24.11.442    INITIAL MONETARY DETERMINATION--WAGES--REVISIONS

(1) After filing an initial claim, a claimant will receive an initial monetary determination stating whether the claimant has sufficient wages to qualify for benefits.

(a) Base period wages used to establish a monetary determination and a benefit year in any state, including Montana, may not be:

(i) used by this state to establish a second or subsequent monetary determination and benefit year; or

(ii) transferred by this state to another state for the purpose of combining wages and employers as provided by 39-51-504 , MCA.

(b) For the purposes of this rule, base period wages are deemed to be "used" when the base period wages are:

(i) part of the calculation that establishes the monetary amount of benefits payable on the claim;

(ii) the basis for establishing the benefit year of the claim; and

(iii) of an amount sufficient to qualify the claimant for benefits under 39-51-201 (2) or 39-51-2105 , MCA, if the claimant is otherwise eligible to receive benefits with respect to that claim.

(2) The initial monetary determination informs the claimant of:

(a) the department's records of the claimant's base period employer or employers;

(b) the amount of wages reported as having been paid in each of the calendar quarters of the base period;

(c) the potential amount of benefits the claimant may receive in the benefit year; and

(d) the effective date of the claim.

(3) Except for wages as described in (6) , upon the request of a claimant, the department will adjust the distribution of the claimant's base period wages by assigning the wages to the calendar quarters in which the wages were earned rather than to the calendar quarters in which they were paid.

(4) If a claimant's wage records have not been received, and the department has determined that the employer is subject to unemployment tax, the claimant may support the claim by affidavit or documented evidence for the department's consideration in establishing the amount of base period wages.

(5) Generally, only wages actually or constructively paid determine the amount of wages in the claimant's base period. Wages are constructively paid if they are credited to the worker's account or set apart for a worker so that they may be drawn upon by the worker at any time, although not actually in the worker's possession. However, unpaid wages may be considered if a claimant:

(a) completes an affidavit stating:

(i) the name and address of any employer from whom wages are due;

(ii) the amount of unpaid wages; and

(iii) the reasons why the wages have not been paid; and

(b) provides at least one of the following:

(i) a W-2 or 1099 form as required by the internal revenue service;

(ii) a signed statement from the employer affirming the truth of the claimant's affidavit;

(iii) a copy of the employer's schedule of assets and liabilities filed in a bankruptcy proceeding showing the unpaid wage claim;

(iv) a copy of the claimant's wage claim filed with the department, if the department has not dismissed the wage claim; or

(v) a copy of a decision of the department or a court of competent jurisdiction stating that the wages are owed the claimant.

(6) The following payments are wages which are assignable in the following periods:

(a) Payments made for termination of employment in insured work generally known or described as severance pay, separation pay, termination pay, wages in lieu of notice, continuation of wages for a designated period of time following cessation of work, or other similar payment, and payments made under an incentive, worker buy-out, or similar plan designed to produce a general or specific reduction in force by inducing workers to leave voluntarily or in lieu of involuntary termination, whether paid in a lump sum or incrementally over any period of time, are attributable to the quarter in which the separation from work occurred.

(b) Accrued vacation and sick leave paid at or after separation, other than a temporary layoff, are attributable to the quarter in which the separation from work occurred.

(c) Bonus, awards, incentives, rewards, profit sharing, and stocks are attributable to the quarter the payment was issued.

(d) Holiday pay is attributable to the quarter the payment was issued.

(e) Payments received for accrued unused vacation, sick leave, compensatory time or other similar leave when separation has not occurred or during periods of temporary layoff are attributable to the quarter in which the payment was issued. These payments are sometimes also known as a "cash-out" of leave benefits.

(f) Backpay and settlements, in all cases, will be prorated back over the time the payment represents. Only the portion of the payment that is wages which would have been earned, or wages earned and not paid, will be applied to weeks claimed and quarterly wages.

(g) Use of vacation or sick leave, compensatory time or other similar leave paid during the course of employment in insured work, including periods of temporary layoff, for time off from work for vacation, whether voluntary or mandated, sick leave, or other leave with pay is attributable to the quarter the payment was issued.

(h) Royalties, residual payments, and commissions are attributable to the quarter in which the payment was issued.

(7) Except as provided in this rule, the initial monetary determination is final unless a claimant requests revision of the determination within ten days after the determination was mailed. Upon request of the department, the claimant may be required to provide proof of earnings, such as check stubs, W-2 forms, or statements from employers.

(8) A monetary redetermination is final unless a claimant appeals the decision as provided in 39-51-2402 and 39-51-2403 , MCA, within ten days of the date the redetermination was mailed.

History: 39-51-301, 39-51-302, MCA; IMP, 39-51-2105, 39-51-2201, 39-51-2202, 39-51-2203, 39-51-2204, MCA; NEW, 1988 MAR p. 2723, Eff. 1/1/89; AMD, 1990 MAR p. 2181, Eff. 12/14/90; AMD, 1992 MAR p. 803, Eff. 4/17/92; AMD, 1994 MAR p. 2835, Eff. 10/30/94; AMD, 1998 MAR p. 2862, Eff. 11/1/98; AMD, 1999 MAR p. 2876, Eff. 12/26/99; AMD, 2000 MAR p. 3523, Eff. 12/31/00; AMD, 2002 MAR p. 2322, Eff. 8/30/02.