288.040. Eligibility for benefits--exceptions--report, contents. - Missouri Statutes

Eligibility for benefits--exceptions--report, contents.

288.040. 1. A claimant who is unemployed and has been determined tobe an insured worker shall be eligible for benefits for any week only ifthe deputy finds that:

(1) The claimant has registered for work at and thereafter hascontinued to report at an employment office in accordance with suchregulations as the division may prescribe;

(2) The claimant is able to work and is available for work. Noperson shall be deemed available for work unless such person has been andis actively and earnestly seeking work. Upon the filing of an initial orrenewed claim, and prior to the filing of each weekly claim thereafter, thedeputy shall notify each claimant of the number of work search contactsrequired to constitute an active search for work. No person shall beconsidered not available for work, pursuant to this subdivision, solelybecause he or she is a substitute teacher or is on jury duty. A claimantshall not be determined to be ineligible pursuant to this subdivisionbecause of not actively and earnestly seeking work if:

(a) The claimant is participating in training approved pursuant toSection 236 of the Trade Act of 1974, as amended, (19 U.S.C.A. Sec. 2296,as amended);

(b) The claimant is temporarily unemployed through no fault of his orher own and has a definite recall date within eight weeks of his or herfirst day of unemployment; however, upon application of the employerresponsible for the claimant's unemployment, such eight-week period may beextended not to exceed a total of sixteen weeks at the discretion of thedirector;

(3) The claimant has reported in person to an office of the divisionas directed by the deputy, but at least once every four weeks, except thata claimant shall be exempted from the reporting requirement of thissubdivision if:

(a) The claimant is claiming benefits in accordance with divisionregulations dealing with partial or temporary total unemployment; or

(b) The claimant is temporarily unemployed through no fault of his orher own and has a definite recall date within eight weeks of his or herfirst day of unemployment; or

(c) The claimant resides in a county with an unemployment rate, aspublished by the division, of ten percent or more and in which the countyseat is more than forty miles from the nearest division office;

(d) The director of the division of employment security hasdetermined that the claimant belongs to a group or class of workers whoseopportunities for reemployment will not be enhanced by reporting in person,or is prevented from reporting due to emergency conditions that limitaccess by the general public to an office that serves the area where theclaimant resides, but only during the time such circumstances exist.

Ineligibility pursuant to this subdivision shall begin on the first day ofthe week which the claimant was scheduled to claim and shall end on thelast day of the week preceding the week during which the claimant doesreport in person to the division's office;

(4) Prior to the first week of a period of total or partialunemployment for which the claimant claims benefits he or she has beentotally or partially unemployed for a waiting period of one week. No morethan one waiting week will be required in any benefit year. Duringcalendar year 2008 and each calendar year thereafter, the one-week waitingperiod shall become compensable once his or her remaining balance on theclaim is equal to or less than the compensable amount for the waitingperiod. No week shall be counted as a week of total or partialunemployment for the purposes of this subsection unless it occurs withinthe benefit year which includes the week with respect to which the claimantclaims benefits;

(5) The claimant has made a claim for benefits within fourteen daysfrom the last day of the week being claimed. The fourteen-day period may,for good cause, be extended to twenty-eight days;

(6) The claimant has reported to an employment office to participatein a reemployment assessment and reemployment services as directed by thedeputy or designated staff of an employment office, unless the deputydetermines that good cause exists for the claimant's failure to participatein such reemployment assessment and reemployment services. For purposes ofthis section, "reemployment services" may include, but not be limited to,the following:

(a) Providing an orientation to employment office services;

(b) Providing job search assistance; and

(c) Providing labor market statistics or analysis;

Ineligibility under this subdivision shall begin on the first day of theweek which the claimant was scheduled to report for the reemploymentassessment or reemployment services and shall end on the last day of theweek preceding the week during which the claimant does report in person tothe employment office for such reemployment assessment or reemploymentservices;

(7) The claimant is participating in reemployment services, such asjob search assistance services, as directed by the deputy if the claimanthas been determined to be likely to exhaust regular benefits and to needreemployment services pursuant to a profiling system established by thedivision, unless the deputy determines that:

(a) The individual has completed such reemployment services; or

(b) There is justifiable cause for the claimant's failure toparticipate in such reemployment services.

2. A claimant shall be ineligible for waiting week credit or benefitsfor any week for which the deputy finds he or she is or has been suspendedby his or her most recent employer for misconduct connected with his or herwork. Suspensions of four weeks or more shall be treated as discharges.

3. (1) Benefits based on "service in employment", defined insubsections 7 and 8 of section 288.034, shall be payable in the sameamount, on the same terms and subject to the same conditions ascompensation payable on the basis of other service subject to this law;except that:

(a) With respect to service performed in an instructional, research,or principal administrative capacity for an educational institution,benefits shall not be paid based on such services for any week ofunemployment commencing during the period between two successive academicyears or terms, or during a similar period between two regular but notsuccessive terms, or during a period of paid sabbatical leave provided forin the individual's contract, to any individual if such individual performssuch services in the first of such academic years (or terms) and if thereis a contract or a reasonable assurance that such individual will performservices in any such capacity for any educational institution in the secondof such academic years or terms;

(b) With respect to services performed in any capacity (other thaninstructional, research, or principal administrative capacity) for aneducational institution, benefits shall not be paid on the basis of suchservices to any individual for any week which commences during a periodbetween two successive academic years or terms if such individual performssuch services in the first of such academic years or terms and there is acontract or a reasonable assurance that such individual will perform suchservices in the second of such academic years or terms;

(c) With respect to services described in paragraphs (a) and (b) ofthis subdivision, benefits shall not be paid on the basis of such servicesto any individual for any week which commences during an established andcustomary vacation period or holiday recess if such individual performedsuch services in the period immediately before such vacation period orholiday recess, and there is reasonable assurance that such individual willperform such services immediately following such vacation period or holidayrecess;

(d) With respect to services described in paragraphs (a) and (b) ofthis subdivision, benefits payable on the basis of services in any suchcapacity shall be denied as specified in paragraphs (a), (b), and (c) ofthis subdivision to any individual who performed such services at aneducational institution while in the employ of an educational serviceagency, and for this purpose the term "educational service agency" means agovernmental agency or governmental entity which is established andoperated exclusively for the purpose of providing such services to one ormore educational institutions.

(2) If compensation is denied for any week pursuant to paragraph (b)or (d) of subdivision (1) of this subsection to any individual performingservices at an educational institution in any capacity (other thaninstructional, research or principal administrative capacity), and suchindividual was not offered an opportunity to perform such services for thesecond of such academic years or terms, such individual shall be entitledto a retroactive payment of the compensation for each week for which theindividual filed a timely claim for compensation and for which compensationwas denied solely by reason of paragraph (b) or (d) of subdivision (1) ofthis subsection.

4. (1) A claimant shall be ineligible for waiting week credit,benefits or shared work benefits for any week for which he or she isreceiving or has received remuneration exceeding his or her weekly benefitamount or shared work benefit amount in the form of:

(a) Compensation for temporary partial disability pursuant to theworkers' compensation law of any state or pursuant to a similar law of theUnited States;

(b) A governmental or other pension, retirement or retired pay,annuity, or other similar periodic payment which is based on the previouswork of such claimant to the extent that such payment is provided fromfunds provided by a base period or chargeable employer pursuant to a planmaintained or contributed to by such employer; but, except for suchpayments made pursuant to the Social Security Act or the RailroadRetirement Act of 1974 (or the corresponding provisions of prior law), theprovisions of this paragraph shall not apply if the services performed forsuch employer by the claimant after the beginning of the base period (orremuneration for such services) do not affect eligibility for or increasethe amount of such pension, retirement or retired pay, annuity or similarpayment.

(2) If the remuneration referred to in this subsection is less thanthe benefits which would otherwise be due, the claimant shall be entitledto receive for such week, if otherwise eligible, benefits reduced by theamount of such remuneration, and, if such benefit is not a multiple of onedollar, such amount shall be lowered to the next multiple of one dollar.

(3) Notwithstanding the provisions of subdivisions (1) and (2) ofthis subsection, if a claimant has contributed in any way to the SocialSecurity Act or the Railroad Retirement Act of 1974, or the correspondingprovisions of prior law, no part of the payments received pursuant to suchfederal law shall be deductible from the amount of benefits receivedpursuant to this chapter.

5. A claimant shall be ineligible for waiting week credit or benefitsfor any week for which or a part of which he or she has received or isseeking unemployment benefits pursuant to an unemployment insurance law ofanother state or the United States; provided, that if it be finallydetermined that the claimant is not entitled to such unemployment benefits,such ineligibility shall not apply.

6. (1) A claimant shall be ineligible for waiting week credit orbenefits for any week for which the deputy finds that such claimant's totalor partial unemployment is due to a stoppage of work which exists becauseof a labor dispute in the factory, establishment or other premises in whichsuch claimant is or was last employed. In the event the claimant securesother employment from which he or she is separated during the existence ofthe labor dispute, the claimant must have obtained bona fide employment asa permanent employee for at least the major part of each of two weeks insuch subsequent employment to terminate his or her ineligibility. If, inany case, separate branches of work which are commonly conducted asseparate businesses at separate premises are conducted in separatedepartments of the same premises, each such department shall for thepurposes of this subsection be deemed to be a separate factory,establishment or other premises. This subsection shall not apply if it isshown to the satisfaction of the deputy that:

(a) The claimant is not participating in or financing or directlyinterested in the labor dispute which caused the stoppage of work; and

(b) The claimant does not belong to a grade or class of workers ofwhich, immediately preceding the commencement of the stoppage, there weremembers employed at the premises at which the stoppage occurs, any of whomare participating in or financing or directly interested in the dispute.

(2) "Stoppage of work" as used in this subsection means a substantialdiminution of the activities, production or services at the establishment,plant, factory or premises of the employing unit. This definition shallnot apply to a strike where the employees in the bargaining unit whoinitiated the strike are participating in the strike. Such employees shallnot be eligible for waiting week credit or benefits during the period whenthe strike is in effect, regardless of diminution, unless the employer hasbeen found guilty of an unfair labor practice by the National LaborRelations Board or a federal court of law for an act or actions precedingor during the strike.

7. On or after January 1, 1978, benefits shall not be paid to anyindividual on the basis of any services, substantially all of which consistof participating in sports or athletic events or training or preparing toso participate, for any week which commences during the period between twosuccessive sport seasons (or similar periods) if such individual performedsuch services in the first of such seasons (or similar periods) and thereis a reasonable assurance that such individual will perform such servicesin the later of such seasons (or similar periods).

8. Benefits shall not be payable on the basis of services performedby an alien, unless such alien is an individual who was lawfully admittedfor permanent residence at the time such services were performed, waslawfully present for purposes of performing such services, or waspermanently residing in the United States under color of law at the timesuch services were performed (including an alien who was lawfully presentin the United States as a result of the application of the provisions ofSection 212(d)(5) of the Immigration and Nationality Act).

(1) Any data or information required of individuals applying forbenefits to determine whether benefits are not payable to them because oftheir alien status shall be uniformly required from all applicants forbenefits.

(2) In the case of an individual whose application for benefits wouldotherwise be approved, no determination that benefits to such individualare not payable because of such individual's alien status shall be madeexcept upon a preponderance of the evidence.

9. The directors of the division of employment security and thedivision of workforce development shall submit to the governor, the speakerof the house of representatives, and the president pro tem of the senate nolater than October 15, 2006, a report outlining their recommendations forhow to improve work search verification and claimant reemploymentactivities. The recommendations shall include, but not limited to how tobest utilize "greathires.org", and how to reduce the average duration ofunemployment insurance claims. Each calendar year thereafter, thedirectors shall submit a report containing their recommendations on theseissues by December thirty-first of each year.

(L. 1951 p. 564, A.L. 1957 p. 531, A.L. 1965 p. 420, A.L. 1967 p. 395, A.L. 1969 S.B. 109, A.L. 1972 S.B. 474, H.B. 1017, A.L. 1975 S.B. 358, A.L. 1977 H.B. 707, A.L. 1978 H.B. 1824, A.L. 1982 H.B. 1521, A.L. 1984 H.B. 1251 & 1549, A.L. 1987 S.B. 153, A.L. 1988 H.B. 1485, A.L. 1991 H.B. 422, et al., A.L. 1993 H.B. 502, A.L. 1995 H.B. 300 & 95, A.L. 1997 H.B. 472, A.L. 1999 H.B. 162 merged with S.B. 32, A.L. 2004 H.B. 1268 & 1211, A.L. 2006 H.B. 1456, A.L. 2008 H.B. 2041)

Effective 10-01-08

(2009) Provision of unfair labor practice statute authorizing payment of unemployment compensation benefits to striking employees does not violate federal or state equal protection rights. St. John's Mercy Health System v. Division of Employment Security, 273 S.W.3d 510 (Mo.banc).