Unemployment Insurance (UI)
Can I file for unemployment benefits if my employer says they are paying out my vacation or PTO time?
Employers in Nevada are not required to pay out vacation or paid leave time accrued. See NRS 608.0197(1)(i). If an employee is rehired within 90 days, the employer must reinstate any paid leave hours. If an employer does pay out vacation or paid leave time, the employee is ineligible for unemployment benefits for any week in which the employee received paid leave for that week. So, if your employer pays leave when you are laid off or terminated, and you have 3 weeks of accrued leave time, you would be ineligible for unemployment benefits for 3 weeks. See NRS 612.430.
My employer has offered me part time work at a lesser pay rate. Can I apply for unemployment benefits?
If your hours are reduced instead of having your employment terminated, you can be eligible for partial unemployment benefits depending on how much you earn v. your maximum unemployment benefit amount. NAC 612.090(1)(b). If you do not accept the offer of part time work at the reduced rate, this is a much harder question to answer. This is a highly fact based issue and will depend on whether the refusal to accept the part time work is “substantially less favorable” so as not to be considered suitable work. NRS 612.390(3)(b).
My employer says that I have not been laid off but I have zero hours on my schedule. Can I file for unemployment benefits?
Yes. If you provide no services to your employer for a work week, you are considered unemployed. NAC 612.090(1)(a).
Denial of Benefits
If you lose your job or are forced quit, you may be eligible for unemployment benefits. Generally, you are eligible for unemployment benefits if you are laid off because your employer does not have enough work for you, or if you are not “at fault” for losing your job in the legal sense. Even if you are “at fault” for losing your job in some sense, you may be eligible to receive benefits. Do not apply for unemployment benefits if you have applied for workers compensation.
There are many reasons the Employment Security Division of the Nevada Department of Employment, Training, and Rehabilitation (ESD) might have denied your claim for benefits.
Pursuant to NRS 612.385, a person is ineligible for benefits if he or she was discharged from his or her last or next to last employment for misconduct connected with his work.
Misconduct is a deliberate violation or negligent disregard of a reasonable work rule or standard of behavior of your employer. This intentional or careless action must show a substantial disregard of the employer’s interest. Ordinary negligence in isolated instances and good faith errors are not misconduct. Your behavior must also include an element of wrongfulness.
The employer has the burden of proving misconduct. After an initial showing, however, the burden shifts to the employee to show that they did not engage in misconduct or any wrongful behavior.
Quitting Without Good Cause
You cannot voluntarily leave employment and receive unemployment benefits unless you had “good cause” to quit.
Nevada has not specifically defined “good cause”. The Nevada Department of Employment, Training and Rehabilitation provides that good cause for leaving work can be established if a reasonable person would find a compelling reason to quit and there are no other reasonable alternatives but to quit. Generally, you will only to have “good cause” to have quit your job if you exhaust all reasonable alternatives prior to quitting, such as consulting with Human Resources, or a supervisor. If you left your job to seek work, but had not yet secured a firm promise of work, you will not be found to have had “good cause” to quit. If you resign instead of getting fired, then you do not have good cause, either.
If you make a false statement or representation, knowing it is false, or knowingly fail to disclose a material fact in order to obtain unemployment benefits, you can be disqualified from receiving unemployment benefits.
Overpayments caused by misrepresentation require repayment and result in a period of disqualification of up to 52 weeks.
Issues Related to Ongoing Eligibility
You are eligible for benefits if you have been employed in “covered” employment for the required time period. Most employers are “covered” employers, but some employment is exempt from coverage, such as work performed for a church, self-employment and work performed for private employers while in the custody of a state correctional institution.
In Nevada, you must have earned at least $400 in one quarter of the base period, and
- have total base period earnings of not less than 1-1/2 times the earnings in the highest quarter, OR
- must have wages in at least 3 of the 4 base period quarters used to calculate eligibility.
Base period is usually the first 4 of the last 5 calendar quarters completed immediately preceding the first day of the benefit year.
Able and Available to Work
You must be actively engaged in efforts to seek and secure employment in your customary occupation to be eligible to receive benefits.
You also must not have personal circumstances which prevent you from applying for, and accepting a job when offered. Some examples of circumstances that may prevent a person from being available for work include, but are not limited to:
- Inadequate child care;
- Lack of adequate transportation;
- Lack of tools required to perform the job;
- Unwillingness or inability to work the days and hours customarily required by the type of work; and,
- A personal decision to attend school not designated as approved training.
You also must be able to turn in work search records when asked. Generally you want to at least apply for 2-3 jobs a week to maintain eligibility for that week. You must use “good faith” in actively seeking work.
If you are in good standing with a union and reporting for job call as directed, you are considered available for work.
You must accept an offer of suitable employment and must go to any referrals for suitable work. You can be denied for refusing suitable work. Suitable work is work which you customarily perform and pays the prevailing wage for that type of work in the area that the work is being performed.
The Employment Security Division Job Service refers individuals who are receiving benefits to work when suitable openings are available. If you refuse to apply for a job as directed by the Job Service you may be denied further unemployment benefits.
Unemployment Appeal Process
Nevada Legal Services may be able to assist you if you have been denied benefits or your employer has appealed the determination granting benefits. We represent claimants in administrative hearing before the Appeals Referee and on appeal to state court.
The Employment Security Division will interview you and your employer to determine if you are legally “at fault” for losing your job. The terminology that is used is “discharged” for misconduct” or “voluntary quit”. If you lose your job for either of these reasons, you are not eligible for benefits. Whenever you lose your job, you should apply for benefits, as these determinations are highly factual, and you have nothing to lose by applying.
You should apply for benefits whenever you become fully or partially unemployed. This does not include any time that you are on paid vacation from work. At the time you apply, you will be asked to provide the following information:
- The names, addresses, and dates for your last and next to last employer; and
- If you are not a U.S. citizen, proof of your immigration status.
The benefit amount that you will receive depends on how much you have earned. Generally the range of the weekly benefit amount is from $16.00 to $469.00. The benefits will end after 26 weeks. If you are living in Nevada, but earned your wages in another state, you can file an interstate claim. If you have worked in more than one state, you may file a combined wage claim.
If you are eligible to receive unemployment compensation, you should start receiving a check within 2 to 3 weeks after filing the initial claim.
Denial of Benefits
Sometimes your initial applications for unemployment compensation will be denied. If this happens you can protest your denial. You should immediately request a hearing. You have to put the request into writing and sign it. You have 11 days from the date the initial determination is mailed to you, or given personally to you, to request a hearing. The request is considered filed on the date it is received by the Employment Security Office if delivered by hand, or if it is mailed, the postmarked date on the envelope. All of these dates are shown on the notice.
At least seven days prior to the hearing you will receive a notice that should contain the following information:
- The time, place, and nature of the hearing;
- A statement of the legal authority and jurisdiction under which the hearing is to be held;
- A reference to the particular sections of the statutes and regulations involved;
- A short plain statement of the issues involved;
- Your right to be represented by counsel (at your own expense);
- Your right to request the issuance of subpoenas; and
- Your right to have witnesses at the hearing.
It is important to review the notice, especially the issues discussed at the hearing. If they are not the same issues that you wished raised, contact the hearings division immediately. If you are not satisfied, bring this issue up at the hearing. It is also important to submit any relevant evidence you want to raise at the hearing to the Appeals Office prior to your hearing.
Every hearing is recorded. At the start of the hearing, the examiner should turn on the tape recorder and give a concise statement of the issues to be covered and the procedures that will be followed. The issues that will be addressed at the hearing should only be those listed in the notice of the hearing. The order in which the evidence is presented is in the discretion of the examiner.
The examiner has the responsibility to elicit evidence by examining witnesses in a logical and orderly manner. You and your employer should be allowed the opportunity to examine your witnesses, and cross-examine the opposing parties’ witnesses, unless the testimony is unduly repetitive. In addition, the examiner has the obligation to minimize the legal technicalities if you are not represented so that you are not disadvantaged. If you have exhibits, make sure you bring them to the attention of the examiner, and that they are marked, identified, and entered into the record.
In summary, you are entitled to a reasonable opportunity for a fair hearing.
You are entitled to inquire and develop all facts relating to the issues. The examiner should receive and consider all evidence without regard to statutory and common-law rules. If an examiner denies you the opportunity to present evidence, briefly summarize what you would like to present, to have some record of it.
You will receive notice containing the decision of the examiner. If you disagree with the decision, you have 11 days to appeal to the board of review. Once again, it must be in writing and signed by you. However, this time you must identify the issues with which you disagree.
Once the Board of Review receives the appeal, they may restrict the process to written arguments, or they may request that you be present for oral argument. The evidence that they review is limited to the evidence that was introduced at the hearing. They may refuse to hear an appeal where the examiner agreed with the initial decision of the Employment Security Division.
If you lose this appeal, you have the right to have the decision reviewed by the District Court. You have 11 days to file a Petition for Judicial Review with the District Court where you were employed to review a Board of Review decision. You may contact us for more information or visit our forms page for a sample Petition and instructions.
Overpayment of Unemployment Benefits
Overpayments can be caused by a number of factors, including simple Division error, failure to provide accurate facts about the separation, a reversal by an Appeals Referee or the Board of Review, or information being provided late by the employer that causes the Division to reverse or make changes to a determination.
The Employment Security Division will seek repayment of all overpayments, regardless of who is at fault, but overpayments can be appealed like any other issue.
Pursuant to NRS 612.365, the Division has discretion to waive the unemployment if:
- The overpayment was not due to fraud, misrepresentation or willful nondisclosure on the part of the recipient; and
- The overpayment was received without fault on the part of the recipient, and its recovery would be against equity and good conscience.
Pursuant to NRS 612.445, Overpayments caused by misrepresentation require repayment and result in a period of disqualification of up to 52 weeks.
If you want to dispute your overpayment, file an appeal with the Employment Security Division.