2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 8 - Employment Security
Article 7 - Benefits
§ 34-8-195. Determination of Eligibility for Unemployment Benefits Generally; Eligibility While in Training; Deductions and Withholdings From Compensation

1. An unemployed individual shall be eligible to receive benefits for any week only if such unemployed individual shows to the satisfaction of the Commissioner that each of the following conditions has been met:
   1. The individual has made a claim, has been unemployed or employed less than full time during the regular work week, and has reported his or her deductible earnings in accordance with Code Section 34-8-190;
   2. The individual has registered for work and has continued to report to an employment office as required by regulations prescribed by the Commissioner. The Commissioner may, by regulation, waive or alter either or both of the requirements of this paragraph for cases or situations in which the Commissioner finds that compliance with the requirements would be oppressive or inconsistent with the purposes of this chapter;
   3. 1. The individual is able to work, is available for work, is actively seeking work, and is bona fide in the labor market; provided, however, that no individual shall be considered available for work or receive benefits for any period that:
         1. The individual is away from work on vacation or leave of absence at the individual's own request;
         2. The individual is away from work for a vacation period as provided in an employment contract or collective bargaining agreement; or
         3. The individual is away from work for a vacation period in the absence of an employment contract or collective bargaining agreement and such vacation period is either pursuant to:
      2. An established employer custom, practice, or policy as evidenced by the previous year or years; or
      3. A vacation policy and practice established by the employer by an announcement, made at least 30 days before the beginning of the scheduled period, of a paid vacation plan applicable to the employees who meet the eligibility requirements of the plan.
      4. In no event shall an employee be held unavailable for work or ineligible for benefits under divisions (ii) and (iii) of subparagraph (A) of this paragraph for any period of more than two weeks in any calendar year when such employee is not paid for such period directly or indirectly by the employer or from a fund to which the employer contributes. The usual eligibility requirements shall apply to individuals laid off due to lack of work or for a purported vacation not meeting the conditions set forth in subparagraph (A) of this paragraph;
   4. The individual has participated in reemployment services, such as job search assistance services, if the individual was determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the Commissioner unless the Commissioner determines that:
      1. Such individual has completed such reemployment services; or
      2. There is justifiable cause for such individual's failure to participate in such reemployment services;
   5. The individual is willing to work under the same general terms and conditions as existed since the beginning of the base period; and
   6. The individual has been paid sufficient wages for insured work to qualify for a weekly benefit amount as provided in Code Section 34-8-193.
2. An individual who is laid offwith a scheduled return-to-work date within six weeks from the date of separation shall be considered attached to the employer and exempt from seeking work.However, if the employee has not returned to work at the end of that period, the employee must meet the requirements of subsection (a) of this Code section.
3. An individual shall not be deemed to be unemployed in any week such individual refuses an intermittent or temporary assignment without good cause when the assignment offered is comparable to previous work or assignments performed by the individual or meets the conditions of employment previously agreed to between the individual and the employer. Such individual may be considered unemployed with respect to any week an assignment or work is not offered by the employer; provided, however, an employee of a temporary help contracting firm, an employee leasing company, or a professional employer organization as defined in Code Section 34-7-6 will be presumed to have voluntarily left employment without good cause if the employee does not contact the temporary help contracting firm, employee leasing company, or professional employer organization for reassignment upon completion of an assignment; provided, further, that such failure to contact the temporary help contracting firm, employee leasing company, or professional employer organization will not be considered a voluntary departure from employment unless the employee has been advised in writing of the obligation to contact such employer upon completion of assignments and has been advised in writing that unemployment benefits may be denied for failure to do so.
4. No otherwise eligible individual shall be denied benefits because that individual is in training with the approval of the Commissioner. Individuals attending such approved training are exempt from the availability and work search requirements of this Code section.Such individual may also refuse work or referrals to job openings while in training without being subject to disqualification under paragraph (3) of Code Section 34-8-194.
5. A claimant shall not be deemed ineligible or disqualified for benefits because he or she is in training approved by the United States secretary of labor pursuant to the Trade Act of 1974, as amended, or the Job Training Partnership Act of 1982, as amended, even though he or she voluntarily quit work which was not suitable to enter such training or he or she is not able, available, or actively seeking work or he or she refused work during any week of such training.For the purpose of this subsection, the term "suitable work" means, with respect to a claimant, work of a substantially equal or higher skill level than the claimant's past adversely affected work and wages for such work are not less than 80 percent of the claimant's average weekly wage in the adversely affected work; provided, however, no claimant shall be deemed ineligible or disqualified for benefits by operation of paragraph (7) of subsection (a) of Code Section 34-8-197 who is in approved training as referred to in this subsection; provided, further, should the employer respond timely and such voluntary separation on the part of the claimant is without good cause in connection with the claimant's most recent work, such employer's experience rating account shall not receive charges for any benefits paid as provided for in Code Section 34-8-157; provided, further, should the claimant refuse suitable work while in training and the employer files timely information as provided by regulation, such employer's experience rating account shall not be charged; provided, further, pursuant to Code Section 34-8-159, an employer under Code Section 34-8-158 who has elected to make payments in lieu of contributions is subject to relief of charges under this subsection, only with respect to claims filed with benefit years beginning on or after January 1, 1992.
6. 1. An individual who files a new claim for unemployment compensation shall, at the time of filing such claim, be advised that:
      1. Unemployment compensation is subject to federal and state income tax;
      2. Requirements exist pertaining to estimated tax payments;
      3. An individual may elect to have federal income tax deducted and withheld from the individual's payment of unemployment compensation in the amount specified in the United States Internal Revenue Code of 1986;
      4. An individual may elect to have state income tax deducted and withheld from the individual's payment of unemployment compensation at the rate of 6 percent; and
      5. An individual shall be permitted to change a previously elected withholding status.
   2. Amounts deducted and withheld from unemployment compensation shall remain in the unemployment fund until transferred to the federal or state taxing authority as payment of income tax.
   3. The Commissioner may follow procedures specified by the United States Department of Labor and the Internal Revenue Service pertaining to the deducting and withholding of income tax.
   4. Amounts shall be deducted and withheld under this Code section only after amounts have been deducted and withheld for any overpayments of unemployment compensation, child support obligations, food stamp overissuances, or other purposes as required under this chapter.

(Code 1981, §34-8-195, enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 6, § 34; Ga. L. 1995, p. 348, § 1; Ga. L. 1995, p. 373, § 6; Ga. L. 1996, p. 693, § 5; Ga. L. 2003, p. 362, § 2.)

- Pursuant to Code Section 28-9-5, in 1996, "overissuances" was substituted for "over issuances" in paragraph (f)(4).

- The federal Trade Act of 1974 and the federal Job Training Partnership Act of 1982, referred to in subsection (e), are codified at 19 U.S.C. § 2101 et seq. and 29 U.S.C. § 1501 et seq., respectively.

- For note discussing administrative records and reports of public employment agencies with emphasis on the critical role of the employer, and advocating a qualified, rather than absolute privilege placed on confidential employer reports, see 11 Mercer L. Rev. 345 (1960).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806, and former Code Section 34-8-151 are included in the annotations for this Code section.

- Legislative intent and purpose, that only the involuntarily unemployed whose unemployment is not the result of their own fault, is the foundation upon which Ga. L. 1937, p. 806 (see now O.C.G.A. Ch. 8, T. 34) rests. Even though the inability to secure transportation may not be the "fault" of the claimant, there is "fault" attributable to the claimant when the claimant is unable to carry the burden of providing transportation. The claimant must assume the risk of nonpersuasion. Huiet v. Wallace, 108 Ga. App. 208, 132 S.E.2d 523 (1963) (decided under Ga. L. 1937, p. 806).

- Claimant does not have to be available for work at all times for all jobs but must be reasonably available. Caldwell v. Jones, 129 Ga. App. 893, 201 S.E.2d 823 (1973) (decided under Ga. L. 1937, p. 806).

- Evidence that the claimant was able to work approximately seven hours if the claimant could rest off and on demonstrated that the claimant was willing and able to work. Caldwell v. Amoco Fabrics Co., 163 Ga. App. 74, 293 S.E.2d 57 (1982) (decided under former § 34-8-151).

Substitute teacher was employed on an as-needed basis and was not guaranteed employment with the school system for a certain period of time. The teacher's employment with the school system was intermittent by nature and not the type of employment that the state Employment Security Law was designed to encourage. Consequently, the teacher was not unemployed as defined by statute as a matter of law at the time that the teacher filed a claim for unemployment benefits, and the teacher's claim for benefits was properly denied. Campbell v. Poythress, 216 Ga. App. 834, 456 S.E.2d 110 (1995).

Cited in Huiet v. Schwob Mfg. Co., 196 Ga. 855, 27 S.E.2d 743 (1943); Huiet v. Callaway Mills, 70 Ga. App. 538, 29 S.E.2d 106 (1944); Banks v. Huiet, 111 Ga. App. 607, 142 S.E.2d 421 (1965); Horton v. Huiet, 113 Ga. App. 166, 147 S.E.2d 669 (1966); Finch v. Weinberger, 407 F. Supp. 34 (N.D. Ga. 1975); Smith v. Caldwell, 142 Ga. App. 130, 235 S.E.2d 547 (1977); Johnson v. Caldwell, 164 Ga. App. 302, 297 S.E.2d 65 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806 and former Code Section 34-8-151, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

- While it cannot categorically be said that under no circumstances could a substitute teacher ever, by virtue of employment as such, be entitled to unemployment compensation (each application would have to be evaluated on an individual basis), it would be extraordinarily rare for such a voluntarily, part-time only teacher to be able to meet the law's eligibility requirements. 1977 Op. Att'y Gen. No. 77-45 (decided under Ga. L. 1937, p. 806).

- An unemployment compensation claimant who left the claimant's most recent employment under disqualifying circumstances cannot begin claimant's disqualification period until after the claimant has filed a valid unemployment compensation claim under state law; the claimant cannot count as part of the claimant's disqualification period the time between the day the claimant became unemployed and the day the claimant filed a valid state claim, regardless of whether the claimant has received public funds from any other source during this interim time or served a disqualification period under any other program. 1976 Op. Att'y Gen. No. 76-27 (decided under Ga. L. 1937, p. 806).

- The Georgia Department of Labor can legally require applicants for employment service to produce the documents required under the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a, for employment before allowing the individuals to register with the employment service or otherwise receive employment service benefits. 1987 Op. Att'y Gen. No. 87-23 (decided under former § 34-8-151).

Claimant with direct interest in labor dispute is disqualified from receiving unemployment benefits until that claimant completely severs the relationship with the employer involved in the dispute and reenters the labor market through an active, good faith attempt to obtain full-time, continuous employment. 1991 Op. Att'y Gen. No. 91-19.

RESEARCH REFERENCES

Am. Jur. 2d.

- 76 Am. Jur. 2d, Unemployment Compensation, §§ 13, 29 et seq.

- 81 C.J.S., Social Security and Public Welfare, §§ 294, 296, 390 et seq.

- Who is an independent contractor rather than an employee within social security acts or unemployment compensation acts, 124 A.L.R. 682.

Salesman on commission as within unemployment compensation or social security acts, 138 A.L.R. 1413; 29 A.L.R.2d 751.

What amounts to "misconduct" which precludes benefits under Unemployment Compensation Act to discharged employees, 146 A.L.R. 243.

One who uses his own truck as an independent contractor or an employee of concern for which he transports goods, within Social Security or Unemployment Compensation Act, 151 A.L.R. 1331.

Circumstances of leaving employment, availability for work, or nature of excuse for refusing re-employment, as affecting right to social security or unemployment compensation, 158 A.L.R. 396; 165 A.L.R. 1382.

Musicians or other entertainers as employees of establishment in which they perform, within meaning of Workmen's Compensation, Social Security, and Unemployment Compensation Acts, 172 A.L.R. 325.

Unemployment compensation benefits and incidence of tax upon employer where, during the base year, employee worked in different states for same employer, 9 A.L.R.2d 646.

Unemployment compensation as affected by employee's or employer's removal from place of employment, 13 A.L.R.2d 874; 21 A.L.R.4th 317.

Salesman on commission as within unemployment compensation or social security acts, 29 A.L.R.2d 751.

Right to unemployment compensation as affected by vacation or holiday or payment in lieu thereof, 30 A.L.R.2d 366; 3 A.L.R.4th 557; 14 A.L.R.4th 1175.

Right to unemployment compensation or social security benefits of one working on his own projects or activities, 65 A.L.R.2d 1182.

Harassment or garnishment by employee's creditor as constituting misconduct connected with employment so as to disqualify employee for unemployment compensation, 86 A.L.R.2d 1013.

Termination of employment as a result of union action or pursuant to union contract as "voluntary" for purposes of unemployment compensation benefits, 90 A.L.R.2d 835.

Effect on right to state unemployment compensation benefits of receipt of payments under private supplemental unemployment benefit plans, 91 A.L.R.2d 1211.

Severance payments as affecting right to unemployment compensation, 93 A.L.R.2d 1319.

Application for, or receipt of, unemployment compensation benefits as affecting claim for workmen's compensation, 96 A.L.R.2d 941.

Social Security Acts: requisite of employment as affected by family relationship between alleged employer and employee, 8 A.L.R.3d 696.

Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts, 35 A.L.R.3d 1129; 12 A.L.R.4th 611.

Insurance agents or salesmen as within coverage of social security or unemployment compensation acts, 39 A.L.R.3d 872.

Unemployment compensation: eligibility of employee laid off according to employer's mandatory retirement plan, 50 A.L.R.3d 880.

Termination of employment because of pregnancy as affecting right to unemployment compensation, 51 A.L.R.3d 254.

Right to unemployment compensation as affected by receipt of pension, 56 A.L.R.3d 520.

Eligibility of strikers to obtain public assistance, 57 A.L.R.3d 1303.

Discharge for absenteeism or tardiness as affecting right to unemployment compensation, 58 A.L.R.3d 674.

Unemployment compensation: eligibility of participants in sympathy strike or slowdown, 61 A.L.R.3d 746.

Unemployment compensation: labor dispute disqualification as applicable to striking employee who is laid off subsequent employment during strike period, 61 A.L.R.3d 766.

General principles pertaining to statutory disqualification for unemployment compensation benefits because of strike or labor dispute, 63 A.L.R.3d 88.

Unemployment compensation: harassment or other mistreatment by employer or supervisor as "Good Cause" justifying abandonment of employment, 76 A.L.R.3d 1089.

Alien's right to unemployment compensation benefits, 87 A.L.R.3d 694.

Unemployment compensation: eligibility as affected by claimant's refusal to comply with requirements as to dress, grooming, or hygiene, 88 A.L.R.3d 150.

Unemployment compensation: eligibility as affected by claimant's insistence upon conditions not common or customary to particular employment, 88 A.L.R.3d 1353.

Repayment of unemployment compensation benefits erroneously paid, 90 A.L.R.3d 987.

Unemployment compensation: eligibility as affected by claimant's refusal to accept employment at compensation less than that of previous job, 94 A.L.R.3d 63.

Unemployment compensation: eligibility as affected by claimant's refusal to work at reduced compensation, 95 A.L.R.3d 449.

Part-time or intermittent workers as covered by or as eligible for benefits under State Unemployment Compensation Act, 95 A.L.R.3d 891.

Unemployment compensation: eligibility as affected by mental, nervous, or psychological disorder, 1 A.L.R.4th 802.

Right to unemployment compensation as affected by claimant's receipt of holiday pay, 3 A.L.R.4th 557.

Leaving or refusing employment for religious reasons as barring unemployment compensation, 12 A.L.R.4th 611.

Leaving or refusing employment because of allergic reaction as affecting right to unemployment compensation, 12 A.L.R.4th 629.

Unemployment compensation as affected by vacation or payment in lieu thereof, 14 A.L.R.4th 1175.

Eligibility for unemployment compensation as affected by voluntary resignation because of change of location of residence, 21 A.L.R.4th 317.

Discharge from employment on ground of political views or conduct as affecting right to unemployment compensation, 29 A.L.R.4th 287.

Eligibility for unemployment compensation benefits of employee who attempts to withdraw resignation before leaving employment, 36 A.L.R.4th 395.

Unemployment compensation: harassment or other mistreatment by co-worker as "good cause" justifying abandonment of employment, 40 A.L.R.4th 304.

Unemployment compensation: burden of proof as to voluntariness of separation, 73 A.L.R.4th 1093.

Private employee's loss of employment because of refusal to submit to drug test as affecting right to unemployment compensation, 86 A.L.R.4th 309.

Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts for domestic or family reasons, 2 A.L.R.5th 475.

Unemployment compensation claimant's eligibility as affected by loss of, or failure to obtain, license, certificate, or similar qualification for continued employment, 15 A.L.R.5th 653.

Employee's control or ownership of corporation as precluding receipt of benefits under state unemployment compensation provisions, 23 A.L.R.5th 176.

Unemployment compensation: leaving employment to become self-employed or to go into business for oneself as affecting right to unemployment compensation, 45 A.L.R.5th 715.

Unemployment compensation: leaving employment in pursuit of other employment as affecting right to unemployment compensation, 46 A.L.R.5th 659.

Unemployment compensation: leaving employment in pursuit of education or to attend training as affecting right to unemployment compensation, 47 A.L.R.5th 775.

Leaving employment or unavailability for particular job or duties because of sickness or disability, as affecting right to unemployment compensation, 68 A.L.R.5th 13.

Eligibility for unemployment compensation of employee who retires voluntarily, 75 A.L.R.5th 339.

Conduct or activities of employees during off-duty hours as misconduct barring unemployment compensation benefits, 18 A.L.R.6th 195.

When does vacation pay constitute employee welfare benefit plan for purposes of Employee Retirement Income Security Act (ERISA) (29 U.S.C.S. § 1001 et seq.), 140 A.L.R. Fed 601.