ENROLLED
Senate Bill No. 605
(By Senators Wooton, Ball, Bowman, Dittmar,
Kessler, Oliverio, Ross, Schoonover, Snyder,
White, Buckalew and Scott)
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[Passed March 13, 1998; in effect from passage.]
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AN ACT to amend and reenact section seventeen, article one-a,
chapter twenty-one-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact section sixteen, article six of said chapter; to amend
and reenact section nine, article nine of said chapter; and to
amend and reenact sections two and nineteen, article ten of
said chapter, all relating generally to unemployment
compensation; clarifying certain exclusions from the
definition of employment; changing references to federal
statutes; recognizing authority of certain federal levies
against benefits; allowing disclosure of unemployment
compensation information to child support agencies; and
continuing authority to expend Reed Act funds.
Be it enacted by the Legislature of West Virginia:
That section seventeen, article one-a, chapter twenty-one-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section sixteen, article
six of said chapter be amended and reenacted; that section nine,
article nine of said chapter be amended and reenacted; and that
sections two and nineteen, article ten of said chapter be amended
and reenacted, all to read as follows:
ARTICLE 1A. DEFINITIONS.
§21A-1A-17. Exclusions from employment.
The term "employment" does not include:
(1) Service performed in the employ of the United States or
any instrumentality of the United States exempt under the
constitution of the United States from the payments imposed by this
law, except that to the extent that the Congress of the United
States permits states to require any instrumentalities of the
United States to make payments into an unemployment fund under a
state unemployment compensation law, all of the provisions of this
law are applicable to the instrumentalities and to service
performed for the instrumentalities in the same manner, to the same
extent and on the same terms as to all other employers, employing
units, individuals and services: Provided, That if this state is
not certified for any year by the secretary of labor under
26 U.S.C. §3404, subsection (c), the payments required of the instrumentalities with respect to the year shall be refunded by the
commissioner from the fund in the same manner and within the same
period as is provided in section nineteen, article five of this
chapter, with respect to payments erroneously collected;
(2) Service performed with respect to which unemployment
compensation is payable under the Railroad Unemployment Insurance
Act and service with respect to which unemployment benefits are
payable under an unemployment compensation system for maritime
employees established by an act of Congress. The commissioner may
enter into agreements with the proper agency established under an
act of Congress to provide reciprocal treatment to individuals who,
after acquiring potential rights to unemployment compensation under
an act of Congress, or who have, after acquiring potential rights
to unemployment compensation under an act of Congress, acquired
rights to benefit under this chapter. Such agreement shall become
effective ten days after the publications which shall comply with
the general rules of the department;
(3) Service performed by an individual in agricultural labor,
except as provided in subdivision (12), section sixteen of this
article, the definition of "employment". For purposes of this
subdivision, the term "agricultural labor" includes all services
performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training and management of
livestock, bees, poultry and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of
a farm, in connection with the operation, management, conservation,
improvement or maintenance of the farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris
left by a hurricane, if the major part of the service is performed
on a farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section fifteen
(g) of the Agricultural Marketing Act, as amended, as codified in
12 U.S.C. §1141j, subsection (g), or in connection with the ginning
of cotton, or in connection with the operation or maintenance of
ditches, canals, reservoirs or waterways, not owned or operated for
profit, used exclusively for supplying and storing water for
farming purposes;
(D) (i) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing,
grading, storing or delivering to storage or to market or to a
carrier for transportation to market, in its unmanufactured state,
any agricultural or horticultural commodity; but only if the
operator produced more than one half of the commodity with respect
to which the service is performed; or (ii) in the employ of a group of operators of farms (or a cooperative organization of which the
operators are members) in the performance of service described in
subparagraph (i) of this paragraph, but only if the operators
produced more than one half of the commodity with respect to which
the service is performed; but the provisions of subparagraphs (i)
and (ii) of this paragraph are not applicable with respect to
service performed in connection with commercial canning or
commercial freezing or in connection with any agricultural or
horticultural commodity after its delivery to a terminal market for
distribution for consumption;
(E) On a farm operated for profit if the service is not in the
course of the employer's trade or business or is domestic service
in a private home of the employer. As used in this subdivision,
the term "farm" includes stock, dairy, poultry, fruit, fur-bearing
animals, truck farms, plantations, ranches, greenhouses, ranges and
nurseries, or other similar land areas or structures used primarily
for the raising of any agricultural or horticultural commodities;
(4) Domestic service in a private home except as provided in
subdivision (13), section sixteen of this article, the definition
of "employment";
(5) Service performed by an individual in the employ of his or
her son, daughter or spouse;
(6) Service performed by a child under the age of eighteen
years in the employ of his or her father or mother;
(7) Service as an officer or member of a crew of an American
vessel, performed on or in connection with the vessel, if the
operating office, from which the operations of the vessel operating
on navigable waters within or without the United States are
ordinarily and regularly supervised, managed, directed and
controlled, is without this state;
(8) Service performed by agents of mutual fund broker-dealers
or insurance companies, exclusive of industrial insurance agents,
or by agents of investment companies, who are compensated wholly on
a commission basis;
(9) Service performed: (A) In the employ of a church or
convention or association of churches, or an organization which is
operated primarily for religious purposes and which is operated,
supervised, controlled or principally supported by a church or
convention or association of churches; or (B) by a duly ordained,
commissioned or licensed minister of a church in the exercise of
his or her ministry or by a member of a religious order in the
exercise of duties required by the order; or (C) by an individual
receiving rehabilitation or remunerative work in a facility
conducted for the purpose of carrying out a program of either: (i)
Rehabilitation for individuals whose earning capacity is impaired
by age or physical or mental deficiency or injury; or (ii)
providing remunerative work for individuals who because of their
impaired physical or mental capacity cannot be readily absorbed in the competitive labor market: Provided, That this exemption does
not apply to services performed by individuals if they are not
receiving rehabilitation or remunerative work on account of their
impaired capacity; or (D) as part of an unemployment work-relief or
work-training program assisted or financed, in whole or in part, by
any federal agency or an agency of a state or political subdivision
thereof, by an individual receiving the work relief or work
training; or (E) by an inmate of a custodial or penal institution;
(10) Service performed in the employ of a school, college or
university, if the service is performed: (A) By a student who is
enrolled and is regularly attending classes at the school, college
or university; or (B) by the spouse of a student, if the spouse is
advised, at the time the spouse commences to perform the service,
that: (i) The employment of the spouse to perform the service is
provided under a program to provide financial assistance to the
student by the school, college or university; and (ii) the
employment will not be covered by any program of unemployment
insurance;
(11) Service performed by an individual who is enrolled at a
nonprofit or public educational institution which normally
maintains a regular faculty and curriculum and normally has a
regularly organized body of students in attendance at the place
where its educational activities are carried on as a student in a
full-time program, taken for credit at the institution, which combines academic instruction with work experience, if the service
is an integral part of the program, and the institution has so
certified to the employer, except that this subdivision does not
apply to service performed in a program established for or on
behalf of an employer or group of employers;
(12) Service performed in the employ of a hospital, if the
service is performed by a patient of the hospital, as defined in
this article;
(13) Service in the employ of a governmental entity referred
to in subdivision (9), section sixteen of this article, the
definition of "employment" if the service is performed by an
individual in the exercise of duties: (A) As an elected official;
(B) as a member of a legislative body, or a member of the
judiciary, of a state or political subdivision; (C) as a member of
the state national guard or air national guard; (D) as an employee
serving on a temporary basis in case of fire, storm, snow,
earthquake, flood or similar emergency; (E) in a position which,
under or pursuant to the laws of this state, is designated as: (i)
A major nontenured policymaking or advisory position; or (ii) a
policymaking or advisory position the performance of the duties of
which ordinarily does not require more than eight hours per week;
(14) Service performed by a bona fide partner of a partnership
for the partnership; and
(15) Service performed by a person for his or her own sole proprietorship.
Notwithstanding the foregoing exclusions from the definition
of "employment", services, except agricultural labor and domestic
service in a private home, are in employment if with respect to the
services a tax is required to be paid under any federal law
imposing a tax against which credit may be taken for contributions
required to be paid into a state unemployment compensation fund, or
which as a condition for full tax credit against the tax imposed by
the federal Unemployment Tax Act are required to be covered under
this chapter.
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-16. Child support intercept of unemployment benefits.
(a) An individual filing a new claim for unemployment
compensation shall, at the time of filing such claim, disclose
whether or not the individual owes child support obligations as
hereafter defined under subsection (g) of this section. If any
such individual discloses that he or she owes child support
obligations and is determined to be eligible for unemployment
compensation, the commissioner shall notify the child support
enforcement division of the department of health and human
resources that the individual has been determined to be eligible
for unemployment compensation.
(b) The commissioner shall deduct and withhold from any
unemployment compensation payable to an individual that owes such child support obligations as defined under subsection (g) of this
section:
(1) The amount specified by the individual to the commissioner
to be deducted and withheld under this subsection, if neither
subdivision (2) nor subdivision (3) is applicable;
(2) The amount, if any, determined pursuant to an agreement
submitted to the commissioner under section 454 (19)(B)(i) of the
Social Security Act, (B)(i), by the department of health and human
resources, unless subdivision (3) is applicable; or
(3) Any amount otherwise required to be deducted and withheld
from such unemployment compensation pursuant to legal process, as
that term is defined in section 459 (i)(5) of the Social Security
Act, as codified in 42 U.S.C. §659 (i)(5), properly served upon the
commissioner.
(c) Any amount deducted and withheld under subsection (b) of
this section shall be paid by the commissioner to the child support
enforcement division of the department of health and human
resources.
(d) Any amount deducted and withheld under subsection (b) of
this section shall for all purposes be treated as if it were paid
to the individual as unemployment compensation and paid by such
individual to the child support enforcement division of the
department of health and human resources in satisfaction of the
individual's child support obligations.
(e) For purposes of subsections (a) through (d) of this
section, the term "unemployment compensation" means any
compensation payable under this chapter, including amounts payable
by the commissioner pursuant to an agreement under any federal law
providing for compensation, assistance or allowances with respect
to unemployment.
(f) This section applies only if appropriate arrangements have
been made for reimbursement by the child support enforcement
division of the department of health and human resources for the
administrative costs incurred by the commissioner under this
section which are attributable to child support obligations being
enforced by the state or local child support enforcement agency.
(g) The term "child support obligations" means, for purposes
of these provisions, only obligations which are being enforced
pursuant to a plan described in section 454 of the Social Security
Act, as codified in 42 U.S.C. §654, which has been approved by the
secretary of health and human services under Part D of Title IV of
the Social Security Act, as codified in 42 U.S.C. §§651 through
669b.
ARTICLE 9. UNEMPLOYMENT COMPENSATION ADMINISTRATION FUND.
§21A-9-9. Reed Act appropriations.
(a) There is hereby appropriated out of funds made available
to this state under section 903 of the Social Security Act, as
amended, as codified in 42 U.S.C. §1103, the sum of four hundred thirty-four thousand five hundred seventy-four dollars and eighty- four cents, or so much thereof as may be necessary, to be used, for
the purpose of property improvements and/or automation enhancements
of the unemployment insurance or job service activities within the
bureau of employment programs.
(b) No part of the money hereby appropriated may be obligated
after the ninth day of March, two thousand.
(c) The amount obligated pursuant to this section shall not
exceed at any time the amount by which: (1) The aggregate of the
amounts transferred to the account of this state pursuant to
section 903 of the Social Security Act, as codified in 42 U.S.C.
§1103; exceeds (2) the aggregate of the amounts obligated for
administration and paid out for benefits and required by law to be
charged against the amounts transferred to the account of this
state.
(d) This section is effective on and after the ninth day of
March, one thousand nine hundred ninety-eight.
(e) Notwithstanding any other provision of this section,
moneys credited to the state under section 903 of the Social
Security Act, as codified in 42 U.S.C. §1103, with respect to
federal fiscal years 1999, 2000 and 2001 are authorized to be used
only for the administration of the state's unemployment
compensation program.
ARTICLE 10. GENERAL PROVISIONS.
§21A-10-2. Assignment of benefits invalid; exemption from process;
exception.
(a) An assignment, pledge or encumbrance of any benefit due or
payable under this chapter is invalid. Right to benefits is exempt
from levy, execution, attachment or other processes for the
collection of debt. Benefits received by an individual so long as
they are not mingled with other funds of the recipient, are exempt
from process for the collection of a debt. The waiver of any
exemption provided in this section is void.
(b) The provisions of subsection (a) of this section do not
apply to:
(1) The assignment or collection of child support payments
under the provisions of section sixteen, article six of this
chapter;
(2) A levy by the internal revenue service authorized by 26
U.S.C. §6331 subsection (h); or
(3) Collection of debts incurred for necessaries furnished to
an individual, the individual's spouse or dependents, during a
period of unemployment.
§21A-10-19. Disclosure of information to child support agencies.
(a) The bureau of employment programs shall disclose, upon
request, to officers or employees of any state or local child
support enforcement agency, and to employees of the federal
secretary of health and human services, any wage and benefit information with respect to individuals which is contained in its
records.
The term "state or local child support enforcement agency"
means any agency of a state or political subdivision thereof
operating pursuant to a plan described in section 453, 453a or 454
of the Social Security Act, as codified in 42 U.S.C. §§653, 653a
and 654 which has been approved by the secretary of health and
human services under Part D, Title IV of the Social Security Act,
as codified in 42 U.S.C. §§651 through 669b.
(b) The requesting agency shall agree that the information is
to be used only for the purpose of establishing and collecting
child support obligations from, and locating, individuals owing the
obligations which are being enforced pursuant to a plan described
in section 453, 453a or 454 of the Social Security Act, as codified
in 42 U.S.C. §§653, 653a and 654 respectively, which has been
approved by the secretary of health and human services under Part
D, Title IV of the Social Security Act, as codified in 42 U.S.C.
§§651 through 669b, or as otherwise authorized in 42 U.S.C. §653
(i)(1), (i)(3) and (j).
(c) The information may not be released unless the requesting
agency agrees to reimburse the costs involved for furnishing the
information.
(d) In addition to the requirements of this section, all other
requirements with respect to confidentiality of information obtained in the administration of this chapter and the sanctions
imposed on improper disclosure shall apply to the use of the
information by officers, and employees of child support enforcement
agencies. A state or local child support enforcement agency may
disclose to any agent of the agency that is under contract with the
agency to carry out the purposes described in subsection (b) of
this section, wage information that is disclosed to an officer or
employee of the agency under subsection (a) of this section. Any
agent of a state or local child support agency that receives wage
information under this paragraph shall comply with the safeguards
established to keep the information confidential and is subject to
the criminal provisions of subsection (g), section eleven of this
article.