2009 North Carolina Code
Chapter 96 - Employment Security.
§ 96-13. Benefit eligibility conditions.

§ 96‑13.  Benefit eligibility conditions.

(a)        An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that ‑

(1)        The individual has registered for work at and thereafter has continued to report at an employment office as directed by the Commission in accordance with such regulations as the Commission may prescribe;

(2)        The individual has made a claim for benefits in accordance with the provisions of G.S. 96‑15(a);

(3)        The individual is able to work, and is available for work: Provided that, unless temporarily excused by Commission regulations, no individual shall be deemed available for work unless he establishes to the satisfaction of the Commission that he is actively seeking work: Provided further, that an individual customarily employed in seasonal employment shall, during the period of nonseasonal operations, show to the satisfaction of the Commission that such individual is actively seeking employment which such individual is qualified to perform by past experience or training during such nonseasonal period: Provided further, however, that no individual shall be considered available for work for any week not to exceed two in any calendar year in which the Commission finds that his unemployment is due to a vacation. In administering this proviso, benefits shall be paid or denied on a payroll‑week basis as established by the employing unit. A week of unemployment due to a vacation as provided herein means any payroll week within which the equivalent of three customary full‑time working days consist of a vacation period. For the purpose of this subdivision, any unemployment which is caused by a vacation period and which occurs in the calendar year following that within which the vacation period begins shall be deemed to have occurred in the calendar year within which such vacation period begins. For purposes of this subdivision, no individual shall be deemed available for work during any week that the individual tests positive for a controlled substance if (i) the test is a controlled substance examination administered under Article 20 of Chapter 95 of the General Statutes, (ii) the test is required as a condition of hire for a job, and (iii) the job would be suitable work for the claimant. The employer shall report to the Commission, in accordance with regulations adopted by the Commission, each claimant that tests positive for a controlled substance under this subdivision. An unemployed individual shall not be disqualified for eligibility for unemployment compensation solely on the basis that the individual is in school.

(4)        No individual shall be deemed able to work under this subsection during any week for which that person is receiving or is applying for benefits under any other State or federal law based on his temporary total or permanent total disability. Provided that if compensation is denied to any individual for any week under the foregoing sentence and such individual is later determined not to be totally disabled, such individual shall be entitled to a retroactive payment of the compensation for each week for which the individual filed a timely claim for compensation and for which the compensation was denied solely by reason of the foregoing sentence.

(5)        The individual has participated in reemployment services, if the Division referred the individual to these services after determining, through use of a worker profiling system, that the individual would likely exhaust regular benefits and would need reemployment services to make a successful transition to new employment, unless the individual establishes justifiable cause for failing to participate in the services.

(6)        Notwithstanding any other provisions of this Chapter, an unemployed individual shall not be ineligible for unemployment compensation benefits under any provision of the Employment Security Law relating to availability for work, active search for work, or refusal to accept work solely because the individual is seeking only part‑time work as defined in G.S. 96‑8(29), provided that a majority of weeks of work in the individual's base period include part‑time work.

(b)        (1)        The payment of benefits to any individual based on services for nonprofit organizations, hospitals, or State hospitals and State institutions of higher education, other institutions of higher education, or secondary schools and subdivisions of secondary schools subject to this Chapter shall be in the same manner and under the same conditions of the laws of this Chapter as applied to individuals whose benefit rights are based on other services subject to this Chapter. Except that with respect to services in the educational institutions listed above:

a.         In an instructional, research, or principal administrative capacity, compensation shall not be payable based on such services for any week commencing during the period between two successive academic years or terms, or, when an agreement provides instead for a similar period between two regular but not successive terms, during that period, to any individual if he performs such services in the first of the academic years or terms and if there is a contract or reasonable assurance that the individual will perform services in any such capacity for any educational institution in the second of the academic years or terms; and,

b.         In any other capacity for an educational institution:

1.         Compensation shall be denied on the basis of such services for any week which commences during a period between two successive academic years or terms if the individual performs such services in the first of the academic years or terms and there is a reasonable assurance that the individual will perform such services in the second of the academic years or terms, except that

2.         If compensation is denied to any individual for any week under subclause 1 and the individual was not offered an opportunity to perform such services for the educational institution for the second of the academic years or terms, the individual shall be entitled to a retroactive payment of the compensation for each week for which the individual filed a timely claim for compensation and for which compensation was denied solely by reason of subclause 1; and,

c.         With respect to any services described in clause a or b, compensation payable on the basis of such services shall be denied to any individual for any week which commences during an established and customary vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following the vacation period or holiday recess; and,

d.         With respect to any services described in clause a or b, compensation on the basis of services in any such capacity shall be denied as specified in clauses a, b, and c. to any individual who performed such services in an educational institution while in the employ of an educational service agency, and 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; and,

e.         With respect to any services to which G.S. 96‑13(b)(1) applies, if such services are provided to or on behalf of an educational institution, compensation shall be denied under the same circumstances as described in clauses a through d.

(2)        Repealed by Session Laws 1983, c. 625, s. 5.

(c)        Beginning February 16, 1977, an unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that he has been totally, partially, or part‑totally unemployed for a waiting period of one week with respect to each benefit year. No week shall be counted as a week of unemployment for waiting‑period credit under this provision unless the claimant except for the provisions of this subdivision was otherwise eligible for benefits. As to claims filed on or after September 5, 1999, the waiting period for a benefit year shall not be required of any claimant if all of the following conditions are met:

(1)        The benefits are to be paid for unemployment due directly to a major natural disaster.

(2)        The President of the United States has declared the disaster pursuant to the Disaster Relief Act of 1970, 42 U.S.C.A. 4401, et seq.

(3)        The benefits are to be paid to claimants who would have been eligible for disaster unemployment assistance if they had not been eligible to receive unemployment insurance benefits with respect to that unemployment.

(4)        The claimant files for a waiver of the waiting period week within 30 days after the date of notification or mailing of the notice of the right to have the waiting period week waived. The Employment Security Commission, for good cause shown, may at any time in its discretion, with or without motion or notice, order the period enlarged if the request for an enlargement of time is made before the expiration of the period originally prescribed or as extended by a previous order. After expiration of the specified period, the Employment Security Commission may permit the act to be done where the failure to act was a result of excusable neglect.

The benefits paid as a result of the waiver of the waiting period week shall not be charged to the account or accounts of the base period employer or employers in accordance with G.S. 96‑9(c)(2)d. The Employment Security Commission shall implement regulations prescribing the procedure for the waiver of the waiting period week in accordance with G.S. 96‑4(b).

(c1)      As to claims filed on or after January 29, 2003, the waiting period for a benefit year shall not be required of a claimant if all of the following conditions are met:

(1)        The benefits are to be paid for unemployment due directly to a major industrial disaster that destroys substantially all of the physical facilities of a manufacturing plant.

(2)        The Governor has acknowledged the disaster through the creation of such task forces as are needed to coordinate State assistance to the manufacturer and its employees.

(3)        The Governor has issued an Executive Order directing and authorizing the Employment Security Commission to waive the waiting week for employees of the manufacturer.

(4)        The Employment Security Commission shall implement regulations prescribing the procedure for the waiver of the waiting period week in accordance with G.S. 96‑4(b).

(d)        Benefit entitlement based on services for governmental entities that become subject to Employment Security Commission law effective January 1, 1978, will be administered in the same manner and under the same conditions of the laws of this Chapter as are applicable to individuals whose benefit rights are based on other service subject to this Chapter.

(e)        Benefits shall not be payable to any individual on the basis of any services, substantially all of which consist 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 performs 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 latter of such seasons (or similar periods).

(f)         (1)        Benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, or otherwise was permanently residing in the United States under color of law at the time such services were performed, or was lawfully present for purposes of performing such services (including an alien who is lawfully present in the United States as a result of the application of the provisions of section 203 (a)(7) or section 212 (d)(5) of the Immigration and Nationality Act). Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits. In the case of an individual whose application for benefits would otherwise be approved, no determination that compensation to such individual is not payable because of his alien status shall be made except upon a preponderance of the evidence.

(2)        An individual who is not a citizen or national of the United States shall not be deemed available for work under subsection (a)(3) of this section unless the individual is in satisfactory immigration status under the laws administered by the United States Department of Justice, Immigration and Naturalization Service.

(g)        (1)        Except as herein provided, no individual shall be eligible for benefits for any week during any part of which the Commission finds that work was not available to the individual because he had been placed on a bona fide disciplinary suspension by his employer. To be bona fide, a disciplinary suspension must be based on acts or omissions which constitute fault on the part of the employee and are connected with the work but such acts or omissions need not alone be disqualifying under G.S. 96‑14.

(2)        Ineligibility pursuant to the preceding paragraph based on a single disciplinary suspension shall not be imposed for any claims week beginning after the tenth consecutive calendar day of the suspension. If at the time a claim is filed for such a week the individual is still so suspended, the individual shall be deemed to have been discharged from his work because of all the acts or omissions that caused his suspension and the issue of whether that discharge was for disqualifying reasons under G.S. 96‑14 shall then be adjudicated pursuant to G.S. 96‑15.

(3)        Any individual who files a claim for benefits for a week with respect to which he is ineligible under this subsection is deemed to be attached to his employer's payroll and any issue concerning separation from work that may be present under G.S. 96‑14 shall be held in abeyance until such time as a claim is filed for a week to which this subsection does not apply.  (Ex. Sess. 1936, c. 1, s. 4; 1939, c. 27, ss. 4, 5; c. 141; 1941, c. 108, s. 2; 1943, c. 377, s. 5; 1945, c. 522, ss. 27‑28; 1947, c. 326, s. 22; 1949, c. 424, s. 22; 1951, c. 332, s. 13; 1961, c. 454, s. 19; 1965, c. 795, ss. 17, 18; 1969, c. 575, ss. 10, 11; 1971, c. 673, ss. 27, 28; 1973, c. 172, s. 6; 1975, c. 2, s. 6; c. 8, ss. 1, 2; c. 226, ss. 1, 2; 1977, c. 727, s. 53; 1979, c. 660, ss. 20, 21, 29‑31; 1981, c. 160, ss. 24, 25; c. 883; 1983, c. 585, s. 17; c. 625, ss. 2‑5; 1985, c. 53; c. 197, ss. 4, 5; c. 552, ss. 10, 11; c. 616, s. 2; 1989, c. 707, s. 3; c. 770, s. 22; 1991, c. 423, s. 1; 1993 (Reg. Sess., 1994), c. 680, s. 5; 1995, c. 270, s. 1; c. 284, s. 1; 1997‑398, s. 5; 1997‑456, s.27; 1999‑463, Ex. Sess., s. 7; 2003‑1, s. 1; 2003‑220, s. 5; 2005‑410, s. 1; 2009‑301, s. 2.)