CHAPTER 239
HB 170 – FINAL VERSION
30Mar2005… 0828h
29Jun2005… 2112eba
2005 SESSION
08/10
HOUSE BILL 170
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill makes various changes to laws on unemployment compensation administered by the department of employment security including mass layoff, appeals of benefits determinations, and transfers of businesses by employers.
This bill also makes changes to unemployment compensation eligibility requirements for individuals seeking part-time work.
This bill is a request of the department of employment security.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
30Mar2005… 0828h
29Jun2005… 2112eba
05-0315
08/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
AN ACT relative to unemployment compensation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
239:1 Removal of Reference. Amend RSA 282-A:41, I to read as follows:
I. An individual shall be disqualified for benefits on the basis of services performed by an alien unless such an 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] of section 212(d)(5) of the Immigration and Nationality Act).
239:2 Fact Finding. Amend the introductory paragraph of RSA 282-A:45, I to read as follows:
I. Except as provided in RSA 282-A:45-a, in finding the facts material to a claim, the certifying officer shall in every case in which the reason for an individual’s leaving employment may be material:
239:3 New Section; Fact Finding for Mass Layoffs. Amend RSA 282-A by inserting after section 45 the following new section:
282-A:45-a Fact Finding for Mass Layoffs. Fact finding for mass layoffs, whether such layoff is temporary or permanent, shall be in accordance with the following:
I. An employing unit or employer shall file a mass layoff notice with the department if the employer lays off or expects to lay off 25 or more individuals:
(a) In the same calendar week;
(b) For an expected duration of 7 days or more; and
(c) For either of the following reasons:
(1) Vacation or holiday shutdown; or
(2) Company closure.
II. The mass layoff notice form required in paragraph I may be on one or more forms and shall be as provided for in the rules adopted by the commissioner, including such time limitations as the commissioner deems appropriate.
III. Failure on the part of the employing unit or employer or both to file the notice required in paragraph I shall, at the expiration of the period set for response, be deemed an irrevocable waiver of its right to be heard before the determination is made. Benefits charged to its account as a result of the determination shall remain so charged even though the claimant is, by reason of some later decision, held not to be entitled to such benefits.
IV. An employing unit or employer may be granted a waiver from filing the mass layoff notice required in paragraph I if the commissioner determines, in accordance with such rules as the commissioner shall adopt, that it is unlikely that 25 or more of the individuals laid off will file an initial claim, as defined in RSA 282-A:42, II(a), due to the expected receipt of wages, as defined in RSA 282-A:14, III. Any such waiver shall become void if in fact 25 or more of the individuals laid off claim benefits.
239:4 Redetermination. Amend RSA 282-A:46 to read as follows:
282-A:46 Redetermination.
I. A certifying officer may, within [30] 60 days of any determination, for good cause reconsider the determination or any part thereof, provided there was no appeal taken from the determination, [and may,] or the appeal tribunal has remanded the determination to the certifying officer under RSA 282-A:56.
II. Notwithstanding the filing of an appeal, a certifying officer may within one year reconsider that part of the determination that established the claimant’s annual earnings, maximum benefit amount, or maximum weekly benefit amount. Such redetermination shall be made, and an appeal therefrom may be had, in the same manner as the original determination.
239:5 Procedure. Amend RSA 282-A:56 to read as follows:
282-A:56 Procedure. A hearing shall be conducted in such a manner as to ensure a fair and impartial hearing to the interested parties. The appeal tribunal shall hear the appeal de novo and shall not be bound by prior findings or determinations of the department of employment security although the records of said department shall be part of the evidence to be considered by the tribunal. An appeal shall be filed and presented and the hearing conducted in accordance with rules adopted by the commissioner. Such rules need not conform to common law or statutory rules of evidence or other technical rules of procedure. The place and time of a hearing shall be determined by the commissioner. In no case shall a hearing proceed unless the chairman is present. With the agreement of all the parties the appeal tribunal may, without holding a hearing, remand a determination for redetermination pursuant to RSA 282-A:46 for the purpose of correcting obvious department error.
239:6 New Section; Special Rules Regarding Transfers of Experience and Assignment of Rates. Amend RSA 282-A by inserting after section 91 the following new section:
282-A:91-a Special Rules Regarding Transfers of Experience and Assignment of Rates.
I. Notwithstanding any other provision of law, the following shall apply regarding assignment of rates and transfers of experience:
(a)(1) If an employer transfers its trade or business, or a portion thereof, to an employing unit or to another employer and, at the time of the transfer, there is any common ownership, management, or control of the 2 employers, then the unemployment experience attributable to the transferred trade or business shall be transferred to the employer to whom such business is so transferred. The rates of both employers shall be recalculated and made effective following the date of the transfer of trade or business in accordance with such rules as the commissioner may adopt.
(2) If, following a transfer of experience under subparagraph (1), the commissioner determines that a substantial purpose of the transfer of trade or business was to obtain a reduced liability for contributions, then the experience rating of the employer accounts involved shall be combined and the combined rate assigned to each employer in accordance with such rules as the commissioner may adopt.
(b) Whenever a person who is not an employer under this chapter at the time he or she acquires the trade or business, or a portion thereof, of an employer, the unemployment experience of the acquired business shall not be transferred to such person if the commissioner finds that such person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, such person shall be assigned the new employer rate under RSA 282-A:81.
(c) In determining whether there is any common ownership, management, or control of 2 employers, the commissioner shall use objective factors which may include the extent of commonality or similarity of: ownership; any familial relationships; principals or corporate officers; organizational structure; day-to-day operations; assets and liabilities; and stated business purposes. Ownership of publicly-traded mutual funds, publicly-traded stocks, and similar publicly-traded investments shall not be indicative of common ownership, management, or control.
(d) In determining whether a substantial purpose of the transfer of trade or business was to obtain a reduced liability for contributions, the commissioner shall use objective standards which may include the cost of acquiring the business to which the experience was transferred, how long such business enterprise was continued after the transfer, the extent to which such business enterprise reduced its workforce following the transfer, the size of each employer’s workforce before and after the transfer, and the business activity conducted by each employer prior to, and after, the transfer.
(e) In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the commissioner shall use objective factors which may include the cost of acquiring the business, whether the person continued the business enterprise of the acquired business, how long such business enterprise was continued, or whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.
(f)(1) If a person knowingly violates or attempts to violate subparagraph (a), (b), or (i) or any other provision of this chapter related to determining the assignment of a contribution rate, or if a person knowingly advises another person in a way that results in a violation of such provision, the person shall be subject to the following penalties:
(A) If the person is an employer, such employer shall be assigned the highest rate assignable under this chapter for the rate year during which such violation or attempted violation occurred and the 3 rate years immediately following this rate year. However, if the person’s business is already at such highest rate for any year, or if the amount of increase in the person’s rate would be less than 2 percent for such year, then a penalty rate of contributions of 2 percent of taxable wages shall be imposed for such year.
(B) If the person is not an employer, such person shall be subject to a civil fine of not more than $5,000. Any such fine shall be deposited in the fund established by RSA 282-A:140. Such person shall also be jointly and severally liable with any liable employer for additional contributions and all related penalties, fees, interest, and costs owed as a result of the application of this section. Such person shall be subject to civil action for such liability in any manner provided for collection of contributions in RSA 282-A:141-156.
(2) In addition to other penalties imposed in this paragraph, any violation of this section may be prosecuted under RSA 282-A:166 or any other appropriate statute.
(g) The commissioner shall establish procedures to identify the transfer or acquisition of a business for purposes of this section.
(h) For purposes of this section:
(1) “Knowingly” means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.
(2) “Person” means “person” as defined in section 7701(a)(1) of the Internal Revenue Code of 1986.
(3) “Trade or business” includes the employer’s workforce.
(4) “Violates” or “attempts to violate” includes, but is not limited to, intent to evade, misrepresentation, and willful nondisclosure.
(i) The reporting by an employer of its payroll under the account of another employer with which there is no common ownership, management, or control, is prohibited unless the reporting employer is an employee leasing company lawfully making such report.
(j) A management company which contracts with any employer to report wages of managed employees shall be considered, in accordance with such rules as the commissioner may adopt, to have common management or control with such employer, and with any other management company with which the employer may contract for the same purpose in the future.
II. This section shall be interpreted and applied in such a manner as to meet the minimum requirements contained in any guidance or regulations issued by the United States Department of Labor.
239:7 Falsity by Employer. Amend RSA 282-A:166, I(g) to read as follows:
(g) Who attempts to induce any individual to waive any right under RSA 282-A; or
(h) Who fails or refuses to file a mass layoff notice under RSA 282-A:45-a, I; or
(i) Who violates or attempts to violate RSA 282-A:91-a shall be guilty of an offense as provided in paragraph II.
239:8 Falsity by Employer. Amend RSA 282-A:166, II(a)–(b) to read as follows:
(a) Class A felony if the amount of contributions or benefits involved is $1,000 or more.
(b) Class B felony if the amount of contributions or benefits involved exceeds $500 but is less than $1,000.
239:9 Penalties. Amend RSA 282-A:166-a to read as follows:
282-A:166-a Penalties for Failure or Refusal to Make Contributions or Reports. In the discretion of the commissioner or an authorized representative, violations of RSA 282-A:166, I(c) and (d) may subject the person to a penalty of not less than $100 or more than the amount of the contributions then or subsequently determined by the commissioner to be due. For violations of RSA 282-A:166, I(h) a penalty of not less than $100 nor more than $500 for each day of failure or refusal to file. For violations of all other subparagraphs of RSA 282-A:166, I, a penalty of not less than $100 nor more than $500 may be imposed. All penalties imposed under this section shall be in addition to late filing fees and interest charges due under other sections of this chapter. Any proceeding or action taken against a person under this section shall be in lieu of and not in addition to any proceeding or action taken under RSA 282-A:166. Persons found subject to this section may appeal in the manner set forth in RSA 282-A:95-98.
239:10 Partial Unemployment. Amend RSA 282-A:14, I to read as follows:
I.(a) An individual shall be deemed "totally unemployed" in any week with respect to which no wages are payable to him and during which he performs no services. An individual who is not entitled to vacation pay from his employer shall be deemed to be in "total unemployment" during the entire period of any general closing of his employer's place of business for vacation purposes, notwithstanding his prior assent, direct or indirect, to the establishment of such vacation period by his employer.
(b) An individual who meets the requirements of RSA 282-A:31, V and who is seeking only part-time work shall be deemed to be partially unemployed only in any week during which the individual was employed fewer than 20 hours.
239:11 New Paragraph; Unemployment Compensation; Benefit Eligibility Conditions. Amend RSA 282-A:31 by inserting after paragraph IV the following new paragraph:
V. Subparagraphs I(c) and I(d) of this section shall not apply to individuals who are seeking solely part-time work if the individual establishes that:
(a) The individual is the only available adult to care for the individual's natural, adopted, step, or foster child under the age of 16;
(b) The individual's last 6 months in employment as defined in RSA 282-A:9, except RSA 282-A:9, IV(f), or wages earned in a like manner in another state, usually consisted of 30 or fewer hours each week throughout such 6 month period;
(c) The individual is ready, willing, and able to accept and perform suitable work at least 20 hours per week for which there is a market for the services the individual offers, and that the individual has exposed himself or herself to employment to the extent commensurate with the economic conditions and the efforts of a reasonable prudent person seeking work; and
(d) There exists in the individual's labor market area sufficient suitable work during the hours or shifts to which the individual is restricted.
239:12 Unemployment Benefits; Disqualification of Benefits. Amend RSA 282-A:32, I(d)(2)(D) – (E) to read as follows:
(D) If [he] the individual is unable to apply for or accept work during the hours of the third shift, so-called, because he or she is the only adult available [for the care of his children under the age of 15 during said hours or] for the care of an ill or infirm elderly person who is dependent on him or her for support[.];
(E) If the individual is unable to apply for or accept work during the hours of a particular shift because he or she is the only adult available for the care of a natural, adopted, step, or foster child under the age of 16; or
(F) If the individual is permanently physically and/or mentally disabled, full-time work for such individual shall be deemed to be the hours and shifts the individual is physically able to work as certified by a licensed physician provided there is a market for the services the individual offers during such hours and shifts.
239:13 Effective Date. This act shall take effect January 1, 2006.
(Approved: July 14, 2005)
(Effective Date: January 1, 2006)