Senate Bill No. 605
(By Senators Wooton, Ball, Bowman, Dittmar, Kessler, Oliverio,
Ross, Schoonover, Snyder, White, Buckalew and Scott)
____________
[Originating in the Committee on the Judiciary;
reported February 18, 1998.]
____________
A BILL 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 shall permit 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 shall be 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
Section 1603(c) of the federal Internal Revenue Code
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: by an individual receiving the
rehabilitation or remunerative work 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; and
(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 department of
welfare 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(20) (19)(B)(i) of
the Social Security Act, (B)(i), by the department of welfare
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 462(e) 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 department of
welfare 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 department of welfare 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 department of welfare 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, one thousand nine hundred ninety-
eight 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-six 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 shall be is invalid. Right to benefits
shall be 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, shall be are exempt from process for the collection of
a debt. The waiver of any exemption provided in this section shall
be is void:.
(b) Provided, That the The provisions of this section shall
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, his the individual's spouse or dependents, during a
period of unemployment. shall be exempt from the operation of the
above provision.
§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.
__________
(NOTE: This bill makes amendments to the Unemployment
Compensation Law, Chapter 21A of the Code:
Language is added to the exclusion of "employment" to clarify
that the exclusion provided for individuals receiving
rehabilitation or remunerative work applies only to those employees
of the facility that are receiving the rehabilitation or
remunerative work. This change is made in an attempt to satisfy
concerns of the United States Department of Labor over conformity
with federal requirements.
Language is also added to the exclusion of "employment" to
clarify that service performed by a bona fide partner of a
partnership for the partnership or by a person for his or her own
sole proprietorship is not considered employment for unemployment
compensation purposes. This change merely codifies the Bureau's current interpretation.
A citation to the Social Security Act is changed to reflect
the new citation for a definition of legal process in the section
requiring the intercept of unemployment benefits for child support.
The provision authorizing the expenditure of Reed Act funds is
changed to allow for the expenditure of funds after March of 1998.
Changes are also made to reflect that expenditures of Reed Act
funds for federal fiscal years 1999, 2000 and 2001 are limited to
the administration of the state's unemployment compensation
program.
It includes language that recognizes the Internal Revenue's
authority to levy against unemployment compensation benefits.
It also contains nonsubstantive technical changes to conform
with the Legislature's drafting manual.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)