DOL Issues Guidance on Eligibility Requirements for States that Offer UI Benefits for Striking Workers

Earlier this year, the U.S. Department of Labor (DOL) issued a series of Questions and Answers to help states remain in compliance with federal unemployment insurance (UI) law regarding striking employees. For states that offer UI benefits to striking employees, the Q&As clarify when those employees are eligible for federal UI benefits. State UI programs are required to conform to federal requirements to receive grants to administer their UI programs. Currently, four states offer UI benefits to striking workers: New Jersey, New York, Oregon, and Washington. 

The Q&As provide that in states that allow striking workers to receive UI benefits, the workers must meet the federal requirements to obtain UI benefits. The Q&As underscore that states that wish to remain eligible to receive federal grants, and employers that wish to remain eligible for credits under the Federal Unemployment Tax Act, must remain in full compliance with these requirements. 

As set forth in the Q&As, if a state law permits the payment of UI benefits to striking workers, consistent with federal law, the states must require claimants to be able to work, available for work, and actively seeking work. The state UI agency must verify that a worker’s “effort to secure other work is genuine in nature and that the claimant has not withdrawn from the labor market, including by engaging in activity, such as picketing, to the exclusion of seeking other work.” The Q&As explain that striking workers must be doing more than merely maintaining contact with the union to satisfy the requirement that they be “actively seeking work.” States cannot exempt workers from that requirement and remain in compliance with federal regulations.

Further, the Q&As provide that a fact-specific inquiry is necessary to determine whether striking employees’ eligibility for unemployment benefits is impacted by a refusal to return to work before the labor dispute is resolved. If the employer that is the subject of the strike offers the employee a position and the employee declines, then the state UI agency will need to determine whether the employee has “refused work” in such a way as to restrict their eligibility for UI. Such an inquiry would include examining why the position is open (e.g., is it open because of the ongoing strike, or for a different reason?), and whether the “wages, hours, or other conditions of work are substantially less favorable than those prevailing for similar work in the locality.”

The issuance of this DOL guidance represents the federal government’s perspective on labor management relations and the provision of unemployment benefits to striking workers. If states want to receive federal grants to administer their UI programs, the DOL guidance reminds them that they must adhere to the requirements of federal UI for all individuals, including striking employees. The guidance also serves as notice to striking workers that, while state law may make them eligible for unemployment benefits during a strike, they cannot remove themselves from the job search during a strike and expect to receive unemployment benefits. If a state waives the requirements to actively seek work for striking employees, it remains to be seen whether the federal government will pull grants used to administer the state’s UI program and any ripple effects that might have on the state and employers in the state.

Finally, Littler would like to remind employers that if a strike is converted to a “lock out,” striking employees may then be eligible for unemployment even in those states that do not otherwise provide UI benefits for striking workers.