Bill Text: IN HB1457 | 2013 | Regular Session | Enrolled
Bill Title: Unemployment insurance.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Passed) 2013-05-13 - Public Law 154 [HB1457 Detail]
Download: Indiana-2013-HB1457-Enrolled.html
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AN ACT to amend the Indiana Code concerning labor and safety.
account of any employer shall not exceed twenty-eight percent (28%)
of the total wage credits of such individual with each such employer
with which wage credits were established during such individual's base
period. Benefits paid under provisions of IC 22-4-22-3 in excess of the
amount that the claimant would have been monetarily eligible for under
other provisions of this article shall be paid from the fund and not
charged to the experience account of any employer. This exception
shall not apply to those employers electing to make payments in lieu of
contributions who shall be charged for the full amount of regular
benefit payments and the part of benefits not reimbursed by the federal
government under the Federal-State Extended Unemployment
Compensation Act of 1970 that are attributable to service in their
employ. Irrespective of the twenty-eight percent (28%) maximum
limitation provided for in this section, the part of benefits not
reimbursed by the federal government under the Federal-State
Extended Unemployment Compensation Act of 1970 paid to an eligible
individual based on service with a governmental entity of this state or
its political subdivisions shall be charged to the experience or
reimbursable accounts of the employers, and the part of benefits not
reimbursed by the federal government under the Federal-State
Extended Unemployment Compensation Act of 1970 paid to an eligible
individual shall be charged to the experience or reimbursable accounts
of the individual's employers in the individual's base period, other than
governmental entities of this state or its political subdivisions, in the
same proportion and sequence as are provided in this section for
regular benefits paid. Additional benefits paid under IC 22-4-12-4(c)
and benefits paid under IC 22-4-15-1(c)(8) shall:
(1) be paid from the fund; and
(2) not be charged to the experience account or the reimbursable
account of any employer.
(b) If the aggregate of wages paid to an individual by two (2) or
more employers during the same calendar quarter exceeds the
maximum wage credits (as defined in IC 22-4-4-3) then the experience
or reimbursable account of each such employer shall be charged in the
ratio which the amount of wage credits from such employer bears to the
total amount of wage credits during the base period.
(c) When wage records show that an individual has been employed
by two (2) or more employers during the same calendar quarter of the
base period but do not indicate both that such employment was
consecutive and the order of sequence thereof, then and in such cases
it shall be deemed that the employer with whom the individual
established a plurality of wage credits in such calendar quarter is the
most recent employer in such quarter and its experience or
reimbursable account shall be first charged with benefits paid to such
individual. The experience or reimbursable account of the employer
with whom the next highest amount of wage credits were established
shall be charged secondly and the experience or reimbursable accounts
of other employers during such quarters, if any, shall likewise be
charged in order according to plurality of wage credits established by
such individual.
(d) Except as provided in subsection (f) or section 1.5 of this
chapter, if an individual:
(1) voluntarily leaves an employer without good cause in
connection with the work; or
(2) is discharged from an employer for just cause;
wage credits earned with the employer from whom the employee has
separated under these conditions shall be used to compute the
claimant's eligibility for benefits, but charges based on such wage
credits shall be paid from the fund and not charged to the experience
account of any employer. However, this exception shall not apply to
those employers who elect to make payments in lieu of contributions,
who shall be charged for all benefit payments which are attributable to
service in their employ.
(e) Any nonprofit organization which elects to make payments in
lieu of contributions into the unemployment compensation fund as
provided in this article is not liable to make the payments with respect
to the benefits paid to any individual whose base period wages include
wages for previously uncovered services as defined in IC 22-4-4-4, nor
is the experience account of any other employer liable for charges for
benefits paid the individual to the extent that the unemployment
compensation fund is reimbursed for these benefits pursuant to Section
121 of P.L.94-566. Payments which otherwise would have been
chargeable to the reimbursable or contributing employers shall be
charged to the fund.
(f) If an individual:
(1) earns wages during the individual's base period through
employment with two (2) or more employers concurrently;
(2) is separated from work by one (1) of the employers for reasons
that would not result in disqualification under IC 22-4-15-1; and
(3) continues to work for one (1) or more of the other employers
after the end of the base period and continues to work during the
applicable benefit year on substantially the same basis as during
the base period;
wage credits earned with the base period employers shall be used to
compute the claimant's eligibility for benefits, but charges based on the
wage credits from the employer who continues to employ the individual
shall be charged to the experience or reimbursable account of the
separating employer.
(g) Subsection (f) does not affect the eligibility of a claimant who
otherwise qualifies for benefits nor the computation of benefits.
(h) Unemployment benefits paid shall not be charged to the
experience account of a base period employer when the claimant's
unemployment from the employer was a direct result of the
condemnation of property by a municipal corporation (as defined in
IC 36-1-2-10), the state, or the federal government, a fire, a flood, or an
act of nature, when at least fifty percent (50%) of the employer's
employees, including the claimant, became unemployed as a result.
This exception does not apply when the unemployment was an
intentional result of the employer or a person acting on behalf of the
employer.
(b) As used in this section, "pattern of failure" means a repeated and documented failure by an employer or a person acting on behalf of an employer to respond to requests for information made by the department, taking into consideration the number of failures in relation to the total number of requests received by the employer or the person acting on behalf of an employer.
(c) The experience account of an employer may not be relieved of charges for a benefit overpayment from the state's unemployment insurance benefit fund established by IC 22-4-26-1, if the department determines that:
(1) the erroneous payment was made because the employer or a person acting on behalf of the employer was at fault in failing to respond in a timely or adequate manner to the department's written request for information relating to the claim for unemployment benefits; and
(2) the employer or a person acting on behalf of the employer has established a pattern of failure to respond in a timely or adequate manner to department requests described in subdivision (1).
(b) The balance shall include contributions with respect to the period ending on the computation date and actually paid on or before July 31 immediately following the computation date and benefits actually paid on or before the computation date and shall also include any voluntary payments made in accordance with IC 22-4-10-5 or IC 22-4-10-5.5 (repealed):
(1) for each calendar year, an employer's rate shall be determined in accordance with the rate schedules in section 3.3 or 3.5 of this chapter; and
(2) for each calendar year, an employer's rate shall be
(A) the employer has been subject to this article throughout the thirty-six (36) consecutive calendar months immediately preceding the computation date;
(B) there has been some annual payroll in each of the three (3) twelve (12) month periods immediately preceding the computation date; and
(C) the employer has properly filed all required contribution and wage reports, and all contributions, penalties, and interest due and owing by the employer or the employer's predecessors have been paid.
(c)
(1) within thirty-one (31) days following the computation date; or
(2) within ten (10) days after the department has given the employer a written notice by registered mail to the employer's last known address of:
(A) the delinquency; or
(B) failure to file the reports;
whichever is the later date. The board or the board's designee may waive the imposition of rates under this subsection if the board finds the employer's failure to meet the deadlines was for excusable cause. The department shall give written notice to the employer before this additional condition or requirement shall apply. An employer's rate under this subsection may not exceed twelve percent (12%).
until it has been subject to this article throughout the thirty-six (36) consecutive calendar months immediately preceding the computation date.
STEP ONE: Divide:
(A) the employer's taxable wages for the preceding calendar year; by
(B) the total taxable wages for the preceding calendar year.
STEP TWO: Multiply the quotient determined under STEP ONE by the total amount of benefits charged to the fund under section 1 of this chapter.
(1) considered a contribution for the purposes of this article; and
(2) deposited in the unemployment insurance benefit fund established under IC 22-4-26.
(g) Except as otherwise provided in IC 22-4-37-3, this subsection, instead of subsection (b)(2), applies to an employer in the construction industry. As used in the subsection, "construction industry" means business establishments whose proper primary classification in the current edition of the North American Industry Classification System Manual - United States, published by the National Technical Information Service of the United States Department of Commerce is 23 (construction). For each calendar year beginning after December 31, 2013, an employer's rate shall be equal to the lesser of four percent (4%) or the average of the contribution rates paid by all employers in the construction industry subject to this article during the twelve (12) months preceding the computation date, unless:
(1) the employer has been subject to this article throughout the thirty-six (36) consecutive calendar months immediately preceding the computation date;
(2) there has been some annual payroll in each of the three (3) twelve (12) month periods immediately preceding the computation date; and
(3) the employer has properly filed all required contribution and wage reports, and all contributions, penalties, and interest due and owing by the employer or the employer's predecessors have been paid.
commissioner finds that any employer has failed to file any payroll
report or has filed a report which the commissioner finds incorrect or
insufficient, the commissioner shall make an estimate of the
information required from the employer on the basis of the best
evidence reasonably available to the commissioner at the time and
notify the employer thereof by mail addressed to the employer's last
known address. Except as provided in subsection (b), unless the
employer files the report or a corrected or sufficient report, as the case
may be, within fifteen (15) days after the mailing of the notice, the
commissioner shall compute the employer's rate of contribution on the
basis of the estimates, and the rate determined in this manner shall be
subject to increase but not to reduction or decrease on the basis of
subsequently ascertained and verified information. The estimated
amount of contribution is considered prima facie correct.
(b) The commissioner may adjust the amount of contribution
estimated in this manner on the basis of information ascertained after
the expiration of the notice period if the employer or other interested
party:
(1) makes an affirmative showing of all facts alleged as a
reasonable cause for the failure to timely file any payroll report;
and
(2) submits accurate and reliable payroll reports.
(1) fails to disclose amounts earned during any week in the individual's waiting period, benefit period, or extended benefit period; or
(2) fails to disclose or has falsified any fact;
that would disqualify the individual for benefits, reduce the individual's benefits, or render the individual ineligible for benefits or extended benefits, the individual forfeits any wage credits earned or any benefits or extended benefits that might otherwise be payable to the individual for the period in which the failure to disclose or falsification occurs.
(b) In addition to amounts forfeited under subsection (a), an individual is subject to the following civil penalties for each instance in which the individual knowingly fails to disclose or falsifies any fact that if accurately reported to the department would disqualify the individual for benefits, reduce the individual's benefits, or render the individual ineligible for benefits or extended benefits:
(1) For the first instance, an amount equal to twenty-five percent
(25%) of the benefit overpayment.
(2) For the second instance, an amount equal to fifty percent
(50%) of the benefit overpayment.
(3) For the third and each subsequent instance, an amount equal
to one hundred percent (100%) of the benefit overpayment.
(c) The department's determination under this section constitutes an
initial determination under IC 22-4-17-2(l) IC 22-4-17-2(a) and is
subject to a hearing and review under IC 22-4-17-3 through
IC 22-4-17-15.
(d) Interest and civil penalties collected under this chapter shall be
deposited as follows:
(1) Fifteen percent (15%) of the amount collected shall be
deposited in the unemployment insurance benefit fund
established under IC 22-4-26-1.
(2) The remainder of the amount collected shall be deposited
in the special employment and training services fund established
under IC 22-4-25-1.
(b) An unemployed individual shall be eligible to receive benefits with respect to any week only if the individual:
(1) is physically and mentally able to work;
(2) is available for work;
(3) is found by the department to be making an effort to secure full-time work; and
(4) participates in reemployment services, such as job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and to need reemployment services under a profiling system established by the department, and reemployment and eligibility assessment activities when directed by the department, unless the department determines that:
(A) the individual has completed the reemployment services; or
(B) failure by the individual to participate in or complete the reemployment services is excused by the director under IC 22-4-14-2(b).
The term "effort to secure full-time work" shall be defined by the department through rule which shall take into consideration whether such individual has a reasonable assurance of reemployment and, if so, the length of the prospective period of unemployment. However, if an otherwise eligible individual is unable to work or unavailable for work on any normal work day of the week the individual shall be eligible to receive benefits with respect to such week reduced by one-third (1/3) of the individual's weekly benefit amount for each day of such inability to work or unavailability for work.
(c) For the purpose of this article, unavailability for work of an individual exists in, but is not limited to, any case in which, with respect to any week, it is found:
(1) that such individual is engaged by any unit, agency, or instrumentality of the United States, in charge of public works or assistance through public employment, or any unit, agency, or instrumentality of this state, or any political subdivision thereof, in charge of any public works or assistance through public employment;
(2) that such individual is in full-time active military service of the United States, or is enrolled in civilian service as a conscientious objector to military service;
(3) that such individual is suspended for misconduct in connection with the individual's work; or
(4) that such individual is in attendance at a regularly established public or private school during the customary hours of the individual's occupation or is in any vacation period intervening between regular school terms during which the individual is a student. However, this subdivision does not apply to any individual who is attending a regularly established school, has been regularly employed and upon becoming unemployed makes an effort to secure full-time work and is available for suitable full-time work with the individual's last employer, or is available for any other full-time employment deemed suitable.
(d) Notwithstanding any other provisions in this section or IC 22-4-15-2, no otherwise eligible individual shall be denied benefits for any week because the individual is in training with the approval of the department, nor shall such individual be denied benefits with respect to any week in which the individual is in training with the approval of the department by reason of the application of the provisions of this section with respect to the availability for work or active search for work or by reason of the application of the provisions of IC 22-4-15-2 relating to failure to apply for, or the refusal to accept,
suitable work. The department shall by rule prescribe the conditions
under which approval of such training will be granted.
(e) Notwithstanding subsection (b), (c), or (d), or IC 22-4-15-2, an
otherwise eligible individual shall not be denied benefits for any week
or determined not able, available, and actively seeking work, because
the individual is responding to a summons for jury service. The
individual shall:
(1) obtain from the court proof of the individual's jury service;
and
(2) provide to the department, in the manner the department
prescribes by rule, proof of the individual's jury service.
(f) For purposes of this section, reemployment services and
reemployment and eligibility assessment activities provided to an
individual:
(1) must include:
(A) orientation to the services available through a one stop
center (as defined by IC 22-4.5-2-6);
(B) provision of labor market and career information;
(C) assessment of the individual's workforce and other job
related skills; and
(D) a review of the individual's work search efforts; and
(2) may include:
(A) comprehensive and specialized assessments;
(B) individual and group career counseling;
(C) training services;
(D) additional services to assist the individual in becoming
reemployed;
(E) job search counseling; and
(F) development and review of the individual's
reemployment plan that includes the individual's
participation in job search activities and appropriate
workshops.
(g) The department may require an individual participating in
reemployment and eligibility assessment activities described in this
section to provide proof of identity.
and include a written statement showing the amount of wages paid to
the individual for insured work by each employer during the
individual's base period and shall include a finding as to whether such
wages meet the requirements for the individual to be an insured
worker, and, if so, the week ending date of the first week of the
individual's benefit period, the individual's weekly benefit amount, and
the maximum amount of benefits that may be paid to the individual for
weeks of unemployment in the individual's benefit period. For the
individual who is not insured, the notice shall include the reason for the
determination. Unless the individual, within ten (10) days after such
determination was mailed to the individual's last known address, or
otherwise delivered to the individual, asks a hearing thereon before an
administrative law judge, such determination shall be final and benefits
shall be paid or denied in accordance therewith.
(b) The department shall promptly furnish each employer in the base
period whose experience or reimbursable account is potentially
chargeable with benefits to be paid to such individual with a notice in
writing of the employer's benefit liability. The notice shall contain the
date, the name and Social Security account number of the individual,
the ending date of the individual's base period, and the week ending
date of the first week of the individual's benefit period. The notice shall
further contain information as to the proportion of benefits chargeable
to the employer's experience or reimbursable account in ratio to the
earnings of such individual from such employer. Unless the employer
within ten (10) days after such notice of benefit liability was mailed to
the employer's last known address, or otherwise delivered to the
employer, asks a hearing thereon before an administrative law judge,
such determination shall be final and benefits paid shall be charged in
accordance therewith.
(c) An employing unit, including an employer, having knowledge
of any facts which may affect an individual's eligibility or right to
waiting period credits or benefits, shall notify the department of such
facts within ten (10) days after the mailing of notice that a former
employee has filed an initial or additional claim for benefits on a form
prescribed by the department.
(d) If, after the department determines that additional information
is necessary to make a determination under this chapter:
(1) the department makes a request in writing for additional
information from an employing unit, including an employer, on
a form prescribed by the department; and
(2) the employing unit fails to respond within ten (10) days after
the date the request is mailed to the employing unit;
notification required by subsection (h), (e), was mailed to the claimant's
or the employer's last known address or otherwise delivered to the
claimant or the employer, asks for a hearing before an administrative
law judge thereon, such decision shall be final and benefits shall be
paid or denied in accordance therewith.
(j) (g) For a notice of disputed administrative determination or
decision mailed or otherwise delivered to the claimant or employer
either of whom is located in Alaska, Hawaii, or Puerto Rico, unless the
claimant or employer, within fifteen (15) days after the notification
required by subsection (h), (e), was mailed to the claimant's or
employer's last known address or otherwise delivered to the claimant
or employer, asks for a hearing before an administrative law judge
thereon, such decision shall be final and benefits shall be paid or
denied in accordance therewith.
(k) (h) If a claimant or an employer requests a hearing under
subsection (i) (f) or (j), (g), the request therefor shall be filed with the
department in writing within the prescribed periods as above set forth
in this section and shall be in such form as the department may
prescribe. In the event a hearing is requested by an employer or the
department after it has been administratively determined that benefits
should be allowed to a claimant, entitled benefits shall continue to be
paid to said claimant unless said administrative determination has been
reversed by a due process hearing. Benefits with respect to any week
not in dispute shall be paid promptly regardless of any appeal.
(l) (i) A person may not participate on behalf of the department in
any case in which the person is an interested party.
(m) (j) Solely on the ground of obvious administrative error
appearing on the face of an original determination, and within the
benefit year of the affected claims, the commissioner, or a
representative authorized by the commissioner to act in the
commissioner's behalf, may reconsider and direct the deputy to revise
the original determination so as to correct the obvious error appearing
therein. Time for filing an appeal and requesting a hearing before an
administrative law judge regarding the determinations handed down
pursuant to this subsection shall begin on the date following the date
of revision of the original determination and shall be filed with the
commissioner in writing within the prescribed periods as above set
forth in subsection (c).
(n) (k) Notice to the employer and the claimant that the
determination of the department is final if a hearing is not requested
shall be prominently displayed on the notice of the determination
which is sent to the employer and the claimant.
(b) As used in this section, "date of hire" is:
(1) the first date that an employee provides labor or services to an employer; or
(2) the first date that an employee resumes providing labor or services to an employer after a separation from service with the employer of at least sixty (60) days.
(c) As used in this section, "employee":
(1) has the meaning set forth in Chapter 24 of the Internal Revenue Code of 1986; and
(2) includes any individual:
(A) required under Internal Revenue Service regulations to complete a federal form W-4; and
(B) who has provided services to an employer.
The term does not include an employee of a federal or state agency who performs intelligence or counter intelligence functions if the head of the agency determines that the reporting information required under this section could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
(d) As used in this section, "employer" has the meaning set forth in Section 3401(d) of the Internal Revenue Code of 1986. The term includes:
(1) governmental agencies;
(2) labor organizations;
(A) the person's federal employer identification number; or
(B) if applicable, the common paymaster, as defined in Section 3121 of the Internal Revenue Code or the payroll reporting agent of the employer, as described in IRS Rev. Proc. 70-6, 1970-1, C.B. 420.
(e) As used in this section, "labor organization" has the meaning set forth in 42 U.S.C. 653A(a)(2)(B)(ii).
(f) As used in this section, "newly hired employee" means an employee who:
(1) has not previously been employed by an employer; or
(2) resumes service with an employer after a separation from service of at least sixty (60) days.
(i) An employer must transmit the information required under subsection (k):
(1)
(2) if
(A) not less than twelve (12) days apart; and
(B) not more than sixteen (16) days apart.
(j)
(1) if it is postmarked on or before the due date, whenever the report is mailed; or
(2)
(A) facsimile machine; or
(B) electronic or magnetic media.
(1) The name, address, and Social Security number of the employee.
(2) The name, address, and federal tax identification number of the employer.
(3) The date of hire of the employee.
(1) Designating one (1) state to receive each report.
(2) Notifying the Secretary of the United States Department of Health and Human Services which state will receive the reports.
(3) Transmitting the reports to the agency in the designated state that is charged with receiving the reports.
(1) Twenty-five dollars ($25) on an employer that fails to comply with this section.
(2) Five hundred dollars ($500) on an employer that fails to comply with this section if the failure is a result of a conspiracy between the employer and the employee to:
(1)
(2)
The state shall use quality control standards established by the Administrators of the National Directory of New Hires.
(1) reimburse the department for any costs incurred in carrying out this section;
(2) enter into a purchase of service agreement with the department that establishes procedures necessary to administer this section.
(b) The general assembly urges the legislative council to assign the committee the task of studying the following issues:
(1) The use of debit cards to pay unemployment insurance benefits.
(2) The direct deposit of unemployment insurance benefits to a claimant's own checking or savings account.
(c) If the committee is assigned the topics described in subsection (b), the committee shall issue to the legislative council a final report containing the committee's findings and recommendations, including any recommended legislation concerning the topics, in an electronic format under IC 5-14-6 not later than November 1, 2013.
(d) This SECTION expires January 1, 2014.
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