H. B. 4639
(By Delegates Fleischauer, Guthrie,
Moore, Brown and Hatfield)
[Introduced February 22, 2010
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §21A-6-3 of the Code of West Virginia,
1931, as amended, relating to unemployment compensation
generally and providing for the payment of unemployment
compensation when a person misses work due to domestic
violence.
Be it enacted by the Legislature of West Virginia:
That §21A-6-3 of the Code of West Virginia, 1931, 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 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.
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 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
(a) 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.
(b) Domestic violence related reasons and the individual
presents verification that he or she is the victim of domestic
violence: Provided, That benefits payable under this provision
shall be paid from the fund provided under the provisions of
article eight of this chapter and are not chargeable to the
employer.
(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 safety
sensitive positions 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) Was not participating, financing or
directly interested in such 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
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 provide for the payment
of unemployment compensation when a person misses work due to
domestic violence. The bill provides that the employer is not
chargeable for benefits paid when the worker is unable to work due
to domestic violence but that the benefits are paid from the
General Unemployment Compensation Fund
.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.