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Introduced Version Senate Bill 310 History

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Senate Bill No. 310

(By Senator Kessler (Acting President), Unger and Klempa)

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[Introduced January 27, 2011; referred to the Committee on Labor; and then to the Committee on Finance.]

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A BILL to amend and reenact §21A-5-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §21A-6-1 and §21A-6-3 of said code, all relating to permitting certain part-time employees to be eligible for unemployment compensation benefits; permitting employees who have left employment due to being victims of domestic violence, sexual assault or stalking to be eligible for unemployment compensation benefits; permitting employees who have left employment to care for disabled or ill immediate family members to be eligible for unemployment compensation benefits; and permitting employees who have left employment due to the work-related transfer or relocation of a spouse to be eligible for unemployment compensation benefits.

Be it enacted by the Legislature of West Virginia:

    That §21A-5-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §21A-6-1 and §21A-6-3 of said code be amended and reenacted, all to read as follows:

ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.

 §21A-5-7. Joint and separate accounts.

    (1) The commissioner shall maintain a separate account for each employer, and shall credit his or her account with all contributions paid by him or her prior to July 1, 1961. On and after July 1, 1961, the commissioner shall maintain a separate account for each employer, and shall credit said employer's account with all contributions of such employer in excess of seven tenths of one percent of taxable wages; and on and after July 1, 1971, the commissioner shall maintain a separate account for each employer, and shall credit said employer's account with all contributions of such employer in excess of four tenths of one percent of taxable wages: Provided, That any adjustment made in any employer's account after the computation date shall not be used in the computation of the balance of an employer until the next following computation date: Provided, however, That nothing in this chapter shall be construed to grant an employer or individual in his or her service prior claims or rights to the amounts paid by him or her into the fund, either on his or her behalf or on behalf of such individuals. The account of any employer which had been inactive for a period of four consecutive calendar years shall be terminated for all purposes.

    (2) Benefits paid to an eligible individual for regular and extended total or partial unemployment beginning after the effective date of this article shall be charged to the account of the last employer with whom he or she has been employed as much as thirty working days, whether or not such days are consecutive: Provided, That no employer's account shall be charged with benefits paid to any individual who has been separated from a noncovered employing unit in which he or she was employed as much as thirty days, whether or not such days are consecutive: Provided, however, That no employer's account shall be charged with more than fifty percent of the benefits paid to an eligible individual as extended benefits under the provisions of article six-a of this chapter: Provided further, That state and local government employers shall be charged with one hundred percent of the benefits paid to an eligible individual as extended benefits. Beginning on July 1, 1984, benefits paid to an individual are to be charged to the accounts of his or her employers in the base period, the amount of such charges, chargeable to the account of each such employer, to be that portion of the total benefits paid such individual as the wages paid him or her by such employer in the base period are to the total wages paid him or her during his or her base period for insured work by all his or her employers in the base period. For the purposes of this section, no base period employer's account shall be charged for benefits paid under this chapter to a former employee, provided such base period employer furnishes separation information within fourteen days from the date the notice was mailed or delivered, which results in a disqualification under the provision set forth in subsection subdivision (1), section three, article six, or subsection subdivision (2), section three, article six of this chapter or would have resulted in a disqualification under such subsection except for a subsequent period of covered employment by another employing unit. No contributory base period employer's experience rating account may be charged for benefits paid under this chapter to an individual who left work voluntarily but was not disqualified pursuant to subdivision (1), section three, article six of this chapter. Further, no contributory base period employer's experience rating account shall be charged for benefits paid under this chapter to an individual who has been continuously employed by that employer on a part-time basis, if the part-time employment continues while the individual is separated from other employment and is otherwise eligible for benefits. One half of extended benefits paid to an individual after July 1, 1984, and subsequent years are to be charged to the accounts of his or her employers, except state and local government employers, in the base period in the same manner provided for the charging of regular benefits. Effective January 1, 1988, the entire state share of extended benefits paid to an individual shall be charged to the accounts of his or her base period employers. The provisions of this section permitting the noncharging of contributory employers' accounts have no application to benefit charges imposed upon reimbursable employers.

    (3) The commissioner shall, for each calendar year hereafter, classify employers in accordance with their actual experience in the payment of contributions on their own behalf and with respect to benefits charged against their accounts, with a view of fixing such contribution rates as will reflect such experiences. For the purpose of fixing such contribution rates for each calendar year, the books of the department shall be closed on July 31 of the preceding calendar year, and any contributions thereafter paid, as well as benefits thereafter paid with respect to compensable weeks ending on or before June 30 of the preceding calendar year, shall not be taken into account until the next annual date for fixing contribution rates: Provided, That if an employer has failed to furnish to the commissioner on or before July 31 of such preceding calendar year the wage information for all past periods necessary for the computation of the contribution rate, such employer's rate shall be, if it is immediately prior to such July 31, less than three and three-tenths percent, increased to three and three-tenths percent: Provided, however, That any payment made or any information necessary for the computation of a reduced rate furnished on or before the termination of an extension of time for such payment or reporting of such information granted pursuant to a regulation of the commissioner authorizing such extension, shall be taken into account for the purposes of fixing contribution rates: Provided further, That when the time for filing any report or making any payment required hereunder falls on Saturday, Sunday, or a legal holiday, the due date shall be deemed to be the next succeeding business day: And provided further, That whenever, through mistake or inadvertence, erroneous credits or charges are found to have been made to or against the reserved account of any employer, the rate shall be adjusted as of January 1 of the calendar year in which such mistake or inadvertence is discovered, but payments, made under any rate assigned prior to January 1 of such year, shall not be deemed to be erroneously collected.

    (4) The commissioner may prescribe regulations for the establishment, maintenance and dissolution of joint accounts by two or more employers, and shall, in accordance with such regulations and upon application by two or more employers to establish such an account, or to merge their several individual accounts in a joint account, maintain such joint account as if it constituted a single employer's account.

    (5) State and local government employers are hereby authorized to enter into joint accounts and to maintain such joint account or accounts as if it or they constituted a single employer's account or accounts.

    (6) Effective on and after July 1, 1981, if an employer has failed to furnish to the commissioner on or before August 31, 1980, and each year thereafter, with the exception of 1981, which due date shall be September 30, 1981, the wage information for all past periods necessary for the computation of the contribution rate, such employer's rate shall be, if it is immediately prior to July 1, 1981, less than seven and five-tenths percent, increased to seven and five-tenths percent.

ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.

§21A-6-1. Eligibility qualifications.

    An unemployed individual shall be eligible to receive benefits only if the commissioner finds that:

    (1) He or she or she has registered for work at and thereafter continues to report at an employment office in accordance with the regulations of the commissioner;

    (2) He or she or she has made a claim for benefits in accordance with the provisions of article seven of this chapter and has furnished his or her Social Security number, or numbers if he or she has more than one such number;

    (3) He or she or she is able to work and is available for full-time work for which he or she is fitted by prior training or experience that is full-time or, if the individual’s work from which he or she was separated was part-time, that is at least the number of hours that the individual worked for that employer in the month before the individual’s most recent separation from that employer, and is doing that which a reasonably prudent person in his or her circumstances would do in seeking work;

    (4) He or she or she has been totally or partially unemployed during his or her benefit year for a waiting period of one week prior to the week for which he or she claims benefits for total or partial unemployment;

    (5) He or she or she has within his or her base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her base period or, if he or she is not eligible under his or her base period, has within his or her alternative base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her alternative base period; and

    (6) He or she or she participates in reemployment services, such as job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the commissioner, unless the commissioner determines that:

    (a) The individual has completed such services; or

    (b) There is justifiable cause for the claimant's failure to participate in such services.

§21A-6-3. Disqualification for benefits.

    Upon the determination of the facts by the commissioner, an individual shall be 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.

    (A) For the purpose of this subdivision, an individual shall 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 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 individual for thirty working days or more, laid off such 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 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

    (B) For the purpose of this subdivision, an individual shall 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 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.

    (C) For the purpose of this subdivision, an individual may not be disqualified if the individual left his or her most recent work due to domestic violence by a family or household member, stalking or sexual assault by a person who is not a family or household member, if the domestic violence, stalking or sexual assault is verified by reasonable documentation, and if the domestic violence, stalking or sexual assault causes the individual to reasonably believe that the individual’s continuing employment would jeopardize the safety of the individual or an immediate family member. For the purposes of this paragraph:

    (i) The term “domestic violence” has the same meaning as it has in section two hundred two, article twenty-seven, chapter forty-eight of this code;

    (ii) The term “stalking” has the same meaning as it has in section nine-a, article two, chapter sixty-one of this code; and

    (iii) The term “sexual assault” includes sexual assault in the first, second and third degrees pursuant to sections three, four and five, article eight-b, chapter sixty-one of this code, sexual abuse in the first, second and third degrees pursuant to sections seven, eight and nine, article eight-b, chapter sixty-one of this code, and battery pursuant to section nine, article two, chapter sixty-one of this code if the battery was the result of “sexual contact” as defined in section one, article eight-b, chapter sixty-one of this code.

    (D) For the purposes of paragraph (C) of this subdivision reasonable documentation of domestic violence, stalking or sexual assault includes one or more of the following:

    (i) A court order of protection;

    (ii) An order of bail, bond or parole restricting contact by the alleged perpetrator with the alleged victim;

    (iii) A written certification by a licensed physician or a licensed physician’s assistant of medical findings consistent with domestic violence, stalking or sexual assault;

    (iv) A copy of a police report the allegations of which constitute domestic violence, stalking or sexual assault;

    (v) A notarized certification that one of the following has evaluated the individual’s statements and circumstances and based on that evaluation is providing services for domestic violence, stalking or sexual assault: A licensed clinical psychologist, licensed clinical social worker, certified social worker, licensed professional counselor, licensed marriage and family therapist, or a service provider employed by a licensed domestic violence program or by rape crisis center which meets the standards of the West Virginia Foundation for Rape Information and Services; or

    (vi) Documentation not specifically identified in this paragraph but having equivalent circumstantial guarantees of trustworthiness.

    (E) For the purposes of this subdivision, an individual may not be disqualified if the individual left his or her most recent work to care for an immediate family member with an illness or disability that is certified by a licensed physician and that necessitates the care of the immediate family member for a period of time longer than the employer will grant leave, paid or otherwise. For the purposes of this paragraph “immediate family member” includes a spouse, parent, child under eighteen years of age, adult child, grandchild, grandparent, step-child, parent-in-law, brother, sister, step-brother and step-sister.

    (F) For the purposes of this subdivision, an individual may not be disqualified if the individual left his or her most recent work to relocate in order to accompany the individual’s spouse:

    (i) To a place from which it is impractical for the individual to commute; or

    (ii) Due of a change in the location of the spouse’s employment.

    (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 week. Such disqualification shall carry 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 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 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 assault is committed at such 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 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 performing a safety sensitive positions duty 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, but 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 additional period as any offer of suitable work shall continue open for his or her acceptance. Such disqualification shall carry 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) (i) Was not participating, financing or directly interested in such dispute; and (2) (ii) 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 disqualification under this subdivision shall 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 stoppage of work continues longer than four weeks after the termination of the labor dispute which caused stoppage of work, there shall be 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 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 not be paid to any 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 individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).

    (8) (a) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services or was permanently residing in the United States under color of law at the time such 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 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 individual are not payable because of his or her alien status shall 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 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) For each week in which and for fifty-two weeks thereafter, beginning with the date of the decision, if the commissioner finds such individual who within twenty-four calendar months immediately preceding such 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 disqualification under this subdivision shall not preclude prosecution under section seven, article ten of this chapter.

 

 

 

    NOTE: The purpose of this bill is to permit certain part-time employees to be eligible for unemployment compensation benefits. The bill permits employees who have left employment due to being a victim of domestic violence, sexual assault or stalking to be eligible for unemployment compensation benefits. The bill permits employees who have left employment to care for disabled or ill immediate family members to be eligible for unemployment compensation benefits. The bill also permits employees who have left employment due to the transfer or relocation of a spouse to be eligible 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.

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