GUIDE SHEET 8

EDUCATIONAL EMPLOYEES
BETWEEN / WITHIN TERMS

Section 3304(a)(6)(A), subsections i-vi, provide exceptions to the equal treatment provisions of section 3304(a)(6)(A) of the Federal Unemployment Tax Act, with regard to determining eligibility for certain categories of claimants employed by educational institutions, educational service agencies, and certain other entities, including certain Head Start programs. These provisions are referred to as "between and within terms denial" provisions.

Generally, employees (professional and non-professional) of educational institutions, educational service agencies, and certain other entities are ineligible for unemployment benefits between academic terms and years and/or within terms if they have a contract or reasonable assurance of employment for the following year, term, or remainder of a term.

These provisions prohibit the use of base period wages to establish monetary eligibility if the claimant is unemployed "between and within terms" and has a contract or reasonable assurance of returning to the educational employer. However, base period wage credits earned in employment to which the "between and within terms" denial provision does not apply, may be used to establish monetary eligibility. The claimant must still meet all other State requirements to be eligible for the payment of benefits.

These provisions may also apply to UCFE and UCX claimants depending on how State law is written. Check State law requirements in these cases (see UIPL 11-86).

Changes in the employment status of the educational employee, i.e., going from a professional to a non-professional position, may affect the claimant's eligibility for benefits. The same may apply when the claimant's employment shifts or "crosses over" from one type of employer to another, e.g., the claimant goes from an educational service agency (ESA) to work directly for a school. Payment or denial of benefits is contingent upon establishing which crossover category applies to the claimant. Details for some crossover situations are found in UIPL No.30-85.

The SESA is responsible for determining whether the claimant has a contract or reasonable assurance of performing services in the next academic period and if the claimant is in a crossover category. To meet the test of reasonable assurance:

1. There must be a bona fide (genuine, good faith) offer of employment in the second academic period.

2. There must be certainty that the assurance given to the claimant came from an authorized individual. If the individual was not authorized, the offer is not bona fide.

3. The terms and conditions of the job offered in the next academic year must not be substantially less (as defined by State law/policy) than the terms and conditions for the job in the first period.

Specific information from the claimant is necessary to establish that the claimant accepted or refused a bona fide offer and that, in fact, the employer established that the claimant was reasonably assured of continuing employment based on similar terms and conditions as in the preceding period of employment. Circumstances change (separation or "crossovers") and the adjudicator must obtain sufficient facts to determine the claimant's status for benefits.

The employer must provide a written statement to the SESA that the claimant will be performing services in the next year or within the academic term.

BASIC QUESTIONS AND FACTORS TO CONSIDER

A. IS CLAIMANT IN "BETWEEN OR WITHIN TERMS" STATUS?

1. The claimant's continuing employment relationship with the educational employer must be established. The beginning and ending dates of the term or academic period must be determined and whether the claimant performed services during the prior term or academic period. If the claimant decided not to return to work, a separation issue is raised. The claimant may have been advised that he/she would not be rehired or would be rehired but in a different capacity which may also identify a separation issue.

2. The status of the claimant's employment with an educational employer is particularly relevant to establishing the claimant's monetary eligibility. If reasonable assurance is established, the "school wages" cannot be used. Other non-school wages may be used depending on State law.

3. The claimant's employment status with the educational employer should be explored to determine if reemployment is automatic. Certain employees (usually teachers) attain tenured status guaranteeing them automatic re-employment. The status of others such as non-tenured teachers (year-to-year only - no automatic guarantee of reemployment), substitutes, and other professional or non-professional employees of educational institutions, or those who provide services to them (school crossing guards employed by police departments, among others), should also be established.

4. Many employers will advise employees in writing about their reemployment status. Copies of the notice should be obtained to corroborate with the employer. If the offer of reemployment was conveyed orally, the adjudicator should obtain from the claimant the name of the offeror. This information will assist in establishing that the offeror was authorized to make the offer.

B. WAS REASONABLE ASSURANCE CONFIRMED BY THE EMPLOYER?

1. If a claimant has been provided a contract guaranteeing employment for the next term, and the economic terms and conditions of the job offered for the next period are not substantially less than those applicable to the first period, a reasonable assurance exists.

2. For reasonable assurance to exist, the educational employer must provide a statement to the SESA that the employee has been given a bona fide offer of a specified job in the next academic period - between/within terms. The case file must be documented with the terms of the offer, the name of the person authorized to make the offer, confirmation by the SESA that the person is authorized to make the offer, and date of return to work for the school employer.

3. It is necessary to establish from the employer how the offer was conveyed and if the offer was made by a person authorized to do so.

4. It is necessary to distinguish between a bona fide offer and the mere possibility of reemployment. Reasonable assurance does not exist if the circumstances under which the claimant would be employed are not within the control of the educational institution and if the educational institution cannot provide evidence that the claimant would normally perform services during the next academic period.

5. It may be customary that from year to year, the budget for the various positions is not known until a later date. If this is customary and the claimant's employment pattern with the employer substantiates this, then the individual has reasonable assurance.

This information is important if at a later date it is established that funding is not available, because the claimant's "between and within terms" status may convert to a layoff due to lack of work. Generally, this applies to non-professional employees. In the case of professional employees, the only way to retroactively pay benefits is to establish that a reasonable assurance did not exist because a bona fide offer of employment was not made.

C. WHAT ARE THE TERMS AND CONDITIONS OF THE JOB OFFERED?

1. The employer should provide sufficient information concerning the terms and conditions of the job offered for the next academic period. This information is necessary to determine if the economic terms and conditions of the job offered for the next period are not substantially less than those applicable to the first period.

2. The suitability of the job offered with respect to the terms and conditions may give rise to a separation issue if the claimant rejects a bona fide offer.

Factfinding

A. ESTABLISH "BETWEEN/WITHIN TERMS STATUS"

1. Type of academic employer

2. Claimant relationship to employer

• Tenured/non-tenured
  
  
• Automatic guarantee of reemployment
  
  
• No guarantee of reemployment -- year to year based on availability of funds
  
  

3. Beginning and ending dates of terms or academic periods.

B. REASONABLE ASSURANCE

1. Claimant acceptance or rejection of offer confirms reasonable assurance or if separation issue exists based on suitability of work.

2. Documentation of offer must be obtained from employer.

• Substantiates reasonable assurance.
  
  

3. Effect of reasonable assurance on base period wages

• Disallows use of base period wage credits from educational employer
  
  
• Use of non-educational wage credits dictated by State policy
  
  

C. TERMS AND CONDITIONS OF JOB OFFERED

1. Determine if economic terms and conditions are substantially less than prior term

2. Determine if "crossover" status applies

• Crossover can occur when claimant worked in one capacity in first term but is offered assurance of work in different capacity during next term.
  
  
• Crossover can occur when claimant goes from one type of academic employer to another, i.e., from educational institution to an ESA.
  
  

HINT: In crossover situations, the between terms denial does not apply.

The following examples are illustrative of "crossover" situations:

Example No. 1: A teacher (a professional) at an educational institution receives assurance of a job in the next period as a teacher's aide (a nonprofessional classification). The individual is "crossing over" from one capacity (professional) to another (non-professional). There is no denial of benefits.

Example No. 2: A school crossing guard who is employed by the local police department receives assurance of a job as a cafeteria worker for the local school. The individual is "crossing over" from one type of employer (providing services to or on behalf of an educational institution) to another type of employer (an educational institution). There is no denial of benefits.