Unemployment Benefits (Georgia)

Maximum Weekly Benefits By State (As of 10/28/17)

State Maximums And # Of Weeks You Can Collect Benefits (All 50 states)
GA is now $365. For GA the max # of weeks varies twice a year based on the Georgia Unemployment rate. For More see Covid-19 Individual FAQs-Unemployment Insurance

QUITTING (See Subpoenas for Witnesses or Documents)

Many people have misconceptions about when you can and cannot collect unemployment benefits.

Here are a few of the basics. Please feel free to share this with your friends.

Quitting a job is not an automatic disqualification for UI benefits. But, the burden is on the claimant to show they quit for a good-work connected cause. The claimant must also show they tried to resolve the problem with the employer and that the conditions were so bad that anyone else in their situation would also have quit.

A good work connected cause may include a material drop in pay or a severe change in job duties, work hours or other job-related conditions. You can also get benefits if your spouse is in the military and you quit your job to go where your spouse had been transferred.

But not every work-connected cause is a good work connected cause.
For example, quitting because of stress on the job will not always get you benefits. To qualify for benefits, you must show your stress was due to a material change in your job duties or conditions or that it was a medical condition caused or aggravated by the job. Also, for those who earn commissions, you cannot quit and expect to get benefits simply because sales were down. Rather, you will have to show that the employment agreement was somehow altered.

You are most likely to get benefits if the quit was based on an illness or medical condition that was caused or aggravated by the job. Medical quits are usually compensable when the reasons for leaving are clear and obvious, or if your doctor told you to leave the job. But remember, before you quit, you must always give your employer an opportunity to resolve the problem. Otherwise your benefits may be denied.

A work connected cause cannot be a decision based solely on personal choice. Even if your reason for quitting is a good one. For example: Quitting because you are tired of a long commute is deemed a personal choice. It's one thing if you were suddenly asked to commute an extraordinary distance, but if you've been doing it for a while you can't quit now and expect to get benefits. Sadly enough, finding the right childcare is also a personal choice. In Georgia, relocating to be with a sick family member is also considered a personal choice.

For Recent Cases On Quits Click HERE and replace the year with 2017. Then do the same with 2018, etc.

Example of Quits Where Benefits Would Normally Be Denied

My car broke down/was repossessed. (You're responsible for getting to work).

I quit the job because I needed to find childcare.

I didn't get along with my supervisor, (when his conduct was not outrageous).

The job's a dead end so I moved on. (But See Quit For Better Job)

The job was too stressful but my job conditions were the same as when hired.

My spouse had to move so I moved with him. (But Benefits Allowed If a Military Relocation_

They reduced my pay from $11/hr to $9hr. (In GA, some work is better than no work).

Decided it's time I go back to school.

I worked on commissions and business was slow (You were being paid as agreed).

The conditions at work were so outrageous I quit without giving my employer a chance to correct the problem (almost always disqualifies).

I quit to relocate elsewhere (See exceptions).

My employer said I could Quit and they'd allow me unemployment benefits.

Examples Of Quits Where You Could Normally Get Benefits
(In almost every case, you still must tell your employer about the problem and give them a chance to correct it).

I quit to stay with my spouse who is in the Military and was transferred.

I was being sexually harassed by a supervisor.

I Quit For Better Job

My doctor said I could no longer work there as it was aggravating a medical condition (better have a doctor's note!!!!)

I was asked to do an illegal or immoral act (I never did this act before and I quit almost immediately afterwards).

I Quit My Job In Reasonable Fear of 3rd Party Violence (2014 Case)
The job was too stressful and the stress was caused by a material change in my job conditions. (depends on the type of changes and how long you had been working under them).

They would have fired me anyway but instead, gave me the option to quit. (You still get benefits if you would have been fired for a non-disqualifying reason).

My job duties and pay changed dramatically and even with training I could never be able to do the job. (Inquiry would be into whether you've ever accepted a similar job there with the same low pay and why you couldn't have been trained for this job).

My job as a CNA was causing or agravating an existing injury and my employer would not help when I told them of the problem. (2016 Case)
The Temp Agency stopped giving me work. I kept calling them but was never given any assignments substantially within my pay range. (Warning! After ten weeks of collecting unemployment, you must be willing to accept jobs with substantially lower pay).

Note: Sometimes you'll be denied benefits even though your case is almost identical to the ones above. If you feel the decision was based on the wrong facts or law, be sure to file an appeal before your appeal rights expire. Cases at the appeals level are heard by highly trained law judges. They will carefully consider the facts and if justice so requires, the prior decision may be overturned.

Georgia Dept of Labor Separation Form
Separation form: Employers are required to give you one by law, though it doesn't have to be this form.

Firings and Lay-offs (See Subpoenas for Witnesses or Documents)

Many people have misconceptions about when you can and cannot collect unemployment benefits.

Here are a few of the basics. Please feel free to share this with your friends.

To deny you benefits, the employer must show you were discharged because of some fault on your part. This means you still get benefits if you tried your best, followed their instructions and yet somehow couldn't perform up to snuff. Being fired for absenteeism should not disqualify you when most of the absences were for health reasons, you had a doctor's excuse and you called the employer as soon as you were able.

In discharge cases, the employer must show they had rules and policies in place, that you violated the rule or policy in question and that you were warned that violating such would put your job in jeopardy. Their policy also has to be a reasonable one.

Of course, the employer never has to warn you for conduct that is obviously wrong or extremely negligent. For example, you can be denied UI benefits when you steal, vandalize, engage in sabotage, or flash people while in the workplace.

For Recent Cases On Being Fired Click HERE and replace the year with 2017. Then do the same with 2018, etc.

Examples of Firings That Would Probably Not Get You Disqualified
(assuming you were not goofing off, failing to prepare or violating the rules)

I tried my best but couldn't make their sales quotas, pass their exam, etc.
I couldn't work at the speed they wanted me to, make project deadlines, etc.
The employer fired me for being "insubordinate" but the underlying facts showed I acted reasonably. (i.e. you were provoked or had other good justification).
I violated the employer's no-fault absence policy but my absences were for health reasons.
(An inquiry would be made into the number of absences, why you were absent, whether you had or were asked to produce a doctor's note, and whether the employer was notified in a timely manner).
I Would Not Work On Saturdays For Religious Reasons (2015 Case)
Teacher Unable To Pass Cetification Test In Time (2013 Case)
Substitute Teacher Let Go To Lack of Work When Always Worked Part Time for School, And Now School Wanted Her Full Time or Nothing (2011 Case)
I slept on the job 10 times, but the employer never warned me my job was in jeopardy. (Employer also let it go on so long that he now has waived his right to claim "foul").
I never followed their rule, but the rule would have put me in danger.
I was fired from a temp job assignment but the temp agency said they'd still use me. I called in regularly, but was never given another assignment.

Examples of Firings That Would Probably Get You Disqualified

Excessive tardiness or lots of non-medical absences (must be a policy, and you must be told your job is in jeopardy).
Theft, vandalism, sabotage, assault, etc. (no policy or warnings needed).
Cursing out a supervisor (unless rough language is part of the workplace or you had extreme justification).
I couldn't report to work as I was in Jail. (out of luck unless it wasn't your fault).
My car broke down/was repossessed. (You're responsible for getting to work).
Failure to perform because you goofed off, surfed the net too much or spent too much time talking on the phone. (Employer must still show you violated their rules or policies, that you knew about their rules and that you were warned not following them would put your job in jeopardy. Evidence that others got away with it may be helpful to show the policy was not enforced or enforced selectively).
Any violation of the employer's reasonable rules, policies or procedures where the employee was at fault, and warned beforehand that such behavior could result in discharge.

Georgia Dept of Labor Separation Form
Separation form: Employers are required to give you one by law, though it doesn't have to be this form.

Relocations

Military Transfers (New Law effective for All claims Filed after July 1, 2005).

Benefits are allowed if you quit to remain with military spouse who was transferred elsewhere.
Scroll to bottom for full text of the law.
Other Transfers

Claims examiners will often deny benefits when they hear the words "move" or "relocate". Do not despair. On appeal you may still qualify if you can show you relocated due to a material change in your job conditions. The question is what happened first. Did you leave because you wanted to move elsewhere or did you move elsewhere because your job conditions caused you to leave?

Also, you may be eligible for benefits if you transferred from one branch of the company to another. The key is to show you followed all company procedures, were told a position was available, and never quit the company. In a transfer, all you did was move from one branch to another. The fact that you transferred due to personal reasons is irrelevant. If the job was open for you when you arrived but was cancelled, that's not your fault and it should not be considered a quit.

Temp Agencies
Always remember that the temp agency is your employer and not the client. It's your relationship with the temp agency that will determine if you qualify for unemployment benefits. So if your agency has you working at IBM for two years, you cannot collect unemployment simply because the assignment at IBM ended. Likewise, you are not unemployed just because you were fired from an assignment. The real issue is whether the temp agency has fired you.

Calling In Available For More Work
You may still qualify for unemployment during any week you have sporadic work or no work. However, the temp agency is still your employer. To receive benefits, you must check in with them on a regular basis for more work.

Note: Your failure to call in regularly may constitute a quit that could disqualify you from receiving benefits. To protect yourself, find out what their rules and policies say on calling in available. It is essential you follow them to the letter! The single most important rule is to call in as required-even if they tell you otherwise. Temp agencies will fight tooth and nail to avoid paying benefits. And they will challenge every week you failed to call in or refused an assignment.

How To Protect Yourself
Each time you call, note the date and time, the person you spoke with and what was said. If you can, make the call on your cell phone. Then submit the bills at your unemployment hearing as proof you called.

Appeal Deadlines

Your appeal rights expire 15 days after the date the decision is released. If the decision is on your separation from work, your employer also has the right to appeal.

My Employer Said I Could Quit and They'd Allow Me Unemployment Benefits.
DON'T YOU BELIEVE IT!!!!! Only the department of Labor can make that determination. And if you quit without a good work connected cause, you will lose your case plain and simple. Employers know the law on quits ands make these offers because they're sure you'll be denied anyway.

Quit For Better Job

A recent court case now allows benefits if you quit for a better job. See HARRISON v. THURMOND 252 Ga. App. 402;556 S.E.2d 490 (2001).

In Harrison, the claimant quit for a better job but then lost her job just three weeks later. The court examined the facts behind the separation and found the claimant not at fault. However, since she had been at this job for such a short time and did not make ten times her weekly benefit amount, the court then looked into why she quit her prior job.

Until this point, Georgia law was that you could not get benefits if your reason for quitting was just to get a better job. However, Harrison changed all that. In Harrison, the court reversed the law and ruled it improper to deny benefits simply because you quit for a better job.

Specifically, the Court stated that "the law was designed to provide benefits to involuntarily terminated employees even if their work history includes a position that the employee left voluntarily." Thus, Harrison, overturned the law on quits and held GA Department of Labor Rule 300-2-9-.05 to be void where at odds with this case.

HARRISON v. THURMOND 252 Ga. App. 402;556 S.E.2d 490 (2001). November 13, 2001, Decided

PRIOR HISTORY: [*1] Unemployment compensation. DeKalb Superior Court. Before Judge Flake.

DISPOSITION: Reversed.

JUDGES: POPE, Presiding Judge. Blackburn, C. J., and Mikell, J., concur.

OPINION BY: POPE

OPINION:

POPE, Presiding Judge.

Veronica Harrison appeals the superior court's order affirming the Department of Labor's n1 denial of her unemployment compensation benefits. She contends that under the authority of Caldwell v. Hosp. Auth. of Charlton County, 248 Ga. 887 (287 S.E.2d 15) (1982), she is entitled to receive those benefits. We agree and reverse.

The undisputed facts are that, effective October 13, 1999, Harrison quit her employment with Intellisource, Inc. to take a better job with Fletcher Martin Associates. Three weeks later she was involuntarily terminated from her new position.

The Department held that her separation from [*2] Intellisource was the pertinent one for purposes of determining eligibility for benefits, and neither party objected to that holding. But Harrison did appeal the Department's further determination that she was not entitled to benefits with respect to that separation because her reason for quitting was "personal."

In support of that determination, the court below relied -- and the Department now relies -- upon the Department's Rule 300-2-9-.05. That rule states in pertinent part: "An employee who voluntarily quits is to be disqualified unless he/she can show that the employer had changed the terms and conditions of work in a manner that the employee, applying the judgment of a reasonable person, would not be expected to continue that employment." Ga. Comp. R. & Regs. r. 300-2-9-.05. But Harrison contends that that rule conflicts with our Supreme Court's decision in Caldwell, which was decided in 1982, years prior to promulgation of the rule.

In Caldwell, as here, the claimant quit her employment to take a better job, from which she was terminated after a brief period. In that instance, however, the Department determined that the claimant was eligible for benefits with [*3] respect to the original separation. The superior court reversed, holding that the finding of eligibility denied the original employer substantive due process because there was no fault on its part. Our Supreme Court, in turn, reversed the superior court, noting that "compulsory contributions for employment security . . . are payable without regard to fault." 248 Ga. at 890. It further noted that the determination in favor of eligibility, under the facts of the case, "bears a substantial relationship to the purpose of the Employment Security Law." Id. The Court stated that the law was designed to provide benefits to involuntarily terminated employees even if their work history includes a position that the employee left voluntarily:

The purpose of the Employment Security Law is to spread and lighten the burden of unemployment by allowing involuntarily unemployed workers to collect benefits based on their work history, even though that work history may encompass a period of employment which the employee voluntarily terminated. . . . Disqualification . . . would have the significant disadvantage of discouraging employees from seeking better opportunities, as the [*4] employee apparently did here.

(Emphasis supplied.) Id.

Thus, Rule 300-2-9-.05 as applied in this case conflicts with the holding in Caldwell. And this Court has previously held that a state department or agency is without authority to promulgate a rule that conflicts with a prior judicial interpretation of state law. In Pizza Hut Delivery v. Blackwell, 204 Ga. App. 112 (418 S.E.2d 639) (1992), a workers' compensation case, the employer's position on appeal, relying on a State Board of Workers' Compensation rule, was that tips should not have been included in determining the employee's average weekly wage. But this Court stated that the rule was irrelevant where the definition of "average weekly wage" had been judicially interpreted to include tips:

The wording of Rule 260 (a) is essentially irrelevant. "Average weekly wages" under O.C.G.A. § 34-9-260 has been judicially interpreted to include an employee's tips and no rule promulgated by the Board can change that interpretation or qualify it by imposing a limitation that tips must be listed on an employee's W-2 form in order to be includable as a component of "average [*5] weekly wages."

(Citation omitted; emphasis supplied.) Id. See also Groover v. Johnson Controls World Svc., 241 Ga. App. 791, 793 (527 S.E.2d 639) (2000) ("The Board cannot establish rules . . . that contradict judicial decisions interpreting the statutory language.").

In Caldwell, under facts substantially identical to those here, our Supreme Court interpreted the Employment Security Law of this state as allowing an employee who left one job to seek a better job opportunity to collect unemployment benefits when the second job terminated through no fault of the employee. 248 Ga. at 890. Therefore, Harrison cannot be denied her benefits simply because she left her job at Intellisource to seek a better position.

Accordingly, we find that the Department's Rule 300-2-9-.05 is invalid to the extent that it conflicts with Caldwell. Compare Young v. State, 212 Ga. App. 572 (442 S.E.2d 768) (1994) (rule [*6] applied to disqualify employee from getting benefits where she gave conflicting reasons for quitting her job).

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

What Is The Maximum I Can Get In Unemployment Benefits and How Long Does It Last For?

COVID-19 CHANGES EVERYTHING. Even if you don't normally qualify for unempoyment benefits, there is disaster assistance. For more information see The Georgia Department of Labor's Individuals FAQs - Unemployment Insurance

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How Long Can I Get Unemployment For In Georgia?
NOT LONG. Effective July 1, 2012, the maximum number of benefit weeks will range from 14 to 20 based upon the unemployment rate in use at the time the claim is filed. In other words, if Georgia has a high unemployment rate (lots of people out of work) you could get 20 weeks tops of unemployment benefits. But if unemployment is low, you might get only 14 weeks. For a chart on how the unemployment rate determines your length of benefits click Here.

How Much Money Can I Receive Each Week?
For your initial claim, the maximum you can receive is $365 per week. The minimum is $55 per week. You can decide whether taxes are taken out in advance. But if taxes are deducted, this will of course reduce your benefit amount.

Your weekly benefit amount depends on a complicated equation. This equation is based on what was earned during the "base period" before your claim was filed. The Department will calculate this for you at the time you file your claim.

Weekly Benefit Amount Explained Along with The Base Period Used To Determine Your Weekly Benefit Amount
To calclulate your benefits for each week click Here. When you work, your employer must report all your earnings to the GA Dept of Labor. Based on your prior earnings in your "base period", the GDOL computes your weekly benefit amount (WBA). Your weekly benefit amount is the $ amount you would receive in unemployment each week absent taxes. So if your WBA is $365 it means once eligible for unemployment, your weekly paycheck would be $365 before taxes. If your WBA is $200, then you would receive $200 before taxes.

There is a formula used to determine your weekly benefit amount. Your weekly benefit amount is determined by what you earned in the first four of the last five calendar quarters completed at the time you file your claim. In other words, if you file immediately after losing your job, it's often a 12 month snapshot of your earnings spanning from 18 months ago to about 6 months ago. This base period is always 12 months long, but exactly when it starts can vary by up to almost three months. It all depends on if you filed close or far from the next 3 month calendar quarter.

Note: Some people don't earn enough to qualify for benefits using this method. In that case, an alternative base period consisting of the most recently completed four calendar quarters will be used if a claim cannot be established using the regular base period. The Department of Labor will only use the second method if you don't qualify for the first. You cannot choose one over the other. However, you can challenge that your reported earnings are inaccurate and calculate what your weekly benefit amount should be based on your true earnings. (i.e. you did make enough to qualify for benefits.)

Calculating Your Weekly Benefit Claim Amount Yourself
The following is for those who wish to do the calculations on their own. Please keep in mind that the DOL divides each year into quarters. Your benefit amount will depend on how much you earned in the two best quarters of the "base period". Thus knowing your base period is very important.

To find out the base period, you will have to count backwards from the time you filed your claim. Note that not all your earnings will be considered in calculating your benefits. In the fact, the quarter when you filed your claim will be ignored. Likewise, the three month period before that quarter is also ignored.

So if you filed a claim in June 2020, and made a million dollars in May 2020, such would be irrelevant to your claim. The Department will not consider any of the earnings you made in April, May or June of 2020. Likewise, your earnings from the prior quarter of January through March 2020 will also be ignored. Thus your base period would consist only of your earnings from the quarter starting January 2019 through the quarter ending December 2019.

To get your weekly benefit amount, your highest 2 quarters of earnings are then divided by 46. However, this amount cannot exceed $365 per week. For more information click Here.

What About The Emergency Unemployment Compensation (EUC), State Extended Benefits (SEB), and Federal Additional Compensation (FAC) Programs?
This changes like the wind. EUC and SEB programs can start and end at various times. This is determined either through the legislation that created the extension, or by a reduction in the unemployment rate. There is a complex equation that determines the amount of your weekly extended benefits claim.

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I Was Let Go During My 90 Day Probationary Period-Can I Get Unemployment?
Your Employer's 90 day Probation Policy for all new employees means ABSOLUTELY NOTHING ABOUT WHETHER YOU CAN GET UNEMPLOYMENT.

The Georgia Department of Labor scoffs at such probation policies. Or at least I did when I used to hear these cases at the appeals level. Employers put these terms in their handbook for a variety of reasons, (sometimes it's ignorance of the law, or their HR Dept. is in another state with different laws, or a probation term sooths their conscience if they have to fire you early, etc.). It's possible employers can use the 90 days probation to say that because you were the new kid on the block, you knew your job was in danger if you did anything wrong. (sometimes you can lose in a discharge if you were warned your job was in danger) However, I never once decided for the employer who claimed the employee had this knowledge because of the 90 day new hire probationary agreement.

In General, You Can Get Unemployment If:
1. You earned money not based solely on commissions and not as an independent contractor;
And
2. You had been regularly working from about 18 months ago until about six months ago (Establishes a base period of wages to qualify for benefits)
and
3. You lost your job through no fault of your own (layoff, fired but not at fault, or quit for very good work connected cause)

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Subpoenas (DOL Rule 300-2-5)

Why Subpoena?	Serving the Claimant
Valid Methods of Delivery	Proof of Service
Serving the Employer	When Witnesses Do Not Respond
Serving Non Party Witnesses	Fees for Appearing

Why Subpoena?

Subpoenas are used to compel a witness to testify or to obtain important documents. Subpoenas are important when the claimant needs a reluctant employer witness or if the employer needs a witness that is no longer with the company. Sometimes the missing witness is the manager who gave the claimant warnings. At other times it's the person who heard or saw events key to the case. Upon request, subpoenas can be freely obtained from the Georgia Department of Labor. While the subpoena itself is free, it's still up to the party to properly serve them on the witness.

Common Use For Subpoenas

		To compel the production of records or documents.
		To get a scared or unwilling witness to testify.
		May protect a witness from being fired or retaliated against by their employer. Useful when witness works for the employer or another company. (The subpoena can show they were not disloyal for testifying or had a valid reason for being absent or late to work).

How Subpoenas Must Be Delivered (Party's Responsibility To Deliver)

Subpoenas may be hand delivered personally by someone 18 or over;¹ or
Sent by certified or registered mail, or statutory overnight delivery.²
Subpoenas may be ignored if served in any other manner than the above. It makes no difference if the witness actually received it. Subpoenas are invalid when sent by regular first class mail, or when left on someone’s desk or inbox while they’re away.³

Serving the Employer

		The employer witness can be served directly or through the employer’s attorney of record.⁴
		For records and documents, the record custodian or keeper of such records can also be served.⁵
		Subpoenas must be served on a witness at least 24 hours before the scheduled hearing.⁶

Serving Non Party Witnesses, Such As Ex-Employees, Non Employees, Bystanders, the Claimant’s Friends, etc.)

		These witnesses must be served directly whether through personal service, certified or registered mail, or statutory overnight delivery.⁷
		The subpoena cannot be left with a spouse, roommate or family member.⁸
		The subpoena cannot be served on either the claimant’s or the employer’s attorney.⁹
		Subpoenas must be served on a witness at least 24 hours before the scheduled hearing.¹⁰

Serving the Claimant (Very Rare)

		The claimant can be served directly or through his attorney of record.¹¹
		The claimant cannot be served by leaving a copy of the subpoena with a spouse, roommate or family member.¹²
		Subpoenas must be served on a witness at least 24 hours before the scheduled hearing.¹³(The GDOL Appeals handbook advises such to be served at least 48-72 hours in advance)

In rare cases, the employer may want to subpoena the claimant for important records or documents. But since the claimant is bound to show up anyway, subpoenas are almost never necessary for their testimony.

Proof Of Service

· Proof of personal service may be shown by an affidavit of service or other return certificate, or by an endorsement on a copy of the subpoena filed with the court.¹⁴

· For subpoenas sent by mail or overnight delivery, the return receipt shall constitute prima-facie proof of service.¹⁵

What If The Witness Fails to Respond?

The witness can be compelled to attend or held in contempt of court if

		The witness was validly served and
		The witness has testimony or records critical to the case.

If the witness is critical and was validly served, you will need to continue the case and ask management whether new subpoenas should be issued or what to do next. It may require the Legal Department to have the subpoena enforced by Superior Court.

Appearance Fees

A witness fee of $10.00 per day shall be paid upon request to a subpoenaed person in attendance; other than an employee of an employer subpoenaed by that employer. The total fee shall not exceed $30.00 and shall be mailed to the address of the subpoenaed witness. In addition, an allowance of $ .20 per mile shall be paid, up to a maximum of $20.00, for attendance of a witness at a hearing. GA Rule 300-2-5-02(3)(c).

Fees Paid By The Georgia State Government
Witnesses subpoenaed pursuant to this article shall be allowed fees at a rate fixed by the Commissioner. Such fees shall be deemed a part of the expense of administering this chapter. OCGA 34-8-224.

DOL Requirements ( Rule 300-2-5)

(b) Issuance of subpoenas. Subpoenas to compel the attendance of witnesses and the production of records pertinent to any hearing of an appeal shall be issued by the Chief Administrative Hearing Officer upon request therefore from a party of interest. The party requesting said subpoenas must show the necessity therefore and shall have the responsibility of serving said subpoenas.

Case Notes

1. OCGA 24-10-23.

2. OCGA 24-10-23.

3. (Subpoena placed in mail slot invalid and could be ignored) Edenfield v. State, 147 Ga.App. 502, 249
SE2d 316 (1978); (Subpoena sent in unstamped envelope through prison mail could be ignored though
witness received it.) See Heard v. Hopper, 233 Ga. 617, 618, 212 SE2d 797) (1975).

4. OCGA 24-10-23.

5. Mijajlovic v. State, 179 Ga. App. 506, 347 SE2d 325 (1986).

6. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E 2d 923 (1976).

7. OCGA 24-10-23.

8. (Subpoena invalid when left with spouse; law does not allow subpoena to be left with person other than
to whom it is directed) Lake v. Hamilton Bank Of Dalton,148 Ga. App. 348. 251 S.E.2d 177 (1978)

(under prior but virtually identical statute)(Partially Overruled on other grounds in Hamilton Capital
Group, Inc. v. Equifax; 266 Ga. App. 1, 596 SE2d 656 (2004)).

9. (subpoena invalid when the witness was not a party to the case and such was served on attorney for one
of the parties) Haywood v. Aerospec, Inc, 193 Ga. App. 479, 388 S.e.2d 367 (1989).

10. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E 2d 923 (1976).

11. OCGA 24-10-23.

12. (Subpoena invalid when left with spouse; law does not allow subpoena to be left with person other than to whom it is directed) Lake v. Hamilton Bank Of Dalton 148 Ga. App. 348. 251 S.E.2d 177 (1978)(under prior but virtually identical statute).

13. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E 2d 923 (1976).

14. OCGA 24-10-23. Statute’s wording varies slightly from above. See
http://www.dmqlaw.com/CM/Articles/Articles84.asp

15. OCGA 24-10-23.

Back To Supoenas

Can Someone Collect GA Unemployment Benefits if Paid by Commission?
Answer: Possibly, if the person also receives some type of pay other than commission such as base pay or a draw, and this payment later stops. The person claiming benefits must still show they are able, available and actively seeking full time work that is not solely based on commission.

For Jobs Which Pay Solely By Commission
You cannot get benefits in pure commission jobs unless you and the employer have separated. If you still associate with the employer for reasons relating to earning commissions, you are still found to be employed and thus deemed ineligible. The reason has to do with OCGA 34-8-47, which states that "an individual compensated solely on commission shall be deemed to be unemployed only upon the termination of her contract of employment."

How To Separate
The best way is to get your employer to let you go "for lack of work." Second best is for there to be "a mutual agreement to separate based on a lack of work." Worst case is to quit. Other than for realtors and insurance agents, quitting will usually result in a disqualification. The reason is because if you are paid solely by commission, you are deemed to be working as agreed, even if you get no commissions. Thus a quit due to lack of commissions will be deemed a quit for bad cause and benefits will be denied.

Insurance Agents & Real Estate Agents Paid Solely By Commission

Neither the wages from this job nor the reason for separation should in anyway considered.

So the only issues are

A. Whether you were unemployed when you filed your claim, and

B. If you are able, available and actively seeking full time work.

The 10X disqualification provision should not apply to this separation because this is not deemed employment in the first place.

34-8-35(n) says The term 'employment' shall not include:

(9) Service performed by an individual for an employer as an insurance agent or as an insurance solicitor or as a licensed real estate salesperson, if all such service performed by such individual for such employer is performed for remuneration solely by way of commission;

So whether you quit non employment, or were fired from non employment, won't change that it was non employment. When a separation has occurred, the commission work should be ignored entirely and not used to assess your entitlement to unemployment benefits.

Below is my advice to a realtor who wanted to collect unemployment benefits

Click Here To Jump To The Legal Argument

Sharon:

You must separate from this employer before you are entitled to benefits. This means you must either be let go, quit, or separate based on mutual agreement. Quitting is the least desirable situation because the hearing officer may mistakenly deny you benefits.

If you are willing to end this agreement, I'd communicate this to the employer ASAP before the hearing. (To quit does not require you tell the employer anything. But in your case, you've been there recently and it will not seem credible unless you communicate your intentions.)

The reason has to do with 34-8-47, which states that an individual compensated solely on commission shall be deemed to be unemployed only upon the termination of her contract of employment.

The fact that you may not have a written contract won't control here. And you probably do have one anyway. Regardless, if you still go on their premises with the hope of closing a deal, you're deemed employed. And if you're deemed employed, you cannot collect UI benefits until you are deemed "unemployed"

Normally, if you quit a job, you are disqualified anyway (except for good cause quits which won't apply here). At that point you cannot get UI benefits until you again earn 10 times your weekly benefit amount at qualified employment. You then must become unemployed again through no fault of your own.

However, your situation is a bit of a paradox. In the strange world of UI benefits,

You are currently employed (see 34-8-47).

But not in "employment" see 34-8-35(n)(9) (real estate and commissions).

So the question is, should the 10x disqualification apply when you quit a job that is not officially "employment?"

I think the answer is no you should not be disqualified.

Getting the hearing officer to understand this is another matter.

Legal Argument For Not Including This Arrangement to Impose 10x Disqualification

At the hearing you should state the information below on the record.

If the hearing officer doesn't understand it, you may still win on appeal to the GA Board of Review.

Because this is not employment, and the base wages from this arrangement are not included in determining my weekly benefit amount, this commission arrangement is in effect invisible. And if it's invisible, it should be treated the same way as if I became unemployed after being an independent contractor (work also deemed invisible under UI law).

Neither the wages, nor the reason for separation should be in anyway considered.

The 10X disqualification provision does not apply to separations where the claimant is not officially employed.

So the only issues are

A. Whether I am unemployed , and

B. If I am able, available and actively seeking full time work.

And I am unemployed. I have also been looking for various full time jobs including those not based solely on commission.

Therefore, per 34-8-47 and per 34-8-195(3)(A), I am entitled to collect unemployment benefits.

Note: if You are denied benefits, you may appeal to the Board of Review. I also suggest you file an open records request to see all Internal Government Memos on how to treat these types of cases (cases involving realtors and insurance agents paid solely by commission). This will encourage the GDOL to support its findings based on the law and not just on their internal procedures.

Can An Independent Contractor Get Unemployment Benefits?
Don't give up just because the IRS considers you an independent contractor. Georgia has its own test and it's much harder to meet. In fact, you may be eligible to get unemployment as an "employee" even if you filed a 1099 form. Even if you sign a contract that you are an independent contractor, it will make no difference if in fact you performed as an employee.

Key is that you don't flunk the Georgia requirements for "employee" and that you had eligible earnings during your base period.

Your base period is just a snapshot of your earnings which usually begins from about 18 months ago to 6 months before your filed your unemployment claim.

About your 1099 Wages

The DOL has a three-part test for independent contractors. See GA Official Code 34-8-35 (f). This test examines whether the claimant had control or direction over the services performed as well as whether these services were outside the usual course of business for the business that used them. The test also requires that the individual is customarily engaged in an independently established trade, occupation, profession or business.

(If the claimant does not meet all requirements, then wages should be counted toward their benefits.) And the claimant should receive benefits if the separation occurred through no fault of their own, i.e. the project ended, or there was a quit for good cause or a discharge not for good cause.

TEST

(f) Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown that:

(1) Such individual has been and will continue to be free from control or direction over the performance of such services, both under the individuaĺs contract of service and in fact;

(2) Such service is outside the usual course of the business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(3) Such individual is customarily engaged in an independently established trade, occupation, profession, or business.

There are some additional requirements outlined in GDOL Blue Rule Book. See Rule 300-2-7-.13.

Don't forget to file an appeal if you think your case was wrongly decided. Decisions are overturned all the time and appeals cost nothing.