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H.B. 263 Enrolled

             1     

UNEMPLOYMENT BENEFITS FOR MILITARY SPOUSE

             2     
2012 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Lynn N. Hemingway

             5     
Senate Sponsor: Karen Mayne

             6      Cosponsors:
             7      Patrice M. Arent
             8      Roger E. Barrus
             9      Joel K. Briscoe
             10      Melvin R. Brown
             11      Rebecca Chavez-Houck
             12      Tim M. Cosgrove
             13      Brian Doughty
             14      Susan Duckworth
James A. DunniganJanice M. Fisher
Francis D. Gibson
Neal B. Hendrickson
Brian S. King
David Litvack
Kay L. McIff
Carol Spackman Moss
Merlynn T. Newbold
Jim NielsonMichael E. Noel
Marie H. Poulson
Dean Sanpei
Jennifer M. Seelig
Christine F. Watkins
Mark A. Wheatley
Larry B. Wiley
Brad R. Wilson              15     
             16      LONG TITLE
             17      General Description:
             18          This bill modifies the Employment Security Act by expanding unemployment benefits
             19      eligibility for military spouses under certain circumstances.
             20      Highlighted Provisions:
             21          This bill:
             22          .    provides that the Unemployment Division will not charge benefit costs to an
             23      employer for an employee who receives unemployment benefits after voluntarily
             24      leaving employment to follow a spouse because of a spouse's military assignment;
             25          .    authorizes unemployment benefits for a claimant who voluntarily leaves
             26      employment to follow a spouse to a new location if:
             27              .    the claimant's spouse is a member of the United States armed forces and the


             28      claimant's spouse has been relocated by a military assignment on active duty;
             29              .    it is impractical for the claimant to commute to the previous work from the new
             30      locality; and
             31              .    the claimant otherwise meets and follows the eligibility and reporting
             32      requirements of the Unemployment Division; and
             33          .    makes technical changes.
             34      Money Appropriated in this Bill:
             35          None
             36      Other Special Clauses:
             37          None
             38      Utah Code Sections Affected:
             39      AMENDS:
             40          35A-4-307, as last amended by Laws of Utah 1999, Chapter 80
             41          35A-4-405, as last amended by Laws of Utah 2007, Chapter 225
             42     
             43      Be it enacted by the Legislature of the state of Utah:
             44          Section 1. Section 35A-4-307 is amended to read:
             45           35A-4-307. Social costs -- Relief of charges.
             46          (1) Social costs shall consist of those benefit costs defined as follows:
             47          (a) Benefit costs of an individual will not be charged to a base-period employer, but
             48      will be considered social costs if the individual's separation from that employer occurred under
             49      any of the following circumstances:
             50          (i) the individual was discharged by the employer or voluntarily quit employment with
             51      the employer for disqualifying reasons, but subsequently requalified for benefits and actually
             52      received benefits;
             53          (ii) the individual received benefits following a quit which was not attributable to the
             54      employer;
             55          (iii) the individual received benefits following a discharge for nonperformance due to


             56      medical reasons; [or]
             57          (iv) the individual received benefits while attending the first week of mandatory
             58      apprenticeship training[.]; or
             59          (v) the individual received benefits after quitting voluntarily to accompany or follow a
             60      spouse who is a member of the United States armed forces as described in Subsection
             61      35A-4-405 (1)(e).
             62          (b) Social costs are benefit costs which are or have been charged to employers who
             63      have terminated coverage and are no longer liable for contributions, less the amount of
             64      contributions paid by such employers during the same time period.
             65          (c) The difference between the benefit charges of all employers whose benefit ratio
             66      exceeds the maximum overall contribution rate and the amount determined by multiplying the
             67      taxable payroll of the same employers by the maximum overall contribution rate is a social
             68      cost.
             69          (d) Benefit costs attributable to a concurrent base-period employer will not be charged
             70      to that employer if the individual's customary hours of work for that employer have not been
             71      reduced.
             72          (e) Benefit costs incurred during the course of division-approved training which occurs
             73      after December 31, 1985, will not be charged to base-period employers.
             74          (f) Benefit costs will not be charged to employers if such costs are attributable to:
             75          (i) the state's share of extended benefits;
             76          (ii) uncollectible benefit overpayments;
             77          (iii) the proportion of benefit costs of combined wage claims that are chargeable to
             78      Utah employers and are insufficient when separately considered for a monetary eligible claim
             79      under Utah law and which have been transferred to a paying state; and
             80          (iv) benefit costs attributable to wages used in a previous benefit year that are available
             81      for a second benefit year under Subsection 35A-4-401 (2) because of a change in method of
             82      computing base-periods, overlapping base-periods, or for other reasons required by law.
             83          (g) Any benefit costs that are not charged to an employer and not defined in this


             84      subsection are also social costs.
             85          (2) Subsection (1) applies only to contributing employers and not to employers that
             86      have elected to finance the payment of benefits in accordance with Section 35A-4-309 or
             87      35A-4-311 .
             88          Section 2. Section 35A-4-405 is amended to read:
             89           35A-4-405. Ineligibility for benefits.
             90          Except as otherwise provided in Subsection (5), an individual is ineligible for benefits
             91      or for purposes of establishing a waiting period:
             92          (1) (a) For the week in which the claimant left work voluntarily without good cause, if
             93      so found by the division, and for each week thereafter until the claimant has performed services
             94      in bona fide, covered employment and earned wages for those services equal to at least six
             95      times the claimant's weekly benefit amount.
             96          (b) A claimant may not be denied eligibility for benefits if the claimant leaves work
             97      under circumstances where it would be contrary to equity and good conscience to impose a
             98      disqualification.
             99          (c) Using available information from employers and the claimant, the division shall
             100      consider for the purposes of this chapter the reasonableness of the claimant's actions, and the
             101      extent to which the actions evidence a genuine continuing attachment to the labor market in
             102      reaching a determination of whether the ineligibility of a claimant is contrary to equity and
             103      good conscience.
             104          (d) [Notwithstanding any other subsection of this section] Except as provided in
             105      Subsection (1)(e), a claimant who has left work voluntarily to accompany[,] or follow[, or join]
             106      the claimant's spouse to [or in] a new locality does so without good cause for purposes of this
             107      Subsection (1).
             108          (e) A claimant who has left work voluntarily to accompany or follow the claimant's
             109      spouse to a new locality does so with good cause for purposes of this Subsection (1) and is
             110      eligible to receive benefits if:
             111          (i) the claimant's spouse is a member of the United States armed forces and the


             112      claimant's spouse has been relocated by a full-time assignment scheduled to last at least 180
             113      days while on:
             114          (A) active duty as defined in 10 U.S.C. Sec. 101(d)(1); or
             115          (B) active guard or reserve duty as defined in 10 U.S.C. Sec. 101(d)(6);
             116          (ii) it is impractical as determined by the division for the claimant to commute to the
             117      previous work from the new locality;
             118          (iii) the claimant left work voluntarily no earlier than 15 days before the scheduled start
             119      date of the spouse's active-duty assignment; and
             120          (iv) the claimant otherwise meets and follows the eligibility and reporting requirements
             121      of this chapter, including registering for work with the division or, if the claimant has relocated
             122      to another state, the equivalent agency of that state.
             123          (2) (a) For the week in which the claimant was discharged for just cause or for an act or
             124      omission in connection with employment, not constituting a crime, which is deliberate, willful,
             125      or wanton and adverse to the employer's rightful interest, if so found by the division, and
             126      thereafter until the claimant has earned an amount equal to at least six times the claimant's
             127      weekly benefit amount in bona fide covered employment.
             128          (b) For the week in which the claimant was discharged for dishonesty constituting a
             129      crime or any felony or class A misdemeanor in connection with the claimant's work as shown
             130      by the facts, together with the claimant's admission, or as shown by the claimant's conviction of
             131      that crime in a court of competent jurisdiction and for the 51 next following weeks.
             132          (c) Wage credits shall be deleted from the claimant's base period, and are not available
             133      for this or any subsequent claim for benefits.
             134          (3) (a) (i) If the division finds that the claimant has failed without good cause to
             135      properly apply for available suitable work, to accept a referral to suitable work offered by the
             136      employment office, or to accept suitable work offered by an employer or the employment
             137      office.
             138          (ii) The ineligibility continues until the claimant has performed services in bona fide
             139      covered employment and earned wages for the services in an amount equal to at least six times


             140      the claimant's weekly benefit amount.
             141          (b) (i) A claimant may not be denied eligibility for benefits for failure to apply, accept
             142      referral, or accept available suitable work under circumstances where it would be contrary to
             143      equity and good conscience to impose a disqualification.
             144          (ii) The division shall consider the purposes of this chapter, the reasonableness of the
             145      claimant's actions, and the extent to which the actions evidence a genuine continuing
             146      attachment to the labor market in reaching a determination of whether the ineligibility of a
             147      claimant is contrary to equity and good conscience.
             148          (c) In determining whether work is suitable for an individual, the division shall
             149      consider the:
             150          (i) degree of risk involved to his health, safety, and morals;
             151          (ii) individual's physical fitness and prior training;
             152          (iii) individual's prior earnings and experience;
             153          (iv) individual's length of unemployment;
             154          (v) prospects for securing local work in his customary occupation;
             155          (vi) wages for similar work in the locality; and
             156          (vii) distance of the available work from his residence.
             157          (d) Prior earnings shall be considered on the basis of all four quarters used in
             158      establishing eligibility and not just the earnings from the most recent employer. The division
             159      shall be more prone to find work as suitable the longer the claimant has been unemployed and
             160      the less likely the prospects are to secure local work in his customary occupation.
             161          (e) Notwithstanding any other provision of this chapter, no work is suitable, and
             162      benefits may not be denied under this chapter to any otherwise eligible individual for refusing
             163      to accept new work under any of the following conditions:
             164          (i) if the position offered is vacant due directly to a strike, lockout, or other labor
             165      dispute;
             166          (ii) if the wages, hours, or other conditions of the work offered are substantially less
             167      favorable to the individual than those prevailing for similar work in the locality; or


             168          (iii) if as a condition of being employed the individual would be required to join a
             169      company union or to resign from or refrain from joining any bona fide labor organization.
             170          (4) For any week in which the division finds that the claimant's unemployment is due
             171      to a stoppage of work that exists because of a strike involving the claimant's grade, class, or
             172      group of workers at the factory or establishment at which the claimant is or was last employed.
             173          (a) If the division finds that a strike has been fomented by a worker of any employer,
             174      none of the workers of the grade, class, or group of workers of the individual who is found to
             175      be a party to the plan, or agreement to foment a strike, shall be eligible for benefits. However,
             176      if the division finds that the strike is caused by the failure or refusal of any employer to
             177      conform to any law of the state or of the United States pertaining to hours, wages, or other
             178      conditions of work, the strike may not render the workers ineligible for benefits.
             179          (b) If the division finds that the employer, the employer's agent or representative has
             180      conspired, planned, or agreed with any of the employer's workers, their agents or
             181      representatives to foment a strike, that strike may not render the workers ineligible for benefits.
             182          (c) A worker may receive benefits if, subsequent to the worker's unemployment
             183      because of a strike as defined in this Subsection (4), the worker has obtained employment and
             184      has been paid wages of not less than the amount specified in Subsection 35A-4-401 (4) and has
             185      worked as specified in Subsection 35A-4-403 (1)(f). During the existence of the stoppage of
             186      work due to this strike the wages of the worker used for the determination of his benefit rights
             187      may not include any wages the worker earned from the employer involved in the strike.
             188          (5) (a) For each week with respect to which the claimant willfully made a false
             189      statement or representation or knowingly failed to report a material fact to obtain any benefit
             190      under the provisions of this chapter, and an additional 13 weeks for the first week the statement
             191      or representation was made or fact withheld and six weeks for each week thereafter; the
             192      additional weeks not to exceed 49 weeks.
             193          (b) The additional period shall commence on the Sunday following the issuance of a
             194      determination finding the claimant in violation of this Subsection (5).
             195          (c) (i) Each claimant found in violation of this Subsection (5) shall repay to the


             196      division the overpayment and, as a civil penalty, an amount equal to the overpayment.
             197          (ii) The overpayment is the amount of benefits the claimant received by direct reason
             198      of fraud.
             199          (iii) The penalty amount shall be regarded as any other penalty under this chapter.
             200          (iv) These amounts shall be collectible by civil action or warrant in the manner
             201      provided in Subsections 35A-4-305 (3) and (5).
             202          (d) A claimant is ineligible for future benefits or waiting week credit, and any wage
             203      credits earned by the claimant shall be unavailable for purposes of paying benefits, if any
             204      amount owed under this Subsection (5) remains unpaid.
             205          (e) Determinations under this Subsection (5) shall be appealable in the manner
             206      provided by this chapter for appeals from other benefit determinations.
             207          (f) If the fraud determination is based solely on unreported or underreported work or
             208      earnings, or both, and the claimant would have been eligible for benefits if the work or
             209      earnings, or both, had been correctly reported, the individual does not lose eligibility for that
             210      week because of the misreporting but is liable for the overpayment and subject to the penalties
             211      in Subsection (5)(c) and the disqualification periods for future weeks in Subsection (5)(a).
             212          (6) For any week with respect to which or a part of which the claimant has received or
             213      is seeking unemployment benefits under an unemployment compensation law of another state
             214      or the United States. If the appropriate agency of the other state or of the United States finally
             215      determines that the claimant is not entitled to those unemployment benefits, this
             216      disqualification does not apply.
             217          (7) (a) For any week with respect to which the claimant is receiving, has received, or is
             218      entitled to receive remuneration in the form of:
             219          (i) wages in lieu of notice, or a dismissal or separation payment; or
             220          (ii) accrued vacation or terminal leave payment.
             221          (b) If the remuneration is less than the benefits that would otherwise be due, the
             222      claimant is entitled to receive for that week, if otherwise eligible, benefits reduced as provided
             223      in Subsection 35A-4-401 (3).


             224          (8) (a) For any week in which the individual's benefits are based on service for an
             225      educational institution in an instructional, research, or principal administrative capacity and
             226      that begins during the period between two successive academic years, or during a similar
             227      period between two regular terms, whether or not successive, or during a period of paid
             228      sabbatical leave provided for in the individual's contract if the individual performs services in
             229      the first of those academic years or terms and if there is a contract or reasonable assurance that
             230      the individual will perform services in that capacity for an educational institution in the second
             231      of the academic years or terms.
             232          (b) (i) For any week in which the individual's benefits are based on service in any other
             233      capacity for an educational institution, and that week begins during a period between two
             234      successive academic years or terms if the individual performs those services in the first of the
             235      academic years or terms and there is a reasonable assurance that the individual will perform the
             236      services in the second of the academic years or terms.
             237          (ii) If compensation is denied to any individual under this Subsection (8) and the
             238      individual was not offered an opportunity to perform the services for the educational institution
             239      for the second of the academic years or terms, the individual shall be entitled to a retroactive
             240      payment of compensation for each week for which the individual filed a timely claim for
             241      compensation and for which compensation was denied solely by reason of this Subsection (8).
             242          (c) With respect to any services described in Subsection (8)(a) or (b), compensation
             243      payable on the basis of those services shall be denied to an individual for any week that
             244      commences during an established and customary vacation period or holiday recess if the
             245      individual performs the services in the period immediately before the vacation period or
             246      holiday recess, and there is a reasonable assurance that the individual will perform the services
             247      in the period immediately following the vacation period or holiday recess.
             248          (d) (i) With respect to services described in Subsection (8)(a) or (b), compensation
             249      payable on the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be
             250      denied to an individual who performed those services in an educational institution while in the
             251      employ of an educational service agency.


             252          (ii) For purposes of this Subsection (8)(d), "educational service agency" means a
             253      governmental agency or entity established and operated exclusively for the purpose of
             254      providing the services described in Subsection (8)(a) or (b) to an educational institution.
             255          (e) Benefits based on service in employment, defined in Subsections 35A-4-204 (2)(d)
             256      and (e) are payable in the same amount, on the same terms and subject to the same conditions
             257      as compensation payable on the basis of other service subject to this chapter.
             258          (9) For any week that commences during the period between two successive sport
             259      seasons or similar periods if the individual performed any services, substantially all of which
             260      consists of participating in sports or athletic events or training or preparing to participate in the
             261      first of those seasons or similar periods and there is a reasonable assurance that individual will
             262      perform those services in the later of the seasons or similar periods.
             263          (10) (a) For any week in which the benefits are based upon services performed by an
             264      alien, unless the alien is an individual who has been lawfully admitted for permanent residence
             265      at the time the services were performed, was lawfully present for purposes of performing the
             266      services or, was permanently residing in the United States under color of law at the time the
             267      services were performed, including an alien who is lawfully present in the United States as a
             268      result of the application of Subsection 212(d)(5) of the Immigration and Nationality Act, 8
             269      U.S.C. 1182(d)(5)(A).
             270          (b) Any data or information required of individuals applying for benefits to determine
             271      whether benefits are not payable to them because of their alien status shall be uniformly
             272      required from all applicants for benefits.
             273          (c) In the case of an individual whose application for benefits would otherwise be
             274      approved, no determination that benefits to the individual are not payable because of his alien
             275      status shall be made except upon a preponderance of the evidence.


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