A false statement (FS) disqualification is appropriate when the claimant has either given false information or withheld material information in order to obtain unemployment benefits.
Unemployment Insurance Code Section 1257(a) provides an individual is disqualified for unemployment benefits if:
He or she willfully, for the purpose of obtaining unemployment compensation benefits, either made a false statement or representation, with actual knowledge of the falsity thereof, or withheld a material fact in order to obtain any unemployment compensation benefits under this division.
Thus, the elements of a false statement disqualification are:
- The claimant either made a false statement or representation, or withheld a material fact
- Willfully
- With actual knowledge of the falsity
- For the purpose of obtaining benefits.
If any one of these elements is missing, the interviewer may not assess a false statement disqualification. A discussion of the individual elements follows.
a. False Statement or Representation, or Withholding a Material Fact
False Defined
"False" is defined inMcBride v. People(126 Col. 277, 248 P.2d 725), a 1952 Colorado Supreme Court Decision, as: False "denotes an intentional, deliberate, and willful untruth, something beyond mere inaccuracy."
"False" should be construed to mean "intentionally or willfully untrue."
"False" may mean untrue or it may mean designedly untrue, implying an intention to deceive. When applied to the representations of one inducing an act to another’s injury, it implies a purpose to deceive.
A false statement or representation may be made orally or in writing and may be a positive statement as well as silence or concealment of a material fact.
Material Defined
In addition to being false, the information, or lack thereof, must be material (essential, relevant, or pertinent) to the decision before it may be used as a basis for disqualification. "Material" information is only that information which has a bearing on the claimant’s eligibility for benefits. In P-B-72, the Appeals Board defined "materiality" in terms of both the claimant’s belief and in terms of what the claimant should have known. In this case the claimant failed to report a job offer on her continued claim form. Concerning the propriety of the false statement disqualification, the Board held:
In order for the department to properly perform its statutory duty of determining a claimant’s eligibility for benefits it must have in its possession all of the facts which reasonably bear upon that eligibility. While in a particular case, as here, the fact withheld may not, as a matter of law, affect the ultimate outcome, it is only after careful consideration of that fact, together with the other facts in the case, that a proper determination can be made. To hold otherwise would, in effect, allow a claimant to determine his own eligibility for benefits based upon his opinion of what is material and what is not. . . . As to the materiality of the information withheld, it is our opinion that the application of Section 1257(a) is not dependent upon whether the information withheld would have necessarily resulted in ineligibility or disqualification for benefits under other appropriate sections of the code. It is sufficient that the claimant believed, or should have known, that the facts withheld would raise a question as to her entitlement to benefits. (Emphasis added.)
b. False Statement is Willful
In determining willfulness, the Appeals Board often cites the following Court cases:People v. Calvert: "To do a thing willfully is to do it knowingly";
Helme v. Great Western Milling Co.: "Conscious; knowing; done with stubborn purpose but not malice"; and
People v. Sheldon: "After indulging in this mental process, if an act is done as the result of it, it is a willful act."
In P-B-347, the Board addressed the claimant’s contention that she "just forgot" she had worked and had earnings in the week in question when she completed her claim card and certified for benefits. In its decision, the Board stated:
In our opinion, however, it is inherently improbable that the claimant, within the few intervening days between the time she performed the work in question and the time she completed and filed her certification for benefits, could have temporarily forgotten such an important and material fact as a day of work and the receipt of wages during a period of unemployment. Accordingly, we must conclude that the claimant knowingly and, therefore, willfully failed to report a material fact to the department for the purpose of obtaining benefits. Consequently, she is subject to disqualification. . . . (Emphasis added.)
In summary, to hold that a claimant’s statement, or withholding of information, was a willful action, the interviewer must establish that the action was:
- Conscious and knowing, as opposed to an innocent error, and
- Voluntary and purposeful, as opposed to accidental.
c. Actual Knowledge of the Falsity
"Actual knowledge of the falsity" refers to the claimant’s knowledge of the truth of the answer which he or she is giving to the department, or, the claimant’s knowledge that the information he or she is withholding is material to his or her eligibility for benefits.
d. For the Purpose of Obtaining Benefits
Before a disqualification can be assessed, the interviewer must establish that the false statement or representation, or withholding of material facts was made for the purpose of obtaining benefits. For example, if a claimant provides misinformation on his or her work application when registering for work, the information is not given for the purpose of obtaining unemployment benefits and a disqualification cannot be assessed. However, information provided by the claimant on an unemployment insurance claim form is for the purpose of obtaining benefits and any misstatement or withholding of information is subject to disqualification.
The severity of the false statement disqualification will depend upon whether or not benefits have been paid and the number of incidences of false statement or withholding of information.
a. No Benefits Paid
Unemployment Insurance Code, Section 1260(c), provides:
An individual disqualified under subdivision (a) of Section 1257, under a determination transmitted to him or her by the department, and who was not paid any benefit amount as a result of his or her false statement or representation, is ineligible to receive unemployment compensation benefits for two weeks commencing with the week in which the determination is mailed to or personally served upon him or her, or any subsequent week, for which he or she is first otherwise in all respects eligible for unemployment compensation benefits and for not more than 13 subsequent weeks for which he or she is otherwise in all respects eligible for unemployment compensation benefits. No disqualification under this subdivision shall be applied to any week if all or any portion of the week is beyond the three-year period next succeeding the date of the mailing or personal service of the determination. This subdivision shall not apply to an individual convicted under Section 2101.
Thus, a false statement that did not result in the payment of benefits may be assessed for as few as two, but not more than 15 weeks. The actual number of weeks assessed is dependent upon the number of incidences of false statement or withholding of information.
NOTE:Awaiting period weekis considered as benefitsNOTpaid.
b. Benefits Paid
Unemployment Insurance Code section 1260(d), provides:
An individual disqualified under subsection (a) of Section 1257, under a determination transmitted to him or her by the department, and who was paid any benefit amount as a result of his or her false statement or representation, is ineligible to receive unemployment compensation benefits for five weeks commencing with the week in which the determination is mailed to or personally served upon him or her, or any subsequent week, for which he or she is first otherwise in all respects eligible for unemployment compensation benefits and for not more than 10 subsequent weeks for which he or she is otherwise in all respects eligible for unemployment compensation benefits. No disqualification under this subdivision shall be applied to any week if all or any portion of the week is beyond the three-year period next succeeding the date of the mailing or personal service of the determination. This subdivision shall not apply to an individual convicted under Section 2101.
Thus, a false statement disqualification that resulted in payment of benefits may be assessed for as few as five, but not more than 15 weeks. The actual number of weeks assessed is dependent upon the number of incidences of false statement or withholding of information.
c. Voluntary Disclosure
When a claimant voluntarily discloses a prior willful false statement, assess the minimum false statement penalty of two weeks if the benefit check for the week(s) in question has not been cashed. If, prior to the voluntary disclosure, the claimant cashed the benefit check for the week(s) in question, assess a minimum false statement penalty of five weeks.
For these minimum penalties to apply:
- The disclosure must be made not more than six months after the false statement. If more than one false statement is involved, the date of the earliest false statement will determine the disclosure date.
- The disclosure must be made before the department is aware of the possibility of the false statement and before the department has taken any action to investigate the false statement.
Unemployment Insurance Code Section 1261 provides:
When successive disqualifications under Section 1257(a) and 1257(b) occur, the director may extend the period of ineligibility provided for in Section 1260 for an additional period not to exceed eight additional weeks under Section 1261.
a. Definitions
For purposes of Section 1261, the Appeals Board, in P-B-69, referred to "successive disqualifications" as the claimant’s repeated disqualifying actions rather than disqualifying periods resulting therefrom. A disqualifying act is the claimant’s misstatement or withholding of information, or refusal of suitable work.
Successive disqualifying acts are any second or subsequent claimant misstatements, withholdings of information or refusals of suitable work. The disqualifying acts need not be restricted to a single period of time nor for a specific number of weeks. If the claimant has one or more disqualifying decision(s) on the current or previous claims, apply the provisions of Section 1261.
Note:To be considered as a prior disqualification for SD purposes the Determination Notice (DE 1080) must have been issued to the claimant at least 10 days prior to the commission of the subsequent act. This time lapse ensures that the claimant was aware of the penalty yet committed another disqualifying act knowing that a more severe penalty would be assessed. The SD disqualification begins the Sunday of the week the DE 1080 is mailed the same as the FS disq. The claimant will not begin serving the SD until the FS weeks assessed are served.
Example:
The claimant returned to work and did not report this to the Department. The claimant certified for benefits for the next two weeks and did not report the work or the wages. During the determination interview the Department determined that the claimant had made two misstatements, one for each week that he certified that he had not worked and had no earnings. The Department also found that the claimant had three prior Unemployment Insurance claims and on each claim the claimant had returned to work and not disclosed the work and wages during the last two weeks of each claim. In this case the claimant would be assessed the false statement disqualification for the two current false statements and would also be subject to a successive disqualification under Section 1261.
