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S.B. 83 Enrolled
AN ACT RELATING TO WORKFORCE SERVICES; CHANGING THE DEFINITION OF
WAGES, AS USED IN TITLE 35A, CHAPTER 4, UTAH CODE ANNOTATED, TO THE
DEFINITION IN SECTION 3306(b), INTERNAL REVENUE CODE OF 1986; ELIMINATING
THE REQUIREMENT FOR A RECORDED HEARING IN CASES OF FRAUD; AND MAKING
This act affects sections of Utah Code Annotated 1953 as follows:
35A-4-208, as last amended by Chapter 148, Laws of Utah 1997
35A-4-405, as renumbered and amended by Chapter 240, Laws of Utah 1996
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 35A-4-208 is amended to read:
35A-4-208. Wages defined.
modifications, subtractions, and adjustments provided in Subsections (2), (3), and (4).
(2) For purposes of Section 35A-4-303 , "wages" does not include that amount paid to an
individual by an employer with respect to employment subject to this chapter that is[
average fiscal year wage, rounded to the next higher multiple of $100, during the fiscal year prior
to the calendar year of the payment to the individual by the individual's employer on or after January
year has paid remuneration to an individual with respect to employment equal to the applicable
taxable wages as defined by this subsection, any remuneration with respect to employment paid to
the individual by a predecessor employer during the calendar year and prior to an acquisition is
considered to have been paid by a successor employer if:
(a) the successor employer during any calendar year acquires substantially all the property
used in a trade or business of a predecessor employer; and
(b) immediately after the acquisition employs in the successor employer's trade or business
an individual who immediately prior to the acquisition was employed in the trade or business of the
in another state, upon which contributions were required of the employer under the unemployment
compensation law of that state, shall be included as a part of the taxable wage base defined in this
(a) the amount of any payment, including any amount paid by an employer for insurance or
annuities, or into a fund, to provide for a payment, made to, or on behalf of, an employee or any of
the employee's dependents under a plan or system established by an employer that makes provision
(i) (A) the employer's employees generally;
(B) the employer's employees generally and their dependents;
(C) a class or classes of the employer's employees; or
(D) a class or classes of the employer's employees and their dependents; and
(ii) on account of:
(A) sickness or accident disability, but, in the case of payments made to an employee or any
of the employee's dependents Subsection (6)(a)(i) excludes from wages only payments that are
received under a workers' compensation law;
(B) medical or hospitalization expenses in connection with sickness or accident disability;
(b) any payment on account of sickness or accident disability, or medical or hospitalization
expenses in connection with sickness or accident disability, made by an employer to, or on behalf
of, an employee after the expiration of six calendar months following the last calendar month in
which the employee worked for the employer;
(c) the payment by an employing unit, without deduction from the remuneration of the
individual in its employ, of the tax imposed upon an individual in its employ under Section 3101,
Internal Revenue Code, with respect to domestic services performed in a private home of the
employer or for agricultural labor;
(d) any payment made to, or on behalf of, an employee or the employee's beneficiary:
(i) from or to a trust described in Section 401(a), Internal Revenue Code, that is exempt from
tax under Section 501(a), Internal Revenue Code, at the time of the payment, except for a payment
made to an employee of the trust as remuneration for services rendered as an employee and not as
a beneficiary of the trust;
(ii) under or to an annuity plan that at the time of the payment is a plan described in Section
403(a), Internal Revenue Code;
(iii) under a simplified employee pension, as defined in Section 408(k)(l), Internal Revenue
Code, other than any contributions described in Section 408(k)(6), Internal Revenue Code;
(iv) under or to an annuity contract described in Section 403(b), Internal Revenue Code,
except for a payment for the purchase of the contract that is made by reason of a salary reduction
agreement whether or not the agreement is evidenced by a written instrument;
(v) under or to an exempt governmental deferred compensation plan as defined in Section
3121(v)(3), Internal Revenue Code; or
(vi) to supplement pension benefits under a plan or trust described in Subsections (6)(d)(i)
through (v) to take into account a portion or all of the increase in the cost of living, as determined
by the Secretary of Labor, since retirement, but only if the supplemental payments are under a plan
that is treated as a welfare plan under Section 3(2)(B)(ii) of the Employee Income Security Act of
(e) any payment made to, or on behalf of, an employee or the employee's beneficiary under
a cafeteria plan within the meaning of Section 125, Internal Revenue Code, if the payment would
not be treated as wages under a cafeteria plan.
Section 2. Section 35A-4-405 is amended to read:
35A-4-405. Ineligibility for benefits.
An individual is ineligible for benefits or for purposes of establishing a waiting period:
(1) (a) For the week in which the claimant left work voluntarily without good cause, if so
found by the division, and for each week thereafter until the claimant has performed services in bona
fide, covered employment and earned wages for those services equal to at least six times the
claimant's weekly benefit amount.
(b) A claimant shall not be denied eligibility for benefits if the claimant leaves work under
circumstances of such a nature that it would be contrary to equity and good conscience to impose a
(c) The division shall, in cooperation with the employer, consider for the purposes of this
chapter the reasonableness of the claimant's actions, and the extent to which the actions evidence a
genuine continuing attachment to the labor market in reaching a determination of whether the
ineligibility of a claimant is contrary to equity and good conscience.
(d) Notwithstanding any other subsection of this section, a claimant who has left work
voluntarily to accompany, follow, or join the claimant's spouse to or in a new locality does so
without good cause for purposes of Subsection (1).
(2) (a) For the week in which the claimant was discharged for just cause or for an act or
omission in connection with employment, not constituting a crime, which is deliberate, willful, or
wanton and adverse to the employer's rightful interest, if so found by the division, and thereafter until
the claimant has earned an amount equal to at least six times the claimant's weekly benefit amount
in bona fide covered employment.
(b) For the week in which he was discharged for dishonesty constituting a crime or any
felony or class A misdemeanor in connection with his work as shown by the facts, together with his
admission, or as shown by his conviction of that crime in a court of competent jurisdiction and for
the 51 next following weeks. Wage credits shall be deleted from the claimant's base period, and are
not available for this or any subsequent claim for benefits.
(3) (a) If the division finds that the claimant has failed without good cause to properly apply
for available suitable work, to accept a referral to suitable work offered by the employment office,
or to accept suitable work offered by an employer or the employment office. The ineligibility
continues until the claimant has performed services in bona fide covered employment and earned
wages for the services in an amount equal to at least six times the claimant's weekly benefit amount.
(b) (i) A claimant shall not be denied eligibility for benefits for failure to apply, accept
referral, or accept available suitable work under circumstances of such a nature that it would be
contrary to equity and good conscience to impose a disqualification.
(ii) The division shall consider the purposes of this chapter, the reasonableness of the
claimant's actions, and the extent to which the actions evidence a genuine continuing attachment to
the labor market in reaching a determination of whether the ineligibility of a claimant is contrary to
equity and good conscience.
(c) In determining whether or not work is suitable for an individual, the division shall
(i) degree of risk involved to his health, safety, and morals;
(ii) individual's physical fitness and prior training;
(iii) individual's prior earnings and experience;
(iv) individual's length of unemployment;
(v) prospects for securing local work in his customary occupation;
(vi) wages for similar work in the locality; and
(vii) distance of the available work from his residence.
(d) Prior earnings shall be considered on the basis of all four quarters used in establishing
eligibility and not just the earnings from the most recent employer. The division shall be more prone
to find work as suitable the longer the claimant has been unemployed and the less likely the
prospects are to secure local work in his customary occupation.
(e) Notwithstanding any other provision of this chapter, no work is suitable, and benefits
shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new
work under any of the following conditions:
(i) if the position offered is vacant due directly to a strike, lockout, or other labor dispute;
(ii) if the wages, hours, or other conditions of the work offered are substantially less
favorable to the individual than those prevailing for similar work in the locality; or
(iii) if as a condition of being employed the individual would be required to join a company
union or to resign from or refrain from joining any bona fide labor organization.
(4) For any week in which the division finds that his unemployment is due to a stoppage of
work that exists because of a strike involving his grade, class, or group of workers at the factory or
establishment at which he is or was last employed.
(a) If the division finds that a strike has been fomented by a worker of any employer, none
of the workers of the grade, class, or group of workers of the individual who is found to be a party
to the plan, or agreement to foment a strike, shall be eligible for benefits. However, if the division
finds that the strike is caused by the failure or refusal of any employer to conform to the provisions
of any law of the state or of the United States pertaining to hours, wages, or other conditions of work,
the strike shall not render the workers ineligible for benefits.
(b) If the division finds that the employer, his agent or representative has conspired, planned,
or agreed with any of his workers, their agents or representatives to foment a strike, that strike shall
not render the workers ineligible for benefits.
(c) A worker may receive benefits if, subsequent to his unemployment because of a strike
as defined in Subsection (4), he has obtained employment and has been paid wages of not less than
the amount specified in Subsection 35A-4-401 (4) and has worked as specified in Subsection
35A-4-403 (1)(f). During the existence of the stoppage of work due to this strike the wages of the
worker used for the determination of his benefit rights shall not include any wages he earned from
the employer involved in the strike.
(5) (a) For each week with respect to which the claimant willfully made a false statement
or representation or knowingly failed to report a material fact to obtain any benefit under the
provisions of this chapter, and an additional 13 weeks for the first week the statement or
representation was made or fact withheld and six weeks for each week thereafter; the additional
weeks not to exceed 49 weeks.
(b) The additional period shall commence on the Sunday following the issuance of a
determination finding the claimant in violation of Subsection (5).
(c) Each individual found in violation of Subsection (5) shall repay to the division the
amount of benefits the claimant actually received and, as a civil penalty, an amount equal to the
benefits the claimant received by direct reason of his fraud. The penalty amount shall be regarded
as any other penalty under this chapter. These amounts shall be collectible by civil action or warrant
in the manner provided in Subsections 35A-4-305 (3) and (5).
(d) A claimant is ineligible for future benefits or waiting week credit, and any wage credits
earned by the claimant shall be unavailable for purposes of paying benefits, if any amount owed
under Subsection (5) remains unpaid.
(e) Determinations under Subsection (5) shall be [
appeals from other benefit determinations.
(6) For any week with respect to which or a part of which he has received or is seeking
unemployment benefits under an unemployment compensation law of another state or the United
States. If the appropriate agency of the other state or of the United States finally determines that he
is not entitled to those unemployment benefits, this disqualification does not apply.
(7) (a) For any week with respect to which he is receiving, has received, or is entitled to
receive remuneration in the form of:
(i) wages in lieu of notice, or a dismissal or separation payment; or
(ii) accrued vacation or terminal leave payment.
(b) If the remuneration is less than the benefits that would otherwise be due, he is entitled
to receive for that week, if otherwise eligible, benefits reduced as provided in Subsection
(8) (a) For any week in which the individual's benefits are based on service for an
educational institution in an instructional, research, or principal administrative capacity and that
begins during the period between two successive academic years, or during a similar period between
two regular terms, whether or not successive, or during a period of paid sabbatical leave provided
for in the individual's contract if the individual performs services in the first of those academic years
or terms and if there is a contract or reasonable assurance that the individual will perform services
in that capacity for an educational institution in the second of the academic years or terms.
(b) For any week in which the individual's benefits are based on service in any other capacity
for an educational institution, and that week begins during a period between two successive
academic years or terms if the individual performs those services in the first of the academic years
or terms and there is a reasonable assurance that the individual will perform the services in the
second of the academic years or terms. If compensation is denied to any individual under this
subsection and the individual was not offered an opportunity to perform the services for the
educational institution for the second of the academic years or terms, the individual shall be entitled
to a retroactive payment of compensation for each week for which the individual filed a timely claim
for compensation and for which compensation was denied solely by reason of this subsection.
(c) With respect to any services described in Subsection (8)(a) or (b), compensation payable
on the basis of those services shall be denied to an individual for any week that commences during
an established and customary vacation period or holiday recess if the individual performs the
services in the period immediately before the vacation period or holiday recess, and there is a
reasonable assurance that the individual will perform the services in the period immediately
following the vacation period or holiday recess.
(d) With respect to services described in Subsection (8)(a) or (b), compensation payable on
the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be denied to an
individual who performed those services in an educational institution while in the employ of an
educational service agency. For purposes of Subsection (8)(d), "educational service agency" means
a governmental agency or entity established and operated exclusively for the purpose of providing
the services described in Subsection (8)(a) or (b) to an educational institution.
(e) Benefits based on service in employment, defined in Subsections 35A-4-204 (2)(d) and
(e) are payable in the same amount, on the same terms and subject to the same conditions as
compensation payable on the basis of other service subject to this chapter.
(9) For any week that commences during the period between two successive sport seasons
or similar periods if the individual performed any services, substantially all of which consists of
participating in sports or athletic events or training or preparing to participate in the first of those
seasons or similar periods and there is a reasonable assurance that individual will perform those
services in the later of the seasons or similar periods.
(10) (a) For any week in which the benefits are based upon services performed by an alien,
unless the alien is an individual who has been lawfully admitted for permanent residence at the time
the services were performed, was lawfully present for purposes of performing the services or, was
permanently residing in the United States under color of law at the time the services were performed,
including an alien who is lawfully present in the United States as a result of the application of
Subsection 212 (d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5)(A).
(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 the individual are not payable because of his alien status shall be
made except upon a preponderance of the evidence.
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