State of South Dakota
|
EIGHTY-EIGHTH SESSION
LEGISLATIVE ASSEMBLY, 2013
|
400U0291
|
HOUSE BILL NO. 1055
|
Introduced by: The Committee on Commerce and Energy at the request of the Department
of Labor and Regulation
|
FOR AN ACT ENTITLED, An Act to revise certain provisions regarding unemployment
insurance employer charges and claimant misrepresentation regarding benefit overpayments
and to correct references to certain provisions pertaining to unemployment insurance.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 61-6-39 be amended to read as follows:
61-6-39. Any individual who has willfully or fraudulently misrepresented any fact to secure
or increase benefits under this title shall be denied benefits for not less than one week and not
to exceed fifty-two weeks of otherwise compensable unemployment, as defined in this chapter
from and after the date such misrepresentation or fraudulent act is discovered in accordance with
rules promulgated by the department pursuant to chapter 1-26. In addition to any penalty
imposed under this title, the department shall impose a penalty equal to fifty percent of the
amount of benefits obtained by willful or fraudulent misrepresentation for the first offense and
a penalty equal to one hundred percent of the amount of benefits for each subsequent offense.
Any penalty collected shall be paid into the unemployment trust fund.
Section 2. That § 61-5-39 be amended to read as follows:
61-5-39. Each employer's experience-rating account shall be charged with all benefits
chargeable, as provided in this title, except extended benefits paid as provided in §§ 61-6-49 to
61-6-66, inclusive, against wages paid for employment by the employer. However, no benefits
paid on the basis of a period of employment may be charged to the experience-rating account
of any employer, except as provided in § 61-5-41, if the claimant:
(1) Voluntarily separated without good cause attributable to the employer or the
employment;
(2) Was discharged or suspended for misconduct connected with the employment, or for
conduct mandated by religious belief which belief cannot be reasonably
accommodated by the employer;
(3) Was discharged or suspended for inability or incompetence to successfully complete
a ninety-day probationary period established between the employer and employee at
the time of employment;
(4) Earned total base period wages of less than one hundred dollars with one employer;
(5) Is receiving benefits while in approved training authorized by § 61-6-21;
(6) Performed services while incarcerated in a custodial or penal institution and
terminated such employment because of his transfer or release from the institution;
(7) Received benefits for unemployment directly caused by a major natural disaster
declared by the president pursuant to section 410(a) of the Robert T. Stafford
Disaster Relief and Employment Assistance Act, 42 U.S.C. § 5177, if the individual
would have been eligible for disaster unemployment assistance with respect to that
unemployment but for their receipt of unemployment insurance benefits;
(8) Received benefits for unemployment resulting directly from the reinstatement of
another employee upon that employee's completion of service in the uniformed
services as provided in 38 U.S.C. § 4303(13) as of January 1, 2005, or the completion
of state active duty by members of the National Guard who are activated pursuant to
a call from the Governor as provided by law; or
(9) Voluntarily separated to accompany a spouse who was reassigned from one military
assignment to another.
However, no relief of charges applies if the department determines that an erroneous
payment has been made because the employer, or an agent of the employer, was at fault for
failing to respond timely or adequately to the department's request for information relating to
the payment of benefits. For the purposes of this section, an erroneous payment is a payment
that would not have been made but for the failure of the employer or the employer's agent to
fully respond to the department's request pursuant to § 61-7-5.
Section 3. That § 61-5-41 be amended to read as follows:
61-5-41. Benefits paid but not charged to the experience-rating account of any employer
based on subdivisions 61-5-39(1) to (7) (9), inclusive, shall be prorated among all the employer
experience-rating accounts as follows:
For calendar year 1983 through calendar year 2005, fifty percent of such noncharges for the
preceding calendar year are divided by the total taxable payroll for the preceding year. For
calendar year 2006 and thereafter, one One hundred percent of such noncharges for the
preceding calendar year are divided by the total taxable payroll for the preceding calendar year.
The ratio obtained is multiplied by each experience-rated employer's taxable payroll for the
preceding year and the result of this computation is deducted from each employer's account
balance. The deductions from each employer's account balance shall be credited to the pool
account.
Section 4. That § 61-1-1 be amended to read as follows:
61-1-1. Terms used in this title mean:
(1) "Annual payroll," the total amount of taxable wages paid by an employer during a
calendar year for employment;
(2) "Base period," the first four out of the last five completed calendar quarters
immediately preceding an individual's benefit year. For an individual who fails to
meet the qualifications of § 61-6-7 61-6-4 due to the receipt of temporary total
disability payments under worker's compensation, the base period is the first four of
the last five completed quarters preceding the disability if a claim for unemployment
benefits is filed within twenty-four months of the date on which the individual's
disability was incurred. For an individual who fails to meet the minimum
requirements of § 61-6-7 61-6-4 due to insufficient wages, the base period is the four
completed calendar quarters immediately preceding the individual's benefit year.
However, no calendar quarter used in one base period of a valid claim may be used
in a subsequent base period;
(3) "Benefit year," the one-year period beginning with the day on which a claimant files
a valid new claim for benefits, or the one-year period beginning with the day on
which a claimant files a valid new claim after the termination of his last preceding
benefit year;
(4) "Benefits," the money payments payable to an unemployed individual, as provided
in this title;
(5) "Calendar quarter," the period of three consecutive calendar months ending on March
thirty-first, June thirtieth, September thirtieth, or December thirty-first;
(6) "Contributions," the money payments to the state unemployment compensation fund
required by this title;
(7) "Department," the Department of Labor and Regulation created by chapter 1-37;
(8) "Educational service agency," a governmental agency or governmental entity which
is established and operated exclusively for the purpose of providing services to one
or more educational institutions;
(9) "Employment office," a free public employment office, or branch thereof, operated
by this state or maintained as part of a state or federal controlled system of public
employment offices;
(10) "Employment security administration fund," the employment security administration
fund established by this title;
(11) "Extended benefits," the benefits that are provided in §§ 61-6-29 to 61-6-35 61-6-49
to 61-6-66, inclusive;
(12) "Fund," the unemployment compensation fund established by this title;
(13) "Hospital," an institution which has been licensed, certified or approved by the State
Department of Health as a hospital;
(14) "Institution of higher education," an educational institution which:
(a) Admits as regular students only individuals having a certificate of graduation
from a high school, or the recognized equivalent of such a certificate; and
(b) Is legally authorized in this state to provide a program of education beyond
high school; and
(c) Provides an educational program for which it awards a bachelor's or higher
degree, or provides a program which is acceptable for full credit toward such
a degree, provides an educational program of postgraduate or postdoctoral
studies, or provides an educational program of training to prepare students for
gainful employment in a recognized occupation; and
(d) Is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this subdivision, all colleges and
universities in this state are "institutions of higher education";
(15) "Insured work," employment for employers as defined in §§ 61-1-4 to 61-1-31 61-1-45, inclusive;
(16) "State," a state of the United States of America and the District of Columbia, the
Commonwealth of Puerto Rico and the Virgin Islands;
(17) "Wages," all remuneration paid for services, including commissions and bonuses.
The term does not include remuneration described by §§ 61-1-32 to 61-1-35 61-1-46
to 61-1-50, inclusive. The term includes tips and other remuneration upon which a
tax is imposed by the Federal Unemployment Tax Act and the reasonable cash value
of remuneration paid in any medium other than cash determined in accordance with
rules promulgated pursuant to chapter 1-26 by the secretary of labor and regulation;
(18) "Week," the period or periods of seven consecutive calendar days ending at midnight.
The secretary of labor and regulation may promulgate rules pursuant to chapter 1-26
to prescribe that a week is in, within or during that benefit year which includes the
greater part. For the purpose of § 61-1-4, if a week includes both December thirty-first and January first, the days of that week up to January first shall be considered
one calendar week and the days beginning January first another week;
(19) "Weekly benefit amount," the amount of benefits an individual is entitled to receive
for one week of total unemployment. An individual's weekly benefit amount
determined for the first week of his benefit year shall constitute his weekly benefit
amount throughout the benefit year.
Section 5. That § 61-1-4 be amended to read as follows:
61-1-4. As used in this title, the term, employer, means:
(1) For each calendar year, any employing unit which:
(a) In any calendar quarter in either the current or preceding calendar year paid for
service in employment wages of one thousand five hundred dollars or more;
or
(b) For some portion of a day in each of twenty different calendar weeks, whether
or not such weeks were consecutive, in either the current or the preceding
calendar year, had in employment at least one individual (irrespective of
whether the same individual was in employment in each such day);
(2) Any employing unit for which service in employment, as defined in § 61-1-10.2 61-1-13, is performed, except as provided in subdivisions (6) and (7) of this section;
(3) Any employing unit for which service in employment, as defined in § 61-1-10.3 61-1-15, is performed, except as provided in subdivisions (6) and (7) of this section;
(4) Any employing unit for which agricultural labor as defined in § 61-1-25 61-1-18 is
performed, subject to subdivision 61-1-24 (1) 61-1-17(1);
(5) Any employing unit for which domestic service in employment as defined in § 61-1-27 61-1-19 is performed, subject to § 61-1-27.
In determining whether or not an employing unit for which service other than domestic
service is also performed is an employer under subdivision (1), (2), (3), or (4) of this section the
wages earned on the employment of an employee performing domestic service, may not be
taken into account.
In determining whether or not an employing unit for which service other than agricultural
labor is also performed is an employer under subdivision (1), (2), (3), or (5) of this section, the
wages earned or the employment of an employee performing service in agricultural labor, may
not be taken into account. If an employing unit is determined to be an employer of agricultural
labor, the employing unit shall be determined an employer for the purposes of subdivision (1)
of this section.
Section 6. That § 61-1-8 be amended to read as follows:
61-1-8. As used in this title, the term, employer, includes any employing unit which, having
become an employer under subdivision 61-1-4(2), or under any of §§ 61-1-5 to 61-1-7,
inclusive, has not, under §§ 61-5-51 to 61-5-53, inclusive 61-5-11, 61-5-15, and 61-5-17, ceased
to be an employer subject to this title.
Section 7. That § 61-1-9 be amended to read as follows:
61-1-9. As used in this title, the term, employer, includes for the effective period of its
election pursuant to §§ 61-5-3 to 61-5-5.1 61-5-5, inclusive, § 61-5-32 and § 61-5-11 61-5-33,
any other employing unit which has elected to become fully subject to this title.
Section 8. That § 61-2-15 be amended to read as follows:
61-2-15. The Department of Labor and Regulation may establish and contract for a
retirement program, except as provided by chapter 3-12, for the personnel of the divisions
established by § 61-2-10, in cooperation with the appropriate agency of the federal government.
The department's share of the costs of the program shall be paid from the administrative funds
granted to the department by the federal government. No obligation may be incurred against the
state's general fund to pay for this program. The department may execute a contract or contracts
with the retirement plan administrators as the employee's retirement board selects. In making
the selection, the board shall consider, among other things, financial stability, experience and
claims facilities. In evaluating these factors, the board may employ the services of impartial,
professional analysts or actuaries, or both.
Section 9. That § 61-4-2 be amended to read as follows:
61-4-2. The unemployment compensation fund shall consist of:
(1) All contributions collected under this title together with any interest and penalties
thereon collected pursuant to §§ 61-5-38 and 61-5-39 61-5-57 and 61-5-58;
(2) Interest earned upon any moneys in the fund;
(3) Any property or securities acquired through the use of moneys belonging to the fund;
and
(4) All earnings of such property or securities.
All moneys in the fund shall be mingled and undivided.
Section 10. That § 61-4-5 be amended to read as follows:
61-4-5. All moneys payable to the unemployment compensation fund upon receipt thereof
by the Department of Labor and Regulation shall immediately be deposited in the clearing
account. Refunds payable pursuant to §§ 61-1-17 and 61-5-37 61-1-31 and 61-5-56 may be paid
from the clearing account. After clearance thereof all other moneys in the clearing account shall
immediately be deposited with the secretary of the treasury of the United States of America to
the credit of the account of this state in the unemployment trust fund established and maintained
pursuant to section 904 of the Social Security Act as amended, any provisions of law in this
state relating to the deposit, administration, release, or disbursement of moneys in the possession
or custody of this state to the contrary notwithstanding.
Section 11. That § 61-5-26 be amended to read as follows:
61-5-26. Notwithstanding any other provision of this chapter, an employer who transfers all
or a segregable part of the employer's operations from another state to this state for the purposes
of this chapter shall be deemed to be a qualified employer within the meaning of § 61-5-25, as
of the computation date applicable to the calendar year within which the transfer occurs, if:
(1) The employer has paid wages subject to the federal unemployment tax act for
eighteen consecutive completed calendar quarters immediately preceding the
computation date specified above;
(2) Within ninety days of the transfer of operations, the employer notifies the department
thereof and requests a contribution rate under the provisions of §§ 61-5-18.5 to 61-5-18.7, inclusive 61-5-25.1 and 61-5-25.2; and
(3) The employer certifies to the department all information with respect to wages,
contributions, and benefit charges in connection with the transferred operations and
any other information which the department determines to be necessary.
Section 12. That § 61-5-26.1 be amended to read as follows:
61-5-26.1. The employer has fifteen days after receipt of notice of determination of
contribution rate computed under §§
61-5-18.5 to 61-5-18.7, inclusive, 61-5-25.1 and 61-5-25.2
within which to withdraw the employer's request for application of the provisions of § 61-5-26.
Section 13. That § 61-5-26.3 be amended to read as follows:
61-5-26.3. Wages, contributions, and benefits resulting in rating account charges in
connection with the transferred operations, shall be deemed to have been paid in this state for
the purpose of computing rates under §§
61-5-18.1 to 61-5-18.4, inclusive 61-5-25.1 and 61-5-25.2. The employer's rating account balance applicable to the transferred operations prior to the
transfer date shall be the balance used in determining the first year's rate. The balance for the
second and third years shall be the amount transferred from the other state less benefits after the
date of transfer and the contributions paid less benefits charged in this state during the period.
Section 14. That § 61-5-26.4 be amended to read as follows:
61-5-26.4. The contribution rate to be assigned to the employer in South Dakota shall be the
rate obtained by the computation provided in §§
61-5-18.5 to 61-5-18.7, inclusive 61-5-25.1 and
61-5-25.2, but in no event may the rate assigned be lower than one and one-half percent.
Section 15. That § 61-5A-1 be amended to read as follows:
61-5A-1. In lieu of contributions required by employers under this chapter, the state of South
Dakota shall pay into the unemployment compensation trust fund an amount equivalent to the
amount of benefits paid based on wages earned with the state plus, prior to December 31, 1978,
one-half of the amount of extended benefits paid, and thereafter, the amount of extended
benefits paid, to individuals based on wages paid by the state for service defined in §
61-1-10.2
61-1-13.
Section 16. That § 61-5A-9.1 be amended to read as follows:
61-5A-9.1. Any nonprofit organization which elects to make payments in lieu of
contributions into the unemployment compensation fund as provided in § 61-5A-6, 61-5A-7 or
61-5A-9,
shall is not
be liable to make such payments with respect to the benefits paid to any
individual whose base period wages include wages for previously uncovered services as defined
in §
61-6-5 61-6-7 to the extent that the unemployment compensation fund is reimbursed for
such benefits pursuant to section 121 of Public Law 94-566 as passed October 23, 1976.
Section 17. That § 61-5A-13 be amended to read as follows:
61-5A-13. The amount of the bond required by § 61-5A-12
shall be is equal to the maximum
effective tax rate times the organization's taxable wages paid for employment as defined in
§§
61-1-10.3 and 61-1-10.4 61-1-15 and 61-1-36 for the four calendar quarters immediately
preceding the effective date of the election. If the nonprofit organization did not pay wages in
each of such four calendar quarters, the amount of the bond shall be as determined by the
department.
Section 18. That § 61-5A-21 be amended to read as follows:
61-5A-21. Two or more employers who have become liable for payments in lieu of
contributions, in accordance with the provisions of §§
61-5-5.1 61-5-32 and 61-5A-6 to 61-5A-
9, inclusive, may file a joint application to the department for the establishment of a group
account for the purpose of sharing the cost of benefits paid that are attributable to service in the
employ of such employers. Each such application shall identify and authorize a group
representative to act as the group's agent for the purposes of this section. Upon its approval of
the application, the department shall establish a group account for such employers effective as
of the beginning of the calendar quarter in which it receives the application and shall notify the
group's representative of the effective date of the account. Such account shall remain in effect
for not less than two years and thereafter until terminated at the discretion of the department or
upon application by the group.
Section 19. That § 61-5A-33 be amended to read as follows:
61-5A-33. Past due payments of amounts in lieu of contributions or failure to make timely
reports shall be subject to the same interest and penalties that apply to past due contributions
and reports in §§ 61-5-38 and 61-5-39 61-5-57 and 61-5-58.
Section 20. That § 61-6-8 be amended to read as follows:
61-6-8. Unless the provisions of §§ 61-6-29 to 61-6-43 61-6-49 to 61-6-64, inclusive, apply,
an individual's maximum benefit amount is an amount equal to one-third of the individual's total
base period wages in covered employment not to exceed twenty-six times the individual's
weekly benefit amount. If that amount is not a multiple of one dollar, it is lowered to the next
lower multiple of one dollar.
Trade readjustment payments may allow an individual to receive benefits in excess of
twenty-six weeks if the individual is in training approved by the secretary under the Trade Act
of 1974, as amended by section 2501 of P.L. 97-35--August 13, 1981, and then only as long as
necessary to complete the training.
If the benefit year of an individual ends within an extended benefit period, the number of
weeks of extended benefits that the individual would, but for this section, be entitled to in that
extended benefit period is reduced by the number of weeks for which the individual received
any amounts as trade readjustment allowances within that benefit year, multiplied by the
individual's weekly benefit amount for extended benefits.
Section 21. That § 61-6-48 be amended to read as follows:
61-6-48. Any assignment, pledge, or encumbrance of any right to benefits which are or may
become due or payable under this title is void except as provided in this section. The rights to
benefits are exempt from levy, execution, attachment, or any other remedy provided for the
collection of debt. Any benefits received by any individual, so long as the benefits are not
mingled with other funds of the recipient, are exempt from any remedy for the collection of all
debts, except debts incurred for necessaries furnished to the individual, the individual's spouse,
or dependents during the time when the individual was unemployed. Any waiver not provided
for in this section is void.
The secretary of the Department of Labor and Regulation shall furnish information on
individuals receiving unemployment insurance benefits to the Department of Social Services
in accordance with section 303(e) of the Social Security Act as amended by section 2333(b) of
P. L. 97-5--August 13, 1981. The secretary may also furnish this information in accordance with
section 13 of the Food Stamp Act of 1977 as amended by section 1535 of P.L. 99-198. The
Department of Social Services determines periodically whether any of these individuals
receiving unemployment insurance owe child support obligations or an uncollected overissuance
of food stamp coupons.
Each new applicant filing for unemployment insurance benefits shall disclose any obligation
for child support payments in accordance with
§ 28-7-2 section 454(19) of the Social Security
Act as amended by section 101(a) of P.L. 93-647, and may be required to disclose any
obligation for uncollected overissuances (as defined in section 13(c)(1) of the Food Stamp Act
of 1977) of food stamp coupons, to the Department of Labor and Regulation at the time of
filing. If an individual disclosing child support obligations is eligible for unemployment
insurance benefits, the secretary shall notify the Department of Social Services.
The secretary shall deduct from an eligible individual's unemployment insurance benefit
payment and pay to the secretary of the Department of Social Services:
(1) The amount determined by agreement between the individual and the Department of
Labor and Regulation; or
(2) The amount determined by agreement between the individual and the Department of
Social Services; or
(3) The amount determined by the Department of Social Services through legal
processes.
If an individual disclosing an uncollected overissuance of food stamp coupons is eligible for
unemployment insurance benefits, the secretary may notify the Department of Social Services.
The secretary may also deduct from an eligible individual's unemployment insurance benefit
payment, and pay to the secretary of the Department of Social Services, the amount determined
by subdivisions (1) to (3), inclusive, of this section.
The secretary of the Department of Social Services shall reimburse the Department of Labor
and Regulation for administrative costs incurred by the Department of Labor and Regulation
attributable to child support payment obligations and food stamp overissuance obligations being
enforced by the Department of Social Services.
Section 22. That § 61-6A-2 be amended to read as follows:
61-6A-2. For the purposes of §§ 61-6A-1 to 61-6A-14, inclusive, the term, employment,
includes any service performed in the employ of an Indian tribe, as defined in section 3306(u)
of the Federal Unemployment Tax Act (FUTA), as of December 21, 2000, if the service is
excluded from employment as defined in FUTA solely by reason of section 3306(c)(7) FUTA
as of December 21, 2000, and is not otherwise excluded from employment under §§ 61-6A-1
to 61-6A-14, inclusive. For purposes of this section, the exclusions from employment in
subdivisions 61-1-10.4(3) to 61-1-10.4(6) 61-1-36(3) to 61-1-36(6), inclusive, are applicable
to services performed in the employ of an Indian tribe.
Section 23. That § 61-6A-3 be amended to read as follows:
61-6A-3. Benefits based on service in employment defined in §§ 61-6A-1 to 61-6A-14,
inclusive are payable in the same amount, on the same terms, and subject to the same
conditions, as benefits payable based on other services subject to Title 61. However, the
provisions of §§ 61-6-1.2, 61-6-1.3, and 61-6-1.6 61-6-24, 61-6-25, and 61-6-26 apply to
benefits based on service in employment defined in §§ 61-6A-1 to 61-6A-14, inclusive.
Section 24. That § 61-7-10.1 be amended to read as follows:
61-7-10.1. If a determination or redetermination allowing benefits is affirmed in any amount
by the Department of Labor and Regulation benefits shall be paid promptly regardless of any
further appeal or the disposition of the appeal and no injunction, supersedeas, stay or other unit
or process suspending the payment of benefits may be issued by any court; but if the decision
is finally modified or reversed to deny benefits:
(1) Benefits may not be paid for any week of unemployment involved in the modification
or reversal, until a disqualification if imposed has been satisfied; and
(2) No contributing employer's experience rating account may be charged with benefits
paid prior to the determination reversing or modifying a prior determination that
would not have been paid pursuant to the reversing or modifying determination, but
the noncharging does not apply to employers liable for reimbursement to the
department for payments that were paid by the department; and
(3) Benefits paid pursuant to this section or § 61-7-5 shall constitute a recoverable
overpayment as provided in §
61-6-23 61-6-41.