INTERPRETATION NO. 275
NORTH CAROLINA DEPARTMENT OF COMMERCE
DIVISION OF EMPLOYMENT SECURITY
Interoffice Communication
Date: September 17, 2024
TO: Holders of Interpretation Manual, All Directors, Adjudicators and Appeals Referees
FROM: R. Glen Peterson, Chief Counsel
SUBJECT: DES Interpretation No. 275
Pursuant to 2011 N.C. Sess. Laws 401, the Employment Security Commission of North Carolina became the North Carolina Department of Commerce, Division of Employment Security (“DES”) on November 1, 2011. Interpretations adopted prior to the amendments made by 2011 N.C. Sess. Laws 401 which were effective on that date continue to apply and should be construed as Interpretations of the Division.
In accordance with DES Interpretation No. 252, the attached DES Interpretation No. 275 has been adopted as an official interpretation by the North Carolina Department of Commerce, Division of Employment Security. “Interpretations issued by the Chief Counsel on behalf of [DES] will continue to be considered as a written interpretation or legal opinion of [DES] and shall be continued to be considered as a precedent in all issues considered in the written interpretation.” DES Interpretation No. 252. The attached material is relevant and suitable to be an interpretation of the Employment Security Law, and as such, it shall be distributed to all holders of interpretation manuals, all directors, all adjudicators, and all appeals referees. Also attached is a current index of the Division’s Interpretations. All of the foregoing materials shall be incorporated into the official DES website section on Laws & Rules at https://www.des.nc.gov/laws-rules/legal-information/interpretations-manual
Any questions about this Interpretation should be directed to the office of the Chief Counsel at (984) 236-5987.
DES INTERPRETATION NO. 275
TO: North Carolina Department of Commerce, Division of Employment Security
FROM: R. Glen Peterson, Chief Counsel
SUBJECT: Plain language determinations and decisions using “qualified,” “disqualified,” “eligible,” and “not eligible”
In mid-2022, the Division of Employment Security (Division) was awarded an equity grant, one focus of which was to “improve the language on the Division’s external-facing channels, such as the Division’s website, SCUBI [MyNCUIBenefits] portals, and correspondences.”1 Correspondences include the notices that the Division sends out to those using its services and determinations and decisions issued to claimants and employers as to the receipt of unemployment insurance benefits. These determinations and decisions typically refer to whether a claimant will receive benefits based on his or her separation from employment;2 failure without good cause pursuant to N.C. Gen. Stat. § 96-14.11 to either: (1) apply for available suitable work when so directed by the employment office of the Division; (2) accept suitable work when offered; or (3) return to the individual’s customary self-employment when so directed by the Division; whether the claimant meets the weekly certification requirements set forth under N.C. Gen. Stat. § 96-14.9 of the Employment Security Law; or is employed or unemployed under N.C. Gen. Stat. § 96-15.01.
Until now, the aforementioned determinations and decisions were written in terms of whether the claimant was “disqualified” or “not disqualified” for benefits based on the claimant’s separation from employment or based on the claimant’s compliance with N.C. Gen. Stat. § 96-14.11. Determinations were written in terms of whether the claimant was “eligible,” “not eligible,” or “ineligible” based on his or her compliance with N.C. Gen. Stat. §§ 96-14.9 and 96-15.01. The terms used are clearly based on the way the statutory provisions are written. For example, N.C. Gen. Stat. § 96-14.6(a) reads as follows:
1 The Messenger, Your DES Employee Newsletter, December 6, 2023.
2 Separation issues typically (but not exclusively) arise under N.C. Gen. Stat. §§ 96-14.5, 96-14.6, 96-14.7 and 96-14.8.
“Disqualification. – An individual who the Division determines is unemployed for misconduct connected with the work is disqualified for benefits. The period of disqualification begins with the first day of the first week the individual files a claim for benefits after the misconduct occurs.”
Since the statute states that an individual determined to be unemployed for misconduct connected with the work is “disqualified” for benefits, it was reasonable to conclude that one who was not discharged for misconduct is “not disqualified” for benefits. This may be a legally understandable result, but research has also shown that use of the terms “not disqualified” or “ineligible” can be confusing.
Deloitte, a professional services network, “conducted research and analysis using the Division’s administrative data, holding a focus group and conducting a usability test in October 2023.”3 The research centered on claimants who identified as having limited English proficiency (LEP)4 and spoke Spanish as their native language. One of the challenges or barriers that Deloitte identified regarding an LEP individual’s understanding of the unemployment insurance claims process was difficulty understanding complex languages.
Deloitte stated that “The phrase ‘claimant is not disqualified for benefits’ confused the LEP claimants. They requested plainer language in English to facilitate a clearer understanding of the messages they received so they could better comprehend what their next steps might be.”5
The call for plain language is also contained in the North Carolina Department of Commerce, Division of Employment Security & Division of Workforce Solutions Limited English Proficiency Plan. Not only does this ensure that language is more understandable to LEP individuals, but it also makes the information accessible to a wider range of literacy levels, whether the individual is LEP or not. The Plain Writing Act of 2010, Pub. L. No. 111-274, 124 Stat. 2861 (2010) (codified at 5 U.S.C. § 301 note), indicates that States should ensure that all communications are written to accommodate different literacy levels.
A sentence including the phrase “qualified for benefits” was found to be easier to understand than the same sentence with the phrase “not disqualified for benefits”
3 North Carolina Division of Employment Security Equity Grant Project, Limited English Proficiency (LEP) Barriers Brief, March 14, 2024.
4 Pursuant to 29 CFR § 38.9, discrimination is prohibited based on national origin including limited English proficiency.
5 North Carolina Division of Employment Security Equity Grant Project, Limited English Proficiency (LEP) Barriers Brief, p. 10, March 14, 2024.
according to the Flesch-Kincaid Grade Level test.6 Similarly, a sentence using “not eligible for benefits” was easier to understand than the same one using “ineligible for benefits.”7
Consistent with the guidance cited within this interpretation, all determinations, decisions, and other communications issued by the Division from this date forward shall use the preferred terms “disqualified”8 or “qualified” (when addressing whether the individual is disqualified for benefits, depending upon whether the applicable statutory provision has or has not been met); or “eligible” or “not eligible” when those parts of the statute are applied addressing an individual’s eligibility to receive benefits. Use of the terms “not disqualified” or “ineligible” will not invalidate a determination or a decision but are not preferred and should be avoided.
For example, when stating that the applicable statutory provision to disqualify an individual from receiving unemployment insurance benefits has not been met, instead of using the phrase “Claimant is not disqualified and will receive unemployment insurance benefits beginning […],” the Division will use the phrase “Claimant is qualified and will receive unemployment insurance benefits beginning […]”.
Similarly, when addressing an individual’s eligibility to receive benefits, if a provision of the applicable statute deems the individual not eligible to receive benefits, instead of using the phrase “Claimant is ineligible for unemployment benefits beginning […],” the Division will use the phrase “Claimant is not eligible for unemployment benefits beginning […]”.
Adopted as an official Interpretation by the North Carolina Department of Commerce, Division of Employment Security on September 17, 2024 and is applicable to all Division claims and/or appeals determinations and decisions issued as of that date.
6 “Qualified for benefits” = 7.6 grade level; “Not disqualified for benefits” = 8.3 grade level.
7 “Not eligible for benefits” = 8.3 grade level; “Ineligible for benefits” = 12.3 grade level.
8 “Disqualified” will continue to be the preferred term in lieu of “not qualified” because it is used throughout the Employment Security Law to describe when a claimant is prevented from receiving benefits in a separation or similar situation and it is historically recognized.
INTERPRETATIONS
| NUMBER | SUBJECT |
|---|---|
| 3 | Interpretation of Section 19(f)(6) of the law. |
| 17 | Labor unions coverage under the North Carolina Law. |
| 18 | Commission Records shall show true status of employing unit. |
| 27 | Determination of suitable work when physical disability is in question. |
| 33 | Liability under mandatory provision of Law supersedes voluntary election – Termination of Coverage- Section 8(b) and (c) and Section 19(f) of the Unemployment Compensation Law. |
| 46 | Endorsement of checks Intended for Unemployment Compensation Commission but sent to Commission of Revenue. |
| 48 | Unemployment Compensation Act; Interpretation of the phrase “Left work voluntarily without good cause attributable to employer,” as same appears in Section (5(a) of the Unemployment Compensation Laws of North Carolina. |
| 49 | Unemployment Compensation Law; Effect of docketing judgment for contributions; Refunds. |
| 55 | Unemployment Compensation Tax; Compromise of tax involving claims in litigation. |
| 69 | Unemployment Compensation Law; Section 96-14(a) of the General Statutes; Voluntary or involuntary separation from work; Married woman who leave their work to follow their husbands to new residences. |
| 79 | Interpretation of Section 96-8(g)(1) of the Employment Security Law of North Carolina since January 1, 2949 – Definition of Employment. |
| 87 | Employment Security Commission; Collection of contributions; Taxation; Docketing of summary judgment; Authority of Commission to accept chattel mortgages covering amount of contribution or taxes due; Statutes, directory and mandatory. |
| 88 | Interpretation of Section 96-11(c)(2) of the Employment Security Law of North Carolina – Voluntary coverage. |
| 92 | Employment Security Commission; Proviso of Section 96-15(b); Double Affirmance Clause; Extent of payment of benefits under Double Affirmance Clause. |
| 92-Supp-1 | |
| 98 | Interpretation of General Statute of North Carolina 1-47. 10- year statute of limitation of collection on judgments. |
| 101 | Earnings reportable and availability of claimant serving on jury, National Guard, United States Army Reverse Corps, or as election official. |
| 108 | Interpretation of Section 96-8(g)(1) of the Employment Security Law of North Carolina since January 1, 1949 – Definition “employment” – Whether home workers are in employment. |
| 113 | Interpretation of Section 96-9(b)(4)(A) of the Employment Security Law of North Carolina – Use of Payrolls in Computing Contribution Rates on Re-established Liability After Computation Date. |
| 114 | Interpretation of Sections 96-8(g)(2), (3), (4) and (5) of the Employment Security Law of North Carolina – Employment – Services performed within and without this State – Interstate employment. |
| 118 | Interpretation of Section 96-8(g)(7)(G) of the Employment Security Law of North Carolina – Employment of mother and father by administratrix of son’s estate or by a partnership composed of sons. |
| 119 | Interpretation of Section 96-9(c)(4) of the Employment Security Law of North Carolina of North Carolina – Total or partial transfer of experience rating account. |
| 121 | Employment Security Commission; Transfer of reserve accounts; Notice of Commission to successor employer; Refunds. |
| 122 | Priority of federal liens of personal property. |
| 122-supp-1 | Priority of federal liens. |
| 124 | Status of an individual who renders service as a preacher and in addition thereto works during the weekdays in covered employment and who becomes separated from his weekday employment. |
| 131 | Executors and administrators; Escheats; Disposition of unemployment compensation benefits where no administrator has qualified, and Section 28-68 does not apply. |
| 139 | Eligibility of individuals who are primarily self-employed and others who supplement regular earnings but are not engaged in self-employment. |
| 144 | Interpretation of Section 96-8(g)(7)(I) of the Employment Security Law of North Carolina – Status of insurance agents, solicitors, and securities salesman under the Employment Security Law. |
| 145 | Officers of corporations – Employment – Employees |
| 145- supp-a | Officer’s salaries |
| 146 | Interpretation of Section 96-8(g)(1) of the Employment Security Law of North Carolina – Status of bank directors required by statute to serve on committees. |
| 153 | Interpretation of the Employment Security Law of North Carolina, Section 96-8(6)(b) (formerly Section 96-9(c)(4(B)) Rate of Successor – Section 96-11(a) (No change) Effective date of liability. |
| 158 | Interpretation of Section 96-8(g)15 (formerly Section 96-8(g)(7)(O)) of the Employment Security Law of North Carolina, defining “casual labor.” |
| 163 | Interpretation of the Employment Security Law of North Carolina – Section 96-12(b), Wages used in computing weekly benefit amount; Section 96-8(18), Base period. Section 96-8(10)(a), Total unemployment; Section 96-8(13), Wages – Effect of payment of wages retroactively for base period purposes and effect of such payments upon the eligibility of a claimant for benefits with respect to the week for which such retroactive wages were paid. |
| 165 | Interpretation of Section 96-10(d) of the Employment Security Law of North Carolina – Liability of purchases or business for unpaid contributions of predecessor. |
| 167 | Supplement unemployment benefits. |
| 168 | Interpretation of Section 96-8(6) of the Employment Security Law of North Carolina – Employment, Employer and Employee – On-the-job Training under the Division of Vocational Rehabilitation of the North Carolina Department of Education. |
| 169 | Interpretation of the Employment Security Law of North Carolina – Covered employment. |
| 172 | Interpretation – General Statutes Chapter 59 – Partnerships. |
| 173 | Interpretation – General Statutes Section 148-33.1 – Prisoners employed under work release plan – In employment. |
| 174 | Interpretation – Decision which has become final may be amended to correct clerical errors or to make the decision express the intent of the deputy. |
| 177 | Interpretation of Section 96-8(6) of the Employment Security Law of North Carolina – Services performed under contract by one employment unit for another employing unit. |
| 184 | Interpretation of Section 96-8(6) g.7 of the Employment Security Law of North Carolina – Employment of stepson by stepfather. |
| 187 | Interpretation of Section 59-1 to 59-30 Inclusive – Limited partnerships. |
| 190 | Interpretation of the Employment Security Law of North Carolina Section 96-15(b)(1), Redetermination of an initial monetary determination. |
| 205 | Interpretation of Section 96-15(b)(2) of the Employment Security Law of North Carolina and Section 1-593 and 103-4 of the General Statutes – Effect of legal holidays upon appeal period. |
| 207 | Interpretation of the Employment Security Law of North Carolina (1) Section 96-13(3), Commission – approved training, and (2) Section 96-18(f), Larceny and embezzlement. |
| 220 | Interpretation of Section 96-9(5) k., and 96-8(6) g.17 of the Employment Security Law of North Carolina - Orphanages. |
| 221 | Interpretation of Section 96-8(5)k, 96-8(5)a, and 96-8(6) g.17(iv) of the Employment Security Law of North Carolina – Vocational workshop – Rehabilitation facility. |
| 231 | Interpretation of the Employment Security Law of North Carolina – Nonprofit organizations (1) Section 96-8(5)a, 96-8(5)k, and 96-11(c )(1) – Employer and (2) Section 96-9(d) – Method of financing |
| 231- partial-revocation | Partial Revocation of Interpretation of No. 231. |
| 232 | Interpretation of Section 96-8(5)k and 96-8(6) g.17(v) of the Employment Security Law of North Carolina – Nonprofit organizations and exempt employment. |
| 237 | Interpretation of Section 96-11(c )(1) and 96-10(i) of the Employment Security Law of North Carolina – Request by Employer X held liable under the Federal Unemployment Tax Act for eight years that he be allowed to volunteer coverage under the Employment Security Law of North Carolina for all eight years in order to get tax credit beyond the five-year state of limitations. |
| 239 | Interpretation of Section 96-10(b)(1) of the Employment Security Law of North Carolina – Collection of contributions where employer does not protest or request a hearing within apt time. |
| 248 | International Longshoremen Association (ILA), Guaranteed Annual Income Plan (GAI) – South Atlantic Labor Contract. |
| 251 | Interpretation of Section 96-1(13) b of the Employment Security Law of North Carolina – Annuity plan. |
| 252 | Interpretations. |
| 253 | Total and partial unemployment. |
| 254 | Disclosure of information |
| 255 | Payments made to claimants |
| UIPL-3582 | monies paid to members of the State National Guard or Air National Guard |
| 255-supp-1-v.1 | Claims reporting of National Guard pay |
| 255 – supp – 1-v.2 | National Guard and Reserve pay. |
| 255-supp-2 | Vacation payments |
| 256 | Unemployment of part-time claimants. |
| 256, Supp. 1 | Unemployment of part-time claimants. |
| 257 | Limited partnership agreements |
| 258 | Separation payments. |
| 259 | Voluntary contributions. |
| 260 | Referrals to the State Bureau of Investigation. |
| 261 | Leaves of absences; Revision of UI Procedural Letter 33(81). |
| 262-supp.-1-v.1 | Bona fide permanent employment. |
| 262-supp.-1-v.2 | Bona fide permanent employment. |
| 263 | Between terms denial for educational personnel. |
| 263-supp.-1 | Between terms denial. |
| 263-supp.2 | Public health nursing positions with schools. |
| 263-supp.-3 | Between terms denial – Reasonable Assurances. |
| 264 | N.C. Gen. Stat. § 96-8(10) – Applications of this Section in cases where an employer’s incentive pay plan results in an employee being paid for more hours than he actually worked. |
| 264-supp.-1 | Attached unemployment, N.C. Gen. Stat. § 96-8(10). |
| UIB-1187 | Eligibility for attached unemployment. |
| 265 | Seasonal pursuits, N.C. Gen. Stat. § 96-16. |
| 266 | Authority to reconsider State UI claim. |
| 267 | Disability pension offset requirements. |
| 268 | Extended benefits – Charging of benefits. |
| 269 | Who may appeal and/or protest an unemployment tax rate assignment, an Unemployment Tax Assessment and Demand for Payment, or an employer’s status and/or liability. |
| 270 | Job listings & fee charging – Temporary employment agencies. |
| 270-supp.-1 | Temporary held/services agencies – Fee charging restriction. |
| 271 v.1 | Language proficiency requirement of job orders. |
| 271-v.2 | Raising separation from employment issues; Reduction in force plan – Separation determined by employer. |
| 272 | Application of the provision under N.C. Gen. Stat. § 96-14(1), Relating to separations due to disability or other health reasons. |
| 273 | Whether Unemployment Insurance (UI) benefits will be paid when an employee refuses to comply with the employer’s policy mandating employees to have received a COVID-19 vaccine |
| 274 | Interpretation of “four (4) or more employees” under 26 U.S.C. § 3309(c) within the context of N.C. Gen. Stat. §§ 96-1(11) and 96-1(12) |
| 275 | Plain language determinations and decisions using “qualified,” “disqualified,” “eligible,” and “not eligible” |