H. B. 2873
(By Delegates Prunty (By Request),
Caputo
and Manchin)
[Introduced March 15, 2001; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section three, article six, chapter
twenty-one-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to disqualification
for unemployment compensation benefits; and
to the extent
permitted under federal law, preventing the reduction of
benefits due to the receipt of certain social security
benefits.
Be it enacted by the Legislature of West Virginia:
That section three, article six, chapter twenty-one-a of the
code of West Virginia, one thousand nine hundred thirty-one, 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 the individual 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 (1), an individual shall
not be deemed to have has not 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 work day, 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 the benefits. It is the intent of this paragraph
to cause no disqualification for benefits for such an the
individual who complies with the foregoing set of requirements and
conditions. Further, for the purpose of this subdivision, an
individual shall not be deemed to have has not 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
presents certification from a licensed physician that his or her
work aggravated, worsened, or will worsen the individual's health problem.
(2) For the week in which he the individual was discharged
from his or her most recent work for misconduct and the six weeks
immediately following such that 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 employing unit for one of the
following reasons: 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, or being under the
influence of any controlled substance while at work; 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 is and remains disqualified for benefits until she or he 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
the 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 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 (1) the individual 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 disqualification under this
subdivision shall may 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
the employer's plant or operation or dismisses his 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 is a
rebuttable presumption that part of the stoppage of work which
exists after said the period of four weeks after the termination of
said the labor dispute did not exist because of said the labor
dispute; and in such 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 the individual 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 the 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 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 in this
section 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) (a) 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 and/or
remuneration in the form of an annuity, pension or other retirement
pay from a base period and/or chargeable employer or from any trust
or fund contributed to by a base period and/or chargeable employer,
the weekly benefit amount payable to such the individual for such
the week shall be reduced, but not below zero, by the prorated
weekly amount of said the benefits, payments and/or remuneration:
Provided, That if such the amount of benefits is not a multiple of
one dollar, it shall be computed to the next lowest multiple of one
dollar: Provided however, That there shall be is no
disqualification if in the individual's base period there are no
wages which were paid by the base period and/or chargeable employer
paying such the remuneration, or by a fund into which the employer
has paid during said the base period. A 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 and/or chargeable employer or
from a trust fund contributed to by a base period and/or chargeable
employer.
(b) Notwithstanding paragraph (a) of this subdivision, and
only to the extent the United States secretary of labor, can
continue to approve West Virginia's unemployment compensation law,
pursuant to 26 U.S.C. § 3304, as amended, benefits may not be
reduced on account of the receipt of benefits under Title II of the
Social Security Act.
(12) For each week in which and for fifty-two weeks thereafter after that, 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
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 the extent permitted
under federal law, prevent the reduction of unemployment
compensation benefits due to the receipt of social security
retirement benefits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.