Digest of Benefit Entitlement Principles  Chapter 10 - Section 6

10.6.0 Earnings

The legislation requires that all claimants who are claiming regular benefits prove that they are available for work and unable to obtain suitable employment ^{Footnote 1} , and that they are making reasonable and customary efforts to obtain suitable employment ^{Footnote 2} . Claimants have always been expected to broaden their willingness to seek and accept less favourable levels of earnings as the length of their unemployment increases ^{Footnote 3} .

One of the six criteria used to determine whether employment is suitable for a particular claimant, and therefore employment that must be sought and accepted, is "offered earnings" ^{Footnote 4} . This specific criterion is linked to the extent to which the claimant has both contributed to the Employment Insurance fund and received regular benefits in the past. For this purpose all claimants claiming regular benefits are categorized as "long tenured workers", "occasional claimants" or "frequent claimants" ^{Footnote 5} .

Once a benefit period is established, the suitability of the "offered earnings" will vary as the duration of the claim increases. Claimants are expected to expand their willingness to seek and accept lower earnings as their benefit period progresses. The extent to which they will have to expand that willingness, will vary according to whether they are a "long tenured worker", a "frequent claimant" or an "occasional claimant", and the number of weeks that have elapsed in the benefit period ^{Footnote 6} .

If a claimant restricts their availability for work to a level of earnings that does not comply with the legislative definition of suitable employment, they will be disentitled from regular benefits until those requirements are met if:

1. this is a restriction and not just a preference ^{Footnote 7} ;
2. such a restriction does not put them in a "less favourable financial situation" than the lesser of: a) the financial situation they are in while receiving benefits, and b) that which they were in during their qualifying period ^{Footnote 8} ; and,
3. they have been warned that such a restriction is unacceptable ^{Footnote 9} .

10.6.1 Preferences, restrictions and warnings

One should avoid drawing hasty conclusions from an answer to a question regarding the level of earnings that one is prepared to accept. In response to such a question, a claimant will naturally respond by specifying earnings that are consistent with or close to past experience and qualifications. This does not necessarily mean that the claimant is imposing an absolute restriction and will not accept anything less ^{Footnote 10} . It is quite normal for a person to look for gainful employment and start with high expectations, leaving room for later concessions.

Similarly, in an effort to reply to direct and specific questions on a form or questionnaire, or to give the information within the limited space provided, a person may not have had the opportunity to clarify what appears to be a somewhat definite and categorical answer.

Personal efforts made to obtain employment at a lower level of earnings, or the acceptance of employment at a lower level, may be an indication that the level originally specified was a preference rather than a restriction.

All of these issues must be clarified by the Commission ^{Footnote 11} . Any subsequent clarification should be accepted provided it is considered plausible.

As indicated in Section 10.4.3 of this Digest, the Commission will continue its long-standing practice of warning claimants whose availability may be restricted in some way. The claimant will be advised of the specific periods of time they are allowed to restrict their earnings expectations, and that if they do not comply with those requirements, they will be disentitled from benefits.

10.6.2 "Offered" and "reference" earnings

The extent to which offered earnings are suitable will vary according to whether the claimant is a long tenured worker, frequent claimant or occasional claimant, as well as on the number of weeks that have elapsed since the start of their benefit period ^{Footnote 12} .

Like the other five criteria the suitability of offered earnings is a distinct criterion that needs to be assessed independently from the other criteria.

In order for claimants to prove that they are available for suitable employment and not unduly restricting their availability for work, they must be willing to seek and accept employment that meets the statutory definition of suitable employment, including the offered earnings provision.

Consequently, during the benefit period, and no matter what type of work is involved (as this is a separate criteria), the claimant must be willing to seek and accept employment where the "offered earnings" are evaluated by comparing them to the claimant’s "reference earnings". That is, from the employment in which the claimant worked for the greatest number of hours during their qualifying period. Other employment in the qualifying period will not be taken into account for the purpose of this evaluation ^{Footnote 13} .

For example: in the qualifying period a claimant held three different employments: bookkeeper, supply teacher and bartender. The employment in which they worked the greatest number of hours during their qualifying period, was the employment as a bookkeeper. Consequently, and type of work involved aside, the claimant must be willing to seek and accept employment where the "offered earnings" are evaluated by comparing them to the claimant’s "reference earnings" from their employment as a bookkeeper.

It is the employment in the qualifying period with the greatest number of hours worked that is relevant. Multiple periods of employment in a particular occupation but with different employers cannot be added together for this purpose.

For example: in his qualifying period the claimant had the following employments:

• Worked as a bookkeeper for one employer for 300 hours.
• Worked as a supply teacher for another employer on two different occasions; once for 200 hours and once for 150 hours.
• Worked as a bartender for three different employers, for 250 hours, 200 hours and 150 hours respectively.

The employment in which he worked the greatest number of hours during his qualifying period was his employment for 350 hours as a supply teacher. Consequently, if there is an employment opportunity during the benefit period, no matter what type of work the employment opportunity involves, the suitability of the "offered earnings" for that employment will be evaluated by comparing them to his earnings from his employment as a supply teacher, provided the earnings are within the going rate for the type of employment

10.6.3 Offered earnings

The extent to which offered earnings are suitable will vary according to which category the claimant is in and the number of weeks that have elapsed in the benefit period. Claimants will be required to expand their willingness to seek and accept employment with lower offered earnings as the number of weeks on claim increases.

For varying periods of time, both long tenured workers and occasional claimants are allowed to restrict their willingness to accept work, and their job search, to employment where the offered earnings are at least 90% or more of the reference earnings from their qualifying period.

All three categories of claimants will, at different stages in their benefit periods, have to expand their willingness to accept work, and their job search, to employment where the offered earnings are less than their reference earnings from their qualifying period.

Long-tenured Workers: During the first 18 weeks of their benefit period, a long tenured worker must be willing to seek and accept offered earnings as low as 90% of their reference earnings. After the 18^th week on claim they must be willing to seek and accept employment as low as 80% of their reference earnings ^{Footnote 14} .

Occasional Claimant: During the first six weeks of the benefit period an occasional claimant must be willing to seek and accept offered earnings as low as 90% of their reference earnings. From the seventh to the 18^th week on claim, they must be willing to seek and accept offered earnings as low as 80% of their reference earnings. After the 18^th week, an occasional claimant must be willing to seek and accept offered earnings as low as 70% of their reference earnings ^{Footnote 15} .

Frequent Claimant: During the first six weeks of the benefit period a frequent claimant must be willing to seek and accept offered as low as 80% of their reference earnings. After the sixth week on claim they must be willing to seek and accept offered earnings as low as 70% of their reference earnings ^{Footnote 16} .

A wage that would pay less than the minimum wage in effect in the province or territory where the work is sought or offered would render the employment unsuitable.

10.6.4 Less favourable financial situation

A claimant is not expected to seek and accept employment if, by accepting the offered earnings, they are placed in a less favourable financial situation than the lesser of, their financial situation while receiving benefits, or that which they were in during their qualifying period ^{Footnote 17} .

For example, and taking into account the claimant’s EI benefits including any working while on claim earnings provisions, otherwise suitable employment is not suitable and does not have to be sought or accepted, if the intermittent and part-time nature of the employment means that on-going transportation and child care expenses are so high that the claimant would be put in a less favourable financial situation by accepting the employment ^{Footnote 18} .

If a claimant is restricting their availability for work to a level of earnings that exceeds the legislative definition of suitable employment, they will be disentitled from regular benefits until they meet those requirements, if:

• this is a restriction and not just a preference;
• the restriction does not put them in a "less favourable financial situation"; and
• they have been warned that such a restriction is unacceptable.

[ January 2014 ]