2009-2010 Bill 1073: Collateral Recovery - South Carolina Legislature Online

1 South Carolina General Assembly 2 118th Session, 2009-2010 3 4 S. 1073 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Senators Thomas, Leventis and Knotts 10 Document Path: l:\council\bills\agm\19572bh10.docx 11 12 Introduced in the Senate on January 21, 2010 13 Introduced in the House on April 29, 2010 14 Last Amended on June 2, 2010 15 Currently residing in the Senate 16 17 Summary: Collateral recovery 18 19 20 HISTORY OF LEGISLATIVE ACTIONS 21 22 Date Body Action Description with journal page number 23 1/21/2010 Senate Introduced and read first time SJ3 24 1/21/2010 Senate Referred to Committee on Banking and Insurance SJ3 25 2/16/2010 Senate Committee report: Favorable with amendment Banking and Insurance SJ4 26 2/17/2010 Senate Committee Amendment Amended and Adopted SJ20 27 2/17/2010 Senate Read second time SJ20 28 4/28/2010 Senate Amended SJ33 29 4/28/2010 Senate Read third time and sent to House SJ33 30 4/29/2010 House Introduced and read first time HJ16 31 4/29/2010 House Referred to Committee on Labor, Commerce and Industry HJ16 32 6/1/2010 House Recalled from Committee on Labor, Commerce and Industry HJ76 33 6/2/2010 House Amended HJ8 34 6/2/2010 House Read second time HJ8 35 6/3/2010 House Read third time and returned to Senate with amendments HJ22 36 37 38 VERSIONS OF THIS BILL 39 40 1/21/2010 41 2/16/2010 42 2/17/2010 43 4/28/2010 44 6/1/2010 45 6/2/2010 46 1 Indicates Matter Stricken 2 Indicates New Matter 3 4 AMENDED 5 June 2, 2010 6 7 S. 1073 8 9 Introduced by Senators Thomas, Leventis and Knotts 10 11 S. Printed 6/2/10--H. 12 Read the first time April 29, 2010. 13 14

[1073-2] 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 12 1976, BY ADDING CHAPTER 18 TO TITLE 37, SO AS TO 13 REQUIRE THOSE WHO ENGAGE IN COLLATERAL 14 RECOVERY TO APPLY FOR LICENSURE WITH THE 15 DEPARTMENT OF CONSUMER AFFAIRS, TO PROVIDE 16 WHAT MUST BE INCLUDED IN AN APPLICATION, TO 17 PROVIDE ELIGIBILITY REQUIREMENTS FOR THOSE WHO 18 ENGAGE IN COLLATERAL RECOVERY, TO PROVIDE 19 LICENSE FEES, TO PROVIDE FOR THE INVESTIGATION 20 OF LICENSE APPLICANTS, TO PROVIDE FOR THE FORM, 21 VALIDITY PERIOD, AND RENEWAL OF ISSUED LICENSES, 22 TO PROVIDE CANCELLATION REQUIREMENTS OF 23 ISSUED LICENSES, TO PROVIDE FOR THE TRAINING OF 24 INTERN COLLATERAL RECOVERERS, TO PROVIDE FOR 25 VIOLATIONS AND ASSOCIATED PENALTIES OF THE 26 CHAPTER, TO PROVIDE FOR THE CONFIDENTIALITY OF 27 REQUIRED INVESTIGATIONS, TO ALLOW THE 28 DEPARTMENT ACCESS TO CERTAIN RECORDS FOR 29 INVESTIGATIONS, TO REQUIRE THE DEPARTMENT TO 30 MAINTAIN CERTAIN STATISTICS, TO PROVIDE 31 INVENTORY AND TITLE REQUIREMENTS, AND TO 32 DEFINE CERTAIN TERMS. 33 Amend Title To Conform 34 35 Be it enacted by the General Assembly of the State of South 36 Carolina: 37 38 SECTION 1. Section 4127260 of the 1976 Code, as last amended 39 by Act 146 of 2010, is further amended to read: 40 41 “Section 4127260. The term ‘employment’ as used in Chapters 42 27 through 41 of this title does not include:

[1073] 3 1 (1) labor engaged in the seafood industry, which is defined as 2 persons employed in the commercial netting, catching, and 3 gathering of seafood, and the processing of such seafood for the 4 fresh market; 5 (2) casual labor not in the course of the employing unit’s trade 6 or business; 7 (3) service performed by an individual in the employ of his 8 son, daughter, or spouse and service performed by a child under 9 the age of eighteen in the employ of his father or mother; 10 (4) service performed in the employ of the United States 11 Government or an instrumentality of the United States immune 12 under the Constitution of the United States from the contributions 13 imposed by Chapters 27 through 41 of this title, except that to the 14 extent that the Congress of the United States permits states to 15 require instrumentalities of the United States to make payments 16 into an unemployment fund under a state unemployment 17 compensation act, all of the provisions of Chapters 27 through 41 18 of this title are applicable to those instrumentalities and to services 19 performed for those instrumentalities, in the same manner, to the 20 same extent and on the same terms as to all other employers; 21 provided, that if this State is not certified for a year by the 22 Secretary of Labor or his successors under the Federal Internal 23 Revenue Code, the payments required of those instrumentalities 24 with respect to such year must be refunded by the department from 25 the funds in the same manner and within the same period as is 26 provided in Section 4131360 with respect to contributions 27 erroneously collected; 28 (5) service performed after December 31, 1977, in the employ 29 of a governmental entity referred to in Section 4127230(2)(b), if 30 the service is performed by an individual in the exercise of his 31 duties as: 32 (a) an elected official or as the appointed successor of an 33 elected official; 34 (b) a member of a legislative body, or a member of the 35 judiciary of a state or political subdivision; 36 (c) a member of the State National Guard or Air National 37 Guard; 38 (d) an employee serving on a temporary basis in case of fire, 39 storm, snow, earthquake, flood, or similar emergency; or 40 (e) in a position that, pursuant to the laws of this State, is 41 designated as a major nontenured policymaking or advisory 42 position, or a policymaking position the performance of the duties

[1073] 4 1 of which ordinarily does not require more than eight hours per 2 week; 3 (6) service with respect to which unemployment compensation 4 is payable under an unemployment compensation system 5 established by an act of Congress; provided, that the department 6 must enter into agreements with the proper agencies under such act 7 of Congress, which agreements shall become effective ten days 8 after publication of it in the manner provided in Section 4129130 9 for general rules, to provide reciprocal treatment to individuals 10 who have after acquiring potential rights to benefits under 11 Chapters 27 through 41 of this title, acquired rights to 12 unemployment compensation under such act of Congress or who 13 have, after acquiring potential rights to unemployment 14 compensation under such act of Congress, acquired rights to 15 benefits under Chapters 27 through 41 of this title; 16 (7) service other than service performed as defined in Section 17 4127230(3) performed in the employ of a corporation, community 18 chest, fund or foundation, organized and operated exclusively for 19 religious, charitable, scientific, testing for public safety, literary, or 20 educational purposes, or for the prevention of cruelty to children or 21 animals, no part of the net earnings of which inures to the benefit 22 of any private shareholder or individual, no substantial part of the 23 activities of which is carrying on propaganda, or otherwise 24 attempting to influence legislation, and which does not participate 25 in, or intervene in (including the publishing or distributing of 26 statements), a political campaign on behalf of a candidate for 27 public office, provided, that service performed in the employ of an 28 organization operated for the primary purpose of carrying on a 29 trade or business for profit may not be exempt on the ground that 30 all of its profits are payable to one or more organizations exempt 31 under this paragraph; 32 (8) service other than service performed as defined in Section 33 4127230(3) that is performed in a calendar quarter in the employ 34 of an organization exempt from federal income tax under Section 35 501(a) (other than an organization described in Section 401(a)) or 36 under Section 521 of the Federal Internal Revenue Code of 1954, 37 if the remuneration for such service is less than fifty dollars; 38 (9) the term ‘employment’ does not include: 39 (a) service performed in the employ of a school, college, or 40 university, if the service is performed by: 41 (i) a student who is enrolled and is regularly attending 42 classes at the school, college or university; or

[1073] 5 1 (ii) the spouse of a student, if the spouse is advised, at the 2 time the spouse commences to perform the service that the 3 employment of the spouse to perform the service is provided under 4 a program to provide financial assistance to the student by his 5 school, college, or university, and the employment is not covered 6 by a program of unemployment insurance; 7 (b) service performed by an individual under the age of 8 twentytwo who is enrolled at a nonprofit or public educational 9 institution that normally maintains a regular faculty and curriculum 10 and normally has a regularly organized body of students in 11 attendance at the place where its educational activities are carried 12 on as a student in a fulltime program, taken for credit at the 13 institution, which combines academic instruction with work 14 experience, if the service is an integral part of the program, and the 15 institution has certified this to the employer, except that this 16 subparagraph does not apply to service performed in a program 17 established for or on behalf of an employer or group of employers; 18 (c) service performed in the employ of a hospital, if the 19 service is performed by a patient of the hospital, as defined in 20 Section 4127280; 21 (10) for the purposes of Section 4127230(2) and (3), 22 ‘employment’ does not include service performed: 23 (a) in the direct employ of a church, convention, or 24 association of churches or an organization operated primarily for 25 religious purposes and which is operated, supervised, controlled, 26 or principally supported by a church, convention, or association of 27 churches; or 28 (b) by an ordained, a commissioned, or a licensed minister 29 of a church in the exercise of his ministry or by a member of a 30 religious order in the exercise of duties required by the order; or 31 (c) in a facility conducted for the purpose of carrying out a 32 program of rehabilitation for individuals whose earning capacity is 33 impaired by age, physical or mental deficiency, or injury or 34 providing remunerative work for individuals who because of their 35 impaired physical or mental capacity cannot be absorbed readily in 36 the competitive labor market by an individual receiving 37 rehabilitation or remunerative work; or 38 (d) before January 1, 1978, for a hospital in a state prison or 39 other state correctional institution by an inmate of the prison or 40 correctional institution and after December 31, 1977, by an inmate 41 of a custodial or penal institution; or 42 (e) as part of an unemployment workrelief or worktraining 43 program assisted or financed in whole or in part by a federal

[1073] 6 1 agency, an agency or political subdivision of a state, or an 2 individual receiving work relief or work training, unless a federal 3 law, rule, or regulation mandates unemployment insurance 4 coverage to individuals in a particular workrelief or worktraining 5 program; or 6 (f) by an inmate who participates in a project designated by 7 the Director of the Bureau of Justice Assistance pursuant to Public 8 Law 90351; 9 (11) service performed by an individual under the age of 10 eighteen in the delivery or distribution of newspapers or shopping 11 news, not including delivery or distribution to any point for 12 subsequent delivery or distribution; 13 (12) service performed as a student nurse in the employ of a 14 hospital or a nurses’ training school by an individual enrolled and 15 regularly attending classes in a nurses’ training school chartered or 16 approved pursuant to state law, and service performed as an intern 17 in the employ of a hospital by an individual who has completed a 18 fouryear course in a medical school chartered and approved 19 pursuant to state law; 20 (13) service performed by an individual for an employer as an 21 insurance agent or as an insurance solicitor, if this service is 22 performed by the individual for his employer for remuneration 23 solely by way of department commission; 24 (14) service other than service performed as defined in Section 25 4127230(3) by an individual for an employer as a real estate 26 salesman or agent, if this service is performed by the individual for 27 his employer for remuneration solely by way of department 28 commission; 29 (15) service performed in the employ of a foreign government, 30 including service as a consular or other officer or employee or a 31 nondiplomatic representative; 32 (16) ‘agricultural labor’ as defined by Section 4127120 and 33 when performed by students who are enrolled and regularly 34 attending classes for at least five months during a particular year at 35 a secondary school or at an accredited college, university, or 36 technical school and also when performed by parttime persons 37 who do not qualify as students pursuant to this section but who at 38 the conclusion of their agricultural labor would not qualify for 39 benefits pursuant to the provisions of the department; 40 (17) service performed as a member of a Native American tribal 41 council or service in a fishing rights related activity of a Native 42 American tribe by a member of the tribe for another member of the 43 tribe or by a qualified Native American entity.”

[1073] 7 1 2 SECTION 2. Section 4127610 of the 1976 Code, as last amended 3 by Act 146 of 2010, is further amended to read: 4 5 “Section 4127610. The failure to do an act required pursuant to 6 a provision of Chapters 27 through 41 of this title is considered an 7 act committed in part at the office of the department in Columbia.” 8 9 SECTION 3. Section 412970 of the 1976 Code, as last amended 10 by Act 146 of 2010, is further amended to read: 11 12 “Section 412970. Subject to the provisions of Chapters 27 13 through 41 of this title, the department may employ or retain on a 14 contract basis other accountants, attorneys, experts, and other 15 persons as may be necessary to perform the department’s duties.” 16 17 SECTION 4. Section 4129170(B)(1)(b) of the 1976 Code, as last 18 amended by Act 146 of 2010, is further amended to read: 19 20 “ (b) a state agency similarly charged or charged with 21 workforce development or training or jobs with recruitment; and” 22 23 SECTION 5. Section 4129180 of the 1976 Code, as last amended 24 by Act 146 of 2010, is further amended to read: 25 26 “Section 4129180. The department shall endeavor, both for the 27 relief of the clerical work of employers and its own office, to 28 confine reporting to the minimum necessary for the proper 29 administration of the law, and, except for necessary separation, 30 low earnings, special reports or notices, or wage and employment 31 reports required pursuant to Section 4129140, it shall not require 32 reports as to the earnings of individual employees more frequently 33 than quarterly.” 34 35 SECTION 6. Section 4129250 of the 1976 Code, as last amended 36 by Act 146 of 2010, is further amended to read: 37 38 “Section 4129250. The department must: 39 (A) print and make available for public distribution the text of 40 Chapters 27 through 41 of this title and its: 41 (1) regulations; 42 (2) annual reports to the Governor and General Assembly; 43 and

[1073] 8 1 (3) other material the department considers relevant and 2 suitable; and or 3 (B) furnish this material to a person on request and make it 4 available on its Internet website make this material available on its 5 Internet website.” 6 7 SECTION 7. Section 4129270 of the 1976 Code, as last amended 8 by Act 146 of 2010, is further amended to read: 9 10 “Section 4129270. Notwithstanding the provisions of Chapters 11 27 through 41 of this title, the department must promulgate 12 regulations necessary for the operation of an emergency 13 unemployment compensation system in the event of an enemy 14 attack or natural disaster that disrupts or endangers the 15 department’s usual procedures or facilities.” 16 17 SECTION 8. Section 4133430 of the 1976 Code, as last amended 18 by Act 146 of 2010, is further amended to read: 19 20 “Section 4133430. Money deposited or paid into the fund are 21 appropriated and made available to the department. Money in this 22 fund must be expended solely for the purpose of defraying the cost 23 of the administration of Chapters 27 through 41 of this title and for 24 no other purpose. A balance in the fund may not lapse at any time 25 but continuously must be available to the department for 26 expenditure consistent with Chapters 27 through 41 of this title. 27 The department shall issue its requisition approved by the 28 chairman director or a designated member individual, officer, or 29 agent for payment of the costs of administration to the Comptroller 30 General who shall draw his warrant in the usual form provided by 31 law on the State Treasurer, who shall pay it by check on the 32 employment security administration fund.” 33 34 SECTION 9. Section 4135120(4) of the 1976 Code, as last 35 amended by Act 146 of 2010, is further amended to read: 36 37 “(4) Discharge for gross misconduct, and is ineligible for 38 benefits beginning with the effective date of the request and 39 continuing until he has secured employment and shows to the 40 satisfaction of the department that he has performed services in 41 employment as defined by Chapters 27 through 41 of this title and 42 earned wages for those services equal to at least eight times the 43 weekly benefit amount of his claim if he is discharged due to:

[1073] 9 1 (i) wilful or reckless employee damage to employer 2 property that results in damage of more than fifty dollars; 3 (ii) employee consumption of alcohol or being under the 4 influence of alcohol on employer property in violation of a written 5 company policy restricting or prohibiting consumption of alcohol; 6 (iii) employee theft of items valued at more than fifty dollars; 7 (iv) failure to comply with applicable state or federal drug 8 and alcohol testing and use regulations including, but not limited 9 to, 49 C.F.R. part 40 and part 382 of the federal motor carrier 10 safety regulations, while on the job or on duty, and regulations 11 applicable for employees performing transportation and other 12 safety sensitive job functions as defined by the federal 13 government; 14 (v) employee committing criminal assault or battery of 15 another employee or a customer; 16 (vi) employee committing criminal abuse of patient or child 17 in his professional care; 18 (vii) employee insubordination, which is defined as wilful 19 failure to comply with a lawful, reasonable order of a supervisor 20 directly related to the employee’s employment as described in an 21 applicable written job description; or 22 (viii) employee wilful neglect of duty directly related to the 23 employee’s employment as described in an applicable written job 24 description.” 25 26 SECTION 10. Section 413930 of the 1976 Code, as last 27 amended by Act 146 of 2010, is further amended to read: 28 29 “Section 413930. An individual claiming benefits may not be 30 charged a fee in a proceeding under Chapters 27 through 41 of this 31 title by the department or its representatives or by a court or an 32 officer, except an attorney, of it. An individual claiming a benefit 33 in a proceeding before the department or a court must may be 34 represented by an attorney or other duly authorized agent, but an 35 attorney or agent must not charge or receive for this service more 36 than an amount approved by the department. A person who 37 violates a provision of this section, for each offense, must be fined 38 not less than fifty dollars nor more than five hundred dollars, 39 imprisoned for not more than six months, or both.” 40 41 SECTION 11. Section 4135615 of the 1976 Code is repealed. 42

[1073] 10 1 SECTION 12. This act takes effect upon approval by the 2 Governor. 3 4 XX 5

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