Frequently Asked Questions About Unemployment Compensation
Information from Legal Aid about Unemployment Compensation benefits, when you can get them and when you can't, and how the process works.
CONTENTS
PART I: ELIGIBILITY & DISQUALIFICATION
#Q1: WHO IS ENTITLED TO RECEIVE UNEMPLOYMENT BENEFITS IN WV?
#Q2: WHO IS ELIGIBLE TO RECEIVE UNEMPLOYMENT IN WV?
#Q3: WHO IS DISQUALIFIED FROM RECEIVING UNEMPLOYMENT IN WV?
#Q4: WHAT IS "COVERED EMPLOYMENT," AND WHAT ARE THE EXCEPTIONS TO IT?
PART II: GETTING YOUR BENEFITS
#Q5: SO IF I'M ELIGIBLE AND NOT DISQUALIFIED, HOW MUCH WILL I GET?
#Q6: WHAT IF I'VE DRAWN BENEFITS IN THE PAST? DO I NEED TO REQUALIFY?
#Q7: WHAT IF MY EMPLOYER FAILS TO REPORT MY WAGES?
#Q8: WHERE DO I FILE MY CLAIM?
PART III: VOLUNTARY QUIT VS. DISCHARGE
#Q9: CAN I DRAW BENEFITS EVEN IF I WAS FIRED?
#Q10: I QUIT MY JOB BECAUSE I'M MOVING OR NEED TO STAY HOME TO CARE FOR MY FAMILY. CAN I GET BENEFITS?
#Q11: I QUIT MY JOB BECAUSE I DIDN'T LIKE MY BOSS (OR SOMEONE I WORKED WITH). CAN I STILL COLLECT?
#Q12: I QUIT MY JOB BECAUSE MY BOSS CHANGED MY JOB DUTIES, PAY RATE, PLACE OF WORK, OR SHIFT. DO I QUALIFY FOR BENEFITS?
#Q13: WHAT IF I'M FORCED TO RETIRE?
#Q14: WHAT IF I'M NOT GETTING ANY WORK BECAUSE OF A LABOR DISPUTE?
PART IV: POST-SEPARATION & POST-FILING
#Q15: I WAS OFFERED WORK AFTER LEAVING MY LAST JOB. IF I TURNED IT DOWN, CAN I STILL COLLECT BENEFITS?
#Q16: WHAT IF I GET A PART-TIME JOB WHILE I'M COLLECTING BENEFITS?
#Q17: WHAT IF I'VE ALREADY BEEN DENIED UNEMPLOYMENT BENEFITS?
#Q18: WHAT IF I NEED LONG-TERM BENEFITS?
#Q19: HOW LONG CAN I RECEIVE BENEFITS?
#Q1: WHO IS ENTITLED TO RECEIVE UNEMPLOYMENT BENEFITS IN WV?
A: Anyone who is both eligible and not disqualified.
#Q2: WHO IS ELIGIBLE TO RECEIVE UNEMPLOYMENT IN WV?
A: Anyone who was recently separated from his/her employer and:
- 1. Is ready, able, and willing to work.
2. Has registered for work with a WV Job Service Office.
3. Has earned sufficient wages ($2,200) in the "base period."
A base period consists of the first four of the five completed calendar quarters prior to the quarter in which the claimant files his/her claim. So, if the claimant received wages totaling $2,200 or more in any two calendar quarters in the 15-18 months preceding the filing of his/her claim, then s/he is eligible for unemployment benefits.
EXAMPLE: You file your claim on July 1, 2006. You're eligible for benefits if you earned at least $2,200 in any two (2) of the following quarters combined: April - June 2005; July - Sept. 2005; Oct. - Dec. 2005; and Jan. - March 2006. [These are the first four of the five completed calendar quarters prior to the quarter (July - Sept. 2006) in which the claim was filed.] You would use the same base period if you quit your job at any point in the third quarter (July - Sept.) of 2006.
#Q3: WHO IS DISQUALIFIED FROM RECEIVING UNEMPLOYMENT IN WV?
A: Anyone who:
- 1. Quit his/her last job without (1) good cause which (2) involved fault on the part of the employer; or
2. Was fired from his/her last job for misconduct.
There are two types of misconduct for which a claimant may have been fired: Simple and Gross. Thus, there are three main grounds for disqualification: (a) Simple Misconduct resulting in termination; (b) Gross Misconduct resulting in termination; and (c) Voluntary Quit without good cause involving fault on the part of the employer.
In the case of Simple Misconduct, the claimant loses his/her benefits for the week in which s/he was discharged plus the six weeks thereafter.
For Gross Misconduct, or Voluntary Quit without Good Cause Involving Employer Fault, the claimant loses benefits until s/he returns to work for thirty (30) days. See #5, below, for examples of simple vs. gross misconduct.
You probably will not be disqualified if you were laid off due to lack of work, or because the company went out of business. In general, if you lose your job for reasons that have nothing to do with the way you performed at the workplace, you probably will not be disqualified.
NOTE: If you quit your last job for any of the following reasons, then you probably will NOT be disqualified:
- 1. There was a change in your job duties, pay rate, place of work, or shift (e.g., day shift to night shift).
2. Your boss or a co-worker harassed you on the job and your employer did nothing about it.
3. Your boss threatened to fire you if you didn't quit. (This is called a "constructive discharge.")
4. Your employer lied to you or misled you about some aspect of the work.
5. Your boss asked you to do something immoral or illegal.
6. You quit because of an illness or injury caused by or connected with your work that a doctor could verify in writing.
7. Your employer maintained an unsafe working environment.
See a lawyer if you think you quit for a good reason that does not appear on this list.
#Q4: WHAT IS "COVERED EMPLOYMENT," AND WHAT ARE THE EXCEPTIONS TO IT?
A: Covered employment is employment included under the WV Unemployment Compensation Act. The law covers nearly all kinds of employment, with a few notable exceptions:
1. Employees of the U.S. government and elected officials.
2. Certain employees in the farming and agricultural industries.
3. Employees who perform domestic services in a private home.
4. Persons employed by one's child or spouse.
5. Persons under 18 who are employed by a parent.
6. Certain employees of schools, colleges, and universities.
7. Employees of a church or other religious organization.
If you fall into one of these categories, check with a neutral and knowledgeable source (preferably a lawyer) before deciding whether to pursue a rejected claim for benefits.
#Q5: SO IF I'M ELIGIBLE AND NOT DISQUALIFIED, HOW MUCH WILL I GET?
A: That depends on how much you earned in your base period. The least you can receive per week is $24 (for those who earned between $2,200 and $2,349.99). The most is $391 (for those who earned $37,000 or more). A full-time worker making minimum wage would receive about $100 per week, while one making $8.50/hr. would receive about $175 per week.
#Q6: WHAT IF I'VE DRAWN BENEFITS IN THE PAST? DO I NEED TO REQUALIFY?
A: Yes. If your claim has expired within the past six months, you must requalify by earning at least eight (8) times your old weekly benefit amount. Thus, if your old weekly benefit amount was $100, then, in order to requalify, you must have earned at least $800 since the beginning date of your previous (expired) claim.
#Q7: WHERE DO I FILE MY CLAIM?
A: West Virginia has 21 claims offices around the state. The Charleston office is located at:
1321 Plaza East
Charleston, WV 25330
You can get the address of any claims office by calling the Charleston number: 304-558-0291 (or toll-free at 1-800-379-1032). Or go online to: www.wvbep.org/bep/uc.
#Q8: WHAT IF MY EMPLOYER FAILS TO REPORT MY WAGES?
A: Your claim cannot be denied because the employer failed to do what it was supposed to do. You will have to prove that you really were employed. Take pay stubs, time sheets, or other proof of employment to your local claims office. After that, the Unemployment Compensation agency will deal with the employer. If necessary, contact a lawyer.
#Q9: CAN I DRAW BENEFITS EVEN IF I WAS FIRED?
A: That depends on why you were fired.
If you were fired for Gross Misconduct, then you are disqualified until you return to work for 30 days. Gross misconduct includes being intoxicated on the job, physical violence, and violating prior written warnings.
However, if you were fired for Simple Misconduct, then you are disqualified only for six weeks. Simple misconduct includes absenteeism (missing long periods of work without a good excuse) and insubordination (willfully refusing to perform a standard job duty). In general, Simple Misconduct is defined as violating known rules or willfully disregarding the employer's reasonable interests.
Minor mistakes and accidents do NOT count as misconduct, simple or gross. Not doing the job fast enough, or good enough, does NOT count as misconduct. Even if you've had a written warning that you need to work faster, or better.
#Q10: I QUIT MY JOB BECAUSE I'M MOVING OR NEED TO STAY HOME TO CARE FOR MY FAMILY. CAN I GET BENEFITS?
A: No. Unless your reason for quitting involves fault on the part of the employer, you are disqualified from receiving benefits until you return to work for 30 days.
#Q11: I QUIT MY JOB BECAUSE I DIDN'T LIKE MY BOSS (OR SOMEONE I WORKED WITH). CAN I STILL COLLECT?
A: Probably not. As explained earlier, claimants who quit their jobs are disqualified from receiving benefits unless they quit for a good reason involving employer fault. Simply disliking your boss or a co-worker isn't good enough. However, if your boss or a co-worker harassed or mistreated you and your employer did nothing about it, see a lawyer. Not only are you probably entitled to benefits, but you may also have grounds for a lawsuit.
#Q12: I QUIT MY JOB BECAUSE MY BOSS CHANGED MY JOB DUTIES, PAY RATE, PLACE OF WORK, OR SHIFT. DO I QUALIFY FOR BENEFITS?
A: Probably. Depending on how much one or more of these things were changed, you may qualify even if you quit. The more drastic the changes, the more likely it is that the law will excuse you for quitting.
For example, if you were originally hired to work in a factory or plant five minutes from your home, and were later re-assigned to a factory or plant forty minutes from your home, then you are probably entitled to benefits even if you quit. Likewise, the more substantial a pay-cut, the better your odds of getting benefits. A lawyer can help you determine whether you are likely to qualify.
#Q13: WHAT IF I'M FORCED TO RETIRE?
A: You're probably entitled to benefits, because you did not "voluntarily quit" your job; you were effectively discharged. A "quit-or-be-fired" ultimatum from the employer is a discharge. Contact a lawyer if your employer challenges your claim.
#Q14: WHAT IF I GET A PART-TIME JOB WHILE I'M COLLECTING BENEFITS?
A: You can earn up to $60 per week and still collect your full unemployment benefits. Any income exceeding $60 will be deducted from your weekly checks.
NOTE: This also applies to cases in which the claimant's hours are reduced by his/her employer. Such a claimant is "partially employed." A partially employed claimant is entitled to collect his weekly benefit amount minus any (weekly) wages exceeding $60. For example, if your weekly benefit amount is $100, and your wages in a given week total $80, then you are entitled to collect $80 [$100 - ($80 - 60) = $80].
#Q15: I WAS OFFERED WORK AFTER LEAVING MY LAST JOB. IF I TURNED IT DOWN, CAN I STILL COLLECT BENEFITS?
A: That depends. If the new position was a lot like your old work, then probably you will not receive benefits. You will be disqualified for turning down "suitable work." However, if the new assignment was very different from your old work (lower pay, different responsibilities, etc), then chances are you can still collect benefits.
#Q16: WHAT IF I'M NOT GETTING ANY WORK BECAUSE OF A LABOR DISPUTE?
A: Unless you have directly financed or participated in the dispute and therefore contributed to the work stoppage, you will not be disqualified from receiving unemployment benefits. Also, if a Union strike persists for more than four (4) weeks, you are then likely to qualify for benefits regardless of your participation or lack thereof in the dispute. (In legalese, there is a "rebuttable presumption" that the work stoppage is attributable to more than merely the strike, and the employer bears the burden of proving otherwise.) In general, it is best in such a situation to contact a Union lawyer, provided that your Union is not represented by counsel assisting all its members in matters related to the strike.
#Q17: WHAT IF I'VE ALREADY BEEN DENIED UNEMPLOYMENT BENEFITS?
A: You can appeal the decision of the official(s) who denied your claim. But the time to appeal is very short. At most levels you have only 8 days to submit your request for appeal.
The first level of decision is made by a "deputy" in the local Unemployment Compensation office. This person will review the forms filled out by the claimant and the employer. Sometimes the Deputy will ask the two sides for more information. Then the Deputy's Decision will be mailed to both sides. You have 8 days after the Deputy's Decision is mailed to request an appeal.
All appeals from the Deputy's Decisions are heard by administrative law judges (ALJs). The ALJ is a lawyer, and will hold an actual hearings. Both sides can be present, give testimony, present witnesses, and ask question of the other side's witnesses.
Hearings are your only real chance to fully explain your case, present evidence and witnesses to support your side of the story, and air any relevant grievances with the employer. If there is any evidence important to your case, you MUST bring it to this hearing. You won't be given a second chance to bring witnesses or documents that you didn't bring to the hearing. The claimant who is represented by a lawyer at an ALJ hearing enjoys a substantial advantage over the claimant who isn't.
If the ALJ upholds the deputy's decision, you have 8 days to request an appeal to the "Board of Review" (BOR). The Board of Review holds all arguments in Charleston, no matter where you live. A typed transcript of the testimony at the ALJ hearing will be prepared. A copy will be sent to you. You can appear in person at the Board of Review argument, or you can submit a written statement.
The Board of Review argument is not a "do-over." It is not a new hearing. You will not be able to give them evidence that you didn't bring to the ALJ hearing. Instead, you must explain to the Board why you think the ALJ Decision was incorrect based on the evidence which was given to the ALJ.
Board of Review hearings are relatively informal proceedings. They are shorter and more limited in scope than ALJ hearings. The three-member Board of Review is NOT supposed to take any new evidence. The Board decides only whether the ALJ was right or wrong based on the evidence which was given to the ALJ.
After the Board of Review decision, you have 30 days to file a petition for appeal with the Circuit Court of Kanawha County. For this stage of the appeals process, it is strongly recommended that you retain a lawyer.
After the Circuit Court decision, the last level of appeal is to the West Virginia Supreme Court of Appeals. Unemployment-compensation cases seldom reach this level.
If you wish to appeal the decision of a deputy, ALJ, or the BOR, contact a lawyer immediately. ONCE FILING DEADLINES HAVE PASSED, THERE IS NOTHING A LAWYER CAN DO TO HELP YOU. There is no "Good Cause" exception for a late appeal. If it's not on time, then you have no appeal.
NOTE: Even if you earned a high income at your previous job, depending on how long you've been unemployed, you may be eligible for representation by a Legal Aid attorney. Call your local office.
#Q18: WHAT IF I NEED LONG-TERM BENEFITS?
A: Extended benefits are available to claimants who do not qualify for a new unemployment claim. Such claimants are called "exhaustees." Exhaustees are individuals who lack sufficient past earnings to file a new claim and who are otherwise eligible and qualified for benefits. Such individuals will receive their full weekly benefit amount, except that their total extended benefits are limited to the lower of these: (i) 50% of their total regular benefit amount, or (ii) thirteen (13) times their regular weekly benefit amount.
#Q19: HOW LONG CAN I RECEIVE BENEFITS?
A: 26 weeks, unless you qualify for extended benefits.
This article was prepared by Steven Conifer, a 2006 Public Interest Advocates Fellow in the Charleston LAWV office.
This web site was made possible by generous support of the Legal Services Corporation.