a) An individual is
available for work, even if he or she imposes conditions upon the acceptance of
work, unless a condition so narrows opportunities that he or she has no
reasonable prospect of securing work. An individual is considered available for
work to the full extent permitted by 20 CFR
604, effective February 15, 2007,
except when inconsistent with the express holding of published Illinois case
law.
EXAMPLE 1: An individual who lives in a remote rural area
limits his availability to jobs within walking distance of his home. If few
jobs for which he is qualified are located within walking distance of his home,
it could be found that he has no reasonable prospect of securing the work and
therefore would not be available for work.
EXAMPLE 2: A claimant who had been a clerk at a retail store
is responsible for a minor child who is prevented from attending school due to
closures resulting from the COVID-19 virus. The individual must stay home to
watch his/her child until school reopens. However, the claimant is able to
perform work that could be performed from the isolation of his/her home (e.g.,
transcribing, data entry, virtual assistant services) and makes himself/herself
available to perform that work. While the claimant is not currently available
for work at a retail location, he/she is available for work due to his/her
availability for work that could be performed from home.
b) If domestic circumstances prevent an
individual from working during the normal days and hours that exist in his or
her occupation (or other work for which he or she is qualified), he or she is
unavailable for work.
1) EXAMPLE: An
individual, who was employed as a security guard, has children who require
full-time care. The individual is able to obtain child care during evenings
only, leaving him free to work nights only. Because there is a labor market for
night-shift security guards, he would be determined to be available for
work.
2) EXAMPLE: An individual and
her husband obtain a divorce, and she is awarded custody of their children. She
then quits her job as a hospital respiratory therapist because she is required
to work rotating shifts and be on emergency call and because she wishes to
spend all nights and weekends with her children. She states that she still
applies for work as a respiratory therapist, but has had to eliminate from her
list most hospitals because they will not guarantee day-shift work, the only
time for which she will arrange child care. She would be determined to be
unavailable for work.
3) EXAMPLE:
When the individual is laid off from her job as a bank teller, she, in turn,
lays off her babysitter, who is not needed so long as the individual is at
home. She states that, if she is offered a job, she will rehire her babysitter.
Despite the fact that she currently has no babysitter, this individual would be
determined to be available to work.
c) If the individual demands a wage that is
unreasonable and, thereby, prices himself or herself out of the labor market,
he or she is unavailable for work. Whether a wage demand is unreasonable is
determined by factors including, but not limited to: the individual's prior
wages and qualifications, the prevailing wage, labor laws, union agreements,
and the length of unemployment; generally, the individual must lower his or her
wage demand the longer he or she is unemployed.
1) EXAMPLE: An individual worked for 25 years
as a bookkeeper for a small but prosperous business that was eventually bought
out. She last earned $600 per week. Upon re-entering the labor market, she
discovers that her wage demand - inflated by her many years of service - is
much greater than that most employers are willing to pay. In the early weeks of
unemployment, she may seek work paying $600 per week, based upon her prior
wages and her qualifications. In ensuing weeks, she must lower her wage
expectations. As her unemployment approaches 26 weeks (or the time when an
"extended benefits" period might begin), she must further lower her wage
expectations. If, as time goes by, she adapts her wage expectations to meet
market conditions, she would be determined to be available for work.
2) EXAMPLE: The individual is a union
electrician. After 20 weeks of unemployment, he still insists upon the wage he
was last paid, that is union scale. He explains that the union has agreements
affecting a substantial percentage of the jobs in his locality and, were he to
accept a job paying below union scale, he would be disciplined by being denied
future job opportunities. His insistence upon union scale is not unreasonable.
However, if he is seeking work in another locality, where his union is not
active, his wage demand with respect to that locality is
unreasonable.
3) EXAMPLE: The
individual worked as a fast food counter clerk, earning $0.50 above minimum
wage. During the first weeks of unemployment, he sought work paying that same
wage. For the next few weeks, he sought work paying minimum wage. Even though
he has now been unemployed for 25 weeks, he has not reduced his wage
expectation any further. This is not unreasonable: to require him to seek work
paying less than minimum wage would violate minimum wage laws.
d) If there are no work
opportunities that an individual can reach from his or her home, he or she is
unavailable for work. If the individual unreasonably restricts the distance or
time he or she will travel to work, he is unavailable for work. Reasonableness
is determined by factors including, but not limited to: where work
opportunities are located, the customs of workers similarly situated (as to
location or occupation), the types and costs of transportation, physical
capabilities, and the length of unemployment; generally, an individual is
expected to extend the area in which he or she will seek work the longer he or
she is unemployed. Generally, in metropolitan areas, 11/2 hours, each way, is
not an unreasonable travel time.
1) EXAMPLE:
An individual owns no car, and there is no public transportation near his home.
He used to obtain work through a temporary help service that transported him to
clients' job sites. He no longer works as a temporary. He states that he will
work for any employer, provided it will furnish transportation to the job. He
would be determined to be unavailable for work since the majority of employers
do not furnish transportation for their employees.
2) EXAMPLE: The individual resides in a
suburb 30 miles northwest of downtown Chicago. He was last employed as an
attorney, working in a small practice in that suburb, where his travel time to
work was 10 minutes. In the first weeks of unemployment, he unsuccessfully
sought work in his community and neighboring suburbs. Although he has now been
unemployed for 2 months, he still does not seek work in downtown Chicago, to
which most attorneys commute, because rush hour travel time would be nearly
11/2 hours each way. He would be determined to be unavailable for work, because
he has not extended the area in which he will seek work, commuting to downtown
Chicago is customary for workers in his occupation, and 11/2 hours travel time
is not unreasonable.
3) EXAMPLE:
Although the individual is developmentally disabled, she is capable of working
in certain unskilled occupations. At her last job, she swept floors in a local
drug store. Her father testifies that she must work within walking distance of
home, because, if she rides public transportation, she becomes confused and
lost. In this case, the individual's restriction upon distance to work is
reasonable, provided that work opportunities continue to exist within walking
distance of her home, in which case she will be determined to be available for
work.
e) If an
individual's personal habits are inconsistent with the type of work he or she
is seeking, he or she is unavailable for work.
EXAMPLE: The individual, a punch press operator, was
discharged because she would not cut her waist-length hair or wear a hair net
or remove oversized rings she wore on her fingers; her hair and rings are
considered safety hazards. She states that she is seeking work as a punch press
operator, but that she will not work for any employer who requires her to cut
her hair or wear a hair net or remove her rings. She would be determined to be
unavailable for work.
f) An
individual shall not be held unavailable for work on the basis of refusing to
consider particular work that he or she honestly believes would violate sincere
religious or moral convictions. However, an individual shall be held
unavailable if his or her convictions eliminate virtually all of the labor
market.
EXAMPLE: For many years, an individual was a hot dog vendor,
working in sports stadiums on Saturdays and Sundays. The individual states that
he will no longer work in the food service industry, nor will he work on
Sunday. He explains that he has recently married and that his wife has
introduced him to religion. Among the tenets of his religion are strict dietary
laws, forbidding even handling of many commonplace foods; also, Sunday is
prescribed as a day of rest. If it is determined that his religious convictions
are sincere, he would not be held unavailable for work solely on the basis of
refusing to consider food service or Sunday work, even though these may have
been suitable previously. Still, he must demonstrate that he is available for
other types of work at other times.
g) If the individual is self-employed,
availability depends upon the nature and extent of that self-employment;
whether the individual's investment of time or capital prevents him or her from
accepting other work in the labor market.
EXAMPLE: The individual worked as a secretary in a real
estate agency. When she was laid off, she grew depressed, until she watched a
cable television show. The host explained how to buy property without making
down payments and how to enhance cash-flow. It sounded so easy that she
immediately rearranged the den in her house to serve as an office. In the
morning, she would read newspapers and make telephone calls. She went to
foreclosure sales and auctions. Most afternoons and evenings, she would inspect
properties. She also applied for jobs in her usual occupation, secretary. This
individual would be determined available for work, if the trier of fact finds
that she had not yet made a substantial commitment to her own business. If,
however, she had purchased properties, and was involved in the management of
those properties to the extent that it would conflict with normal working
hours, she would be determined to be unavailable for work.
h) Whether a seasonal worker is available for
work during the off-season is determined by whether there is some prospect of
obtaining work in his or her customary occupation. If there is no prospect of
obtaining that work, the individual must seek other work for which he or she is
qualified.
EXAMPLE: The individual is a golf course maintenance man. The
courses at which he works are open from April through October. He has never
been employed during the off-season. On his work search record, for weeks in
January, he indicates that he is seeking work in the field of lawn care and
maintenance, for which there are no prospects of work. He would be determined
unavailable for work.
i)
Whenever an individual appears to be imposing a condition upon his or her
acceptance of work, it is essential to establish whether he or she is merely
expressing a preference as opposed to actually imposing a condition.
EXAMPLE: The individual last earned $7.50 per hour, the
prevailing wage in her occupation. During her interview with the claims
adjudicator, she states that she will accept $9.00 per hour for similar work.
During the interview, the adjudicator reviews her work search record and asks
what the wages were for her contacts during the period under review. The work
search contacts were for work paying closer to $7.50 than $9.00. This might
indicate that $9.00 was a preference, not a condition. Therefore, she would be
determined to be available for work.
j) The best evidence that an individual is
"available for work" is that he or she readily secures work, despite the
imposition of a condition.
EXAMPLE: The individual is laid off from her job in an
occupation that ordinarily provides daytime work only. She files a claim for
benefits, and, on an initial questionnaire, she writes that she will work
nights only, because her child care arrangements have changed. That week, she
makes employer contacts for night-shift work. As a result of that work search,
she readily secures work beginning the next week. She would be determined to be
available for work for the prior week.
