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S.B. 83 Enrolled

                 

AMENDMENTS TO UNEMPLOYMENT

                 
INSURANCE

                 
2000 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Robert M. Muhlestein

                  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
                  TECHNICAL CHANGES.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      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.
                      (1) [(a)] As used in this chapter, "wages" means [all remuneration for personal services,
                  including commissions and bonuses and the cash value of all remuneration in any medium other
                  than cash.] wages as currently defined by Section 3306(b), Internal Revenue Code of 1986, with
                  modifications, subtractions, and adjustments provided in Subsections (2), (3), and (4).
                      [(b) Gratuities customarily received by an individual in the course of the individual's
                  employment from persons other than the individual's employing unit are treated as wages received
                  from the individual's employing unit.]
                      [(c) The reasonable cash value of remuneration in any medium other than cash and the
                  reasonable amount of gratuities shall be estimated and determined in accordance with rules
                  prescribed by the department.]
                      (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[: (a) in excess


                  of $3,000 paid to an individual by an employer with respect to employment subject to this chapter
                  during any calendar year prior to calendar year 1964; (b) in excess of $4,200 paid to an individual
                  by an employer with respect to employment subject to this chapter during calendar year 1964 or
                  during any other single calendar year after 1964 but prior to calendar year 1976; (c) in excess of
                  $6,000 paid to an individual by an employer with respect to employment subject to this chapter
                  during calendar year 1976; (d) in excess of 75% of the insured average annual wage, rounded to
                  the next higher multiple of $100, during the calendar year two years prior to the calendar year of the
                  payment to the individual by the individual's employer during calendar year 1985 and during any
                  single calendar year after 1985 but prior to January 1, 1988; or (e)] in excess of 75% of the insured
                  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
                  1, 1988.
                      [(3) For purposes of this section, all remuneration in excess of the amounts provided in
                  Subsection (2) for any calendar year are considered to be wages subject to contribution to the same
                  extent that the remuneration is defined as wages by the Federal Unemployment Tax Act, as
                  amended.]
                      [(4)] (3) For the purpose of determining whether the successor employer during the calendar
                  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
                  predecessor.
                      [(5)] (4) The remuneration paid to an individual by an employer with respect to employment
                  in another state, upon which contributions were required of the employer under the unemployment

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                  compensation law of that state, shall be included as a part of the taxable wage base defined in this
                  section.
                      [(6)] (5) As used in this chapter, "wages" does not include:
                      (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
                  for:
                      (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;
                  or
                      (C) death;
                      (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

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                  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
                  1974; or
                      (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

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                  circumstances of such a nature that it would be contrary to equity and good conscience to impose a
                  disqualification.
                      (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

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                  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
                  consider the:
                      (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

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                  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

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                  under Subsection (5) remains unpaid.
                      (e) Determinations under Subsection (5) shall be [made only upon a sworn written admission
                  of the claimant or after due notice and recorded hearing. If a claimant waives the recorded hearing,
                  a determination shall be made based upon all the facts that the division, exercising due diligence, has
                  obtained. Determinations by the division are] appealable in the manner provided by this chapter for
                  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
                  35A-4-401 (3).
                      (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

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                  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

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                  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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