Know Your Rights to Unemployment Benefits

Volume CI, No. 2February, 2001

Heather Beaudoin

Unemployment insurance has provided hundreds of Local 802 members with financial assistance during slow work periods. Eligible New Yorkers can receive unemployment benefits for 26 weeks – which has been an enormous help to many club date musicians when business is slow, and theatre musicians when a show closes.

One common misconception is that unemployment benefits are only available to workers who are completely unemployed. In fact, a musician can receive benefits when a reduction of income occurs due to seasonal work shortages or unexpected closings.

In recent years, several revisions to the unemployment insurance law have been enacted. Members should be aware of three main changes:

  1. The maximum benefit rate has increased from $365 to $405 a week and it will continue to rise, based on increases in New York State’s average weekly wage.
  2. Eligibility is no longer based on how many weeks you have worked. It now depends on the amount of money you’ve been paid during certain calendar quarters, which are simply three-month periods.
  3. The new formula for eligibility helps seasonal employees, such as musicians, receive benefits that they might not have been entitled to under the old system.

The Department of Labor now bases eligibility on your earnings in the quarters that preceded the quarter when you were laid off. To qualify for benefits you must have worked in at least two of the last five calendar quarters, and you must have been paid at least one-and-one-half times the earnings of the high calendar quarter, with at least $1,600 in wages in the high calendar quarter. There are four quarters a year: Jan. 1-March 31, April 1-June 30, July 1-Sept. 30, and Oct. 1-Dec. 31.

There are two different periods you can use to qualify for unemployment insurance benefits: Basic and Alternate. The Basic Period is the oldest four of the last five calendar quarters before the quarter you were laid off. The Alternate Period is the most recent four of the last five quarters before the quarter when you were laid off.

It is important to use the period that ensures that you are eligible and contains the highest earnings. Keep in mind that if you have applied for benefits using the Basic Period, but later think that using the Alternate Period would give you higher benefits, you have 10 days from the date you received notice of your benefits to apply for a change to the Alternate Period. The same applies if you think your benefit would be higher under the average weekly wage system.

The Department of Labor calculates eligibility using earnings information from those quarters. You must have earned half the amount you were paid in your high quarter in the remaining three quarters combined. However, high-quarter earnings are capped at 22 times the maximum weekly benefit ($405), or $8,910. Even if you earned $15,000 or $20,000 in your high quarter, you need to have earned only $4,455 (half of $8,910) in the other three quarters combined. This calculation makes it easier for musicians to qualify for benefits than under the former guidelines.

When filing for unemployment benefits you must be sure to have a valid Social Security card; a second form of identification with your signature, and a copy of your Record of Employment from every employer in the last year. If you don’t have the Record of Employment, you’ll have to supply names and payroll addresses from every employer you’ve worked for in the last 18 months.

Sometimes an unemployment claim will be contested by an employer or denied by the state. For example, 1099 income cannot be included in the calculation of benefits unless you are willing to file an appeal stating that you wish to include 1099 income for the purposes of calculating your claim. Such an appeal is legitimate, since New York State unemployment law currently mandates that musicians are considered as engaged in “employment” for purposes of unemployment benefits.

You can be denied unemployment benefits for a number of reasons, such as failure to meet the required work and wage criteria, voluntarily quitting or misconduct, job refusal, unavailability and criminal misconduct. Musicians who are dismissed for unsubstantiated misconduct or who quit because of harassment can make a credible argument for unemployment benefits.

Some examples of valid misconduct discharges in New York State are absence for a non-compelling reason after warnings by employer, continued lateness after a warning, refusal to comply with the employer’s rules when the rules are a condition of employment, violation of a safety rule despite prior warning, and assault on a co-worker except in self defense. Misconduct depends on the facts in each specific case, but does not refer to inefficiency, inadequate performance as a result of inability or incapacity, inadvertent or ordinary negligence in isolated instances, and good faith judgments.

Local 802 representatives can help guide you through the process of applying for unemployment and can help if an employer tries to prevent you from collecting benefits that you have a right to.