 |
 |
|
|
|
|
| search a lawyer |
|
|
| ACTS, STATUTES |
|
|
|
|
|
|
|
|
|
|
|
|
| Home > Statutes > Usa Arizona |
|
USA Statutes : arizona
Title : Labor
Chapter : EMPLOYMENT SECURITY
|
|
23-632 Definition of regular benefits
"Regular benefits" means benefits payable to an individual under this chapter or
under any other state or federal unemployment compensation law other than extended
benefits and shared work benefits.
23-633 Definition of state law
"State law" means the unemployment insurance law of any state, approved by the
United States secretary of labor under section 3304 of the internal revenue code.
23-634.01 Denial of benefits for failure to accept suitable work or actively seek work; definition
A. Notwithstanding section 23-776, an individual who is found by the department,
with respect to any week in an eligibility period which begins from and after April 4,
1981, to have failed to apply for or accept available suitable work to which he was
referred by the department or to have failed to actively engage in seeking work is
disqualified from receiving extended benefits. The disqualification shall begin with the
week in which the failure occurred and continue until the individual has been employed in
each of four subsequent weeks, whether or not consecutive, and has earned remuneration
equal to not less than four times his weekly benefit amount.
B. An individual shall not be denied extended benefits for failure to accept an
offer of or apply for available suitable work as defined in subsection G of this section,
if:
1. The position was not offered to the individual in writing or was not listed with
the department.
2. The failure would not result in a denial of benefits under section 23-776 to the
extent that the criteria of suitability in section 23-776 are not inconsistent with this
section.
C. If an individual furnishes evidence satisfactory to the department that
prospects for obtaining work in his customary occupation within a reasonably short period
are good, the determination of whether any work is suitable with respect to the
individual shall be made in accordance with the provisions of section 23-776 without
reference to the definition contained in this section.
D. Work shall not be considered suitable work under this section if it would not be
considered suitable under section 23-776, subsection C.
E. For the purposes of this section, an individual shall be treated as actively
engaged in seeking work during any week if the department finds from tangible evidence
provided by the individual that he has engaged in a systematic and sustained effort to
obtain work during such week.
F. The department shall refer an individual entitled to extended benefits under
this chapter to any work which is suitable work.
G. For the purposes of this section, "suitable work" with respect to any individual
means work within the individual's capabilities in which:
1. The gross average weekly wages payable for the work exceed the sum of the
individual's weekly benefit amount plus the amount of any supplemental unemployment
benefits payable to the individual for such week.
2. The wages for the work are at least equal to the higher of:
(a) The minimum wages provided by section 6(a)(1) of the fair labor standards act
of 1938, without regard to any exemption.
(b) The state or local minimum wage.
23-634 Eligibility requirements for extended benefits
A. An individual shall be eligible to receive extended benefits with respect to any
week of unemployment in his eligibility period only if the department finds that with
respect to such week:
1. He is an exhaustee as defined in section 23-627, and
2. He has satisfied the requirements of this chapter for the receipt of regular
benefits that are applicable to individuals claiming extended benefits, including not
being subject to a disqualification for the receipt of benefits.
3. He has, in the base period of his claim for regular benefits, total wages of at
least one and one-half times the wages in his highest quarter, or total wages that exceed
forty times his most recent weekly benefit amount established pursuant to this chapter.
B. Extended benefits are not payable pursuant to an interstate claim filed under
the interstate benefit payment plan unless an extended benefit period is in effect in the
state of filing for the week for which the claim is filed, except that an individual who
is otherwise eligible may receive extended benefits for not more than two weeks of
unemployment during his eligibility period pursuant to interstate claims filed in an area
where an extended benefit period is not in effect.
23-635 Weekly extended benefit amount
The weekly extended benefit amount payable to an individual for a week of total
unemployment in his eligibility period is an amount equal to the weekly benefit amount
payable to him during his applicable benefit year.
23-636 Total extended benefit amount; certain adjustments
A. The total extended benefit amount payable to an eligible individual with respect
to his applicable benefit year shall be the least of the following amounts:
1. Fifty per cent of the total amount of regular benefits which were payable to him
under this chapter in his applicable benefit year; or
2. Thirteen times his weekly benefit amount which was payable to him under this
chapter for a week of total unemployment in the applicable benefit year.
B. If the amount computed in accordance with subsection A is not a multiple of one
dollar, it shall be computed to the next lower multiple of one dollar.
C. Notwithstanding any other provision of this chapter, if the benefit year of an
individual ends within an extended benefit period, the remaining balance of extended
benefits that such individual would be entitled to receive in that extended benefit
period, with respect to weeks of unemployment beginning after the end of the benefit
year, shall be reduced by the product of the number of weeks for which the individual
received any trade readjustment allowances within that benefit year, multiplied by the
individual's weekly extended benefit amount.
23-637 Beginning and termination of extended benefit period
A. Whenever an extended benefit period is to become effective in this state as a
result of an ARIZONA on indicator, or an extended benefit period is to be terminated in
this state as a result of an ARIZONA off indicator, the department shall make an
appropriate public announcement.
B. Computations required by the provisions of section 23-631 shall be made in
accordance with regulations prescribed by the department and the United States secretary
of labor.
23-638 Credits and charges to employer accounts
Extended benefits paid to an individual shall be charged against the accounts of his
base-period employers in the same manner and under the same conditions as regular
benefits except that:
1. One-half of the total charges to a base-period employer other than a government
entity referred to in section 23-750, subsection A, paragraph 2, for extended benefits
paid to an individual shall not be used as a factor in determining the future
contribution rate of such employer. If the base-period employer is a governmental entity,
the total charges against such governmental base-period employer for extended benefits
paid for weeks of unemployment beginning on or after January 1, 1979, shall be used as a
factor in determining the future contribution rate of such governmental employer.
2. One-half of the extended benefits paid to an individual which are based on
base-period wages paid by an employing unit other than a governmental entity referred to
in section 23-750, subsection A, paragraph 2, which is making payments in lieu of
contributions shall not be reimbursable to the department by such employing unit. A
governmental entity which is making payments in lieu of contributions shall reimburse the
department for the total amount of extended benefits paid for weeks of unemployment
beginning on or after January 1, 1979, to an individual which are based on base-period
wages paid by such governmental entity.
23-639 Applicability of other articles
Except where inconsistent with the provisions of this article, as provided in the
regulations of the commission, the terms and conditions of all other articles of this
chapter shall apply to this article.
23-642 Compromise of claims for contributions
The department may compromise a claim for contributions or payments in lieu of
contributions more than two years in arrears, or an action in relation thereto. When a
compromise is made, there shall be placed in the files thereof a statement of the amount
of contributions or payments in lieu of contributions due, the amount assessed, the
amount of additional contributions, penalty and interest imposed by law in consequence of
the neglect or delinquency of the employer in question and the amount actually paid in
accordance with the terms of the compromise.
23-643 Extensions of time; regulations
A. Whenever in this chapter a period of time is specified for submitting any
payment, appeal, application, request, notice, objection, petition, report or other
information or document, the department may extend such period of time if the party
establishes to the satisfaction of the department that the failure to make a timely
submission was due to the delay or other action of the United States postal service or
its successor.
B. The department shall adopt and may amend, modify or repeal regulations governing
the extension of time authorized by this section.
23-644 Reciprocal arrangements
A. The department may enter into reciprocal arrangements with appropriate and duly
authorized agencies of other states or of the federal government, or both, whereby:
1. Services performed by an individual for a single employing unit for which
services are customarily performed in more than one state shall be deemed services
performed entirely within any one of the states in which any part of the individual's
service is performed, or in which the individual has his residence, or in which the
employing unit maintains a place of business, provided there is in effect, as to such
services, an election, approved by the agency charged with the administration of the
state's unemployment compensation law, pursuant to which all services performed by the
individual for such employing unit are deemed to be performed entirely within such state.
2. Potential rights to benefits accumulated under the unemployment compensation
laws of one or more states or under one or more such laws of the federal government, or
both, may constitute the basis for the payment of benefits through a single appropriate
agency upon terms which the department finds will be fair and reasonable as to all
affected interests and will not result in any substantial loss to the fund.
3. The department shall participate in any arrangements for the payment of benefits
on the basis of combining an individual's wages and employment covered under this chapter
with his wages and employment covered under the unemployment compensation laws of other
states which are approved by the United States secretary of labor in consultation with
the state unemployment compensation agencies as reasonably calculated to assure the
prompt and full payment of benefits in such situations and which include provisions for
applying the base period of a single state law to a claim involving the combining of an
individual's wages and employment covered under two or more state unemployment
compensation laws, and avoiding the duplicate use of wages and employment by reason of
such combining.
4. Contributions due under this chapter with respect to wages for insured work
shall for the purposes of collection of contributions be deemed to have been paid to the
fund as of the date payment was made as contributions therefor under another state or
federal unemployment compensation law, but no such arrangement shall be entered into
unless it contains provisions for reimbursement to the fund of such contributions and the
actual earnings thereon as the department finds will be fair and reasonable as to all
affected interests.
B. Reimbursements paid from the fund pursuant to paragraph 3 of subsection A of
this section shall be deemed benefits for the purpose of sections 23-701 through 23-704
and sections 23-779, 23-780 and 23-782. The department may make to other state or
federal agencies and receive from other state or federal agencies, reimbursements from or
to the fund in accordance with arrangements entered into pursuant to subsection A of this
section.
C. Since the administration of this chapter and of other state and federal
unemployment compensation and public employment service laws will be promoted by
cooperation between this state and such other states and the appropriate federal agencies
in exchanging services, and making available facilities and information, the department
may make such investigations, secure and transmit such information, make available such
services and facilities and exercise such of the other powers provided in this chapter
with respect to the administration of this chapter as it deems necessary or appropriate
to facilitate the administration of any such unemployment compensation or public
employment service law, and in like manner, may accept and utilize information, services
and facilities made available to this state by the agency charged with the administration
of any such other unemployment compensation or public employment service law.
D. To the extent permissible under the laws and constitution of the United States,
the department may enter into or cooperate in arrangements whereby facilities and
services provided under this chapter and facilities and services provided under the
unemployment compensation law of a foreign government may be utilized for the taking of
claims and the payment of benefits under the employment security law of this state or
under a similar law of such government.
23-645 State-federal cooperation
In the administration of this chapter, the department shall:
1. Cooperate with the United States department of labor to the fullest extent
consistent with the provisions of this chapter;
2. Take such action as may be necessary to secure to this state and its citizens
all advantages available under the provisions of the social security act that relate to
unemployment compensation, the federal unemployment tax act, the Wagner-Peyser act and
the federal-state extended unemployment compensation act of 1970;
3. Comply with the regulations prescribed by the United States department of labor
relating to the receipt or expenditure by this state of money granted under any of such
acts; and
4. Make such reports, in such form and containing such information as the secretary
of labor may from time to time require and comply with such provisions as the secretary
of labor may find from time to time necessary to assure the correctness and verification
of such reports.
23-648 Manpower services
A. There shall be established and maintained by the department free public
employment offices in such number and in such places as may be necessary for the proper
administration of this chapter and for the purpose of performing such duties as are
within the purview of the act of Congress entitled "an act to provide for the
establishment of a national employment system and for cooperation with the states in the
promotion of such system, and for other purposes" approved June 6, 1933.
B. The provisions of the act of Congress, as amended, referred to in subsection A,
are accepted by this state in conformity with section 4 of such act, and this state will
observe and comply with the requirements thereof.
C. The department is designated and constituted the agency of this state for the
purpose of the act of Congress, as amended, referred to in subsection A. The department
shall cooperate with any official or agency of the United States having powers or duties
under the provisions of the act of Congress, as amended, and shall do and perform all
things necessary to secure to this state the benefits of that act, as amended, in the
promotion and maintenance of a system of public employment offices.
D. The department shall not engage in any activity under this section not
prescribed by federal or state law or federal regulation.
E. The department shall not participate or engage in radio, television or newspaper
advertising of specific job openings unless prescribed pursuant to federal law.
23-649 Acquisition of lands and buildings
A. The department may acquire for and in the name of the state by lease purchase
agreement, or otherwise, lands or buildings for the purpose of providing office space for
units of the department performing functions provided by this chapter at such places as
the department finds necessary and suitable.
B. An agreement made for the purchase of the premises mentioned in subsection A of
this section shall be subject to the approval of the attorney general as to form and as
to title thereto and shall not subject the state to liability for payment of the purchase
price or any part or portion thereof except from monies allocated to the state by the
United States department of labor for the administration of this chapter.
C. All monies received from the United States for the payments authorized by this
section for lands and buildings shall be deposited, pursuant to sections 35-146 and
35-147, in the employment security administration fund and are appropriated therefrom for
purposes of this chapter. Notwithstanding any provision of this chapter, monies received
from the unemployment trust fund pursuant to section 903 of the social security act, as
amended, are not liable or subject to appropriation, except in accordance with the
provisions of subsection E of section 23-704.
D. If the premises are purchased pursuant to this chapter, the employment security
commission or such other department of the state performing its functions, shall be
housed therein, or if it is desirable to move the employment security commission, other
substantially similar space will be furnished by the state to the commission without
further payment therefor by the United States. 23-652 Publications by commission
The commission shall print for distribution to the public the text of this chapter,
its regulations and general rules, its annual reports to the governor and other material
it deems relevant and suitable and shall furnish them to any person upon application
therefor.
23-654 Availability of records to foreign agency
Records and necessary authentication thereof required in the prosecution of a
criminal action brought by another state or foreign government for misrepresentation to
obtain benefits under the law of this state, or for collecting amounts that the claimant
is liable to repay under the law of this state, shall be made available to the agency
administering the employment security law of any such state or foreign government for the
purpose of prosecution and collection.
23-656 Enforcement of chapter
A. In a civil action to enforce the provisions of this chapter, the commission and
the state may be represented by any qualified attorney who is a regular salaried employee
of the commission and is designated by it for this purpose or, at the commission's
request, by the attorney general.
B. All criminal actions for violation of any provision of this chapter, or of any
rules or regulations issued pursuant thereto, shall be prosecuted by the attorney
general, or, at his request and under his direction, by the county attorney of the county
in which the employer has a place of business or the violator resides.
23-657 Violations; classification
Any person who knowingly violates any provision of this chapter, or any rule or
regulation thereunder, the violation of which is made unlawful or the observance of which
is required under the terms of this chapter, and for which a penalty is neither
prescribed in this chapter nor provided by any other applicable statute, is guilty of a
class 3 misdemeanor. Each day such violation continues shall be a separate offense.
23-671 Appeal tribunals
A. The department shall establish one or more impartial appeal tribunals to hear
and decide disputed claims. Such appeal tribunals shall consist in each case of one
member who shall be a salaried examiner selected on a nonpartisan merit basis. A person
shall not participate on behalf of the department in any case in which he is an
interested party.
B. Within a reasonable time before the date set for a hearing, any interested party
to a hearing before the appeal tribunal may file an affidavit for change of appeal
tribunal and the department shall immediately transfer the matter to another appeal
tribunal. Reasonable time shall be established by regulation. Except for cause not more
than one change of appeal tribunal shall be granted to any one party.
C. An appeal tribunal may refer any case before it or any question involved therein
to the appeals board established pursuant to section 23-672.
D. Unless an appeal is withdrawn or the proceedings are removed or referred to the
appeals board, an appeal tribunal, after giving reasonable notice and affording all
interested parties reasonable opportunity for a fair hearing, shall make a decision. The
parties to the appeal shall be promptly notified of the decision and the reasons
therefor. The decision shall become final unless within fifteen days after mailing of
the decision any interested party files a written petition for review with the appeals
board or the appeals board assumes jurisdiction in accordance with the provisions of
subsection E of this section.
E. Prior to the date on which an appeal tribunal decision becomes final, the
appeals board on its own motion may, by notice mailed to all interested parties, either:
1. Set aside the decision of the appeal tribunal and remand the proceedings to
another appeal tribunal for review and decision.
2. Order the taking of additional evidence.
3. Remove the proceedings to itself for review and decision.
F. If the appeals board removes a case to itself pursuant to this section, the
appeals board may order the taking of additional evidence and may affirm, reverse, modify
or set aside the decision of the appeal tribunal. The appeals board shall promptly
notify the parties to the proceedings of its decision.
23-672.01 Effect of finding, judgment, conclusion or order in separate or subsequent action or proceeding; use as evidence
Any finding of fact or law, judgment, conclusion or final order made by a hearing
officer, an administrative law judge or any person with the authority to make findings of
fact or law in any action or proceeding before the department or the appeals board
pursuant to this chapter is not conclusive or binding in any separate or subsequent
action or proceeding and shall not be used as evidence in any separate or subsequent
action or proceeding between an individual and the individual's present or former
employer brought before an arbitrator, court or judge of this state or the United States,
regardless of whether the prior action or proceeding was between the same or related
parties or involved the same facts.
23-672 Appeals board; review of board decision
A. There is established within the department an appeals board consisting of four
members. The director shall appoint the members of the appeals board and shall designate
one member to serve as chairman.
B. Hearings conducted by or at the direction of the appeals board shall be
conducted as provided by section 23-674 and other provisions of this chapter. The
department shall prescribe by rule the procedures for petitioning for review, removal of
cases to the board, and appeals under section 23-673. Upon the filing of a petition for
review, the department shall prepare a complete record, including a transcript, unless
the parties stipulate otherwise.
C. In any case in which a petition for review of an appeal tribunal or hearing
officer decision has been filed by an interested party, the appeals board may remand the
case to any appeal tribunal or hearing officer for further proceedings or may review the
matter on the basis of the record in the case, take additional evidence or rehear the
matter and affirm, reverse, modify or set aside the decision of the appeal tribunal or
hearing officer. Upon notice to the interested parties, a petition for review may be
reviewed by one member of the appeals board designated by the chairman. If an interested
party objects to review by one board member, the matter shall be heard by three members
of the appeals board.
D. Unless a petition for hearing or review of a department determination made under
the provisions of article 5 of this chapter is withdrawn, the appeals board after
affording the parties reasonable opportunity for a fair hearing shall issue its decision.
E. Every decision of the appeals board shall be in writing. If the decision is
issued by three members of the appeals board, and the appeals board is not unanimous, the
decision of the majority shall control. The minority may file a dissent from the
decision, setting forth the reasons therefor. All interested parties shall be promptly
notified of the decision and the reasons therefor. Notice to the parties of the decision
shall be accompanied by instructions explaining the procedure for requesting review as
described in subsection F of this section and clearly indicating the final date for
filing a request for review.
F. A party dissatisfied with the decision under subsection E of this section may
file a request for review within thirty days from the date of the decision, which shall
be a written request and memorandum stating the reasons why the appeals board's decision
is in error and containing appropriate citations of the record, rules and other
authority. Upon motion, and for good cause, the appeals board may extend the time for
filing a request for review. The timely filing of such a request for review is a
prerequisite to any further appeal. The appeals board shall notify all parties of the
filing of a request for review and shall allow fifteen days from the date of the notice
for any party to respond. Thereafter, the appeals board shall issue a decision upon
review affirming, modifying or reversing its decision, or ordering the taking of
additional testimony. All parties shall be given written notice by mail of the decision
upon review.
23-673 Determination of claim on unemployment due to labor dispute
A. In any case in which the payment or denial of benefits will be determined by
section 23-777, the deputy shall proceed as provided in section 23-773. His examination
of the case may be by investigation or by affording the parties reasonable opportunity
for a fair hearing.
B. The determination of the deputy thereupon shall be treated for all purposes as
any other determination of a deputy made pursuant to section 23-773, except that a timely
appeal therefrom is removed to the appeals board.
C. If the determination appealed from was based on a fair hearing, the hearing
officer may make his recommendation and the appeals board may make its decision on the
basis of the evidence previously submitted.
23-674 Procedure in rendering decisions and orders; rights of parties; representation
A. All interested parties to a hearing before the appeal tribunal or the appeals
board shall be given reasonable notice of the hearing and afforded an opportunity for
hearing. The notice shall state the time, place and issues involved but if by reason of
the nature of the proceeding the issues cannot be fully stated in advance of the hearing,
or if subsequent amendment of the issues is necessary, they shall be fully stated as soon
as practicable, and opportunity shall be afforded all parties to present evidence and
argument with respect thereto. If a party's legal or factual basis of contention is
substantially changed at the hearing, causing surprise to the opposing party, the hearing
shall be rescheduled with timely notice of the nature of the new contention unless a
waiver on the record is obtained from the party claiming surprise or the surprise could
have been avoided with due diligence. The proceedings shall be recorded, but transcripts
need not be prepared unless required by the director or if further appeal is
taken. Informal disposition may be made of any case by stipulation, agreed settlement,
consent order or default.
B. In a hearing conducted pursuant to this section, parties may be represented in
the following manner:
1. An individual, either an employee or an employer, may represent himself or may
be represented by a duly authorized agent who is not charging a fee for the
representation.
2. An employer, including a corporate employer, may represent itself through an
officer or employee.
3. Any party may be represented by a person who is charging a fee for the
representation and who is either a duly authorized agent who was previously or is
currently retained by a party for purposes other than representation in an unemployment
compensation hearing or an attorney who is authorized to practice law in this state. An
attorney or agent representing a party before an appeal tribunal or the appeals board may
charge a fee not in excess of seven hundred fifty dollars but may request the department
to approve an additional amount which is reasonable for the services rendered. This is
limited only to an unemployment compensation appeal.
C. Notwithstanding any other law, representation of a party at a hearing conducted
pursuant to this section is not deemed to be the practice of law.
D. The tribunal and the appeals board may admit and give probative effect to
evidence which possesses probative value commonly accepted by reasonably prudent persons
in the conduct of their affairs. It shall give effect to the rules of privilege
recognized by law. It may exclude incompetent, irrelevant, immaterial and unduly
repetitious evidence. All evidence, including records and documents in the possession of
the department of which it desires to avail itself, shall be offered and made a part of
the record in the case, and no other factual information or evidence shall be considered
in the determination of the case. Documentary evidence may be received in the form of
copies or excerpts, or by incorporation by reference. The tribunal and the appeals board
may take notice of judicially cognizable facts and in addition may take notice of
general, technical or scientific facts within its specialized knowledge. Parties shall be
notified either before or during the hearing, or by reference in preliminary reports or
otherwise, of the material so noticed, and they shall be afforded an opportunity to
contest the facts so noticed. The tribunal and the appeals board may utilize their
experience, technical competence and specialized knowledge in the evaluation of the
evidence presented to them. Each party shall have the right of cross-examination of the
witnesses who testify and shall have the right to submit rebuttal evidence.
E. Every decision and order adverse to a party to the proceedings shall be in
writing or stated in the record and shall be accompanied by findings of fact and
conclusions of law. The findings of fact shall consist of a concise statement of the
conclusions upon each contested issue of fact. Parties to the proceeding shall be
notified of the decision and order in person or by mail.
23-675 Depositions; oaths; attendance of witnesses; production of papers
In the discharge of the duties imposed by this chapter, the appeal tribunal, appeals
board or any duly authorized representative of the department may administer oaths and
affirmations, take depositions, certify to official acts and issue subpoenas to compel
the attendance of witnesses and the production of books, papers, correspondence,
memoranda and other records deemed necessary as evidence in connection with a disputed
claim or the administration of this chapter. Duly authorized employees or
representatives of the department or peace officers may serve subpoenas issued pursuant
to this section.
23-676 Failure to obey commission subpoena; classification
Any person who without just cause knowingly fails or refuses to attend and testify
or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda
and other records, if it is in his power so to do, in obedience to a subpoena of the
commission is guilty of a class 3 misdemeanor. Each day such violation continues shall
be a separate offense.
23-677 Contempt by contumacy or refusal to obey subpoena of commission
In case of contumacy or refusal of a person to obey a subpoena issued under this
chapter, any court of this state within the jurisdiction of which the inquiry is carried
on or within the jurisdiction of which the person guilty of contumacy or refusal to obey
is found, resides or transacts business, upon application by the commission or its duly
authorized representative, shall issue to such person an order requiring him to appear
before a commissioner, the commission or its duly authorized representative, and to
produce evidence if so ordered or give testimony touching upon the matter under
investigation or in question. Failure to obey such order of the court may be punished by
the court as a contempt thereof.
23-679 Fees of witnesses
Witnesses subpoenaed pursuant to this chapter shall be allowed fees, not less than
those paid in the superior court, at a rate fixed by the department, except that an
employing unit or a representative or agent of an employing unit subpoenaed to testify or
produce books and records under the authority of section 23-675 in connection with that
employing unit's liability under article 5 of this chapter shall not be allowed witness
fees or mileage. The fees are deemed a part of the expense of administering this
chapter.
23-680 Notices of hearings
Notwithstanding section 41-1002, subsection B and section 41-1061, all notices of
hearing required by this chapter shall be given at least ten working days prior to the
date set for the hearing, except that any interested party may waive his right to notice.
23-681 Request for postponement of hearing; rules
A. At the oral or written request of a party or on its own motion, the hearing
officer may order, orally or in writing, that the hearing be postponed. A postponement
shall be granted, if it is the party's first request and the request is made at least
five calendar days prior to the time of hearing.
B. If a request for postponement is made with fewer than five calendar days' notice
or is the second or any subsequent request of a party, the postponement shall be granted
on a showing of good cause. Good cause exists if the request is reasonable or the
circumstance causing the request is beyond the control of the requesting party and
failure to grant the postponement would cause undue hardship to the requesting party.
C. The department of economic security shall adopt rules to set standards under
which a party may be excused for failure to attend a hearing for good cause.
23-683 Exemption of claimant from fees; approval required for counsel or agent fee; violation; classification
A. No individual claiming benefits shall be charged fees of any kind in a
proceeding under this chapter by the department or its representatives or by a court or
officer thereof.
B. An individual claiming benefits or an employer in a proceeding before the
department or a court may be represented by counsel or other duly authorized agent. No
such counsel or agent for an individual shall either charge or receive for his services
more than an amount approved by the department.
C. Any person who violates any provision of this section is guilty of a class 2
misdemeanor.
23-701 Unemployment compensation fund; administration; composition
A. There shall be a special fund known as the unemployment compensation fund which
shall be kept separate and apart from all other public monies or funds of this state, and
shall be administered by the commission exclusively for the purposes of this chapter.
B. The unemployment compensation fund shall consist of:
1. Contributions and payments in lieu of contributions collected pursuant to this
chapter.
2. Interest earned upon monies in the fund.
3. Property or securities acquired through the use of monies belonging to the fund
and all earnings of such property and securities.
4. All monies credited to this state's account in the unemployment trust fund
pursuant to section 903 of the social security act, as amended.
5. Other monies received for the fund from any other source.
C. All monies in the unemployment compensation fund shall be commingled and
undivided.
23-702 Custody of unemployment compensation fund
The state treasurer shall be ex officio the treasurer and custodian of the
unemployment compensation fund. He shall administer the fund in accordance with the
provisions of this chapter and the direction of the commission, and shall pay all
warrants drawn thereon in accordance with such regulations as the commission
prescribes. Monies in the fund shall be secured by the depository to the same extent and
in the same manner as required by the general depository law of the state.
23-703 Accounts comprising unemployment compensation fund; deposits; refunds; commingling funds prohibited
A. Within the unemployment compensation fund, there are three separate accounts
known as a clearing account, an unemployment trust fund account and a benefit
account. All monies payable to the unemployment compensation fund, upon receipt thereof
by the department or its agent, shall be immediately deposited in the clearing
account. Refunds payable pursuant to the provisions of this chapter may be paid from the
clearing account or the benefit account upon warrants under the direction of the
department. After clearance thereof all other monies in the clearing account shall be
immediately deposited with the secretary of the treasury of the United States to the
credit of the account of this state in the unemployment trust fund, established and
maintained pursuant to section 1104 of the social security act, any provisions of law in
this state relating to deposit, administration, release or disbursement of monies in the
possession or custody of this state to the contrary notwithstanding.
B. Except as otherwise provided in this chapter, monies in the clearing and benefit
accounts may be deposited by the treasurer, under the direction of the department, in any
bank or public depository in which general funds of the state may be deposited, but no
public deposit insurance charge or premium shall be paid from the fund. Monies in the
clearing and benefit accounts shall not be commingled with other state funds, but shall
be maintained in separate accounts on the books of the depository. 23-704 Requisitions and withdrawals from accounts in unemployment compensation fund; conditions of expenditure for benefits, refunds and administration
A. Monies requisitioned from this state's account in the unemployment trust fund
shall be used exclusively for the payment of benefits and for refunds pursuant to this
chapter in accordance with authorized regulations except that monies credited to this
state's account in the unemployment trust fund pursuant to section 903 of the social
security act, as amended, shall be used exclusively as provided in subsection E of this
section. The department from time to time shall requisition from the unemployment trust
fund such amounts, not exceeding the amounts standing to the state's account therein, as
it deems necessary for the payment of benefits and refunds for a reasonable future
period. Upon receipt thereof the treasurer shall deposit the monies in the benefit
account and shall pay warrants for payment of benefits and refunds solely from the
benefit account. If the department believes more efficient administration will result
from such practice, it, in turn, may withdraw from the benefit account amounts it deems
necessary for payment of benefits for a reasonable future period and deposit such amounts
to the account of the department in a bank or public depository of its choosing and issue
checks against it in payment of benefits to claimants entitled thereto under law. The
monies shall be secured by the depository to the same extent and in the same manner as
required by the general depository law of the state.
B. Expenditures of monies in the benefit account and refunds from the clearing
account shall not be subject to any provisions of law requiring specific appropriations
or other formal release by state officers of monies in their custody.
C. All claims, warrants or other instruments utilized by the department for the
payment of benefits and refunds shall bear the signature of an employee designated for
that purpose by the director.
D. Any balance of monies requisitioned from the unemployment trust fund which
remains unclaimed or unpaid in the benefit account after expiration of the period for
which the sums were requisitioned either shall be deducted from estimates for, and may be
utilized for the payment of, benefits and refunds during succeeding periods, or, in the
discretion of the director, shall be redeposited with the secretary of the treasury of
the United States to the credit of this state's account in the unemployment trust fund
established and maintained pursuant to section 904 of the social security act, as
amended.
E. Monies credited to the account of this state in the unemployment trust fund by
the secretary of the treasury of the United States pursuant to section 903 of the social
security act, as amended, may be requisitioned and used only in accordance with the
following requirements:
1. Except as provided in paragraph 2, such monies shall be used only in the payment
of benefits exclusive of administrative expense.
2. Such monies may be requisitioned and used for the payment of expenses incurred
for the administration of this chapter if and only if the monies are requisitioned and
expenses are incurred pursuant to and after the enactment of a state appropriation law
which:
(a) Specifies the purposes for which such monies are appropriated and the amounts
appropriated therefor,
(b) Limits the period within which such monies may be obligated to a period ending
not more than two years after the date of the enactment of the appropriation law, and
(c) Limits the amount which may be obligated during a fiscal year to an amount
which does not exceed the limitations on amount as prescribed by section 903 of the
social security act, as amended. For the purposes of this subsection, amounts obligated
during any such fiscal year shall be charged against equivalent amounts which were first
credited and which are not already so charged, in accordance with the requirements for
and limitations on charging prescribed by section 903 of the social security act, as
amended.
3. Monies appropriated for the payment of the expenses of administration pursuant
to this subsection shall be requisitioned as needed for the payment of obligations
incurred under such appropriation and, upon requisition, shall be deposited in the
employment security administration fund from which such payments shall be made. The
department shall maintain a separate record of the deposit, obligation, expenditure and
return of funds so deposited. Monies so deposited shall, until expended, remain a part
of the unemployment compensation fund and, if they will not be expended they shall be
returned promptly to the secretary of the treasury for credit to this state's account in
the unemployment trust fund.
23-705 Special administration fund
A. A special fund known as the special administration fund is established.
B. No expenditure or transfer may be made from the special administration fund
unless the expenditure or transfer is authorized by legislative appropriation and
approved by the director of the department of administration.
C. Interest and penalties collected under the provisions of this chapter shall be
paid into the special administration fund. Such monies shall not be expended or
available for expenditure in any manner which would permit their substitution for, or a
corresponding reduction in, federal funds which would in the absence of the monies be
available to finance expenditures for the administration of this chapter, but nothing in
this section shall prevent the monies from being used to cover expenditures necessary and
proper under the law for which federal funds have been duly requested but not yet
received, subject to charging the expenditures against such funds when received.
D. The monies in the special administration fund are subject to legislative
appropriation and shall be used by the commission for payment of costs of administration
found not to have been properly and validly chargeable against federal grants or other
funds received for or in the employment security administration fund created by section
23-707. The appropriated monies shall be available either for satisfying the obligations
incurred by the commission directly or by requesting the state treasurer to transfer the
required amount from the special administration fund to the employment security
administration fund. No expenditure of this fund or transfer shall be made unless and
until authorized by legislative appropriation and the commission finds that no other
funds are available or can properly be used to finance the expenditures.
E. The monies in this fund are subject to legislative appropriation to the
commission for expenditure in accordance with the provisions of this section and section
23-706 and shall not be transferred to any other fund.
23-706 Use of special administration fund; transfer of funds
A. The department may use all or any part of the funds in the special
administration fund for the purpose of acquiring suitable office space for the units of
the department performing functions provided by this chapter by purchase, lease, contract
or in any other manner, including the right to use the funds or any part of the funds to
purchase land and erect on the land such buildings as it deems necessary, or to assist in
financing the construction of any building erected by the state or any of its agencies in
which available space will be provided for the units of the department performing
functions provided by this chapter under lease or contract between the department and the
state or state agency. The department may also use all or any part of the funds in the
special administration fund to reimburse, in case of administrative error by the
department, employers which have elected to make payments in lieu of contributions
pursuant to section 23-750.
B. The department may transfer from the employment security administration fund to
the special administration fund amounts not exceeding funds specifically available to the
department for that purpose, equivalent to the fair reasonable rental value of land and
buildings acquired for the use of units of the department performing functions provided
by this chapter until such time as the full amount of the purchase price of the land and
buildings and the cost of repair and maintenance thereof as was expended from the special
administration fund has been returned to the fund. The department may also transfer from
the employment security administration fund to the special administration fund amounts
not exceeding funds specifically available to the department for that purpose, equivalent
to the fair reasonable rental value of space used by the units of the department
performing functions provided by this chapter in a building erected by the state or any
of its agencies until such time as the department's proportionate amount of the purchase
price of the building and the department's proportionate amount of the costs of repair
and maintenance thereof as was expended from the special administration fund has been
returned to the fund.
C. If the department deems the amount in the special administration fund in excess
of future needs, it may transfer all or a portion of the special administration fund to
the unemployment compensation fund.
D. Expenditures or transfers from the special administration fund are subject to
the provisions of section 23-705.
23-707 Employment security administration fund
A. A special fund known as the employment security administration fund is
established.
B. All monies deposited or paid into the employment security administration fund
are appropriated and made available to the commission. All monies in the fund except
monies withdrawn from the unemployment trust fund under section 903 of the social
security act, as amended, for payment of administrative expenses shall be expended solely
for the purposes and in the amounts found necessary by the secretary of labor of the
United States and the employment security commission for the proper and efficient
administration of this chapter.
C. The employment security administration fund shall consist of all monies
appropriated by this state and all monies received from the United States or any agency
thereof, including the United States department of labor or from any other source for
such purpose. Monies received from the railroad retirement board as compensation for
services or facilities supplied to the board shall be paid into the fund.
D. All monies in the employment security administration fund shall be deposited,
administered and disbursed in the same manner and under the same conditions and
requirements as provided by law for other special funds, except that monies in the
employment security administration fund shall not be commingled with other state funds
but shall be maintained in a separate account on the books of the depository. The monies
shall be secured by the depository in which they are held to the same extent and in the
same manner as required by the general depository law of the state. Any balance in the
fund shall not lapse at any time, but shall be continuously available to the commission
for expenditure consistent with this chapter. Notwithstanding any provision of this
chapter, all monies requisitioned from the unemployment trust fund for the payment of
administrative expenses and deposited in this fund pursuant to paragraph 3 of subsection
E of section 23-704 shall remain part of the unemployment compensation fund and shall be
used only in accordance with the conditions specified in subsection E of section 23-704.
E. The state treasurer shall be liable on his official bond for the faithful
performance of his duties in connection with the employment security administration fund
provided for under this chapter. Liability on the official bond shall exist in addition
to liability upon any separate bond. All sums recovered on a surety bond for losses
sustained by the employment security administration fund shall be deposited in the fund.
23-708 Reimbursement of employment security administration fund
A. This state recognizes its obligation to replace, and pledges its faith that
funds will be provided in the future and applied to the replacement of, any monies
received from the United States department of labor under title III of the social
security act, any monies granted to this state pursuant to the provisions of the
Wagner-Peyser act, and any monies made available by this state or its political
subdivisions and matched by monies granted to this state pursuant to the provisions of
the Wagner-Peyser act, which the secretary of labor of the United States finds, because
of any action or contingency, have been lost or have been expended for purposes other
than, or in amounts in excess of, those found necessary by the secretary of labor of the
United States and the employment security commission for the proper administration of
this chapter.
B. Such monies shall be replaced within a reasonable time by monies appropriated by
the legislature from the general funds of this state to the employment security
administration fund for expenditure as provided in section 23-707. The commission shall
report to the state budget officer in the same manner as is provided generally for the
submission of financial requirements, and the governor shall include in his budget report
to the next regular session of the legislature the amount required for replacement.
C. The monies in the special administration fund are specifically made available to
replace, within a reasonable time, monies received by this state under title III of the
social security act which are required to be paid under this section.
23-709 Employment service account
A special "employment service account" shall be maintained as a part of the
employment security administration fund for the purpose of maintaining the public
employment offices established pursuant to section 23-648, and for the purpose of
cooperating with the United States employment service. The employment service account
shall consist of funds received from the United States government for the purpose of
establishing free employment offices and, in addition, there shall be paid into such
account monies received from the act of Congress entitled "an act to provide for the
establishment of a national employment system and for cooperation with the states of such
system, and for other purposes" approved June 6, 1933, and such monies as are apportioned
for the purposes of this account from monies received under title III of the social
security act.
23-721 Work records kept by employing unit; inspection by commission
Each employing unit shall keep true and accurate work records for such periods of
time and containing such information as the commission prescribes. Such records shall be
open to inspection and may be copied by the commission or its authorized representatives
at any reasonable time and as often as necessary.
23-722.01 Employer reporting; exceptions; retention of records; unauthorized disclosure; new hire directory; definitions
A. Subject to the requirements of subsection E, the department of economic security
shall implement a program to require all employers doing business in this state to report
the following to the department of economic security:
1. The hiring of any employee who resides or works in this state.
2. The rehiring or returning to work of any employee who was laid off, furloughed,
separated, granted a leave without pay or terminated from employment.
B. The department of economic security shall eliminate all unnecessary reporting in
the information requested to reduce the burden of employers.
C. Employers shall report by submitting a W-4 form or an equivalent form at the
option of the employer. The information may be submitted magnetically, electronically or
by first class mail, telefacsimile or any other means that are authorized by the
department of economic security.
D. Employers shall submit the reports within twenty days after the employee is
hired or rehired or returns to work. Employers who submit reports magnetically or
electronically shall submit the reports in two monthly transmissions not more than
sixteen days apart. The report shall contain all of the following:
1. The employee's name, address and social security number.
2. The employer's name, address and federal tax identification number.
E. An employer who has employees who are employed in two or more states and who
transmits new hire reports magnetically or electronically may comply with the new hire
reporting requirements by designating one state in which the employer has employees to
transmit the report. An employer who has employees in two or more states shall notify
the United States secretary of health and human services of the state to which the
employer shall send reports.
F. The department of economic security or its agent may use the information
collected pursuant to this section only for the following purposes:
1. The administration and enforcement of child support pursuant to title IV-D of
the social security act. Except as provided by federal law, the information collected
shall only be used to locate a person to establish paternity and to establish, modify and
enforce support obligations. The information may be disclosed to an agent under contract
with the department of economic security to carry out this purpose. The information may
also be disclosed to agencies of this state, political subdivisions of this state,
federal agencies involved with support and other states and their political subdivisions
seeking to locate persons to enforce support pursuant to title IV-D of the social
security act.
2. The identification and prevention of benefit fraud in assistance programs under
title 46, chapter 2, articles 2 and 5.
3. The administration of employment security services pursuant to this chapter and
workers' compensation programs pursuant to chapter 6 of this title.
G. The information collected pursuant to this section shall not be disclosed
pursuant to title 39, chapter 1. An employee or agent of this state who discloses any
information collected pursuant to this section without authorization is subject to a
civil penalty of one thousand dollars for each offense. The department of economic
security may impose and collect the penalty and shall deposit any collections in the
state general fund. Any unauthorized release of information is cause for the
administrative discipline of the employee or agent.
H. The department shall operate a state directory of new hires comprised of
information received from employers. The department shall enter information received
from employers into the state directory of new hires within five business days after
receipt. The information shall be forwarded to the national directory of new hires within
three business days after entry into the state directory of new hires. For purposes of
this section, a business day is a day when the state is open for regular business.
I. The department of economic security shall conduct, directly or by contract, an
automated comparison of social security numbers reported by employers pursuant to this
section and the social security numbers on record in the state case registry of child
support orders.
J. If a comparison conducted pursuant to subsection I reveals a match of the social
security number of an obligor required to pay support in a title IV-D case, the
department, within two business days, shall issue an income withholding order to the
employer of the person obligated to pay support directing the employer to withhold the
ordered amount from the income of the employee.
K. This section does not allow the department to impose penalties on employers for
failing to comply with this section's reporting requirements.
L. For purposes of this section:
1. "Employee" means a person who is employed within the meaning of chapter 24 of
the internal revenue code of 1986. Employee does not include an employee of a federal or
state agency performing intelligence or counterintelligence functions if the head of the
agency has determined that reporting with respect to the employee could endanger the
safety of the employee or compromise an ongoing investigation or intelligence mission.
2. "Employer" has the same meaning prescribed in section 3401(d) of the internal
revenue code of 1986 and includes any governmental entity and any labor organization.
23-722.02 Employer request; employee disclosure; violation; classification; requirements
A. After an employee is hired, is rehired or returns from an unpaid leave of
absence, the employer shall request that the employee disclose whether the employee is
subject to a wage assignment order to provide child support.
B. The employer shall not discriminate against, refuse to hire, discharge or
otherwise discipline an employee who discloses an obligation to pay child support.
C. The obligor or person ordered to pay child support shall provide a copy of the
order of assignment to the obligor's or person's present or future employer. An obligor
or person who is ordered to pay child support and who fails to comply with this
subsection is guilty of a class 3 misdemeanor.
D. If an obligor has multiple orders, the obligor shall provide the employer with a
copy of each order.
E. On the disclosure of an obligation to pay child support along with a copy of the
order, the employer shall begin withholding the support payments according to the terms
of the order. If the disclosure is to a secondary employer, that employer shall not
begin withholding support payments.
F. The director may adopt rules to implement and administer this section.
G. Nothing in this section shall be construed to allow the department to impose
penalties for failing to comply with this section's requirements.
23-722 Reports of employing unit; information confidential; report of banking institution; disclosure of information; classification
A. The department, the appeals board or an appeal tribunal may require from an
employing unit sworn or unsworn reports with respect to persons employed by it which it
deems necessary for the effective administration of this chapter. Information thus
obtained shall not be published or open to public inspection, other than to public
employees in the performance of their duties or to an agent of the department designated
as such in writing for the purpose of accomplishing certain of the department's
functions, in any manner revealing the employing unit's identity, but a claimant at a
hearing before an appeal tribunal, the appeals board or the department shall be supplied
with the information from the records to the extent necessary for the proper presentation
of his claim.
B. The department may request the comptroller of the currency of the United States
to make an examination of the correctness of any return or report of a national banking
association rendered pursuant to this chapter and may in connection with such request
transmit the report or return to the comptroller of the currency of the United States as
provided in section 3305 of the federal internal revenue code.
C. An employee or an agent of the department who violates any provision of this
section is guilty of a class 3 misdemeanor.
23-723 Penalties for failure to file timely or complete contribution and wage reports
A. An employing unit which fails to file on or before the due date prescribed by
department regulation a quarterly contribution and wage report required by the department
in the administration of this chapter, shall pay to the department for each such
delinquent report, subject to waiver for good cause shown, a penalty of one-tenth of one
per cent of the total wages paid during the quarter, but not less than thirty-five
dollars, nor more than two hundred dollars.
B. Amounts collected as penalties under the provisions of this section shall be
deposited by the department in the special administration fund.
23-724 Liability determinations; review; finality
A. When the department makes a determination, which determination shall be made
either on the motion of the department or upon application of an employing unit, that an
employing unit constitutes an employer as defined in section 23-613 or that services
performed for or in connection with the business of an employing unit constitute
employment as defined in section 23-615 which is not exempt under section 23-617 or that
remuneration for services constitutes wages as defined in section 23-622, the
determination shall become final with respect to the employing unit fifteen days after
written notice is served personally or by certified mail addressed to the last known
address of the employing unit, unless within such time the employing unit files a written
request for reconsideration.
B. When a request for reconsideration is filed as prescribed in subsection A of
this section, a reconsidered determination shall be made. The reconsidered determination
shall become final with respect to the employing unit thirty days after written notice
thereof is served personally or by certified mail addressed to the last known address of
the employing unit, unless within such time the employing unit files with the appeals
board a written petition for hearing or review. The department may for good cause extend
the period within which the written petition is to be submitted. If the reconsidered
determination is appealed to the appeals board and the decision by the appeals board is
that the employing unit is liable, the employing unit shall submit all required
contribution and wage reports to the department within forty-five days after the decision
by the appeals board.
C. On an employer's written request and the submission of pertinent information to
the department, the department shall, or on its own motion may, consider whether a
determination, reconsidered determination or decision which has become final should be
revised. Revision shall be granted if either:
1. There has been a substantial and material change in the facts on which the
determination, reconsidered determination or decision relied.
2. There has been a change in the law or interpretation of the law which warrants a
revised determination, reconsidered determination or decision.
D. The effective date of a revision under subsection C of this section is either:
1. The date on which the change occurred if the employer's request with the
pertinent information is filed no later than the last day of the month immediately
subsequent to the calendar quarter in which the change occurred.
2. The first day of the calendar quarter in which the employer files the request
and submits the pertinent information unless the employer demonstrates to the
satisfaction of the department that good cause exists for the failure to notify the
department within the period prescribed by paragraph 1 of this subsection of the
occurrence of the change warranting the revision. In the event such good cause is
demonstrated, the effective date shall be the date of the change.
E. A refusal to grant relief under subsection C of this section may not be appealed
unless within fifteen days the employer appeals the refusal to the appeals
board. Notwithstanding any other provision of law and pursuant to such an appeal, the
appeals board may initiate hearings to obtain information and issue a decision as to
whether the relief requested in subsection C of this section should be
granted. Thereafter, the appeals board shall issue a decision in the matter. The
decision may not be appealed with respect to the employing unit unless petition for
review and request for review are filed within the time and in the manner provided in
section 23-672.
F. The determination of the department or decision of the appeals board, together
with the record, shall be admissible in any subsequent judicial proceeding involving
liability for contributions. A determination or decision that an employing unit is
liable which has become final shall be conclusive and binding upon the employing unit and
shall not be reconsidered in proceedings brought before the department or a hearing
officer.
G. Any reconsidered determination issued pursuant to subsection B of this section
and any contribution rate redetermination or denial issued pursuant to section 23-732,
subsection A shall contain the following:
1. The facts considered and the facts relied on in making the determination.
2. The specific statutes, regulations or other authority relied on in making the
determination.
3. The reasoning applied in making the determination.
4. The appeal rights related to the determination and the time period after which
the determination becomes final.
H. If any determination covered by subsection G of this section is defective
because it fails to meet the requirements of subsection G of this section, the defect may
be cured by issuance of a corrected, amended or new determination. If a defect is
alleged and specified in writing within the period for appeal, all time periods
applicable to the determination are suspended pending the curative action.
I. This section does not preclude the department from at any time correcting
clerical errors that have occurred in the administration of this chapter.
23-725 Employer coverage; termination; election of coverage
A. Except as provided in subsections D and E of this section, an employing unit
which is or becomes an employer subject to the provisions of this chapter within any
calendar year shall be deemed an employer during the whole of such calendar year.
B. Except as otherwise provided in subsections D, E, F, G and H of this section, an
employing unit shall cease to be an employer subject to this chapter:
1. As of the first day of January of any calendar year:
(a) If the department finds that during the preceding calendar year such employing
unit ceased all operations for a period of thirty-five weeks and did not in any calendar
quarter in such preceding calendar year pay wages for employment amounting to one
thousand five hundred dollars or more, or
(b) If the employing unit files with the department within the period from January
1 through March 31 of such year a written application for termination of coverage and the
department finds that during the preceding calendar year the employing unit did not have
one or more individuals in employment in twenty different weeks and did not pay wages for
employment amounting to at least one thousand five hundred dollars during any calendar
quarter in such preceding calendar year.
2. On the transfer date of an employer experience rating account resulting from
transfer by an employing unit of its organization, trade or business, or substantially
all the assets thereof, to a successor.
C. For the purposes of subsection B of this section, the two or more employing
units mentioned in paragraph 3, 4, or 5 of subsection A of section 23-613, shall be
treated as a single employing unit.
D. An employing unit, not otherwise subject to this chapter, which files with the
department its written election to become an employer subject thereto for not less than
two calendar years, shall with the written approval of such election by the department,
become an employer subject thereto to the same extent as all other employers, as of the
date stated in such approval, and shall cease to be subject thereto as of January 1 of
any calendar year subsequent to such two calendar years, only if within the period from
January 1 through March 31 of such year it has filed with the department a written notice
to that effect.
E. Any employing unit for which services that do not constitute employment as
defined in this chapter are performed, may file with the department a written election
that all such services, with respect to which payments are not required under an
employment security law of any other state or of the federal government, and which are
performed by individuals in its employ in one or more distinct establishments or places
of business, shall be deemed to constitute employment by an employer for all the purposes
of this chapter for not less than two calendar years. Upon the written approval of such
election by the department, such services shall be deemed to constitute employment
subject to this chapter from and after the date stated in the approval. Such services
shall cease to be deemed employment subject thereto as of January 1 of any calendar year
subsequent to such two calendar years, only if within the period from January 1 through
March 31 of such year the employing unit has filed with the department a written notice
to that effect.
F. Any employing unit which became an employer by reason of paragraph 2(c) of
subsection A of section 23-613 because of services defined as employment under paragraph
6(b) of section 23-615, shall cease to be an employer subject to this chapter as of the
first day of January of any calendar year:
(1) If the department finds that such employing unit ceased all operations for a
period of thirty-five weeks in the preceding calendar year, or
(2) If the employing unit files with the department within the period from January
1 through March 31 of such year a written application for termination of coverage and the
department finds that there were not twenty different days, each day being in a different
calendar week within the preceding calendar year, within which such employing unit
employed four or more individuals in employment subject to this chapter.
G. Any employing unit which is an employer solely by reason of section 23-613,
subsection B, shall cease to be an employer subject to this chapter as of the first day
of January of any calendar year:
1. If the department finds that during the preceding calendar year such employing
unit ceased all operations for a period of thirty-five weeks and did not in any calendar
quarter in such preceding calendar year pay wages for agricultural labor amounting to
twenty thousand dollars or more, or
2. If the employing unit files with the department within the period from January 1
through March 31 of such year a written application for termination of coverage and the
department finds that during the preceding calendar year the employing unit did not have
ten or more individuals employed in agricultural labor in twenty different weeks and did
not pay wages for agricultural labor amounting to at least twenty thousand dollars during
any calendar quarter in such preceding calendar year.
H. Any employing unit which is an employer solely by reason of section 23-613,
subsection C, shall cease to be an employer subject to this chapter as of the first day
of January of any calendar year if the employing unit files with the department within
the period from January 1 through March 31 of such year a written application for
termination of coverage and the department finds that the employing unit did not pay
wages for domestic service in a private home, local college club, or local chapter of a
college fraternity or sorority amounting to at least one thousand dollars during any
calendar quarter in the preceding calendar year.
I. The time limitation for filing of written application for termination of
coverage prescribed in subsections B, F, G and H of this section may be waived by the
department if the time limitation has expired prior to the date on which a determination
of liability that the employing unit is subject to this chapter has been made as provided
in section 23-724.
23-726 Contributions; voluntary payment
A. Contributions shall accrue and become payable by each employer for each calendar
year in which the employer is subject to this chapter with respect to wages for
employment. The contributions shall become due and be paid by each employer to the
commission for the fund in accordance with such regulations as the commission prescribes,
and shall not be deducted, in whole or in part, from the wages of individuals in the
employer's employ.
B. In the payment of contributions, a fractional part of a cent shall be
disregarded unless it amounts to one-half cent or more in which case it shall be
increased to one cent. From and after December 31, 2004, the payment of contributions or
job training employer taxes is not required if the quarterly amount of the contributions
and taxes is less than ten dollars.
C. An employer may make voluntary payments in addition to the contributions
required under this chapter that shall be credited to the employer's account in
accordance with commission regulation. The voluntary payments shall be included in the
employer's account as of the employer's most recent computation date if they are made on
or before the following January 31. Voluntary payments when accepted from an employer
will not be refunded in whole or in part.
23-727 Credits and charges to employer accounts
A. The commission shall maintain a separate account for each employer and shall
credit the account with all contributions and payments in lieu of contributions paid by
the employer and shall charge the account with all benefits chargeable to it.
B. Nothing in this chapter shall be construed to grant any employer or individuals
in its service prior claims or rights to the amounts paid by the employer into the fund.
C. Except as otherwise provided in subsections D, E, F and G of this section and
sections 23-773 and 23-777, benefits paid to an individual shall be charged against the
accounts of the individual's base-period employers. The amount of benefits so chargeable
against each base-period employer's account shall bear the same ratio to the total
benefits paid to an individual as the base-period wages paid to the individual by the
employer bear to the total amount of base-period wages paid to the individual by all the
individual's base-period employers.
D. Benefits paid to an individual whose separation from work with any employer
occurs under conditions found by the commission to be within those prescribed by section
23-775, paragraph 1 or 2 or for compelling personal reasons not attributable to the
employer and not warranting disqualification for benefits shall not be used as a factor
in determining the future contribution rate of the employer from whose employment the
individual so separated, but the employer shall establish the condition of such
separation to the satisfaction of the commission by submitting information the commission
requires within ten days after the date of notification or mailing of notice by the
commission that the individual has first filed a claim for benefits.
E. Benefits paid to an individual who, during the individual's base period, earned
wages for part-time employment with an employer shall not be used as a factor in
determining the future contribution rate of that employer if the employer continues to
give employment opportunities to the individual to the same extent while he is receiving
benefits as during the base period and the employer submits information the commission
may require within ten working days after the date of notification or mailing of notice
by the commission that the individual has first filed a claim for benefits. The
commission has the burden of proof to establish that the employer failed to give
employment opportunities to the individual to the same extent as during the base period.
F. Benefits paid to an individual whose employment was terminated by retirement
pursuant to a nongovernmental retirement or lump sum retirement pay plan under which the
age of mandatory retirement has been agreed upon between the employer and its employees
or by the bargaining agent representing such employees shall not be used as a factor in
determining the future contribution rate of that employer but the employer shall
establish that fact by submitting information the commission may require within ten days
after the date of notification or mailing of notice by the commission that the individual
has first filed a claim for benefits.
G. Benefits paid pursuant to section 23-771, subsections B and D shall not be used
as a factor in determining the future contribution rate of the affected base-period
employers.
H. A determination that benefits paid shall be used in determining future
contribution rates of the employer may be appealed by the employer in the same manner
provided for appeals of benefit determinations.
23-728 Standard rate of contribution
The standard rate of contributions payable by each employer for calendar year 1985
and each year thereafter shall be five and four-tenths per cent of the wages paid by the
employer during each calendar year.
23-729 Change from the standard contribution rate
If an employer's account has been chargeable with benefits throughout the twelve
consecutive calendar month period ending on June 30 of the preceding calendar year, the
employer shall have a rate computed in accordance with section 23-730. If the employer's
account has not been chargeable with benefits for that twelve month period, the employer
shall pay contributions at the reduced rate of two per cent.
23-730.01 Contributions; temporary additional contributions; due dates; exceptions
A. For purposes of this section:
1. "Additional contributions" means the money payments to be made at the surtax
rate.
2. "Contribution rate" means the rate at which an employer is required to pay
contributions as determined pursuant to any other section of this chapter.
3. "Contributions" means the money payments required to be made at the contribution
rate under any other section of this chapter.
4. "Surtax rate" means the rate at which an employer is required to pay additional
contributions as prescribed by this section.
B. For calendar year 1977 only, each employer shall be assigned a surtax rate. The
surtax rate shall be equal to fifty per cent of the contribution rate assigned for such
year except that if such surtax rate is more than one and two-tenths per cent it shall be
one and two-tenths per cent. The computed surtax rate shall be rounded to the nearest
one-hundredth of one per cent.
C. In addition to any contributions required under any other section of this
chapter, each employer shall pay additional contributions on wages paid during calendar
year 1977 at the assigned surtax rate if the joint legislative budget committee
determines that the total assets of the fund will be less than fifty million dollars on
December 31, 1976, and approves the implementation of the surtax. The total assets in
the fund shall be determined by the joint legislative budget committee in the following
manner: On or before November 1, 1976, the department of economic security shall inform
the joint legislative budget committee as to the estimated assets in the fund on that
date and the estimated assets in the fund for December 31, 1976.
D. Contributions on wages paid during 1976 are due in accordance with the following
schedule:
1. Due on April 30, 1976, contributions at the contribution rate on the first four
thousand two hundred dollars of wages paid to each employee during the first calendar
quarter of 1976.
2. Due on July 31, 1976, contributions at the contribution rate on that portion of
the first four thousand two hundred dollars of wages paid to each employee in 1976 which
were paid during the second calendar quarter of 1976.
3. Due on October 31, 1976, contributions at the contribution rate which were not
due on April 30, 1976 or July 31, 1976, on that portion of the first six thousand dollars
of wages paid to each employee in the first and second calendar quarters of 1976 plus
contributions at the contribution rate on that portion of the first six thousand dollars
of wages paid to each employee in 1976 which were paid during the third calendar quarter
of 1976.
4. Due on January 31, 1977, contributions at the contribution rate on that portion
of the first six thousand dollars of wages paid to each employee in 1976 which were paid
during the fourth calendar quarter of 1976.
E. Contributions at the contribution rate and additional contributions at the
surtax rate on wages paid during calendar year 1977 are due on the last day of the month
immediately following the calendar quarter in which the wages were paid, except that no
additional contributions at the surtax rate are required on wages paid during 1977 if on
December 31, 1976, the total assets of the fund equal or exceed fifty million dollars.
23-730.02 Temporary reduction of required income rates
(Rpld. 1/1/08)
Notwithstanding any other provision of this article, beginning on January 1, 2001
until the amount of the excise tax imposed pursuant to 26 United States Code section 3301
is reduced to six per cent or less, the required income rates prescribed in section
23-730 are reduced by one-tenth of one per cent.
23-730 Variation and adjustment of contribution rates
For calendar year 1985 and each calendar year thereafter, variations from the
standard rate of contribution shall be determined in accordance with the following
requirements:
1. If the total of all an employer's contributions, paid on or before July 31 of
the preceding calendar year with respect to wages paid by the employer prior to July 1 of
the preceding calendar year, equals or exceeds the total benefits that were chargeable to
the employer's account and were paid prior to July 1 of the preceding calendar year, with
respect to weeks of unemployment beginning prior to July 1, the employer's contribution
rate for the ensuing calendar year subject to the adjustments provided by this section
shall be determined from the employer's positive reserve ratio in accordance with the
table provided in this paragraph. An employer's positive reserve ratio is the percentage
resulting from dividing the employer's reserve surplus, which is the excess of
contributions paid over benefits charged by the employer's average annual taxable
payroll. If an employer's reserve equals zero, the employer's contribution rate for the
ensuing calendar year shall be two and seven-tenths per cent, subject to the adjustments
provided by this section.
Positive Reserve Ratio Contribution Rate
Less than 3% 2.60%
At least 3% but less than 4% 2.40%
At least 4% but less than 5% 2.15%
At least 5% but less than 6% 1.90%
At least 6% but less than 7% 1.65%
At least 7% but less than 8% 1.40%
At least 8% but less than 9% 1.15%
At least 9% but less than 10% 0.90%
At least 10% but less than 11% 0.65%
At least 11% but less than 12% 0.40%
At least 12% but less than 13% 0.15%
13% or more 0.02%
2. If the total of all an employer's contributions, paid on or before July 31 of
the preceding calendar year with respect to wages paid by the employer prior to July 1 of
the preceding calendar year, is less than the total benefits that were chargeable to the
employer's account and were paid prior to July 1 of the preceding calendar year, with
respect to weeks of unemployment beginning prior to July 1, the employer's contribution
rate for the ensuing calendar year shall be determined from the employer's negative
reserve ratio in accordance with the table provided in this paragraph, subject to the
rate adjustment provided in paragraph 3, except that the rate is subject to increases but
not to reduction. An employer's negative reserve ratio is the percentage resulting from
dividing the employer's reserve deficit, which is the excess of benefits charged over
contributions paid, by the employer's average annual taxable payroll. The table
applicable to rate computation for calendar year 1987 and each calendar year thereafter
is:
Negative Reserve Ratio Contribution Rate
Less than 3% 2.85%
At least 3% but less than 4% 3.05%
At least 4% but less than 5% 3.30%
At least 5% but less than 6% 3.55%
At least 6% but less than 7% 3.80%
At least 7% but less than 8% 4.05%
At least 8% but less than 9% 4.30%
At least 9% but less than 10% 4.55%
At least 10% but less than 11% 4.80%
At least 11% but less than 12% 5.05%
At least 12% but less than 13% 5.30%
13% or more 5.40%
3. The ratio of the total assets of the fund on July 31 as defined by department
regulation to the total taxable payrolls for the twelve month period immediately
preceding the computation date shall determine the required income rate for the ensuing
calendar year in accordance with the following fund control schedule:
Fund Ratio Required Income Rate
12.0% or more 0.40%
At least 10.0% but less than 12.0% 0.50%
At least 9.5% but less than l0.0% 0.60%
At least 9.0% but less than 9.5% 0.70%
At least 8.5% but less than 9.0% 0.80%
At least 8.0% but less than 8.5% 0.90%
At least 7.5% but less than 8.0% 1.00%
At least 7.0% but less than 7.5% 1.10%
At least 6.5% but less than 7.0% 1.20%
At least 6.0% but less than 6.5% 1.30%
At least 5.5% but less than 6.0% 1.40%
At least 5.0% but less than 5.5% 1.50%
At least 4.5% but less than 5.0% 1.70%
At least 4.0% but less than 4.5% 1.80%
At least 3.5% but less than 4.0% 2.00%
At least 3.0% but less than 3.5% 2.20%
Less than 3.0% 2.40%
For each calendar year the department shall compute the estimated required tax yield from
employers that is the product of the total taxable payrolls for the twelve month period
immediately preceding the computation date and the applicable required income rate from
the fund control schedule less the interest earned on monies in the fund during the
twelve month period immediately preceding the computation date and credited to the fund
by the United States treasury on or before October 31 following the computation
date. Except as otherwise provided by statute, the rates in paragraphs 1 and 2 shall be
adjusted proportionately if the estimated required tax yield from employers exceeds or is
less than the estimated yield from the rates without adjustment.
4. In computing an employer's adjusted rate as provided by paragraph 3, the
adjusted rate shall be calculated to the nearest one-hundredth per cent. An employer's
adjusted rate shall not be less than two one hundredths per cent. 23-731 Classification of employers by benefit experience to determine contribution rates; rate when report unavailable
The commission, for each calendar year, shall classify employers in accordance with
their actual experience in the payment of contributions and with respect to benefits
charged against their accounts, with a view to fixing such contribution rates as will
reflect the benefit experience. Each employer's rate for a calendar year shall be
determined on the basis of the employer's record as of July 1 of the preceding calendar
year. If as of the date the classification of employers is made the commission finds an
employing unit has failed to file any report required in connection therewith or has
filed a report which the commission finds incorrect or insufficient, the commission shall
make an estimate of the information required from the employing unit on the basis of the
best evidence reasonably available to it at the time and shall notify the employing unit
by mail addressed to its last known address. Unless the employing unit files the report
or a corrected or sufficient report as the case may be within fifteen days after mailing
the notice, the commission shall compute such employing unit's rate of contributions on
the basis of such estimates, and the rate as so determined shall be subject to increase
but not to reduction on the basis of subsequently ascertained information. 23-732 Annual notice to employer of contribution rate; procedure for review and redetermination; quarterly notification
A. The department shall promptly notify each employer of his rate of contributions
as determined for any calendar year. The determination shall become conclusive and
binding upon the employer unless, within fifteen days after the mailing of notice thereof
to his last known address or in the absence of mailing, within fifteen days after
delivery of the notice, the employer files an application for review and redetermination,
setting forth his reasons therefor. The department shall reconsider the rate, but no
employer shall in any proceeding involving his rate of contributions or contribution
liability contest the chargeability to his account of any benefits paid in accordance
with a determination, redetermination or decision pursuant to section 23-773, and
determined to be chargeable to the employer's account pursuant to section 23-727, except
upon the ground that the services on the basis of which the benefits were found to be
chargeable did not constitute services performed in employment for him and only in the
event that he was not a party to the determination, redetermination or decision or to any
other proceedings under this chapter in which the character of the services was
determined. The employer shall be promptly notified of the department's denial of his
application, or of the department's redetermination, both of which shall become final
unless within fifteen days after mailing or delivery of notification an appeal is filed
with the appeals board.
B. The department may give quarterly notification to employers of benefits paid and
chargeable to their accounts or of the status of such accounts, and such notification, in
the absence of an application for redetermination filed within fifteen days after
mailing, shall become conclusive and binding upon the employer for all purposes. A
redetermination or denial of an application by the department shall become final unless
within fifteen days after mailing or delivery thereof an appeal is filed with the appeals
board. The redeterminations may be introduced in any subsequent administrative or
judicial proceedings involving the determination of the rate of contributions of any
employer for any calendar year.
23-733.01 Assignments of rates; transfers of experience; violation; civil penalty; definitions
A. If an employer transfers the employer's trade or business or a portion of the
trade or business to another employer and at the time of the transfer there is
substantially common ownership, management or control between the two employers, the
unemployment experience that is attributable to the initial employer shall be transferred
to the successor employer. The rate of both employers shall be recalculated and made
effective to the beginning of the calendar year that follows the date of the transfer of
trade or business.
B. If a person is not an employer that is subject to this chapter when the employer
acquires a trade or business of an employing unit, the unemployment experience of the
acquired business shall not be transferred to the successor employer if the department
determines that the successor employer acquired the trade or business for the purpose of
obtaining a lower rate of contributions. Instead, the department shall assign the
standard contribution rate under section 23-729 to the successor employer. When making a
determination under this section, the department shall consider the cost of acquiring the
business, whether the person continues the business enterprise of the acquired business,
the length of time that the enterprise is continued and whether a substantial number of
new employees were hired to perform duties that were unrelated to the business activity
before the acquisition.
C. If an employer or a person knowingly violates or attempts to violate this
section for the purpose of obtaining a lower rate of contribution or if a person
knowingly advises an employer or a person on evading or defeating a contribution or its
payment, the person or employer shall be subject to the following penalties:
1. If the person is an employer, the person shall be assigned the highest rate
assignable under this chapter for the rate year in which the transfer or the attempted
transfer occurred and for the following three rate years. If the person's business is
already at the highest rate for any year, or if the amount of increase in rate would be
less than two per cent for any year, the contribution penalty rate of two per cent of
taxable wages shall be imposed for any such year.
2. If the person is not an employer, the department shall assess against the person
a civil penalty of five thousand dollars. The department shall deposit penalties
collected pursuant to this paragraph in the penalty and interest account pursuant to
section 23-705.
3. Any person or employer in violation of this section may also be prosecuted
pursuant to section 13-2310 or 13-2311. This does not preclude prosecution pursuant to
section 23-786.
D. Notwithstanding any other law, this section applies to the assignments of rates
and transfers of experience under this chapter.
E. This department shall apply this section in order to meet the minimum
requirements of any guidance or regulation that is issued by the United States department
of labor.
F. The department shall adopt rules to identify the transfer or acquisition of a
business under this section.
G. For the purposes of this section:
1. "Knowingly" means having actual knowledge of or acting with deliberate ignorance
or reckless disregard of a requirement.
2. "Person" means person as defined in section 7701(a)(1) of the internal revenue
code.
3. "Trade or business" includes an employer's workforce.
4. "Violates or attempts to violate" includes an action to evade, conceal,
misrepresent or engage in wilful nondisclosure. 23-733 Transfer of employer experience rating accounts to successor employer; liability of successor
A. When any employing unit in any manner succeeds to or acquires the organization,
trade or business, or substantially all of the assets thereof, excepting any assets
retained by such employer incident to the liquidation of his obligations, whether or not
such acquiring employing unit was an employer within the meaning of section 23-613, prior
to such acquisition, and continues such organization, trade or business, the account of
the predecessor employer shall be transferred as of the date of acquisition to the
successor employer for the purpose of rate determination.
B. An employing unit which succeeds to or acquires a distinct and severable portion
of an organization, trade or business may apply for transfer of the account of the
portion by filing with the department not later than one hundred eighty days after the
date of acquisition a written application for transfer, approved in writing by the
predecessor, except that for good cause shown the department may extend the time for
filing the application. The account of the acquired portion shall be transferred to the
successor as of the date of acquisition only if the successor continues to operate the
acquired portion and submits necessary information establishing the separate identity of
the account within thirty days after the request for the necessary supporting payroll
information is mailed to the successor by the department, except that for good cause
shown the department may extend the time for submitting such supporting information. The
predecessor and successor employers shall be promptly notified of the determination made
upon the application which shall become final fifteen days after written notice thereof
is served personally or by certified mail addressed to the last known address of each
employing unit involved, unless within such time one of the parties files with the
department a written request for reconsideration. When timely request for
reconsideration is filed, a reconsidered determination shall be made. The reconsidered
determination shall become final fifteen days after written notice thereof is served
personally or by certified mail addressed to the last known address of each employing
unit involved, unless within such time one of the employing units involved files with the
department a written petition for hearing. When timely petition for hearing is filed,
the parties shall be afforded an opportunity for hearing and thereafter furnished with a
decision. The decision shall become final unless a petition for review is filed as
provided in section 23-672.
C. If the successor employer was an employer subject to this chapter prior to the
date of acquisition of an organization, trade or business, or substantially all of the
assets thereof, his rate of contributions for the remainder of the calendar year in which
the acquisition occurred shall be his rate as previously assigned for the calendar year
in which the acquisition occurred. If the successor was not an employer prior to the
date of acquisition, his rate for the remainder of the calendar year beginning on the
date of acquisition shall be the rate applicable to the predecessor employer or employers
for the calendar year in which the acquisition occurred, if there was only one
predecessor or there were only predecessors with identical rates. If the predecessor
rates were not identical, the successor's rate for the remainder of the calendar year
beginning on the date of acquisition shall be recomputed on the basis of the combined
accounts of the predecessors as of the computation date applicable to the calendar year
in which the acquisition occurred. When the account for a distinct and severable portion
has been transferred to a successor who was not an employer prior to the date of
acquisition, the rate of the successor for the remainder of the calendar year beginning
on the date of acquisition shall be computed as of the computation date applicable to
such calendar year, on the basis of the experience attributable to the acquired
portion. If the successor was an employer prior to the date of acquisition, his rate for
the remainder of the calendar year beginning on the date of acquisition shall be the rate
previously assigned to him for the calendar year in which the acquisition occurred. The
rate of the predecessor for the remainder of the calendar year beginning on the date of
acquisition shall be the rate previously assigned to him with respect to the calendar
year in which the acquisition occurred.
D. Any individual or organization, including the types of organizations described
in section 23-614, whether or not an employing unit, which in any manner acquires the
organization, trade or business, or substantially all of the assets thereof, shall be
liable, in an amount not to exceed the reasonable value, as determined by the department,
of the organization, trade, business or assets acquired, for any contributions, interest
and penalties due or accrued and unpaid by such predecessor employer, except that the
department may waive the successor's liability for such unpaid amounts if a determination
that the predecessor was subject to this chapter had not been made as provided in section
23-724 prior to the date of acquisition, and such liability on the part of the successor
would be against equity and good conscience.
E. The amount of liability of a successor employer for any contribution, interest
and penalties due or accrued and unpaid by his predecessor employer shall be a lien
against the property or assets so acquired which shall be prior to all other liens except
prior recorded realty mortgages, but the lien shall not be valid as against one who
acquires from the successor any interest in the property or assets in good faith, for
value, and without notice of the lien. On written request, the department shall furnish
the successor with a written statement of the amount of contributions, interest and
penalties due or accrued and unpaid by the predecessor employer as of the date of such
acquisition, and the amount of the liability of the successor or the amount of the lien
shall in no event exceed the liability disclosed in such statement. The remedy provided
by this section shall be in addition to all other existing remedies against the
predecessor employer or his successor, and the lien against the successor may be
foreclosed as in other civil actions.
23-734 Agreement by employee to pay employer contribution void
No agreement by an individual in the employ of any person or concern to pay all or a
portion of an employer's contributions or payments in lieu of contributions required
under this chapter from the employer shall be valid.
23-735 Requiring or accepting payments from wages to finance employer's contribution; waiver of rights of employee; violation; classification
A. No employer shall directly or indirectly make, require or accept a deduction
from wages to finance the employer's contributions or payments in lieu of contributions
required from him, or require or accept a waiver of any right under this chapter by any
individual in his employ.
B. An employer or officer or agent of an employer who violates any provision of
this section is guilty of a class 2 misdemeanor.
23-736 Interest on past due contributions; deposit of interest
A. If contributions are not paid on the date due and payable as prescribed by the
commission, the whole or part thereafter remaining unpaid shall bear interest at the rate
of one per cent per month, or fraction thereof, from and after the due date until payment
is received by the commission, subject to waiver for good cause shown. The date as of
which payment of contributions, if mailed, is deemed to have been received may be
determined by such regulations as the commission may prescribe.
B. Interest collected pursuant to this section and section 23-723 shall be
deposited in the special administration fund.
23-737.01 Collection of amounts due by certificate for judgment
A. If a contribution or payment in lieu of a contribution imposed under this
chapter is not paid when due, the department may, instead of pursuing civil action
authorized in section 23-737, obtain judgment against the employer as prescribed by this
section.
B. No earlier than fifteen days after the date on which contributions or payments
in lieu of contributions are due, the department shall issue a determination stating the
amounts of contributions, payments in lieu of contributions, penalties and interest
due. Unless the employer files a written petition for hearing within fifteen days after
the determination is served personally or sent by certified mail to the last known
address of the employer, the determination becomes final. The determination shall state
that a certificate for judgment will be filed unless, within the fifteen days, the
employer files with the department a written petition for hearing stating the reasons why
the amount of the indebtedness is considered to be incorrect.
C. If a timely petition for hearing is filed as prescribed in subsection B of this
section, the employer shall be afforded an opportunity for hearing on the issue of the
amount of indebtedness and thereafter furnished with a decision. The hearing shall be
conducted by the department and a decision issued by the hearing officer. The decision
becomes final unless within the time and in the manner provided in title 12, chapter 7,
article 6 a petition for judicial review and a bond approved by the court in the amount
of the total indebtedness as determined by the decision is filed with the superior court
by the employer.
D. Notwithstanding section 22-201 with regard to jurisdiction, after a decision
under this section and any decision on the issue of liability arising under section
23-724 affecting the amounts due have become final, the department may file with the
clerk of the superior court in any county a certificate for judgment, without regard to
the amount involved. The certificate shall:
1. Specify the amounts due and unpaid under the provisions of this chapter and the
name and last known address of the employer liable for the indebtedness.
2. Include a statement attesting to the fact that a decision meeting all the
requirements of this section has been issued and become final in that either:
(a) A petition for hearing was not received or was filed untimely and the
determination became the final decision.
(b) A hearing was held after receipt of a timely petition and a decision was
properly served and became final.
E. Immediately upon the filing of a certificate for judgment, a judge or
commissioner of the superior court shall enter judgment for the department against the
employer in the amount specified in the certificate. The department shall notify the
employer that judgment has been entered.
F. A judgment entered pursuant to this section has the effect of any other
judgment, and execution shall issue in the same manner as upon other judgments.
G. The provisions of this section may not be applied against a successor employer
under section 23-733.
23-737.02 Recovery of collection costs; fee for bad checks
A. A debtor who fails to pay any contributions, payments in lieu of contributions,
penalties, interest or fees imposed under this chapter is liable for all costs and
expenses incurred by the department to collect these amounts. The department may collect
these costs and expenses at the time of collecting the delinquent contributions, payments
in lieu of contributions, penalties, interest and fees.
B. The department may charge and collect a fee of twenty-five dollars from any
person who offers a check, draft, negotiable order of withdrawal or similar instrument
drawn on a bank or other depository institution in full or partial payment of an amount
due under this chapter if the instrument is not paid or is dishonored by the
institution. The department may waive the fee if the person shows good cause for the
nonpayment or dishonor of the instrument.
23-737 Collection of contributions or interest; precedence of action
A. If a contribution, payment in lieu of a contribution, penalty or interest
imposed under this chapter is not paid when due, these amounts may be collected by levy
pursuant to section 23-752 or by civil action in the name of the department, and the
employer adjudged in default shall pay the court costs.
B. Actions brought under this section shall be heard by the court at the earliest
possible date and shall have precedence over other civil actions, except petitions for
judicial review under this chapter, and cases arising under chapter 6 of this title.
C. After judgment is entered pursuant to this article against the state, a city,
town, county, school district or other political subdivision or an instrumentality,
agency, board or commission thereof, or any combination of the foregoing, the department
shall notify the employer that judgment has been entered. Within thirty days of the date
of notice the treasurer or other appropriate officer of the employer charged with the
receipt, custody, and disbursements of its monies or funds shall, without issuance of
execution or garnishment or other legal action, remit to the department all
contributions, payments in lieu of contributions, interest and penalties in judgment. If
within the thirty-day period satisfaction of judgment is not obtained, the department
shall petition for and the superior court may grant an order compelling payment of the
amounts in judgment by the governing body of the employer against which judgment has been
entered.
23-738.01 Deficiency assessment; petition for reassessment
A. If the department finds through its audit or claims-taking procedures that the
return filed by an employer is deficient, the department may compute the amount required
to be paid on the basis of any information in its possession and make an assessment of
the amount of the deficiency. The department shall add to the deficiency assessment made
under this section, subject to waiver for good cause shown, a penalty of one-tenth of one
per cent of the difference between the wages paid during the quarter and the wages
reported during the quarter, but not more than two hundred dollars and interest as
prescribed by section 23-736. If the deficiency is due to fraud or an intent to evade
payment of contributions, the department shall add to the amount due a penalty equal to
twenty-five per cent of the amount due. The department shall promptly notify the
employer of any deficiency.
B. An employer against whom a deficiency assessment is made may petition for
reassessment within fifteen days after written notice of the assessment is served
personally or sent by certified mail to the employer's last known address. If the
petition for reassessment is not filed within fifteen days, the amount of the assessment
becomes final and the lien imposed by section 23-745 attaches.
23-738 Delinquency assessments; interest and penalties; petition for reassessment
A. If an employer neglects or refuses to make a return as required by this chapter,
the department shall make an estimate based upon information in its possession of the
amount of contributions due from the employer for the period for which he failed to make
a return, and shall assess the estimated amount against the delinquent employer. The
department shall add to the delinquency assessment made under this section the penalty
provided in section 23-723 and interest as prescribed by section 23-736. If the neglect
or refusal to file a return is due to fraud or an intent to evade payment of
contributions, there shall be added to the amount due a penalty equal to twenty-five per
cent thereof. The department shall promptly notify the delinquent employer of any
estimate.
B. An employer against whom any delinquency assessment is made may petition for
reassessment within fifteen days after written notice of the assessment is served
personally or sent by certified mail to the employer's last known address. If the
petition for reassessment is not filed within fifteen days the amount of the assessment
shall become final and the lien imposed by section 23-745 shall attach.
23-739 Jeopardy assessment; petition for reassessment
A. Notwithstanding sections 23-738 and 23-738.01, if the department believes the
collection of a contribution, payment in lieu of contributions, interest or penalties
will be jeopardized by delay, it may, whether or not the time prescribed for making
reports and paying the amounts has expired, make a jeopardy assessment of such amount,
noting that fact upon the assessment, and the amount thereof shall be immediately due and
payable. The department shall add to the assessment made under this section any
applicable penalty provided in section 23-723 and interest as prescribed by section
23-736.
B. An employer against whom a jeopardy assessment is made may petition for
reassessment by filing a petition with the department not more than ten days after
written notice of the assessment is served personally or sent by certified mail to the
employer's last known address, together with payment of the amount assessed, or by
depositing at the same time such security as the department deems necessary to insure
compliance with the provisions of this chapter. The security may be sold by the
department in accordance with rules and regulations adopted by it. If the petition for
reassessment is not filed within ten days, the amount of the assessment is final and the
lien imposed by section 23-745 attaches.
23-740 Procedure on petition for reassessment
If a timely petition for reassessment is filed and after any decision on the issue
of liability arising under section 23-724 affecting the assessment has become final, the
department shall reconsider the assessment and render a decision. The department may
increase or decrease the amount of any assessment under review. The decision of the
department becomes final with respect to the employer and the lien imposed by section
23-745 attaches unless within fifteen days after written notice is served personally or
sent by certified mail to the employer's last known address the employer files with the
department a written request for review by the appeals board with payment of the amount
assessed.
23-741 Payment of amounts in dispute
Notwithstanding section 23-742, the department shall refund any payment of
contributions, payment in lieu of contributions, interest or penalties subsequently
determined not due as a result of an appeal to the notice issued by the department
pursuant to section 23-724, 23-732, 23-733, 23-738, 23-738.01, 23-739, 23-740 or 23-750.
23-742 Adjustment or refund of contribution; limitation
A. Not later than three years after the date on which any contribution or interest
on a contribution becomes due, an employer who has paid the contribution or interest may
apply for an adjustment of the contribution or interest in connection with subsequent
contribution payments, or for a refund of the contribution or interest in the event the
adjustment cannot be made. If the department finds the contribution or interest, or any
part of the contribution or interest, was erroneously collected, it shall allow the
employer to make an adjustment, without interest, in connection with subsequent
contribution payments, or if the adjustment cannot be made the department shall refund
the amount, without interest, from the fund into which payments were made. For like
cause and within the same period, the adjustment or refund may be made on the initiative
of the department.
B. Any refund or adjustment of contributions erroneously paid shall be reduced by
the sum of any benefit overpayments which are attributable to the wages on which
contributions are to be refunded or adjusted, except that a reduction shall not be made
if it is shown to the satisfaction of the department that such contributions were
required to be paid due to the fault, mistake or omission of the department.
23-743 Limitations
A. Except for the provisions of subsection C, additional contributions, payments in
lieu of contributions, interest or penalties shall not be determined by the department to
be due after three years from the date the contributions, payments in lieu of
contributions, interest or penalties became delinquent.
B. If additional contributions, interest or penalties have been determined to be
due pursuant to this chapter and rules prescribed by the department within the statutory
time limits, there is no time limit for collecting contributions, payments in lieu of
contributions, interest or penalties.
C. In case of failure without good cause to file a return, fraud or intent to evade
any provision of this chapter, additional contributions, payments in lieu of
contributions, interest or penalties shall not be determined by the department to be due
after six years from the date the contributions, interest or penalties became delinquent.
23-744 Priority of claim for contributions due upon insolvency proceedings
A. In event of a distribution of an employer's assets pursuant to court order,
including receivership, assignment for benefit of creditors, adjudicated insolvency,
composition or similar proceeding, contributions then or thereafter due shall be paid in
full prior to all other claims except taxes and claims for wages of not more than two
hundred fifty dollars to each claimant earned within six months prior to commencement of
the proceeding. The existence of a condition of insolvency, or the institution of a
judicial proceeding for dissolution or distribution of assets, shall cause the priority
to attach without action on behalf of the commission.
B. In event of an employer's adjudication in bankruptcy, judicially confirmed
extension proposal or composition under the national bankruptcy act, contributions then
or thereafter due shall be entitled to such priority as is provided in that act for taxes
due a state or the United States.
23-745 Lien for unpaid contributions, interest and penalties
If any contributions, payments in lieu of contributions, interest or penalties which
the department is required to collect are not paid, the unpaid amounts are a lien from
the date the amounts became due as determined by the department on all property and
rights to property, whether real or personal, belonging to the employer or thereafter
acquired by the employer.
23-746.01 Satisfaction of lien; release
When any lien established by this article has been satisfied, the department shall
issue a release to the person against whom the lien is claimed. Such release shall be a
document in a form as specified in section 11-480.
23-746 Superiority of lien; notice
A. The department may perfect a lien no earlier than fifteen days after the date on
which contributions, payments in lieu of contributions, interest or penalties are due.
B. The lien imposed by section 23-745 may be perfected by the department against
the employer's real property located in any county by recording a notice of lien, in the
form prescribed by subsection E of this section, in the office of the county recorder.
C. The lien imposed by section 23-745 may be perfected by the department against
the employer's personal property or rights to personal property located within this state
by recording a notice of lien, in the form prescribed by subsection E of this section, in
the office of the secretary of state.
D. The lien imposed by section 23-745 with accruing interest, created or perfected
in the manner provided by this section, is superior to all other liens and encumbrances
perfected after the date the lien arose under the provisions of section 23-745.
E. A notice of lien recorded under this section shall specify all of the following:
1. The amount of contributions, payments in lieu of contributions, interest and
penalties due.
2. The periods for which such amounts are due.
3. The name and last known address of the employer liable for such amounts.
A copy of the notice shall be mailed to the employer's last known address.
F. On request, the department shall provide a disclaimer of lien within three
working days after the receipt of information which establishes to the satisfaction of
the department that the person identified is not the debtor against whom such lien has
been filed.
G. If the department fails to comply with the provisions of subsection F of this
section the person incorrectly identified as the debtor may bring a civil action to
compel the department to provide the disclaimer of lien. The department shall be liable
for all fees and other expenses of the person bringing the action against the department
pursuant to section 12-348.
23-747 Release of lien; bond; foreclosure and judgment against surety
A. The employer may cause his property to be released from the lien provided by
sections 23-745 and 23-746, by filing with the commission a bond in double the amount
claimed in the lien, executed by a surety licensed to do business in the state, running
to the commission and conditioned for the payment of all contributions, interest,
penalties, damages, costs, charges and disbursements that may be recovered by the
commission against the employer or that may be found to be a lien upon his
property. Upon filing the bond the commission shall execute and deliver to the employer
a release of the lien, but the release shall not operate in any manner to satisfy the
indebtedness secured by the lien.
B. If the commission establishes the validity of its lien by foreclosure action it
shall be entitled to judgment against the surety on the bond.
23-748 Effect upon lien of transfer of assets by delinquent
The transfer, through sale, exchange or otherwise, of a major portion of the assets
of a delinquent employer shall not defeat or impair the lien in favor of the commission,
and the person acquiring the assets shall be liable for payment of all delinquent
contributions, interest or penalties owed by his predecessor in interest. In an action
involving title to real or personal property against which the commission has or may
claim a lien, the commission shall be made a party.
23-749 Failure to make contributions or payments, furnish reports or produce or permit inspection of records; classification
Any employing unit or any officer or agent of an employing unit or any other person
who knowingly fails or refuses to make any contribution or other payment as required by
this chapter or to furnish any reports required by this chapter or to produce or permit
the inspection or copying of records as required by this chapter is guilty of a class 3
misdemeanor unless another classification is specifically prescribed in this chapter, and
each day of such failure or refusal shall constitute a separate offense.
23-750 Special provisions for nonprofit organizations and state and local governments
A. The provisions of this section apply to:
1. Any nonprofit organization described in paragraph 10 of section 23-617, which
but for the provisions of section 23-613, subsection A, paragraph 2, subdivision
(c) would not be subject to this chapter, or which is not mandatorily subject to this
chapter because of insufficient employees but which has voluntarily elected to become
subject to this chapter.
2. This state, or a political subdivision thereof, or any instrumentality, agency
or board of any one or more of the foregoing or any instrumentality of any of the
foregoing and one or more other states or political subdivisions.
B. Benefits paid to employees of employing units to which this section applies
shall be financed in accordance with the provisions of this subsection.
1. Any employing unit to which this section applies: (a) Which is or becomes
subject to this chapter on January 1, 1972, may elect to become liable for payments in
lieu of contributions for a period of not less than three consecutive taxable years
beginning with January 1, 1972, provided it files with the department a written notice of
its election not later than sixty days after written notice that such election may be
made is first given to the employing unit by the department.
(b) Which becomes subject to this chapter after January 1, 1972, may elect to
become liable for payments in lieu of contributions for a period of not less than three
consecutive taxable years by filing a written notice of its election with the department
not later than thirty days immediately following the date of the determination of such
subjectivity.
(c) Which makes an election in accordance with subdivision (a) or (b) of this
paragraph shall continue to be liable for payments in lieu of contributions until it
files with the department a written notice terminating its election not later than thirty
days prior to the beginning of the taxable year for which such termination shall first be
effective.
(d) Which has been paying contributions under this chapter subsequent to January 1,
1972, for a period of not less than three consecutive taxable years may elect to become
liable for payments in lieu of contributions for a period of not less than three
consecutive taxable years by filing a written notice of its election with the department
not later than thirty days prior to the beginning of the taxable year for which such
election shall first be effective.
2. The department may for good cause extend the period within which a notice of
election or a notice of termination must be filed.
3. The department shall notify the employing unit of any determination made of its
status as an employer and of the effective date of any election or termination of such
election made in accordance with this subsection. Such determination shall be subject to
reconsideration, petition for hearing, and judicial review in accordance with the
provisions of section 23-724.
4. An employing unit shall pay to the department for the fund an amount equal to
the amount of regular benefits and of one-half of the extended benefits paid which were
based upon wages paid during the employing unit's period of election to make payments in
lieu of contributions, except that a governmental entity shall pay to the department for
the fund an amount equal to the total amount of extended benefits paid for weeks of
unemployment beginning on or after January 1, 1979, which are based upon wages paid by
the governmental entity during its election to make payments in lieu of
contributions. The provisions of sections 23-727, 23-773 and 23-777, insofar as they
apply to noncharging an employer's account for benefit payments, do not apply to benefits
paid which were based upon wages paid during the employing unit's period of election to
make payments in lieu of contributions.
C. As soon as practicable after the end of each calendar quarter the department
shall determine the amount of payments in lieu of contributions due from each employing
unit and shall bill each employing unit for the amount due. If payment is not made on or
before the date due and payable as prescribed by the department, the whole or part
thereafter remaining unpaid shall bear interest at the rate of one per cent per month or
fraction thereof, from and after the due date until payment is received by the
department. The amount of payments due hereunder but not paid may be collected by the
department, together with interest and penalties, if any, in the same manner and subject
to the same conditions as contributions due from other employers. The amount due
specified in any bill from the department shall be conclusive and binding on the
employing unit unless not later than fifteen days after the bill was mailed to its last
known address, the employing unit files an application for redetermination. A
redetermination made under this subsection shall be subject to petition for hearing and
judicial review in accordance with the provisions of section 23-724.
D. Two or more employing units that have become liable for payments in lieu of
contributions 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 employing units. Each application shall identify and
authorize a group representative to act as the group's agent for the purposes of this
subsection. Upon approval of the application, the department shall establish a group
account for such employing units effective as of the beginning of the calendar quarter in
which the application is received and shall notify the group's representative of the
effective date of the account. The account shall remain in effect for not less than
three years and thereafter until terminated at the discretion of the department or upon
application by the group. Upon establishment of the account, each member of the group
shall be liable for payments in lieu of contributions with respect to each calendar
quarter in the amount that bears the same ratio to the total benefits paid in such
quarter that are attributable to service performed in the employ of all members of the
group as the total wages paid for service in employment by such member in such quarter
bear to the total wages paid during such quarter for service performed in the employ of
all members of the group. The department shall prescribe such regulations as it deems
necessary with respect to applications for establishment, maintenance, and termination of
group accounts that are authorized by this subsection, for addition of new members to,
and withdrawal of active members from, such accounts, and for the determination of the
amounts that are payable under this subsection by members of the group and the time and
manner of such payments.
E. Benefits are payable on the basis of employment to which this section applies,
in the same amount, on the same terms, and subject to the same conditions as benefits
payable on the basis of other employment subject to this chapter, except that
notwithstanding the provisions of sections 23-779 and 23-780:
1. Benefits based on service in an instructional, research, or principal
administrative capacity for an educational institution shall not be paid to an individual
for any week of unemployment which begins during the period between two successive
academic years, or during a similar period between two regular terms, whether or not
successive, or during a period of paid sabbatical leave provided for in the individual's
contract, if the individual performs such services in the first of such academic years or
terms and if there is a contract or a reasonable assurance that such individual will
perform services in any such capacity for any educational institution in the second of
such academic years or terms.
2. Benefits based on service in any other capacity for an educational institution
shall not be paid to an individual for any week of unemployment which begins during a
period between two successive academic years or terms if the individual performs such
services in the first of such academic years or terms and if there is a reasonable
assurance that such individual will perform such services in the second of such academic
years or terms, except that if benefits are denied to any individual under this paragraph
and that individual was not offered an opportunity to perform such services for the
educational institution for the second of such academic years or terms, the individual is
entitled to a retroactive payment of benefits for each week for which the individual
filed a timely claim for benefits and for which benefits were denied solely by reason of
this paragraph.
3. Benefits based on services described in paragraph 1 or 2 of this subsection
shall not be paid to an individual for any week of unemployment which begins during an
established and customary vacation period or holiday recess if the individual performs
such services in the period immediately before such vacation period or holiday recess and
if there is a reasonable assurance that such individual will perform such services in the
period immediately following such vacation period or holiday recess.
4. With respect to any services described in paragraph 1 or 2 of this subsection,
benefits are not payable on the basis of services in any capacity specified in paragraph
1, 2 or 3 of this subsection to any individual who performed such services in an
educational institution while in the employ of an educational service agency. For the
purposes of this paragraph, "educational service agency" means a governmental agency or
governmental entity which is established and operated exclusively for the purpose of
providing such services to one or more educational institutions.
F. In determining contribution rates assigned to employers under this chapter, the
payrolls of employing units liable for payments in lieu of contributions shall not be
included in computing the contribution rates to be assigned to employers under this
chapter. The payments in lieu of contributions made by such employing units shall be
included in the total assets of the fund in the same manner as contributions paid by
other employers.
G. Except as inconsistent with the provisions of this section, the provisions of
this chapter and regulations of the department shall apply to any matter arising pursuant
to this section.
23-751.01 Employment by an Indian tribe; benefits; payments in lieu of contributions; definitions
A. Any Indian tribe for which service in employment is performed is an employer for
the purposes of this chapter. Benefits that are based on service in the employment by an
Indian tribe are payable in the same amount and on the same terms and are subject to the
same conditions as benefits payable on the basis of other service subject to this
chapter.
B. An Indian tribe that is subject to this chapter shall pay contributions under
the same terms and conditions as prescribed for other employers that are subject to this
chapter, unless the tribe elects to make payments in lieu of contributions.
C. An Indian tribe that elects to make payments in lieu of contributions:
1. Shall make the election in the same manner and under the same conditions as
prescribed in section 23-750.
2. May elect to make payments in lieu of contributions by the tribe as a whole, by
individual tribal units or by combinations of tribal units.
3. Is subject to all other provisions in section 23-750 relating to employers who
elect to make payments in lieu of contributions.
D. An Indian tribe that fails to make the payments prescribed in section 23-750,
including assessments of interest and penalties, within ninety days after receiving a
bill for the payments loses the option to make payments in lieu of contributions for the
following tax year unless the tribe makes full payment before the contributions for the
next tax year are computed.
E. A tribe that has lost the option to make payments in lieu of contributions shall
have the option restored after one year if the tribe timely paid all contributions during
the prior year and all contributions, payments in lieu of contributions, penalties and
interest have been paid.
F. The department shall notify the United States internal revenue service and the
United States department of labor if an Indian tribe fails to make required payments,
including assessments of penalties and interest.
G. The department shall include in a notice of payment or delinquency to an Indian
tribe a statement that failure to make full payment within the prescribed time will cause
the Indian tribe to:
1. Be liable for taxes under the federal unemployment tax act, as amended (26
United States Code sections 3301 through 3311).
2. Lose the option to make payments in lieu of contributions.
H. An Indian tribe shall pay for all extended benefits that are attributable to
service in the employment of the tribe if the extended benefits are not reimbursed by the
federal government.
I. For the purposes of this section:
1. "Employment by an Indian tribe" means employment by an Indian tribe as defined
in 26 United States Code section 3306(u) or by a tribal unit except that employment by an
Indian tribe does not include the exclusions from employment prescribed in section
23-615, paragraph 6, subdivision (d), item (iii), subitems (B) and (E) and section
23-615, paragraph 6, subdivision (d), item (v).
2. "Tribal unit" means a subdivision or subsidiary of an Indian tribe or a business
enterprise that is wholly owned by an Indian tribe.
23-751 Authorizing certain state agencies and institutions of higher learning to elect to make payments in lieu of contributions
Effective January 1, 1974, this state or any of its agencies or boards may elect to
become liable for payments in lieu of contributions for a period of not less than three
consecutive taxable years by filing a written notice of its election with the department
not later than thirty days after written notice that such election may be made is first
given to the employing unit by the department. This election is extended to the state
hospitals and institutions of higher education that were subject to this chapter prior to
January 1, 1974, without regard to the length of time their present method of financing
has been in force.
23-752 Levy assessment and distraint
A. If a debtor who is liable to pay any contributions, payments in lieu of
contributions, interest or penalties neglects or refuses to pay the amounts, the
department may collect the amounts, and other monies sufficient to cover the expenses of
the levy, by levy on all property and rights to property, except property which is exempt
under section 23-755, belonging to the debtor or on which there is a lien as provided in
section 23-745 for the payment of the amounts. Levy may be made on the accrued salary or
wages of any officer, employee or elected official of this state or its political
subdivisions, or any agency or instrumentality of this state or its political
subdivisions, by serving a notice of levy on the department of administration in the case
of state wages or salaries and on the chief disbursing officer of a political subdivision
of this state in the case of wages or salaries paid by a political subdivision.
B. In lieu of seizure and sale under the provisions of this section and section
23-756, the department may direct the sheriff of any county in this state to execute the
levy in the same manner and with the same effect as a levy of and a sale pursuant to a
writ of execution.
C. If any property or right to property on which a levy has been made under
subsection A of this section is not sufficient to satisfy the claim of the department for
which the levy is made, the department, as often as necessary, may proceed to levy in a
like manner on any other property liable to levy of the debtor against whom the claim
exists, until the amount due, together with all expenses, is fully paid.
D. The effect of a levy on salary or wages payable to or received by a debtor is
continuous from the date the levy is first made until the liability out of which the levy
arose is satisfied or becomes unenforceable.
E. With respect to a levy described in subsection D of this section, the department
shall promptly release the levy when the liability out of which the levy arose is
satisfied or becomes unenforceable and shall promptly notify the person on whom the levy
was made that the levy has been released.
F. Except as provided in subsection D or E of this section, a levy extends only to
property possessed and obligations existing at the time of the levy. If the department
levies on property or rights to property, it may seize and sell the property or rights to
property, whether it is real or personal or tangible or intangible property.
G. A levy may be made under subsection A of this section on the salary or wages or
other property of a debtor with respect to any unpaid amounts only after the department
has notified the debtor in writing of its intention to levy. The notice of intent to
levy shall be given in person, left at the dwelling or usual place of business of the
debtor or sent by certified mail to the debtor's last known address no less than ten days
before the day of the levy.
H. The department shall include with each levy information as to the property
exempt from levy provided in section 23-755. 23-753 Surrender of property subject to levy; definition
A. Except as provided in subsection B of this section, a person in possession of,
or obligated with respect to, property or rights to property subject to levy on which a
levy has been made, on demand of the department, shall surrender the property or rights
to property or discharge the obligation to the department, except any part of the
property or rights to property that is, at the time of the demand, subject to an
attachment or execution under any judicial process.
B. A levy on an organization with respect to a life insurance or endowment contract
issued by the organization, without necessity for the surrender of the contract document,
constitutes a demand by the department for payment of the amount described in this
subsection and the exercise of the right of the debtor to the advance of this
amount. The organization shall pay the amount within ninety days after service of the
notice of the levy. The notice shall include a certification by the department that a
copy of the notice has been mailed to the debtor at the last known address. The levy is
deemed to be satisfied if the organization pays to the department the amount which the
debtor could have had advanced to the debtor by the organization on the date prescribed
in this subsection for the satisfaction of the levy, increased by the amount of any
advance, including contractual interest, made to the debtor on or after the date the
organization had actual notice or knowledge of the lien with respect to which the levy is
made, other than an advance, including contractual interest, made automatically to
maintain the contract in force under an agreement entered into before the organization
has notice or knowledge. The satisfaction of a levy under this subsection is without
prejudice to any civil action for the enforcement of any lien imposed by this chapter
with respect to the contract.
C. A person who fails or refuses to surrender any property or rights to property
subject to levy, on demand by the department, is liable to the department in an amount
equal to the value of the property or rights to property not surrendered, but not
exceeding the amount for which the levy has been made, with costs and interest on this
amount at a rate determined pursuant to section 23-736 from the date of the levy or, in
the case of a levy described in section 23-752, subsection D, from the date the person
would otherwise have been obligated to pay the amounts to the debtor. Any amount, other
than costs, recovered under this subsection shall be credited against the liability for
which the levy was made.
D. A person in possession of or obligated with respect to property or rights to
property subject to levy on which a levy has been made who, on demand by the department,
surrenders the property or rights to property or discharges the obligation to the
department, or who pays a liability under subsection C of this section, is discharged
from any obligation or liability to the debtor with respect to the property or rights to
property arising from the surrender or payment. In the case of a levy which is satisfied
pursuant to subsection B of this section, the organization is also discharged from any
obligation or liability to any beneficiary arising from the surrender or payment.
E. As used in this section "person" includes an officer or employee of a
corporation, an officer, employee or elected official of this state or its political
subdivisions, any agency or instrumentality of this state or a member or employee of a
partnership, who as an officer, employee, elected official or member is under a duty to
surrender the property or rights to property or to discharge an obligation pursuant to
this section.
23-754 Production of books
If a levy has been made or is about to be made on property, or a right to property,
any person having custody or control of books or records containing evidence or
statements relating to the property or a right to the property subject to levy, on demand
of the department, shall exhibit the books or records to the department.
23-755 Property exempt from levy
A. The following property is exempt from levy under this article:
1. Wearing apparel and school books necessary for the debtor or members of the
debtor's family.
2. Fuel, provisions, furniture, personal effects, arms for personal use, livestock
and poultry of the debtor not in excess of a fair market value of five hundred dollars.
3. Books and tools necessary for the trade, business or profession of the debtor
not in excess of a fair market value of two hundred fifty dollars.
4. Mail, addressed to any person, which has not been delivered to the addressee.
5. The amount of salary, wages or other income as is necessary to comply with a
judgment order, if the debtor is required by judgment of a court of competent
jurisdiction, entered before the date of levy, to contribute to the support of minor
children.
6. An amount payable to or received by an individual as wages or salary for
personal services or as income derived from other sources during any period, to the
extent that the total of the amounts payable to or received during the period does not
exceed the applicable exempt amount determined under subsection D of this section.
7. A homestead exempt from attachment, execution and forced sale to the extent
exempted by title 33, chapter 8.
B. The officer seizing property of the type described in subsection A of this
section shall appraise and set aside to the owner the amount of the property declared to
be exempt. If the debtor objects at the time of the seizure to the valuation fixed by
the officer making the seizure, the department shall summon three disinterested
individuals who shall make the valuation.
C. Notwithstanding any other statute, property or rights to property are not exempt
from the levy provided in this article except the property specifically made exempt by
subsection A of this section.
D. The following wages, salary and other income payable to or received by an
individual are exempt from levy under subsection A, paragraph 6 of this section:
1. In the case of an individual who is paid or receives all of his wages, salary
and other income on a weekly basis, the amount of wages, salary and other income received
during the week which is exempt from levy is fifty dollars and fifteen dollars for each
individual who is specified in a written statement submitted to the person on whom notice
of levy is served and which is verified in such manner as the department prescribes and:
(a) Over one-half of whose support for the payroll period was received from the
debtor.
(b) Who is the spouse of the debtor, or who bears a relationship to the debtor
specified in section 43-1001, paragraph 3.
(c) Who is a minor child of the debtor but not with respect to whom amounts are
exempt from levy under subsection A, paragraph 5 of this section for the payroll period.
2. In the case of an individual not described in paragraph 1 of this subsection,
the amount of the wages, salary and other income payable to or received during any
applicable pay period or other fiscal period, as determined by the department, which is
exempt from levy under subsection A, paragraph 6 of this section is an amount, determined
by the department, which as nearly as possible will result in the same total exemption
from levy for the individual over a period of time as allowed under paragraph 1 of this
subsection if, during the period of time, the wages, salary and other income were paid or
received on a regular weekly basis.
23-756 Notice and sale of seized property
A. Except as otherwise provided in this section, the notice of sale and sale of
property seized by the department under this article shall be conducted in the manner and
the time provided in title 12, chapter 9, article 7, relating to the sale of property
under execution.
B. Real property may be redeemed in the manner provided by title 12, chapter 8,
article 11.
C. The department shall notify the debtor of the date, time and location of the
sale of his property or right to property with a description of the property or right to
property to be sold. The notice shall be given in person, left at the dwelling or usual
place of business of the debtor or sent by first class mail to the debtor's last known
address, not less than ten days before the day of the sale. If the property or right to
property is perishable, the department shall give notice of the sale to the debtor in the
manner and within the time limits which are reasonable considering the character and
condition of the property.
23-757 Authority to release levy and return property
A. The department may release the levy on all or a part of the property or rights
to property levied on if the department determines that this action will facilitate the
collection of the liability. The release shall not operate to prevent any subsequent
levy.
B. If the department determines that property has been wrongfully levied on, the
department may return:
1. The specific property levied on.
2. An amount of money equal to the amount of money levied on.
3. An amount of money equal to the amount of money received by the department from
a sale of the property.
C. Property may be returned at any time. An amount equal to the amount of money
levied on or received from the sale may be returned at any time before the expiration of
nine months after the date of the levy.
23-761 Definitions
In this article, unless the context otherwise requires:
1. "Affected group" means two or more employees designated by the employer to
participate in a shared work plan.
2. "Approved shared work plan" or "approved plan" means an employer's shared work
plan which meets the requirements of section 23-762 and which the department approves in
writing.
3. "Normal weekly hours of work" means the number of hours in a week that the
employee normally would work for the shared work employer or forty hours, whichever is
less.
4. "Shared work benefits" means benefits, including benefits payable to federal
civilian employees and to ex-servicemen pursuant to 5 United States Code, chapter 85,
payable to an individual under this article for weeks of reduced work under an approved
shared work plan.
5. "Shared work employer" means an employer with a shared work plan in effect. An
individual who or an employing unit which succeeds to or acquires, pursuant to section
23-733, an organization, trade or business with a shared work plan in effect
automatically becomes a shared work employer and adopts such plan, if such individual or
employing unit certifies to shared work benefits under the previously approved plan.
6. "Shared work plan" or "plan" means an employer's voluntary written plan for
reducing unemployment under which a specified group of employees shares the work
remaining after their normal weekly hours of work are reduced.
23-762 Requirements of shared work plan; approval
A. An employer wishing to participate in the shared work unemployment compensation
program shall submit a signed, written shared work plan to the department for
approval. The department shall approve a shared work plan only if the plan:
1. Specifies the employees in the affected group.
2. Applies to only one affected group.
3. Includes a certified statement by the employer that, for the six month period
immediately preceding the date the plan is submitted, compensation was payable from the
shared work employer, or its predecessor whether or not they were shared work employers,
to each employee in the affected group in an amount equal to or greater than the wages
for insured work in one calendar quarter as provided in section 23-771, subsection A,
paragraph 6. An employee who joins an affected group after the approval of the shared
work plan is automatically covered under the previously approved plan, effective the week
that the department receives written notice from the shared work employer that the
employee has joined and certification from the employer that the employee meets the
provisions of section 23-771, subsection A, paragraph 6.
4. Includes a certified statement by the employer that for the duration of the plan
the reduction in the total normal weekly hours of work of the employees in the affected
group is instead of layoffs which otherwise would result in at least as large a reduction
in the total normal weekly hours of work.
5. Specifies the manner in which the employer will treat fringe benefits of the
employees in the affected group if the employees' hours are reduced to less than their
normal weekly hours of work.
6. Specifies an expiration date which is no more than one year from the date the
employer submits the plan for approval, except that on written request by the employer,
the department may approve an extension of the plan for a period of not more than one
year from the date of the request.
7. Is approved in writing by the collective bargaining agent for each collective
bargaining agreement which covers any employee in the affected group.
B. The department shall approve or disapprove the proposal within fifteen days of
receipt of the proposal by the department. The department shall notify the employer of
the reasons for denial of a shared work plan within ten days of such determination.
23-763 Shared work benefits; eligibility; requirements
A. An individual is eligible to receive shared work benefits with respect to any
week only if, in addition to meeting the requirements of article 6 of this chapter as
modified by subsections D and E of this section, the department finds that:
1. During the week the individual is employed as a member of an affected group in
an approved plan which was approved prior to the week and is in effect for the week.
2. During the week the individual's normal weekly hours of work were reduced at
least ten per cent but not more than forty per cent.
B. The department shall not pay an individual shared work benefits for more than
twenty-six weeks in a benefit year, except that this limitation does not apply to a week
if for the period consisting of the week and the immediately preceding twelve weeks the
rate, not seasonally adjusted, of insured unemployment in this state is equal to or
greater than four per cent.
C. The total amount of regular benefits and shared work benefits which the
department pays to an individual for weeks in his benefit year shall not exceed the total
for the benefit year as provided in section 23-780.
D. The department shall not deny an otherwise eligible individual benefits under
this article because of the application of any provision of this chapter relating to
availability for work, active search for work or refusal to apply for or accept work from
other than the individual's shared work employer.
E. Notwithstanding section 23-621 or any other provision of this chapter, for
purposes of this article an individual is unemployed in any week for which compensation
is payable to him, as an employee in an affected group, for less than his normal weekly
hours of work in accordance with an approved plan in effect for the week.
23-764 Amount of benefits
The department shall pay an individual eligible for shared work benefits with
respect to any week a shared work benefit that is a proportionate amount as provided in
this section of the employee's weekly benefit amount as provided in section 23-780. The
department shall pay a shared work weekly benefit that is an amount directly
proportionate to the ratio of the number of normal weekly hours of work for which the
employer would not compensate the employee to the employee's normal weekly hours of work
unless the employer compensates the employee on a piecework basis, in which case the
department shall pay an amount directly proportionate to the ratio of the normal number
of weekly pieces worked for which the employer would not compensate the employee to the
employee's normal number of weekly pieces worked. If the amount is not an even multiple
of one dollar, the department shall round it to the nearest dollar, and the department
shall round an even one-half dollar to the next higher multiple of one dollar. Except as
provided in section 23-791, the department shall not reduce the amount for compensation
payable for the week. The provisions of section 23-789 which require the department to
deduct and withhold certain amounts payable to an individual who is liable for child
support obligations apply to this article.
23-765 Employer contribution rates
A. If at any time before the computation date shared work benefits are paid under
the shared work plan of an employer or its predecessor, the employer's contribution rate
for the ensuing calendar year as determined according to section 23-730 shall be
increased by adding to that rate:
1. One per cent if the employer's negative reserve ratio is at least five per cent
but less than fifteen per cent.
2. Two per cent if the employer's negative reserve ratio is fifteen per cent or
more.
B. Subsection A of this section does not apply to an employer if any of the
following applies:
1. As of the computation date, the employer has a positive reserve ratio or a
reserve equal to zero.
2. The employer's account has not been charged with shared work benefits under the
shared work plan or plans of the employer or its predecessor during the twelve month
period immediately preceding the computation date, if the employer's reserve ratio as of
the computation date is more favorable than it was as of the preceding computation date.
3. The employer's account has not been charged with shared work benefits under the
shared work plan or plans of the employer or its precedessor during the twenty-four month
period immediately preceding the computation date.
23-766 Other provisions of this chapter; department regulations; applicability
Except as otherwise provided by or inconsistent with this article, this chapter and
department regulations apply to benefits under this article.
23-769 Job training employer tax
(Rpld. 1/1/08)
A. Beginning on January 1, 2001, a tax equal to one-tenth of one per cent of
taxable wages as provided and defined in section 23-622 and that are paid to an employee
each year is imposed on each employer in this state except employers described in
subsection B or C of this section.
B. Subsection A of this section does not apply to employers who have elected to
become liable for payment in lieu of contributions pursuant to section 23-750.
C. Until the amount of the excise tax imposed pursuant to 26 United States Code
section 3301 is reduced to six per cent or less, subsection A of this section does not
apply to employers:
1. With a positive reserve ratio of at least thirteen per cent pursuant to section
23-730.
2. With a positive reserve ratio of at least twelve per cent but less than thirteen
per cent.
3. That are assigned the contribution rate of two per cent pursuant to section
23-729 or two and seven-tenths per cent pursuant to section 23-730.
4. With a negative reserve ratio pursuant to section 23-730.
D. The department of economic security shall collect this tax on a quarterly basis
and shall deposit, pursuant to sections 35-146 and 35-147, the monies collected pursuant
to this section in the ARIZONA job training fund established by section 41-1544. Monies
collected pursuant to this section shall not be commingled in any manner with monies
collected pursuant to articles 4, 5 and 5.1 of this chapter.
E. From and after December 31, 2004, the payment of contributions or job training
employer taxes is not required if the quarterly amount of the contributions and taxes is
less than ten dollars.
23-771.01 Approved training; definitions
A. Notwithstanding any other provision of this chapter, no otherwise eligible
individual shall be denied benefits for any week:
1. Because he is in training approved by the secretary of labor under section 236
of the trade act of 1974, as amended, or because of leaving work which is not suitable
employment to enter such training.
2. Because he is in training with the approval of the department, nor
3. Because of the application to any such week of such training of any provision of
this chapter relating to availability for work, active search for work, or refusal to
apply for or accept work.
B. No payment of benefits under this chapter made possible under this section shall
be made to any individual for any week, or part of any week, with respect to which he is
entitled to receive any training allowance under any public training or retraining
program if such training allowance equals or exceeds the benefits to which the individual
would otherwise be entitled. If the training allowance is less than the benefits to
which the individual would otherwise be entitled, his benefits shall be computed in
accordance with section 23-779, subsection C, treating the training allowance in the same
manner as wages, and benefits shall be paid accordingly.
C. In this section, unless the context otherwise requires, "suitable employment"
means, with respect to an individual, work which is of a substantially equal or higher
skill level than the individual's past adversely affected employment and for which the
wages equal or exceed eighty per cent of the individual's average weekly
wage. "Adversely affected employment" and "average weekly wage" have the meanings
prescribed by section 247 of the trade act of 1974, as amended.
23-771 Eligibility for benefits
A. An unemployed individual shall be eligible to receive benefits with respect to
any week only if the department finds that the individual:
1. Has registered for work at and thereafter has continued to report at an
employment office in accordance with such regulations as the department prescribes.
2. Has made a claim for benefits in accordance with section 23-772.
3. Is able to work.
4. Is available for work.
5. Has been unemployed for a waiting period of one week. A week shall not be
counted as a week of unemployment for the purpose of this paragraph:
(a) Unless it occurs within the benefit year that includes the week with respect to
which the individual claims payment of benefits.
(b) Unless the individual was eligible for benefits with respect thereto as
provided in this section and sections 23-775 through 23-777.
(c) If benefits have been paid in respect thereto.
6. Has met one of the following requirements:
(a) Has been paid wages for insured work during the individual's base period equal
to at least one and one-half times the wages paid to the individual in the calendar
quarter of the individual's base period in which such wages were highest, and the
individual has been paid wages for insured work in one calendar quarter of the
individual's base period equal to at least one thousand five hundred dollars.
(b) Has for a benefit year beginning on or after September 2, 1984, been paid wages
for insured work during at least two quarters of the individual's base period and the
amount of such wages paid in one quarter would be sufficient to qualify the individual
for the maximum weekly benefit amount payable under this chapter and the total of the
individual's base-period wages is equal to or greater than the taxable limit as specified
in section 23-622, subsection B, paragraph 1.
7. Following the beginning date of a benefit year established under this chapter or
the unemployment compensation law of any other state and prior to the effective date of a
subsequent benefit year under this chapter, has performed services whether or not in
employment as defined in section 23-615 for which wages were payable in an amount equal
to or in excess of eight times the weekly benefit amount for which the individual is
otherwise qualified under section 23-779. In making a determination under this paragraph
the department shall use information available in its records or require the individual
to furnish necessary information within thirty days from the date notice is given that
such information is required.
B. If an unemployed individual cannot establish a benefit year as defined in
section 23-609 due to receipt during the base period of compensation for a temporary
total disability pursuant to chapter 6 of this title, or any similar federal law, the
individual's base period shall be the first four of the last five completed calendar
quarters immediately preceding the first day of the calendar week in which the disability
began. Wages previously used to establish a benefit year may not be reused. This
subsection does not apply unless all of the following occur:
1. The individual has filed a claim for benefits not later than the fourth calendar
week of unemployment after the end of the period of disability.
2. The claim is filed within two years after the period of disability begins.
3. The individual meets the requirements of subsection A of this section.
4. The individual has attempted to return to the employment where the temporary
total disability occurred.
C. If an unemployed individual is a member of the national guard or other reserve
component of the United States armed forces, the individual shall not be considered to be
either employed or unavailable for work by reason of the individual's participation in
drill, training or other national guard or reserve activity that occurs on not more than
one weekend per month or in lieu of a weekend drill or the equivalent.
D. The department shall not disqualify an individual from receiving benefits under
this chapter on the basis of the individual's separation from employment if the
individual is a victim of domestic violence and leaves employment due to a documented
case of a domestic violence offense as defined in section 13-3601 or 13-3601.02.
Benefits paid to an individual pursuant to this subsection shall not be charged against
an employer's account pursuant to section 23-727, subsection G.
E. For the purposes of subsection A, paragraph 6 of this section, wages shall be
counted as "wages for insured work" for benefit purposes with respect to any benefit year
only if that benefit year begins subsequent to the date on which the employing unit by
which those wages were paid has become an employer subject to this chapter.
23-772 Claims for benefits; notice to employer of initial claim; posting printed statements dealing with claims
A. Claims for benefits shall be made in accordance with such regulations as the
department prescribes.
B. All base period employers of a claimant for benefits shall be promptly notified
when a claimant files an initial claim for benefits during a period of unemployment.
C. Each employer shall post and maintain printed statements dealing with claims for
benefits in places readily accessible to individuals in his service, and shall make
available to each individual at the time he becomes unemployed, a printed statement
dealing with claims for benefits. Printed statements shall be supplied by the department
to each employer without cost.
23-773 Examination and determination of claims
A. A representative designated by the department as a deputy shall promptly examine
any claim for benefits and, on the basis of the facts found by the deputy, shall
determine whether or not the claim is valid. If the claim is valid, the deputy shall
also determine the week with respect to which the benefit year shall commence, the weekly
benefit amount payable and the maximum duration of the benefit.
B. The deputy shall promptly notify the claimant and any other interested parties
of the determination and the reasons for the determination. Except as provided in
subsection D of this section, unless the claimant or an interested party, within seven
calendar days after the delivery of notification, or within fifteen calendar days after
notification was mailed to the claimant's or interested party's last known address, files
an appeal from the determination, it shall become final, and benefits shall be paid or
denied in accordance with the determination. If an appeal tribunal affirms a
determination of the deputy allowing benefits, or the appeals board affirms a
determination or decision allowing benefits, the benefits shall be paid regardless of any
appeal that may thereafter be taken, but if that decision is finally reversed, no
employer's account shall be charged with benefits so paid.
C. Upon receipt of a request from an interested party for information about a
deputy's determination made pursuant to this section or section 23-673, the department
shall make available by memorandum or other written document within five days after
receipt of the request the following information:
1. The facts considered and the facts relied on in making the determination.
2. The specific statutes, regulations or other authority relied on in making the
determination.
3. The reasoning applied in making the determination.
D. Before the time for appeal as prescribed in subsection B of this section has
expired, an interested party may request a reconsidered determination. The department
shall examine the request and, within seven calendar days, deny the request or issue a
reconsidered determination. If the department denies the request based on an alleged
failure of the interested party to make a timely response but the interested party
subsequently proves that the response was timely filed and received by the department,
the department shall report that result to the joint legislative budget committee. The
interested party may prove that a response was timely filed by using evidence of fax
records that documents the date and time when a faxed response was transmitted and
received by the department. A request for reconsideration that is denied shall be treated
as an appeal, and the same procedure shall be followed as provided for in case of appeal
from the original determination. If a reconsidered determination is issued, the time for
appeal shall run from the date of issuance of the reconsidered determination. The
employer and the claimant shall each be permitted no more than one request for
reconsideration on each case.
E. Before the actual filing of an appeal under subsection B of this section, but
not later than the time permitted to appeal, the department on its own motion may issue a
reconsidered determination. After the time for appeal has expired, but within one year
after the issuance of the original determination, the department with authorization of
the unemployment insurance program administrator may issue a reconsidered determination,
on the basis of newly discovered evidence that by due diligence could not have been
previously discovered, if no administrative or judicial review has occurred or is pending
on the original determination. If a redetermination is based on fraud, the one year
limitation on the issuance of redeterminations does not apply.
F. Prompt notice in writing of any reconsidered determination under subsection E of
this section and the reasons for reconsideration shall be given to all interested
parties. An interested party may appeal within the time prescribed under subsection B of
this section, and the same procedure shall be followed as provided for in case of an
appeal from the original determination.
23-775 Disqualification from benefits
An individual shall be disqualified for benefits:
1. For the week in which the individual has left work voluntarily without good
cause in connection with the employment, and in addition to the waiting week, for the
duration of the individual's unemployment and until the individual has earned wages in an
amount equivalent to five times the individual's weekly benefit amount otherwise
payable. If a person leaves because of transportation difficulties, the individual shall
be disqualified unless the individual can show the individual's travel requirements are
in excess of the normal practice in the individual's occupation and past practice or that
the individual has compelling personal circumstances requiring the individual's leaving.
Compelling personal circumstances shall include but are not limited to a showing of any
of the following:
(a) Over thirty miles distance from the individual's home to work.
(b) More than one and one-half hours to reach work.
2. For the week in which the individual has been discharged for wilful or negligent
misconduct connected with the employment, and in addition to the waiting week, for the
duration of the individual's unemployment and until the individual has earned wages in an
amount equivalent to five times the individual's weekly benefit amount otherwise payable.
3. For any week with respect to which or a part of which the individual has
received or is seeking unemployment benefits under an unemployment compensation law of
another state or of the United States, but if the appropriate agency of the other state
or of the United States finally determines that the individual is not entitled to
unemployment benefits, the ineligibility shall not apply.
4. For the week in which the individual becomes unemployed and for not more than
the following three weeks, if the individual's unemployment is due solely to a customary
suspension of all operations, except maintenance work, at the factory, plant or other
premises at which the individual was last employed, which will not occur more than once
in a calendar year and will not exceed four consecutive weeks' duration, and the
employment will again be available to the individual on resumption of operations. For
the purposes of this paragraph:
(a) "Customary suspension" means a suspension that has occurred for the same or
similar reasons in each of three consecutive years or more, including the year in
question, regardless of whether the suspension in any previous year would have satisfied
the requirements of this paragraph. A suspension provided for by an agreement to which
the employer is a party shall be considered customary unless the agreement specifies the
exact time, duration, type and circumstances of the suspension. Any suspension whose
details are determined by the employer shall be considered customary, regardless of the
employer's ultimate reason for imposing it, as long as the employer's reason or reasons
are the same or similar over the necessary period.
(b) "Factory, plant or other premises" means any location or premises or portion of
locations or premises of the employer where the work or operations are separate and
distinct from those at other locations or premises or portions of locations or premises,
regardless of geographic proximity or functional, geographic or administrative
integration of the work or operations.
(c) "Maintenance work" has its usual meaning and includes any administrative,
executive, clerical or supervisory work or any other work necessary to keep the factory,
plant or other premises in a position to resume full operations promptly at the end of
the suspension or necessary to pay, supervise or otherwise support individuals performing
such work.
5. For any week in which the individual is incarcerated.
23-776 Disqualification from benefits for failure to accept suitable work; exceptions
A. An individual shall be disqualified for benefits if the department finds he has
failed without cause either to apply for available, suitable work, when so directed by
the employment office or the department, or to accept suitable work when offered him, or
to return to his customary self-employment when so directed by the department. The
disqualification shall begin with the week in which the failure occurred and shall
continue for the duration of his unemployment and until he has earned wages in an amount
equivalent to eight times his weekly benefit amount otherwise payable.
B. In determining whether or not work is suitable for an individual, the department
shall consider the degree of risk involved to his health, safety and morals, his physical
fitness and prior training, his experience and prior earnings, his length of unemployment
and prospects for securing local work in his customary occupation and the distance of the
available work from his residence.
C. Notwithstanding any other provisions of this chapter, no work shall be deemed
suitable and benefits shall not be denied under this chapter to an otherwise eligible
individual for refusing to accept new work under any of the following conditions:
1. If the position offered is vacant due directly to a strike, lockout or other
labor dispute.
2. If the wages, hours or other conditions of the work offered are substantially
less favorable to the individual than those prevailing for similar work in the locality.
3. If as a condition of being employed the individual would be required to join a
company union or to resign from or refrain from joining a bona fide labor organization.
23-777 Disqualification from benefits for unemployment resulting from labor dispute; exceptions; effect on contribution rate
A. An individual shall be disqualified for benefits for any week with respect to
which the commission finds that his total or partial unemployment is due to a labor
dispute, strike or lockout which exists at the factory, establishment or other premises
at which he is or was last employed. This provision shall not apply if it is shown to
the satisfaction of the commission that the individual is not participating in, financing
or directly interested in the labor dispute, strike or lockout or that he does not belong
to a grade or class of workers of which, immediately before the commencement of the labor
dispute, strike or lockout, there were members employed at the premises at which the
labor dispute, strike or lockout occurs, any of whom are participating in or financing or
directly interested in the dispute, strike or lockout. In the case of separate branches
of work commonly conducted as separate businesses in separate premises, each department
shall, for the purposes of this section, be deemed to be a separate factory,
establishment or other premises.
B. If the commission, upon investigation, finds that the dispute, strike or lockout
is caused by the failure or refusal of an employer to conform to the provisions of an
agreement or contract between employer and employee, or a law of this state or of the
United States pertaining to hours, wages or other conditions of work, such dispute,
strike or lockout shall not render the workers ineligible for benefits.
C. Benefits paid to an individual as a result of total or partial unemployment due
to a labor dispute, strike or lockout shall not be used as a factor in determining the
contribution rate of employers of such individual prior to the commencement of the labor
dispute, strike or lockout. Where an individual's unemployment subsequent to the
termination of a labor dispute, strike or lockout is a result of the labor dispute,
strike or lockout, including replacement of former employees by the employer as a
legitimate tactic of or response to the labor dispute, strike or lockout, benefits paid
to the individual shall not be charged to the account or used as a factor in determining
the contribution rate of any base-period employer.
D. "Labor dispute" as used in this section has its ordinary meaning. The existence
of a labor dispute does not depend on the existence of a strike, lockout or any other
stoppage of work, nor does there have to be any actual unemployment or imminent threat of
unemployment or any particular number of individuals involved, before a labor dispute
exists.
23-778 Disqualification from benefits for fraud
Any person who, within the twenty-four calendar months immediately preceding a week
in which he files a valid claim for benefits, has made a false statement or
representation of a material fact knowing it to be false, or knowingly failed to disclose
a material fact with intent to obtain benefits under this chapter, shall be disqualified
for the week for which the claim was filed and for not more than the fifty-one weeks
immediately following such week as determined by the commission according to the
circumstances in each case.
23-779 Amount of benefits
A. The weekly benefit amount of an individual shall be an amount equal to one
twenty-fifth of the person's total wages for insured work paid during that quarter of the
person's base period in which such total wages were highest, but if:
1. From and after June 30, 1999 and before July 1, 2004, this amount is more than
two hundred five dollars, the weekly benefit amount shall be two hundred five dollars.
2. From and after June 30, 2004, this amount is more than two hundred forty
dollars, the weekly benefit amount shall be two hundred forty dollars.
B. If the weekly benefit amount is less than the maximum weekly benefit prescribed
in subsection A and is not a multiple of one dollar, the amount shall be rounded to the
nearest dollar, with an even one-half dollar being rounded to the next higher multiple of
one dollar. An individual's benefit amount shall not be redetermined during the person's
benefit year because of a new maximum or minimum weekly benefit amount becoming effective
during the person's benefit year.
C. Each eligible individual unemployed with respect to any week shall be paid with
respect to that week a benefit in an amount equal to the person's weekly benefit amount
less that part of the wages, if any, payable to the person with respect to that week
which is in excess of thirty dollars. The benefit, if not a multiple of one dollar, shall
be rounded to the nearest dollar, with an even one-half dollar being rounded to the next
higher multiple of one dollar.
23-780 Duration and amount of benefits
An otherwise eligible individual shall be entitled during a benefit year to a total
amount of benefits equal to twenty-six times his weekly benefit amount, but shall not
receive more than one third of his base period earnings in such benefit year.
23-781 Denial of benefits to certain athletes and aliens
A. Benefits based on services, substantially all of which consist of participating
in sports or athletic events or training or preparing to so participate, shall not be
paid to an individual for any week of unemployment which begins during the period between
two successive sport seasons, or similar periods, if the individual performed such
services in the first of such seasons or similar periods and there is a reasonable
assurance that such individual will perform such services in the later of such seasons or
similar periods.
B. Benefits shall not be payable for weeks of unemployment beginning on and after
January 1, 1978, on the basis of services performed by an alien unless such alien is an
individual who was lawfully admitted for permanent residence at the time such services
were performed, was lawfully present for purposes of performing such services, or was
permanently residing in the United States under color of law at the time such services
were performed (including an alien who was lawfully present in the United States as a
result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of
the immigration and nationality act). Any data or information required of individuals
applying for benefits to determine whether benefits are not payable to them because of
their alien status shall be uniformly required from all applicants for benefits. In the
case of an individual whose application for benefits would otherwise be approved, no
determination that benefits to such individual are not payable because of his alien
status shall be made except upon a preponderance of the evidence.
23-782 Payment of benefits
All benefits provided by this chapter shall be payable from the unemployment
compensation fund. All benefits shall be paid through offices of the department of
economic security.
23-783 Assignment or pledge of benefits void; exemption from attachment or execution; waiver of exemption void
A. No assignment, pledge or encumbrance of the right to benefits which are or may
become due or payable under this chapter shall be valid, and the rights to benefits shall
be exempt from levy, execution, attachment or any other remedy provided for the
collection of debts. Benefits received by an individual, as long as they are not
commingled with other funds of the recipient, shall be exempt from any remedy for the
collection of all debts except debts incurred for necessaries furnished to the individual
or his or her spouse or dependents during the time when the individual was
unemployed. No waiver of an exemption provided for in this section shall be valid.
B. This section does not apply to actions to recover child support obligations
which are being enforced by the department pursuant to a plan under the child support
enforcement act, as amended, which has been approved by the United States secretary of
health and human services under part D of title IV of the social security act, as
amended.
C. This section does not apply to actions to recover overissuances of food stamp
coupons pursuant to section 13(c)(3)(A) or (B) of the food stamp act of 1977.
23-784 Agreement for waiver of rights void
No agreement by an individual to waive, release or commute his rights to benefits or
any other rights under this chapter shall be valid, except an agreement to satisfy child
support obligations which is being enforced by the department pursuant to a plan under
the child support enforcement act, as amended, which has been approved by the secretary
of health and human services under part D of title IV of the social security act, as
amended, or an agreement between the individual and the department specifying an amount
to be withheld as repayment towards an uncollected overissuance of food stamp coupons.
23-785 False statement, misrepresentation or nondisclosure of material fact to obtain benefits; classification
Any person who knowingly makes a false statement or representation believing it to
be false or who knowingly fails to disclose a material fact in order to obtain or
increase a benefit or other payment under this chapter either for himself or for another
person, or under an employment security law of another state, the federal government or a
foreign government, is guilty of a class 6 felony. Each such false statement or
representation or failure to disclose a material fact shall constitute a separate
offense.
23-786 False statement, misrepresentation or nondisclosure of material fact to defraud claimant; classification
Any employing unit or any officer or agent of an employing unit or any other person
who knowingly makes a false statement or representation believing it to be false, or who
knowingly fails to disclose a material fact, in order to defraud an individual by
preventing or reducing the payment of benefits to the individual entitled thereto, or in
order to avoid becoming or remaining subject to this chapter or to avoid or reduce a
contribution or other payment required from an employing unit under this chapter, or
under the employment security law of another state, the federal government or a foreign
government, is guilty of a class 3 misdemeanor. Each such false statement or
representation or failure to disclose a material fact shall constitute a separate
offense.
23-787 Repayment of and deductions for benefits obtained by claimants not entitled to benefits; collection
A. A person who receives any amount as benefits under this chapter to which the
person is not entitled is liable to repay the overpaid amount to the department. The
department may deduct all or a portion of the overpayment from future benefits payable to
the person under this chapter.
B. If benefits to which a person is not entitled are received by reason of fraud as
determined by the department, the person is not eligible to receive any benefits under
this chapter until the total amount of the overpayment has been recovered or otherwise
satisfied in compliance with a civil judgment.
C. If benefits to which a person is not entitled are received without any fault on
the person's part and if repayment or deduction from future benefits would be against
equity and good conscience, the department may waive all or a portion of the amount
overpaid.
D. If benefits to which a person is not entitled are received without any fault on
the person's part, deductions made by the department pursuant to subsection A from
benefits payable to an individual for any week shall not exceed twenty-five per cent of
the individual's weekly benefit amount unless required by federal law, except that the
amount recouped from benefits payable may be fifty per cent of the weekly benefit amount
if the individual has previously received benefits but has not received benefits for at
least twelve consecutive months prior to the most recent receipt of benefits and there
has been no reasonable attempt to repay the indebtedness during that period. The fifty
per cent recoupment rate may not be put in effect prior to one year after the
establishment of the overpayment.
E. The department shall adopt rules to implement the provisions of subsection D.
F. The attorney general or the appropriate county attorney may institute
appropriate court proceedings to recover in the name of the department any amount for
which a person is liable to the department.
23-788 Recovery of trade act overpayments
The department shall recover any overpayment made to an individual under the trade
act of 1974, as amended, by deduction of the overpayment amount from any benefits payable
to such individual under this chapter if required to do so by the secretary of labor,
except that no single deduction under this section shall exceed fifty per cent of the
benefit amount otherwise payable.
23-789.01 Recovery of uncollected overissuance of food stamp coupons; definitions
A. At the time an individual files a new claim for unemployment compensation, the
department may require disclosure of whether or not the individual owes an uncollected
overissuance of food stamp coupons and shall notify the state food stamp agency enforcing
the obligation of any individual who discloses that the individual owes an uncollected
overissuance of food stamp coupons and who is determined to be eligible for unemployment
compensation.
B. The department may deduct and withhold from any unemployment compensation
payable to an individual who owes an uncollected overissuance of food stamp coupons
either:
1. The amount specified by the individual to the department to be deducted and
withheld under this section.
2. The amount, if any, determined pursuant to an agreement submitted to the state
food stamp agency under section 13(c)(3)(A) of the food stamp act of 1977.
3. Any amount otherwise required to be deducted and withheld from unemployment
compensation pursuant to section 13(c)(3)(B) of the food stamp act of 1977.
C. Any amount deducted and withheld under this section shall be paid by the
department to the appropriate state food stamp agency.
D. Any amount deducted and withheld under subsection B shall be treated for all
purposes as if it were paid to the individual as unemployment compensation and paid by
that individual to the state food stamp agency as repayment of the individual's
uncollected overissuance.
E. This section applies only if arrangements have been made for reimbursement by
the state food stamp agency for the administrative costs that are incurred by the
department under this section and that are attributable to the repayment of uncollected
overissuances to the state food stamp agency.
F. For purposes of this section:
1. "Uncollected overissuance of food stamp coupons" has the same meaning prescribed
in section 13(c)(1) of the food stamp act of 1977.
2. "Unemployment compensation" means any compensation payable under this chapter
including amounts payable by the department pursuant to an agreement under any federal
law providing for compensation, assistance or allowances with respect to unemployment.
23-789 Recovery of child support obligations; definitions
A. When an individual files an initial claim for unemployment compensation, he
shall disclose whether he is liable for child support obligations. Upon a disclosure of
liability for child support obligations, and a determination of eligibility for
unemployment compensation, the department shall notify the state child support
enforcement agency enforcing such obligation that the individual has been determined to
be eligible for unemployment compensation.
B. The department shall deduct and withhold from any unemployment compensation
payable to an individual who is liable for child support obligations:
1. The amount, if any, determined pursuant to an agreement submitted to the
unemployment compensation component of the department under section 454(20)(B)(i) of the
social security act, as amended, by the state child support enforcement agency.
2. Any amount otherwise required to be so deducted and withheld from such
unemployment compensation pursuant to legal process as defined in section 462(e) of the
social security act, as amended, properly served upon the department.
3. The amount specified by the individual to the unemployment compensation
component of the department to be deducted and withheld under this subsection, if neither
paragraph 1 nor 2 of this subsection is applicable.
4. The amount specified by the child support enforcement agency pursuant to court
order, as the amount the individual is liable for child support obligations.
C. Any amount deducted and withheld under this section shall:
1. Be paid to the appropriate entity as directed by the state child support
enforcement agency.
2. For all purposes be treated as if it were paid to the individual as unemployment
compensation and paid by such individual to the state child support enforcement agency
and credited to the individual's child support obligations.
D. The state child support enforcement agency shall reimburse the unemployment
compensation component of the department for administrative costs incurred by the
unemployment insurance component which are attributable to this section.
E. In this section, unless the context otherwise requires:
1. "Child support obligations" means obligations which are being enforced pursuant
to a plan described in section 454 of the social security act, as amended, which has been
approved by the secretary of health and human services under part D of title IV of the
social security act, as amended.
2. "State child support enforcement agency" means any agency or component of any
agency of this state operating pursuant to a plan as described in paragraph 1 of this
subsection.
3. "Unemployment compensation payable" means any compensation which, but for this
section, would be payable directly to an individual under this chapter, including amounts
payable by the department pursuant to an agreement under any federal law providing for
compensation, assistance or allowances with respect to unemployment, but not including
amounts deducted to repay overpayments in accordance with the provisions of sections
23-787, 23-788 and 23-790.
23-790 Recovery on behalf of foreign agency of benefits paid through nondisclosure or misrepresentation of material fact
On request of an agency which administers an employment security law of another
state or foreign government and which has found in accordance with the provisions of that
law that a claimant is liable to repay benefits received under such law by reason of
having knowingly made a false statement or misrepresentation of a material fact with
respect to a claim taken in this state as an agent for such agency, the commission may
collect the amount of such benefits from the claimant to be refunded to the agency. In
any case in which under this section a claimant is liable to repay any amount to the
agency of another state or foreign government, the amounts may be collected without
interest by civil action in the name of the commission acting as agent for such agency,
but court costs shall be paid by the liable state.
23-791 Benefits reduced by pension payment; definition
A. Except as provided in subsections B and C, the amount of benefits payable to an
individual for any week that begins in a period with respect to which the individual is
receiving or will receive a pension under a plan maintained or contributed to by a
base-period employer of the individual shall be reduced by either:
1. The amount of the pension that is reasonably attributable to the week if the
individual contributed less than forty-five per cent of the amount for the pension.
2. Forty-five per cent of the amount of the pension that is reasonably attributable
to the week if the individual contributed at least forty-five per cent but less than one
hundred per cent of the amount for the pension.
B. The amount of benefits payable to an individual for any week shall not be
reduced by reason of the receipt of a pension if the services performed during the base
period by the individual for the base-period employer or remuneration received for those
services did not affect the individual's eligibility for nor increase the amount of the
pension. The conditions specified by this subsection do not apply to pensions paid under
the social security act or the railroad retirement act of 1974 or the corresponding
provisions of prior law. Pensions paid under those acts shall be treated in the manner
specified by subsection A.
C. Benefits shall not be reduced by the receipt of social security retirement in
order to take into account contributions made by the individual for the pension.
D. For the purposes of this section, "pension" means a governmental or other
pension, retirement or retired pay, annuity or other similar periodic payment that is
based on the previous work of the individual.
23-792 Voluntary withholding; income tax
A. An individual filing a new claim for unemployment compensation shall, at the
time of filing the claim, be advised:
1. That unemployment compensation is subject to federal and state tax.
2. Of the existence of requirements pertaining to estimated tax payments.
3. That the individual may elect to have federal income tax deducted and withheld
from the individual's payment of unemployment compensation at the amount specified in the
United States internal revenue code.
4. That the individual may elect to have state income tax deducted and withheld
from the individual's payment of unemployment compensation at the rate of ten per cent of
the amount withheld for federal income tax. The election shall be in writing.
5. That the individual shall be permitted to change a previously elected
withholding status.
B. Amounts deducted and withheld from the payment of unemployment compensation
shall be held in the unemployment compensation fund until transferred to the taxing
authorities.
C. The department shall follow all procedures specified by the United States
department of labor, the United States internal revenue service and the ARIZONA
department of revenue pertaining to the deducting and withholding of income tax.
D. Amounts shall be deducted and withheld under this section only after amounts are
deducted and withheld for any overpayments of unemployment compensation, child support
obligations or any other amounts required to be deducted and withheld under this chapter.
23-793 Qualified transient lodging employment; definition
A. From and after January 1, 1997, employment with a single employer who qualifies
for the transient lodging classification prescribed in section 42-5070 shall be deemed
seasonal employment if the department finds all of the following:
1. The employer experiences a substantial slowdown in operations due to the
seasonal nature of the employment.
2. The substantial slowdown of operations occurred for the same or similar reasons
during the previous year.
3. The employer notifies a seasonal employee in writing prior to employment of the
employee's seasonal status and the possibility of denial of unemployment benefits.
4. The employer has an experience rating account chargeable with benefits
throughout the twelve consecutive calendar month period ending on June 30 of the
preceding year.
5. The employer is not delinquent in the payment of the unemployment insurance tax.
B. The employer shall file an annual application with the department at least
ninety days prior to the beginning of the substantial slowdown period. The department
shall, within sixty days after the filing of the application, issue a determination
granting or denying seasonal employment status. An employer adversely affected may appeal
the determination in accordance with section 23-724.
C. All wages paid to a worker in seasonal employment during the worker's base
period shall be used in determining the weekly benefit amount, except that a seasonal
worker shall not be eligible to receive benefits based on seasonal wages during the
period the employer experiences a substantial slowdown in operations when the worker's
unemployment is due solely to the substantial slowdown.
D. The department shall adopt rules deemed necessary for the administration of this
section.
E. Nothing in this section shall be construed as relieving any employer from paying
the taxes required by law on all wages paid for employment nor from making reports
required by law or rule connected with a worker's right to claim benefits provided under
this chapter.
F. For the purposes of this section, "substantial slowdown" means a reduction of
the employer's work force based on the number of full-time equivalent employees equal to
at least two-thirds of the average of the highest twelve weeks of employment during the
one year period prior to such slowdown.
23-794 School bus contractors with educational institutions; definition
A. Notwithstanding any other law, benefits based on service by a school bus
contractor for an educational institution shall not be paid to an individual for any week
of unemployment that begins during a period between two successive academic years or
terms if the individual performs these services in the first of the successive academic
years or terms and if there is a reasonable assurance that the individual will perform
the same services in the second of the successive academic years or terms, except that if
benefits are denied to any individual under this subsection and that individual was not
offered an opportunity to perform these services for the educational institution for the
second successive academic year or term, the individual is entitled to a retroactive
payment of benefits for each week for which the individual filed a timely claim for
benefits and the benefits were denied solely by reason of this subsection.
B. Benefits based on service by a school bus contractor for an educational
institution shall not be paid to an individual for any week of unemployment that begins
during an established and customary vacation period or holiday recess if the individual
performs these services in the period immediately before the vacation period or holiday
recess and if there is a reasonable assurance that the individual will perform the
services in the period immediately following the vacation period or holiday recess.
C. For the purposes of this section, "school bus" has the same meaning as
prescribed in section 28-101.
23-798 Reservation of legislative authority; no vested rights
The legislature reserves the right to amend or repeal all or any part of this
chapter at any time, and there shall be no vested private right of any kind against such
amendment or repeal. All the rights, privileges or immunities conferred by this chapter
or by acts done pursuant thereto shall exist subject to the power of the legislature to
amend or repeal this chapter at any time.
23-799 Severability
If any provision of this chapter, or the application thereof to any person or
circumstance, is held invalid, the remainder of this chapter and the application of such
provision to other persons or circumstances shall not be affected thereby.
23-601 Declaration of policy
As a guide to the interpretation and application of this chapter, the public policy
of this state is declared to be as follows: Economic insecurity due to unemployment is a
serious menace to the health, morals and welfare of the people of this
state. Involuntary unemployment is therefore a subject of general interest and concern
which requires appropriate action by the legislature to prevent its spread and to lighten
its burden which now so often falls with crushing force upon the unemployed worker and
his family. The achievement of social security requires protection against this greatest
hazard of economic life. This can be provided by encouraging employers to provide more
stable employment and by the systematic accumulation of funds during periods of
employment to provide benefits for periods of unemployment, thus maintaining purchasing
power and limiting the serious social consequences of poor relief assistance. The
legislature, therefore, declares that in its considered judgment the public good and the
general welfare of the citizens of this state require the enactment of this measure,
under the police powers of the state, for the compulsory setting aside of unemployment
reserves to be used for the benefit of persons unemployed through no fault of their own.
23-602 Definitions of words and phrases
The definitions of words and phrases set forth in this article shall apply
throughout this chapter unless the context otherwise requires.
23-603.01 American employer
"American employer" means a person who is an individual who is a resident of the
United States; a partnership, if two-thirds or more of the partners are residents of the
United States; a trust if all of the trustees are residents of the United States; or a
corporation organized under the laws of the United States or of any state.
23-603 Agricultural labor; definitions
A. "Agricultural labor" means and includes all service performed prior to January
1, 1972, which was agricultural labor as defined in this section prior to such date, and
remunerated service performed after December 31, 1971:
1. On a farm, in the employ of any person, in connection with cultivating the soil,
or in connection with raising or harvesting any agricultural or horticultural commodity,
including the raising, shearing, feeding, caring for, training and management of
livestock, bees, poultry, and fur-bearing animals and wildlife.
2. In the employ of the owner or tenant or other operator of a farm, in connection
with the operation, management, conservation, improvement or maintenance of the farm and
its tools and equipment or in salvaging timber or clearing land of brush and other debris
left by a hurricane, if the major part of the service is performed on a farm.
3. In connection with the production or harvesting of any commodity defined as an
agricultural commodity in section 15(g) of the agricultural marketing act, as amended (46
Stat. 1550, sec. 3; 12 U.S.C. 1141j), or in connection with the ginning of cotton or in
connection with the operation or maintenance of ditches, canals, reservoirs or waterways,
not owned or operated for profit, used exclusively for supplying and storing water for
farming purposes.
4. (a) In the employ of the operator of a farm in handling, planting, drying,
packing, packaging, processing, freezing, grading, storing or delivering to storage or to
market, or to a carrier for transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity, but only if the operator produced more than
one-half of the commodity with respect to which such service is performed and only if the
service is performed as an incident to ordinary farming operations or, in the case of
fruits and vegetables, as an incident to the preparation of the fruits or vegetables for
market.
(b) In the employ of a group of operators of farms, or a cooperative organization
of which such operators are members, in the performance of service described in
subdivision (a), but only if such operators produced more than one-half of the commodity
with respect to which such service is performed.
(c) The provisions of subdivisions (a) and (b) shall not be deemed to be applicable
with respect to service performed in connection with commercial canning or commercial
freezing or in connection with any agricultural or horticultural commodity after its
delivery to a terminal market for distribution for consumption.
5. On a farm operated for profit if such service is not in the course of the
employer's trade or business.
B. As used in this section, "farm" includes stock, dairy, poultry, fruit,
fur-bearing animal and truck farms, plantations, ranches, nurseries, ranges, greenhouses,
or other similar structures used primarily for raising agricultural or horticultural
commodities, and orchards.
C. Notwithstanding the provisions of section 23-617, paragraph 1, service defined
in subsection A of this section performed after December 31, 1977, by an individual who
is an alien admitted to the United States to perform agricultural labor pursuant to
sections 214(c) and 101(a)(15)(H) of the immigration and nationality act is exempt
employment during any period in which it does not meet the definition of employment in
section 23-615, paragraph 8.
23-604 Annual payroll and average annual payroll
A. "Annual payroll" means the total amount of wages for employment paid by an
employer during a twelve-month period ending on June 30 of any calendar year.
B. In computing an employer's contribution rate, "average annual payroll" means:
1. The annual payroll for the twelve-month period immediately preceding the
computation date for an employer whose account has been chargeable with benefits for
twelve but less than twenty-four months.
2. The average of the annual payrolls for the last two twelve-month periods
immediately preceding the computation date for an employer whose account has been
chargeable with benefits for twenty-four but less than thirty-six months.
3. The average of the annual payrolls for the last three twelve-month periods
immediately preceding the computation date for an employer whose account has been
chargeable with benefits for thirty-six or more months.
C. "Computation date" means July 1 of each calendar year with respect to rates of
contribution applicable to the calendar year beginning with the following January 1.
23-605 Base period
"Base period" means the first four of the last five completed calendar quarters
immediately preceding the first day of an individual's benefit year, except that the base
period of an individual whose new benefit year overlaps his last preceding benefit year
shall consist of those four completed calendar quarters immediately following his
previous base period.
23-606 Base-period employers
"Base-period employers" means the employers by whom an individual was paid
base-period wages.
23-607 Base-period wages
"Base-period wages" means the wages paid to an individual during his base period for
insured work.
23-608 Benefits
"Benefits" means the money payments payable to an individual as provided in this
chapter, with respect to his unemployment.
23-609.01 Hearing officers
"Hearing officer" means a hearing officer of the department of economic security.
23-609 Benefit year
"Benefit year" with respect to an individual means the one-year period beginning
with the first day of the first week of unemployment with respect to which the individual
first files a claim in accordance with section 23-772 and thereafter the one-year period
beginning with the first day of the first week of unemployment with respect to which the
individual next files a claim after the termination of his last preceding benefit year,
provided that at the time of filing the claim the individual has been paid the wages for
insured work required under section 23-771. For the purposes of this section a week with
respect to which an individual files a valid claim establishing a benefit year shall be
deemed to be in that benefit year which includes the greater part of such week.
23-610 Calendar quarter
"Calendar quarter" means the period of three consecutive calendar months ending on
March 31, June 30, September 30 or December 31, or the equivalent thereof as the
commission may by regulation prescribe.
23-611 Definition
"Commission" or "employment security commission" or "department" means the
department of economic security.
23-612.01 Crew leader
A. "Crew leader" means an individual who does all of the following:
1. Furnishes individuals to perform agricultural labor for any other person or
employing unit.
2. Pays (either on his behalf or on behalf of such other person or employing unit)
the individuals furnished by him for the agricultural labor performed by them.
3. Has not entered into a written agreement with such other person or employing
unit under which such individual is designated as an employee of such other person or
employing unit.
B. Any individual who is a member of a crew furnished by a crew leader to perform
agricultural labor for any other person or employing unit shall be treated as an employee
of such crew leader if such individual's services do not constitute employment for such
other person or employing unit pursuant to any other provision of this chapter and
either:
1. Such crew leader holds a valid certificate of registration under the migrant and
seasonal agricultural worker protection act.
2. Substantially all the members of such crew operate or maintain tractors,
mechanized harvesting or crop-dusting equipment, or any other mechanized equipment, which
is provided by such crew leader.
C. In the case of any individual who is furnished by a crew leader to perform
agricultural labor for any other person or employing unit and who is not treated as an
employee of such crew leader under subsection B both of the following apply:
1. Such other person or employing unit and not the crew leader shall be treated as
the employer of such individual.
2. Such other person or employing unit shall be treated as having paid cash
remuneration to such individual in an amount equal to the amount of cash remuneration
paid to such individual by the crew leader (either on his behalf or on behalf of such
other person or employing unit) for the agricultural labor performed for such other
person or employing unit.
23-612 Contributions
"Contributions" means the money payments required by this chapter to be made into
the state unemployment compensation fund by an employing unit on account of having
individuals in its employ.
23-613.01 Employee; definition; exempt employment
A. "Employee" means any individual who performs services for an employing unit and
who is subject to the direction, rule or control of the employing unit as to both the
method of performing or executing the services and the result to be effected or
accomplished, except employee does not include:
1. An individual who performs services as an independent contractor, business
person, agent or consultant, or in a capacity characteristic of an independent
profession, trade, skill or occupation.
2. An individual subject to the direction, rule or control or subject to the right
of direction, rule or control of an employing unit solely because of a provision of law
regulating the organization, trade or business of the employing unit.
3. An individual or class of individuals that the federal government has decided
not to and does not treat as an employee or employees for federal unemployment tax
purposes.
4. An individual if the employing unit demonstrates the individual performs
services in the same manner as a similarly situated class of individuals that the federal
government has decided not to and does not treat as an employee or employees for federal
unemployment tax purposes.
B. Notwithstanding this section, an individual or class of individuals shall not be
treated as an employee by the department for purposes of this chapter if, before the
department's determination that the individual or class of individuals at issue is an
employee:
1. The individual or class of individuals had been performing services for the
employing unit.
2. The department had inspected work records of the employing unit for time periods
that the individual or class of individuals had been performing these services.
3. The individual or class of individuals at issue was not included on the
contribution and wage reports of the employing unit.
4. After its inspection the department concluded in writing provided to the
employing unit that either:
(a) No change or changes in the inspected reports were necessary.
(b) The individual or class of individuals in question did not constitute an
employee for purposes of this chapter.
5. At no time between the date of the written determination prescribed in paragraph
4 of this subsection, and the department's subsequent conclusion that the individual or
class of individuals at issue constitutes an employee, did the department notify the
employing unit in writing that the individual or class of individuals at issue now
constitutes an employee for purposes of this chapter.
C. Subsection B of this section shall not apply if either:
1. There has been a substantial and material change in the facts upon which the
writing required by subsection B, paragraph 4 of this section was based.
2. The conclusion reached by the department pursuant to subsection B, paragraph 4
of this section was the result of false statements, misrepresentation, fraud or
intimidation on the part of the employing unit.
D. The following services are exempt employment under this chapter, unless there is
evidence of direction, rule or control sufficient to satisfy the definition of an
employee under subsection A of this section, which is distinct from any evidence of
direction, rule or control related to or associated with establishing the nature or
circumstances of the services considered pursuant to this subsection:
1. Services which are not a part or process of the organization, trade or business
of an employing unit and which are performed by an individual who is not treated by the
employing unit in a manner generally characteristic of the treatment of employees.
2. Services performed by an individual for an employing unit through isolated or
occasional transactions, regardless of whether such services are a part or process of the
organization, trade or business of the employing unit.
E. Notwithstanding this section, an individual or class of individuals determined
to be an employee or employees for purposes of the federal unemployment tax act, as
amended (26 United States Code sections 3301 through 3311), are employees under this
chapter.
F. Notwithstanding any other provision of this chapter, this section shall apply to
an employing unit to which the provisions of section 23-750 apply only to the extent not
inconsistent with the requirements of 26 United States Code sections 3304 (A)(6) and
3309.
23-613 Employer
A. "Employer" means:
1. Any employing unit which, within the calendar year 1941 or within any succeeding
calendar year through 1971, for some portion of a day, but not necessarily
simultaneously, in each of twenty different calendar weeks, whether or not the weeks are
or were consecutive, has or had in employment three or more individuals irrespective of
whether the same individuals are or were employed in each such day.
2. Any employing unit:
(a) Which after December 31, 1971 for some portion of a day in each of twenty
different calendar weeks, whether or not the weeks are or were consecutive, in either the
current or the preceding calendar year, has or had in employment at least one individual
irrespective of whether the same individual was in employment in each such day; or
(b) Which after December 31, 1971 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
(c) For which service in employment, as defined in section 23-615, paragraph 6 or
section 23-615.01 is performed after December 31, 1977. For purposes of this paragraph,
there shall not be taken into account any wages paid to, or employment of, an employee
performing domestic services referred to in subsection C. If an employing unit is
determined an employer under subsection B of this section, such employing unit shall be
determined an employer for the purposes of this paragraph.
3. Any individual or employing unit which acquired the organization, trade or
business or substantially all the assets thereof, of another which at the time of
acquisition was an employer subject to this chapter, or which acquired a part of the
organization, trade or business of another which at the time of acquisition was an
employer subject to this chapter provided such other would have been an employer under
this section if such part had constituted its entire organization, trade or business.
4. Any individual or employing unit which acquired the organization, trade or
business, or substantially all the assets thereof, of another employing unit if:
(a) The employment record of the individual or employing unit subsequent to the
acquisition, together with the employment record of the acquired unit prior to the
acquisition, both within the same calendar year, would be sufficient to constitute an
employing unit an employer subject to this chapter under this section, or
(b) The wages paid by the individual or employing unit subsequent to the
acquisition, together with the wages paid by the acquired unit prior to the acquisition,
both within the same calendar quarter, would be sufficient to constitute an employing
unit an employer subject to this chapter under this section.
5. Any employing unit which, together with one or more other employing units, is
owned or controlled by legally enforceable means or otherwise, directly or indirectly by
the same interests, or which owns or controls by legally enforceable means or otherwise
one or more other employing units, and which if treated as a single unit with the other
employing units or interests, or both, would be an employer under this section.
6. Any employing unit not an employer by reason of any other paragraph of this
section for which, within either the current or preceding calendar year, services in
employment are or were performed with respect to which the employing unit is liable for
any federal tax against which credit may be taken for contributions required to be paid
into a state unemployment compensation fund, or which, as a condition for approval of
this chapter for full tax credit against the tax imposed by the federal unemployment tax
act, is required, pursuant to such act, to be an employer under this chapter.
7. Any employing unit which, having become an employer under this section has not,
under section 23-725, ceased to be an employer subject to this chapter.
8. For the effective period of its election pursuant to section 23-725, any other
employing unit which has elected to become subject to this chapter.
B. In the case of agricultural labor, the term "employer" means any employing unit
which after December 31, 1977:
1. For some portion of a day, but not necessarily simultaneously, in each of twenty
different calendar weeks, whether or not the weeks are or were consecutive, in either the
current or the preceding calendar year, employed in agricultural labor at least ten
individuals irrespective of whether the same individuals were employed in each such day;
or
2. In any calendar quarter in either the current or preceding calendar year paid
cash wages of twenty thousand dollars or more for agricultural labor.
C. In the case of domestic service in a private home, local college club, or local
chapter of a college fraternity or sorority, the term "employer" means any employing unit
which after December 31, 1977, in any calendar quarter in either the current or preceding
calendar year paid cash wages of one thousand dollars or more to individuals employed in
such service. An employing unit treated as an employer under this subsection shall not
be treated as an employer with respect to wages paid for any other service unless such
employing unit is treated as an employer under subsection A or B of this section with
respect to such other service.
D. For purposes of this section, if any week includes both December 31 and January
1, the days up to January 1 shall be deemed one calendar week and the days beginning
January 1 another week.
23-614 Employing unit; temporary services employer; professional employer organization; definitions A. "Employing unit" means an individual or type of organization, including a partnership, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor of any of the foregoing, or the legal representative of a deceased person, which has, or subsequent to January 1, 1936 had, one or more individuals performing services for it within this state. Effective January 1, 1962, "employing unit" shall include any federal instrumentality which is neither wholly nor partially owned by the United States and which has one or more individuals performing services for it within this state. B. All individuals performing services within this state for an employing unit which maintains two or more separate establishments within this state shall be deemed to be performing services for a single employing unit for all the purposes of this chapter. C. Each individual employed to perform or to assist in performing the work of any person in the service of an employing unit shall be deemed to be engaged by the employing unit for all the purposes of this chapter, whether the individual was hired or paid directly by the employing unit or by such person, provided the employing unit had actual or constructive knowledge of the work. Notwithstanding any other provision of this chapter except for section 23-612.01, an individual who performs services in or for a particular employing unit shall not be deemed to be in the employment of such employing unit if such individual's wages for services in or for the particular employing unit are paid by another employing unit, and if the contributions required by this chapter on such wages are paid by such other employing unit. D. Notwithstanding any other provision of this chapter, whether an individual or entity is the employer of specific employees shall be determined by section 23-613.01, except as provided in subsections E and G of this section with respect to a professional employer organization or a temporary services employer. E. A professional employer organization or a temporary services employer that contracts to supply a worker to perform services for a customer or client is the employer of the worker who performs the services. A customer or client who contracts with an individual or entity that is not a professional employer organization or a temporary services employer to engage a worker to perform services is the employer of the worker who performs the services. Except as provided in subsection F of this section, an individual or entity that is not a professional employer organization or a temporary services employer, that contracts to supply a worker to perform services to a customer or client and that pays remuneration to the worker acts as the agent of the employer for purposes of payment of remuneration. F. In circumstances that are in essence a loan of an employee to another employer and the direction and control of the manner and means of performing the services changes to the employer to whom the employee is loaned, the loaning employer continues to be the employer of the employee if the loaning employer continues to pay remuneration to the employee, whether or not reimbursed by the other employer. If the employer to whom the employee is loaned pays remuneration to the employee for the services performed, that employer is considered the employer for the purposes of any remuneration paid to the employee by the employer, regardless of whether the loaning employer also pays remuneration to the employee. G. A professional employer organization shall report and pay all required contributions to the unemployment compensation fund using the state employer account number and the contribution rate of the professional employer organization. H. On termination of a contract between a professional employer organization and a client or the failure by a professional employer organization to submit reports or make tax payments as required by this chapter, the client shall be treated as a new employer without a previous experience record if the client has been subject to a professional employer agreement for at least two years or if the client is not otherwise eligible for an experience rating. I. For the purposes of this section: 1. "Professional employer organization" has the same meaning prescribed in section 23-561. 2. "Temporary services employer" means an employing unit that contracts with clients or customers to supply workers to perform services for the client or customer and that performs all of the following: (a) Negotiates with clients or customers for such matters as the time of work, the place of work, the type of work, the working conditions, the quality of services and the price of services. (b) Determines assignments or reassignments of workers, even though workers retain the right to refuse specific assignments. (c) Retains the authority to assign or reassign a worker to other clients or customers if a worker is determined unacceptable by a specific client or customer. (d) Assigns or reassigns the worker to perform services for a client or customer. (e) Sets the rate of pay of the worker, whether or not through negotiation. (f) Pays the worker from its own account or accounts. (g) Retains the right to hire and terminate workers.
23-615.01 Political subdivision or instrumentality employment
A. Notwithstanding any provisions of law to the contrary except for subsection B of
this section, for the purposes of this chapter, employment, as defined in section 23-615,
paragraph 6 shall include service performed after December 31, 1977 in the employ of:
1. Any political subdivision of this state or any instrumentality of such political
subdivisions; or
2. Any combination of political subdivisions and this or another state, their
instrumentalities, agencies or boards whether wholly within this state or partly within
this state and one or more other states.
B. The provisions of this section shall not be applicable if Public Law 94-566 or
the federal act it amends is adjudged unconstitutional or invalid in its application to
the governmental entities described in subsection A of this section. If the application
of Public Law 94-566 or the federal act it amends is stayed as to employees of the
governmental entities described in subsection A of this section or its employees by any
court of competent jurisdiction before or after the provisions of subsection A become
effective, the provisions of subsection A shall not be effective from the time which the
stay order became effective and continue for the duration of such stay order.
C. If Public Law 94-566 is finally determined to be constitutional and the court
further determines that the governmental entities described in subsection A of this
section were liable for claims for benefits during a stay of enforcement then any such
liability shall be borne by the affected governmental entities.
23-615 Employment
"Employment" means any service of whatever nature performed by an employee for the
person employing him, including service in interstate commerce, and includes:
1. An individual's entire service performed within or both within and without this
state if:
(a) The service is localized in this state.
(b) The service is not localized in any state but some of the service is performed
in this state and:
(i) The individual's base of operations, or, if there is no base of operations,
then the place from which such service is directed or controlled is in this state, or
(ii) The individual's base of operations or place from which the service is
directed or controlled is not in any state in which some part of the service is performed
but the individual's residence is in this state. Service shall be deemed localized within
a state if the service is performed entirely within such state, or the service is
performed both within and without such state but the service performed without the state
is temporary or transitory in nature or consists of isolated transactions, and is
incidental to the individual's service within the state.
2. Services covered by an election pursuant to section 23-725.
3. Services covered by an arrangement pursuant to section 23-644, between the
department and the agency charged with the administration of any other state or federal
unemployment compensation law pursuant to which all services performed by an individual
for an employing unit are deemed to be performed entirely within this state shall be
deemed to be employment if the department has approved an election of the employing unit
for which the services are performed, pursuant to which the entire service of the
individual during the period covered by the election is deemed to be insured work.
4. Service performed by any officer of a corporation.
5. Service performed after December 31, 1971, outside the United States, except in
Canada, by an individual who is a citizen of the United States in the employ of an
American employer (other than service which is deemed employment under the provisions of
paragraph 1 of this section or the parallel provisions of another state's law) if:
(a) The employer's principal place of business in the United States is located in
this state; or
(b) The employer has no place of business in the United States, but
(i) The employer is an individual who is a resident of this state; or
(ii) The employer is a corporation which is organized under the laws of this state;
or
(iii) The employer is a partnership or a trust and the number of the partners or
trustees who are residents of this state is greater than the number who are residents of
any one other state; or
(c) None of the criteria of (a) or (b) of this paragraph is met but the employer
has elected coverage in this state or, the employer having failed to elect coverage in
any state, the individual has filed a claim for benefits, based on such service, under
the law of this state.
6. (a) Service performed after December 31, 1971, in the employ of this state or
any of its instrumentalities, (or in the employ of this state and one or more other
states or their instrumentalities), for a hospital or institution of higher education
located in this state. For purposes of this chapter, "service performed in the employ of
this state for an institution of higher education" includes service performed for a
community college located in this state which is or becomes integrated into the state
community college system, as provided in title 15.
(b) Service performed after December 31, 1971, by an individual in the employ of a
religious, charitable, educational or other organization, but only if the following
conditions are met:
(i) The service is excluded from "employment" as defined in the federal
unemployment tax act solely by reason of section 3306(c)(8) of that act; and
(ii) The organization had four or more individuals in employment for some portion
of a day in each of twenty different weeks, whether or not such weeks are consecutive,
within either the current or preceding calendar year, regardless of whether they were
employed at the same moment of time.
(c) Service performed after December 31, 1977, in the employ of this state, or any
instrumentality, agency or board of this state, or any one or more of the foregoing and
one or more other states.
(d) For purposes of this paragraph, the term "employment" does not apply to service
performed:
(i) In the employ of a church or convention or association of churches, or an
organization which is operated primarily for religious purposes and which is operated,
supervised, controlled, or principally supported by a church or convention or association
of churches; or
(ii) By a duly ordained, commissioned, or licensed minister of a church in the
exercise of his ministry or by a member of a religious order in the exercise of duties
required by such order; or
(iii) In the employ of a governmental entity referred to in section 23-750,
subsection A, paragraph 2, if such service is performed by an individual in the exercise
of his duties:
(A) As an elected official; or
(B) As a member of a legislative body or the judiciary, of this state or a
political subdivision thereof; or
(C) As a member of the state national guard or air national guard; or
(D) As an employee serving on a temporary basis in case of fire, storm, snow,
earthquake, flood, or similar emergency; or
(E) In a position which, under or pursuant to the state law is designated as a
major nontenured policymaking or advisory position, or a policymaking or advisory
position the performance of the duties of which ordinarily does not require more than
eight hours per week; or
(iv) In a facility conducted for the purpose of carrying out a program of
rehabilitation for individuals whose earning capacity is impaired by age or physical or
mental deficiency or injury, or providing remunerative work for individuals who because
of their impaired physical or mental capacity cannot be readily absorbed in the
competitive labor market, by an individual receiving such rehabilitation or remunerative
work; or
(v) As part of an unemployment work-relief or work-training program assisted or
financed in whole or in part by any federal agency or an agency of a state or political
subdivision thereof, by an individual receiving such work-relief or work-training; or
(vi) By an inmate of a custodial or penal institution.
7. An individual's service wherever performed within the United States or Canada
if:
(a) The service is not covered under the unemployment compensation law of any other
state or Canada, and
(b) The place from which the service is directed or controlled is in this state.
8. Notwithstanding any other provisions of this chapter, service with respect to
which a tax is required to be paid under any federal law imposing a tax against which
credit may be taken for contributions required to be paid into a state unemployment fund
or which as a condition for full tax credit against the tax imposed by the federal
unemployment tax act is required to be covered under this chapter.
23-616 Employment office
"Employment office" means a free public employment office or branch thereof operated
by this or any other state as a part of a state-controlled system of public employment
offices, or by a federal agency charged with the administration of free public employment
offices.
23-617 Exempt employment; definition
"Exempt employment" means employment not considered in determining whether an
employing unit constitutes an "employer" under this chapter and includes:
1. Agricultural labor as defined in section 23-603 unless such labor is performed
for an employing unit which after December 31, 1977 either:
(a) For some portion of a day, but not necessarily simultaneously, in each of
twenty different calendar weeks, whether or not the weeks are or were consecutive, in
either the current or the preceding calendar year, employed in agricultural labor at
least ten individuals irrespective of whether the same individuals were employed in each
such day.
(b) In any calendar quarter in either the current or preceding calendar year paid
cash wages of twenty thousand dollars or more for agricultural labor.
2. Domestic service in a private home, local college club, or local chapter of a
college fraternity or sorority unless performed after December 31, 1977, for an employing
unit which in any calendar quarter in either the current or preceding calendar year paid
cash wages of one thousand dollars or more to individuals employed in such service.
3. Service performed on or in connection with a vessel or aircraft that is not an
American vessel or American aircraft, if the employee is employed on and in connection
with such vessel or aircraft when outside the United States.
4. Service performed by an individual in the employ of the individual's son,
daughter, or spouse, and service performed by an individual under the age of twenty-one
years in the employ of the individual's father or mother.
5. Service performed in the employ of the United States government or an
instrumentality of the United States which is wholly or partially owned by the United
States or which is exempt from the tax imposed by section 3301 of the federal internal
revenue code, except that to the extent Congress shall permit states to require
instrumentalities of the United States to make payments into an unemployment fund under a
state unemployment compensation law, all of the provisions of this chapter shall be
applicable to such instrumentalities, in the same manner, to the same extent and on the
same terms as to all other employers, employing units, individuals and services, but if
this state is not certified for any year by the secretary of labor of the United States
under section 3304 of the federal internal revenue code, the payments required of such
instrumentalities with respect to the year shall be refunded by the department from the
fund in the same manner and within the same period as is provided in section 23-742 with
respect to contributions erroneously collected.
6. Service performed in the employ of another state, or any political subdivision
thereof, or an instrumentality of one or more thereof which is wholly owned by one or
more other states or political subdivisions and which exercises only governmental as
distinguished from proprietary functions, and service performed in the employ of any
political subdivisions of this or any other state to the extent the instrumentality, with
respect to such service, is exempt under the Constitution of the United States from the
tax imposed by section 3301 of the federal internal revenue code, except that part of
such service performed in the employ of any of the foregoing which is "employment" under
section 23-615, paragraph 6. But any state, or a political subdivision thereof, or
instrumentality of any one or more of the foregoing which is wholly owned by one or more
states or political subdivisions may elect coverage whether or not the service performed
is governmental or proprietary for any such state or political subdivision thereof or any
instrumentality thereof or any department thereof in the manner prescribed and subject to
the terms of section 23-725, and such election may exclude any services described in
section 23-615, paragraph 6, subdivision (d). This state or any instrumentality or
political subdivision of this state may appropriate funds to pay contributions or
payments in lieu of contributions as required by this chapter.
7. Service with respect to which unemployment compensation is payable under an
unemployment compensation system established by an act of Congress.
8. Service performed in any calendar quarter in the employ of an organization
exempt from income tax under section 501(a) (other than an organization described in
section 401(a)) or under section 521 of the federal internal revenue code, if the
remuneration for such service is less than fifty dollars.
9. Service performed in the employ of a school, college or university, if the
service is performed either:
(a) By a student enrolled and regularly attending classes at the school, college or
university.
(b) By the spouse of such a student if the spouse is advised at the time the spouse
commences to perform such service that the employment is provided under a program to
provide financial assistance to the student by the school, college or university and the
employment will not be covered by any program of unemployment compensation.
10. Service performed in the employ of a corporation, community chest fund, or
foundation, organized and operated exclusively for religious, charitable, scientific,
testing for public safety, literary, or educational purposes, or for the prevention of
cruelty to children or animals, no part of the net earnings of which inures to the
benefit of a private shareholder or individual, no substantial part of the activities of
which is carrying on propaganda or otherwise attempting to influence legislation, and
which does not participate in or intervene in (including the publishing or distributing
of statements) any political campaign on behalf of any candidate for public office;
provided that services performed in the employ of an organization operated for the
primary purpose of carrying on a trade or business for profit shall not be exempt on the
ground that all of its profits are payable to one or more organizations exempt under this
paragraph, and further provided that services exempt under this paragraph shall not
include services performed for an employing unit with respect to which the employing unit
is liable for any federal tax against which credit may be taken for contributions
required to be paid into a state unemployment compensation fund, and further provided
that services exempt under this paragraph shall not include services which are
"employment" under section 23-615, paragraph 6.
11. Services performed as a student nurse in the employ of a hospital or a nurses'
training school by an individual enrolled and regularly attending classes in a nurses'
training school chartered or approved pursuant to state law, and service performed as an
interne in the employ of a hospital by an individual who has completed a four years'
course in a medical school chartered or approved pursuant to state law.
12. Service performed by an individual for an employing unit as an insurance
producer, if all such service performed by the individual for such employing unit is
performed for remuneration solely by way of commission.
13. Service performed by an individual under the age of eighteen in the delivery or
distribution of newspapers or shopping news, not including delivery or distribution to
any point for subsequent delivery or distribution, and service performed by an individual
in, and at the time of, the sale of newspapers or magazines to ultimate consumers under
an arrangement by which the newspapers or magazines are to be sold by the individual at a
fixed price, the individual's compensation being based on the retention of the excess of
such price over the amount at which the newspapers or magazines are charged to the
individual, whether or not the individual is guaranteed a minimum amount of compensation
for such service, or is entitled to be credited with the unsold newspapers or magazines
turned back.
14. Service performed by an individual for an employing unit as a licensed real
estate broker or a licensed cemetery broker or a licensed real estate salesman or
licensed cemetery salesman, if all such service performed by the individual for such
employing unit is performed for remuneration solely by way of commission, except that any
service performed as a real estate broker, a cemetery broker, a real estate salesman or a
cemetery salesman for an employing unit to which the provisions of section 23-750 apply
is not exempt employment.
15. Service performed in the employ of a foreign government including service as a
consular or other officer or employee or a nondiplomatic representative.
16. Service performed in the employ of an instrumentality wholly owned by a foreign
government if both:
(a) The service is of a character similar to that performed in foreign countries by
employees of the United States government or of an instrumentality thereof.
(b) The department finds that the United States secretary of state has certified to
the United States secretary of the treasury that the foreign government with respect to
whose instrumentality exemption is claimed grants an equivalent exemption with respect to
similar service performed in the foreign country by employees of the United States
government and of instrumentalities thereof.
17. Service covered by an arrangement between the department and the agency charged
with the administration of any other state or federal unemployment compensation law
pursuant to which all services performed by an individual for an employing unit during
the period covered by the employing unit's duly approved election are deemed to be
performed entirely within such agency's state.
18. Casual labor not in the course of the employer's trade or business.
19. Service performed by an individual for an employing unit as a securities
salesman, if all such service performed by the individual for such employing unit is
performed for remuneration solely by way of commission, except that any service performed
as a securities salesman for an employing unit to which the provisions of section 23-750
apply is not exempt employment.
20. During any period in which it does not meet the definition of employment in
section 23-615, paragraph 8, service performed by an individual who is enrolled at a
nonprofit or public educational institution which normally maintains a regular faculty
and curriculum and normally has a regularly organized body of students in attendance at
the place where its educational activities are carried on as a student in a full-time
program, taken for credit at such institution, which combines academic instruction with
work experience, if such service is an integral part of such program, and such
institution has so certified to the employer, except that this paragraph shall not apply
to service performed in a program established for or on behalf of an employer or group of
employers.
21. Service performed in the employ of a hospital if such service is performed by a
patient of the hospital.
22. Service performed by individuals solely to the extent that the compensation
includes commissions, overrides or profits realized on sales primarily resulting from the
in-person solicitation of orders for or making sales of consumer goods in the home,
except that any such service performed by an individual for an employing unit to which
the provisions of section 23-750 apply is not exempt employment.
23. Services performed by an individual for an employing unit in the preparation of
tax returns and related schedules and documents, if all such services are performed for
remuneration solely by way of commissions, independent of the control of the employing
unit, other than that required by the internal revenue service for correct preparation of
such returns, except that any such service performed by an individual for an employing
unit to which the provisions of section 23-750 apply is not exempt employment.
23-618.01 Hospital
"Hospital" means an institution which has been licensed, certified, or approved by
the ARIZONA state department of health as a hospital.
23-618.02 Institution of higher education
A. "Institution of higher education" means an educational institution which:
1. Admits as regular students only individuals having a certificate of graduation
from a high school or the recognized equivalent of such a certificate;
2. Is legally authorized within this state to provide a program of education beyond
high school;
3. 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, a
program of post-graduate or post-doctoral studies, or a program of training to prepare
students for gainful employment in a recognized occupation; and
4. Is a public or other nonprofit institution.
B. Notwithstanding any of the foregoing provisions of this section, all colleges
and universities in this state are institutions of higher education for purposes of this
section.
23-618 Fund
"Fund" means the unemployment compensation fund established by section 23-701.
23-619.01 Misconduct connected with the employment; wilful misconduct; evaluation
A. "Misconduct connected with the employment" means any act or omission by an
employee which constitutes a material or substantial breach of the employee's duties or
obligations pursuant to the employment or contract of employment or which adversely
affects a material or substantial interest of the employer.
B. "Wilful or negligent misconduct connected with the employment" includes, but
under no circumstances is limited to, the following:
1. Absence from work without either notice to the employer or good cause for
failing to give notice, repeated absence from work without good cause where warnings
regarding repeated absence have been received from the employer, frequent absences from
work without good cause, failure to return to work following an authorized leave,
vacation, sick leave or other leave of absence when such failure is without permission
from the employer, or repeated failure without good cause to exercise due care for
punctuality or attendance in regard to the scheduled hours of work set by the employer.
2. Repeated intoxication, whether from the use of intoxicating liquor or the use of
illegal drugs, on the employer's premises or when reporting to work, frequent absences
caused by intoxication or the aftereffects of intoxication, or sleeping on the employer's
premises during scheduled work hours or inefficiency or inability to perform the
employment, due to intoxication or the aftereffects of intoxication.
3. Failure to pass, or the refusal to take, a drug test or alcohol impairment test
administered by, or at the request of, the employer pursuant to title 23, chapter 2,
article 14.
4. Refusal or knowing failure to perform reasonable and proper duties assigned by
the employer.
5. Insubordination, disobedience, repeated and inappropriate use of abusive
language, assault on another employee or repeated fighting, refusal to accept an
assignment to work at certain times or to perform certain duties without good cause,
refusal to follow reasonable and proper instructions given by the employer, or
intentional or negligent destruction of the employer's property.
6. Dishonesty, material falsification of employment applications or of other
written documents relating to obtaining or retaining employment, falsification of time
records or work records, theft or conversion of property of the employer, or
untruthfulness related to the job which could substantially injure or jeopardize the
employer's interest.
7. Admission of or conviction for any felony or crime related to the employer's
business or to the employment or which could have a substantial adverse effect on the
employer's interest, public relations or trust, unless the employer had actual knowledge
of such admission or conviction at the commencement of the employment.
8. Violation without good cause of any rule of conduct, safety rule or other rule
in any way related to the employment which is reasonably imposed and communicated by the
employer or which can be reasonably implied from the type of employment.
9. Violence or unlawful conduct committed during a labor dispute, strike or lockout
or during picketing activities on, proximate to or directed at the employer's premises,
property or operations.
C. Upon notification from an interested party, if a claimant has been subsequently
convicted or acquitted of a felony with respect to the act for which he was separated,
his claim shall be reconsidered after a tribunal hearing based on the newly available
evidence.
D. In evaluating misconduct, a claimant's prior history of employment with the same
employer shall be considered.
23-619 Insured work
"Insured work" means employment for employers.
23-620 State
"State" includes, in addition to the states of the United States, the District of
Columbia, and the Commonwealth of Puerto Rico and the Virgin Islands.
23-621.01 United States
"United States" includes, in addition to the states of the United States, the
District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands.
23-621 Unemployed
A. An individual shall be deemed "unemployed" with respect to any week during which
the individual performs no services and with respect to which no wages are payable to the
individual, or with respect to any week of less than full-time work without any fault on
the individual's part if the wages payable to the individual with respect to the week are
less than the individual's weekly benefit amount.
B. An individual shall not be deemed "unemployed" with respect to any week of less
than full-time work if the loss of full-time work is directly attributable to the fault
of the individual.
C. An individual shall not be deemed "unemployed" if the individual is receiving
wages in lieu of notice, dismissal pay or severance pay. The period of time for which
wages in lieu of notice, dismissal pay or severance pay are allocable shall be determined
by either of the following:
1. If there was a written contract between the employer and the claimant in effect
at the time of separation, allocate to the appropriate period in accordance with the
contract, continuing for the number of work days that the pay would cover at the regular
wage rate.
2. If no written contract was in effect at the time of separation, allocate to the
appropriate period following the last day of performance of services, continuing for the
number of work days that the pay would cover at the regular wage rate.
23-622 Wages
A. "Wages" means all remuneration for services from whatever source, including
commissions, bonuses and fringe benefits and the cash value of all remuneration in any
medium other than cash. The reasonable cash value of remuneration in any medium other
than cash shall be estimated and determined in accordance with rules prescribed by the
department.
B. "Wages" shall not include:
1. For the purpose of sections 23-604, 23-726, 23-728 and 23-730.01, that part of
the remuneration (other than remuneration referred to in succeeding paragraphs of this
subsection) in excess of seven thousand dollars paid in 1983 or in a calendar year
thereafter to an individual by an employer or his predecessor with respect to employment
during the calendar year, unless that part of the above specified excess remuneration is
subject to a tax, under federal law, against which credit may be taken for contributions
required to be paid into a state unemployment fund by employers subject to the federal
law. For the purposes of this paragraph, the remuneration paid to an individual by an
employer with respect to employment in another state or states, upon which contributions
were required of and paid by such employer under an unemployment compensation law of such
other state or states, shall be included as part of remuneration equal to the above
specified amounts.
2. The amount of any payment, including monies paid by an employer for insurance or
annuities or into a fund to provide payments for insurance or annuities, made to or on
behalf of an employee or any of his dependents under a plan or system established by an
employer which makes provision for his employees generally, for his employees generally
and their dependents, for a class of his employees or for a class of his employees and
their dependents, on account of any of the following:
(a) Sickness or accident disability, except that in the case of payments made to an
employee or any of his dependents, this subdivision excludes from wages only payments
which are received under a workers' compensation law.
(b) Medical or hospitalization expenses in connection with sickness or accident
disability.
(c) Death.
3. The payment by an employer, without deduction from the remuneration of the
employee, of the tax imposed upon an employee under section 3101 of the internal revenue
code relating to federal insurance contributions with respect to remuneration paid to an
employee for domestic service in a private home or for agricultural labor.
4. Any payment on account of sickness or accident disability, or medical or
hospitalization expenses in connection with sickness or accident disability, made by an
employing unit to, or on behalf of, an employee after the expiration of six calendar
months following the last calendar month in which the employee worked for such employing
unit.
5. Any payment made to, or on behalf of, an employee or his beneficiary:
(a) From or to a trust described in section 401(a) of the internal revenue code
relating to qualified pension, profit sharing and stock bonus plans which is exempt from
tax under section 501(a) of the internal revenue code at the time of the payment unless
the payment is made to an employee of the trust as remuneration for services rendered as
an employee and not as a beneficiary of the trust.
(b) Under or to an annuity plan which, at the time of such payment, is a plan
described in section 403(a) of the internal revenue code relating to taxability of
beneficiaries under qualified annuity plans.
(c) Under a simplified employee pension as defined in section 408(k)(1) of the
internal revenue code other than contributions described in section 408(k)(6) of the
internal revenue code relating to employee salary reduction arrangements.
(d) Under or to an annuity contract described in section 403(b) of the internal
revenue code relating to taxation of beneficiaries under annuities purchased by certain
tax exempt organizations, other than a payment for the purchase of the contract which is
made by reason of a salary reduction agreement whether evidenced by a written instrument
or otherwise.
(e) Under or to an exempt governmental deferred compensation plan as defined in
section 3121(v)(3) of the internal revenue code.
(f) To supplement pension benefits under a plan or trust described in this
paragraph to take into account some portion or all of the increase in the cost of living
since retirement as determined by the United States secretary of labor, but only if the
supplemental payments are under a plan which is treated as a welfare plan under section
3(2)(b)(ii) of the employee retirement income security act of 1974.
(g) Under a cafeteria plan within the meaning of section 125 of the internal
revenue code if such payment would not be treated as wages without regard to such plan
and it is reasonable to believe that, if section 125 of the internal revenue code applied
for purposes of this section, section 125 of the internal revenue code would not treat
any wages as constructively received.
6. Remuneration paid in any medium other than cash to an employee for service not
in the course of the employing unit's trade or business.
7. Remuneration paid for agricultural labor performed in any medium other than
cash.
8. Any tip, gratuity or service charge received by an employee except:
(a) Before January 1, 1986, if either of the following applies:
(i) It is specified and collected by the employing unit.
(ii) It is used by the employing unit in order to conform to the minimum wage
requirements of federal or state law.
(b) From and after December 31, 1985, if it is reported by the employee in writing
to the employer on or before the tenth day of the month following the month in which it
was received.
9. Remuneration which the individual receives for drill, training or other national
guard or reserve activity which occurs on not more than one weekend per month or in lieu
of a weekend drill or the equivalent.
10. Remuneration paid to or on behalf of an employee if and to the extent that at
the time of the payment of the remuneration it is reasonable to believe that a
corresponding deduction is allowable under section 217 of the internal revenue code
relating to moving expenses determined without regard to section 274(n) of the internal
revenue code relating to the disallowance of certain meal and entertainment expenses.
11. Any contribution, payment or service provided by an employer which may be
excluded from the gross income of any employee, his spouse or his dependents under the
provisions of section 120 of the internal revenue code relating to amounts received under
qualified group legal services plans.
12. Any payment made or benefit furnished to or for the benefit of an employee if at
the time of the payment or furnishing it is reasonable to believe that the employee will
be able to exclude the payment or benefit from income under section 127, relating to
educational assistance, or section 129, relating to dependent care assistance, of the
internal revenue code.
13. The value of any meals or lodging furnished by or on behalf of the employer if
at the time of the furnishing it is reasonable to believe that the employee will be able
to exclude these items from income under section 119 of the internal revenue code.
14. Any payment made by an employer to a survivor or the estate of a former employee
after the calendar year in which the employee died.
15. Any benefit provided to or on behalf of an employee if at the time the benefit
is provided it is reasonable to believe that the employee will be able to exclude the
benefit from income under section 74(c) relating to employee achievement awards, section
117 relating to qualified scholarships or section 132 relating to certain fringe benefits
of the internal revenue code.
C. Subsection B, paragraphs 2 through 15 of this section do not exclude from wages
any of the following:
1. An employer contribution under a qualified cash or deferred arrangement as
defined in section 401(k) of the internal revenue code to the extent the contribution is
not included in gross income pursuant to section 402(a)(8) of the internal revenue code
relating to cash or deferred arrangements.
2. An amount treated as an employer contribution under section 414(h)(2) of the
internal revenue code, relating to tax treatment of contributions by government units, if
the employer picks up the contribution pursuant to a written or unwritten salary
reduction agreement.
3. An amount deferred under any plan or other arrangement for deferral of
compensation other than a plan described in subsection B, paragraph 5 of this
section. An amount considered as wages pursuant to this paragraph shall be taxed only
once and after being taxed shall not be considered wages for the purposes of this
chapter.
D. In applying the provisions of subsection B of this section, any remuneration
excluded from the definition of wages under 26 United States Code section 3306(b) shall
not be wages.
23-623 Week
"Week" means such period of seven consecutive days as the commission may by
regulation prescribe.
23-624 Plan maintained by an employer
"Plan maintained by an employer" shall not include any plan to which the employer
does not contribute funds.
23-625.01 Definition of debtor
"Debtor" means a person whose property is subject to levy pursuant to article 5 of
this chapter.
23-625.02 Definition of internal revenue code "Internal revenue code" means the United States internal revenue code of 1986, as amended.
23-625 Definition of levy
"Levy" includes the power of distraint and seizure by any means.
23-626 Eligibility period
"Eligibility period" of an individual means the period consisting of the weeks in
his benefit year under this chapter which begin in an extended benefit period; and if his
benefit year ends within such extended benefit period, any weeks thereafter which begin
in such period.
23-627 Exhaustee
A. "Exhaustee" means an individual who, with respect to any week of unemployment in
his eligibility period:
1. Has received prior to such week, all of the regular benefits that were available
to him in his current benefit year that includes such week; or his benefit year having
expired prior to such week, has no, or insufficient wages on the basis of which he could
establish a new benefit year that would include such week; and
2. Has no right to unemployment benefits or allowances, as the case may be, under
the railroad unemployment insurance act, the trade expansion act of 1962, the automotive
products trade act of 1965, and such other federal laws as are specified in regulations
issued by the United States secretary of labor; and has not received and is not seeking
unemployment benefits under the unemployment compensation law of Canada, but if he is
seeking such benefits and the appropriate agency finally determines that he is not
entitled to benefits under such law he is considered an exhaustee.
B. For the purposes of paragraph 1 of subsection A, an individual shall be deemed
to have received all of the regular benefits that were available to him although as a
result of a pending protest or appeal with respect to wages that were not included in the
original monetary determination in his benefit year, he may subsequently be determined to
be entitled to added regular benefits.
23-628 Extended benefit period
A. "Extended benefit period" means a period which:
1. Begins with the third week after a week for which there is an ARIZONA on
indicator; and
2. Ends with either of the following weeks, whichever occurs later:
(a) The third week after the first week for which there is an ARIZONA off
indicator; or
(b) The thirteenth consecutive week of such period.
B. No extended benefit period may begin by reason of an ARIZONA on indicator before
the fourteenth week following the end of a prior extended benefit period which was in
effect with respect to this state.
23-629 Extended benefits
"Extended benefits" means benefits, including benefits payable to federal civilian
employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85, payable to an individual
under the provisions of this article for weeks of unemployment in his eligibility period.
23-630 On and off indicators
A. There is an ARIZONA on indicator for a week if the department determines, in
accordance with the regulations of the United States secretary of labor, that for the
period consisting of such week and the immediately preceding twelve weeks:
1. The rate of insured unemployment in this state, not seasonally adjusted:
(a) Equaled or exceeded one hundred twenty per cent of the average of such rates
for the corresponding thirteen-week period ending in each of the preceding two calendar
years, and
(b) Equaled or exceeded five per cent; or
2. The rate of insured unemployment in this state, not seasonally adjusted, equaled
or exceeded six per cent.
B. There is an ARIZONA off indicator for a week unless the department determines in
accordance with the regulations of the United States secretary of labor that for the
period consisting of such week and the immediately preceding twelve weeks the conditions
of subsection A, paragraph 1 or 2 are satisfied.
23-631 Rate of insured unemployment; definition
"Rate of insured unemployment" for purposes of section 23-630 means the percentage
derived by dividing:
1. The average weekly number of individuals filing claims for regular benefits in
this state for weeks of unemployment with respect to the most recent
thirteen-consecutive-week period determined on the basis of reports submitted by the
department to the United States secretary of labor, by
2. The average monthly employment covered under this chapter for the first four of
the most recent six completed calendar quarters ending before the end of such
thirteen-week period.
|
|
|
|
