Gig workers between jobs shouldn't assume they're ineligible for unemployment

  • If you quit your job, were fired or thought you were an independent contractor, you might still be able to receive those weekly checks.
  • These are some of the common reasons people mistakenly don't bother filing.
Layoff, fired
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Unemployment insurance is meant to help people while they are between jobs.

Yet an expanding share of out-of-work people are missing out on that safety net, often unnecessarily.

Details of state unemployment insurance programs vary; generally, the government provides benefits to eligible workers who have lost a job "through no fault of their own," for a maximum of 26 weeks.

The first rule: You have to apply for it.

In the last five years, the percentage of unemployed people to file for payments has dropped by nearly 20 percent. In 2016, more than 70 percent of unemployed people went without those benefits, according to a recent National Employment Law Project report.

One major reason for the decline, experts say, is that people assume — often, wrongly — that they're not eligible for unemployment benefits. So they don't bother applying.

To be sure, there are a myriad of obstacles to applying, said Anne Paxton, staff attorney at the Unemployment Law Project in Seattle.

Many states make you wait a week after you lose your job to file. The process, which typically has to be done online, can be cumbersome and confusing if you don't have the clearest case.

If you'd like to speak to a human being about your application, there can be huge wait times over the phone. This can all be quite stressful while you're looking for your next paycheck.

"A lot of people drop out of the process," Paxton said.

But there are many ways to make the case that you are, in fact, eligible. Here's how.

You were fired

Employee receives a pink slip at work.
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Many people believe that if their boss wasn't happy with them when they stopped working, they won't qualify for benefits, said George Wentworth, senior counsel at the National Employment Law Project.

"The culture of the workplace is in many ways deferential to employer decisions," he said.

Workers generally can't be disqualified for benefits due to unsatisfactory job performance though. If you were fired because you couldn't produce 100 widgets an hour, for example, you should still file, Wentworth said.

To deny you benefits, the employer generally will have to prove that you are guilty of misconduct (yelling at a subordinate, for example) or gross negligence (say, repeated absences). Even these instances may not disqualify you, however, Wentworth said.

For example, say your employer had a rule that if you're absent more than X days, you'll be let go. If you hit that number of days but can prove that you were legitimately sick on each of those occasions, you may still qualify for the insurance, he said.

Expect to document and show a credible account of what happened, Wentworth said, "the way an employer might document the events from their perspective."

You quit

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Don't assume because you left your job that you don't qualify.

"There is a healthy segment of workers who leave jobs for what would be called 'good cause connected with the work' and could be eligible for benefits," Wentworth said.

Good cause connected with the work is generally considered a substantial change to employer's original conditions of employment that has an adverse effect on the worker.

In Washington state, for example, if you quit because your boss slashed your usual pay or hours of work by 25 percent or more, you could qualify.

You may also be eligible if you can prove you had to quit. Steve Gray, director of Michigan Law's Unemployment Insurance Clinic, pointed to a client who developed an allergy to a substance at the muffler shop where he worked. The client had to quit but was still deemed eligible for benefits.

"It was an involuntary quit," Gray said.

But you'll usually have to prove that you tried to do something about this change before you upped and left, Wentworth said. Did you ask your boss for more pay? Did you ask if you could work in another section of the store where you wouldn't be exposed to the allergen?

You're a seasonal worker

Vickie Bajtelsmit, a professor of finance, at Colorado State University, in Fort Collins, Colo., Feb. 9, 2017.
Nick Cote | The New York Times
Vickie Bajtelsmit, a professor of finance, at Colorado State University, in Fort Collins, Colo., Feb. 9, 2017.

Many seasonal workers, from landscapers to adjunct professors, assume there's little they can do about their professions' periods of unemployment, said Paxton.

"They think that's just the fabric of the work," Paxton said. "But in many cases, they can qualify and get benefits."

Typically, you'll have to make the case that you are involuntarily unemployed and do not have "reasonable assurance" of re-employment, Wentworth said.

If you're an adjunct professor, for instance, do you have a commitment in writing from the college that you're more likely than not to be teaching the same number of courses in the fall as you did in the spring? If not, you may qualify for unemployment insurance.

When it comes to other jobs like landscaping, Wentworth said, some states have rules about seasonal work that will disqualify you. However, he said, "the majority of states will pay you benefits during the off-season."

You're an independent contractor (or so you thought) 

Freelancer
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In order for your wages to count toward unemployment insurance, you need to be in an employee/employer relationship. The earnings of self-employed individuals and independent contractors, therefore, don't count toward the benefit.

But many workers are misclassified as independent contractors, Wentworth said, and under the law they are actually employees.

It'll be up to your state unemployment agency, using its laws, to determine if your status was independent contractor or employee.

"Frequently, a worker has been told they're an independent contractor, and then the agency determines they're an employee," Wentworth said. "An auditor comes in and says, 'We need to reclassify those as wages and you should be eligible for benefits.'"

You assume you're not 'able' to work

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Julia Simon-Mishel, a staff attorney at Philadelphia Legal Assistance, said many people assume they're not able and available to work — generally a requirement to qualify for unemployment insurance — when actually, they're just not considering all the work they can do.

For example, people who are injured might believe they can't work because their former job required heavy lifting.

Keep an open mind about what other types of work you could do, she said: "As long as you can do some work, then you could still be eligible."

Your employer said you don't qualify

If an employer tells you that you're not going to receive unemployment insurance, don't stop there, Wentworth said.

He recommends checking your state's unemployment agency for information. You can also look through your state's appeals board for precedent-setting decisions, which are typically available online. Many states have unemployment clinics that can provide help or advice.

"Every person has a right to file an unemployment claim and go through a process of adjudicating their eligibility for benefits," he said.