Current through Register Vol. 6, March 22, 2024
(1) After filing an initial claim, a claimant
will receive an initial monetary determination stating whether the claimant has
sufficient wages to qualify for benefits.
(a)
Base period wages used to establish a monetary determination and a benefit year
in any state, including Montana, may not be:
(i) used by this state to establish a second
or subsequent monetary determination and benefit year; or
(ii) transferred by this state to another
state for the purpose of combining wages and employers as provided by
39-51-504,
MCA.
(b) For the
purposes of this rule, base period wages are deemed to be "used" when the base
period wages are:
(i) part of the calculation
that establishes the monetary amount of benefits payable on the
claim;
(ii) the basis for
establishing the benefit year of the claim; and
(iii) of an amount sufficient to qualify the
claimant for benefits under
39-51-201(2)
or
39-51-2105, MCA,
if the claimant is otherwise eligible to receive benefits with respect to that
claim.
(2)
The initial monetary determination informs the claimant of:
(a) the department's records of the
claimant's base period employer or employers;
(b) the amount of wages reported as having
been paid in each of the calendar quarters of the base period;
(c) the potential amount of benefits the
claimant may receive in the benefit year; and
(d) the effective date of the
claim.
(3) Except for
wages as described in (6), upon the request of a claimant, the department will
adjust the distribution of the claimant's base period wages by assigning the
wages to the calendar quarters in which the wages were earned rather than to
the calendar quarters in which they were paid.
(4) If a claimant's wage records have not
been received, and the department has determined that the employer is subject
to unemployment tax, the claimant may support the claim by affidavit or
documented evidence for the department's consideration in establishing the
amount of base period wages.
(5)
Generally, only wages actually or constructively paid determine the amount of
wages in the claimant's base period. Wages are constructively paid if they are
credited to the worker's account or set apart for a worker so that they may be
drawn upon by the worker at any time, although not actually in the worker's
possession. However, unpaid wages may be considered if a claimant:
(a) completes an affidavit stating:
(i) the name and address of any employer from
whom wages are due;
(ii) the amount
of unpaid wages; and
(iii) the
reasons why the wages have not been paid; and
(b) provides at least one of the following:
(i) a W-2 or 1099 form as required by the
internal revenue service;
(ii) a
signed statement from the employer affirming the truth of the claimant's
affidavit;
(iii) a copy of the
employer's schedule of assets and liabilities filed in a bankruptcy proceeding
showing the unpaid wage claim;
(iv)
a copy of the claimant's wage claim filed with the department, if the
department has not dismissed the wage claim; or
(v) a copy of a decision of the department or
a court of competent jurisdiction stating that the wages are owed the
claimant.
(6)
The following payments are wages which are assignable in the following periods:
(a) Payments made for termination of
employment in insured work generally known or described as severance pay,
separation pay, termination pay, wages in lieu of notice, continuation of wages
for a designated period of time following cessation of work, or other similar
payment, and payments made under an incentive, worker buy-out, or similar plan
designed to produce a general or specific reduction in force by inducing
workers to leave voluntarily or in lieu of involuntary termination, whether
paid in a lump sum or incrementally over any period of time, are attributable
to the quarter in which the separation from work occurred.
(b) Accrued vacation and sick leave paid at
or after separation, other than a temporary layoff, are attributable to the
quarter in which the separation from work occurred.
(c) Bonus, awards, incentives, rewards,
profit sharing, and stocks are attributable to the quarter the payment was
issued.
(d) Holiday pay is
attributable to the quarter the payment was issued.
(e) Payments received for accrued unused
vacation, sick leave, compensatory time or other similar leave when separation
has not occurred or during periods of temporary layoff are attributable to the
quarter in which the payment was issued. These payments are sometimes also
known as a "cash-out" of leave benefits.
(f) Backpay and settlements, in all cases,
will be prorated back over the time the payment represents. Only the portion of
the payment that is wages which would have been earned, or wages earned and not
paid, will be applied to weeks claimed and quarterly wages.
(g) Use of vacation or sick leave,
compensatory time or other similar leave paid during the course of employment
in insured work, including periods of temporary layoff, for time off from work
for vacation, whether voluntary or mandated, sick leave, or other leave with
pay is attributable to the quarter the payment was issued.
(h) Royalties, residual payments, and
commissions are attributable to the quarter in which the payment was
issued.
(7) Except as
provided in this rule, the initial monetary determination is final unless a
claimant requests revision of the determination within ten days after the
determination was mailed. Upon request of the department, the claimant may be
required to provide proof of earnings, such as check stubs, W-2 forms, or
statements from employers.
(8) A
monetary redetermination is final unless a claimant appeals the decision as
provided in
39-51-2402
and
39-51-2403,
MCA, within ten days of the date the redetermination was mailed.
39-51-301,
39-51-302,
MCA; IMP,
39-51-2105,
39-51-2201,
39-51-2202,
39-51-2203,
39-51-2204,
MCA;