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H.B. 21 Enrolled

             1     

WORKFORCE SERVICES AMENDMENTS

             2     
2013 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Jim Bird

             5     
Senate Sponsor: Stuart C. Reid

             6     
             7      LONG TITLE
             8      General Description:
             9          This bill modifies the Employment Security Act.
             10      Highlighted Provisions:
             11          This bill:
             12          .    establishes that an individual located in a foreign country is only eligible for
             13      unemployment benefits under certain limited circumstances;
             14          .    requires that when the Unemployment Insurance Division issues a determination
             15      that a claimant has willfully made a false statement or representation or knowingly
             16      failed to report a material fact to obtain unemployment insurance benefits, the
             17      penalty weeks begin on the Sunday before the day on which the determination is
             18      issued;
             19          .    requires that beginning on October 1, 2013, the Unemployment Insurance Division
             20      deposit 15% of a civil penalty collected from a claimant for false statements or
             21      knowingly failing to report a material fact in obtaining unemployment insurance
             22      benefits into the Unemployment Compensation Fund in compliance with the federal
             23      Social Security Act; and
             24          .    makes technical changes.
             25      Money Appropriated in this Bill:
             26          None
             27      Other Special Clauses:
             28          None
             29      Utah Code Sections Affected:


             30      AMENDS:
             31          35A-4-403, as last amended by Laws of Utah 2012, Chapter 246
             32          35A-4-405, as last amended by Laws of Utah 2012, Chapters 54 and 314
             33          35A-4-506, as last amended by Laws of Utah 2012, Chapter 146
             34     
             35      Be it enacted by the Legislature of the state of Utah:
             36          Section 1. Section 35A-4-403 is amended to read:
             37           35A-4-403. Eligibility of individual -- Conditions -- Furnishing reports -- Weeks
             38      of employment -- Successive benefit years.
             39          (1) Except as provided in [Subsection] Subsections (2) and (3), an unemployed
             40      individual is eligible to receive benefits for any week if the division finds:
             41          (a) the individual has made a claim for benefits for that week in accordance with rules
             42      the department may prescribe, except as provided in Subsection [(3)] (4);
             43          (b) the individual has registered for work with the department and acted in a good faith
             44      effort to secure employment during each and every week for which the individual made a claim
             45      for benefits under this chapter in accordance with rules the department may prescribe, except as
             46      provided in Subsection [(3)] (4);
             47          (c) the individual is able to work and is available for work during each and every week
             48      for which the individual made a claim for benefits under this chapter;
             49          (d) the individual has been unemployed for a waiting period of one week for each
             50      benefit year, but a week may not be counted as a week of unemployment for the purpose of this
             51      Subsection (1)(d):
             52          (i) unless it occurs within the benefit year that includes the week for which the
             53      individual claims benefits;
             54          (ii) if benefits have been paid for the claim; or
             55          (iii) unless the individual was eligible for benefits for the week as provided in this
             56      section and Sections 35A-4-401 and 35A-4-405 , except for the requirement of this Subsection
             57      (1)(d);


             58          (e) (i) the individual has furnished the division separation and other information the
             59      department may prescribe by rule, or proves to the satisfaction of the division that the
             60      individual had good cause for failing to furnish the information;
             61          (ii) if an employer fails to furnish reports concerning separation and employment as
             62      required by this chapter and rules adopted under the chapter, the division shall, on the basis of
             63      information it obtains, determine the eligibility and insured status of an individual affected by
             64      that failure and the employer is not considered to be an interested party to the determination;
             65          (f) (i) the individual's base-period wages were at least 1-1/2 times the individual's
             66      wages for insured work paid during that quarter of the individual's base period in which the
             67      individual's wages were highest; or
             68          (ii) for any claimant whose benefit year is effective on or before January 1, 2011, the
             69      individual shows to the satisfaction of the division that the individual worked at least 20 weeks
             70      in insured work during the individual's base-period and earned wages of at least 5% of the
             71      monetary base-period wage requirement each week, rounded to the nearest whole dollar,
             72      provided that the individual's total base-period wages were not less than the monetary
             73      base-period wage requirement as defined in Section 35A-4-201 ; and
             74          (g) (i) the individual applying for benefits in a successive benefit year has had
             75      subsequent employment since the effective date of the preceding benefit year equal to at least
             76      six times the individual's weekly benefit amount, in insured work; and
             77          (ii) the individual's total wages and employment experience in the individual's base
             78      period meet the requirements specified in Subsection (1)(f).
             79          (2) (a) For purposes of this Subsection (2), "suitable employment" means:
             80          (i) work of a substantially equal or higher skill level than the individual's past adversely
             81      affected employment as defined for purposes of the Trade Act of 1974; and
             82          (ii) wages for that work at not less than 80% of the individual's average weekly wage
             83      as determined for purposes of the Trade Act of 1974.
             84          (b) (i) An individual in training with the approval of the division is not ineligible to
             85      receive benefits by reason of nonavailability for work, failure to search for work, refusal of


             86      suitable work, failure to apply for or to accept suitable work, or not having been unemployed
             87      for a waiting period of one week for any week the individual is in the approved training.
             88          (ii) For purposes of Subsection (2)(b)(i), the division shall approve any mandatory
             89      apprenticeship-related training.
             90          (c) Notwithstanding any other provision of this chapter, the division may not deny an
             91      otherwise eligible individual benefits for any week:
             92          (i) because the individual is in training approved under Section 236 (a)(1) of the Trade
             93      Act of 1974, 19 U.S.C. 2296(a);
             94          (ii) for leaving work to enter training described in Subsection (2)(c)(i) if the work left
             95      is not suitable employment; or
             96          (iii) because of the application to any such week in training of provisions in this law or
             97      any applicable federal unemployment compensation law relating to availability for work, active
             98      search for work, or refusal to accept work.
             99          (3) An individual located in a foreign country for three or more days of a week and
             100      who is otherwise eligible for benefits is only eligible to receive benefits for that week if:
             101          (a) the individual is legally authorized to work in the foreign country; and
             102          (b) the state and the foreign country have entered into a reciprocal agreement
             103      concerning the payment of unemployment benefits.
             104          [(3)] (4) The department may, by rule, waive or alter either or both of the requirements
             105      of Subsections (1)(a) and (b) as to:
             106          (a) individuals attached to regular jobs;
             107          (b) a disaster in Utah as declared by the president of the United States or by the state's
             108      governor after giving due consideration to factors directly associated with the disaster,
             109      including:
             110          (i) the disaster's impact on employers and their ability to employ workers in the
             111      affected area in Utah;
             112          (ii) the disaster's impact on claimants and their ability to comply with filing
             113      requirements in the affected area in Utah; and


             114          (iii) the magnitude of the disaster and the anticipated time for recovery; and
             115          (c) cases or situations when it finds that compliance with the requirements would be
             116      oppressive, or would be inconsistent with the purposes of this chapter, as long as the rule does
             117      not conflict with Subsection 35A-4-401 (1).
             118          [(4)] (5) The director of the division or the director's designee shall submit an annual
             119      written report to the Workforce Employment Advisory Council and to the Economic
             120      Development and Workforce Services Interim Committee before November 1 concerning the
             121      impact on individuals applying for unemployment compensation and the unemployment trust
             122      insurance fund as a result of amendments made to Subsections (1)(f) and 35A-4-201 (1) during
             123      the Legislature's 2010 General Session.
             124          Section 2. Section 35A-4-405 is amended to read:
             125           35A-4-405. Ineligibility for benefits.
             126          Except as otherwise provided in Subsection (5), an individual is ineligible for benefits
             127      or for purposes of establishing a waiting period:
             128          (1) (a) For the week in which the claimant left work voluntarily without good cause, if
             129      so found by the division, and for each week thereafter until the claimant has performed services
             130      in bona fide, covered employment and earned wages for those services equal to at least six
             131      times the claimant's weekly benefit amount.
             132          (b) A claimant may not be denied eligibility for benefits if the claimant leaves work
             133      under circumstances where it would be contrary to equity and good conscience to impose a
             134      disqualification.
             135          (c) Using available information from employers and the claimant, the division shall
             136      consider for the purposes of this chapter the reasonableness of the claimant's actions, and the
             137      extent to which the actions evidence a genuine continuing attachment to the labor market in
             138      reaching a determination of whether the ineligibility of a claimant is contrary to equity and
             139      good conscience.
             140          (d) Except as provided in Subsection (1)(e), a claimant who has left work voluntarily to
             141      accompany or follow the claimant's spouse to a new locality does so without good cause for


             142      purposes of this Subsection (1).
             143          (e) A claimant who has left work voluntarily to accompany or follow the claimant's
             144      spouse to a new locality does so with good cause for purposes of this Subsection (1) and is
             145      eligible to receive benefits if:
             146          (i) the claimant's spouse is a member of the United States armed forces and the
             147      claimant's spouse has been relocated by a full-time assignment scheduled to last at least 180
             148      days while on:
             149          (A) active duty as defined in 10 U.S.C. Sec. 101(d)(1); or
             150          (B) active guard or reserve duty as defined in 10 U.S.C. Sec. 101(d)(6);
             151          (ii) it is impractical as determined by the division for the claimant to commute to the
             152      previous work from the new locality;
             153          (iii) the claimant left work voluntarily no earlier than 15 days before the scheduled start
             154      date of the spouse's active-duty assignment; and
             155          (iv) the claimant otherwise meets and follows the eligibility and reporting requirements
             156      of this chapter, including registering for work with the division or, if the claimant has relocated
             157      to another state, the equivalent agency of that state.
             158          (2) (a) For the week in which the claimant was discharged for just cause or for an act or
             159      omission in connection with employment, not constituting a crime, which is deliberate, willful,
             160      or wanton and adverse to the employer's rightful interest, if so found by the division, and
             161      thereafter until the claimant has earned an amount equal to at least six times the claimant's
             162      weekly benefit amount in bona fide covered employment.
             163          (b) For the week in which the claimant was discharged for dishonesty constituting a
             164      crime or any felony or class A misdemeanor in connection with the claimant's work as shown
             165      by the facts, together with the claimant's admission, or as shown by the claimant's conviction of
             166      that crime in a court of competent jurisdiction and for the 51 next following weeks.
             167          (c) Wage credits shall be deleted from the claimant's base period, and are not available
             168      for this or any subsequent claim for benefits.
             169          (3) (a) (i) If the division finds that the claimant has failed without good cause to


             170      properly apply for available suitable work, to accept a referral to suitable work offered by the
             171      employment office, or to accept suitable work offered by an employer or the employment
             172      office.
             173          (ii) The ineligibility continues until the claimant has performed services in bona fide
             174      covered employment and earned wages for the services in an amount equal to at least six times
             175      the claimant's weekly benefit amount.
             176          (b) (i) A claimant may not be denied eligibility for benefits for failure to apply, accept
             177      referral, or accept available suitable work under circumstances where it would be contrary to
             178      equity and good conscience to impose a disqualification.
             179          (ii) The division shall consider the purposes of this chapter, the reasonableness of the
             180      claimant's actions, and the extent to which the actions evidence a genuine continuing
             181      attachment to the labor market in reaching a determination of whether the ineligibility of a
             182      claimant is contrary to equity and good conscience.
             183          (c) In determining whether work is suitable for an individual, the division shall
             184      consider the:
             185          (i) degree of risk involved to [his] the individual's health, safety, and morals;
             186          (ii) individual's physical fitness and prior training;
             187          (iii) individual's prior earnings and experience;
             188          (iv) individual's length of unemployment;
             189          (v) prospects for securing local work in [his] the individual's customary occupation;
             190          (vi) wages for similar work in the locality; and
             191          (vii) distance of the available work from [his] the individual's residence.
             192          (d) Prior earnings shall be considered on the basis of all four quarters used in
             193      establishing eligibility and not just the earnings from the most recent employer. The division
             194      shall be more prone to find work as suitable the longer the claimant has been unemployed and
             195      the less likely the prospects are to secure local work in his customary occupation.
             196          (e) Notwithstanding any other provision of this chapter, no work is suitable, and
             197      benefits may not be denied under this chapter to any otherwise eligible individual for refusing


             198      to accept new work under any of the following conditions:
             199          (i) if the position offered is vacant due directly to a strike, lockout, or other labor
             200      dispute;
             201          (ii) if the wages, hours, or other conditions of the work offered are substantially less
             202      favorable to the individual than those prevailing for similar work in the locality; or
             203          (iii) if as a condition of being employed the individual would be required to join a
             204      company union or to resign from or refrain from joining any bona fide labor organization.
             205          (4) For any week in which the division finds that the claimant's unemployment is due
             206      to a stoppage of work that exists because of a strike involving the claimant's grade, class, or
             207      group of workers at the factory or establishment at which the claimant is or was last employed.
             208          (a) If the division finds that a strike has been fomented by a worker of any employer,
             209      none of the workers of the grade, class, or group of workers of the individual who is found to
             210      be a party to the plan, or agreement to foment a strike, shall be eligible for benefits. However,
             211      if the division finds that the strike is caused by the failure or refusal of any employer to
             212      conform to any law of the state or of the United States pertaining to hours, wages, or other
             213      conditions of work, the strike may not render the workers ineligible for benefits.
             214          (b) If the division finds that the employer, the employer's agent or representative has
             215      conspired, planned, or agreed with any of the employer's workers, their agents or
             216      representatives to foment a strike, that strike may not render the workers ineligible for benefits.
             217          (c) A worker may receive benefits if, subsequent to the worker's unemployment
             218      because of a strike as defined in this Subsection (4), the worker has obtained employment and
             219      has been paid wages of not less than the amount specified in Subsection 35A-4-401 (4) and has
             220      worked as specified in Subsection 35A-4-403 (1)(f). During the existence of the stoppage of
             221      work due to this strike the wages of the worker used for the determination of his benefit rights
             222      may not include any wages the worker earned from the employer involved in the strike.
             223          (5) (a) For each week [with respect to which the claimant willfully made a false
             224      statement or representation or knowingly failed to report a material fact to obtain any benefit
             225      under the provisions of this chapter, and an additional 13 weeks for the first week the


             226      statement or representation was made or fact withheld and six weeks for each week thereafter;
             227      the additional weeks not to exceed 49 weeks.] a claimant obtains a benefit under this chapter by
             228      willfully making a false statement or representation or by knowingly failing to report a material
             229      fact, and a penalty of no more than 49 additional weeks as follows:
             230          (i) 13 weeks for the first week the false statement or representation was made or fact
             231      withheld to receive a benefit; and
             232          (ii) six weeks for each additional week the false statement or representation was made
             233      or fact withheld to receive a benefit.
             234          (b) The additional [period] penalty weeks shall [commence] begin on the Sunday
             235      [following the issuance of a] of the week the determination finding the claimant in violation of
             236      this Subsection (5) is issued.
             237          (c) (i) Each claimant found in violation of this Subsection (5) shall repay to the
             238      division the overpayment and, as a civil penalty for fraud, an amount equal to the overpayment.
             239          (ii) The overpayment is the amount of benefits the claimant received by direct reason
             240      of fraud.
             241          (iii) [The] Subject to the requirements of Subsection 35A-4-506 (7), the civil penalty
             242      for fraud amount shall be [regarded] treated as any other penalty under this chapter.
             243          (iv) [These amounts] The repayment of an overpayment and a civil penalty for fraud
             244      shall be collectible by civil action or warrant in the manner provided in Subsections
             245      35A-4-305 (3) and (5).
             246          (d) A claimant is ineligible for future benefits or waiting week credit, and any wage
             247      credits earned by the claimant shall be unavailable for purposes of paying benefits, if any
             248      amount owed under this Subsection (5) remains unpaid.
             249          (e) Determinations under this Subsection (5) shall be appealable in the manner
             250      provided by this chapter for appeals from other benefit determinations.
             251          (f) If the fraud determination is based solely on unreported or underreported work or
             252      earnings, or both, and the claimant would have been eligible for benefits if the work or
             253      earnings, or both, had been correctly reported, the individual does not lose eligibility for that


             254      week because of the misreporting but is liable for the overpayment and subject to the penalties
             255      in Subsection (5)(c) and the disqualification periods for future weeks in Subsection (5)(a).
             256          (6) For any week with respect to which or a part of which the claimant has received or
             257      is seeking unemployment benefits under an unemployment compensation law of another state
             258      or the United States. If the appropriate agency of the other state or of the United States finally
             259      determines that the claimant is not entitled to those unemployment benefits, this
             260      disqualification does not apply.
             261          (7) (a) For any week with respect to which the claimant is receiving, has received, or is
             262      entitled to receive remuneration in the form of:
             263          (i) wages in lieu of notice, or a dismissal or separation payment; or
             264          (ii) accrued vacation or terminal leave payment.
             265          (b) If the remuneration is less than the benefits that would otherwise be due, the
             266      claimant is entitled to receive for that week, if otherwise eligible, benefits reduced as provided
             267      in Subsection 35A-4-401 (3).
             268          (8) (a) For any week in which the individual's benefits are based on service for an
             269      educational institution in an instructional, research, or principal administrative capacity and
             270      that begins during the period between two successive academic years, or during a similar
             271      period between two regular terms, whether or not successive, or during a period of paid
             272      sabbatical leave provided for in the individual's contract if the individual performs services in
             273      the first of those academic years or terms and if there is a contract or reasonable assurance that
             274      the individual will perform services in that capacity for an educational institution in the second
             275      of the academic years or terms.
             276          (b) (i) For any week in which the individual's benefits are based on service in any other
             277      capacity for an educational institution, and that week begins during a period between two
             278      successive academic years or terms if the individual performs those services in the first of the
             279      academic years or terms and there is a reasonable assurance that the individual will perform the
             280      services in the second of the academic years or terms.
             281          (ii) If compensation is denied to any individual under this Subsection (8) and the


             282      individual was not offered an opportunity to perform the services for the educational institution
             283      for the second of the academic years or terms, the individual shall be entitled to a retroactive
             284      payment of compensation for each week for which the individual filed a timely claim for
             285      compensation and for which compensation was denied solely by reason of this Subsection (8).
             286          (c) With respect to any services described in Subsection (8)(a) or (b), compensation
             287      payable on the basis of those services shall be denied to an individual for any week that
             288      commences during an established and customary vacation period or holiday recess if the
             289      individual performs the services in the period immediately before the vacation period or
             290      holiday recess, and there is a reasonable assurance that the individual will perform the services
             291      in the period immediately following the vacation period or holiday recess.
             292          (d) (i) With respect to services described in Subsection (8)(a) or (b), compensation
             293      payable on the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be
             294      denied to an individual who performed those services in an educational institution while in the
             295      employ of an educational service agency in accordance with the Federal Unemployment Tax
             296      Act, 26 U.S.C. Sec. 3304(a)(6)(A)(iv).
             297          (ii) For purposes of this Subsection (8)(d), "educational service agency" means a
             298      governmental agency or entity established and operated exclusively for the purpose of
             299      providing the services described in Subsection (8)(a) or (b) to an educational institution.
             300          (e) With respect to services described in Subsection (8)(a) or (b), compensation
             301      payable on the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be
             302      denied to an individual who performed those services:
             303          (i) to or on behalf of an educational institution in accordance with the Federal
             304      Unemployment Tax Act, 26 U.S.C. Sec. 3304(a)(6)(A)(v); and
             305          (ii) while employed by a governmental entity, Indian tribe, or nonprofit organization, to
             306      which the Federal Unemployment Tax Act, 26 U.S.C. Sec. 3309(a)(1) applies.
             307          (f) Benefits based on service in employment, defined in Subsections 35A-4-204 (2)(d)
             308      and (e) are payable in the same amount, on the same terms and subject to the same conditions
             309      as compensation payable on the basis of other [service] services subject to this chapter.


             310          (9) For any week that commences during the period between two successive sport
             311      seasons or similar periods if the individual performed any services, substantially all of which
             312      [consists] consist of participating in sports or athletic events or training or preparing to
             313      participate in the first of those seasons or similar periods and there is a reasonable assurance
             314      that individual will perform those services in the later of the seasons or similar periods.
             315          (10) (a) For any week in which the benefits are based upon services performed by an
             316      alien, unless the alien is an individual who has been lawfully admitted for permanent residence
             317      at the time the services were performed, was lawfully present for purposes of performing the
             318      services or[,] was permanently residing in the United States under color of law at the time the
             319      services were performed, including an alien who is lawfully present in the United States as a
             320      result of the application of Subsection 212(d)(5) of the Immigration and Nationality Act, 8
             321      U.S.C. 1182(d)(5)(A).
             322          (b) Any data or information required of individuals applying for benefits to determine
             323      whether benefits are not payable to them because of their alien status shall be uniformly
             324      required from all applicants for benefits.
             325          (c) In the case of an individual whose application for benefits would otherwise be
             326      approved, no determination that benefits to the individual are not payable because of his alien
             327      status shall be made except upon a preponderance of the evidence.
             328          Section 3. Section 35A-4-506 is amended to read:
             329           35A-4-506. Special Administrative Expense Account.
             330          (1) There is created a restricted account within the General Fund known as the "Special
             331      Administrative Expense Account."
             332          (2) (a) [Interest] Subject to Subsection (7), interest and penalties collected under this
             333      chapter, less refunds made under Subsection 35A-4-306 (5), shall be paid into the restricted
             334      account from the clearing account of the restricted account at the end of each calendar month.
             335          (b) A contribution to the restricted account and any other money received for that
             336      purpose shall be paid into the restricted account.
             337          (c) The money in the restricted account may not be expended in any manner that would


             338      permit its substitution for, or a corresponding reduction in, federal funds that would in the
             339      absence of the money be available to finance expenditures for the administration of this
             340      chapter.
             341          (3) Nothing in this section shall prevent the money from being used as a revolving fund
             342      to cover expenditures, necessary and proper under this chapter, for which federal funds have
             343      been duly requested but not yet received subject to the charging of those expenditures against
             344      the funds when received.
             345          (4) Subject to [Subsection (6)] Subsections (6) and (7), money in the restricted account
             346      shall be deposited, administered, and dispersed in accordance with the directions of the
             347      Legislature.
             348          (5) Subject to Subsection (6), money in the restricted account is made available to
             349      replace, within a reasonable time, any money received by this state under Section 302 of the
             350      Social Security Act, 42 U.S.C. Sec. 502, as amended, that because of any action of contingency
             351      has been lost or has been expended for purposes other than or in amounts in excess of those
             352      necessary for the proper administration of this chapter.
             353          (6) If money in the restricted account is used for a purpose unrelated to the
             354      administration of the unemployment compensation program as described in Subsection
             355      303(a)(8) of the Social Security Act, 42 U.S.C. Sec. 503(a)(8), as amended, the division shall
             356      develop and follow a cost allocation plan in compliance with United States Department of
             357      Labor regulations, including the cost principles described in 29 C.F.R. 97.22(b) and 2 C.F.R.
             358      Part 225.
             359          (7) Beginning October 1, 2013, 15% of a civil penalty for fraud collected under
             360      Subsection 35A-4-405 (5)(c)(i) shall be deposited into the Unemployment Compensation Fund,
             361      described in Section 35A-4-501 , in compliance with Subsection 303(a)(11) of the Social
             362      Security Act, 42 U.S.C. Sec. 503(a)(8), as amended.
             363          [(7)] (8) Money in the restricted account shall be available to the division for
             364      expenditure in accordance with this section.
             365          [(8)] (9) The state treasurer shall pay all warrants drawn upon it by the division or its


             366      duly authorized agent in accordance with rules made by the department.
             367          [(9)] (10) (a) The state treasurer is liable on the state treasurer's official bond for the
             368      faithful performance of the treasurer's duties in connection with the Special Administrative
             369      Expense Account described in this chapter.
             370          (b) Liability on the official bond exists in addition to any liability upon any separate
             371      bond that exists on the effective date of this provision or that may be given in the future.
             372          (c) Any money recovered on any surety bond losses sustained by the Special
             373      Administrative Expense Account shall be deposited in the restricted account or in the General
             374      Fund if directed by the Legislature.


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