8-73-107. Eligibility conditions - penalty.

(1) Any unemployed individual shall be eligible to receive benefits with respect to any week only if the division finds that:

(a) (I) He or she has registered for work at and thereafter has continued to report at an employment office in accordance with such regulations as the director of the division may prescribe; except that the director of the division, by regulation, may waive or alter either or both of the requirements of this subparagraph (I) as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which the director of the division finds that compliance with such requirements would be oppressive, or would be inconsistent with the purposes of articles 70 to 82 of this title, but that no such regulation shall conflict with section 8-73-101.

(II) Without in any way limiting the authority of the director of the division to waive or alter the requirements of subparagraph (I) of this paragraph (a), during the period of the national economic recession that began in 2008, in order to assist unemployed individuals in being available for appropriate jobs and to assist employers in having available trained employees, the director of the division shall waive or alter such requirements so that individuals attached to regular jobs do not have to comply with the requirements of subparagraph (I) of this paragraph (a) for a period of twenty-six weeks.

(b) He has made a claim for benefits in accordance with the provisions of section 8-74-101;

(c) (I) The individual is able to work and is available for all work deemed suitable pursuant to the provisions of section 8-73-108, and, with respect thereto:

(A) Decisions of the division regarding the ability of the claimant to work, the availability of the claimant for work, and the claimant's active search for work may be appealed by the claimant or by any employer whose account may be charged with any benefits paid pursuant to such decision, if the appeal is received within twenty calendar days, as defined in section 8-70-103 (5), after the date on the notice of any such decision;

(B) A potentially chargeable employer may protest on the basis of inability to work, nonavailability for work, or failure to search for work within fifteen calendar days after the date on which he discovers such a condition to exist, within thirty days after the date on which payment was made for the week during which the claimant is alleged to have been unable to work or unavailable for work, or within sixty calendar days after the mailing date of the report of quarterly benefit charges, whichever comes first;

(C) No individual shall be considered available for work during any week in which he has no reasonable expectation of securing employment in his usual occupation or in an occupation for which he is reasonably qualified as a result of his movement to an area;

(D) No individual shall be denied benefits because of nonavailability or failure to make an active search for work solely due to his compliance with a summons to report for jury duty. Remuneration received in connection with such duty shall not be considered wages, as defined in section 8-70-141 (1) (a), and the individual's weekly benefit amount shall not be reduced as prescribed in section 8-73-102 (4).

(E) If an individual left employment because of health-related reasons, the division may require a written medical statement issued by a licensed practicing physician addressing any matters related to health.

(II) Nothing in this paragraph (c) shall prevent the division from reviewing and redetermining any decision at any time if the redetermination is based upon facts not known to the division at the time of its original decision.

(d) The individual has been either totally or partially unemployed for a waiting period of one week. No benefits are payable for the waiting period. No week shall be counted as a week of unemployment for the purposes of this paragraph (d):

(I) Unless it occurs within the benefit year which includes the week with respect to which he claims payment of benefits;

(II) If benefits have been paid with respect thereto;

(III) Unless the individual was eligible for benefits with respect thereto under provisions of sections 8-73-107 to 8-73-112;

(IV) Unless total wages earned for the week are less than the weekly benefit amount;

(e) The individual has during his or her base period been paid wages for insured work equal to not less than forty times such individual's weekly benefit amount or two thousand five hundred dollars, whichever is greater. For the purposes of this paragraph (e), wages shall be counted as "wages for insured work" for benefit purposes with respect to any benefit year only if such benefit year comes subsequent to the date on which the employing unit by whom such wages were paid has satisfied the conditions of sections 8-70-113, 8-76-104, and 8-76-107 with respect to becoming an employer.

(f) His total wages earned for the week are less than his weekly benefit amount;

(g) (I) He or she is actively seeking work. In determining whether the claimant is actively seeking work, the division, taking notice of the customary methods of obtaining work in the claimant's usual occupation, or any occupation for which he or she is reasonably qualified, and the current condition of the labor market, shall consider, but shall not be limited to a consideration of, whether, during said week, the claimant followed a course of action that was reasonably designed to result in his or her prompt reemployment in suitable work.

(II) This paragraph (g) shall not apply to a person determined eligible to receive benefits pursuant to section 8-73-108 (4) (r) (I) for the first fifteen business days after a claim for benefits is filed if compliance with this paragraph (g) would:

(A) Make it more difficult for the person to escape domestic abuse; or

(B) Unfairly penalize a person who is or has been a victim of domestic abuse or is at further risk of domestic abuse.

(h) The individual has furnished the division with separation and other reports containing the information deemed necessary by the division to determine the individual's eligibility for benefits, but this provision shall not apply if the individual proves to the satisfaction of the division that he or she had good cause for failing to furnish such reports. The eligibility of any individual shall not be affected by the refusal or failure of an employer to furnish reports concerning separation and employment as required by articles 70 to 82 of this title and the rules pursuant thereto, and the division shall determine the eligibility of such individual upon the basis of such information it may obtain; and any employer who fails or refuses to furnish reports concerning separation and employment shall cease to be an interested party to the separation issue directly related to determinations made in accordance with section 8-73-108 (4) and (5) (e). For each instance of failure to furnish the division with such reports, the employer, unless good cause to the contrary is shown to the satisfaction of the division, may be assessed a penalty of twenty-five dollars, which shall be collected in the same manner as premiums due under articles 70 to 82 of this title.

(i) It is not, in whole or in part, within a period during which the worker is not working due to a disciplinary suspension as provided in the contract of employment;

(j) Such individual is not absent from work due to an authorized and approved voluntary leave of absence.

(2) An individual who has received compensation during the individual's benefit year is required to have worked for an employer as defined in section 8-70-113 since the beginning of such year and to have earned at least two thousand dollars as remuneration for such employment in order to qualify for compensation in the next benefit year.

(3) For the purpose of this subsection (3), "educational institution" includes the Colorado school for the deaf and the blind; except that such term does not include a headstart program that is not a part of a school administered by a board of education because such headstart employees are not subject to the same employment conditions as other employees of the school. Compensation is payable on the basis of services to which sections 8-70-119, 8-70-125, and 8-70-125.5 apply in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other services subject to articles 70 to 82 of this title; except that:

(a) With respect to services in an instructional, research, or principal administrative capacity for an educational institution, compensation shall not be payable based on such services for any week commencing during the period between two successive academic years or terms (or when an agreement provides instead for a similar period between two regular but not successive terms, during such period) to any individual if such individual performs such services in the first of such academic years or terms and if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

(b) With respect to services in any other capacity, for an educational institution compensation payable on the basis of such services shall be denied to any individual for any week which commences during a period between two successive academic years or terms or periods described in paragraph (c) of this subsection (3) if such individual performs such services in the first of such academic years, terms, or periods and there is a reasonable assurance that such individual will perform such services in the second of such academic years, terms, or periods; except that, if compensation is denied to any individual for any week under this paragraph (b) and such individual was not offered, an opportunity to perform such services for the educational institution for the second of such academic years, terms, or periods, such individual shall be entitled to a retroactive payment of the compensation for each week for which the individual filed a timely claim for compensation and for which compensation was denied solely by reason of this paragraph (b);

(c) With respect to any services described in paragraphs (a) or (b) of this subsection (3), compensation payable on the basis of such services shall be denied to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess and if there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess;

(d) With respect to any services described in paragraph (a) or (b) of this subsection (3), compensation payable on the basis of services in any such capacity shall be denied as specified in paragraph (a), (b), or (c) of this subsection (3) to any individual who performed such services in an educational institution while in the employ of an educational service agency. For the purpose of this paragraph (d), the term "educational service agency" means a governmental agency or governmental entity, such as that created by the "Boards of Cooperative Services Act of 1965", article 5 of title 22, C.R.S., which is established and operated exclusively for the purpose of providing such services to one or more educational institutions.

(e) With respect to any services described in paragraph (a) of this subsection (3), compensation payable on the basis of such services shall be denied to any individual for any week during a period of paid or unpaid sabbatical or other voluntary leave provided for in the individual's contract if such individual performs such services in the academic year or term immediately preceding the beginning of sabbatical or other voluntary leave and if there is a contract or reasonable assurance that such individual will perform such services in the academic year or term following the end of the sabbatical or other voluntary leave;

(f) With respect to services to which section 8-70-140 applies, if such services are provided to or on behalf of an educational institution, benefits shall not be payable under the same circumstances and subject to the same terms and conditions as described in paragraphs (a) to (d) of this subsection (3).

(4) (a) Notwithstanding any other provision in this section, no otherwise eligible individual shall be denied benefits for any week because he is in training with the approval of the division, nor shall such individual be denied benefits by reason of the application of provisions in paragraph (c) of subsection (1) of this section relating to availability for work, the provisions of paragraph (g) of subsection (1) of this section relating to active search for work, or the provisions of section 8-73-108 relating to failure to apply for, or a refusal to accept, suitable work with respect to any week in which he is in training with the approval of the division.

(b) (Deleted by amendment, L. 98, p. 89, § 3, effective March 23, 1998.)

(5) Repealed.

(6) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the latter of such seasons (or similar periods).

(7) (a) Benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, or was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed. For purposes of the "Colorado Employment Security Act":

(I) An alien shall be considered to be "lawfully admitted for permanent residence" only if the alien has been granted status under section 101 of the "Immigration and Nationality Act", 8 U.S.C. 1101 (a) (20);

(II) An alien shall be considered to be "lawfully present for purposes of performing services" only if the alien is an alien who possesses work authorization or has been lawfully admitted to temporary residence under section 245 (a) or section 210 of the "Immigration and Nationality Act", 8 U.S.C. 1255(a) and 8 U.S.C. 1160, respectively;

(III) An alien shall be considered to be "permanently residing in the United States under color of law" only if the alien is:

(A) An alien admitted as a refugee under section 207 of the "Immigration and Nationality Act", 8 U.S.C. § 1157, in effect after March 31, 1980;

(B) An alien granted asylum by the attorney general of the United States under section 208 of the "Immigration and Nationality Act", 8 U.S.C. § 1158;

(C) An alien granted a parole into the United States for an indefinite period under section 212 (d) (5) (B) of the "Immigration and Nationality Act", 8 U.S.C. § 1182 (d) (5) (B);

(D) An alien granted the status as a conditional entrant refugee under section 203 (a) (7) of the "Immigration and Nationality Act", 8 U.S.C. § 1153 (a) (7), in effect prior to March 31, 1980; or

(E) An alien who has been formally granted deferred action status by the immigration and naturalization service.

(b) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.

(c) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence.

Source: L. 36, 3rd Ex. Sess.: p. 18, § 4. CSA: C. 167A, § 4. L. 37: p. 1254, § 2. L. 39: p. 570, § 2. L. 41: p. 765, § 4. L. 43: p. 601, § 2. L. 45: p. 712, § 1. L. 47: p. 886, § 2. L. 49: p. 722, § 2. L. 51: p. 807, § 2. L. 53: p. 623, §§ 2-4. CRS 53: § 82-4-8. L. 55: p. 533, § 1. C.R.S. 1963: § 82-4-7. L. 65: p. 832, § 4. L. 71: p. 932, § 7. L. 73: p. 959, § 7. L. 75: (3) amended, p. 322, § 3, effective June 20. L. 76: (3) amended, p. 360, § 2, effective April 20; (3) amended, p. 339, § 11, effective October 1. L. 77: (5), (6), and (7) added, p. 463, § 14, effective July 1; (3) repealed, p. 471, § 27, effective January 1, 1978. L. 79: (1)(c) and (7)(a) R&RE, (1)(d)(I) amended, (3) RC&RE, and (5) repealed, pp. 346, 347, 356, §§ 7, 8, 9, 25, effective September 30. L. 81: (1)(h) amended, p. 492, § 6, effective July 1; (3) amended, p. 511, § 1, effective July 1. L. 82: (1)(e) and (2) amended, p. 236, § 3, effective July 1. L. 83: (3)(b) amended, p. 436, § 5, effective April 12. L. 84: (2) R&RE, p. 317, § 6, effective July 1; (3)(e) amended, p. 323, § 1, effective July 1. L. 85: (3)(e) amended, p. 1358, § 4, effective June 28; (1)(h) and (7)(a) amended, p. 366, § 3, effective July 1. L. 86: (1)(a) amended, p. 489, § 89, effective July 1; (3)(f) added and IP(7)(a) amended, p. 542, §§ 4, 5, effective July 1. L. 87: (4) amended, p. 406, § 1, effective May 16. L. 89: (1)(h) and (2) amended, p. 425, § 3, effective July 1. L. 90: (1)(c)(I)(A), (1)(c)(I)(D), (1)(e), (2), IP(3) and (3)(f) amended, p. 603, § 6, effective April 3; (7)(a) amended, p. 609, § 7, effective April 16. L. 92: (1)(c)(I)(B) and (1)(h) amended, p. 1793, § 2, effective April 10. L. 98: IP(1)(d), (2), and (4)(b) amended, p. 89, § 3, effective March 23. L. 99: (1)(e) amended, p. 634, § 1, effective August 4; (1)(c)(I)(E) and (1)(j) added, p. 396, §§ 1, 2, effective August 15. L. 2001: IP(3) amended, p. 1548, § 4, effective December 21, 2000. L. 2005: (1)(g) amended, p. 319, § 1, effective August 8. L. 2007: IP(1)(c)(I) and (1)(c)(I)(A) amended, p. 802, § 2, effective August 3. L. 2009: (1)(a) amended, (SB 09-178), ch. 268, p. 1220, § 1, effective May 18; (1)(h) amended, (HB 09-1363), ch. 363, p. 1883, § 10, effective July 1.

Editor's note: The federal "Consolidated Appropriations Act, 2001", Pub.L. 106-554, which became law on December 21, 2000, required all states to amend their laws regarding how Indian tribes are treated for unemployment insurance purposes. The 2001 act amending the introductory portion to subsection (3) provided for an effective date of December 21, 2000. (See L. 2001, p. 1550.)

Am Jur.2d. See 76 Am. Jur.2d, Unemployment Compensation, §§ 35, 36.

C.J.S. See 81 C.J.S., Social Security and Public Welfare, § 212.

Law reviews. For note, "The Unemployment Compensation Recipient -- Should He Accept a Job?", see 44 Den. L.J. 147 (1967). For note, "Rural Poverty and the Law in Southern Colorado", see 47 Den. L.J. 82 (1970). For article, "Alcoholism and Unemployment Insurance in Colorado", see 18 Colo. Law. 1963 (1989).

Underlying principle. The Colorado program of unemployment insurance is based on the principle that only those persons who are willing and able to work are entitled to unemployment benefits. Sylvara v. Indus. Comm'n, 191 Colo. 92, 550 P.2d 868 (1976) (decided under former law).

Preservation of state interest. The state has a legitimate interest in providing unemployment benefits only to conscientious persons. But that interest is preserved by the statutory requirement that in order to receive benefits a claimant must be available for work and actively seeking employment. Kistler v. Indus. Comm'n, 192 Colo. 172, 556 P.2d 895 (1976).

Definition of "disciplinary suspension". A disciplinary suspension is a suspension imposed for a defined period for the purpose of penalizing an employee for a specific act, after which period the employee is scheduled to return to work. Pueblo Sch. Dist. No. 60 v. Martinez, 749 P.2d 1005 (Colo. App. 1987).

Sufficient guidelines to determine eligibility. The terms "able to work", "available for all work deemed suitable", and "actively seeking work" constitute sufficient guidelines to enable the commission to properly determine the eligibility of one seeking unemployment compensation. Denver Post, Inc. v. Dept. of Labor & Emp., 199 Colo. 466, 610 P.2d 1075 (1980).

"Availability for work" or "actively seeking work" are two eligibility conditions which could be found to be lacking or restricted by full-time attendance at school, and such a finding would be a lawful basis for disallowing compensation. Indus. Comm'n v. Bennett, 166 Colo. 101, 441 P.2d 648 (1968).

But "actively seeking work" as a concept is incapable of precise definition and it is for the appropriate agency to make such a determination after considering all the facts and circumstances in each particular case. Bayly Mfg. Co. v. Dept. of Emp., 155 Colo. 433, 395 P.2d 216 (1964).

"Actively seeking work" implies seeking work from other potential employers. Limiting the search for work to one's previous employer is a cause for disqualification. McClaflin v. Indus. Claim Appeals Office, 126 P.3d 288 (Colo. App. 2005).

Availability of employment determined from factual situation presented. A determination of the availability for employment is one for which an all-inclusive rule cannot be stated, but rather must be made within the context of the factual situation presented by each case. Couchman v. Indus. Comm'n, 33 Colo. App. 116, 515 P.2d 636 (1973); Medina v. Indus. Comm'n, 38 Colo. App. 256, 554 P.2d 1360 (1976); Duenas-Rodriguez v. Indus. Comm'n, 199 Colo. 95, 606 P.2d 437 (1980).

Whether a claimant is able to work and is available for all work deemed suitable, as provided in subsection (1)(c), and whether the claimant was actively seeking work, as provided in subsection (1)(g), must be determined within the context of the factual situation presented by each case. Denver Post, Inc. v. Dept. of Labor & Emp., 199 Colo. 466, 610 P.2d 1075 (1980).

Work is not "suitable" if wages offered are substantially less than prevailing wage. Romero v. Indus. Comm'n, 616 P.2d 992 (Colo. App. 1980).

The essential question in each case is whether the claimant's availability for suitable work is so restricted -- in relation to the condition of the surrounding labor market -- that he cannot be deemed to have met the eligibility requirements of ability to, and availability for, work. Medina v. Indus. Comm'n, 38 Colo. App. 256, 554 P.2d 1360 (1976).

While claimants in their twenty-eighth or later weeks of pregnancy may have limited employment opportunities, they may still be considered to be "actively seeking work". Frontier Airlines, Inc. v. Indus. Comm'n, 734 P.2d 142 (Colo. App. 1986), cert. dismissed, 738 P.2d 1185 (Colo. 1987).

Question of whether claimant is unemployed is a purely mathematical inquiry: If he performs no services and receives no compensation, then he is totally unemployed; if he does receive compensation, but in an amount less than the amount of benefits he could recover if totally unemployed, then he is still unemployed, though only partially. It is only when a claimant receives compensation exceeding the amount of weekly total unemployment benefits that he remains "employed" under these sections. Denver Post, Inc. v. Dept. of Labor & Emp., 41 Colo. App. 275, 586 P.2d 1342 (1978), modified, 199 Colo. 466, 610 P.2d 1075 (1980).

The initial burden is on the claimant to establish a prima facie case of eligibility for benefits. Medina v. Indus. Comm'n, 38 Colo. App. 256, 554 P.2d 1360 (1976); Duenas-Rodriguez v. Indus. Comm'n, 199 Colo. 95, 606 P.2d 437 (1980).

Illegal alien ineligible for benefits. An illegal alien has no constitutional right to work and, being legally unavailable for work, did not qualify for benefits under subsection (1)(c). Duenas-Rodriguez v. Indus. Comm'n, 199 Colo. 95, 606 P.2d 437 (1980).

But applicants for political asylum were permanently residing in the United States under color of law and thus eligible for unemployment benefits. Div. of Emp. & Training v. Indus. Comm'n, 705 P.2d 1022 (Colo. App. 1985); Div. of Emp. & Training v. Turyniski, 735 P.2d 469 (Colo. 1987).

Since subsection (7) is based on federal law, federal authority in interpreting the federal enactment is highly persuasive in interpreting this state statute. Arteaga v. Indus. Comm'n, 703 P.2d 654 (Colo. App. 1985), aff'd sub nom. Div. of Emp. & Training v. Yiadom, 735 P.2d 473 (Colo. 1987).

The provisions of subsections (7)(a)(I) to (7)(a)(VI) are merely illustrative of the categories of persons included within the meaning of the phrase "permanently residing in the United States under color of law". An interpretation that said provisions are an exhaustive definition of persons included within the meaning of said phrase would result in the statute not being in substantial compliance with federal law. Sandoval v. Colo. Div. of Emp., 757 P.2d 1105 (Colo. App. 1988).

For purposes of subsection (7), petitioner was "permanently residing in the United States under 'color of law' ", where he was married to a citizen of the United States, was authorized to work by the Immigration and Naturalization Service (INS), was in the process of applying for permanent residence, and because the INS made no effort to deport him during the application process. Arteaga v. Indus. Comm'n, 703 P.2d 654 (Colo. App. 1985), aff'd sub nom. Div. of Emp. & Training v. Yiadom, 735 P.2d 473 (Colo. 1987); Zanjani v. Indus. Comm'n, 703 P.2d 652 (Colo. App. 1985).

And petitioner became eligible for unemployment benefits when the INS demonstrated its intention to allow petitioner to remain in the country until he obtained permanent resident alien status. Arteaga v. Indus. Comm'n, 703 P.2d 654 (Colo. App. 1985); Zanjani v. Indus. Comm'n, 703 P.2d 652 (Colo. App. 1985).

Claimant had pending at all times at least one petition which would result in an adjustment of his status to lawful permanent resident which constituted the necessary status to receive unemployment benefits. The fact that claimant did not have a valid INS work authorization during his base period was merely one factor to consider in determining whether he met the requirements of "permanently residing in the United States under color of law". Sandoval v. Colo. Div. of Emp., 757 P.2d 1105 (Colo. App. 1988).

Eligibility where claimant unable to perform "normal" work for health reasons. Where an unemployment compensation claimant is, for health reasons, unable to perform such claimant's "normal" work for a period of time, the claimant may nevertheless be eligible for benefits if the claimant is able to perform and is available for other suitable work. Bartholomay v. Indus. Comm'n, 642 P.2d 50 (Colo. App. 1982).

Fact that claimant has restricted his employment to particular hours of the day or to a specific shift must be considered within the context of the particular labor market in which he is seeking employment before a valid conclusion can be reached as to whether he has made himself unavailable for employment. Couchman v. Indus. Comm'n, 33 Colo. App. 116, 515 P.2d 636 (1973).

When eligibility provisions of section come into play. While any refusal of suitable work may well be independent grounds for a "no award" decision under § 8-73-108 (6), the "eligibility" provisions of this section, including limited availability, only come into play with respect to conditions existing after filing of the claim. Olivas v. Indus. Comm'n, 33 Colo. App. 273, 518 P.2d 304 (1974).

Section would not become pertinent unless claimant applies for benefits after expiration of disqualifications. Where "no award" decision rendered required that claimant be "disqualified" from receiving benefits for a period of 13 to 25 weeks under § 8-73-108 (2)(b)(I), and a 13-week disqualification was imposed, the provisions of this section would not become pertinent unless the claimant should apply for benefits after the period of disqualifications had expired, and the question of claimant's restrictions on availability for work at that time would then ripen. Olivas v. Indus. Comm'n, 33 Colo. App. 273, 518 P.2d 304 (1974).

Where the records contained no indication whatsoever that claimants failed to meet the basic eligibility requirements of subsection (1), claimants were deemed to have met the basic eligibility requirements since the industrial commission is presumed to carry out its official duties in a regular manner. Everitt Lumber Co. v. Indus. Comm'n, 39 Colo. App. 336, 565 P.2d 967 (1977).

Part-time worker must comply with section. A part-time worker under § 8-73-105 must comply with other statutory eligibility requirements under this section such as he must be "available for all work deemed suitable", and he must be "actively seeking work". Indus. Comm'n v. Redmond, 183 Colo. 14, 514 P.2d 623 (1973).

But section applied considering intention to afford part-time workers' benefits. The requirements of this section must be applied with the consideration that the claimant may be a part-time worker and that the general assembly intended to afford benefits to such workers. Indus. Comm'n v. Redmond, 183 Colo. 14, 514 P.2d 623 (1973).

And such workers afforded benefits notwithstanding inconsistent provisions elsewhere. The provisions of this section, that a claimant must be able to work and must be available for all work deemed suitable pursuant to § 8-73-108, should not prevent the intent of the general assembly from being carried out, and that intent, as evidenced by § 8-73-105, is to the effect that part-time workers should be afforded benefits notwithstanding inconsistent provisions elsewhere in the act. Redmond v. Indus. Comm'n, 32 Colo. App. 134, 509 P.2d 1277, modified, 183 Colo. 14, 514 P.2d 623 (1973).

Claimant's status as student does not in itself make him unavailable for employment within the meaning of this statute. Couchman v. Indus. Comm'n, 33 Colo. App. 116, 515 P.2d 636 (1973).

Intent of subsection (3). The exclusion from coverage stated in subsection (3) is intended to preclude school teaching and nonteaching personnel from receiving unemployment compensation during summer recess if they have the promise of work in the fall. Bd. of County Comm'rs v. Martinez, 43 Colo. App. 322, 602 P.2d 911 (1979), overruled on other grounds sub nom. Indus. Comm'n v. Bd. of County Comm'rs, 690 P.2d 839 (Colo. 1984).

Even though a school engages in academic activity during summer break, such scheduled break is probably not an academic period. Consequently, applicant was not entitled to receive unemployment benefits under subsection (3)(c) during summer break regardless of the academic activity taking place at the school. Herrera v. Indus. Claim Appeals Office, 18 P.3d 819 (Colo. App. 2000).

Headstart program workers employed by county were eligible to receive benefits during summer recess. Indus. Comm'n v. Bd. of County Comm'rs, 690 P.2d 839 (Colo. 1984).

Distinction relating to headstart program constitutional. Distinguishing between employees of county-administered headstart programs and employees of school-administered programs bears a rational relationship to a legitimate state objective and thus does not violate equal protection. Indus. Comm'n v. Bd. of County Comm'rs, 690 P.2d 839 (Colo. 1984).

Claimant held not able and available. Where claimant had formerly worked at a job requiring her to be on her feet eight hours a day and, after surgery needed because of an injury which was unrelated to her employment, applied for part-time work at her usual occupation with the same employer, where she was advised that they had no part-time work, nor any jobs that would meet her physical limitations, the type and hours of work sought by claimant were so limited that she was not "able and available" for all suitable work within the meaning of this section. Medina v. Indus. Comm'n, 38 Colo. App. 256, 554 P.2d 1360 (1976).

Failure to answer call-in card. Since the referee found that claimant did not realize the call-in card concerned possible employment and since claimant was not otherwise alerted to such employment, claimant's failure to report within the time limit specified, standing alone, will not support the finding that claimant was unavailable for referral and was not actively seeking work. Lawlor v. Indus. Comm'n, 34 Colo. App. 442, 527 P.2d 1186 (1974).

Commission correct in considering claimants' last week as "waiting week". Where the earnings of each claimant for the last week worked were under $50, and the benefits to which each was entitled ranged from $82 to $87, the commission was correct in considering claimants' last week of work to be the "waiting week", and it was proper to pay full benefits beginning the following week. Denver Symphony Ass'n v. Indus. Comm'n, 34 Colo. App. 343, 526 P.2d 685 (1974).

Determinations are required prior to computations under subsection (1)(e). The dollar rounding provision is in § 8-73-102 (1) and the weekly benefit must have already been determined before the computations called for in subsection (1)(e) are made. Grams v. Indus. Comm'n, 38 Colo. App. 357, 556 P.2d 1234 (1976).

Determination of monetary eligibility for unemployment benefits. Since the payments to the claimant pursuant to the charter provision were made under a plan established by the employer which compensates police officers on account of "accident disability", the amount of these payments cannot be counted as "wages" for determining monetary eligibility for unemployment benefits. City & County of Denver v. Indus. Comm'n, 707 P.2d 1008 (Colo. App. 1985), cert. denied, 733 P.2d 680 (Colo. 1987).

Hearsay evidence alone cannot support commission's order. Hearsay evidence, though admissible in administrative hearings, cannot alone support an order of the industrial commission. Romero v. Indus. Comm'n, 616 P.2d 992 (Colo. App. 1980).

This section concerns eligibility, not entitlement. Its applicability must be determined in eligibility proceedings that may not be intermingled with entitlement issues. Denver v. Indus. Claim Appeals Office, 833 P.2d 881 (Colo. App. 1992).

Under the Colorado Employment Security Act, eligibility for unemployment benefits and entitlement to those benefits are distinct and separate matters that relate to whether a claimant may receive unemployment compensation. In re Adamic, 291 B.R. 175 (Bankr. D. Colo. 2003).

"Eligibility" for unemployment compensation relates to the monetary provisions of the statute, while "entitlement" concerns the non-monetary provisions. Each is an equal element of a claim for unemployment compensation benefits. In re Adamic, 291 B.R. 175 (Bankr. D. Colo. 2003).

Applied in Dailey, Goodwin & O'Leary v. Division of Emp., Indus. Comm'n, 40 Colo. App. 256, 572 P.2d 853 (1977); Martinez v. Indus. Comm'n, 618 P.2d 738 (Colo. App. 1980); Bd. of County Comm'rs v. Indus. Comm'n, 650 P.2d 1297 (Colo. App. 1982); Nazzaro v. Indus. Comm'n, 671 P.2d 983 (Colo. App. 1983); Bushehri v. Indus. Claim Appeals Office, 749 P.2d 439 (Colo. App. 1987); Denver v. Indus. Claim Appeals Office, 833 P.2d 881 (Colo. App. 1992).