The amount to determine should NOT include the unemployment. If I have $38K in earned income

[Observant1]

The AGI is used to qualify. The earned income (not including unemployment) is found on the table in pub 596. Your software calculation is incorrect.

[ThomasM125]

Although unemployment is not earned income, it does get added to your income to determine your total income that is used to calculate your earned income credit. So, it does affect the amount of your earned income credit.

This article may be helpful:

https://turbotax.intuit.com/tax-tips/unemployment/do-i-qualify-for-earned-income-credit-while-on-une...