H.B. 52

1

UNEMPLOYMENT INSURANCE AMENDMENTS
2 2001 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Richard M. Siddoway
5 This act modifies the Employment Security Act by amending provisions relating to the filing
6 of reports, access to records, and the determination of benefit eligibility. The act requires
7 that employers with over 250 employees file quarterly wage data on magnetic media or
8 electronically. The act corrects a reference to language authorizing the assessment of
9 penalties and interest. The act makes various changes to the provisions governing access to
10 Department of Workforce Services records gathered from employers. The act clarifies that
11 the determination of benefit eligibility is solely an agency function.
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 35A-4-305, as last amended by Chapter 100, Laws of Utah 1999
15 35A-4-309, as last amended by Chapter 129 and renumbered and amended by Chapter 240,
16 Laws of Utah 1996
17 35A-4-312, as last amended by Chapter 1, Laws of Utah 1998
18 35A-4-405, as last amended by Chapter 60, Laws of Utah 2000
19 Be it enacted by the Legislature of the state of Utah:
20 Section 1. Section 35A-4-305 is amended to read:
21 35A-4-305. Collection of contributions -- Unpaid contributions to bear interest.
22 (1) (a) Contributions unpaid on the date on which they are due and payable, as prescribed
23 by the division, shall bear interest at the rate of 1% per month from and after that date until
24 payment plus accrued interest is received by the division.
25 (b) (i) Contribution reports not made and filed by the date on which they are due as
26 prescribed by the division shall be subject to a penalty to be assessed and collected in the same
27 manner as contributions due under this section equal to 5% of the contribution due if the failure

28 to file on time was not more than 15 days, with an additional 5% for each additional 15 days or
29 fraction thereof during which the failure continued, but not to exceed 25% in the aggregate and not
30 less than $25 with respect to each reporting period.
31 (ii) If a report is filed after such time and it is shown to the satisfaction of the division or
32 its authorized representative that the failure to file was due to a reasonable cause and not to willful
33 neglect, no addition shall be made to the contribution.
34 (c) (i) If contributions are unpaid after ten days from the date of the mailing or personal
35 delivery by the division or its authorized representative, of a written demand for payment, there
36 shall attach to the contribution, to be assessed and collected in the same manner as contributions
37 due under this section, a penalty equal to 5% of the contribution due.
38 (ii) A penalty may not attach if within ten days after the mailing or personal delivery,
39 arrangements for payment have been made with the division, or its authorized representative, and
40 payment is made in accordance with those arrangements.
41 (d) The division shall assess as a penalty a service charge, in addition to any other penalties
42 that may apply, in an amount not to exceed the service charge imposed by Section 7-15-1 for
43 dishonored instruments if:
44 (i) any amount due the division for contributions, interest, other penalties or benefit
45 overpayments is paid by check, draft, order, or other instrument; and
46 (ii) the instrument is dishonored or not paid by the institution against which it is drawn.
47 (e) Except for benefit overpayments under Subsection 35A-4-405 (5), benefit overpayments,
48 contributions, interest, penalties, and assessed costs, uncollected three years after they become due,
49 may be charged as uncollectable and removed from the records of the division if:
50 (i) no assets belonging to the liable person and subject to attachment can be found; and
51 (ii) in the opinion of the division there is no likelihood of collection at a future date.
52 (f) Interest and penalties collected in accordance with this section shall be paid into the
53 Special Administrative Expense Fund.
54 (g) Action required for the collection of sums due under this chapter is subject to the
55 applicable limitations of actions under Title 78, Chapter 12, Limitation of Actions.
56 (2) (a) If an employer fails to file a report when prescribed by the division for the purpose
57 of determining the amount of the employer's contribution due under this chapter, or if the report
58 when filed is incorrect or insufficient or is not satisfactory to the division, the division may

59 determine the amount of wages paid for employment during the period or periods with respect to
60 which the reports were or should have been made and the amount of contribution due from the
61 employer on the basis of such information as it may be able to obtain.
62 (b) The division shall give written notice of the determination to the employer.
63 (c) The determination is considered correct unless:
64 (i) the employer, within ten days after mailing or personal delivery of notice of the
65 determination, applies to the division for a review of the determination as provided in Section
66 35A-4-508 ; or
67 (ii) unless the division or its authorized representative of its own motion reviews the
68 determination.
69 (d) The amount of contribution so determined shall be subject to penalties and interest as
70 provided in Subsection (1).
71 (3) (a) If, after due notice, any employer defaults in any payment of contributions, interest,
72 or penalties on the contributions, or any claimant defaults in any repayment of benefit
73 overpayments and penalties on the overpayments, the amount due shall be collectible by civil
74 action in the name of the division, and the employer adjudged in default shall pay the costs of the
75 action.
76 (b) Civil actions brought under this section to collect contributions, interest or penalties
77 from an employer, or benefit overpayments and penalties from a claimant shall be:
78 (i) heard by the court at the earliest possible date; and
79 (ii) entitled to preference upon the calendar of the court over all other civil actions except:
80 (A) petitions for judicial review under this chapter; and
81 (B) cases arising under the workers' compensation law of this state.
82 (c) (i) To collect contributions, interest or penalties, or benefit overpayments and penalties
83 due from employers or claimants located outside Utah the division may employ private collectors
84 providing debt collection services outside Utah. Accounts may be placed with private collectors
85 only after the employer or claimant has been given a final notice that the division intends to place
86 the account with a private collector for further collection action. The notice shall advise the
87 employer or claimant of the employer's or claimant's rights under this chapter and the rules
88 applicable of the department.
89 (ii) A private collector may receive as compensation up to, but no more than, 25% of the

90 lesser of the amount collected or the amount due, plus the costs and fees of any civil action or
91 post-judgment remedy instituted by the private collector with the approval of the division. The
92 employer or claimant shall be liable to pay the compensation of the collector, costs, and fees in
93 addition to the original amount due.
94 (iii) A private collector is subject to the federal Fair Debt Collection Practices Act, 15
95 U.S.C. Sec. 1692 et seq.
96 (iv) A civil action may not be maintained by any private collector without specific prior
97 written approval of the division. When division approval is given for civil action against an
98 employer or claimant, the division may cooperate with the private collector to the extent necessary
99 to effect the civil action.
100 (d) (i) Notwithstanding Section 35A-4-312 , the division may disclose the contribution,
101 interest, penalties or benefit overpayments and penalties, costs due, the name of the employer or
102 claimant, and the employer's or claimant's address and telephone number when any collection
103 matter is referred to a private collector under Subsection (3)(c).
104 (ii) A private collector is subject to the confidentiality requirements and penalty provisions
105 provided in Section 35A-4-312 and Subsection 35A-4-104 (4), except to the extent disclosure is
106 necessary in any civil action to enforce collection of the amounts due.
107 (e) An action taken by the division under this section may not be construed to be an
108 election to forego other collection procedures by the division.
109 (4) (a) In the event of any distribution of an employer's assets under an order of any court
110 under the laws of Utah, including any receivership, assignment for benefits of creditors,
111 adjudicated insolvency, composition, or similar proceedings, contributions then or thereafter due
112 shall be paid in full prior to all other claims except taxes and claims for wages of not more than
113 $400 to each claimant, earned within five months of the commencement of the proceeding.
114 (b) If an employer commences a proceeding in the Federal Bankruptcy Court under any
115 chapter of the Bankruptcy Reform Act of 1978, 11 U.S.C. 101 et seq., as amended, contributions,
116 interest, and penalties then or thereafter due shall be entitled to the priority provided for taxes,
117 interest, and penalties in the Bankruptcy Reform Act of 1978.
118 (5) (a) In addition and as an alternative to any other remedy provided by this chapter and
119 provided that no appeal or other proceeding for review provided by this chapter is then pending
120 and the time for taking it has expired, the division may issue a warrant in duplicate, under its

121 official seal, directed to the sheriff of any county of the state, commanding the sheriff to levy upon
122 and sell the real and personal property of a delinquent employer or claimant found within the
123 sheriff's county for the payment of the contributions due thereon, with the added penalties, interest,
124 or benefit overpayment and penalties, and costs, and to return the warrant to the division and pay
125 into the fund the money collected by virtue of the warrant by a time to be therein specified, not
126 more than 60 days from the date of the warrant.
127 (b) Immediately upon receipt of the warrant in duplicate, the sheriff shall file the duplicate
128 with the clerk of the district court in the sheriff's county. The clerk shall enter in the judgment
129 docket, in the column for judgment debtors, the name of the delinquent employer or claimant
130 mentioned in the warrant, and in appropriate columns the amount of the contribution, penalties,
131 interest, or benefit overpayment and penalties, and costs, for which the warrant is issued and the
132 date when the duplicate is filed.
133 (c) The amount of the warrant so docketed shall:
134 (i) have the force and effect of an execution against all personal property of the delinquent
135 employer; and
136 (ii) become a lien upon the real property of the delinquent employer or claimant in the
137 same manner and to the same extent as a judgment duly rendered by any district court and
138 docketed in the office of the clerk.
139 (d) After docketing, the sheriff shall:
140 (i) proceed in the same manner as is prescribed by law with respect to execution issued
141 against property upon judgments of a court of record; and
142 (ii) be entitled to the same fees for the sheriff's services in executing the warrant, to be
143 collected in the same manner.
144 (6) (a) Contributions imposed by this chapter are a lien upon the property of any employer
145 liable for the contribution required to be collected under this section who shall sell out the
146 employer's business or stock of goods or shall quit business, if the employer fails to make a final
147 report and payment on the date subsequent to the date of selling or quitting business on which they
148 are due and payable as prescribed by rule.
149 (b) An employer's successor, successors, or assigns, if any, shall be required to withhold
150 sufficient of the purchase money to cover the amount of the contributions and interest or penalties
151 due and payable until such time as the former owner shall produce a receipt from the division

152 showing that they have been paid or a certificate stating that no amount is due. If the purchaser
153 of a business or stock of goods fails to withhold sufficient purchase money, the purchaser shall be
154 personally liable for the payment of the amount of the contributions required to be paid by the
155 former owner, interest and penalties accrued and unpaid by the former owner, owners, or assignors.
156 (7) (a) If any employer is delinquent in the payment of any contribution, the division may
157 give notice of the amount of the delinquency by registered mail to all persons having in their
158 possession or under their control, any credits or other personal property belonging to the employer,
159 or owing any debts to the employer at the time of the receipt by them of the notice.
160 (b) Any persons notified under Subsection (7)(a) shall neither transfer nor make any other
161 disposition of the credits, other personal property, or debts until:
162 (i) the division has consented to a transfer or disposition; or
163 (ii) 20 days after the receipt of the notice.
164 (c) All persons notified under Subsection (7)(a) shall, within five days after receipt of the
165 notice, advise the division of credits, other personal property, or other debts in their possession,
166 under their control or owing by them, as the case may be.
167 (8) (a) Each employer shall furnish the division necessary information for the proper
168 administration of this chapter and shall include wage information for each employee, for each
169 calendar quarter beginning October 1, 1984. The information shall be furnished at a time, in the
170 form, and to those individuals as the department may by rule require.
171 (b) Each employer shall furnish each individual worker who is separated that information
172 as the department may by rule require, and shall furnish within 48 hours of the receipt of a request
173 from the division a report of the earnings of any individual during the individual's base-period.
174 The report shall be on a form prescribed by the division and contain all information prescribed by
175 the division.
176 (c) For each failure by an employer to conform to this Subsection (8) the division shall,
177 unless good cause is shown to the satisfaction of the division for the failure, assess a $50 penalty
178 to be collected in the same manner as contributions due under this chapter.
179 (d) The division shall prescribe rules providing standards for determining which
180 contribution reports must be filed on magnetic media or in other machine-readable form. In
181 prescribing these rules, the division:
182 (i) shall not require any employer to file contribution reports on magnetic media unless that

183 employer is required to file wage data on at least 250 employees during any calender quarter;
184 (ii) shall take into account, among other relevant factors, the ability of the employer to
185 comply at reasonable cost with the requirements of the rules; and
186 (iii) may require an employer to post a bond for failure to comply with the rules required
187 by this Subsection (8)(d).
188 (9) If any person liable to pay any contribution or benefit overpayment imposed by this
189 chapter neglects or refuses to pay the same after demand, the amount, including any interest,
190 additional amount, addition to contributions, or assessable penalty, together with any additional
191 accruable costs, shall be a lien in favor of the division upon all property and rights to property,
192 whether real or personal belonging to the person.
193 (10) (a) The lien imposed by Subsection (9) arises at the time the assessment, as defined
194 in the department rules, is made and continues until the liability for the amount so assessed, or a
195 judgment against the taxpayer arising out of the liability, is satisfied.
196 (b) The lien imposed by Subsection (9) is not valid as against any purchaser, holder of a
197 security interest, mechanics lien holder, or judgment lien creditor until a warrant which meets the
198 requirements of Subsection (5) has been filed with the clerk of the district court. For the purposes
199 of Subsection (10)(b):
200 (i) "Judgment lien creditor" means a person who obtains a valid judgment of a court of
201 record for recovery of specific property or a sum certain of money, and who in the case of a
202 recovery of money, has a perfected lien under the judgment on the property involved. A judgment
203 lien does not include inchoate liens such as attachment or garnishment liens until they ripen into
204 a judgment. A judgment lien does not include the determination or assessment of a quasi-judicial
205 authority, such as a state or federal taxing authority.
206 (ii) "Mechanics lien holder" means any person who has a lien on real property, or on the
207 proceeds of a contract relating to real property, for services, labor, or materials furnished in
208 connection with the construction or improvement of the property. A person has a lien on the
209 earliest date the lien becomes valid against subsequent purchasers without actual notice, but not
210 before the person begins to furnish the services, labor, or materials.
211 (iii) "Person" means:
212 (A) an individual;
213 (B) a trust;

214 (C) an estate;
215 (D) a partnership;
216 (E) an association;
217 (F) a company;
218 (G) a limited liability company;
219 (H) a limited liability partnership; or
220 (I) a corporation.
221 (iv) "Purchaser" means a person who, for adequate and full consideration in money or
222 money's worth, acquires an interest, other than a lien or security interest, in property which is valid
223 under state law against subsequent purchasers without actual notice.
224 (v) "Security interest" means any interest in property acquired by contract for the purpose
225 of securing payment or performance of an obligation or indemnifying against loss or liability. A
226 security interest exists at any time:
227 (A) the property is in existence and the interest has become protected under the law against
228 a subsequent judgment lien arising out of an unsecured obligation; and
229 (B) to the extent that, at that time, the holder has parted with money or money's worth.
230 Section 2. Section 35A-4-309 is amended to read:
231 35A-4-309. Nonprofit organizations -- Contributions -- Payments in lieu of
232 contributions.
233 (1) Notwithstanding any other provisions of this chapter for payments by employers,
234 benefits paid to employees of nonprofit organizations, as described in Section 501(c)(3) of the
235 Internal Revenue Code, 26 U.S.C. 501(c)(3), that is exempt from income tax under Section 501(a),
236 shall be financed in accordance with the following provisions:
237 (a) Any nonprofit organization which is, or becomes, subject to this chapter on or after
238 January 1, 1972, shall pay contributions under the provisions of Section 35A-4-303 , unless it elects
239 in accordance with Subsection (1) to pay to the division for the unemployment fund an amount
240 equal to the amount of regular benefits and of 1/2 of the extended benefits paid that is attributable
241 to service in the employ of such nonprofit organization, to individuals for weeks of unemployment
242 that begin during the effective period of this election.
243 (b) Any nonprofit organization that is or becomes subject to this chapter on or after
244 January 1, 1972, may elect to become liable for payments in lieu of contributions for a period of

245 not less than one contribution year beginning with the date on which the organization becomes
246 subject to this chapter. The nonprofit organization shall file a written notice of its election with
247 the division not later than 30 days immediately following the date that the division gives notice
248 to the organization that it is subject to this chapter.
249 (c) Any nonprofit organization that makes an election in accordance with Subsection (1)(b)
250 shall continue to be liable for payments in lieu of contributions until it files with the division a
251 written notice terminating its election, not later than 30 days prior to the beginning of the
252 contribution year for which this termination shall first be effective.
253 (d) Any nonprofit organization that has been paying contributions under this chapter for
254 a period subsequent to January 1, 1972, may change to a reimbursable basis by filing with the
255 division, no later than 30 days prior to the beginning of any contribution year, a written notice of
256 election to become liable for payments in lieu of contributions. This election is not terminable by
257 the organization for that year or the next year.
258 (e) The division may, for good cause, extend the period within which a notice of election
259 or a notice of termination must be filed and may permit an election to be retroactive but not with
260 respect to benefits paid prior to January 1, 1970.
261 (f) The division, in accordance with department rules, shall notify each nonprofit
262 organization of any determination that the division may make of the organization's status as an
263 employer, of the effective date of any election that it makes, and of any termination of this election.
264 These determinations shall be subject to reconsideration, appeal, and review in accordance with
265 the provisions of Section 35A-4-508 .
266 (2) Payments in lieu of contributions shall be made in accordance with the provisions of
267 Subsection (2).
268 (a) At the end of each calendar month, or at the end of any other period as determined by
269 the division, the division shall bill each nonprofit organization or group of such organizations that
270 has elected to make payments in lieu of contributions for an amount equal to the full amount of
271 regular benefits plus 1/2 of the amount of extended benefits paid during this month or other
272 prescribed period that is attributable to service in the employ of the organization.
273 (b) (i) Every nonprofit organization that has elected payments in lieu of contributions may
274 request permission to make payments under one of the methods provided in Subsection (2)(b).
275 The method selected becomes effective upon approval by the division. At the end of each calendar

276 month, or at the end of such other period as determined by the division, the division shall bill each
277 organization for an amount representing the organization's choice of the following:
278 (A) for 1972, 0.1% of its total payroll for 1971;
279 (B) for years after 1972, the percentage of its total payroll for the immediately preceding
280 calendar year as determined by the division, based upon the average benefit costs attributable to
281 service in the employ of nonprofit organizations during the preceding calendar year; or
282 (C) for any organization that did not pay wages throughout the four calendar quarters of
283 the preceding calendar year, the percentage of its payroll during the year as determined by the
284 division.
285 (ii) At the end of each contribution year, the division may modify the monthly or other
286 period's percentage of payroll thereafter payable by the nonprofit organization in order to minimize
287 excess or insufficient payments.
288 (iii) At the end of each contribution year, the division shall determine whether the total of
289 payments for the year made by a nonprofit organization is less than, or in excess of, the total
290 amount of regular benefits plus 1/2 of the amount of extended benefits paid to individuals during
291 the contribution year based on wages attributable to service in the employ of the organization.
292 Each nonprofit organization whose total payments for the year are less than the amount so
293 determined shall be liable for payment of the unpaid balance to the fund in accordance with
294 Subsection (2)(c). If the total payments exceed the amount so determined for the contribution year,
295 all or a part of the excess may, at the discretion of the division, be refunded from the fund or
296 retained in the fund as part of the payments that may be required for the next contribution year.
297 (c) Payment of any bill rendered under Subsection (2)(a) or (2)(b) shall be made no later
298 than 30 days after the bill was mailed to the last-known address of the nonprofit organization or
299 was otherwise delivered to it, unless there has been an application for review and redetermination
300 in accordance with Subsection (2)(e).
301 (d) Payments made by any nonprofit organization under the provisions of Subsection (2)
302 shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in
303 the employ of the organization.
304 (e) (i) The amount due specified in any bill from the division shall be conclusive on the
305 organization unless, not later than 15 days after the bill was mailed to its last-known address or
306 otherwise delivered to it, the organization files an application for redetermination by the division

307 or an appeal to the Workforce Appeals Board, setting forth the grounds for the application or
308 appeal.
309 (ii) The division shall promptly review and reconsider the amount due specified in the bill
310 and shall thereafter issue a redetermination in any case in which the application for redetermination
311 has been filed.
312 (iii) Any redetermination shall be conclusive on the organization unless, no later than 15
313 days after the redetermination was mailed to its last known address or otherwise delivered to it,
314 the organization files an appeal to a Workforce Appeals Board in accordance with Section
315 35A-4-508 and Chapter 1, Part 3, Adjudicative Proceedings, setting forth the grounds for the
316 appeal.
317 (iv) Proceedings on appeal to the Workforce Appeals Board from the amount of a bill
318 rendered under Subsection (2) or a redetermination of the amount shall be in accordance with
319 Section 35A-4-508 .
320 (f) Past due payments of amounts in lieu of contributions shall be subject to the same
321 interest and penalties that, under Subsection 35A-4-305 (1)[(a)], attach to past due contributions.
322 (3) If any nonprofit organization is delinquent in making payments in lieu of contributions
323 as required under Subsection (2), the division may terminate the organization's election to make
324 payment in lieu of contributions as of the beginning of the next contribution year, and this
325 termination shall be effective for that and the next contribution year.
326 (4) In the discretion of the division, any nonprofit organization that elects to become liable
327 for payments in lieu of contributions shall be required, within 30 days after the effective date of
328 its election, to deposit money with the division. The amount of the deposit shall be determined
329 in accordance with the provisions of Subsection (4).
330 (a) The amount of the deposit required by Subsection (4) shall be equal to 1% of the
331 organization's total wages paid for employment as defined in Section 35A-4-204 for the four
332 calendar quarters immediately preceding the effective date of the election, or the biennial
333 anniversary of the effective date of election, whichever date shall be most recent and applicable.
334 If the nonprofit organization did not pay wages in each of these four calendar quarters, the amount
335 of the deposit shall be as determined by the division.
336 (b) (i) Any deposit of money in accordance with Subsection (4) shall be retained by the
337 division in an escrow account until liability under the election is terminated, at which time it shall

338 be returned to the organization, less any deductions as provided in Subsection (4).
339 (ii) The division may deduct from the money deposited under Subsection (4) by a
340 nonprofit organization to the extent necessary to satisfy any due and unpaid payments in lieu of
341 contributions and any applicable interest and penalties provided for in Subsection (2)(f).
342 (iii) The division shall require the organization within 30 days following any deduction
343 from a money deposit under the provisions of Subsection (4) to deposit sufficient additional money
344 to make whole the organization's deposit at the prior level.
345 (iv) The division may, at any time, review the adequacy of the deposit made by any
346 organization. If, as a result of this review, the division determines that an adjustment is necessary,
347 it shall require the organization to make additional deposit within 30 days of written notice of the
348 division's determination or shall return to it any portion of the deposit the division no longer
349 considers necessary, as [deemed] considered appropriate.
350 (c) If any nonprofit organization fails to make a deposit, or to increase or make whole the
351 amount of a previously made deposit, as provided under Subsection (4), the division may terminate
352 the organization's election to make payments in lieu of contributions.
353 (d) (i) Termination under Subsection (4)(c) shall continue for not less than the
354 four-consecutive-calendar-quarter period beginning with the quarter in which the termination
355 becomes effective.
356 (ii) The division may extend for good cause the applicable filing, deposit, or adjustment
357 period by not more than 60 days.
358 (5) Each employer liable for payments in lieu of contributions shall pay to the division for
359 the fund the amount of regular benefits plus the amount of 1/2 of extended benefits paid that are
360 attributable to service in the employ of the employer. If benefits paid to an individual are based
361 on wages paid by more than one employer and one or more of these employers are liable for
362 payments in lieu of contributions, the amount payable to the fund by each employer liable for the
363 payments shall be determined in accordance with the provisions of Subsection (5)(a) or (b).
364 (a) If benefits paid to an individual are based on wages paid by one or more employers
365 who are liable for payments in lieu of contributions and on wages paid by one or more employers
366 who are liable for contributions, the amount of benefits payable by each employer that is liable for
367 payments in lieu of contributions shall be an amount that bears the same ratio to the total benefits
368 paid to the individual as the total base-period wages paid to the individual by such employer bear

369 to the total base-period wages paid to the individual by all of the individual's base-period
370 employers.
371 (b) If benefits paid to an individual are based on wages paid by two or more employers
372 who are liable for payments in lieu of contributions, the amount of benefits payable by each such
373 employer shall be an amount which bears the same ratio to the total benefits paid to the individual
374 as the total base-period wages paid to the individual by the employer bear to the total base-period
375 wages paid to the individual by all of the individual's base-period employers.
376 (6) (a) Two or more employers who have become liable for payments in lieu of
377 contributions, in accordance with the provisions of this section and Subsection 35A-4-204 (2)(d),
378 may file a joint application to the division for the establishment of a group account for the purpose
379 of sharing the cost of benefits paid that are attributable to service in the employ of these employers.
380 Each application shall identify and authorize a group representative to act as the group's agent for
381 the purpose of this Subsection (6).
382 (b) Upon approval of the application, the division shall establish a group account for these
383 employers effective as of the beginning of the calendar quarter in which it receives the application
384 and shall notify the group's representative of the effective date of the account. This account shall
385 remain in effect for not less than two contribution years and thereafter until terminated at the
386 discretion of the division or upon application by the group.
387 (c) Upon establishment of the account, each member of the group shall be liable for
388 payments in lieu of contributions with respect to each calendar quarter in the amount that bears the
389 same ratio to the total benefits paid in such quarter attributable to service performed in the employ
390 of all members of the group as the total wages paid for service in employment by such member in
391 such quarter bear to the total wages paid during such quarter for service performed in the employ
392 of all members of the group.
393 (d) The department shall prescribe rules, with respect to applications for establishment,
394 maintenance, and termination of group accounts authorized by this Subsection (6), for addition of
395 new members to, and withdrawal of active members from, these accounts, for the determination
396 of the amounts that are payable under this Subsection (6) by members of the group, and the time
397 and manner of these payments.
398 (7) (a) An employing unit that acquires a nonprofit organization or substantially all the
399 assets of a nonprofit organization that has elected reimbursable coverage as defined in Subsection

400 (1), in accordance with rules made by the commission, shall be given the subject date of the
401 transferring nonprofit organization, provided the transferring nonprofit organization ceases to
402 operate as an employing unit at the point of acquisition.
403 (b) The acquiring entity shall reimburse the Unemployment Compensation Fund for the
404 transferring nonprofit organization's share of any unreimbursed benefits paid to former employees
405 of the transferring nonprofit organization.
406 Section 3. Section 35A-4-312 is amended to read:
407 35A-4-312. Records.
408 (1) Each employing unit shall keep true and accurate work records containing any
409 information the department may prescribe by rule. The records shall be open to inspection and
410 subject to being copied by the division or its authorized representatives at any reasonable time and
411 as often as may be necessary. The employing unit shall make the records available in the state for
412 three years after the calendar year in which the services were rendered.
413 (2) The division may require from any employing unit any sworn or unsworn reports with
414 respect to persons employed by it that the division considers necessary for the effective
415 administration of this chapter.
416 (3) [(a)] Except as provided in this section or in Sections 35A-4-103 and 35A-4-106 ,
417 information obtained under this chapter or obtained from any individual may not be published or
418 open to public inspection in any manner revealing the employing unit's or individual's identity.
419 [(b)] (4) (a) The information obtained by the division pursuant to this section may not be
420 used in any court or admitted into evidence in an action or proceeding, except:
421 (i) in an action or proceeding arising out of this chapter;
422 (ii) in an action or proceeding by the Labor Commission to enforce the [workers'
423 compensation coverage requirements] provisions of Title 34A, [Chapter 2 or 3] Utah Labor Code,
424 or Chapters 21, 23, 28, and 40 of Title 34, Labor in General, provided the Labor Commission
425 enters into a written agreement with the division pursuant to Subsection (6)(b); or
426 (iii) [where obtained] pursuant to the terms of a court order obtained pursuant to
427 Subsection 63-2-202(7) and Section 63-2-207 of the Government Records Access and
428 Management Act.
429 [(4)] (b) The information obtained by the division pursuant to this section shall be
430 disclosed to:

431 [(a)] (i) a party to [a] an unemployment insurance hearing before an administrative law
432 judge of the department or [the division] a review by the Workforce Appeals Board to the extent
433 necessary for the proper presentation of the party's case; or
434 [(b)] (ii) an employer, upon request in writing for any information concerning claims for
435 benefits with respect to the employer's former employees.
436 (5) The information obtained by the division pursuant to this section may be disclosed to:
437 (a) an employee of the department in the performance of the employee's duties in
438 administering this chapter or other programs of the department;
439 (b) an employee of the Labor Commission for the purpose of carrying out the programs
440 administered by the [department for the protection of workers in the workplace] Labor
441 Commission;
442 (c) an employee of the governor's office and other state governmental agencies
443 administratively responsible for statewide economic development, to the extent necessary for
444 economic development policy analysis and formulation;
445 (d) an employee of [the department or] other governmental [agency] agencies that [is] are
446 specifically identified and authorized by federal or state law to receive the information for the
447 purposes stated in the law authorizing the employee of the agency to receive the information;
448 (e) an employee of a governmental agency or workers' compensation insurer to the extent
449 the information will aid in the detection or avoidance of duplicate, inconsistent, or fraudulent
450 claims against a workers' compensation program, public assistance funds, or the recovery of
451 overpayments of workers' compensation or public assistance funds;
452 (f) an employee of a law enforcement agency to the extent the disclosure is necessary to
453 avoid a significant risk to public safety or in aid of a felony criminal investigation;
454 (g) an employee of the State Tax Commission or the Internal Revenue Service for the
455 purposes of audit verification or simplification, state or federal tax compliance, verification of
456 Standard Industry Codes, and statistics;
457 (h) an employee or contractor of the department[,] or an educational institution, or other
458 governmental entity engaged in [programs providing job training to individuals] workforce
459 investment and development activities pursuant to the Workforce Investment Act of 1998 for the
460 purpose of coordinating services [and] with the department, evaluating the effectiveness of [the
461 job training programs] those activities, and measuring performance; [or]

462 (i) an employee of the Department of Community and Economic Development, for the
463 purpose of periodically publishing in the Directory of Business and Industry, the name, address,
464 telephone number, number of employees by range, Standard Industrial Code, and type of
465 ownership of Utah employers[.];
466 (j) the public for any purpose following a written waiver by all interested parties of their
467 rights to nondisclosure; or
468 (k) an individual whose wage data has been submitted to the department by an employer,
469 so long as no information other than the individual's wage data and the identity of the party who
470 submitted the information is provided to the individual.
471 (6) Disclosure of private information pursuant to Subsection (4)(a)(ii) or Subsection (5),
472 with the exception of Subsections (5)[(d)] (a) and (f), shall be made only if:
473 (a) the division determines that the disclosure will not have a negative effect on the
474 willingness of employers to report wage and employment information or on the willingness of
475 individuals to file claims for unemployment benefits; and
476 (b) the agency enters into a written agreement with the division in accordance with rules
477 made by the department.
478 (7) The employees of a division of the department other than the Division of Workforce
479 Information and Payment Services or an agency receiving private information from the division
480 under this chapter are subject to the same requirements of privacy and confidentiality and to the
481 same penalties for misuse or improper disclosure of the information as employees of the division.
482 Use of private information obtained from the department by a person, or for a purpose other than
483 one authorized in Subsection (4) or (5) violates Subsection 35A-4-104 (4).
484 Section 4. Section 35A-4-405 is amended to read:
485 35A-4-405. Ineligibility for benefits.
486 An individual is ineligible for benefits or for purposes of establishing a waiting period:
487 (1) (a) For the week in which the claimant left work voluntarily without good cause, if so
488 found by the division, and for each week thereafter until the claimant has performed services in
489 bona fide, covered employment and earned wages for those services equal to at least six times the
490 claimant's weekly benefit amount.
491 (b) A claimant shall not be denied eligibility for benefits if the claimant leaves work under
492 circumstances of such a nature that it would be contrary to equity and good conscience to impose

493 a disqualification.
494 (c) [The] Using available information from employers and the claimant, the division shall[,
495 in cooperation with the employer,] consider for the purposes of this chapter the reasonableness of
496 the claimant's actions, and the extent to which the actions evidence a genuine continuing
497 attachment to the labor market in reaching a determination of whether the ineligibility of a
498 claimant is contrary to equity and good conscience.
499 (d) Notwithstanding any other subsection of this section, a claimant who has left work
500 voluntarily to accompany, follow, or join the claimant's spouse to or in a new locality does so
501 without good cause for purposes of Subsection (1).
502 (2) (a) For the week in which the claimant was discharged for just cause or for an act or
503 omission in connection with employment, not constituting a crime, which is deliberate, willful, or
504 wanton and adverse to the employer's rightful interest, if so found by the division, and thereafter
505 until the claimant has earned an amount equal to at least six times the claimant's weekly benefit
506 amount in bona fide covered employment.
507 (b) For the week in which he was discharged for dishonesty constituting a crime or any
508 felony or class A misdemeanor in connection with his work as shown by the facts, together with
509 his admission, or as shown by his conviction of that crime in a court of competent jurisdiction and
510 for the 51 next following weeks. Wage credits shall be deleted from the claimant's base period,
511 and are not available for this or any subsequent claim for benefits.
512 (3) (a) If the division finds that the claimant has failed without good cause to properly
513 apply for available suitable work, to accept a referral to suitable work offered by the employment
514 office, or to accept suitable work offered by an employer or the employment office. The
515 ineligibility continues until the claimant has performed services in bona fide covered employment
516 and earned wages for the services in an amount equal to at least six times the claimant's weekly
517 benefit amount.
518 (b) (i) A claimant shall not be denied eligibility for benefits for failure to apply, accept
519 referral, or accept available suitable work under circumstances of such a nature that it would be
520 contrary to equity and good conscience to impose a disqualification.
521 (ii) The division shall consider the purposes of this chapter, the reasonableness of the
522 claimant's actions, and the extent to which the actions evidence a genuine continuing attachment
523 to the labor market in reaching a determination of whether the ineligibility of a claimant is contrary

524 to equity and good conscience.
525 (c) In determining whether or not work is suitable for an individual, the division shall
526 consider the:
527 (i) degree of risk involved to his health, safety, and morals;
528 (ii) individual's physical fitness and prior training;
529 (iii) individual's prior earnings and experience;
530 (iv) individual's length of unemployment;
531 (v) prospects for securing local work in his customary occupation;
532 (vi) wages for similar work in the locality; and
533 (vii) distance of the available work from his residence.
534 (d) Prior earnings shall be considered on the basis of all four quarters used in establishing
535 eligibility and not just the earnings from the most recent employer. The division shall be more
536 prone to find work as suitable the longer the claimant has been unemployed and the less likely the
537 prospects are to secure local work in his customary occupation.
538 (e) Notwithstanding any other provision of this chapter, no work is suitable, and benefits
539 shall not be denied under this chapter to any otherwise eligible individual for refusing to accept
540 new work under any of the following conditions:
541 (i) if the position offered is vacant due directly to a strike, lockout, or other labor dispute;
542 (ii) if the wages, hours, or other conditions of the work offered are substantially less
543 favorable to the individual than those prevailing for similar work in the locality; or
544 (iii) if as a condition of being employed the individual would be required to join a
545 company union or to resign from or refrain from joining any bona fide labor organization.
546 (4) For any week in which the division finds that his unemployment is due to a stoppage
547 of work that exists because of a strike involving his grade, class, or group of workers at the factory
548 or establishment at which he is or was last employed.
549 (a) If the division finds that a strike has been fomented by a worker of any employer, none
550 of the workers of the grade, class, or group of workers of the individual who is found to be a party
551 to the plan, or agreement to foment a strike, shall be eligible for benefits. However, if the division
552 finds that the strike is caused by the failure or refusal of any employer to conform to the provisions
553 of any law of the state or of the United States pertaining to hours, wages, or other conditions of
554 work, the strike shall not render the workers ineligible for benefits.

555 (b) If the division finds that the employer, his agent or representative has conspired,
556 planned, or agreed with any of his workers, their agents or representatives to foment a strike, that
557 strike shall not render the workers ineligible for benefits.
558 (c) A worker may receive benefits if, subsequent to his unemployment because of a strike
559 as defined in this Subsection (4), he has obtained employment and has been paid wages of not less
560 than the amount specified in Subsection 35A-4-401 (4) and has worked as specified in Subsection
561 35A-4-403 (1)(f). During the existence of the stoppage of work due to this strike the wages of the
562 worker used for the determination of his benefit rights shall not include any wages he earned from
563 the employer involved in the strike.
564 (5) (a) For each week with respect to which the claimant willfully made a false statement
565 or representation or knowingly failed to report a material fact to obtain any benefit under the
566 provisions of this chapter, and an additional 13 weeks for the first week the statement or
567 representation was made or fact withheld and six weeks for each week thereafter; the additional
568 weeks not to exceed 49 weeks.
569 (b) The additional period shall commence on the Sunday following the issuance of a
570 determination finding the claimant in violation of this Subsection (5).
571 (c) Each individual found in violation of this Subsection (5) shall repay to the division the
572 amount of benefits the claimant actually received and, as a civil penalty, an amount equal to the
573 benefits the claimant received by direct reason of his fraud. The penalty amount shall be regarded
574 as any other penalty under this chapter. These amounts shall be collectible by civil action or
575 warrant in the manner provided in Subsections 35A-4-305 (3) and (5).
576 (d) A claimant is ineligible for future benefits or waiting week credit, and any wage credits
577 earned by the claimant shall be unavailable for purposes of paying benefits, if any amount owed
578 under this Subsection (5) remains unpaid.
579 (e) Determinations under this Subsection (5) shall be appealable in the manner provided
580 by this chapter for appeals from other benefit determinations.
581 (6) For any week with respect to which or a part of which he has received or is seeking
582 unemployment benefits under an unemployment compensation law of another state or the United
583 States. If the appropriate agency of the other state or of the United States finally determines that
584 he is not entitled to those unemployment benefits, this disqualification does not apply.
585 (7) (a) For any week with respect to which he is receiving, has received, or is entitled to

586 receive remuneration in the form of:
587 (i) wages in lieu of notice, or a dismissal or separation payment; or
588 (ii) accrued vacation or terminal leave payment.
589 (b) If the remuneration is less than the benefits that would otherwise be due, he is entitled
590 to receive for that week, if otherwise eligible, benefits reduced as provided in Subsection
591 35A-4-401 (3).
592 (8) (a) For any week in which the individual's benefits are based on service for an
593 educational institution in an instructional, research, or principal administrative capacity and that
594 begins during the period between two successive academic years, or during a similar period
595 between two regular terms, whether or not successive, or during a period of paid sabbatical leave
596 provided for in the individual's contract if the individual performs services in the first of those
597 academic years or terms and if there is a contract or reasonable assurance that the individual will
598 perform services in that capacity for an educational institution in the second of the academic years
599 or terms.
600 (b) For any week in which the individual's benefits are based on service in any other
601 capacity for an educational institution, and that week begins during a period between two
602 successive academic years or terms if the individual performs those services in the first of the
603 academic years or terms and there is a reasonable assurance that the individual will perform the
604 services in the second of the academic years or terms. If compensation is denied to any individual
605 under this Subsection (8) and the individual was not offered an opportunity to perform the services
606 for the educational institution for the second of the academic years or terms, the individual shall
607 be entitled to a retroactive payment of compensation for each week for which the individual filed
608 a timely claim for compensation and for which compensation was denied solely by reason of this
609 Subsection (8).
610 (c) With respect to any services described in Subsection (8)(a) or (b), compensation
611 payable on the basis of those services shall be denied to an individual for any week that
612 commences during an established and customary vacation period or holiday recess if the individual
613 performs the services in the period immediately before the vacation period or holiday recess, and
614 there is a reasonable assurance that the individual will perform the services in the period
615 immediately following the vacation period or holiday recess.
616 (d) With respect to services described in Subsection (8)(a) or (b), compensation payable

617 on the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be denied to an
618 individual who performed those services in an educational institution while in the employ of an
619 educational service agency. For purposes of this Subsection (8)(d), "educational service agency"
620 means a governmental agency or entity established and operated exclusively for the purpose of
621 providing the services described in Subsection (8)(a) or (b) to an educational institution.
622 (e) Benefits based on service in employment, defined in Subsections 35A-4-204 (2)(d) and
623 (e) are payable in the same amount, on the same terms and subject to the same conditions as
624 compensation payable on the basis of other service subject to this chapter.
625 (9) For any week that commences during the period between two successive sport seasons
626 or similar periods if the individual performed any services, substantially all of which consists of
627 participating in sports or athletic events or training or preparing to participate in the first of those
628 seasons or similar periods and there is a reasonable assurance that individual will perform those
629 services in the later of the seasons or similar periods.
630 (10) (a) For any week in which the benefits are based upon services performed by an alien,
631 unless the alien is an individual who has been lawfully admitted for permanent residence at the
632 time the services were performed, was lawfully present for purposes of performing the services or,
633 was permanently residing in the United States under color of law at the time the services were
634 performed, including an alien who is lawfully present in the United States as a result of the
635 application of Subsection 212 (d)(5) of the Immigration and Nationality Act, 8 U.S.C.
636 1182(d)(5)(A).
637 (b) Any data or information required of individuals applying for benefits to determine
638 whether benefits are not payable to them because of their alien status shall be uniformly required
639 from all applicants for benefits.
640 (c) In the case of an individual whose application for benefits would otherwise be
641 approved, no determination that benefits to the individual are not payable because of his alien
642 status shall be made except upon a preponderance of the evidence.

Legislative Review Note
as of 1-3-01 2:27 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

Committee Note

The Workforce Services Interim Committee recommended this bill.