per centum of the daily rate of compensation for the employee's last employment in which he engaged for an employer in the base year, such rate shall be increased to such amount but not to exceed $12.70. The daily rate of compensation referred to in the last sentence shall be as determined by the Board on the basis of information furnished to the Board by the employee, his employer, or both * (Section 2(a), Railroad Unemployment Insurance Act.) [Board Order 68-72, 33 F.R. 11115, Aug. 6, 1968] § 330.2 Daily rate of compensation. The employee's daily rate of compensation includes his straight-time rate and any cost-of-living allowance provided in the applicable working agreement, and excludes any overtime, penalty payment, or other special allowance except as hereinafter provided. Where a daily pay rate is reported, it shall, in the absence of information to the contrary, and subject to the considerations set forth in this section and in §§ 330.3, 330.4 and 330.5, be considered to show the daily rate of compensation of the employee by or for whom the report has been furnished. If there is information that the reported daily pay rate fails to show the employee's daily rate of compensation, proper action shall be taken to determine such daily rate of compensation. Where a rate other than a daily rate is reported, it shall be converted to a daily rate as follows: (a) Hourly, weekly or monthly rate. An hourly rate shall be converted to a daily rate by multiplying such hourly rate by the number of hours constituting a working day for the employee's occupation or class of service. A weekly or monthly rate shall be converted to a daily rate by dividing such rate by the number of working days constituting the work week or work month, as the case may be, for the employee's occupation or class of service. (b) Mileage rate. Where a mileage rate is reported, it shall be considered that the employee's daily rate of compensation is his rate of pay for 100 miles or for 150 miles, depending upon his occupation and class of service, including any allowance per 100 miles or per 150 miles which is added to his basic rate per 100 miles or per 150 miles. (c) Piece rate or tonnage rate. Where a piece rate or tonnage rate is reported, the daily rate of compensation shall be determined by computing the employee's average earnings per day for the days on which he worked substantially full time (excluding any overtime or penalty rates) at such piece rate or tonnage rate during the last two pay periods in which he engaged in such work in the base year. (d) Commissions or percentage of sales. Where the compensation reported consists of or includes commissions or percentage of sales, the daily rate of such commissions or percentage of sales shall be determined by computing the employee's average net commission or percentage earnings (exclusive of any amounts he received to compensate him for expenses) per day for the days in the last two pay periods in which he worked on a commission or percentage basis in the base year. (e) International service. In the case of an employee who, on his last day of employment in the base year, worked partly outside the United States and partly in the United States for an employer which does not conduct the principal part of its business in the United States, the daily rate of compensation shall be determined in the same manner as it would if all his service on that day had been rendered in the United States. [Board Order 59-153, 24 F.R. 12, Jan. 1, 1959, as amended by Board Order 60-14, 25 F.R. 1677, Feb. 26, 1960] § 330.3 Last employment in which the employee engaged for an employer in the base year. "The employee's last employment in which he engaged for an employer in the base year," means generally the employee's last "service performed as an employee" within the meaning of section 1(g) of the Act: Provided however, That, if an employee actually performed no service as an employee in the base year, but received qualifying compensation, such as vacation pay or pay for time lost, for days in such base year, it shall be considered that the last employment in which he engaged for an employer in the base year was the employment on which the qualifying base year compensation was based; and the daily rate of such compensation shall be deemed to be the employee's daily rate of compensation for purposes of determining his daily benefit rate: And provided further, That if an employee's last service performed as an employee in the base year was casual or temporary work, performed while he was on furlough from other employment in which he engaged in the base year, a report of the employee's last rate of pay in the base year for such other employment may be used to determine his daily benefit rate. § 330.4 Information furnished to the Board about daily rate of compensation. Each employee applying for benefits, who is not otherwise entitled to the maximum daily benefit rate, shall be afforded an opportunity to furnish, on a form provided by the Board, information to show the daily rate of his compensation for the last employment in which he engaged for an employer in the base year. Arrangements shall be made for employers to furnish information to Board offices with respect to pay rates. Such arrangements may include, but need not be limited to, (a) arranging for unemployment claims agents or other employer officials to verify or correct, to the extent practicable, employees' pay rate reports before such reports are forwarded to the Board, (b) sending to the appropriate employers for verification or correction pay rate reports furnished by employees applying for benefits, and (c) arranging for employers to furnish information as to established rates of pay. [Board Order 62-39, 27 FR. 3737, Apr. 19, 1962] § 330.5 Use of daily rate of compensa tion in determining daily benefit rate. (a) Initial determination. If the daily benefit rate specified in section 2(a) of the Act for the amount of the employee's base year compensation is less than the maximum daily benefit rate, it shall be compared to 60 percent of the daily rate (up to $21.16) of his compensation for the last employment in which he engaged for an employer in the base year; and whichever is the greater shall be established as the employee's daily benefit rate for the benefit year. For this purpose, the office processing the employee's application for benefits may use the information furnished (1) on a verified or corrected pay rate report or (2) on an unverified and uncorrected pay rate report, provided there is information, including information supplied by employers, sufficient to give reasonable assurance of the correctness of a daily benefit rate based on such pay rate report. If the office processing the application for benefits of an employee whose pay rate report has not been verified or corrected, does not have information sufficient to give reasonable assurance of the correctness of a daily benefit rate based on the report, the daily benefit rate to which the employee's base year compensation entitles him shall be used pending verification or correction of the report. (b) Redetermination. When an unverified and uncorrected pay rate report has been verified or corrected, in a case in which the daily benefit rate was initially established on the basis of the employee's base year compensation, appropriate redetermination of the daily benefit rate shall be made, and such redetermined benefit rate shall be applied to all of the employee's days of unemployment or sickness in the benefit year. [Board Order 62-39, 27 F.R. 3737, Apr. 19. 1962, as amended by Board Order 68-72, 33 F.R. 11115, Aug. 6, 1968] PART 332-MILEAGE OR WORK RESTRICTIONS AND STAND-BY OR LAY-OVER RULES Sec. 332.1 332.2 Statutory provisions. General considerations. 332.3 Mileage and work restrictions. Restrictions in extra service. 332.4 332.5 332.6 332.7 Equivalent of full-time work. Standing by for and laying over between regularly assigned trips or tours of duty. Consideration of evidence. AUTHORITY: The provisions of this Part 332 issued under sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362. SOURCE: The provisions of this Part 332 contained in Board Order 59-95, 24 F.R. 3372, Apr. 30, 1959, unless otherwise noted. § 332.1 Statutory provisions. *** (1) a day of unemployment with respect to any employee, means a calendar day on which he is able to work and is available for work and with respect to which no remuneration is payable or accrues to him ✶✶✶ and (2) a "day of sickness", with respect to any employee, means a calendar day on which because of any physical, mental, psychological, or nervous injury, illness, sickness, or disease he is not able to work, or, with respect to a female employee, a calendar day on which, because of pregnancy, miscarriage, or the birth of a child, (1) she is unable to work or (11) working would be injurious to her health, and with respect to which no remuneration is payable or accrues to him * * * Provided, further, That any calendar day on which no remuneration is payable to or accrues to an employee solely because of the application to him of mileage or work restrictions agreed upon in schedule agreements between employers and employees or solely because he is standing by for or laying over between regularly assigned trips or tours of duty shall not be considered either a day of unemployment or a day of sickness. (Section 1(k), Railroad Unemployment Insurance Act) [Board Order 68-72, 33 FR. 11115, Aug. 6, 1968] § 332.2 General considerations. (a) Classes of service covered. Conditions under which remuneration with respect to a day may not be payable to or accrue to an employee solely because of the application to him of a mileage or work restriction exist in train-andengine service, yard service, dining-car service, sleeping-car service, and other Pullman-car service, and similar service, and express service on trains. In the determination of a claim for benefits of an employee in any other service, the employee's lack of remuneration with respect to any claimed day shall be presumed not to be due solely to the application of a mileage or work restriction. Conditions under which remuneration with respect to a day may not be payable to or accrue to an employee solely because he is standing by for or laying over between regularly assigned trips or tours of duty exist in train-andengine service, dining-car service, sleeping-car service, and other Pullman-car service, and similar service, and express service on trains. In the determination of a claim for benefits of an employee in any other service, the employee's lack of remuneration with respect to any claimed day shall be presumed not to be due solely to his standing by for or laying over between regularly assigned trips or tours of duty. (b) Sickness claims. An employee who, in connection with a claim to a day as a day of sickness, is held to be not able to work because of any physicaï, mental, psychological, or nervous injury, illness, sickness, or disease shall not be considered to lack remuneration with respect to such day solely because of the application to him of mileage or work restrictions or solely because he is standing by for or laying over between regularly assigned trips or tours of duty. Nor shall a female employee be considered to lack remuneration with respect to a day solely because of the application to her of mileage or work restrictions or solely because she is standing by for or laying over between regularly assigned trips or tours of duty if the day is one on which, because of pregnancy, miscarriage, or the birth of a child, (1) she is unable to work or (2) working would be injurious to her health. [Board Order 59-95, 24 FR. 3372, Apr. 30, 1959, as amended at 26 F.R. 8593, Sept. 14, 1961; Board Order 68-72, 33 F.R. 11115, Aug. 6, 1968] § 332.3 Mileage and work restrictions. Subject to the provisions of § 332.2(b), a day shall not be considered as a day of unemployment or as a day of sickness with respect to an employee if no remuneration is payable or accrues to him solely because of the application to him of a mileage or work restriction agreed upon in a written agreement between his employer and employees of his employer, or authorized pursuant to such written agreement. Provisions of agreements setting overtime or other premium rates of pay shall not be regarded as work restrictions. Mileage or work restrictions shall be considered as applicable to an employee with respect to any day on which he is out of service because of having reached or exceeded the maximum mileage, earnings, or hours of work prescribed in such an agreement, or authorized pursuant to such an agreement. Performance of other work by an employee while he is out of service because of having reached or exceeded the maximum mileage, earnings, or hours of work shall not serve to make the mileage or work restriction inapplicable to him. § 332.4 Restrictions in extra service. Mileage or work restrictions shall be considered to exist in rotating extra board, pool, or chain gang service when there is in effect an arrangement between the employer and its employees for increasing or decreasing the number of employees in such service according to the amount of work available. When the arrangement is such that an employee in extra board, pool, or chain gang service gets the equivalent of fulltime work, his lack of remuneration on any non-work day shall, subject to the provisions of § 332.2(b), be considered as due solely to the application to him of a mileage or work restriction. week, or month in his occupation or service. An employee shall be considered to have the equivalent of full-time work with respect to a fourteen-day registration period if the number of miles or hours' credit which he earned in such period equals fourteen-thirtieths of the number of miles or hours' credit constituting full-time work for a month, or twice the number of miles or hours' credit constituting full-time work for a week, in his occupation or service. § 332.6 Standing by for and laying over between regularly assigned trips or tours of duty. Subject to the provisions of § 332.2(b), a day shall not be considered as a day of unemployment or as a day of sickness with respect to an employee if no remuneration is payable or accrues to him solely because he is standing by for or laying over between regularly assigned trips or tours of duty. Only employees who hold regular assignments may be regarded as standing by for or laying over between regularly assigned trips or tours of duty. In determining whether an employee has a regular assignment, consideration shall be given to whether the trips or tours of duty have definite starting times; whether there are a definite number of trips or tours of duty, either periodically or for the whole duration of the assignment; and whether there is a definite route of each trip or definite duration of each tour of duty. An employee who is separated from a regular assignment shall not be regarded as standing by for or laying over between regularly assigned trips or tours of duty. An employee shall be deemed separated from a regular assignment when he is suspended or discharged from service or displaced by a senior employee or held out of service for investigation or discipline, or when his regular assignment is abolished or discontinued. § 332.7 Consideration of evidence. An employee shall be requested to furnish such information as to any mileage or work restrictions or as to lay-over or stand-by status as may be necessary for the determination of his claim. An employee's statement in connection with his claim that he was not out of service because of a lay-over or stand-by rule or because of a mileage or work restriction shall, in the absence of evidence to the contrary, be accepted as sufficient for a finding on that point. An em ployee's report of the number of miles or hours' credit earned in rotating extra board, pool, or chain gang service shall, in the absence of evidence to the contrary, be accepted as correct for purposes of determining whether he had the equivalent of full-time work during the period covered by his claim. When it appears clear that an employee in rotating extra board, pool, or chain gang service who fails to report the number of miles or hours' credit earned on days in the period covered by his claim form was not employed on enough days to have had the equivalent of full-time work in the period, no additional information as to mileage or work restrictions shall be deemed necessary for the determination of his claim. PART 335-SICKNESS BENEFITS AND MATERNITY BENEFITS Subpart A-Claiming Sickness Benefits Sec. Manner of claiming sickness bene- 335.103 Execution of statement of sickness and supplemental doctor's statement. 335.104 Filing statement of sickness and claim for sickness benefits. 335.105 Registration period. Subpart B-Claiming Maternity Benefits 335.201 Statutory provisions. 335.202 Manner of 335.203 benefits. claiming maternity Execution of statement of maternity sickness and supplement. 335.204 Filing statement of maternity sickness and supplement and claim for maternity benefits. 335.205 Registration period. Subpart C-Death of Employee 335.301 AUTHORITY: The provisions of this Part 335 issued under sec. 12, 52 Stat. 1107, as amended, secs. 1, 2, 5, 52 Stat. 1094, 1096, 1099, as amended; 45 U.S.C. 362, 351, 352, 355. SOURCE: The provisions of this Part 335 appear at 12 F.R. 4667, July 15, 1947, unless otherwise noted. Subpart A-Claiming Sickness in accordance with such regulations as the Board may prescribe, a statement of sickness is filled within such reasonable period, not in excess of ten days, as the Board may prescribe (section 1 (k) of the act). The term "statement of sickness" means a statement with respect to days of sickness of an employee *** executed in such manner and form by an individual duly authorized pursuant to section 12(1) to execute such statements, and filed as the Board may prescribe by regulations (section 1(2)(2) of the act). The Board shall provide a form or forms for statements of sickness and a procedure for the execution and filing thereof. Such forms and procedure shall be designed with a view to having such statements provide substantial evidence of the days of sickness of the employee and, in the case of maternity sickness, the expected date of birth and the actual date of birth of the child. Such statements may be executed by any doctor (authorized to practice in the State or foreign Jurisdiction in which he practices his profession) or any officer or supervisory employee of a hospital, clinic, group health association, or other similar organization, who is qualified under such regulations as the Board may prescribe to execute such statements. The Board shall issue regulations for the qualification of such persons to execute such statements. When so executed by any such person, or, in the discretion of the Board, by others designated by the Board individually or by groups, they may be accepted as initial proof of days of sickness sufficient to certify for payment a claim for benefits *** (section 12(1) of the act prior to amendment by Public Law 90-257, which deleted the words “and, in the case of maternity sickness, the expected date of birth and the actual date of birth of the child"). · The term "registration period" means also, with respect to any employee, the period which begins with the first day with respect to which a statement of sickness is filed in his behalf in accordance with such regulations as the Board may prescribe, or the first such day after the end of a registration period which will have begun with a day with respect to which a statement of sickness was filed in his behalf, and ends with the thirteenth day thereafter (section 1 (h) of the act). (See also section 2(c) of the act as quoted in § 325.1.) [12 F.R. 4667, July 15, 1947, as amended by Board Order 68-72, 33 F.R. 11115, Aug. 6, 1968] § 335.102 Manner of claiming sickness benefits. for sickness benefits, furnish the information required by such form, and mail the form, properly executed, to an office of the Board, together with a statement of sickness executed in accordance with the provisions of § 335.103 and (b) on forms sent him by the Board for making claims for sickness benefits, furnish the information required by such forms, and mail the forms, properly executed, to an office of the Board, together with any supplemental doctor's statements which may be required by the Board in connection therewith, executed in accordance with the provisions of § 335.103. If satisfied that an employee is so sick or injured that he cannot sign forms, the Board may accept forms executed by someone else in his behalf. § 335.103 Execution of statement of sickness and supplemental doctor's statement. A statement of sickness, and any supplemental doctor's statement which may be required by the Board, shall be executed by an individual who (a) is a doctor trained in medical and surgical diagnosis and licensed to practice his profession in the State or foreign jurisdiction in which the form is executed; or (b) is a chiropractor licensed to practice his profession in the State or foreign jurisdiction in which the form is executed; or (c) is the superintendent or other supervisory official of a hospital, clinic, group health association, or other similar organization, in which all examination and treatment are conducted under the supervision of licensed doctors trained in medical and surgical diagnosis, or under the supervision of licensed chiropractors, and in which medical records are maintained for each patient. Such individual shall execute the statement of sickness, and any supplemental doctor's statement which may be required, on the forms provided by the Board, and shall furnish the information required by such forms: Provided, however, That a statement of sickness or supplemental doctor's statement furnishing the required information may be executed on forms or official stationery provided by a hospital, clinic, group health association, or other similar organization for transcription of medical records of such organization. [Board Order 49-186, 14 F. R. 8182, June 11, 1949] |