The Massachusetts Department of Unemployment Assistance (DUA) is the agency that sends checks to people who claim unemployment benefits.
If the DUA says that you were overpaid, you can challenge DUA's decision, or the amount of the overpayment. Even if you agree that you were overpaid, you may not have to pay it back if you meet certain conditions.
1. What is an overpayment?
An overpayment is the money you get that the DUA should not have sent to you. The DUA can send you more money than they should. The DUA can also send you money when they should not have sent any money. This can happen for different reasons:
- If the Board of Review or a court looks at your claim and decides that actually you cannot get unemployment benefits, it "reverses the claim". If the DUA has already sent you money when they should not have, the money that was sent is an overpayment.
- If the DUA does not get all the information from you that they need, they can calculate the wrong amount to send you. If they send you more than you should get, they have sent you an overpayment. It is very important to tell the DUA information as soon as you can, such as when you get wages from another job, or when you are not "available for work". This information changes the amount of benefit you should get.
2. What happens when DUA decides they have sent me an overpayment?
If the DUA decides that they have overpaid you, you will get a letter from them, a "Notice of Overpayment". If you do not appeal or request a waiver, the DUA will begin to collect the overpayment from your Unemployment Insurance benefits if you are still receiving them. Your Unemployment Insurance benefits will be lower until you have paid back the overpayment to the DUA. If you are not still receiving unemployment insurance benefits, DUA may then take money from your tax refund and try to recover overpayment that way. Finally, if the DUA cannot collect all of the overpayment from you and you need Unemployment Insurance again in the future, DUA will collect the rest then.
If you want to have the overpayment waived, so that you do not have to return the money the DUA sent to you by mistake, you have to show that:
- It was not your fault that the DUA sent you an overpayment and
- it would cause you financial hardship, or it would somehow be unfair for you to have to pay it back.
4. What is "fault" in causing the overpayment?
Fault is lying to the DUA or intentionally not telling them all the information they need to calculate the right amount of Unemployment Insurance for you. This includes failing to tell the DUA information that you knew, or should have known, that would change whether you should get Unemployment Insurance, or how much you should get. Fault would also be accepting a UI benefit check you knew, or should have known, was incorrect.
If you began working while you were collecting Unemployment Insurance benefits and you did not report your wages to the DUA, you would be "at fault" in causing the overpayment. Or if you don’t have any children but you claimed a child as a dependent in order to collect the extra $25 weekly dependent allowance, you would also be at fault.
DUA has the burden to show that you were at fault. But be sure to submit to DUA whatever proof you have to show you were not at fault.
5. How do I show financial hardship?
In addition to showing you were not at fault in creating the overpayment, you must show that paying back the UI benefits would cause you or your family financial hardship. You need to show that paying the money back would leave you and your family without enough money for daily living expenses. These expenses may include food, clothing, rent, utilities, insurance, job or job search-related transportation expenses, and medical expenses for yourself and your family. Submit copies of receipts for your expenses.
6. Can I still get a waiver if I can't show financial hardship?
Yes, if you cannot show financial hardship, you may be able to show that paying the money back to DUA would be "against equity and good conscience." This simply means it would be unfair. For example, if you relied on DUA's decision that you had a right to these benefits and you went out and made a purchase you would not have made - you bought a new truck with the money and now you cannot return the truck, or you passed up an opportunity to get benefits from another source - Food Stamps or welfare, then making you repay the money to the DUA would be unfair.
7. How do I apply for a waiver?
You can get a waiver request form from your local DUA office, you can call the DUA Telephone Claims Center and ask them to send you a waiver request form, or you can get the form online. Fill it out as completely as possible, make copies of the information that shows you were not at fault and it would be a financial hardship to repay the money. Send the package to DUA Waiver Unit 2nd Floor, 19 Staniford Street, Boston, MA 02114. Make sure to keep a copy of everything you send.
The only way to make sure DUA doesn't collect the overpayment while you are asking for a waiver is to pay attention to all the notices you get. Respond to all the notices within the time frames the notices describe.
In the notices DUA will call collecting the overpayment "recoupment".
You need to file the waiver request within 15 days of your notice of overpayment to stop the DUA from collecting the overpayment. If you file within that 15 days, DUA will not try to recover any of the overpayment unless they deny your waiver and the waiver denial becomes final. Even if they deny your waiver you can "appeal" the denial. There are several appeal processes you can go through to try to get a waiver of overpayment. The whole time you are appealing they cannot collect the overpayment from you. But it is very important to pay attention to the deadlines. See question #10.
Yes, you can file a waiver request at any time. In fact, you may want to wait to file your waiver request until you meet the "financial hardship" test. See Question 3. If you file a waiver request after the 15th day, DUA will try to recover the money while it considers your waiver request.
The DUA sends Joe a notice of overpayment because the initial decision approving his benefits was "reversed on appeal". By the time Joe receives the notice of overpayment, he is working again and would not meet the financial hardship test. A year later, Joe is laid off from his new job. He applies for UI benefits and files a waiver request on the overpayment because he was not at fault and it would be a financial hardship to repay the overpayment.
If your waiver request is denied, you have the right to appeal. Appealing the decision means you are asking for a hearing and you can present evidence at the hearing. The DUA must receive your appeal within:
- 10 days of the date on the denial notice, or
- 30 days if you have good cause, or
- 60 days or more if you fail to ask for a hearing earlier is because DUA did not give you with information in your primary language.
If you lose at the hearing, you can ask the Board of Review to review your case. If the Board does not agree to review or reverse the waiver denial, you can appeal to District Court. Finally, you can write to the Director of the DUA, Department of Unemployment Assistance, 19 Staniford Street, Boston, MA 02114 within one year of the original decision and ask him to "redetermine the decision under Section 71 of the law". There are strict time limits for all of these appeals. Ask a legal services office for information on these appeal deadlines.
If you are collecting UI benefits now, DUA will not send you any benefits until you have repaid the overpayment. However, DUA should adjust this rate of recovery by looking at:
- your financial circumstances,
- the amount of the overpayment,
- how much the overpayment was your fault, and
- if you and your family have any other means of financial support.
Produced by Massachusetts Law Reform Institute adapted from Attorney Patti Prunhuber's "Have you been overpaid Unemployment Insurance (UI) benefits?" for the Employment Rights Coalition Last updated October 2013