Unemployment Status - Section 8-801 - Maryland Unemployment Decisions Digest
The provisions dealing with unemployment status were
previously located in Article 95A, Section 20(l)
of the Annotated Code of Maryland. After the law
was revised in 1991, these provisions were recodified
as Section 8-801 of the Labor and Employment Article of the Annotated Code.
Section 8-801 requires that in order to be eligible for
benefits, a claimant shall be unemployed. A claimant
is considered to be unemployed in any week during
which the claimant: (1) does not perform work for
which wages are payable; or (2) performs less than
full-time work for which wages payable are less
than the claimant's weekly benefit amount plus allowances for dependents.
As used in Section 8-801, the term "wages payable"
is properly construed as meaning "wages currently
payable" and not "wages legally due and payable
upon a contingency." Waters v. Maryland Unemployment
Insurance Fund, 220 Md. 337, 152 A.2d 811 (1959).
Unemployment Status - Section 8-801
I. In General
A. Separation Not Required
A claimant on leave of absence is unemployed under
Section 8-801 even though there remains some connection
between the claimant and the employer such as continuation
of medical insurance benefits, seniority rights and
a guaranteed return date. Such circumstances are often
characteristic of a layoff. These factors are irrelevant
to the statutory definition of unemployment contained
in Section 8-801. The crucial test is whether an individual
has performed services with respect to which wages
are paid or payable. Fourtinakis v. Johns Hopkins University, 870-BH-81.
The claimant, a rural carrier relief employee for the
Postal Service, is unemployed under Section 8-801
for each week in which he earns less than his weekly
benefit amount. The fact that he is not "separated"
from the employment is not relevant. The intent
of the law is to encourage a person to work, even
if part-time work is the only work available to
him, by allowing him to collect the difference between
his weekly benefit amount and his earnings.
Helmstetter v. United States Postal Service, 1507-BR-82.
B. Partial Unemployment
A claimant is not "unemployed" within the meaning
of Section 8-801 where he is employed on a full-time
basis, even though he earns less than his weekly
benefit amount plus allowances for dependents. The
Section 8-801 definition specifically requires that
a claimant have less than full-time work during
each benefit week in question. Barclay v. Freeway Gulf Station, 839-BH-83.
Where a claimant earns $50.25 per week for "less
than full-time work" and his weekly benefit amount
is $40.00, the claimant's wages exceed his weekly
benefit amount and he is not unemployed within the
meaning of Section 8-801. Omisore v. Dundalk Community College, 590-BR-84.
During the week ending December 10, 1988, the claimant
was in claim status. She was employed by two different
employers during this week, both on a part-time
basis. The claimant worked for the YMCA that week
for three days, two hours each day, at the pay rate
of $7.00 per hour. The claimant earned $42.00 for
the week. During the same week, she also worked
part-time for Sojourner-Douglas College earning
$47.54. The claimant's total earnings for the week
ending December 10, 1988 were $89.54. Her weekly
benefit amount was $181.00. The claimant earned
less than her weekly benefit amount during the week
ending December 10, 1988. Therefore, she was unemployed
within the meaning of Section 8-801 and is entitled
to payment of partial benefits. Patterson, 777-BH-90.
II. Performance of Services for Which Wages are
A. Performance of Less Than Full-Time Work
In determining whether a claimant performed less than
full-time work under Section 8-801, the question of
what is full-time work is a factual one, dependent
on what is customary and usual for the particular
employment in question. Taylor, 1431-BH-94.
B. Performance of Services
The claimant was deemed unemployed within the meaning
of Section 8-801 even though she sold Avon products
during the period of her layoff. The sale of Avon
products required no active service on the part
of the claimant, and she had sold Avon products
while employed full-time. Any earnings from Avon
would have reduced the claimant's weekly benefit amount. Rose, 755-BH-81.
The proper criteria for the determination of whether
a person is unemployed within the meaning of Section
8-801 is whether the person has performed services
for which wages are payable during the applicable
week. Thus, where a teacher elects to receive her
salary for nine months' work over a twelve month
period, or where a school crossing guard received
payment, after the school year was over, for past
services performed, the receipt of this pay for
past services is not disqualifying under Section
8-801. Similarly, the performance of services for
which no wages are payable is not disqualifying
under Section 8-801, though these services could
bring about a disqualification under Section 8-903.
Hyman v. Bearsch Bus Company, Inc., 831-BR-89.
On February 1, 1991, the employer notified the claimants
that they were being permanently laid off. However,
they were kept on the payroll until February 28,
1991 and received the same compensation they had
been receiving while working. Most of the claimants
also received a lump sum "permanent separation amount."
During the month of February, the claimants were
told that they should either report to work or visit
the career counseling center set up by the employer
in a different location. All of the claimants were
paid, whether they reported to work, reported to
the career counseling center, or did neither. The
employer failed to show which claimants, if any,
performed services during this period. Payments
made in weeks during which no services were performed
do not take the recipients out of the category of
the "unemployed" within the meaning of Section 8-801.
Instead, these payments constitute dismissal payments.
Since the claimants' jobs were abolished, these
payments are not disqualifying under Section 8-1009(a).
Abbott et al. v. Westinghouse Electric Corporation,
1458-BH-91. NOTE: See, Introduction, Section 8-1009,
this digest for the 1996 legislative changes.
C. Wages Payable
In reaching a determination under Section 8-801
concerning a partially employed claimant, the Board
attributed one commission check ($1400) to all of
the weeks during which the claimant performed some
services toward the receipt of the commission (14
weeks), and concluded that the claimant performed
services each week for which wages of $100 each
week were payable to him. Since this amount is less
than the claimant's weekly benefit amount, the claimant
is entitled to partial benefits. Dayton, 199-BR-83.
The test of whether a person is unemployed is whether
or not he is performing services for which wages
are payable. The exact timing of the receipt of
the payments is not relevant. Since the claimant
was performing commission sales work and was generating
commissions, he was not unemployed within the meaning
of Section 8-801, even though those commissions
were not paid until a few weeks later. Fallin, 71-BH-88.
The claimant performed no services after March 23rd.
Under Section 8-801, he cannot be disqualified from
receiving benefits after that date. Although he
may have received payments or bonuses after that
date, and although they may have been payments for
work, they were not payments for work after March
23rd. The receipt of payments for work performed
in past weeks does not disqualify a person from
benefits under Section 8-801. Bobilin v. Hahn
Automotive Warehouse, Inc., 919-BR-89.
D. Back Pay and Liquidated Damages As Wages
Section 8-801 is not the proper basis for a disqualification
for a person who receives back pay. Instead, the
proper basis for a disqualification is under Section
8-809. Wilburn v. Tressler-Lutheran Service, Inc., 190-BR-84.
III. Self-Employment and Corporate Ownership
The mere fact that a claimant is self-employed or
attempting to start his own business, in the absence
of any evidence that he is performing services for
which wages are paid or payable, does not automatically
disqualify the claimant within the meaning of Section
8-801. However, Section 8-903 eligibility should be carefully examined. Veith, 34-BR-82.
B. Corporate Officer Status
A claimant's status as a corporate officer does
not, in and of itself, disqualify the claimant under
Section 8-801. However, it is appropriate to closely
examine the eligibility of corporate officers under
Section 8-903. Gleason v. William J. Gleason and Sons, Inc., 1033-BH-81.
The claimant corporate officer was not unemployed or
eligible for benefits under Section 8-801 where
he performed services for the corporation for which
he was paid. Shepherd, 1234-BH-82.
C. Burden of Proof
Once it is shown that a claimant performed services
for his own business and that the business grossed
substantial income, the burden is on the claimant
to show that none of the business receipts have
gone to reimburse himself for the personal services
performed on behalf of the business. Failing this,
the Board may find that remuneration was made to
the claimant. Witt, 550-BH-83.
If a claimant both owns a business and performs any
services with regard to that business, the burden
is on the claimant to show that the gross profit
of the business is not attributable to his services.
But where a business has operated for 20 years without
the claimant's substantial involvement, and where
it has produced a monthly income of $340 based primarily
on the services of its one full-time employee, and
where the claimant performed no services in many
weeks and a maximum of four hours of services in
other weeks, the company earnings were not attributed
to the claimant's services, and no disqualification
was imposed under Section 8-801. Eaton, 571-BR-86.
D. Ownership Status
There is no disqualification under Section 8-801
from receiving the profits derived solely from an
ownership interest in a business. Eaton, 571-BR-86.