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Unemployment benefits provide partial wage replacement for workers who have lost their jobs. This safety net is intended to help provide a bridge to a worker’s next job. The idea is that when someone loses a job for reasons beyond his control, he can apply for this temporary benefit. Workers themselves decide whether to strike or honor a picket line. This level of control is precisely why most striking workers are generally not eligible for immediate unemployment compensation.
Filing vs. Eligiblity
Any person who has lost her job may file for unemployment. This simply means that the person has completed the proper paperwork and submitted it to her state’s agency. It is that agency’s responsibility to determine if the person is eligible. What that means will vary by circumstances and by state. The basic test generally is that the job loss has to be through no fault of the employee. Striking workers may file for unemployment, but it will be the job of the state to determine if it was through no fault of the employee.
Each state has different rules and analysis for whether going on strike is an involuntary job loss. In New York, for example, the “Strike, Lockout, or Labor Dispute” is a check box on the benefit application form. In Texas, an applicant must indicate whether or not he is a union member. In California, the agency requires a phone interview for applicants who are involved in a strike, lockout or labor dispute. These examples illustrate that individual states need additional information regarding the labor dispute before determining eligibility. The state agencies want to gather as much information as possible on the details of the dispute.
Factors Affecting Eligibility
Factors that states have considered in determining if strikers are eligible for assistance include whether an employee has made an unconditional offer to return to work, whether an employee is providing financial assistance (i.e., union dues) for the union that is striking, or if the employer has permanently replaced the striking workers. An unconditional offer to return, which is when an employee tells the employer he is willing to come back to work on the employer's terms, or the hiring of permanent replacements (the employer has given the employee's job to someone else), would tip the scale toward offering benefits. In Texas, for example, financial support of the union would be a factor against eligibility.
If you are involved in a labor dispute, whether as a striker or having been locked out by your employer, the determination of your eligibility for unemployment benefits can be a complicated analysis that varies by state. In New York, for examples, striking workers become eligible for benefits after a 49-day waiting period. In other states, strikers are always considered to have voluntarily left their jobs. The good news is that each state agency and the U.S. Department of Labor have experience in these issues and will provide information for anyone filing for benefits.
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Leigh C. Raper holds a B.A. in English and politics and public affairs from the University of Miami and her J.D. from Pepperdine University School of Law. She is pursuing her M.F.A. in creative writing and writing for the performing arts from the low-residency program at the University of California, Riverside - Palm Desert Campus.
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