Senate Bill No. 112
(By Senators Wagner, Bowman, Wiedebusch, Yoder and Minear)
____________
[Introduced January 23, 1996;
referred to the Committee on the Judiciary.]
____________
A BILL to amend and reenact section four, article five, chapter
twenty-one-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
eleven, article ten of said chapter; and to amend and
reenact section two, article two, chapter twenty-three of
said code, all relating to enforcement and collection of
employer obligations under employee benefit programs;
required payments; criminal penalties for failure to make
same; and use of information obtained by the commissioner to
collect required payments.
Be it enacted by the Legislature of West Virginia:
That section four, article five, chapter twenty-one-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section eleven, article
ten of said chapter be amended and reenacted; and that section
two, article two, chapter twenty-three of said code be amended and reenacted, all to read as follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.
§21A-5-4. Required payments; failure to make required payments;
criminal penalties.
(a) On and after January first, one thousand nine hundred
forty-one, an employer shall be liable for payments in respect to
wages paid for employment occurring during each year in which he
is subject to this chapter.
(b) Any person, firm, partnership, company, corporation or
association who, as an employer, is subject to the provisions of
this chapter, and who knowingly and willfully fails to make any
payment or file a report as required by the provisions of this
chapter within the time periods specified by law, is guilty of an
offense as follows:
(1) Any employer who knowingly and willfully fails to make
any payment or file a report within the time period specified by
law for two calendar quarters, which quarters need not be
consecutive, is guilty of a misdemeanor and:
(A) Upon a first conviction under this subdivision, shall be
fined not less than five hundred dollars nor more than one
thousand dollars;
(B) Upon a second conviction under this subdivision, shall
be fined not less than one thousand dollars nor more than five
thousand dollars, imprisoned for not longer than thirty days or both fined and imprisoned.
(2) Any employer who, having previously been twice convicted
of the offense specified in subdivision (1) of this subsection,
knowingly and willfully fails to make any payment or file a
report as required by the provisions of this chapter within the
time period specified by law for two calendar quarters, which
quarters need not be consecutive, is guilty of a felony, and,
upon conviction thereof, shall be fined not less than five
thousand dollars nor more than ten thousand dollars, imprisoned
in the penitentiary for not less than one year nor more than two
years or both fined and imprisoned.
(3) Any employer who knowingly and willfully fails to make
any payment or file a report within the time period specified by
law for four calendar quarters, which quarters need not be
consecutive, is guilty of a felony, and, upon conviction thereof,
shall be fined not less than five thousand dollars nor more than
twenty-five thousand dollars, imprisoned in the penitentiary for
not less than one year nor more than two years or both fined and
imprisoned.
(c) In charging a person with a second or subsequent offense
under the provisions of paragraph (B), subdivision (1),
subsection (b) of this section or under subdivision (2),
subsection (b) of this section, the warrant, indictment or
information must set forth the date and particulars of the
previous offense or offenses. No person may be convicted of a second or subsequent offense unless the conviction for the
previous offense has become final and unless a prior offense
occurred within the ten-year period next preceding the second or
subsequent offense.
ARTICLE 10. GENERAL PROVISIONS.
§21A-10-11. Requiring information; use of information; libel
and slander actions prohibited.
(a) The commissioner may require an employing unit to
provide sworn or unsworn reports concerning:
(1) The number of individuals in its employ.
(2) Individually their hours of labor.
(3) Individually the rate and amount of wages.
(4) Such other information as is reasonably connected with
the administration of this chapter.
(b) Information thus obtained shall not be published or be
open to public inspection so as to reveal the identity of the
employing unit or the individual.
(c) Notwithstanding the provisions of subsection (b) of this
section, the commissioner may provide information thus obtained
to the following governmental entities for purposes consistent
with state and federal laws:
(1) The United States department of agriculture;
(2) The state agency responsible for enforcement of the
medicaid program under Title XIX of the Social Security Act;
(3) The United States department of health and human services or any state or federal program operating and approved
under Title I, Title II, Title X, Title XIV or Title XVI of the
Social Security Act;
(4) Those agencies of state government responsible for
economic and community development; secondary, post-secondary and
vocational education; vocational rehabilitation, employment and
training, including, but not limited to, the administration of
the perkins act and the job training and partnership act;
(5) The tax division, but only for the purposes of
collection and enforcement;
(6) The division of labor for purposes of enforcing the wage
bond provisions of chapter twenty-one of this code;
(7) Any agency of this or any other state, or any federal
agency, charged with the administration of an unemployment
compensation law or the maintenance of a system of public
employment offices;
(8) Any claimant for benefits or any other interested party
to the extent necessary for the proper presentation or defense of
a claim; and
(9) The division of workers' compensation for purposes of
collection and enforcement: Provided, That the division of
workers' compensation shall provide similar information to the
other divisions of the bureau of employment programs.
(10) Any agency of the state, for the limited purpose of
intercepting, pursuant to section sixteen, article five of this chapter, any payment by or through the state to an employer who
is in default in payment of premiums under this chapter,
including interest thereon or penalties, for as many as two
calendar quarters, which quarters need not be consecutive, in an
amount not less than one hundred dollars. For this purpose,
disclosure of joint delinquency lists of employers in default
with respect to unemployment compensation premiums, workers'
compensation premiums, or both, which list may be in the form of
a computerized database to be accessed by the auditor, the
department of tax and revenue, the department of administration,
the division of highways or other appropriate state agency or
officer, is expressly authorized.
(d) The agencies or organizations which receive information
under subsection (c) shall agree that such information shall
remain confidential so as not to reveal the identity of the
employing unit or the individual consistent with the provisions
of this chapter.
(e) The commissioner may, before furnishing any information
permitted under this section, require that those who request the
information shall reimburse the division of employment security
for any cost associated therewith.
(f) The commissioner may refuse to provide any information
requested under this section if the agency or organization making
the request does not certify that it will comply with the state
and federal law protecting the confidentiality of such information.
A person who violates the provisions of this section shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not less than twenty dollars nor more than two hundred
dollars, or imprisoned not longer than ninety days, or both.
No action for slander or libel, either criminal or civil,
shall be predicated upon information furnished by any employer or
any employee to the commissioner in connection with the
administration of any of the provisions of this chapter.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-2. Commissioner to be furnished information by employers,
state tax commissioner and division of unemployment
compensation; secrecy of information; examination of
employers, etc.; violation a misdemeanor.
(a) Every employer shall furnish the commissioner, upon
request, all information required by him or her to carry out the
purposes of this chapter. The commissioner, or any person
employed by the commissioner for that purpose, shall have the
right to examine under oath any employer or officer, agent or
employee of any employer.
(b) Notwithstanding the provisions of any other statute,
specifically, but not exclusively, sections five and five-b,
article ten, chapter eleven of this code, and section eleven, article ten, chapter twenty-one-a of this code the commissioner
of the bureau of employment programs may receive the following
information:
(1) Upon written request to the state tax commissioner: The
names, addresses, places of business and other identifying
information of all businesses receiving a business franchise
registration certificate and the dates thereof; and the names and
social security numbers or other tax identification numbers of
the businesses and of the businesses' workers and employees, if
otherwise collected, and the quarterly and annual gross wages or
other compensation paid to the workers and employees of such
businesses reported pursuant to the requirement of withholding of
tax on income.
(2) Upon written application to the division of unemployment
compensation: In addition to the information that may be
released to the division of workers' compensation for the
purposes of this chapter under the provisions of chapter twenty-
one-a of this code, the names, addresses and other identifying
information of all employing units filing reports and information
pursuant to section eleven, article ten, chapter twenty-one-a of
this code as well as information contained in those reports
regarding the number and names, addresses, and social security
numbers of employees employed and the gross quarterly wages paid
by each employing unit to each identified employee.
(c) All information acquired by the division of workers' compensation pursuant to subsection (b) of this section shall be
used only for auditing premium payments and registering
businesses under the single point of registration program as
defined in section two, article one, chapter eleven of this code.
The division of workers' compensation, upon receiving the
business franchise registration certificate information made
available pursuant to subsection (b) of this section, shall
contact all businesses receiving a business franchise
registration certificate and provide all necessary forms to
register the business under the provisions of this article. Any
officer or employee of this state who uses the aforementioned
information in any manner other than the one stated herein or
elsewhere authorized in this code, or who divulges or makes known
in any manner any of the aforementioned information shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than one thousand dollars or imprisoned in the
county jail for not more than one year, or both, together with
cost of prosecution.
(d) Reasonable costs of compilation and production of any
information made available pursuant to subsection (b) of this
section shall be charged to the division of workers'
compensation.
(e) Information acquired by the commissioner pursuant to
subsection (b) of this section shall not be subject to disclosure
under the provisions of chapter twenty-nine-b of this code.
(f) Notwithstanding any other provision of this chapter to
the contrary, the commissioner may disclose to any agency of the
state, for the limited purpose of intercepting pursuant to
section five-a of this article, any payment by or through the
state to an employer who is in default in payment of the premium
tax imposed by this chapter, including interest thereon and
penalties, for as many as two calendar quarters, which quarters
need not be consecutive, in an amount not less than one hundred
dollars. For this purpose, disclosure of joint delinquency lists
of employers in default with respect to unemployment compensation
premiums, workers' compensation premiums or both, which list may
be in the form of a computerized database to be accessed by the
auditor, the department of tax and revenue, the department of
administration, the division of highways or other appropriate
state agency or officer, is expressly authorized.
NOTE: The purpose of this bill is to provide criminal
penalties for the knowing and willful failure to make required
payments or file reports for unemployment compensation when due
and to permit the Commissioner of the Bureau of Employment
Programs to provide information about employers to any state
agency for the purpose of intercepting any payment due that
employer from or through the state to be used as a set-off
against the employer's unemployment compensation or workers'
compensation debt if the debt amounts to one hundred dollars or
more and continues for two calendar quarters, which quarters need
not be consecutive.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.