24.11.464 BENEFITS BASED ON SERVICES IN EDUCATIONAL INSTITUTIONS AND EDUCATIONAL SERVICE AGENCIES

(1) For the purpose of this rule, the following definitions apply:

(a) "Non-professional" means services in other than a professional capacity.

(b) "Professional" means services in an instructional, research or principal administrative capacity.

(i) Individuals who perform services in an instructional capacity include not only those who teach in formal classroom and seminar situations, but also in less formal arrangements, such as tutorial relationships, and those who direct or assist students in research and learning.

(ii) Individuals who perform services in a research capacity include those who direct a research project and those staff directly engaged in gathering, correlating, and evaluating information and making findings.

(iii) Individuals who perform services in a principal administrative capacity include school principals, school superintendents, officers of the institution, the board of directors, business managers, deans, associate deans, university public relations directors, comptrollers, development officers, chief librarians, registrars, and any individuals who, although they may lack official titles, actually serve in a principal administrative capacity.

(i) as it relates to the probability of performing services in the next academic year or term, that there is a written, oral or implied agreement that the worker will perform services in the same capacity in the next academic year or term. However, reasonable assurance does not exist if the economic terms and conditions are substantially less than the economic terms and conditions of the job in the previous academic year or term.

(A) A worker who performed services in the first of any two academic years or terms for an educational institution is considered to have reasonable assurance of performing services in the same capacity for that educational institution in the second academic year or term, regardless of whether the worker is required to reapply for a position, the worker has advised the institution of the worker's intention not to return to work in the subsequent academic year or term, or the educational institution has advised the worker or the department that employment in the next academic year or term is contingent upon adequate funding or enrollment, unless:

(I) the worker has been given unequivocal notice that the worker will not be rehired for the subsequent academic year or term;

(II) the department determines that there is not a pattern, either as to the particular worker or as to the class of workers to which the worker belongs, of such notice being followed by subsequent reemployment by the educational institution; and

(III) the department determines that there is not substantial evidence of a continuing work relationship between the worker and the educational institution during the period between first and subsequent academic years or terms, including but not limited to, the continuance of employee benefits during the period.

(B) A worker who performed services in the first academic year or term for an educational institution is considered to have reasonable assurance of performing services in the same capacity for another educational institution in the subsequent academic year or term if the worker has been given a bona fide offer, whether or not accepted by the worker, of a specific job in the same capacity as the services performed in the first academic year or term by an individual with the authority to make such an offer on behalf of the educational institution.

(ii) as it relates to the probability of performing services following a customary vacation break or holiday recess, that there is a written, oral or implied agreement that the worker will perform services in any capacity, professional or non-professional, following a customary vacation break or holiday recess. In the absence of substantial evidence to the contrary, a worker who performed services for an educational institution immediately preceding a customary vacation break or holiday recess will be considered to have reasonable assurance of performing services in some capacity for an educational institution in the period immediately following the vacation break or holiday recess.

(d) "Same capacity" means that the work offered is in the class of capacity, either professional or non-professional, of the service performed in the first academic year or term.

(2) A worker who is initially determined not to have reasonable assurance will be denied benefits between academic years or terms and during customary vacation periods and holiday recesses within terms from the point forward that the worker is determined to have subsequently received reasonable assurance.

(3) Workers at educational institutions or educational service agencies who customarily work for the educational institution or educational service agency during the period between academic years or terms or during customary vacation periods or holiday recesses within terms are not subject to the provisions of 39-51-2108 , MCA.

(4) If the claimant's benefits are based on services in a professional capacity and the claimant was previously determined to have reasonable assurance, but continues to be unemployed when school commences, the claimant may be allowed benefits from the date the offer of employment was withdrawn or from the date the claimant was given reasonable assurance if it is determined that the original offer of employment was not a bona fide offer.

History: 39-51-301, 39-51-302, MCA; IMP, 39-51-2108, MCA; NEW, 1990 MAR p. 2181, Eff. 12/14/90; AMD, 1994 MAR p. 2951, Eff. 10/30/94; AMD, 2000 MAR p. 3523, Eff. 12/31/00.