Defense Trainees and Availability for Work RALPH ALTMAN *

ONE OF THE PROBLEMS which the war emergency group. Some idea of the size of the defense- has brought to the doorstep of State trainee group as a whole may be obtained from the security agencies has been that of determining following tabulation of enrollments in U. S. Office the eligibility of defense trainees for unemploy• of —Defense Programs.1 ment benefits. Defense training began when this country, emerging from a prolonged oversupply Active Cumulative of labor, discovered that it was faced with labor Type of course Feb. 28, Feb. 28, Feb. 28, Feb. 28, shortages. The mushroom growth of the war's 1942 1943 1942 1943 industrial demands had revealed great manpower gaps that could be filled only with the aid of a Total 533,060 610,900 2,825,794 6,141,177 Pre-employment 170,551 136,568 968,551 2,182,214 giant-sized training program. Soon both private Supplementary to employment 176,528 170,577 1,047,049 2,187,535 NYA out-of- work program and Government-supported courses began to 77,844 164,215 448,217 808,813 , science, and management meet that need through a variety of vocational 108,137 139,540 361,977 962,615 courses and curricula that have been generically labeled "defense training." As this vocational training program grew, it attracted people from For the defense trainees who have received all situations and all walks of life. There were benefits, as for all other, recipients businessmen and , lawyers and house• of unemployment compensation, unemployment wives, debutantes and salesmen-—all engaged in benefits have been based on credits built the business of acquiring the occupational skills up by previous work in covered employment. needed for active participation in the industrial Thus have not been paid to war effort. Of course, most of the defense young people or housewives who have entered the trainees were not and could not be unemploy• labor market for the first time via defense training. ment compensation claimants. Many of them Nor have they been paid to those who were for• had never worked in covered employment or, if merly self-employed, or to domestic servants, they had, they had not built up the necessary farmers, Government workers, and others who wage credits. In other cases, trainees continued had no qualifying covered employment before they working at their regular while in training. began their training. Some of the trainees, however, were unemployed Unemployment benefit payments have also been workers who had accrued rights under unemploy• confined to defense trainees who were "unem• ment compensation laws—individuals whose work ployed" in the weeks for which they were claiming history showed an attachment to the labor market. benefits. Eligibility requirements in State un• Out of this group have come the defense-trainee employment compensation laws stipulate that claimants of unemployment benefits. In many claimants be either totally or partially unem• cases, these claimants undoubtedly filed their ployed; a week of total unemployment is usually claims not only as a matter of right but also as a defined as one in which the claimant performed matter of need. Despite the fact that the courses no service and with respect to which no remuner• they were attending often were tuition-free, these ation is payable to him, and partial unemploy• workers, nevertheless, had to supply their own ment as a week of less than full-time work in food, clothing, and shelter while in training. which the claimant's earnings fell below his The size of this group of defense trainees who weekly benefit amount for total unemployment. applied for and received unemployment benefits There are various reasons for the unemployment of defense-trainee claimants. Some have been is, for lack of the necessary data, unknown. It discharged or laid off from their jobs and sub• is impossible to estimate the number beyond say• sequently enter on their training. Some leave ing that, in these days of small claim loads, the their work to enter a training course or to continue defense-trainee claimants constitute a substantial

1 * Bureau of Employment Security, Administrative Standards Division. Figures do not include enrollments in non-Government-sponsored courses a training course they have already begun. In otherwise and could prove their availability for some instances, they leave their work for other work received benefits, they were a decided minori• reasons or are discharged because of their training. ty of the claimants. A typical statement Regardless of the reason, they are all required to was made by an Indiana appeal tribunal in 1938: meet the test of "unemployment" before they can A student who is enrolled in a regularly established receive unemployment benefits.2 school is not in a position to accept full-time em- ployment and is expected to devote the greater portion Pre-War Attitude Toward Student Availability of his time to his studies both within and without the classroom. The fact that he would be willing to dis• The polar question about which the cases of continue his school work upon offer of employment is defense trainees have revolved is the question of not a determining factor.4 availability for work. This situation arises from This language was echoed by a Florida appeal the requirement of State laws that an individual tribunal in 1939: must be available for work in order to be eligible for unemployment benefits. This provision, an However, where an individual's status is primarily that of a student rather than an unemployed person effort to restrict unemployment compensation unreservedly in the labor market, he is not considered payments to persons genuinely in the labor market, as being in a position to accept full-time employment requires that a claimant be ready and willing to and is expected to devote the greater portion of his work and that his personal conditions and circum• time, both within and without the classroom, to his stances permit him to take a . The great school work. The fact that he would be willing to discontinue his school work upon an offer of employ• stumbling block to the receipt of unemployment ment should not be a determining factor.5 benefits by defense trainees was the pre-war atti• tude of the unemployment compensation agencies Although many of these pre-war decisions on stu• as to the availability of students for work. The dent availability were stated in the context of following statement summarizes pre-war rulings. academic pursuits, there was, in fact, a carry-over In States where the availability requirement is inter• from these decisions to the cases of vocational and preted to denote availability for full-time work, the trade-school students. It took a war and a defense inquiry, in the ease of students, is generally whether training program to separate vocational and aca• the restrictions upon the hours of work resulting from demic training for the purposes of unemployment school attendance are such as to make it impossible compensation eligibility. for claimant to accept full-time work and what are the conditions under which claimant is free to leave school in order to accept employment. Generally, the deci• Wartime Hidings and Appealed Decisions sions reflect a reluctance to infer that claimant is It is difficult to generalize about the way the willing to interrupt his course of study when, in order various States have handled the problem of the to do so, he would forfeit his tuition or lose an oppor• tunity to finish a course looking toward an academic availability of defense trainees since the beginning or professional degree. When, on the other hand, a of the war effort. No blanket rulings on the course of training or study may be readily interrupted eligibility of this group have been issued. In• without financial loss and other substantial detriment stead, adjustment to the wartime situation has and claimant declares his willingness to accept work, 3 been met partly by adopting attitudes of leniency availability for work is readily found. toward, or predispositions in favor of, the defense- Before Pearl Harbor, the assumption was read• trainee claimant, but mainly by refining and "re• ily made that students were not properly entitled thinking through" the general concepts of avail• to unemployment benefits. They were primarily ability in order to apply them properly to the interested in their own training and education. cases of defense trainees. Implementing these Their attachment to the labor market was at attitudes of leniency toward defense trainees has best tenuous; often it was almost imaginary. sometimes raised the difficulty of defining defense Consequently, although students who qualified trainees. None but the broadest definition would 2 All references in this article to State actions concerning defense trainees seem to suffice in a total war. However, in spite are, except in the case of particular statutory provisions, based on the appealed benefit decisions of State quasi-judicial tribunals. The results of initial 4 Social Security Board, Unemployment Compensation Interpretation determinations of defense trainees' claims are, therefore reflected here only Service—The Benefit Series, Vol. 2, No. 3, 1021-Ind. A, p. 438. This statement indirectly, as they are revealed in administrative appeals. reflects the Indiana statute before it was amended in 1930 to disqualify 3 "Issues Involved In Decisions on Disputed Claims for Unemployment students. Benefits," Social Security Yearbook, 1940, p. 38. 5 Benefit Series, Vol. 3, No. 4, 3079-Fla. A, p. 54, of the difficulty of deciding satisfactorily whether willing to accept and less from the standpoint of or not a student in a comptometer course organized what the claims deputy thinks the claimant will be at the request of an aviation company, for example, capable of accepting. Colorado, Pennsylvania, is a defense trainee, the State employment security and Virginia, exceptions in this area, have dis• agencies have generally agreed that individuals tinguished between trainees attending part-time enrolled in federally sponsored war training courses refresher courses and trainees attending full-time are defense trainees and have gone on from that courses who are not able to accept work until they point to a case-by-case description of the defense have completed their training. The latter group trainee. they have considered unavailable for work. It is the result of this case-by-case method that Another criterion for deciding the availability we are trying to capture. Although the basic of a defense trainee has sometimes been whether generalization may readily be made that more at• he voluntarily left his work to enter a training tendance at a defense training course will not course. In the following States, a claimant who render a claimant unavailable for work, other quit suitable work to enter defense training has broad conclusions involving more detailed ques• been hold unavailable for work: Kansas, Missouri, tions of availability are harder to draw. It is pos• New Mexico, and Ohio. In Idaho, Iowa, Massa• sible, however, to take a long view of the situa• chusetts, Now Hampshire, South Dakota, and tion, selecting certain trends or patterns of deci• Washington, such a voluntary leaving results in sions that are true for most of the country. For a complete disqualification for benefits for the instance, it may be said that generally the avail• duration of the unemployment. This disquali• ability of a defense trainee does not depend on fication is statutory and arises because the volun• whether the course he is attending is free and tary leaving is personal and not related to the Government-sponsored or a tuition course which is work,6 is without good cause attributable to the privately operated. However, the following States employer,7 or is without good cause connected with have, in varying degrees, differentiated between the work.8 Probably, but not certainly, persons the claim of a trainee in a privately operated tuition who leave work to enter defense training have course and that of a trainee attending a free, been held unavailable in Connecticut and Florida; Government-sponsored course: California, Idaho, Mississippi has taken this position only if the Louisiana, Minnesota, New York, South Dakota, training is full time. In Oklahoma and Texas, and Vermont. The distinction made has rested these circumstances have not made a claimant mainly on the obvious fact that individuals who unavailable, but he has had a harder time proving have paid tuition are loath to sacrifice their invest• that he is available for work. The majority of ment by dropping their training to accept work. the States, however, have ruled that the avail• Partly, however, the distinction has boon based ability of a claimant who has left work to enter upon the differentiation between Government- a training class must be decided by the rules sponsored and privately operated courses, although applied to the availability of other defense logically it is difficult to see what difference it trainees.9 makes in an individual's availability for work if he attends a Government-sponsored course rather Special Statutory Disqualifications than a privately sponsored course. Not the spon• Special statutory disqualifications for students sorship of the course but the other circumstances are to be found in the laws of Alabama, Connec- that surround the trainee will decide whether he 6 Washington Unemployment Compensation Act, see. 4 (c) of present law, will drop his training to accept work or take a job and sec. 5 (b) of amended law, effective July 1943. 7 while in training. Iowa Employment Security Act, sec. 1551.11A; Massachusetts Employ• ment Security Law, sec. 26 (e); New Hampshire Unemployment Compensa• It may also be said that generally the more fact tion Law, sec. 4 (a) and Regulation No. 21; South Dakota Unemployment Compensation Law, sec. 17.0830 (1), as amended this year, effective July 1943; that a claimant is engaged in a full-time instead of the South Dakota statutory language is "attributable to the employer or the part-time course will not make him unavailable employment." 8 Idaho Unemployment Compensation Law, sec. 4 (e). for work. This is a broadening of pre-war rulings. 9 West Virginia Unemployment Compensation Law, art. VI, 4 (7), as It is part of the wartime tendency in the field of amended in 1943, disqualifies totally any individual whose unemployment student eligibility to decide availability more from results from a voluntary leaving "to attend a school, , , or other " while in attendance or waiting to start at• the standpoint of the work a claimant is actually tendance; this evidently does not affect defense trainees. ticut, Indiana, Montana, Nebraska, Nevada, quit school to accept full-time work during North Dakota, Ohio, and Utah. In Alabama, customary working hours or that the major Montana, and Ohio, the disqualifications apply portion of his . . . during his base year to an individual who has left work for the purpose was for services performed while attending school." of attending, or who is a student regularly attend• ing, an established educational institution during An Appraisal of State Rulings and Appealed the school term or is on vacation within the school Decisions term. There is no indication that these States A careful study of the experience of State em• have invoked this disqualification against the ployment security agencies in handling the ques• claims of defense trainees per se. The Connec• tion of the availability of the defense trainee shows ticut statute bars from benefits any individual that generally there has been neither an expansion who "has left employment to attend a school, nor a distortion of the concepts of availability college or university as a regularly enrolled developed before this country entered the war. student." Presumably this provision is inappli• Instead, agencies have employed current concepts cable to persons engaged in a short-term vocational of availability as tools in handling a now situation. training course. Nebraska and North Dakota Necessarily, some of the tools did not fit, and some disqualify students and define them as individuals became more valuable than before because they registered for full attendance at, and regularly were constantly used. One of the tools, for exam• attending, an established school, college, or uni• ple, that most of the States decided did not meet versity or as individuals who have so attended the needs of the situation, was the test: Is the during the most recent school term; both these claimant taking a full-time course? Most States States have construed these disqualifications came to the conclusion that that test belonged in strictly and pay benefits to defense trainees. the sphere of academic, not vocational, training. In Indiana the disqualification covers individuals The tests most frequently applied are: Is the attending a "regularly established school, college, claimant willing to accept work and is he willing university, hospital or training school," "any to quit school to accept work? These tests have, scholastic course of an academic or curricular in turn, given rise to subsidiary ones: Is the nature, such as, but not limited to courses in drafts• claimant able and willing to change his class hours manship, chemistry, engineering and accountancy," so as to be in a position to accept work? Can he or "a training course sponsored, held or conducted quit his course in order to accept work without by an employing unit for training workers for losing tuition or credit? Other evidentiary tests positions in its own plant or establishment." The often used are: Did the claimant make an active, disqualification excludes attendance at "any night independent search for work? Did he work while school, or part-time training course" or "enroll• in training? Did he refuse any offers of work? ment or attendance as a student in a training Throughout the country as a whole it seems clear course designed and intended to train workers for that if a defense trainee is able and willing to skilled positions in industries engaged in the pro• accept work, is willing to quit school to accept 10 duction of war materials" The Nevada statute suitable work, or makes an active search for work, clearly exempts students in night or vocational he will be considered available for work. On the training from its disqualification. Utah's other hand, the claimant who is unable or unwilling law not only excludes from its disqualification to accept work or who will make no adjustment students in night schools, vocational, defense, or in, or cannot drop, his training program in order part-time training courses but also any other to accept a work offer will generally be held not students who can show "to the satisfaction of available for work. the commission that he was unemployed through This statement, of course, does not imply that no fault of his own prior to enrollment in such appealed decisions in any State conform exactly to school and that he is attending school because of this pattern. The statement is highly generalized lack of work and is actively seeking work and will inconsistencies existing not only among different 10 The material in italics was added by amendment in 1943. Previously States but within individual States. The distinc• the appealed benefit decisions reflected the agency's reluctance to apply to defense trainees the statutory disqualification of persons attending a "train• tion between the available and the unavailable ing school." defense trainees will often blur upon close examina- tion. Other factors may and do intervene, but or even months to enter a training course will they do not obliterate this general pattern of be in a position to change his class hours easily? decision. Apparently what has happened is this: Theoreti• In effect, the State agencies have taken a cally, the trainee has this right to change his class middle road. They have neither met the problem . The training authorities accede the head-on as a new and unique situation warranting right to him and will answer any inquiry in terms special ad hoc treatment; nor have they been so that indicate that he is permitted to change his rigid as to force the defense trainees into the class hours. Evidently the question is seldom mold of student availability. Instead they have raised as to the difficulty such a change will entail. done a little of both these things. Perhaps Of course, this attitude flows logically from the somewhat instinctively, often without complete adherence to the principle pointed out above. rationalization, the State agencies have been When this adherence produces desirable results, pursuing an indirect attack. This approach goes the necessary disregard of the facts may very in one direction by recognizing the unique char- well be condoned. Certainly, it justifies itself if acter of the defense trainee. It goes the other it makes the unemployment compensation system way when it insists that the assumptions which flexible, ready without legislative amendment to underlie student-availability discussions provide make reasonable adjustments to the problems the guides for the examination of the defense both of war and of peace. trainee's availability. Another significant aspect of the unemploy• An interesting perspective on the oblique ment compensation history of the defense-trainee method used by the State employment security problem is the light it casts on post-war prospects agencies in adapting their thinking to the needs of in unemployment compensation. The economic defense trainees is furnished by a consideration dislocations that will be inevitable at that time of trends in the general field of law. One of may include a great shifting of workers from war the identifying marks of Anglo-American law has industries into new peacetime occupations. Re• been the habit judicial bodies have of never training will be imperative and upon a scale that taking a firm stand or propounding a new principle may rival or exceed the war-training effort. if an old one can be made to do the work. There Questions immediately arise: Will the unemploy• is widespread recognition of this tendency in the ment compensation system be able to help out courts. It is not so clearly understood that the effectively in that situation? Will it be necessary tendency persists on the "administrative" or to amend unemployment compensation, laws so as "quasi-judicial" side of our legal system as well. to make specific provision for unemployment The handling of the defense-trainee problem is an benefits to trainees? Our experience thus far excellent illustration. with the defense trainees seems to point to "yes" In following this practice, the State agencies to the first question. In answer to the second and appeal bodies have had to take the same risks question, it would be helpful to clarify the statu• and, possibly, to make the same errors of judg• tory authority for payment of unemployment ment as our courts. They have had to develop benefits to trainees. Of course, after the war, fictions—both fictions of law and fictions of fact. some of the enthusiasm and patriotism that im• We have seen, for example, that it is common for pelled some administrators and referees to lean State agencies to hold that a defense trainee who over backwards to help trainees get unemploy• can change his class hours so as to be able to ment benefits will be gone. There will probably accept work is available for work. On its face, be few decisions granting benefits to post-war this seems an excellent basis for an availability trainees "on grounds of public policy" or "because ruling. In point of fact, it may often be purely of the national emergency." But something in hypothetical. The rush of people to take defense- the student-availability field has been gained and training courses in 1941 and 1942 is well known. will not be lost with the cessation of hostilities. Many workers, because of inadequate facilities, A thinking job has been done that has driven a had to wait for long periods before they were wedge clearly between the claims of academic permitted to begin their training. Is it likely that students and the claims of vocational students. a defense trainee who may have had to wait weeks The now Indiana law cited above is a good illus- tration of the effect of this kind of thinking. bility for benefits that a claimant shall have Three examples are worthy of note in thinking "when directed by the commission attended a of the post-war relationship between the unem• vocational retraining program maintained by the ployment compensation system and a retraining commission or by any public agency or agencies program (1) There is a growing tendency in designated by the commission." The act further New York, , and New Jersey to use provides for extended benefits under certain attendance at a defense-training course as a circumstances to such individuals. It states test of attachment to the labor market. Thus a that an individual who is required by the com• claimant who refuses a referral to a defense course mission to undergo such vocational retraining gives evidence tending to show unavailability. A must accept suitable work if offered, "provided, claimant may show a return to the labor market, however, that an individual who has enrolled in may prove his availability, or demonstrate that such a recognized training course shall be per• he never left the labor market by entering or mitted to continue in such course and receive applying for entrance to a defense-training course. benefits to the end of such compensable period, if (2) The Massachusetts Manual of Local Office the commission finds such continuance neces• Basic Operations states that claimants enrolling sary to complete such training." in one of the courses of the Vocational School Re• These are outposts of thinking that will have a employment Program by referral from the Employ• bearing on the question. They reflect a departure ment Service are available for work. from a literal interpretation of availability provi• (3) As amended by the 1943 legislature, sec• sions. They are the earnest of a promise that tion 28 (f) of the Michigan Unemployment Com• the unemployment compensation system is going pensation Law requires as a condition of eligi• to help Americans adjust to a peacetime world.