52-06-02. Disqualification for benefits.
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/nd/title-52/chapter-52-06-benefits/52-06-02·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
An individual is disqualified for benefits:
1. a. For the week in which the individual has left the individual's most recent
employment voluntarily without good cause attributable to the employer, and
thereafter until such time as the individual:
(1)Can demonstrate that the individual has earned remuneration for personal
services in employment from and after the date of the unemployment
compensation claim filing, equivalent to at least eight times the individual's
weekly benefit amount as determined under section 52-06-04; and
(2)Has not left the individual's most recent employment under disqualifying
circumstances. b. A temporary employee of a temporary help firm is deemed to have left
employment voluntarily if the employee does not contact the temporary help firm
for reassignment before filing for benefits. Failure to contact the temporary help
firm is not deemed a voluntary leaving of employment unless the claimant was
advised of the obligation to contact the temporary help firm upon completion of an
assignment and advised that unemployment benefits may be denied for failure to
contact the temporary help firm. As used in this subsection, "temporary
employee" means an employee assigned to work for a client of a temporary help
firm; and "temporary help firm" means a firm that hires that firm's own employees
and assigns these employees to a client to support or supplement the client's
workforce in a work situation such as employee absence, temporary skill
shortage, seasonal workload, a special assignment, and a special project. c. This subsection does not apply if job service North Dakota determines that the
individual in an active claim filing status accepted work which the individual could
have refused with good cause under section 52-06-36 and terminated such
employment with the same good cause and within the first ten weeks after
starting work. d. This subsection does not apply if the individual left employment or remains away
from employment following illness or injury upon a physician's written notice or
order; no benefits may be paid under this exception unless the employee has
notified the employer of the physician's requirement and has offered service for
suitable work to the employer upon the individual's capability of returning to
employment. This exception does not apply unless the individual's capability of
returning to employment and offer of service for suitable work to the employer
occurs within sixty days of the last day of work. However, the cost of any benefits
paid under this exception may not be charged against the account of the
employer, other than a reimbursing employer, from whom the individual became
separated as a result of the illness or injury. Job service North Dakota may
request and designate a licensed physician to provide a second opinion regarding
the claimant's qualification; however, no individual may be charged fees of any
kind for the cost of such second opinion. e. This subsection does not apply if the individual left the most recent employment
because of an injury or illness caused or aggravated by the employment; no
benefits may be paid under this exception unless the individual leaves
employment upon a physician's written notice or order, the individual has notified
the employer of the physician's requirement, and there is no reasonable
alternative but to leave employment. f. For the purpose of this subsection, an individual who left the most recent
employment in anticipation of discharge or layoff must be deemed to have left
employment voluntarily and without good cause attributable to the employer. g. For the purpose of this subsection, "most recent employment" means
employment with any employer for whom the claimant last worked and voluntarily
quit without good cause attributable to the employer or with any employer, in
insured work, for whom the claimant last worked and earned wages equal to or
exceeding eight times the individual's weekly benefit amount. h. This subsection does not apply if the individual leaves work which is two hundred
road miles [321.87 kilometers] or more, as measured on a one-way basis, from
the individual's home to accept work which is less than two hundred road miles
[321.87 kilometers] from the individual's home provided the work is a bona fide
job offer with a reasonable expectation of continued employment. i. This subsection does not apply if the individual voluntarily leaves most recent
employment to accept a bona fide job offer with a base-period employer who laid
off the individual and with whom the individual has a demonstrated job
attachment. For the purposes of this exception, "demonstrated job attachment"
requires earnings in each of six months during the five calendar quarters before
the calendar quarter in which the individual files the claim for benefits. j.
(1)This subsection does not apply if the reason for separation from the
individual's employment is directly attributable to domestic violence, stalking,
or sexual assault that is verified by documentation submitted to job service
North Dakota which substantiates the individual's reason for separation from
the most recent employment and such continued employment would
jeopardize the safety of the individual or of the individual's spouse, parent,
or minor child. After receiving a claim for unemployment insurance benefits
for which the individual identifies domestic violence, stalking, or sexual
assault as the reason for separation, job service North Dakota shall notify
the most recent employer of the reason for separation provided by the
individual.
(2)For purposes of this subdivision, documentation of domestic violence or
sexual assault includes:
(a)A court order, protection order, restraining order, or other record filed
with a court;
(b)A police or law enforcement record;
(c)A medical record indicating domestic violence or sexual assault; or
(d)A written affidavit provided by an individual who has assisted the
claimant in dealing with the domestic violence or sexual assault and
who is a:
[1] Licensed counselor;
[2] Licensed social worker;
[3] Member of the clergy;
[4] Director or domestic violence advocate at a domestic violence
sexual assault organization as defined in section 14-07.1-01; or
[5] Licensed attorney.
(3)For purposes of this subdivision, documentation of stalking must include:
(a)A police or law enforcement record; and
(b)A written affidavit provided by an individual who has assisted the
claimant in dealing with the stalking and who is a:
[1] Licensed counselor;
[2] Licensed social worker;
[3] Member of the clergy;
[4] Director of domestic violence advocate at a domestic violence
sexual assault organization as defined in section 14-07.1-01; or
[5] Licensed attorney.
(4)Documentation must be received by job service North Dakota within
fourteen calendar days from the date the individual files a claim for
unemployment insurance benefits after separating from employment for
reasons directly attributable to domestic violence, stalking, or sexual
assault.
(5)A false statement of domestic violence, stalking, or sexual assault in a claim
for unemployment insurance benefits is subject to subsection 8 and section
52-06-40. k. This subsection does not apply if the individual is a military spouse who, after
disclosure to the individual's employer and a reasonable attempt to maintain the
employment relationship through accommodation, voluntarily left the most recent
employment to relocate because of permanent change of station orders of the
individual's military-connected spouse. For purposes of this subdivision:
(1)"Military spouse" means the spouse of a member of the armed forces of the
United States or a reserve component of the armed forces of the United
States stationed in this state in accordance with military orders or stationed
in this state before a reassignment to duties outside this state.
(2)"Permanent change of station orders" means the assignment, reassignment,
or transfer of a member of the armed forces of the United States or a
reserve component of the armed forces of the United States from the
member's present duty station or location without return to the previous duty
station or location. 2. For the week in which the individual has been discharged for misconduct in connection
with the individual's most recent employment and thereafter until such time as the
individual:
a. Can demonstrate that the individual has earned remuneration for personal
services in employment from and after the date of the unemployment
compensation claim filing, equivalent to at least ten times the individual's weekly
benefit amount as determined under section 52-06-04; and
b. Has not left the individual's most recent employment under disqualifying
circumstances.
For the purpose of this subsection, "most recent employment" means employment with
any employer for whom the claimant last worked and was discharged for misconduct
in connection with the claimant's employment or with any employer, in insured work,
for whom the claimant last worked and earned wages equal to or exceeding ten times
the claimant's weekly benefit amount. 3. If the individual has failed, without good cause, either to accept suitable employment;
to apply for suitable employment; or to return to the individual's customary
self-employment, if any, when so directed to do so by the bureau or its authorized
representative. Such disqualification must continue for the week in which such failure
occurred and thereafter until such time as the individual:
a. Can demonstrate that the individual has earned remuneration for personal
services in employment equivalent to at least ten times the individual's weekly
benefit amount as determined under section 52-06-04; and
b. Has not left the individual's most recent employment under disqualifying
circumstances. 4. For any week with respect to which it is found that the individual's unemployment is
due to any kind of labor dispute, including a strike, sympathy strike, or lockout;
provided, that this subsection does not apply if it is shown that:
a. The individual is not participating in or directly interested in the labor dispute; and
b. The individual does not belong to a grade or class of workers of which,
immediately before the commencement of the labor dispute, there were members
employed at the premises at which the labor dispute occurs, any of whom are
participating in or directly interested in the labor dispute; provided, that if in any
case separate branches of work, which are commonly conducted as separate
businesses in separate premises, are conducted in separate departments of the
same premises, each such department must, for the purpose of this subsection,
be deemed to be a separate factory, establishment, or other premises. 5. For any week with respect to which or a part of which the individual has received or is
seeking unemployment benefits under an unemployment compensation law of another
state or of the United States; provided, that if the appropriate agency of such state or
of the United States finally determines that the individual is not entitled to such
unemployment benefits, this disqualification does not apply. 6. For any week of unemployment if such individual is a student registered for a full-time
curriculum at, and is regularly attending, an established school, college, or university,
and the scheduled class hours are the same time period or periods as the normal work
hours of the occupation from which that individual earned the majority of the wages in
that individual's base period, unless that individual is authorized to receive benefits
while in training pursuant to subsection 3 of section 52-06-01. However, this
disqualification does not apply to students registered for a full-time curriculum who
have earned the majority of the wages in their base periods for services performed
during weeks in which the individual was so registered and attending school. As used
in this subsection, the term "full-time curriculum" means a course load of twelve or
more credit hours or a course load found to be equivalent by rule adopted by job
service North Dakota.
7. For any week in which the individual is partially or totally unemployed by reason of a
disciplinary suspension of not more than thirty days by the individual's employer for
misconduct connected with the individual's employment, and the bureau so finds.
8. For the week in which the individual has filed an otherwise valid claim for benefits and:
a. For one year from the date on which a determination is made that such individual
has made a false statement for the purposes of obtaining benefits to which the
individual was not lawfully entitled. Provided, however, that this disqualification
does not apply to cases in which it appears to the satisfaction of job service North
Dakota that the false statement was made by reason of a mistake or
misunderstanding of law or of facts without fraudulent intent; or
b. For one year when the individual has been separated from the individual's last
employment because of gross misconduct in connection with work.
9. Which are based on service performed in an instructional, research, or principal
administrative capacity for any educational institution, for any week of unemployment
commencing during the period between two successive academic years, or during a
similar period between two regular but not successive terms, or during a period of paid
sabbatical leave provided for in the individual's contract, if the individual performed
such services in the first of such academic years or terms and if there is a contract or a
reasonable assurance that the individual will perform services in any such capacity for
any educational institution in the second of such academic years or terms. This
disqualification does not apply to such services performed by an individual who is in
the employ of an elementary or secondary school operated by the federal government
or to an individual with respect to services performed in employment other than
employment as defined in subdivisions f and g of subsection 17 of section 52-01-01.
Except for the provisions of this subsection, benefits based on service in employment
as defined in subdivisions f and g of subsection 17 of section 52-01-01 are payable in
the same amount, on the same terms, and subject to the same conditions as
compensation payable on the basis of other service subject to the North Dakota
unemployment compensation law. 10. Which are based on services performed in any other capacity not described in
subsection 9 for any educational institution, for any week which commences during a
period between two successive academic years or terms if the individual performed
such services in the first of such academic years or terms and there is a reasonable
assurance that the individual will perform such services in the second of such
academic years or terms. This disqualification does not apply to such services
performed by an individual who is in the employ of an elementary or secondary school
operated by the federal government or to an individual with respect to services
performed in employment other than employment as defined in subdivisions f and g of
subsection 17 of section 52-01-01. Except for the provisions of this subsection,
benefits based on service in employment as defined in subdivisions f and g of
subsection 17 of section 52-01-01 are payable in the same amount, on the same
terms, and subject to the same conditions as compensation payable on the basis of
other service subject to the North Dakota unemployment compensation law. If
compensation is denied to any individual under this subsection and the individual was
not offered an opportunity to perform such services for the educational institution for
the second of such academic years or terms, that individual is entitled to a retroactive
payment of compensation for each week for which the individual filed a timely claim for
compensation and for which compensation was denied solely by reason of this
subsection. 11. Which are based on any services described in subsection 9 or 10 for any week which
commences during an established and customary vacation period or holiday recess if
the individual performs the services in the period immediately before the vacation
period or holiday recess, and there is a reasonable assurance that the individual will
perform the services in the period immediately following the vacation period or holiday
recess. 12. Which are based on any services described in subsection 9 or 10 if the individual
performed the services in an educational institution while in the employ of an
educational service agency. The disqualification must be as specified in subsections 9,
10, and 11. For this purpose the term "educational service agency" means a
governmental agency or governmental entity which is established and operated
exclusively for the purpose of providing such services to one or more educational
institutions. 13. Which are based on service, substantially all of which consists of participating in sports
or athletic events or training or preparing to so participate, for any week which
commences during the period between two successive sport seasons or similar
periods if such individual performed such services in the first of such seasons or
similar periods and there is a reasonable assurance that such individual will perform
such services in the later of such seasons or similar periods. 14. Which are based on service performed by an alien, unless such alien is an individual
who was lawfully admitted for permanent residence at the time such services were
performed, was lawfully present for purposes of performing such services, or
otherwise was permanently residing in the United States under color of law at the time
such services were performed, including an alien who was lawfully present in the
United States as a result of the application of the provisions of sections 207 and 208 or
section 212(d)(5) of the Immigration and Nationality Act.
a. Any data or information required of individuals applying for benefits to determine
whether benefits are not payable to them because of their alien status must be
uniformly required from all applicants for benefits.
b. In the case of an individual whose application for benefits would otherwise be
approved, no determination that benefits to such individual are not payable
because of the individual's alien status may be made except upon a
preponderance of the evidence. 15. For any week with respect to which an individual is receiving a pension, including a
governmental pension other than federal social security retirement benefits, and any
other pension, retirement pay, retired pay, annuity, and any other similar periodic
payment under a plan maintained or contributed to by a base-period or chargeable
employer as determined under applicable law, unless the weekly benefit amount
payable to such individual for such week is reduced, but not below zero:
a. By the prorated weekly amount of the pension after deduction of three-fourths of
the portion of the pension that is directly attributable to the percentage of the
contributions made to the plan by such individual for claims filed after June 30,
1985, and by the prorated weekly amount of the pension after deduction of the
portion of the pension that is directly attributable to the percentage of the
contributions made to the plan by such individual for claims filed after June 30,
1986;
b. By the entire prorated weekly amount of the pension if subdivision a or c does not
apply; or
c. By one-fourth of the pension if the entire contributions to the plan were provided
by such individual, by the individual and an employer, or by any other person that
is not a base-period or chargeable employer as determined under applicable law,
for claims filed after June 30, 1985, and by no part of the pension if the entire
contributions to the plan were provided by such individual, by the individual and
an employer, or by any other person that is not a base-period or chargeable
employer as determined under applicable law, for claims filed after June 30,
1986.
A reduction may not be made under this subsection by reason of the receipt of a
pension if the services performed by the individual during the base period, or
remuneration received for such services, for the employer did not affect the individual's
eligibility for, or increase the amount of, the pension, retirement pay, retired pay,
annuity, or similar payment. This limitation does not apply to pensions paid under the
Railroad Retirement Act of 1974, or the corresponding provisions of prior law.
Payments made under the Railroad Retirement Act of 1974 must be treated solely in
the manner specified by subdivisions a, b, and c. A reduction may not be made under
this subsection by reason of receipt of federal social security retirement benefits.
16. Except that no otherwise eligible individual may be denied benefits for any week
because the individual is in training approved under section 236(a)(1) of the Trade Act
of 1974 [19 U.S.C. 2296(a)(1)], nor may such individual be denied benefits by reason
of leaving work to enter such training, provided the work left is not suitable
employment, or because of the application to any such week in training of provisions in
the North Dakota unemployment compensation law, or any applicable federal
unemployment compensation law, relating to availability for work, active search for
work, or refusal to accept work.
For purposes of this subsection, the term "suitable employment" means with respect to
an individual, work of a substantially equal or higher skill level than the individual's past
adversely affected employment, as defined for purposes of the Trade Act of 1974, and
wages for such work at not less than eighty percent of the individual's average weekly
wage as determined for the purposes of the Trade Act of 1974.
17. With respect to services to which subdivisions f and g of subsection 17 of section
52-01-01 apply, if the services are provided to or on behalf of an educational
institution, benefits are not payable under the same circumstances and subject to the
same terms and conditions as described in subsections 9, 10, 11, and 12.