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H.B. 428

             1     

UNEMPLOYMENT INSURANCE AMENDMENTS

             2     
2009 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Steven R. Mascaro

             5     
Senate Sponsor: ____________

             6     
             7      LONG TITLE
             8      General Description:
             9          This bill modifies provisions of the Employment Security Act related to unemployment
             10      insurance benefits.
             11      Highlighted Provisions:
             12          This bill:
             13          .    makes modifications to the definition of base period for purposes related to
             14      unemployment insurance benefits;
             15          .    provides that unemployment benefits may not be denied to an individual solely on
             16      the fact that the individual is seeking only part-time work, so long as a majority of
             17      the weeks in the individual's base period consists of part-time work;
             18          .    provides that a claimant for benefits is not disqualified from receiving benefits on
             19      the basis of separating from employment, if the separation is for a compelling
             20      family reason; and
             21          .    requires an annual report by the division on the impact of these modifications.
             22      Monies Appropriated in this Bill:
             23          None
             24      Other Special Clauses:
             25          None
             26      Utah Code Sections Affected:
             27      AMENDS:


             28          35A-4-201, as last amended by Laws of Utah 2005, Chapter 81
             29          35A-4-403, as last amended by Laws of Utah 2008, Chapter 43
             30          35A-4-405, as last amended by Laws of Utah 2007, Chapter 225
             31     
             32      Be it enacted by the Legislature of the state of Utah:
             33          Section 1. Section 35A-4-201 is amended to read:
             34           35A-4-201. General definitions.
             35          As used in this chapter:
             36          (1) (a) "Base-period" means the first four of the last five completed calendar quarters
             37      next preceding the first day of the individual's benefit year with respect to any individual whose
             38      benefit year commences on or after January 5, 1986.
             39          (b) (i) For a claimant whose benefit year is effective on or after January 3, 2010, and
             40      who does not have sufficient wages in the first four of the last five completed calendar quarters
             41      to otherwise qualify for benefits, the base period is the last four completed calendar quarters.
             42          (ii) Wages used to establish eligibility regardless of how the base period is calculated
             43      are not available for qualifying benefits in any subsequent benefit year.
             44          (2) "Benefit year" means the 52 consecutive week period beginning with the first week
             45      with respect to which an individual files for benefits and is found to have an insured status.
             46          (3) "Benefits" means the money payments payable to an individual as provided in this
             47      chapter with respect to the individual's unemployment.
             48          (4) "Calendar quarter" means the period of three consecutive months ending on March
             49      31, June 30, September 30, or December 31, or the equivalent, as the department may by rule
             50      prescribe.
             51          (5) "Contribution" means the money payments required by this chapter to be made into
             52      the Unemployment Compensation Fund by any employing unit on account of having
             53      individuals in its employ.
             54          (6) "Division" means the Unemployment Insurance Division.
             55          (7) "Employment office" means a free public employment office or branch operated by
             56      this or any other state as a part of a state-controlled system of public employment offices or by
             57      a federal agency charged with the administration of an unemployment compensation program
             58      or free public employment offices.


             59          (8) "Employment Security Administration Fund" means the fund established by
             60      Section 35A-4-505 , and from which administrative expenses under this chapter shall be paid.
             61          (9) "Extended benefits" has the meaning specified in Subsection 35A-4-402 (7)(f).
             62          (10) "Fund" means the Unemployment Compensation Fund established by this chapter.
             63          (11) "Insured average annual wage" means on or before the 15th day of May of each
             64      year, the total wages of insured workers for the preceding calendar year, divided by the average
             65      monthly number of insured workers, determined by dividing by 12 the total insured workers for
             66      the preceding calendar year as determined under the rules of the department calculated to two
             67      decimal places, disregarding any fraction of one cent.
             68          (12) "Insured average fiscal year wage" means on or before the 15th day of November
             69      of each year, the total wages of insured workers for the preceding fiscal year, divided by the
             70      average monthly number of insured workers, determined by dividing by 12 the total insured
             71      workers for the preceding fiscal year as determined under the rules of the department calculated
             72      to two decimal places, disregarding any fraction of one cent.
             73          (13) "Insured average fiscal year weekly wage" means the insured average fiscal year
             74      wage determined in Subsection (12), divided by 52, calculated to two decimal places,
             75      disregarding any fraction of one cent.
             76          (14) "Insured average weekly wage" means the insured average annual wage
             77      determined in Subsection (11), divided by 52, calculated to two decimal places, disregarding
             78      any fraction of one cent.
             79          (15) "Insured status" means that an individual has, during the individual's base-period,
             80      performed services and earned wages in employment sufficient to qualify for benefits under
             81      Section 35A-4-403 .
             82          (16) "Insured work" means employment for an employer, as defined in Section
             83      35A-4-203 .
             84          (17) "Monetary base period wage requirement" means 8% of the insured average fiscal
             85      year wage for the preceding fiscal year, for example, fiscal year 1990 for individuals
             86      establishing benefit years in 1991, rounded up to the next higher multiple of $100.
             87          (18) "State" includes the Commonwealth of Puerto Rico, the Virgin Islands, and the
             88      District of Columbia.
             89          (19) "Tribal unit" means a subdivision, subsidiary, or business enterprise wholly owned


             90      by an American Indian tribe.
             91          (20) "Week" means the period or periods of seven consecutive calendar days as the
             92      department may prescribe by rule.
             93          Section 2. Section 35A-4-403 is amended to read:
             94           35A-4-403. Eligibility of individual -- Conditions -- Furnishing reports -- Weeks
             95      of employment -- Successive benefit years.
             96          (1) Except as provided in Subsection (2), an unemployed individual is eligible to
             97      receive benefits for any week if the division finds:
             98          (a) the individual has made a claim for benefits for that week in accordance with rules
             99      the department may prescribe, except as provided in Subsection (3);
             100          (b) the individual has registered for work with the department and acted in a good faith
             101      effort to secure employment during each and every week for which the individual made a claim
             102      for benefits under this chapter in accordance with rules the department may prescribe, except as
             103      provided in Subsection (3);
             104          (c) the individual is able to work and is available for full-time work during each and
             105      every week for which the individual made a claim for benefits under this chapter, except the
             106      division may not deny benefits to an individual solely on the fact that the individual is seeking
             107      only part-time work, so long as a majority of the weeks in the individual's base period consists
             108      of part-time work;
             109          (d) the individual has been unemployed for a waiting period of one week for each
             110      benefit year, but a week may not be counted as a week of unemployment for the purpose of this
             111      Subsection (1)(d):
             112          (i) unless it occurs within the benefit year that includes the week for which the
             113      individual claims benefits;
             114          (ii) if benefits have been paid for the claim; or
             115          (iii) unless the individual was eligible for benefits for the week as provided in this
             116      section and Sections 35A-4-401 and 35A-4-405 , except for the requirement of this Subsection
             117      (1)(d);
             118          (e) (i) the individual has furnished the division separation and other information the
             119      department may prescribe by rule, or proves to the satisfaction of the division that the
             120      individual had good cause for failing to furnish the information;


             121          (ii) if an employer fails to furnish reports concerning separation and employment as
             122      required by this chapter and rules adopted under the chapter, the division shall, on the basis of
             123      information it obtains, determine the eligibility and insured status of an individual affected by
             124      that failure and the employer is not considered to be an interested party to the determination;
             125          (f) (i) the individual's base period wages were at least 1-1/2 times the individual's
             126      wages for insured work paid during that quarter of the individual's base period in which the
             127      individual's wages were highest; or
             128          (ii) for any claimant whose benefit year is effective on or before January 2, 2010, the
             129      individual shows to the satisfaction of the division that the individual worked at least 20 weeks
             130      in insured work during the individual's base period and earned wages of at least 5% of the
             131      monetary base period wage requirement each week, rounded to the nearest whole dollar,
             132      provided that the individual's total base-period wages were not less than the monetary base
             133      period wage requirement as defined in Section 35A-4-201 ;
             134          (g) (i) the individual applying for benefits in a successive benefit year has had
             135      subsequent employment since the effective date of the preceding benefit year equal to at least
             136      six times the individual's weekly benefit amount, in insured work; and
             137          (ii) the individual's total wages and employment experience in the individual's base
             138      period meet the requirements specified in Subsection (1)(f).
             139          (2) (a) For purposes of this Subsection (2), "suitable employment" means:
             140          (i) work of a substantially equal or higher skill level than the individual's past adversely
             141      affected employment as defined for purposes of the Trade Act of 1974; and
             142          (ii) wages for that work at not less than 80% of the individual's average weekly wage
             143      as determined for purposes of the Trade Act of 1974.
             144          (b) (i) An individual in training with the approval of the division is not ineligible to
             145      receive benefits by reason of nonavailability for work, failure to search for work, refusal of
             146      suitable work, failure to apply for or to accept suitable work, or not having been unemployed
             147      for a waiting period of one week for any week the individual is in the approved training.
             148          (ii) For purposes of Subsection (2)(b)(i), the division shall approve any mandatory
             149      apprenticeship-related training.
             150          (c) Notwithstanding any other provision of this chapter, the division may not deny an
             151      otherwise eligible individual benefits for any week:


             152          (i) because the individual is in training approved under Section 236 (a)(1) of the Trade
             153      Act of 1974, 19 U.S.C. 2296(a);
             154          (ii) for leaving work to enter training described in Subsection (2)(c)(i) if the work left
             155      is not suitable employment; or
             156          (iii) because of the application to any such week in training of provisions in this law or
             157      any applicable federal unemployment compensation law relating to availability for work, active
             158      search for work, or refusal to accept work.
             159          (3) The department may, by rule, waive or alter either or both of the requirements of
             160      Subsections (1)(a) and (b) as to:
             161          (a) individuals attached to regular jobs;
             162          (b) a disaster in Utah as declared by the President of the United States or by the state's
             163      governor after giving due consideration to factors directly associated with the disaster,
             164      including:
             165          (i) the disaster's impact on employers and their ability to employ workers in the
             166      affected area in Utah;
             167          (ii) the disaster's impact on claimants and their ability to comply with filing
             168      requirements in the affected area in Utah; and
             169          (iii) the magnitude of the disaster and the anticipated time for recovery; and
             170          (c) cases or situations when it finds that compliance with the requirements would be
             171      oppressive, or would be inconsistent with the purposes of this chapter, as long as the rule does
             172      not conflict with Subsection 35A-4-401 (1).
             173          (4) The director of the division or the director's designee shall make an annual report to
             174      the Workforce Employment Advisory Council and to the Legislature's Workforce Services and
             175      Community and Economic Development Interim Committee no later than November 30 of
             176      2010, 2011, and 2012, concerning the impact on individuals applying for unemployment
             177      compensation and the unemployment trust insurance fund as a result of amendments made to
             178      Subsections 35A-4-201 (1), 35A-4-403 (1)(c), and 35A-4-405 (1)(d) during the Legislature's
             179      2009 General Session.
             180          Section 3. Section 35A-4-405 is amended to read:
             181           35A-4-405. Ineligibility for benefits.
             182          Except as otherwise provided in Subsection (5), an individual is ineligible for benefits


             183      or for purposes of establishing a waiting period:
             184          (1) (a) For the week in which the claimant left work voluntarily without good cause, if
             185      so found by the division, and for each week thereafter until the claimant has performed services
             186      in bona fide, covered employment and earned wages for those services equal to at least six
             187      times the claimant's weekly benefit amount.
             188          (b) A claimant may not be denied eligibility for benefits if the claimant leaves work
             189      under circumstances where it would be contrary to equity and good conscience to impose a
             190      disqualification.
             191          (c) Using available information from employers and the claimant, the division shall
             192      consider for the purposes of this chapter the reasonableness of the claimant's actions, and the
             193      extent to which the actions evidence a genuine continuing attachment to the labor market in
             194      reaching a determination of whether the ineligibility of a claimant is contrary to equity and
             195      good conscience.
             196          (d) (i) Notwithstanding any other subsection of this section, for a claimant [who has
             197      left work voluntarily to accompany, follow, or join the claimant's spouse to or in a new locality
             198      does so without good cause for purposes of Subsection (1).] whose benefit year is effective on
             199      or after January 3, 2010, the claimant is not disqualified from benefits for separating from
             200      employment if the separation is for any compelling family reason.
             201          (ii) For purposes of Subsection (1)(d)(i), "any compelling family reason" means:
             202          (A) domestic violence that causes the individual to reasonably believe that continued
             203      employment would jeopardize the safety of the individual or any member of the individual's
             204      immediate family;
             205          (B) the illness or disability of a member of the individual's immediate family; or
             206          (C) the need for the individual to accompany the individual's spouse:
             207          (I) due to a change in location of the spouse's employment; and
             208          (II) to a place from which it is impractical for the individual to commute.
             209          (2) (a) For the week in which the claimant was discharged for just cause or for an act or
             210      omission in connection with employment, not constituting a crime, which is deliberate, willful,
             211      or wanton and adverse to the employer's rightful interest, if so found by the division, and
             212      thereafter until the claimant has earned an amount equal to at least six times the claimant's
             213      weekly benefit amount in bona fide covered employment.


             214          (b) For the week in which the claimant was discharged for dishonesty constituting a
             215      crime or any felony or class A misdemeanor in connection with the claimant's work as shown
             216      by the facts, together with the claimant's admission, or as shown by the claimant's conviction of
             217      that crime in a court of competent jurisdiction and for the 51 next following weeks.
             218          (c) Wage credits shall be deleted from the claimant's base period, and are not available
             219      for this or any subsequent claim for benefits.
             220          (3) (a) (i) If the division finds that the claimant has failed without good cause to
             221      properly apply for available suitable work, to accept a referral to suitable work offered by the
             222      employment office, or to accept suitable work offered by an employer or the employment
             223      office.
             224          (ii) The ineligibility continues until the claimant has performed services in bona fide
             225      covered employment and earned wages for the services in an amount equal to at least six times
             226      the claimant's weekly benefit amount.
             227          (b) (i) A claimant may not be denied eligibility for benefits for failure to apply, accept
             228      referral, or accept available suitable work under circumstances where it would be contrary to
             229      equity and good conscience to impose a disqualification.
             230          (ii) The division shall consider the purposes of this chapter, the reasonableness of the
             231      claimant's actions, and the extent to which the actions evidence a genuine continuing
             232      attachment to the labor market in reaching a determination of whether the ineligibility of a
             233      claimant is contrary to equity and good conscience.
             234          (c) In determining whether work is suitable for an individual, the division shall
             235      consider the:
             236          (i) degree of risk involved to his health, safety, and morals;
             237          (ii) individual's physical fitness and prior training;
             238          (iii) individual's prior earnings and experience;
             239          (iv) individual's length of unemployment;
             240          (v) prospects for securing local work in his customary occupation;
             241          (vi) wages for similar work in the locality; and
             242          (vii) distance of the available work from his residence.
             243          (d) Prior earnings shall be considered on the basis of all four quarters used in
             244      establishing eligibility and not just the earnings from the most recent employer. The division


             245      shall be more prone to find work as suitable the longer the claimant has been unemployed and
             246      the less likely the prospects are to secure local work in his customary occupation.
             247          (e) Notwithstanding any other provision of this chapter, no work is suitable, and
             248      benefits may not be denied under this chapter to any otherwise eligible individual for refusing
             249      to accept new work under any of the following conditions:
             250          (i) if the position offered is vacant due directly to a strike, lockout, or other labor
             251      dispute;
             252          (ii) if the wages, hours, or other conditions of the work offered are substantially less
             253      favorable to the individual than those prevailing for similar work in the locality; or
             254          (iii) if as a condition of being employed the individual would be required to join a
             255      company union or to resign from or refrain from joining any bona fide labor organization.
             256          (4) For any week in which the division finds that the claimant's unemployment is due
             257      to a stoppage of work that exists because of a strike involving the claimant's grade, class, or
             258      group of workers at the factory or establishment at which the claimant is or was last employed.
             259          (a) If the division finds that a strike has been fomented by a worker of any employer,
             260      none of the workers of the grade, class, or group of workers of the individual who is found to
             261      be a party to the plan, or agreement to foment a strike, shall be eligible for benefits. However,
             262      if the division finds that the strike is caused by the failure or refusal of any employer to
             263      conform to any law of the state or of the United States pertaining to hours, wages, or other
             264      conditions of work, the strike may not render the workers ineligible for benefits.
             265          (b) If the division finds that the employer, the employer's agent or representative has
             266      conspired, planned, or agreed with any of the employer's workers, their agents or
             267      representatives to foment a strike, that strike may not render the workers ineligible for benefits.
             268          (c) A worker may receive benefits if, subsequent to the worker's unemployment
             269      because of a strike as defined in this Subsection (4), the worker has obtained employment and
             270      has been paid wages of not less than the amount specified in Subsection 35A-4-401 (4) and has
             271      worked as specified in Subsection 35A-4-403 (1)(f). During the existence of the stoppage of
             272      work due to this strike the wages of the worker used for the determination of his benefit rights
             273      may not include any wages the worker earned from the employer involved in the strike.
             274          (5) (a) For each week with respect to which the claimant willfully made a false
             275      statement or representation or knowingly failed to report a material fact to obtain any benefit


             276      under the provisions of this chapter, and an additional 13 weeks for the first week the statement
             277      or representation was made or fact withheld and six weeks for each week thereafter; the
             278      additional weeks not to exceed 49 weeks.
             279          (b) The additional period shall commence on the Sunday following the issuance of a
             280      determination finding the claimant in violation of this Subsection (5).
             281          (c) (i) Each claimant found in violation of this Subsection (5) shall repay to the
             282      division the overpayment and, as a civil penalty, an amount equal to the overpayment.
             283          (ii) The overpayment is the amount of benefits the claimant received by direct reason
             284      of fraud.
             285          (iii) The penalty amount shall be regarded as any other penalty under this chapter.
             286          (iv) These amounts shall be collectible by civil action or warrant in the manner
             287      provided in Subsections 35A-4-305 (3) and (5).
             288          (d) A claimant is ineligible for future benefits or waiting week credit, and any wage
             289      credits earned by the claimant shall be unavailable for purposes of paying benefits, if any
             290      amount owed under this Subsection (5) remains unpaid.
             291          (e) Determinations under this Subsection (5) shall be appealable in the manner
             292      provided by this chapter for appeals from other benefit determinations.
             293          (f) If the fraud determination is based solely on unreported or underreported work or
             294      earnings, or both, and the claimant would have been eligible for benefits if the work or
             295      earnings, or both, had been correctly reported, the individual does not lose eligibility for that
             296      week because of the misreporting but is liable for the overpayment and subject to the penalties
             297      in Subsection (5)(c) and the disqualification periods for future weeks in Subsection (5)(a).
             298          (6) For any week with respect to which or a part of which the claimant has received or
             299      is seeking unemployment benefits under an unemployment compensation law of another state
             300      or the United States. If the appropriate agency of the other state or of the United States finally
             301      determines that the claimant is not entitled to those unemployment benefits, this
             302      disqualification does not apply.
             303          (7) (a) For any week with respect to which the claimant is receiving, has received, or is
             304      entitled to receive remuneration in the form of:
             305          (i) wages in lieu of notice, or a dismissal or separation payment; or
             306          (ii) accrued vacation or terminal leave payment.


             307          (b) If the remuneration is less than the benefits that would otherwise be due, the
             308      claimant is entitled to receive for that week, if otherwise eligible, benefits reduced as provided
             309      in Subsection 35A-4-401 (3).
             310          (8) (a) For any week in which the individual's benefits are based on service for an
             311      educational institution in an instructional, research, or principal administrative capacity and
             312      that begins during the period between two successive academic years, or during a similar
             313      period between two regular terms, whether or not successive, or during a period of paid
             314      sabbatical leave provided for in the individual's contract if the individual performs services in
             315      the first of those academic years or terms and if there is a contract or reasonable assurance that
             316      the individual will perform services in that capacity for an educational institution in the second
             317      of the academic years or terms.
             318          (b) (i) For any week in which the individual's benefits are based on service in any other
             319      capacity for an educational institution, and that week begins during a period between two
             320      successive academic years or terms if the individual performs those services in the first of the
             321      academic years or terms and there is a reasonable assurance that the individual will perform the
             322      services in the second of the academic years or terms.
             323          (ii) If compensation is denied to any individual under this Subsection (8) and the
             324      individual was not offered an opportunity to perform the services for the educational institution
             325      for the second of the academic years or terms, the individual shall be entitled to a retroactive
             326      payment of compensation for each week for which the individual filed a timely claim for
             327      compensation and for which compensation was denied solely by reason of this Subsection (8).
             328          (c) With respect to any services described in Subsection (8)(a) or (b), compensation
             329      payable on the basis of those services shall be denied to an individual for any week that
             330      commences during an established and customary vacation period or holiday recess if the
             331      individual performs the services in the period immediately before the vacation period or
             332      holiday recess, and there is a reasonable assurance that the individual will perform the services
             333      in the period immediately following the vacation period or holiday recess.
             334          (d) (i) With respect to services described in Subsection (8)(a) or (b), compensation
             335      payable on the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be
             336      denied to an individual who performed those services in an educational institution while in the
             337      employ of an educational service agency.


             338          (ii) For purposes of this Subsection (8)(d), "educational service agency" means a
             339      governmental agency or entity established and operated exclusively for the purpose of
             340      providing the services described in Subsection (8)(a) or (b) to an educational institution.
             341          (e) Benefits based on service in employment, defined in Subsections 35A-4-204 (2)(d)
             342      and (e) are payable in the same amount, on the same terms and subject to the same conditions
             343      as compensation payable on the basis of other service subject to this chapter.
             344          (9) For any week that commences during the period between two successive sport
             345      seasons or similar periods if the individual performed any services, substantially all of which
             346      consists of participating in sports or athletic events or training or preparing to participate in the
             347      first of those seasons or similar periods and there is a reasonable assurance that individual will
             348      perform those services in the later of the seasons or similar periods.
             349          (10) (a) For any week in which the benefits are based upon services performed by an
             350      alien, unless the alien is an individual who has been lawfully admitted for permanent residence
             351      at the time the services were performed, was lawfully present for purposes of performing the
             352      services or, was permanently residing in the United States under color of law at the time the
             353      services were performed, including an alien who is lawfully present in the United States as a
             354      result of the application of Subsection 212(d)(5) of the Immigration and Nationality Act, 8
             355      U.S.C. 1182(d)(5)(A).
             356          (b) Any data or information required of individuals applying for benefits to determine
             357      whether benefits are not payable to them because of their alien status shall be uniformly
             358      required from all applicants for benefits.
             359          (c) In the case of an individual whose application for benefits would otherwise be
             360      approved, no determination that benefits to the individual are not payable because of his alien
             361      status shall be made except upon a preponderance of the evidence.




Legislative Review Note
    as of 2-19-09 8:17 AM


Office of Legislative Research and General Counsel


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