2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 8 - Employment Security
Article 7 - Benefits
§ 34-8-196. Determination of Eligibility for Benefits of Persons Performing Certain Services; Eligibility for Benefits of Aliens Performing Services

1. Benefits based on service in employment as defined in subsections (h) and (i) of Code Section 34-8-35. Benefits based on service in employment as defined in subsections (h) and (i) of Code Section 34-8-35 shall be payable in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other services subject to this chapter, except as otherwise provided in this Code section.
2. Benefits based on service in educational institutions.
   1. For the purposes of this subsection, the term:
      1. "Educational institution" means any voluntary pre-kindergarten program, elementary or secondary school, postsecondary institution, or other provider of educational services, irrespective of whether such program, school, institution, or other provider is public or private or nonprofit or operated for profit, provided that it:
         1. Is approved, licensed, or issued a permit, grant, or other authority to operate as a program, school, institution, or other provider of educational services by a federal, state, or local government or any of the instrumentalities, divisions, or agencies thereof with the authority to do so; and
         2. Offers, by or under the guidance of teachers or instructors, an organized course of study or training in a facility or through distance learning which is academic, technical, trade related, or preparation for gainful employment in a recognized occupation.

         The Commissioner is authorized to establish by rules or regulations such exceptions or exemptions from the term "educational institution," as defined in this paragraph, as he or she shall deem appropriate, consistent with any federal program requirements applicable to this chapter.

      2. "Educational service contractor" means any public or private employer or other person or entity holding a contractual relationship with any educational institution or other person or entity to provide services to, for, with, or on behalf of any educational institution.
      3. "Educational service worker" means any person who performs services to, for, with, or on behalf of any educational institution, regardless of whether such person is engaged to perform such services by the educational institution or through an educational service contractor.
   2. With respect to services performed by an educational service worker in an instructional, research, or principal administrative capacity to, for, with, or on behalf of any educational institution, including those operated by the United States government or any of its instrumentalities, divisions, or agencies, benefits shall not be paid during periods of unemployment if services in such educational service worker capacity were performed in the prior year, term, or vacation period and there is a contract or a reasonable assurance of returning to work for any such educational institution or any educational service contractor immediately following the period of unemployment. Such periods of unemployment include those occurring:
      1. Between two successive academic terms or years;
      2. During an established and customary vacation period or holiday recess;
      3. During the time period covered by an agreement that provides instead for a similar period between two regular but not successive terms; or
      4. During a period of paid sabbatical leave provided for in the individual's contract.
   3. With respect to services performed by an educational service worker in any other capacity to, for, with, or on behalf of any educational institution, including those operated by the United States government or any of its instrumentalities, divisions, or agencies, benefits shall not be paid during periods of unemployment if services in such educational service worker capacity were performed in the prior year, term, or vacation period and there is a reasonable assurance of returning to work for any such educational institution or any educational service contractor immediately following the period of unemployment. If compensation is denied pursuant to this paragraph to an individual, however, and such individual is not offered an opportunity to perform services for any educational institution or to provide services to, for, with, or on behalf of any educational institution for any educational service contractor following the unemployed period, such individual shall be entitled to retroactive payment for each week during that period of unemployment a timely claim was filed and benefits were denied solely by reason of this paragraph. Such periods of unemployment include those occurring:
      1. Between two successive academic years or terms; or
      2. During an established and customary vacation period or holiday recess.
   4. Benefits shall not be paid as specified in paragraphs (2) and (3) of this subsection to any individual for any week of unemployment if the individual performs such services in an educational institution while in the employ of an educational service agency. For the purposes of this paragraph, the term "educational service agency" means a governmental agency or governmental entity that is established and operated exclusively for the purpose of providing such services to one or more educational institutions.
3. Benefits based on services in professional sports. Benefits shall not be paid to an individual on the basis of any services substantially all of which consist of participating in professional sports or athletic events or of training or preparing to so participate for any week which begins during the period between two successive sport seasons or similar periods if such individual performed 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.
4. Benefits based on services performed by aliens.
   1. Benefits shall not be paid to an individual based on services performed by an alien unless such alien was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed.
   2. Any data or information required of individuals applying for benefits to determine whether benefits are payable because of their alien status shall be uniformly required from all applicants for benefits.
   3. In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of the individual's alien status shall be made except upon a preponderance of the evidence.
5. "Reasonable assurance" defined. As used in this Code section, the term "reasonable assurance" means a written, verbal, or implied agreement between an employer and its employee that such employee will be returned to employment following the period of unemployment.

(Code 1981, §34-8-196, enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1992, p. 776, § 4; Ga. L. 2014, p. 730, § 4/HB 714; Ga. L. 2017, p. 774, § 34/HB 323.)

- For annual survey on labor and employment law, see 66 Mercer L. Rev. 121 (2014). For article on the 2014 amendment of this Code section, see 31 Ga. St. U.L. Rev. 137 (2014).

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 34-8-152, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Cited in Caldwell v. Carswell, 158 Ga. App. 353, 280 S.E.2d 171 (1981); Hollis v. Tanner, 177 Ga. App. 759, 341 S.E.2d 290 (1986).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes

- In light of the similarity of the statutory provisions, opinions decided under former Code Section 34-8-152, which was repealed by Ga. L. 1991, p. 139, § 1, are included in the annotations for this Code section.

- Neither the Department of Labor nor the Board of Review would have the authority to amend or correct any decision on eligibility made by the department once the decision has become final and the time for appealing has expired without one of the parties to the claim filing an appeal. 1985 Op. Att'y Gen. No. 85-30 (decided under former § 34-8-152).

RESEARCH REFERENCES

Am. Jur. 2d.

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

- 81 C.J.S., Social Security and Public Welfare, §§ 294, 295, 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.

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 insurance acts, 158 A.L.R. 915; 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.

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

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.

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.

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

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

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

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

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

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.

Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.