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Appeals Information:
Appealing Denial of
Unemployment Insurance Benefits:
Anyone who has been denied Unemployment Insurance benefits has the right
to appeal the decision. The appeals process is designed to provide a fair
and impartial hearing to further examine your claim for Unemployment
Insurance benefits. The information in this brochure explains the appeals
process and the steps you can take to make certain your appeal is as
complete as possible.
Know your Appeal Rights:
Filing an Appeal:
An appeal must be filed within 11 days of the Employment Security
Division's (ESD) decision to deny your claim for Unemployment Insurance.
You can file an appeal through the mail or by fax. You must sign your
appeal. We can NOT accept an appeal via email. Regardless how you file, make certain that you file promptly. The
hearing date is your last opportunity to explain the circumstances which
led to your unemployment. Any subsequent appeal levels review only
information obtained through the adjudication and first level appeal
processes.
If you have separated from
work for a reason other than a layoff and you were found eligible to
receive benefits, the employer has the right to appeal the decision that
grants your benefits. It is important for you to participate in the
appeal process to protect your benefit rights.
Hearing Date:
Your hearing date will
normally be scheduled about three weeks after you file the appeal. A
Notice of Hearing will be sent by mail giving the date, time, and place of
the hearing. You will be notified about a week before the appeal
date. Make certain to read the notice instructions carefully. If
you cannot attend the hearing on the scheduled date, immediately call the
appeals office listed on the notice. It is important that you be on time for the hearing.
If you are late your appeal may be dismissed.
If you can demonstrate a compelling
reason for not being able to attend your hearing, the hearing may be
rescheduled.
The Hearing:
Unemployment Insurance
hearings are conducted by an impartial appeals referee. The hearing is
similar to a court hearing, and provides the chance for you to explain the
specific circumstances which led to your unemployment. Hearings are
conducted via telephone and in some cases in-person. Your notice of
hearing will advise you how to participate. If your appeal is
related to a separation from employment, you and
your former employer are invited to participate in the hearing.
Witnesses & Subpoenas:
You are solely responsible
for arranging for any witnesses to be present at your hearing. If a
witness refuses to appear, during the hearing you can request that the
referee issue a subpoena. For a subpoena to be issued you must establish
that the witness' testimony is necessary for your hearing, and that the
person has refused to appear voluntarily.
Appeal Records
The entire proceeding will
be tape recorded by the referee. No other recording is permitted.
Transcripts are not made available unless ordered by the district court.
However, parties involved in the hearing may have access to the record if
there is further appeal. Under Nevada Revised Statutes, this record cannot be used for any other
litigation.
What Happens at the Hearing?
It is critical that you take part in the
hearing, regardless of whether you or the employer filed the appeal. If you ask for a hearing and
do not appear your appeal will be dismissed. If the employer asked for
the hearing and you do not appear the hearing will be held without you.
- At the beginning of the
hearing, the referee explains all hearing procedures and admits documents into the record.
- If you quit your job,
you will testify first; if you were terminated by your employer, your
employer testifies first. All parties who testify must take an oath.
- Witnesses are not
normally allowed to hear the testimony of other witnesses.
- The referee will ask
questions. If the referee does not cover everything important to the
case the person testifying can elaborate, or if the testifying party has
a representative present, the representative can ask questions. Then the
opposing side can ask questions (cross examination). This process will
be repeated for all witnesses.
- Before the close of the
appeals hearing both the claimant and employer will be given a final
opportunity to add further testimony and make a closing statement.
- Most hearings take
between 30 and 45 minutes, although many are longer. Minor children are
not permitted in the hearing room.
- Evidence can include testimony
by an employee of the Employment Security Division.
The Referee's Decision:
The referee's decision is
based upon evidence presented at the hearing. The referee evaluates all
evidence before issuing a final decision. All decisions issued by a
referee are in writing and are mailed to all parties to the case. If
you change your address after the hearing but before the decision is
issued, notify the appeals office of the change in address.
Do I Need Help?
Most people
represent themselves at appeals hearings, and the hearings are designed to
allow you to represent yourself. However, you are entitled to have
legal representation if you choose. You may have an attorney, union
agent, or other representative with you at this hearing. You are
responsible for any costs of obtaining legal representation. Some
legal aid organizations provide representation at appeal hearings based on
what you can afford. These are typically non-profit organizations
designed for people who can not afford to hire an attorney.
If you or your witness need a foreign language interpreter you must inform
the appeals office in advance.
Helpful hints for your hearing...
Telephone hearings are
provided for parties who live beyond reasonable commuting distance of an
appeals office. If you have been instructed to participate by telephone,
it is your responsibility to have witnesses or representatives present, or
available by telephone at the appointed time. If your hearing has been
scheduled to be heard in person, you are responsible to have these parties
present at the date and time of the hearing.
Parties planning to submit
documents should mail or fax them to the referee prior to the scheduled
hearing.
Usually, the referee's
decision will be issued within two weeks of the hearing. Claimants who are
unemployed must continue to file weekly claims while waiting for the
hearing decision. The referee's decision can be appealed to the Board of
Review.
Withdrawals:
Anyone who has filed an
appeal can withdraw the appeal by advising the referee in writing that a
withdrawal is desired. Referees may refuse withdrawal requests if they
believe the appellant has been pressured.
The Referee's Decision and Appeal to the Board
of Review:
After the hearing, the Appeals
Referee issues a written decision which will include findings of fact and
conclusions of law. Findings of fact and decisions will
be based upon the evidence presented to the Referee. The
decision must inform each party of the right of appeal to the Board of
Review. The Board of Review consists of three members
appointed by the Governor: one who is a representative of labor, one who
is representative of employers and a third who represents the general
public.
You must
file an appeal to the Board of Review within 11 days after the Appeal Referee's decision is
mailed to you. If the 11th day falls on a weekend or holiday you may file
your appeal on the following business day. The decision cites the
final day to appeal. Your appeal is deemed to be filed on the
date of the postmark on your letter to the Board of Review.
The Board of Review can accept
an appeal filed after the 11 day deadline if good cause can be shown for
the late appeal.
To
appeal, you must write a letter signed by you or your legal
representative. Your letter must include your reason for appealing (explain why
you disagree with the Referee’s decision) and your Social Security
Number.
The Board of Review may
decline to review a decision of the Appeals Referee if the Appeals Referee
affirmed the determination of the claims office. If the Board of Review
declines to review a decision, it will notify the parties of their right
to judicial review.
The Board
of Review may restrict the parties to the submission of written arguments
or may ask the parties to present oral arguments. If the Board of
Review wishes to hear oral arguments, notice is sent to each party at least
7 days before the date set for review, and the notice must specify the
right to be represented by counsel. The Board of Review may postpone and
continue the review, on giving notice to all parties..
The
evidence which the Board of Review considers in reviewing cases is limited
to the evidence submitted to the Appeals Referee.
Any two
members of the Board of Review may decide a case. If one member is absent
and the vote of the two remaining results in a tie, the case will be held
over for consideration by the full Board of Review. If one member is
disqualified and the remaining two disagree, the case must be decided by
the public member. If the public member is disqualified, the Board of
Review will seek a temporary replacement.
The Board of
Review may remand (send back) a case to the Appeals Referee to take any
additional evidence. If the case is remanded, the Board of Review may
order the Appeals Referee to render a new decision or may have the new
evidence forwarded to the Board of Review for its own decision.
A
decision of the Board of Review becomes final 11 days after the date of
mailing of the Board's decision. NRS 612.525. After the decision has
become final, you have another 11 days to petition for judicial review in
the District Court in the county where the original claim was filed. NRS
612.530. Unlike appeals to the Appeals Referee or the Board of Review,
there is no legal provision for the court to permit extensions of the
11-day requirement. An appeal to court is complicated and generally should
not be undertaken without the services of an attorney.
Misconduct: (NRS 612.385)
NRS 612.385 Discharge for
Misconduct. A person is ineligible for benefits for the week in which he
has filed a claim for benefits, if he was discharged from his last or next
to last employment for misconduct connected with his work and remains
ineligible until he earns remuneration in covered employment equal to or
exceeding his weekly benefit amount in each of not more that 15 weeks
thereafter as determined by the administrator in each case according to
the seriousness of the misconduct.
General Definition:
Misconduct is an act that is in disregard of the employer's interests, a
deliberate violation of a known reasonable rule of the employer, a
disregard of standards of behavior which the employer has a right to
expect, or negligence to such a degree as to show an element
of wrongfulness or demonstrate a substantial disregard of the employer's
interests. It is not misconduct when the failure of performance is due to
inability, or if the action is ordinary negligence in isolated instances
or a good faith error in judgment or discretion.
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Absence from work: An employee
has the duty to report for work and remain at work in accordance with
the reasonable requirements of the employer. If an employee is going to
be absent from work, it is his responsibility to give proper notice in
time to permit the employer to make such arrangements as are necessary
to replace him. Not all absences are foreseeable, but if an employee
knows he is due at work and cannot report, say for illness, it is his
responsibility to inform the employer as soon as possible. The policy of
the employer is considered in determining what is adequate notice.
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Refused permission: It is reasonable for employers to require
advance permission to be absent when the absence can be anticipated,
for instance, in requests for vacations. However, a prudent worker
will not take time off when his request is refused. If the claimant is
denied permission but is absent anyway, the necessity for the absence
and his employer's reasons for not granting permission will be
weighed. The discharge will be considered misconduct if he is absent
for a capricious reason, or if he fails to provide a legitimate
excuse, such as failing to provide a doctor’s statement in the case of
illness, or if he was absent due to intoxication. If an employee
deliberately gives a false reason to obtain time off and the employee
knew it would not have been approved if the employer knew the true
reason for absence, a discharge for dishonesty in these circumstances
is for misconduct.
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Incarceration: Off-duty misconduct which prevents an employee
from fulfilling his duties to the employer is misconduct for purposes
of denying benefits, if for example, the evidence indicates that the
claimant could have avoided incarceration, for instance, by the timely
payment of a fine. Misconduct can also be found if the off-duty
behavior reflects adversely on the employer. Once incarcerated, a
timely notice of absence to the employer may not preclude the
claimant's disqualification.
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Failure to maintain licenses: Individuals who need
certification, licenses, or permits to work in their occupation, such
as truck drivers, health care workers, foreign workers, etc., have a
responsibility to maintain their licenses. Failure to do so will be
considered misconduct if an employee is discharged for that reason.
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Tardiness: One of
the basic expectations in the work relationship is for employees to
report to work when scheduled. Many employers enact progressive
disciplinary procedures to punish tardy employees. The reasons for an
employee being tardy will be considered if a claimant was discharged
for that reason. Nevertheless, substantial tardiness due to
oversleeping, or failure to ensure transportation, or failure to
ensure childcare, for example, may constitute misconduct.
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Duty to employer: An employee owes a
duty to support and serve the employer's interests and not to engage in
acts or statements that show a disregard of the employer's interests.
Making inappropriate disparaging remarks about the employer, the
supervisor, the product or the service that have the potential of
harming the employer, may constitute misconduct. Mere griping or normal
complaints directed through proper channels, such as the chain of
command or through a grievance procedure, are not misconduct unless it
reaches the point of interfering with the work.
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Safety violations:
A violation of safety rules is usually misconduct unless it is a minor
rule, unknown to the workers, or rules that have not been previously
enforced. The extent of the hazard created by the violation is
important in determining misconduct.
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Insubordination:
Insubordination is a single or continuing refusal to obey a direct or
implied order, reasonable in nature, and given by and with proper
authority. Insubordination is also an act, which exceeds the authority
granted by the employer, unless the act is necessary to prevent
substantial loss to the employer and it is impracticable for the
employee to communicate with the employer, or the act is a good faith
error in judgment. Insubordination is also statements or remarks under
circumstances that damage or tend to damage the employer's interests.
And finally, insubordination includes vulgar, profane, insulting,
obscene or offensive language directed at the employer or supervisor.
If the language is provoked and is an isolated instance, it may not be
misconduct.
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Dishonesty:
Engaging in dishonest acts or statements, or aiding another person to
engage in such acts, which injures or tends to injure the employer's
interests. Misconduct also covers an employee who willfully fails to
report to the employer the dishonest acts or statements of a co-worker
which causes substantial harm to the employer. Other acts of
dishonesty include:
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Theft and
embezzlement.
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Misappropriation
of funds.
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False statements on such items as work applications, time
cards, travel expense claims.
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False reasons
for absences.
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Malicious false
statements about other individuals.
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Under the
Influence: It is misconduct if the employee is under the influence of
any unlawful drug, including alcohol, at the time he reports to work
or returns to work following a lunch or rest period. Being under the
influence can be determined by the smell of alcohol and/or unusual
behavior, such as slurred speech, profuse sweating, and unsteadiness.
There is in Nevada no tolerance for unlawful drug usage in the work
place. A positive reading on a drug test is usually considered
misconduct.
Reasons for testing include:
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Pre-employment
testing;
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Reasonable
suspicion that the employee is
under the influence;
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There is a
policy of random testing;
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Impairment is
shown in the employee's ability to
perform the job; and,
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Post accident
testing
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Work Performance:
An individual's failure to perform work properly or neglect of duty is
misconduct if he intentionally, knowingly, or deliberately fails to
perform, or performs in a grossly negligent manner, or repeatedly
performs negligently after prior warning or reprimand and in
substantial disregard of the employer's interests. It is not
misconduct when the failure of performance is due to inability, or if
the action is ordinary negligence in isolated instances or are good
faith errors in judgment or discretion.
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Violation of
employer rules: It is misconduct if an employee violates a rule, if
the rule is reasonable and the individual knew or should have known
the rule, and the violation substantially injures or tends to injure
the employer's interests. The violation may be misconduct, even if it
involved a minor matter, if the claimant had been given prior warnings
for violation of that rule or other rules. While the final incident is
of primary consideration in determining misconduct, a series of
incidents, while not misconduct taken individually, may establish a
pattern of behavior detrimental to the employer's interests and become
misconduct. It may not be misconduct if: (1) the rule is either not
enforced or enforced unequally, (2) the violation is condoned, or (3)
the employer fails to follow his own policy of progressive discipline,
for example, firing an employee for strike one when there is a
three-strikes-and-out policy.
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Suspension: A
person may file for unemployment benefits while on suspension. The
suspension will be treated like a discharge and benefits will be
awarded or denied on the circumstances that led to the suspension.
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Relations with coworkers:
An employer has a right to expect that his employees will not conduct
themselves toward each other in a manner that will interfere unduly with
the efficient conduct of business. Incompatibility between workers will
sometimes occur, but if it manifests itself in overt acts that could
impair the efficiency of operations, the acts could be considered
misconduct.
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Abusive language:
It is normally not acceptable between employees, or between employees
and supervisors. At some work sites, mildly abusive language is
accepted as standard behavior, unless it involves a belligerent or
derisive manner toward specific persons. (See "Insubordination").
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Altercation:
Fighting connected with work is almost always misconduct, unless it
can be shown that the claimant acted in self-defense and that it was
the other party that attempted the first blow or assault.
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Sexual harassment:
It is misconduct for an employee, male or female, to harass another
employee by: (1) Making an unwelcome sexual advance or a request for
sexual favors, or other speech or physical conduct of a sexual nature,
(2) Making the submission to, or the rejection of, such conduct the
basis for employment decisions, or (3) creating an intimidating,
offensive or hostile working environment by such conduct
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Union activities:
Generally, union activity does not breach a worker's obligation to the
employer and is not considered misconduct. Membership in a union,
agitation for unionization off company time, or support of a union, is
not misconduct. Neither joining a union while employed, or refusing to
join a union while employed, is considered misconduct if either act
results in termination. However, when the union activities violate a
known and reasonable company rule such as unauthorized solicitation of
membership, or collection of dues on company time or premises, a
discharge for that reason is usually misconduct.
NRS 612.383 Discharge
for crimes in connection with employment. Notwithstanding any other
provisions of this chapter, an individual who has been discharged for
commission of assault, arson in any degree, sabotage, grand larceny,
embezzlement or wanton destruction of property in connection with his work
shall be denied benefits based on wages earned from the employer
concerned, provided that such assault, arson in any degree, sabotage,
grand larceny, embezzlement or wanton destruction of property is admitted
in writing or under oath or in a hearing of record by the person or has
resulted in a conviction in a court of competent jurisdiction.
Voluntary Quit: (NRS 612.380)
NRS 612.380 Leaving last
or next to last employment without good cause or to seek other employment.
1. Except as otherwise provided in subsection 2 [approved training], a
person is ineligible for benefits for the week in which he has voluntarily
left his last or next to last employment:
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Without good cause, if so found by the administrator, and
until he earns remuneration in covered employment equal to or exceeding
his weekly benefit amount in each of 10 weeks-.
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To seek other
employment and for all subsequent weeks- until he secures other
employment or until he earns remuneration in covered employment equal to
or exceeding his weekly benefit amount in each of 10 weeks-, if so found
by the administrator.
General Definition:
Good cause for leaving work can be established if there is a compelling
reason to quit, and there are no other reasonable alternatives but to
quit. The person may quit for either personal or work related reasons. An
acceptable personal reason may be circumstances that might happen in a
person's personal life or at his place of employment that would compel any
reasonable person to leave, even though he may be firmly attached to the
employer and would prefer to remain.
Remember that a good reason to quit may not rise to the level of good
cause required to grant payment of unemployment benefits.
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Health reasons: If
health is given as a reason for leaving, the claimant will generally be
required to provide a doctor's statement confirming the claimant's need
to quit. A medical practitioner's advice to consider finding other work
or another occupation may not be specific enough to establish good
cause. However, there may be instances wherein an individual can make
the judgment to quit when the cause and effect relationship between the
condition and the work is clear, and where the individual has a chronic
condition or has recently received expert advice.
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Family's health:
Quitting to care for an injured or ailing family member may be
considered good cause if it is the only realistic solution to the
situation. It generally requires medical statements affirming that the
individual needs intensive assistance and proof that alternatives were
considered but rejected for good reasons. Quitting to care for others
may raise questions of one's availability for work.
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Following a spouse:
If a person leaves work to follow a spouse, the reasons for the spouse
leaving will be considered as the primary reason for the claimant to
quit. A married couple must be considered as a unit. If there is good
cause for either spouse to move, there is good cause for both. Where the
reason is the employment of the spouse, there must be a firm and
reasonably immediate starting date for the spouse’s new job. A move to
follow a spouse who has not found work but thinks there are better
opportunities elsewhere, would be disqualifying. While public policy
favors keeping a family together, it does not favor couples leaving a
location where there is some work for a location where there is none.
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Quit to marry:
Even if the attachment is such that marriage is to take place but has
not already taken place, good cause for leaving does not exist,
because marriage plans, as distinguished from a legal marriage that
has already taken place, do not provide good cause.
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Following a
companion: Nevada does not recognize common law marriages. Even if the
relationship is of long standing, it is not recognized as legally
binding and therefore, if a person quits to follow an unmarried
companion it will not be recognized as good cause. An exception to the
rule may occur if there are minor children involved in the
relationship.
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Attending school:
Quitting a job to attend school is not a compelling reason to render a
claimant eligible for unemployment benefits.
Quitting for Reasons that Are Work Connected:
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Exhaust reasonable
recourse: A person must first make attempts to keep his job. Generally,
a person must consult with supervisory personnel regarding the
unacceptable work related conditions and attempt to either resolve them
or make an adjustment with regard to the conditions, whether it involves
the work assignments or other employees. If the employer refuses to
resolve the problem, or cannot resolve the problem, or make appropriate
adjustments to the work conditions, then a person may have good cause to
quit. A person may have good cause to quit if the employer requires the
employee to perform an act that is either illegal or unsafe.
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Reduction in pay:
Good cause can be established if the employee is transferred arbitrarily
with a substantial reduction in pay, or if the wage reduction is
substantial and not accompanied by any reduction in hours or change in
duties.
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Part-time work: When
an individual leaves work because it is part-time work, he leaves
without good cause. An individual who is working part time is in a much
better position than is the individual who is totally unemployed; he has
some income, he is in a position to obtain full-time work when openings
occur, and he has available time to seek more desirable work elsewhere.
Part-time work would not be disqualifying to persons who have
established part-time work as their normal attachment to the labor
market, for instance, the handicapped or elderly who can only work part
of a day.
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Transportation:
Transportation is the responsibility of the employee, and unless
transportation problems are of such severity that they cannot be solved
with reasonable efforts, good cause for quitting does not exist.
Normally, individuals are not expected to work beyond commuting distance
of their homes, or move to another location to accept a transfer or
other work. But if an employee's own work history, or customary
practices in his occupation, reflect that working away from home is
usual, then a location beyond commuting distance does not by itself
provide good cause to quit or refuse work.
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Changed working
conditions: The employer has the managerial prerogative to set working
conditions so an individual does not normally have good cause to quit if
the new conditions do not meet his preferences.
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Quit to seek other
work: A person has good cause to quit if he finds other work, but he
does not have good cause to quit merely to seek another job of a
preferred type or in a preferred location. There must be a firm and
reasonably immediate starting date if good cause is to be found.
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Unpleasant
co-workers: Good cause can be established when working conditions are
intolerable because of fellow employees, but the conditions must be
shown to be intolerable, for instance, excessive abusive language,
co-worker harassment, or assault. The common element in this type of
situation is the requirement that the claimant make a reasonable effort
to have the situation changed and the consequent refusal by the
employer, or the inability of the employer, to change the behavior of
the coworker.
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Unsuitable work:
There are times when an individual accepts work outside of his normal
occupation in an effort to become employed and it turns out his skills
and aptitudes are not suitable for the job. It is reasonable for a
person to attempt unfamiliar work but then find it unsuitable, as that
can only be determined through an actual trial. Good cause to quit may
be found in these circumstances.
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Threats at or outside
work: Most employers can control coworkers who may be threatening while
both parties are at work, but may not be able to protect the threatened
employee outside of the workplace. At other times, a person may be
harassed outside of work by, for instance, a stalking ex-husband or
boyfriend. The claimant may be required to show proof of a request for
police protection, but if that does not work, the claimant may have no
other alternative but to move away from the harassment or threat. Under
such circumstances, good cause can be shown.
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Failure to meet or
maintain hiring conditions: The employer has the burden of setting forth
the exact and specific conditions of employment. Once the hiring
agreement is set, the failure of the employer to meet that agreement,
such as an inability to pay full wages, gives an employee good cause to
quit. Likewise, if the employer makes promises to a prospective
employee and then fails to make good on the promises, the employee may
have good cause to quit.
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Quit for
self-employment: Generally speaking, individuals who quit to go into
self-employment are not eligible because they are employed. If they have
laid the groundwork for self-employment and have reasonable expectations
of making a profit, they have quit for good cause--but are ineligible
for other reasons. If their venture fails and they return to the labor
market and are looking for full time work and are willing to accept
full-time work, they may be eligible.
Vacation Pay: (NRS 612.430)
NRS 612.430 Receipt of
pay for vacation on termination of employment: A claimant shall be
disqualified for benefits for any week following termination of work,
which could have been compensated by vacation pay had termination no
occurred, if the claimant actually receives such compensation at the time
of separation or on regular paydays immediately following termination.
Vacation Pay: A
claimant will be disqualified for any period of time that is compensated
by vacation pay if that period could have been compensated by vacation pay
had termination not occurred. Such payment must have been issued on the
day of termination or within the next two paydays following termination.
If
the employer provides for a policy of paid time off, that is, hours from
work that can be used as the employee sees fit, for sick leave, vacation
time, or personal business, the payment is not considered vacation pay and
is not disqualifying under the law.
Wages in Lieu of Notice; Severance Pay: NRS
612.420
NRS 612.420 Receipt of
wages in lieu of notice; severance pay. A person is disqualified for
benefits for any week with respect to which he receives either wages in
lieu of notice or severance pay.
Wages in lieu of notice:
Wages in lieu of notice are disqualifying even if paid beyond the next
payday after separation. The period of disqualification will begin with
the separation date and based on the claimant's rate of pay. If there are
other types of separation payments issued at the same time, payments will
be applied consecutively.
Severance Pay: Severance
pay is payment in recognition of past services, often based on years of
past service. Severance pay is disqualifying regardless of when it is
paid. The disqualification is based on the period of time for which the
claimant is compensated, based on the claimant's rate of pay. The period
of disqualification will begin with the separation date, not the week in
which it is paid, unless there are other types of separation payments
issued at the same time. If so, the payments will be applied
consecutively.
To receive benefits, NRS 612.375 requires that you be both
able to work and available for work. Being available for work means that
you have the potential for and are willing to accept suitable employment.
Being able to work means that you must be physically and mentally able to perform the
job duties of the work sought at the time you file a claim and you must
have a realistic attachment to the labor market.
To determine whether you
are able to work, the Division will consider such things as illness,
injury, and hearing, speech and vision defects. You must show
that you are able to work full time in occupations in which you have had
training or experience. If you are receiving compensation for temporary
total disability or permanent partial disability or social security
disability you are generally considered unable to work.
Pregnancy
is not considered to create a question of ability to work unless the
individual has been advised to stop working or seeking work as advised by
a doctor, due to the pregnancy. If an expectant mother simply
chooses not to look for work due to the impending child birth, the issue
is availability for work, if the pregnancy is not preventing the
individual form seeking work.
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Your circumstances: The
Division will generally require that you arrange your personal
circumstance, for example, child care or transportation, so that you can
immediately accept suitable work. The Division may find that
self-imposed restrictions, such as unreasonably high pay expectations,
unwillingness to work all customary hours, or unwillingness to commute
any distance within the local labor market area, may make you
unavailable for work. You might also be found unavailable for work if
you temporarily remove yourself from the labor market for such things as
vacation, school attendance, incarceration, etc.
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Willingness to work:
Once your circumstances have been identified, you must be willing to
remove any controllable restrictions, which affect your ability to work
or to accept work. The requirements will be explained and you will be
given an opportunity to remove any restrictions.
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Fitting in the labor
market: The specifics of the local market are considered, for instance,
prevailing rates of pay, customary shifts and hours, commuting patterns,
and availability of jobs in your customary occupation. If your
restrictions substantially reduce your employment opportunities and you
are unwilling to adjust your circumstances, you may be found unavailable
for work.
Considerations
in the Decision:
Attendance at school:
Students in an academic program must demonstrate full-time availability to
a substantial number of employers. Certain training programs, such as
vocational training, Trade Adjustment Assistance, or unpaid training from an employer, which if
approved by law or the Administrator, are not disqualifying.
Distance to work and
transportation: Persons are expected to travel within an area where there
is a reasonable chance for obtaining work. Acceptable commuting distance
may vary with occupation or rates of pay. Usually, if a person does not
have the means for getting to potential employers, he is considered
unavailable for work.
Domestic circumstances:
You may be found unavailable for work due to domestic restrictions such as
care of family members. If you are providing care during the majority of
the hours when work opportunities exist, you may be found unavailable for
work. The division will consider prevailing working conditions and your
past work experience despite these restrictions.
Wages: You must be
willing to accept employment at the prevailing wage rates in the area for
your customary occupation and experience.
Union Status: If you are
a union member in good standing, who customarily obtains work through the
union, you may demonstrate availability for work by maintaining contact
with the union hall. However, if you are a union member who does not
customarily obtain work through a union hiring hall, then you must comply
with the active search requirements applicable to non-union claimants.
Part-time employment: A person who is employed part time and
making less than his weekly benefit amount, may be eligible for partial
benefits.
Leave of absence: A leave
of absence generally indicates a temporary withdrawal from the labor
market. While on leave, a claimant is not considered available for work.
If, after the leave of absence ends and the claimant returns to work, but
the employer cannot put him back to work, the claimant may be eligible for
benefits.
Light duty: Persons who
have been unable to work for medical reasons, then are released for light
duty, are generally considered available for work upon release, even if
the employer cannot put them back to work or have no light duty jobs.
Suitable Work: NRS 612.390
Claimants for
unemployment benefits may be disqualified if the Division finds that the
claimant has failed, without good cause, either to apply for available,
suitable work when so directed by the Division, or to accept suitable work
when offered.
-
Was there a bona fide
offer or referral of work: It must be established that there was a
genuine offer of work for a specific job before a disqualification will
occur. A bona fide offer usually includes a starting date, time to
report, hours of work and rate of pay. The offer must be conveyed to the
claimant.
-
Was the job
suitable: Suitability is determined by considering the claimant's
skills, training, experience, capabilities and previous earnings. The
Division will also consider if the wages, hours or other conditions of
the job are substantially less favorable than those prevailing for
similar work in the area. It cannot be a condition of employment that
the applicant must join a union, or resign or refrain from joining a
union.
-
Did the claimant have
good cause to refuse: There may be personal reasons for refusing, such
as illness or lack of childcare or transportation. If the personal
circumstances were within the claimant's control, he must show he made
every reasonable effort to remove the restrictions before refusing.
Considerations
in the Decision:
Domestic circumstances:
Some situations may establish good cause to refuse work, such as care of
children, parents or other relative, or other responsibilities associated
with illness or death of relatives. The claimant must show that the
restrictions prevented him from accepting work, and that he had no control
over the circumstance. (Remember, however, these situations raise the
issue of availability).
Job related issues: If a
person refuses a job or referral to a job, the division will consider such
items as the length of his unemployment, prior earnings and working
conditions, his prospects for other employment, and the availability of
work in his occupation.
Health or safety risk:
Work that involves significant health or safety risks, including mental
health, is not suitable work. To refuse with good cause, a claimant must
establish that the work offered would be detrimental to his health.
Medical statements may be required.
Customary work: A
claimant may refuse work because it is not in his customary type of work
As unemployment lengthens, the claimant may be required to make himself
available for more types of work.
Expected wages: Work is
not suitable if wages are substantially less than for similar work in the
area. As unemployment lengthens, claimants are expected to consider
accepting lower wages.
Highest skills: A
claimant may refuse work because the job does not use his highest skills.
As unemployment lengthens, claimants are expected to accept work requiring
less experience and training.
Prospect of more
desirable work: A claimant may establish good cause if he has the prospect
of returning to a previous job, if it is within a short period of time, or
the prospect of a better job.
Past offer: Normally, a
refusal of work occurring more than 16 weeks prior to the effective date
of the claim is not adjudicated.
Academic Breaks; Paid Sabbaticals:
NRS 612.432 and NRS 612.434
Generally, both
professional and non-professional employees of an educational institution
or educational service will be ineligible for unemployment benefits during
school vacations or holiday recesses, and between academic terms or years
if there is reasonable assurance of employment the following term or year.
A paid sabbatical leave is also disqualifying.
Timeliness: NRS 612.475, NRS 612.495 AND NRS
612.515
Any person or employer
entitled to a notice of determination by the Employment Security Division
may file an appeal to the determination but it must be filed within 11
days. Any person or employer entitled to a decision of an Appeals Referee
may file an appeal but it must be filed within 11 days. Any person
entitled to a Board of Review decision may file an appeal to district
court but it must be filed within 22 days.
Overpayments: NRS 612.365
Overpayments can be
caused by any of several factors, including simple Division error, failure
of a claimant to provide accurate facts about his separation, an issue
leading to a reversal by an Appeals Referee or the Board of Review, late
information that causes the Division to reverse a determination, changes
to a monetary determination. Overpayments can be appealed like any other
issue. Generally, to be relieved of an overpayment, the claimant must show
that his income potential has been curtailed by circumstances, such as
illness or injury, and that he will not be able to repay the benefits.
Simply showing a
lack of fault, or that repayment will create a temporary financial
hardship is not sufficient to waive the overpayment.
Labor Dispute: NRS 612.395
A claimant will be
disqualified for unemployment benefits if his unemployment is due to a
labor dispute in active progress where he was last employed, unless he can
show that he is not participating in or financing or directly interested
in the labor dispute, or does not belong to a grade and class of workers
directly involved in the dispute. A striking worker can demonstrate his
lack of involvement in the dispute by making an unqualified offer to
return to work.
Misrepresentation:
NRS 612.445
When the Division
determines that a claimant has made a false statement or representation,
knowing it to be false, or knowingly failed to disclose a material fact in
order to obtain or increase benefits, the claimant will be required to
repay the funds obtained and may be disqualified for up to 52 weeks.
NonDisclosure: NRS 612.265 AND NRS 612.533
Only a party, claimant,
employer or Division, is entitled to information provided to the Division
for purposes of determining an unemployment claim, and only for the proper
presentation of the claim. A claimant or an employing unit is not entitled
to information from the records of the Division for any other purpose.
Once the issue of eligibility is settled, the file is closed. Only under
certain conditions, such as other issues being considered before other
State and Federal agencies as specified in the law, can Division records
be made available. Any findings of fact or law, judgments, determinations,
conclusions or orders pursuant to this chapter, are not permissible or
binding in any subsequent or separate action or proceeding.
The appeal procedure
within the Employment Security Division is designed to allow people to
present their appeal without the aid of an attorney. You are, however,
entitled to have an attorney, or other representative assist you during
the administrative process. Normally you would have to pay for an
attorney yourself, however some agencies provide legal assistance at low
cost or no cost in specific cases to people who can not afford an
attorney. ESD does not represent nor warrant that said agencies will take
your case nor does ESD make any representation regarding the type or
quality of legal services, which may be provided. The following agencies
have requested that ESD list their names and numbers. There may be other
agencies or offices, not listed here, which are willing to provide low
cost or no cost legal services to you.
Nevada Legal Services
Clark County: (702) 386-0404
Toll Free: (866) 432-0404
Washoe County: (775) 284-3491
Rural Counties -
Nevada Legal Services
Carson City: (775) 883-0404
Toll Free: (800) 323-8666
Referrals to attorneys
who charge for their services may be obtained through the Nevada State Bar
Lawyer Referral and Information Service:
Las Vegas: (702)-382-2200
Toll Free: (800) 789-5747
Reno: (775)-329-4104
Toll Free: (800) 789-5747
Contacts:
Questions regarding benefit
checks or claim status must be directed to your telephone claim center:
Northern
Nevada (775) 684-0350
Southern Nevada (702) 486-0350
Long Distance or Interstate (888) 890-8211
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