AN ACT to amend the Indiana Code concerning state and local administration and to make
an appropriation.
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 28. (a) As used in The following definitions
apply throughout this section:
(1) "Ombudsman" refers to the small business ombudsman
designated under IC 5-28-17-5.
(2) "Total estimated economic impact" means the annual
economic impact of a rule on all regulated persons after the rule
is fully implemented under subsection (g).
(b) The Indiana economic development corporation established by
IC 5-28-3-1: ombudsman:
(1) shall review a proposed rule that:
(A) imposes requirements or costs on small businesses (as
defined in IC 4-22-2.1-4); and
(B) is referred to the corporation ombudsman by an agency
under IC 4-22-2.1-5(c); and
(2) may review a proposed rule that imposes requirements or
costs on businesses other than small businesses (as defined in
IC 4-22-2.1-4).
After conducting a review under subdivision (1) or (2), the corporation
ombudsman may suggest alternatives to reduce any regulatory burden
that the proposed rule imposes on small businesses or other businesses.
The agency that intends to adopt the proposed rule shall respond in
writing to the Indiana economic development corporation ombudsman
concerning the corporation's ombudsman's comments or suggested
alternatives before adopting the proposed rule under section 29 of this
chapter.
(c) Subject to subsection (f) and not later than fifty (50) days before
the public hearing required by section 26 of this chapter, an agency
shall submit a proposed rule to the office of management and budget
for a review under subsection (d) if the agency proposing the rule
determines that the rule will have a total estimated economic impact
greater than five hundred thousand dollars ($500,000) on all regulated
persons. In determining the total estimated economic impact under this
subsection, the agency shall consider any applicable information
submitted by the regulated persons affected by the rule. To assist the
office of management and budget in preparing the fiscal impact
statement required by subsection (d), the agency shall submit, along
with the proposed rule, the data used and assumptions made by the
agency in determining the total estimated economic impact of the rule.
(d) Except as provided in subsection (e), before the adoption of the
rule, and not more than forty-five (45) days after receiving a proposed
rule under subsection (c), the office of management and budget shall
prepare, using the data and assumptions provided by the agency
proposing the rule, along with any other data or information available
to the office of management and budget, a fiscal impact statement
concerning the effect that compliance with the proposed rule will have
on:
(1) the state; and
(2) all persons regulated by the proposed rule.
The fiscal impact statement must contain the total estimated economic
impact of the proposed rule and a determination concerning the extent
to which the proposed rule creates an unfunded mandate on a state
agency or political subdivision. The fiscal impact statement is a public
document. The office of management and budget shall make the fiscal
impact statement available to interested parties upon request. The
agency proposing the rule shall consider the fiscal impact statement as
part of the rulemaking process and shall provide the office of
management and budget with the information necessary to prepare the
fiscal impact statement, including any economic impact statement
prepared by the agency under IC 4-22-2.1-5. The office of management
and budget may also receive and consider applicable information from
the regulated persons affected by the rule in preparation of the fiscal
impact statement.
(e) With respect to a proposed rule subject to IC 13-14-9:
(1) the department of environmental management shall give
written notice to the office of management and budget of the
proposed date of preliminary adoption of the proposed rule not
less than sixty-six (66) days before that date; and
(2) the office of management and budget shall prepare the fiscal
impact statement referred to in subsection (d) not later than
twenty-one (21) days before the proposed date of preliminary
adoption of the proposed rule.
(f) In determining whether a proposed rule has a total estimated
economic impact greater than five hundred thousand dollars
($500,000), the agency proposing the rule shall consider the impact of
the rule on any regulated person that already complies with the
standards imposed by the rule on a voluntary basis.
(g) For purposes of this section, a rule is fully implemented after:
(1) the conclusion of any phase-in period during which:
(A) the rule is gradually made to apply to certain regulated
persons; or
(B) the costs of the rule are gradually implemented; and
(2) the rule applies to all regulated persons that will be affected
by the rule.
qualified by knowledge or experience with respect to each rule. Subject
to subsection (f):
(1) in the case of a proposed rule, the notice of intent to adopt the
rule published under section 23 of this chapter; or
(2) in the case of a rule proposed by the department of
environmental management or any of the boards (as defined in
IC 13-11-2-18), the notice published under IC 13-14-9-3 or the
findings published under IC 13-14-9-8(b)(1), whichever applies;
must include the name, address, telephone number, and electronic mail
address of the small business coordinator for the proposed rule, the
name, address, telephone number, and electronic mail address of
the small business ombudsman designated under IC 5-28-17-5, and
a statement of the resources available to regulated entities through
the small business ombudsman designated under IC 5-28-17-5.
Subject to subsection (f), in the case of a rule finally adopted, the final
rule, as published in the Indiana Register, must include the name,
address, telephone number, and electronic mail address of the
coordinator.
(f) This subsection applies to a rule adopted by the department of
environmental management or any of the boards (as defined in
IC 13-11-2-18) under IC 13-14-9. Subject to subsection (g), the
department shall include in the notice provided under IC 13-14-9-3 or
in the findings published under IC 13-14-9-8(b)(1), whichever applies,
and in the publication of the final rule in the Indiana Register:
(1) a statement of the resources available to regulated entities
through the technical and compliance assistance program
established under IC 13-28-3
(2) the name, address, telephone number, and electronic mail
address of the ombudsman designated under IC 13-28-3-2;
(3) if applicable, a statement of:
(A) the resources available to small businesses through the
small business stationary source technical assistance program
established under IC 13-28-5; and
(B) the name, address, telephone number, and electronic mail
address of the ombudsman for small business designated under
IC 13-28-5-2(3); and
(4) the information required by subsection (e).
The coordinator assigned to the rule under subsection (e) shall work
with the ombudsman described in subdivision (2) and the office of
voluntary compliance established by IC 13-28-1-1 to coordinate the
provision of services required under subsection (h) and IC 13-28-3. If
applicable, the coordinator assigned to the rule under subsection (e)
shall work with the ombudsman referred to in subdivision (3)(B) to
coordinate the provision of services required under subsection (h) and
IC 13-28-5.
(g) If the notice provided under IC 13-14-9-3 is not published as
allowed by IC 13-14-9-7, the department of environmental
management shall publish in the notice provided under IC 13-14-9-4
the information that subsection (f) would otherwise require to be
published in the notice under IC 13-14-9-3. If neither the notice under
IC 13-14-9-3 nor the notice under IC 13-14-9-4 is published as allowed
by IC 13-14-9-8, the department of environmental management shall
publish in the commissioner's written findings under IC 13-14-9-8(b)
the information that subsection (f) would otherwise require to be
published in the notice under IC 13-14-9-3.
(h) The coordinator assigned to a rule under subsection (e) shall
serve as a liaison between the agency and any small business subject
to regulation under the rule. The coordinator shall provide guidance to
small businesses affected by the rule on the following:
(1) Any requirements imposed by the rule, including any
reporting, record keeping, or accounting requirements.
(2) How the agency determines or measures compliance with the
rule, including any deadlines for action by regulated entities.
(3) Any penalties, sanctions, or fines imposed for noncompliance
with the rule.
(4) Any other concerns of small businesses with respect to the
rule, including the agency's application or enforcement of the rule
in particular situations. However, in the case of a rule adopted
under IC 13-14-9, the coordinator assigned to the rule may refer
a small business with concerns about the application or
enforcement of the rule in a particular situation to the ombudsman
designated under IC 13-28-3-2 or, if applicable, under
IC 13-28-5-2(3).
(i) The coordinator assigned to a rule under subsection (e) shall
provide guidance under this section in response to questions and
concerns expressed by small businesses affected by the rule. The
coordinator may also issue general guidelines or informational
pamphlets to assist small businesses in complying with the rule. Any
guidelines or informational pamphlets issued under this subsection
shall be made available:
(1) for public inspection and copying at the offices of the agency
under IC 5-14-3; and
(2) electronically through electronic gateway access.
(j) The coordinator assigned to a rule under subsection (e) shall
keep a record of all comments, questions, and complaints received
from small businesses with respect to the rule. The coordinator shall
deliver the record, along with any accompanying documents submitted
by small businesses, to the director:
(1) not later than ten (10) days after the date on which the rule is
submitted to the publisher under section 35 of this chapter; and
(2) before July 15 of each year during which the rule remains in
effect.
The coordinator and the director shall keep confidential any
information concerning a small business to the extent that the
information is exempt from public disclosure under IC 5-14-3-4.
(k) Not later than November 1 of each year, the director shall:
(1) compile the records received from all of the agency's
coordinators under subsection (j);
(2) prepare a report that sets forth:
(A) the number of comments, complaints, and questions
received by the agency from small businesses during the most
recent state fiscal year, categorized by the subject matter of the
rules involved;
(B) the number of complaints or questions reported under
clause (A) that were resolved to the satisfaction of the agency
and the small businesses involved;
(C) the total number of staff serving as coordinators under this
section during the most recent state fiscal year;
(D) the agency's costs in complying with this section during
the most recent state fiscal year; and
(E) the projected budget required by the agency to comply
with this section during the current state fiscal year; and
(3) deliver the report to the legislative council in an electronic
format under IC 5-14-6 and to the Indiana economic development
corporation established small business ombudsman designated
by IC 5-28-3. IC 5-28-17-5.
or less. has the meaning set forth in IC 5-28-2-6.
must reflect in a fair and balanced way the amount of
incentive received.
(4) A requirement that the applicant will pay back to the state
the incentive that has been received by the applicant if the
applicant moves or closes.
rulemaking actions that affect small businesses.
(6) Coordinate with the ombudsmen designated under
IC 13-28-3-2 and the office of voluntary compliance
established by IC 13-28-1-1 to coordinate the provision of
services required under IC 4-22-2-28.1 and IC 13-28-3.
(7) Prepare written and electronic information for periodic
distribution to small businesses describing the small business
services provided by coordinators (as defined in IC 4-3-22-16)
and work with the office of technology established by
IC 4-13.1-2-1 to place information concerning the availability
of these services on state Internet web sites that the small
business ombudsman or a state agency determines are most
likely to be visited by small business owners and managers.
(8) Assist in training agency coordinators that will be assigned
to rules under IC 4-22-2-28.1(e).
(9) Investigate and attempt to resolve any matter regarding
compliance by a small business with a law, rule, or policy
administered by a state agency, either as a party to a
proceeding or as a mediator.
State agencies shall cooperate with the small business ombudsman
to carry out the purpose of this section. The department of state
revenue and the department of workforce development shall
establish a program to distribute the information described in
subdivision (7) to small businesses that are required to file returns
or information with these state agencies.
seek a refund or arrange other methods of reclaiming the grant or loan
from the recipient. If the corporation does seek a refund or otherwise
reclaims a grant or loan from the recipient under this section, the
amount of the refund or reclaimed part must be in proportion to the
degree of default by the recipient as determined by the corporation.
(c) Subsection (b) does not apply to a recipient of a grant or loan if:
(1) the grant or loan has been disbursed on a pro rata basis; and
(2) in the judgment of the corporation, the recipient's performance
in relation to the recipient's performance goals equals or exceeds
the ratio of the amount of the recipient's actual benefit from the
grant or loan to the total amount of the grant or loan originally
contemplated in the grant or loan award.
(d) If the incentive granted by the corporation was awarded
after March 31, 2010, the corporation shall seek a refund or
arrange other methods of reclaiming the value of the incentive
granted by the corporation from the recipient. The amount of the
refund or reclaimed part must be in proportion to the degree of
default by the recipient as determined by the corporation.
granted by the corporation. The report required by this section
must describe:
(1) the overall compliance with the terms and conditions of
incentives provided; and
(2) penalties imposed for failure to comply with the terms and
conditions of incentives provided.
The report must also be submitted to the general assembly in an
electronic format under IC 5-14-6.
(b) Upon request, the corporation shall make available:
(1) information specifying each person's compliance with its
incentive agreement and any incentive that had to be reduced
or paid back as a result of noncompliance with an incentive
agreement;
(2) information stating, for each incentive recipient, the total
incentive provided for each job created, computed from the
date the incentive is granted through June 30 of the year of
the report;
(3) information concerning all waivers or modifications under
section 8 of this chapter; and
(4) information describing all hearings and determinations
under IC 5-28-6-6.
not a new Indiana business, or does not meet, or is unlikely to meet,
any other requirements for the tax credit provided by this chapter,
the IEDC shall notify the applicant of the IEDC's determination.
(f) The IEDC may not issue a certificate of approval under this
chapter after December 31, 2012.
Sec. 10. (a) Each taxable year, a new Indiana business is entitled
to a tax credit against the new Indiana business's state tax liability
for the taxable year in the amount specified by section 11 of this
chapter.
(b) The tax credit provided by subsection (a) is based on a
period not exceeding twenty-four (24) consecutive calendar months
during which the new Indiana business meets the conditions of this
chapter. The period begins on the first day of the month following
the month in which the new Indiana business is approved by the
IEDC under this chapter. The period ends on the final day of:
(1) the twenty-fourth consecutive calendar month that the
new Indiana business complies with the conditions of this
chapter; or
(2) the month in which the new Indiana business ceases to
comply with the conditions of this chapter;
whichever month occurs first.
Sec. 11. For each taxable year, the amount of the tax credit
under this chapter is equal to ten percent (10%) of the wages paid
by the new Indiana business to qualified employees during the
calendar months of the period specified in section 10(b) of this
chapter that are included in the taxable year.
Sec. 12. If a pass through entity does not have state tax liability
against which a tax credit may be applied, a shareholder, partner,
fiduciary, or member of the pass through entity is entitled to a tax
credit equal to:
(1) the tax credit to which the pass through entity would be
entitled under this chapter for the taxable year if the pass
through entity were a taxpayer; multiplied by
(2) the percentage of the pass through entity's distributive
income to which the shareholder, partner, fiduciary, or
member is entitled.
Sec. 13. (a) If the credit provided by this chapter exceeds the
taxpayer's state tax liability for the taxable year for which the
credit is first claimed, the excess may be carried forward to
succeeding taxable years and used as a credit against the
taxpayer's state tax liability during those taxable years. Each time
that the credit is carried forward to a succeeding taxable year, the
credit is to be reduced by the amount that was used as a credit
during the immediately preceding taxable year. The credit
provided by this chapter may be carried forward and applied to
succeeding taxable years for not more than nine (9) taxable years
following the first year the credit is claimed.
(b) A taxpayer is not entitled to any carryback or refund of any
unused credit.
Sec. 14. To qualify for a tax credit under this chapter, a
taxpayer must claim the tax credit on the taxpayer's annual state
tax return or returns in the manner prescribed by the department.
The taxpayer shall maintain the records required by the
department for the period specified by the department to
substantiate the taxpayer's eligibility for the credit.
IC 12-10-10-5.
(3) (4) For purposes of IC 12-17.6, the meaning set forth in
IC 12-17.6-1-5.
by P.L.182-2009(ss) for TANF, augmentation is allowed (as defined
in P.L.182-2009(ss), SECTION 1) from any state fund that is not
restricted by federal law or the terms of a contract, grant, loan,
gift, or bequest solely for the purpose of providing state match
money for the program. The amount of augmentation from a fund
other than the state general fund that is not expended or
unencumbered before the end of a state fiscal year reverts to and
is available for the purposes of the fund from which the
augmentation came. Notwithstanding IC 4-9.1-1-7, IC 4-12-1-12,
IC 4-13-2-23, or another law, the money may not be transferred,
assigned, or reassigned for another purpose.
Sec. 5. On or before June 30, 2010, and at the end of each
quarter thereafter, the secretary shall submit to the budget
committee a report describing the secretary's progress in
implementing this chapter, including a description of the sources
of state match money used for the program.
Sec. 6. This chapter expires December 31, 2013.
with and enforcing state laws concerning misclassified
employees and to recoup contributions owed, depending on
the level of culpability.
(D) Record keeping requirements for contractors,
including any records necessary for the department to
investigate alleged violations concerning misclassification
of employees.
(E) Investigative procedures.
(2) Apply to public works and private work projects for the
construction industry (as described in IC 4-13.5-1-1(3)),
including demolition.
(3) Apply to any contractor that engages in construction and
is authorized to do business in Indiana.
(4) Provide a remedy for an employer or a misclassified
employee in response to:
(A) any retaliation that occurs as the result of an
investigation or a complaint; and
(B) any complaints that the department determines are
frivolous or that are filed for the purpose of harassment.
(5) Provide that in carrying out this chapter the department
has the same inspection, investigative, and enforcement
powers that the department has in enforcing the labor laws of
this state, including powers described in IC 22-1-1.
(c) The guidelines and procedures may include other elements
as determined by the department.
(d) The department shall exempt the following from the
guidelines and procedures developed under this chapter:
(1) Residential construction of a single family home or duplex
if the builder builds less than twenty-five (25) units each year.
(2) An owner-operator that provides a motor vehicle and the
services of a driver under a written contract that is subject to
IC 8-2.1-24-23, 45 IAC 16-1-13, or 49 CFR 376, to a motor
carrier.
Sec. 3. In developing the guidelines and procedures under this
chapter, the department shall use:
(1) the definition of "employee" used in Section 3401(c) of the
Internal Revenue Code; and
(2) the following factors used by the Internal Revenue Service
to determine whether a worker is an independent contractor:
(A) Instructions. A worker who is required to comply with
other persons' instructions about when, where, and how he
or she is to work is ordinarily an employee. This control
factor is present if the person or persons for whom the
services are performed have the right to require
compliance with instructions. See, for example, Rev. Rul.
68-598, 1968-2 C.B. 464, and Rev. Rul. 66-381, 1966-2 C.B.
449.
(B) Training. Training a worker by requiring an
experienced employee to work with the worker, by
corresponding with the worker, by requiring the worker to
attend meetings, or by using other methods, indicates that
the person or persons for whom the services are performed
want the services performed in a particular method or
manner. See Rev. Rul. 70-630, 1970-2 C.B. 229.
(C) Integration. Integration of the worker's services into
the business operations generally shows that the worker is
subject to direction and control. When the success or
continuation of a business depends to an appreciable
degree upon the performance of certain services, the
workers who perform those services must necessarily be
subject to a certain amount of control by the owner of the
business. See United States v. Silk, 331 U.S. 704 (1947),
1947-2 C.B. 167.
(D) Services rendered personally. If the services must be
rendered personally, presumably the person or persons for
whom the services are performed are interested in the
methods used to accomplish the work as well as in the
results. See Rev. Rul. 55-695, 1955-2 C.B. 410.
(E) Hiring, supervising, and paying assistants. If the person
or persons for whom the services are performed hire,
supervise, and pay assistants, that factor generally shows
control over the workers on the job. However, if one (1)
worker hires, supervises, and pays the other assistants
under a contract under which the worker agrees to provide
materials and labor and under which the worker is
responsible only for the attainment of a result, this factor
indicates an independent contractor status. Compare Rev.
Rul. 63-115, 1963-1 C.B. 178, with Rev. Rul. 55-593 1955-2
C.B. 610.
(F) Continuing relationship. A continuing relationship
between the worker and the person or persons for whom
the services are performed indicates that an
employer-employee relationship exists. A continuing
relationship may exist where work is performed at
frequently recurring although irregular intervals. See
United States v. Silk.
(G) Set hours of work. The establishment of set hours of
work by the person or persons for whom the services are
performed is a factor indicating control. See Rev. Rul.
73-591, 1973-2 C.B. 337.
(H) Full time required. If the worker must devote
substantially full time to the business of the person or
persons for whom the services are performed, such person
or persons have control over the amount of time the
worker spends working and impliedly restrict the worker
from doing other gainful work. An independent contractor
on the other hand, is free to work when and for whom he
or she chooses. See Rev. Rul. 56-694, 1956-2 C.B. 694.
(I) Doing work on employer's premises. If the work is
performed on the premises of the person or persons for
whom the services are performed, that factor suggests
control over the worker, especially if the work could be
done elsewhere. Rev. Rul. 56-660, 1956-2 C.B. 693. Work
done off the premises of the person or persons receiving
the services, such as at the office of the worker, indicates
some freedom from control. However, this fact by itself
does not mean that the worker is not an employee. The
importance of this factor depends on the nature of the
service involved and the extent to which an employer
generally would require that employees perform such
services on the employer's premises. Control over the place
of work is indicated when the person or persons for whom
the services are performed have the right to compel the
worker to travel a designated route, to canvass a territory
within a certain time, or to work at specific places as
required. See Rev. Rul. 56-694.
(J) Order of sequence set. If a worker must perform
services in the order or sequence set by the person or
persons for whom the services are performed, that factor
shows that the worker is not free to follow the worker's
own pattern of work but must follow the established
routines and schedules of the person or persons for whom
the services are performed. Often, because of the nature of
an occupation, the person or persons for whom the services
are performed do not set the order of the services or set the
order infrequently. It is sufficient to show control,
however, if such person or persons retain the right to do
so. See Rev. Rul. 56-694.
(K) Oral or written reports. A requirement that the
worker submit regular or written reports to the person or
persons for whom the services are performed indicates a
degree of control. See Rev. Rul. 70-309, 1970-1 C.B. 199,
and Rev. Rul. 68-248, 1968-1 C.B. 431.
(L) Payment by hour, week, month. Payment by the hour,
week, or month generally points to an employer-employee
relationship, if this method of payment is not just a
convenient way of paying a lump sum agreed upon as the
cost of a job. Payment made by the job or on a straight
commission generally indicates that the worker is an
independent contractor. See Rev. Rul. 74-389, 1974-2 C.B.
330.
(M) Payment of business and traveling expenses. If the
person or persons for whom the services are performed
ordinarily pay the worker's business or traveling expenses
or business and traveling expenses, the worker is
ordinarily an employee. An employer, to be able to control
expenses, generally retains the right to regulate and direct
the worker's business activities. See Rev. Rul. 55-144,
1955-1 C.B. 483.
(N) Furnishing of tools and materials. The fact that the
person or persons for whom the services are performed
furnish significant tools, materials, and other equipment
tends to show the existence of an employer-employee
relationship. See Rev. Rul. 71-524, 1971-2 C.B. 346.
(O) Significant investment. If the worker invests in
facilities that are used by the worker in performing
services and are not typically maintained by employees
(such as the maintenance of an office rented at fair value
from an unrelated party), that factor tends to indicate that
the worker is an independent contractor. On the other
hand, lack of investment in facilities indicates dependence
on the person or persons for whom the services are
performed for such facilities and, accordingly, the
existence of an employer-employee relationship. See Rev.
Rul. 71-524. Special scrutiny is required with respect to
certain types of facilities, such as home offices.
(P) Realization of profit or loss. A worker who can realize
a profit or suffer a loss as a result of the worker's services
(in addition to the profit or loss ordinarily realized by
employees) is generally an independent contractor, but the
worker who cannot is an employee. See Rev. Rul. 70-309.
For example, if the worker is subject to a real risk of
economic loss due to significant investments or a bona fide
liability for expenses, such as salary payments to unrelated
employees, that factor indicates that the worker is an
independent contractor. The risk that a worker will not
receive payment for his or her services, however, is
common to both independent contractors and employees
and thus does not constitute a sufficient economic risk to
support treatment as an independent contractor.
(Q) Working for more than one (1) firm at a time. If a
worker performs more than de minimis services for a
multiple of unrelated persons or firms at the same time,
that factor generally indicates that the worker is an
independent contractor. See Rev. Rul. 70-572, 1970-2 C.B.
221. However, a worker who performs services for more
than one (1) person may be an employee of each of the
persons, especially where such persons are part of the
same service arrangement.
(R) Making service available to general public. The fact
that a worker makes his or her services available to the
general public on a regular and consistent basis indicates
an independent contractor relationship. See Rev. Rul.
56-660.
(S) Right to discharge. The right to discharge a worker is
a factor indicating that the worker is an employee and the
person possessing the right is an employer. An employer
exercises control through the threat of dismissal, which
causes the worker to obey the employer's instructions. An
independent contractor, on the other hand, cannot be fired
so long as the independent contractor produces a result
that meets the contract specifications. Rev. Rul. 75-41,
1975-1 C.B. 323.
(T) Right to terminate. If the worker has the right to end
his or her relationship with the person for whom the
services are performed at any time he or she wishes
without incurring liability, that factor indicates an
employer-employee relationship. See Rev. Rul. 70-309.
(U) Any other guidelines under IC 22-3-6-1(b) and
IC 22-3-7-9(b)(5).
in a calendar year to an individual by an employer or the
employer's predecessor for employment during a calendar year
that begins after December 31, 2009; 2010;
unless that part of the remuneration is subject to a tax under a
federal law imposing a tax against which credit may be taken for
contributions required to be paid into a state unemployment fund.
For the purposes of this subdivision, the term "employment" shall
include service constituting employment under any employment
security law of any state or of the federal government. However,
nothing in this subdivision shall be taken as an approval or
disapproval of any related federal legislation.
(2) The amount of any payment (including any amount paid by an
employer for insurance or annuities or into a fund to provide for
any such payment) made to, or on behalf of, an individual or any
of the individual's dependents under a plan or system established
by an employer which makes provision generally for individuals
performing service for it (or for such individuals generally and
their dependents) or for a class or classes of such individuals (or
for a class or classes of such individuals and their dependents) on
account of:
(A) retirement;
(B) sickness or accident disability;
(C) medical or hospitalization expenses in connection with
sickness or accident disability; or
(D) death.
(3) The amount of any payment made by an employer to an
individual performing service for it (including any amount paid
by an employer for insurance or annuities or into a fund to
provide for any such payment) on account of retirement.
(4) The amount of any payment on account of sickness or accident
disability, or medical or hospitalization expenses in connection
with sickness or accident disability made by an employer to, or on
behalf of, an individual performing services for it and after the
expiration of six (6) calendar months following the last calendar
month in which the individual performed services for such
employer.
(5) The amount of any payment made by an employer to, or on
behalf of, an individual performing services for it or to the
individual's beneficiary:
(A) from or to a trust exempt from tax under Section 401(a) of
the Internal Revenue Code at the time of such payment unless
such payment is made to an individual performing services for
the trust as remuneration for such services and not as a
beneficiary of the trust; or
(B) under or to an annuity plan which, at the time of such
payments, meets the requirements of Section 401(a)(3),
401(a)(4), 401(a)(5), and 401(a)(6) of the Internal Revenue
Code.
(6) Remuneration paid in any medium other than cash to an
individual for service not in the course of the employer's trade or
business.
(7) The amount of any payment (other than vacation or sick pay)
made to an individual after the month in which the individual
attains the age of sixty-five (65) if the individual did not perform
services for the employer in the period for which such payment is
made.
(8) The payment by an employer (without deduction from the
remuneration of the employee) of the tax imposed upon an
employee under Sections 3101 et seq. of the Internal Revenue
Code (Federal Insurance Contributions Act).
Wage and Hour Law, 29 U.S.C. 201 et seq.);
(12) for a week in which a payment is actually received by an
individual, payments made by an employer to an individual who
accepts an offer from the employer in connection with a layoff or
a plant closure; or
(13) except as provided in subsection (c)(2), the part of a payment
made by an employer to an individual who accepts an offer from
the employer in connection with a layoff or a plant closure if that
part is attributable to a week and the week:
(A) occurs after an individual receives the payment; and
(B) was used under the terms of a written agreement to
compute the payment.
(b) Deductible income shall not include the first three dollars ($3),
or twenty percent (20%) of the claimant's weekly benefit amount
rounded to the next lowest dollar, whichever is the larger, of
remuneration paid or payable to an individual with respect to any week
by other than the individual's base period employer or employers.
(c) For the purpose of deductible income only, remuneration for
services from employing units does not include:
(1) bonuses, gifts, or prizes awarded to an employee by an
employing unit; or
(2) compensation made under a valid negotiated contract or
agreement in connection with a layoff or plant closure, without
regard to how the compensation is characterized by the contract
or agreement.
(d) Deductible income does not include a supplemental
unemployment insurance benefit made under a valid negotiated
contract or agreement.
(e) Deductible income does not include any payments made to
an individual by a court system under a summons for jury service.
and IC 22-4-37-3.
the deadlines was for excusable cause. The department shall give
written notice to the employer before this additional condition or
requirement shall apply.
(d) This subsection applies after December 31, 2009. 2010. In
addition to the conditions and requirements set forth and provided in
subsection (b)(2)(A) and (b)(2)(B), an employer's rate shall not be less
than twelve percent (12%) is equal to the sum of the employer's
contribution rate determined under this article plus two percent
(2%) unless all required contributions and wage reports have been
filed within thirty-one (31) days following the computation date and all
contributions, penalties, and interest due and owning owing by the
employer or the employer's predecessor for periods before and
including the computation date have been paid:
(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.
(e) However, if the employer is the state or a political subdivision
of the state or any instrumentality of a state or a political subdivision,
or any instrumentality which is wholly owned by the state and one (1)
or more other states or political subdivisions, the employer may
contribute at a rate of:
(1) one percent (1%), before January 1, 2010; 2011; or
(2) one and six-tenths percent (1.6%), after December 31, 2009;
2010;
until it has been subject to this article throughout the thirty-six (36)
consecutive calendar months immediately preceding the computation
date.
(f) On the computation date every employer who had taxable wages
in the previous calendar year shall have the employer's experience
account charged with the amount determined under the following
formula:
STEP ONE: Divide:
(A) the employer's taxable wages for the preceding calendar
year; by
determination date is divided by the total payroll of all subject
employers for the immediately preceding calendar year. Schedules A
through I appearing on the line opposite the fund ratio in the schedule
below are applicable in determining and assigning each employer's
contribution rate for the calendar year immediately following the
determination date. For purposes of this subsection, "total payroll"
means total remuneration reported by all contributing employers as
required by this article and does not include the total payroll of any
employer who elected or is required to become liable for payments in
lieu of contributions (as defined in IC 22-4-2-32). For purposes of this
subsection, "subject employers" means those employers who are
subject to contribution.
SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JANUARY 1, 2010 (RETROACTIVE)]: Sec. 3.5. (a) For calendar
years after 2009, 2010, if the conditions of section 2 of this chapter are
met, the rate of contributions shall be determined and assigned, with
respect to each calendar year, to employers whose accounts have a
credit balance and who are therefore eligible according to each
employer's credit reserve ratio. Each employer shall be assigned the
contribution rate appearing in the applicable schedule A through I on
the line opposite the employer's credit reserve ratio as set forth in the
rate schedule below:
RATE SCHEDULE FOR ACCOUNTS
WITH CREDIT BALANCES
When the Credit Reserve Ratio Is:
As But
Rate Schedules
Much Less
(%)
As Than
A
B
C
D
E
3.00
0.75
0.70
0.70
0.60
0.50
2.80 3.00
1.00
0.90
0.90
0.80
0.70
2.60 2.80
1.30
1.20
1.10
1.00
0.90
2.40 2.60
1.60
1.50
1.40
1.30
1.20
2.20 2.40
1.90
1.80
1.70
1.50
1.40
2.00 2.20
2.20
2.00
1.90
1.80
1.60
1.80 2.00
2.50
2.30
2.20
2.00
1.80
1.60 1.80
2.80
2.60
2.40
2.20
2.00
1.40 1.60
3.10
2.90
2.70
2.50
2.30
1.20 1.40
3.40
3.20
3.00
2.70
2.50
1.00 1.20
3.70
3.40
3.20
3.00
2.70
0.80 1.00
4.00
3.70
3.50
3.20
2.90
0.60 0.80
4.30
4.00
3.70
3.40
3.10
0.40 0.60
4.60
4.30
4.00
3.70
3.40
0.20 0.40
4.90
4.60
4.30
3.90
3.60
0.00 0.20
5.20
4.80
4.50
4.20
3.80
RATE SCHEDULE FOR ACCOUNTS
WITH CREDIT BALANCES
When the Credit Reserve Ratio Is:
As But
Rate Schedules
Much Less
(%)
As Than
F
G
H
I
3.00
0.40
0.40
0.30
0.00
2.80 3.00
0.60
0.50
0.40
0.00
2.60 2.80
0.80
0.70
0.60
0.10
2.40 2.60
1.10
1.00
0.90
0.10
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.
may not pay the individual benefits and shall refer the individual's
claim to the department's unemployment claims compliance center for
investigation. The department shall provide a written notice to the
individual who filed the claim that the individual's claim is being
referred to the unemployment claims compliance center, including the
reason for the referral.
(c) After receiving a claim from the department, the unemployment
claims compliance center shall contact the separating employer that
provided information that does not match information provided by the
individual making the claim to obtain information about the claim that
is accurate and sufficient for the department to determine whether the
individual is eligible for benefits. The center shall also obtain from the
employer the name and address of a person to receive without delay
notices served on the employer concerning the claim.
(d) Except as provided in subsection (e), the department may not pay
the individual benefits under this article as long as the discrepancy
between the information provided by the individual and the information
provided by the individual's separating employer is unresolved. If the
information provided by an individual and the information provided by
the individual's separating employer does not match, the department
shall notify both the separating employer and the individual that they
have forty-eight (48) hours to resolve the discrepancy. If the
discrepancy is not resolved at the end of the forty-eighth hour, the
department shall use the information provided by the employer to
determine the individual's eligibility for benefits.
(e) If the employer does not respond to the inquiry from the
unemployment claims compliance center within five (5) days after the
date of the inquiry, the center shall report to the department that the
employer has not responded, and the department shall use the
information provided by the individual to determine the individual's
eligibility for benefits.
(f) (b) After the department makes a determination concerning the
individual's eligibility for benefits, 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 time by which the employer is required
to respond to the notice, and complete information about the rules of
evidence and standards of proof that the department will apply to
determine the validity of a claim, if an employer disputes the claim.
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.
(g) (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.
(h) (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 delivered mailed to the employing unit;
the department shall make the determination a decision with the
information available.
(i) (e) If:
(1) an employer subsequently obtains a determination by the
department that the employee is not eligible for benefits; appeals
an original determination granting benefits to a claimant and
the determination is reversed on appeal; and
(2) the determination decision to reverse the determination is
at least in part based on information that the department requested
from the employer under subsection (h), (d), but which the
employer failed to provide within ten (10) days after the
department's request was delivered mailed to the employer;
the employer's experience account shall be charged an amount equal to
fifty percent (50%) of the benefits paid to the employee to which the
employee was not entitled and for which the employer's experience
account may be charged.
(j) (f) If:
(1) the employer's experience account is charged under subsection
(i); (e); and
(2) the employee repays all or a part of the benefits on which the
charge under subsection (i) (e) is based;
the employer shall receive a credit to the employer's experience
account that is equal to the amount of the employee's repayment up to
fifty percent (50%) of the amount charged to the employer's
experience account under subsection (i). (e).
(k) (g) In addition to the foregoing determination of insured status
by the department, the deputy shall, throughout the benefit period,
determine the claimant's eligibility with respect to each week for which
the claimant claims waiting period credit or benefit rights, the validity
of the claimant's claim therefor, and the cause for which the claimant
left the claimant's work, or may refer such claim to an administrative
law judge who shall make the initial determination with respect thereto
in accordance with the procedure in section 3 of this chapter.
(l) (h) In cases where the claimant's benefit eligibility or
disqualification is disputed, the department shall promptly notify the
claimant and the employer or employers directly involved or connected
with the issue raised as to the validity of such claim, the eligibility of
the claimant for waiting period credit or benefits, or the imposition of
a disqualification period or penalty, or the denial thereof, and of the
cause for which the claimant left the claimant's work, of such
determination and the reasons thereof.
(m) (i) Except as otherwise hereinafter provided in this section
regarding parties located in Alaska, Hawaii, and Puerto Rico, unless
the claimant or such employer, within ten (10) days after the
notification required by subsection (k) (h), 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.
(n) (j) 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 (k) (h), 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.
(o) (k) If a claimant or an employer requests a hearing under
subsection (m) (i) or (n), (j), 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.
(p) (l) A person may not participate on behalf of the department in
any case in which the person is an interested party.
(q) (m) 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 (g). (c).
(r) (n) 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.
(s) (o) If an allegation of the applicability of IC 22-4-15-1(c)(8) is
made by the individual at the time of the claim for benefits, the
department shall not notify the employer of the claimant's current
address or physical location.
time and as often as may be necessary. The department, the review
board, or an administrative law judge may require from any employing
unit any verified or unverified report, with respect to persons employed
by it, which is considered necessary for the effective administration of
this article.
(b) Except as provided in subsections (d) and (f), information
obtained or obtained from any person in the administration of this
article and the records of the department relating to the unemployment
tax or the payment of benefits is confidential and may not be published
or be open to public inspection in any manner revealing the individual's
or the employing unit's identity, except in obedience to an order of a
court or as provided in this section.
(c) A claimant or an employer at a hearing before an administrative
law judge or the review board shall be supplied with information from
the records referred to in this section to the extent necessary for the
proper presentation of the subject matter of the appearance. The
department may make the information necessary for a proper
presentation of a subject matter before an administrative law judge or
the review board available to an agency of the United States or an
Indiana state agency.
(d) The department may release the following information:
(1) Summary statistical data may be released to the public.
(2) Employer specific information known as ES 202 data and data
resulting from enhancements made through the business
establishment list improvement project may be released to the
Indiana economic development corporation only for the following
purposes:
(A) The purpose of conducting a survey.
(B) The purpose of aiding the officers or employees of the
Indiana economic development corporation in providing
economic development assistance through program
development, research, or other methods.
(C) Other purposes consistent with the goals of the Indiana
economic development corporation and not inconsistent with
those of the department, including the purposes of
IC 5-28-6-7.
(3) Employer specific information known as ES 202 data and data
resulting from enhancements made through the business
establishment list improvement project may be released to the
budget agency and the legislative services agency only for aiding
the employees of the budget agency or the legislative services
agency in forecasting tax revenues.
the program as a participant employed by an eligible
employer.
(c) The commissioner shall administer the program with the
assistance of the secretary.
(d) The secretary shall administer funding of the program as
provided in IC 12-8-12.5.
Sec. 8. This chapter expires December 31, 2013.
under IC 36-8-4-11. A person described in this subdivision may
not receive a preference for employment unless the person applies
for employment and meets all employment requirements
prescribed by law, including physical and age requirements, and
all employment requirements prescribed by the fire department.
(2) Contract with a municipality in the township or in a
contiguous township that maintains adequate firefighting or
emergency services apparatus and equipment to provide fire
protection or emergency services for the township in accordance
with IC 36-1-7.
(3) Cooperate with a municipality in the township or in a
contiguous township in the purchase, maintenance, and upkeep of
firefighting or emergency services apparatus and equipment for
use in the municipality and township in accordance with
IC 36-1-7.
(4) Contract with a volunteer fire department that has been
organized to fight fires in the township for the use and operation
of firefighting apparatus and equipment that has been purchased
by the township in order to save the private and public property
of the township from destruction by fire, including use of the
apparatus and equipment in an adjoining township by the
department if the department has made a contract with the
executive of the adjoining township for the furnishing of
firefighting service within the township.
(5) Contract with a volunteer fire department that maintains
adequate firefighting service in accordance with IC 36-8-12.
(b) This subsection applies only to townships that provide fire
protection or emergency services or both under subsection (a)(1) and
to municipalities that have some part of the municipal territory within
a township and do not have a full-time paid fire department. A
township may provide fire protection or emergency services or both
without contracts inside the corporate boundaries of the municipalities
if before July 1 of a year the following occur:
(1) The legislative body of the municipality adopts an ordinance
to have the township provide the services without a contract.
(2) The township legislative body passes a resolution approving
the township's provision of the services without contracts to the
municipality.
In a township providing services to a municipality under this section,
the legislative body of either the township or a municipality in the
township may opt out of participation under this subsection by adopting
an ordinance or a resolution, respectively, before July 1 of a year.
electronic format under IC 5-14-6 before November 1, 2010, to the
legislative council containing any findings and recommendations
of the committee.
(e) Except as otherwise provided, the committee shall operate
under the policies governing study committees adopted by the
legislative council.
(f) The affirmative votes of a majority of the members
appointed to the committee are required for the committee to take
action on any measure, including final reports.
(g) This SECTION expires January 1, 2011.