UWC has filed the following comments in response to Oregon’s proposed rules changes associated with S916 as enacted:
The statutory changes in Oregon raise many federal conformity and administrative issues render it impossible to develop administrative rules that are consistent with federal law.
Fundamental issues include:
- Federal law requires the state UI law to determine eligibility for individuals on a case by case basis. Each individual must have become unemployed involuntarily and be able to work, available to work, and actively seeking work to be paid unemployment compensation with respect to a week claimed. The legislation permits individuals to leave work voluntarily and to be paid unemployment compensation for weeks during a strike without being available to return to work to the employer. The statute is contrary to Section 303(a) (12) of the Social Security Act.
- The provisions permitting payment of striking workers raise conflicts of law with provisions that require individuals not to refuse suitable work.
- The provisions may be in conflict with provisions that require denial of benefits to employees of certain educational institutions between terms.
This rule is contrary to federal law as it deems individuals who are not available to work to be available to work as determined by the striking union (not by the UI agency). The new statute goes further to permit striking workers to be deemed available to work when there is “an expectation that they will return to work for their employer when the labor dispute ends”.
The rule seeks to follow procedures used in situations when individuals become unemployed through lack of work and are obligated by collective bargaining agreement to be available and seeking work through a closed union shop. This is not the case in the event of a labor dispute in which the employer and the workers are not in agreement about the terms and conditions of employment, the worker voluntarily leaves work, and is not available to work with the employer.
Obviously, the labor dispute will end only when the parties to the dispute end the dispute, and even when there is a resolution of the dispute, an agreement to return to work date for each individual may not be scheduled until weeks after the agreement is signed by the union and the employer.
Some commenters in listening sessions suggested that the Oregon statute already permits payment of unemployment compensation to some striking workers in cases where there is a lockout or when an employer has broken the terms of the collective bargaining agreement or taken action that is contrary to the terms of the National Relations Act. These specific circumstances are not determinative of whether the individual is in fact available to work and actively seeking work on a week-to-week basis. The determination of eligibility and whether an individual may be paid unemployment compensation is required to be made on an individual claim basis that may involve a range of weekly eligibility issues that are not related to the status of labor dispute negotiations.
It is fundamental that eligibility and payment of unemployment compensation is determined based on whether the individual is able to work, available to work, and actively seeking work. Individuals who are not available for work may not be paid unemployment compensation as provided in Section 303(a)(12) of the Social Security Act. There is no exception to this requirement when individuals are unemployed due to a labor dispute. Eligibility is not something that may be determined by the striking union or based on an expectation by the striking worker or the union that the individual will return to work when the labor dispute ends. The draft rule and the statute on which it is based are contrary to Federal law.
