 

    (1) the applicant has an active benefit account and has 
 filed a continued request for unemployment benefits for that 
 week pursuant to section 268.086; 

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

    This clause shall not apply to an applicant who is in 
 reemployment assistance training. 

    This clause shall not apply each day the applicant is on 
 jury duty; 

    (3) the applicant has served a waiting period of one week 
 that the applicant is otherwise entitled to some amount of 
 unemployment benefits.  This clause shall not apply if the 
 applicant would have been entitled to federal disaster 
 unemployment assistance because of a disaster in Minnesota, but 
 for the applicant's establishment of a benefit account under 
 section 268.07; and 

    (4) the applicant has been participating in reemployment 
 assistance services, such as job search and resume writing 
 classes, if the applicant has been determined in need of 
 reemployment assistance services by the commissioner, unless 
 there is good cause for the applicant's failure to participate. 

    Subd. 2.    Not eligible.  An applicant shall not be 
 eligible to receive unemployment benefits for any week: 

    (1) that occurs before the effective date of a benefit 
 account; 

    (2) that occurs in a period when the applicant is a student 
 in attendance at, or on vacation from a secondary school 
 including the period between academic years or terms; 

    (3) that the applicant is incarcerated or performing court 
 ordered community service.  The applicant's weekly unemployment 
 benefit amount shall be reduced by one-fifth for each day the 
 applicant is incarcerated or performing court ordered community 
 service; 

    (4) that the applicant fails or refuses to provide 
 information on an issue of eligibility required under section 
 268.101, subdivision 1, paragraph (a), or an issue of 
 disqualification required under section 268.101, subdivision 1, 
 paragraph (d); 

    (5) that the applicant is performing services 32 hours or 
 more, in employment, covered employment, noncovered employment, 
 or self-employment regardless of the amount of any earnings; or 

    (6) with respect to which the applicant is receiving, has 
 received, or has filed an application for unemployment benefits 
 under any federal law or the law of any other state.  If the 
 appropriate agency finally determines that the applicant is not 
 entitled to the unemployment benefits, this clause shall not 
 apply. 

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

    (1) severance pay, bonus pay, vacation pay, sick pay, and 
 any other money payments, except earnings under subdivision 5, 
 and back pay under subdivision 6, paid by an employer because 
 of, upon, or after separation from employment that are 
 considered wages under section 268.035, subdivision 29, or 
 United States Code, title 26, section 3121, clause (2) of the 
 Federal Insurance Contribution Act.  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 applicant'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 applicant's last level of regular weekly pay 
 from the employer.  This clause shall not apply to vacation pay 
 paid by an employer upon permanent separation from employment; 

    (2) pension, retirement, or annuity payments from any plan 
 contributed to by a base period employer including the United 
 States government, except social security benefits which are 
 provided for in subdivision 4.  The base period employer 
 contributed to the plan if the contribution is excluded from the 
 definition of wages under section 268.035, subdivision 29, 
 clause (1), or United States Code, title 26, section 3121, 
 clause (2), of the Federal Insurance Contribution Act. 

    If the applicant receives a lump sum pension payment, that 
 sum shall be divided by the applicant's last level of regular 
 weekly pay to determine the number of weeks of payment.  The 
 number of weeks of payment shall be applied to the period 
 immediately following the last day of employment.  An applicant 
 shall not be considered to have received the lump sum payment if 
 the applicant immediately deposits that payment in a qualified 
 pension plan or account; or 

    (3) holiday pay. 

    (b) If the deductible payment is less than the applicant's 
 weekly unemployment benefit amount, unemployment benefits shall 
 be reduced by the amount of the payment.  If the computation of 
 reduced unemployment benefits is not a whole dollar, it shall be 
 rounded down to the next lowest dollar. 

    Subd. 3a.    Workers' compensation and disability 
 insurance offset.  (a) An applicant is not eligible to receive 
 unemployment benefits for any week in which the applicant is 
 receiving or has received compensation for loss of wages equal 
 to or in excess of the applicant's weekly unemployment benefit 
 amount under: 

    (1) the workers' compensation law of this state; 

    (2) the workers' compensation law of any other state or 
 similar federal law; or 

    (3) any insurance or fund paid in whole or in part by an 
 employer. 

    (b) This subdivision shall not apply to an applicant who 
 has a claim pending for loss of wages under paragraph (a); 
 however, before unemployment benefits may be paid when a claim 
 is pending, the issue of the applicant being able to work, as 
 required under subdivision 1, clause (2), shall be determined 
 under section 268.101, subdivision 3.  If the applicant later 
 receives compensation as a result of the pending claim, the 
 applicant is subject to the provisions of paragraph (a) and the 
 unemployment benefits paid shall be subject to recoupment by the 
 commissioner to the extent that the compensation constitutes 
 overpaid unemployment benefits.  

    (c) If the amount of compensation described under paragraph 
 (a) for any week is less than the applicant's weekly 
 unemployment benefit amount, unemployment benefits requested for 
 that week shall be reduced by the amount of that compensation 
 payment. 

    Subd. 4.    Social security benefits.  (a) Any applicant 
 aged 62 or over shall be required to state when filing an 
 application for unemployment benefits and when filing continued 
 requests for unemployment benefits whether the applicant is 
 receiving, has filed for, or intends to file for, primary social 
 security old age or disability benefits for any week during the 
 benefit year. 

    (b) There shall be deducted from an applicant's weekly 
 unemployment benefit amount 50 percent of the weekly equivalent 
 of the primary social security old age or disability benefit the 
 applicant has received, has filed for, or intends to file for, 
 with respect to that week. 

    (c) Regardless of paragraph (b), an applicant shall be 
 ineligible for unemployment benefits for any week with respect 
 to which the applicant is receiving, has received, or has filed 
 for primary social security disability benefits. 

 This paragraph shall not apply if the Social Security 
 Administration approved the collecting of primary social 
 security disability benefits each month the applicant was 
 employed during the base period.  

    (d) Information from the Social Security Administration 
 shall be considered conclusive, absent specific evidence showing 
 that the information was erroneous. 

    (e) Any applicant who receives primary social security old 
 age or disability benefits for periods that the applicant has 
 been paid unemployment benefits shall be considered overpaid 
 those unemployment benefits under section 268.18, subdivision 1. 

    Subd. 5.    Deductible earnings.  (a) If the applicant 
 has earnings with respect to any week, from employment, covered 
 employment, noncovered employment, self-employment, or volunteer 
 work, equal to or in excess of the applicant's weekly 
 unemployment benefit amount, the applicant shall be ineligible 
 for unemployment benefits for that week. 

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

    (1) 25 percent of earnings or $50, whichever is higher; and 

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

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

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

    (d) The applicant may report deductible earnings on 
 continued requests for unemployment benefits at the nearest 
 whole dollar amount. 

    (e) Earnings shall not include any money considered a 
 deductible payment under subdivision 3, but shall include all 
 other money considered wages and any other money considered 
 earned income under state and federal law for income tax 
 purposes. 

    Subd. 6.    Receipt of back pay.  (a) Back pay received 
 by an applicant with respect to any week occurring in the 104 
 weeks prior to the payment of the back pay shall be deducted 
 from unemployment benefits paid for that week. 

    If an arbitration award, administrative or judicial 
 decision, or negotiated settlement that provides for back pay 
 does not specify the period with respect to which it is paid, 
 the back pay shall be applied to the period immediately 
 following the last day of employment. 

    (b) If the back pay is reduced by the amount of 
 unemployment benefits that have been paid, the amount of back 
 pay withheld shall be: 

    (1) paid by the employer to the fund within 30 calendar 
 days and subject to the same collection procedures that apply to 
 past due taxes; 

    (2) applied to unemployment benefit overpayments resulting 
 from the payment of the back pay; and 

    (3) credited to the maximum amount of unemployment benefits 
 available to the applicant in a benefit year that includes the 
 weeks for which back pay was deducted. 

    (c) Unemployment benefits paid the applicant shall be 
 removed from the computation of the tax rate for taxpaying 
 employers and removed from the reimbursable account for 
 nonprofit and government employers that have elected to be 
 liable for payments in lieu of taxes in the calendar quarter the 
 fund receives payment.  

    (d) Payments to the fund under this subdivision shall be 
 considered as made by the applicant.  

    Subd. 7.    School employees.  (a) No wage credits in 
 any amount from any employment with any educational institution 
 or institutions earned in any capacity may be used for 
 unemployment benefit purposes for any week during the period 
 between two successive academic years or terms if: 

    (1) the applicant had employment for any educational 
 institution or institutions in the prior academic year or term; 
 and 

    (2) there is a reasonable assurance that the applicant will 
 have employment for any educational institution or institutions 
 in the following academic year or term, unless that subsequent 
 employment is substantially less favorable than the employment 
 of the prior academic year or term.  

    (b) Paragraph (a) shall not apply to an applicant who, at 
 the end of the prior academic year or term, had an agreement for 
 a definite period of employment between academic years or terms 
 in other than an instructional, research, or principal 
 administrative capacity and the educational institution or 
 institutions failed to provide that employment.  

    (c) If unemployment benefits are denied to any applicant 
 under paragraph (a) who was employed in the prior academic year 
 or term in other than an instructional, research, or principal 
 administrative capacity and who was not offered an opportunity 
 to perform the employment in the following academic year or 
 term, the applicant shall be entitled to retroactive 
 unemployment benefits for each week during the period between 
 academic years or terms that the applicant filed a timely 
 continued request for unemployment benefits, but unemployment 
 benefits were denied solely because of paragraph (a).  

    (d) An educational assistant shall not be considered to be 
 in an instructional, research, or principal administrative 
 capacity. 

    (e) Paragraph (a) shall apply to any vacation period or 
 holiday recess if the applicant was employed immediately before 
 the vacation period or holiday recess, and there is a reasonable 
 assurance that the applicant will be employed immediately 
 following the vacation period or holiday recess.  

    (f) This subdivision shall apply to employment with an 
 educational service agency if the applicant performed the 
 services at an educational institution or institutions.  
 "Educational service agency" means a governmental agency or 
 entity established and operated exclusively for the purpose of 
 providing services to one or more educational institutions.  
 This subdivision shall also apply to employment with Minnesota 
 or a political subdivision, or a nonprofit organization, if the 
 services are provided to or on behalf of an educational 
 institution or institutions. 

    (g) Paragraphs (a) and (e) shall apply beginning the Sunday 
 of the week that there is a reasonable assurance of employment. 

    (h) Employment with multiple education institutions shall 
 be aggregated for purposes of application of this subdivision. 

    (i) If all of the applicant's employment with any 
 educational institution or institutions during the prior 
 academic year or term consisted of on-call employment, and the 
 applicant has a reasonable assurance of any on-call employment 
 with any educational institution or institutions for the 
 following academic year or term, it shall not be considered 
 substantially less favorable employment. 

    (j) Paragraph (a) shall also apply to the period between 
 two regular but not successive terms. 

    (k) A "reasonable assurance" may be written, oral, implied, 
 or established by custom or practice. 

    (l) An "educational institution" is an educational entity 
 operated by Minnesota or a political subdivision or an 
 instrumentality thereof, or an educational organization 
 described in United States Code, title 26, section 501(c)(3) of 
 the federal Internal Revenue Code, and exempt from income tax 
 under section 501(a).  

    Subd. 8.    Services for school contractors.  Wage 
 credits from an employer are subject to subdivision 7, if:  

    (1) the employment was provided pursuant to a contract 
 between the employer and an elementary or secondary school; and 

    (2) the contract was for services that the elementary or 
 secondary school could have had performed by its employees.  

    Subd. 9.    Business owners.  Wage credits from an 
 employer may not be used for unemployment benefit purposes by 
 any applicant who:  

    (1) individually, jointly, or in combination with the 
 applicant's spouse, parent, or child owns or controls directly 
 or indirectly 25 percent or more interest in the employer, 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 employer; and 

    (2) is not permanently separated from employment. 

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

    Subd. 10.    Recreational or tourist industry employment. 
  (a) If an applicant has wage credits from recreational or 
 tourist industry employment, unemployment benefits shall be 
 available only if the applicant can establish a benefit account 
 under section 268.07, subdivision 2, excluding the wage credits 
 from recreational or tourist industry employment.  This 
 subdivision applies only to employment that is available with 
 the employer for 15 consecutive weeks or less each calendar year.

    (b) Wage credits from recreational or tourist industry 
 employment may not be used for unemployment benefit purposes 
 during weeks outside the normal employment season. 

    Subd. 11.    Athletes and coaches.  Unemployment 
 benefits shall not be paid to an applicant on the basis of any 
 wage credits from employment that consists of coaching or 
 participating in sports or athletic events or training or 
 preparing to participate for any week during the period between 
 two successive sport seasons, or similar periods, if: 

    (1) the applicant was so employed in the prior season or 
 similar period, and 

    (2) there is a reasonable assurance that the applicant will 
 be so employed in the following season or similar period. 

    Subd. 12.    Aliens.  (a) An alien shall be ineligible 
 for unemployment benefits for any week the alien is not 
 authorized to work in the United States under federal law.  
 Information from the Immigration and Naturalization Service 
 shall be considered conclusive, absent specific evidence that 
 the information was erroneous. 

    (b) Unemployment benefits shall not be paid on the basis of 
 wage credits earned by an alien unless the alien (1) was 
 lawfully admitted for permanent residence at the time of the 
 employment, (2) was lawfully present for the purposes of the 
 employment, or (3) was permanently residing in the United States 
 under color of law at the time of the employment. 

    (c) Any information required of applicants applying for 
 unemployment benefits to determine eligibility because of their 
 alien status shall be required from all applicants. 

    Subd. 13.    Suspension from employment.  (a) An 
 applicant who has been suspended from employment without pay for 
 30 calendar days or less, as a result of employment misconduct 
 as defined under section 268.095, subdivision 6, shall be 
 ineligible for unemployment benefits beginning the Sunday of the 
 week that the applicant was suspended and continuing for the 
 duration of the suspension. 

    (b) A suspension from employment without pay for more than 
 30 calendar days shall be considered a discharge from employment 
 under section 268.095, subdivision 5. 

    (c) A suspension from employment with pay, regardless of 
 duration, shall not be considered a separation from employment 
 and the applicant shall be ineligible for unemployment benefits 
 for the duration of the suspension with pay. 

    Subd. 13a.    Leave of absence.  (a) An applicant on a 
 voluntary leave of absence shall be ineligible for benefits for 
 the duration of the leave of absence. 

    A leave of absence is voluntary when work that the 
 applicant can then perform is available with the applicant's 
 employer but the applicant chooses not to work. 

    (b) A period of vacation requested by the applicant, paid 
 or unpaid, shall be considered a voluntary leave of absence.  A 
 vacation period assigned by an employer under:  (1) a uniform 
 vacation shutdown; (2) a collective bargaining agreement; or (3) 
 an established employer policy, shall not be considered a 
 voluntary leave of absence. 

    (c) A leave of absence shall not be considered a quit or a 
 discharge from employment for purposes of section 268.095. 

    (d) An applicant who is on a paid leave of absence, whether 
 the leave of absence is voluntary or involuntary, shall be 
 ineligible for benefits for the duration of the leave. 

    (e) This subdivision shall apply to a leave of absence from 
 a base period employer, an employer during the period between 
 the end of the base period and the effective date of the benefit 
 account, or an employer during the benefit year. 

    Subd. 14.    Able to work defined.  "Able to work" means 
 an applicant has the physical and mental ability to perform the 
 usual duties of the applicant's usual occupation or of 
 comparable employment. 

    Subd. 15.    Available for suitable employment defined.  
 (a) "Available for suitable employment" means an applicant is 
 ready and willing to accept suitable employment in the labor 
 market area.  The attachment to the work force must be genuine.  
 An applicant may restrict availability to suitable employment, 
 but there must be no other restrictions, either self-imposed or 
 created by circumstances, temporary or permanent, that prevent 
 accepting suitable employment. 

    (b) To be considered "available for suitable employment," a 
 student must be willing to quit school to accept suitable 
 employment. 

    (c) An applicant who is absent from the labor market area 
 for personal reasons, other than to search for work, is not 
 "available for suitable employment." 

    (d) An applicant who has restrictions on the hours of the 
 day or days of the week that the applicant can or will work, 
 that are not normal for the applicant's usual occupation or 
 other suitable employment, is not "available for suitable 
 employment."  An applicant must be available for daytime 
 employment, if suitable employment is performed during the 
 daytime, even though the applicant previously worked the night 
 shift. 

    (e) An applicant must have transportation throughout the 
 labor market area to be considered "available for suitable 
 employment." 

    Subd. 16.    Actively seeking suitable employment defined. 
  (a) "Actively seeking suitable employment" means those 
 reasonable, diligent efforts an individual in similar 
 circumstances would make if genuinely interested in obtaining 
 suitable employment under the existing conditions in the labor 
 market area.  Limiting the search to positions that are not 
 available or are above the applicant's training, experience, and 
 qualifications is not "actively seeking suitable employment." 

    (b) To be considered "actively seeking suitable employment" 
 an applicant shall, when reasonable, contact those employers 
 from whom the applicant was laid off due to lack of work and 
 request suitable employment. 

    (c) If reasonable prospects of suitable employment in the 
 applicant's usual or customary occupation do not exist, the 
 applicant must actively seek other suitable employment to be 
 considered "actively seeking suitable employment."  This applies 
 to an applicant who is seasonally unemployed.  

    (d) An applicant who is seeking employment only through a 
 union is not actively seeking suitable employment unless the 
 applicant is in an occupation where it is required by union rule 
 that all the hiring in that locality is done through the union.  
 The applicant must be a union member in good standing, 
 registered with the union for employment, and in compliance with 
 other union rules to be considered "actively seeking suitable 
 employment." 

    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; 1998 c 265 s 24,45; 1999 
 c 107 s 42,66; 2000 c 343 s 4; 2000 c 488 art 2 s 17;; 2001 c 
 175 s 27-35,52