H. B. 2344
(By Delegates Caputo and Longstreth)
[Introduced January 11, 2012
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §21A-6-3 of the Code of West Virginia, 1931, as amended, relating to removing the receipt of an annuity, pension or other retirement pay as a disqualification for unemployment compensation benefits.
Be it enacted by the Legislature of West Virginia:
That §21A-6-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-3. Disqualification for benefits.
Upon the determination of the facts by the commissioner, an individual shall be is disqualified for benefits:
(1) For the week in which he or she left his or her most recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
For the purpose of this subdivision, an individual shall has not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such the individual leaves his or her most recent work with an employer and if he or she in fact, within a fourteen-day calendar period, does return to employment with the last preceding employer with whom he or she was previously employed within the past year prior to his or her return to workday, and which last preceding employer, after having previously employed such the individual for thirty working days or more, laid off such the individual because of lack of work, which layoff occasioned the payment of benefits under this chapter or could have occasioned the payment of benefits under this chapter had such the individual applied for such benefits. It is the intent of this paragraph to cause no disqualification for benefits for such an individual who complies with the foregoing set of requirements and conditions. Further, for the purpose of this subdivision, an individual shall has not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such the individual was compelled to leave his or her work for his or her own health-related reasons and notifies the employer prior to leaving the job or within two business days after leaving the job or as soon as practicable and presents written certification from a licensed physician within thirty days of leaving the job that his or her work aggravated, worsened or will worsen the individual's health problem.
(2) For the week in which he or she was discharged from his or her most recent work for misconduct and the six weeks immediately following such week; or for the week in which he or she was discharged from his or her last thirty-day employing unit for misconduct and the six weeks immediately following such that week. Such The disqualification shall carry carries a reduction in the maximum benefit amount equal to six times the individual's weekly benefit. However, if the claimant returns to work in covered employment for thirty days during his or her benefit year, whether or not such the days are consecutive, the maximum benefit amount shall be increased by the amount of the decrease imposed under the disqualification; except that:
If he or she were discharged from his or her most recent work for one of the following reasons, or if he or she were discharged from his or her last thirty days thirty-day employing unit for one of the following reasons: Gross misconduct consisting of willful destruction of his or her employer's property; assault upon the person of his or her employer or any employee of his or her employer if such the assault is committed at such the individual's place of employment or in the course of employment; reporting to work in an intoxicated condition or being intoxicated while at work; reporting to work under the influence of any controlled substance, as defined in chapter sixty-a of this code, without a valid prescription or being under the influence of any controlled substance, as defined in said that chapter, without a valid prescription while at work; adulterating or otherwise manipulating a sample or specimen in order to thwart a drug or alcohol test lawfully required of an employee; refusal to submit to random testing for alcohol or illegal controlled substances for employees in safety sensitive positions as defined in section two, article one-d, chapter twenty-one of this code; arson, theft, larceny, fraud or embezzlement in connection with his or her work; or any other gross misconduct, he or she shall be and remain disqualified for benefits until he or she has thereafter worked for at least thirty days in covered employment. Provided, That For the purpose of this subdivision, the words "any other gross misconduct" shall include includes, but is not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts.
(3) For the week in which he or she failed without good cause to apply for available, suitable work, accept suitable work when offered, or return to his or her customary self-employment when directed to do so by the commissioner, and for the four weeks which immediately follow for such the additional period as that any offer of suitable work shall continue continues open for his or her acceptance. Such The disqualification shall carry carries a reduction in the maximum benefit amount equal to four times the individual's weekly benefit amount.
(4) For a week in which his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he or she was last employed, unless the commissioner is satisfied that he or she: (1) Was not participating, financing or directly interested in such the dispute; and (2) did not belong to a grade or class of workers who were participating, financing or directly interested in the labor dispute which resulted in the stoppage of work. No A disqualification under this subdivision shall may not be imposed if the employees are required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality, or if employees are denied the right of collective bargaining under generally prevailing conditions, or if an employer shuts down his or her plant or operation or dismisses his or her employees in order to force wage reduction, changes in hours or working conditions. For the purpose of this subdivision if any a stoppage of work continues longer than four weeks after the termination of the labor dispute which caused stoppage of work, there shall be is a rebuttable presumption that part of the stoppage of work which exists after a period of four weeks after the termination of the labor dispute did not exist because of the labor dispute and, in that event, the burden shall be is upon the employer or other interested party to show otherwise.
(5) For a week with respect to which he or she is receiving or has received:
(a) Wages in lieu of notice;
(b) Compensation for temporary total disability under the workers' compensation law of any state or under a similar law of the United States; or
(c) Unemployment compensation benefits under the laws of the United States or any other state.
(6) For the week in which an individual has voluntarily quit employment to marry or to perform any marital, parental or family duty, or to attend to his or her personal business or affairs and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
(7) Benefits shall may not be paid to any an individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such the individual performed such the services in the first of such the seasons (or similar periods) and there is a reasonable assurance that such the individual will perform such the services in the later of such the seasons (or similar periods).
(8)(a) Benefits shall may not be paid on the basis of services performed by an alien unless such the alien is an individual who was lawfully admitted for permanent residence at the time such the services were performed, was lawfully present for purposes of performing such the services or was permanently residing in the United States under color of law at the time such the services were performed (including an alien who is lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act): Provided, That any modifications to the provisions of Section 3304(a)(14) of the federal Unemployment Tax Act as provided by Public Law 94-566 which specify other conditions or other effective date than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act shall be deemed are applicable under the provisions of this section;
(b) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits;
(c) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such the individual are not payable because of his or her alien status shall may be made except upon a preponderance of the evidence.
(9) For each week in which an individual is unemployed because, having voluntarily left employment to attend a school, college, university or other educational institution, he or she is attending such the school, college, university or other educational institution, or is awaiting entrance thereto or is awaiting the starting of a new term or session thereof, and until the individual returns to covered employment.
(10) For each week in which he or she is unemployed because of his or her request, or that of his or her duly authorized agent, for a vacation period at a specified time that would leave the employer no other alternative but to suspend operations.
(11) In the case of an individual who accepts an early retirement incentive package, unless he or she: (i) Establishes a well-grounded fear of imminent layoff supported by definitive objective facts involving fault on the part of the employer; and (ii) establishes that he or she would suffer a substantial loss by not accepting the early retirement incentive package.
(12) For each week with respect to which he or she is receiving or has received benefits under Title II of the Social Security Act or similar payments under any act of Congress, or remuneration in the form of an annuity, pension or other retirement pay from a base period employer or chargeable employer or from any trust or fund contributed to by a base period employer or chargeable employer or any combination of the above, the weekly benefit amount payable to such individual for such week shall be reduced (but not below zero) by the prorated weekly amount of said benefits, payments or remuneration: Provided, That if such amount of benefits is not a multiple of $1, it shall be computed to the next lowest multiple of $1: Provided, however, That there shall be no disqualification if in the individual's base period there are no wages which were paid by the base period employer or chargeable employer paying such remuneration, or by a fund into which the employer has paid during said base period: Provided further, That notwithstanding any other provision of this subdivision to the contrary, the weekly benefit amount payable to such individual for such week shall not be reduced by any retirement benefits he or she is receiving or has received under Title II of the Social Security Act or similar payments under any act of Congress. Claimant may be required to certify as to whether or not he or she is receiving or has been receiving remuneration in the form of an annuity, pension or other retirement pay from a base period employer or chargeable employer or from a trust fund contributed to by a base period employer or chargeable employer.
(13) (12) For each week in which and for fifty-two weeks thereafter, beginning with the date of the decision, if the commissioner finds such the individual who within twenty-four calendar months immediately preceding such the decision, has made a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or payment under this article. Provided, That A disqualification under this subdivision shall does not preclude prosecution under section seven, article ten of this chapter.
NOTE: The purpose of this bill is to remove the receipt of an annuity, pension or other retirement pay as a disqualification for unemployment compensation benefits.
Strike-throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.