2010 Tennessee Code
Title 50 - Employer And Employee
Chapter 7 - Tennessee Employment Security Law
Part 3 - Benefits
50-7-303 - Disqualification for benefits. [Amended effective January 1, 2010. See the Compiler's Notes.]

50-7-303. Disqualification for benefits. [Amended effective January 1, 2010. See the Compiler's Notes.]

(a)  Disqualifying Events.  A claimant shall be disqualified for benefits:

     (1)  If the administrator finds that the claimant has left the claimant's most recent work voluntarily without good cause connected with the claimant's work. The disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount. No disqualification shall be made under this section, however, if the claimant presents evidence supported by competent medical proof that the claimant was forced to leave the claimant's most recent work because the claimant was sick or disabled and notified the claimant's employer of that fact as soon as it was reasonably practical to do so, and returned to that employer and offered to work as soon as the claimant was again able to work, and to perform the claimant's former duties. Pregnancy shall be considered in the same way as any other illness or disability within the meaning of this subsection (a). At the expiration of the period, if the claimant is not reemployed, the claimant shall be entitled to unemployment benefits under this chapter, if otherwise eligible under this chapter. Nor shall this disqualification apply to a claimant who left the claimant's work in good faith to join the armed forces of the United States;

     (2)  (A)  If the administrator finds that a claimant has been discharged from the claimant's most recent work for misconduct connected with the claimant's work, the disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount.

          (B)  (i)  A discharge resulting from a positive result from a drug test for drugs administered in conformity with chapter 9 of this title shall be deemed to be a discharge for misconduct connected with the claimant's work.

                (ii)  A discharge resulting from an alcohol test administered in conformity with chapter 9 of this title, where the claimant's blood alcohol concentration level is equal to or greater than ten-hundredths of one percent (.10%) by weight for non-safety-sensitive positions, and four-hundredths of one percent (.04%), as determined by blood or breath testing, for safety-sensitive positions, shall be deemed to be a discharge for misconduct connected with work.

                (iii)  A discharge resulting from a refusal to take a drug test or an alcohol test authorized by chapter 9 of this title shall be deemed to be a discharge for misconduct connected with work where it is based upon substantial and material evidence of the employee's refusal.

                (iv)  As regards an injured employee, refusal shall not be presumed from failure to take the test during a period of approved medical leave;

     (3)  If the administrator finds that the claimant has failed without good cause either to apply for available, suitable work, when so directed by the employment office or the administrator, or to accept suitable work when offered, or to return to the claimant's customary self-employment, if any, when so directed by the administrator. The disqualification shall continue for the week in which the failure occurred, and for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount. In determining whether or not any work is suitable for a claimant, the administrator shall consider the degree of risk involved to the claimant's health, safety and morals, the claimant's physical fitness and prior training, the claimant's experience and prior earnings, the claimant's length of unemployment and prospects for securing local work in the claimant's customary occupation, and the distance of the available work from the claimant's residence. Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this section to any otherwise eligible claimant for refusing to accept new work under any of the following conditions:

          (A)  If the position offered is vacant due directly to a strike, lockout or other labor dispute;

          (B)  If the wages, hours or other conditions of the work offered are substantially less favorable to the claimant than those prevailing for similar work in the locality; or

          (C)  If, as a condition of being employed, the claimant would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;

     (4)  (A)  For any week with respect to which the administrator finds that the claimant's total or partial unemployment is due to a labor dispute, other than a lockout that is in active progress at the factory, establishment or other premises at which the claimant is or was last employed; provided, that this subdivision (a)(4) shall not apply if it is shown to the satisfaction of the administrator that:

                (i)  The claimant is not participating in the labor dispute that caused the claimant's total or partial unemployment;

                (ii)  The claimant does not belong to a grade or class of workers of which immediately before the commencement of the labor dispute there were members employed at the premises at which the labor dispute occurs, any of whom are participating in the dispute; and

                (iii)  The claimant was indefinitely separated from employment prior to the labor dispute and is otherwise eligible for benefits. Subdivision (a)(4)(A)(ii) notwithstanding, persons who were separated before the commencement of the labor dispute, and who were eligible for benefits as a result of the separation, shall continue to be eligible for benefits as long as they do not participate in the labor dispute and remain otherwise eligible. For purposes of this subdivision (a)(4)(A)(iii), an “indefinite separation” means that the relationship between the employee and employer has been severed without a reasonably definite recall date;

          (B)  If, in any case, separate branches of work that are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purposes of this subsection (a), be deemed to be a separate factory, establishment or other premises;

          (C)  Disqualification imposed by this subdivision (a)(4) shall be for the duration of the labor dispute or until the claimant has secured employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid by subsequent employment ten (10) times the claimant's weekly benefit amount. The subsequent employment must meet the definition of “most recent work” as set forth in subsection (b);

     (5)  For any week with respect to which the claimant is receiving, or has received, remuneration in the form of compensation for temporary partial disability under the workers' compensation law of any state or under a similar law of the United States;

     (6)  (A)  For any week with respect to which, or a part of which the claimant has received, or is seeking, unemployment benefits under an unemployment compensation law of another state or of the United States; however, if the appropriate agency of the other state or of the United States finally determines that the claimant is not entitled to the unemployment benefits, this disqualification shall not apply. The disqualification imposed by this subdivision (a)(6)(A) shall not apply to any claimant who is seeking or who has received benefits provided for by the Veterans' Readjustment Assistance Act of 1952, Act of July 16, 1952, ch. 875, 66 Stat. 663 [repealed], and any payments previously made by the division of employment security to a claimant who was seeking or received simultaneous benefits under the Veterans' Readjustment Assistance Act of 1952 [repealed] are validated;

          (B)  In addition, a claimant shall be disqualified from obtaining the advantage of a waiting period for any week with respect to which, or a part of which, the claimant has received, or is seeking, unemployment benefits under an unemployment compensation law of another state or of the United States; however, if the appropriate agency of the other state or of the United States finally determines that the claimant is not entitled to the unemployment benefits, this disqualification shall not apply. The disqualification imposed by this subdivision (a)(6)(B) shall not apply to any claimant who is seeking or who has received benefits provided for by the Veterans' Readjustment Assistance Act of 1952 [repealed]; [Amended effective January 1, 2010. See the Compiler's Notes.]

     (7)  For the week or weeks in which the administrator finds that the claimant has made any false or fraudulent representation or intentionally withheld material information for the purpose of obtaining benefits contrary to this chapter and for not less than four (4) nor more than the fifty-two (52) next following weeks, beginning with the week following the week in which the findings were made, as determined by the administrator in each case according to the seriousness of the facts. In addition, the claimant shall remain disqualified from future benefits so long as any portion of the overpayment or interest on the overpayment is still outstanding. In the event an overpayment of benefits results from the application of this disqualifying provision, the overpayment of benefits shall not be chargeable to any employer's account for experience rating purposes;

     (8)  (A)  For any week with respect to which a claimant is receiving or is entitled to receive a pension, which includes a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment, under a plan maintained or contributed to by a base period or chargeable employer as follows: The weekly benefit amount payable to the claimant for that week shall be reduced, but not below zero (0):

                (i)  By the entire prorated weekly amount of the pension if one hundred percent (100%) of the contributions to the plan were provided by a base period or chargeable employer; provided, that no reduction shall be made if one hundred percent (100%) of the pension is rolled into an individual retirement account (IRA); and

                (ii)  By no part of the pension if any contributions to the plan were provided by the claimant during the claimant's base period;

          (B)  No reduction shall be made under this subdivision (a)(8) by reason of the receipt of a pension if the services performed by the claimant during the base period for the employer, or remuneration received for the services, did not affect the claimant's eligibility for, or increase the amount of, the pension, retirement or retired pay, annuity, or similar payment. The conditions specified by this subsection (a) shall not apply to pensions paid under the Social Security Act, compiled in 42 U.S.C. § 301 et seq., or the Railroad Retirement Act of 1974, or the corresponding provisions of prior law. Payments made under those acts shall be treated solely in the manner specified by subdivisions (a)(8)(A)(i) and (ii);

          (C)  For purposes of this subdivision (a)(8), if any reduced benefit payment for any week is not a multiple of one dollar ($1.00), it shall be computed to the next lower multiple of one dollar ($1.00);

          (D)  Any annuities, pensions or retirement pay that is disqualifying pursuant to this section and is payable at the option of the claimant on either a lump sum or periodic basis shall be treated as though it were paid on the periodic basis specified;

          (E)  For purposes of this subdivision (a)(8), an individual shall be deemed entitled to receive a pension if a determination has been made by appropriate officials of the individual's vested right to a pension for any week in which the individual is entitled to receive benefits under this chapter;

     (9)  (A)  For any week for which a claimant receives the claimant's regular wages for a vacation period under terms of a labor-management agreement or other contract of hire allocating the pay to designated week or weeks for vacation purposes, but if the remuneration for any week is less than the benefit that would be due the claimant for the week under this chapter, the claimant shall be entitled to receive for the week, if otherwise eligible, benefits reduced by the amount of the remuneration; provided, that the total amount of benefits, if not a multiple of one dollar ($1.00), shall be computed at the next lower multiple of one dollar ($1.00);

          (B)  Subdivision (a)(9)(A) shall apply only if it is found by the administrator that employment will be available for the claimant with the employer at the end of a vacation period described in this subsection (a);

          (C)  If an employee elects to take the employee's vacation at a period other than that designated in the agreement or contract of hire, any vacation pay shall be considered as having been paid for the vacation week or weeks designated in the agreement or contract of hire; or

     (10)  If the administrator finds that a claimant has been discharged from the claimant's most recent work because such claimant's actions, not previously known or permitted by the employer, placed the claimant's employer in violation of the Fair Labor Standards Act, compiled in 29 U.S.C. § 201 et seq., the disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, or another state, or of the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount.

(b)  Definitions.  The following definitions apply with respect to the following subdivisions of this section:

     (1)  For purposes of subdivisions (a)(1) and (2), “most recent work” means employment with:

          (A)  Any employer covered by an unemployment compensation law of this state, another state, or the United States for whom the claimant last worked and voluntarily quit without good cause connected with the claimant's work;

          (B)  Any employer covered by an unemployment compensation law of this state, another state, or the United States for whom the claimant last worked and was discharged for misconduct connected with the claimant's work; or

          (C)  Any employer covered by an unemployment compensation law of this state, another state, or the United States for whom the claimant last worked and earned wages equal to or exceeding ten (10) times the claimant's weekly benefit amount or, if the wages paid are less than ten (10) times the claimant's weekly benefit amount, it shall be considered as the “most recent work” when a preponderance of evidence establishes that the intent of the hiring agreement was to provide for regular permanent employment. Short term employment shall be considered most recent work if the employment is traditionally a part of the claimant's chosen profession;

     (2)  For purposes of subdivision (c)(2), “suitable employment” means, with respect to a claimant, work of a substantially equal or higher skill level than the claimant's past adversely affected employment as defined for purposes of the Trade Act of 1974, compiled in 19 U.S.C. § 2101 et seq., and wages for the work at not less than eighty percent (80%) of the claimant's average weekly wage as determined for the purposes of the Trade Act of 1974; and [Effective January 1, 2010. See the Compiler's Notes.]

     (3)  For purposes of subdivision (a)(2):

          (A)  “Misconduct” includes, but is not limited to, the following conduct by a claimant:

                (1)  Willful or wanton disregard of the rights or interests of the employer;

                (2)  Deliberate violations or disregard of standards of behavior that the employer has the right to expect of an employee;

                (3)  Carelessness or negligence of such a degree or recurrence to show an intentional or substantial disregard of the employer's interest or to manifest equal culpability, wrongful intent or evil design;

          (B)  “Misconduct” also includes any conduct by a claimant involving dishonesty arising out of the claimant's employment that constitutes an essential element of a crime for which the claimant was convicted; and

          (C)  “Misconduct” does not include:

                (1)  Inefficiency, or failure to perform well as the result of inability or incapacity;

                (2)  Inadvertence or ordinary negligence in isolated instances; or

                (3)  Good faith errors in judgment or discretion.

(c)  Qualifications.  Notwithstanding any other law to the contrary:

     (1)  Benefits shall not be denied under this chapter to any otherwise eligible claimant for separation from employment pursuant to a labor-management contract or agreement, or pursuant to an established employer plan, program, policy, layoff or recall that permits the claimant (employee), because of lack of work, to accept a separation from employment. However, benefits shall be denied a claimant for separation from employment resulting from the claimant's acceptance of an employer's program that provides incentives to employees for voluntarily terminating their employment; and

     (2)  No otherwise eligible claimant shall be denied benefits for any week because of leaving work to enter training approved under § 236(a)(1) of the Trade Act of 1974, codified in 19 U.S.C. § 2296(a)(1), provided the work left is not suitable employment, as defined in § 236(e) of the Trade Act of 1974, codified in 19 U.S.C. § 2296(e), or because of the application to any such week in training of provisions in this law or any applicable federal unemployment compensation law relating to active search for work, availability for work or refusal to accept suitable work.

(d)  Overpayments. 

     (1)  Any person who is overpaid any amounts as benefits under this chapter is liable to repay those amounts, except as otherwise provided by this subsection (d) or by § 50-7-304(b)(2).

     (2)  Upon written request by any person submitted to the administrator within ninety (90) days from the date of determination of the overpayment, the administrator shall waive repayment of the overpaid amounts if the person proves to the satisfaction of the administrator that all of the following conditions exist:

          (A)  The overpayment was not due to fraud, misrepresentation or willful nondisclosure on the part of the person;

          (B)  The overpayment was received without fault on the part of the person; and

          (C)  The recovery of the overpayment from the person would be against equity and good conscience.

     (3)  (A)  The administrator shall waive the collection of any overpayment that is due to fraud, misrepresentation or willful nondisclosure on the part of the person who was overpaid and that is outstanding after the expiration of six (6) years from the date of determination of the overpayment.

          (B)  The administrator shall waive the collection of any overpayment that is not due to fraud, misrepresentation or willful nondisclosure on the part of the person who was overpaid and that is outstanding after the expiration of three (3) years from the date of determination of the overpayment.

     (4)  Any person who is overpaid any amounts as benefits under this chapter has the right to appeal the determination of overpayment. A person may request a waiver of overpayment in accordance with the conditions of subdivision (d)(2). Upon determination that a person has been overpaid, the person shall be given timely notice of the person's right to appeal the determination of overpayment in accordance with § 50-7-304, and the person's right to request a waiver of overpayment in accordance with subdivision (d)(2). The notice shall indicate that there is a determination of overpayment, the reasons for the determination, the person's rights to contest the determination or request a waiver of the overpayment, and the time period during which the appeal must be filed or the waiver request must be submitted. A recovery of overpayment by reduction of benefits as to a subsequent claim shall not occur until notice is provided to a person, previously determined to be overpaid, of the person's right to request a waiver of overpayment in accordance with subdivision (d)(2).

(e)  (1)  Back Pay Awards. For unemployment insurance benefit purposes, the amount of back pay constitutes wages paid in the period for which it was awarded. Any employer who is a party to a back pay award settlement due to loss of wages is required to report to the division of employment security within thirty (30) days of the ruling:

          (A)  The amount of the award settlement;

          (B)  The name and social security number of the recipient; and

          (C)  The calendar weeks for which the back pay was awarded.

     (2)  It is the intent of the general assembly that no overpayment of benefits shall be established as a result of a back pay award.

[Acts 1947, ch. 29, § 5; 1949, ch. 226, §§ 3-5; C. Supp. 1950, § 6901.5 (Williams, § 6901.29); Acts 1951, ch. 139, § 4; 1953, ch. 173, § 1; 1953, ch. 244, § 3; 1955, ch. 115, §§ 7-10; 1957, ch. 146, §§ 6, 7; 1959, ch. 202, §§ 3-6; 1961, ch. 263, § 1; 1963, ch. 176, § 4; 1967, ch. 208, § 3; 1971, ch. 132, § 2; 1973, ch. 130, § 4; 1974, ch. 460, §§ 5, 6; 1977, ch. 330, § 18; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 641, §§ 2, 9; 1980, ch. 783, § 2; 1981, ch. 35, § 1; 1981, ch. 249, § 3; 1982, ch. 606, § 1; 1982, ch. 820, §§ 3-6; T.C.A. (orig. ed.), § 50-1324; Acts 1983, ch. 368, §§ 7, 8; 1985, ch. 169, § 1; 1985, ch. 317, §§ 2, 5; 1985, ch. 318, § 21; 1985, ch. 383, § 1; 1986, ch. 537, §§ 1, 2; 1986, ch. 597, § 2; 1987, ch. 212, § 1; 1987, ch. 317, § 1; 1987, ch. 344, § 1; 1987, ch. 368, §§ 1, 2; 1987, ch. 424, §§ 1-3; 1992, ch. 694, § 5; 1993, ch. 194, § 13; 1995, ch. 502, § 2; 1995, ch. 503, §§ 1-3; 1998, ch. 591, § 1; 1998, ch. 852, § 1; 1999, ch. 202, § 2; 2001, ch. 82, § 2; 2007, ch. 183, §§ 2-5; 2009, ch. 479, §§ 1, 2.]  
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