2009-2010 Bill 4060: Employment Security Commission - South Carolina Legislature Online

1 South Carolina General Assembly 2 118th Session, 2009-2010 3 4 H. 4060 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Rep. Jennings 10 Document Path: l:\council\bills\dka\3746dw09.docx 11 Companion/Similar bill(s): 853 12 13 Introduced in the House on May 14, 2009 14 Currently residing in the House Committee on Ways and Means 15 16 Summary: Employment Security Commission 17 18 19 HISTORY OF LEGISLATIVE ACTIONS 20 21 Date Body Action Description with journal page number 22 5/14/2009 House Introduced and read first time HJ59 23 5/14/2009 House Referred to Committee on Ways and Means HJ60 24 25 26 VERSIONS OF THIS BILL 27 28 5/14/2009 29 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 4127370, AS AMENDED, CODE OF 12 LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE 13 DEFINITION OF “UNEMPLOYED” FOR PURPOSES OF THE 14 SOUTH CAROLINA EMPLOYMENT SECURITY LAW AND 15 THE REDUCTION OF UNEMPLOYMENT BENEFITS TO 16 REFLECT PENSION AND OTHER PAYMENTS 17 ATTRIBUTABLE TO WORK, SO AS TO ELIMINATE 18 EMPLOYERFILED CLAIMS; TO AMEND SECTION 4127380, 19 RELATING TO THE DEFINITION OF “WAGES”, SO AS TO 20 INCREASE THE TAXABLE WAGE BASE BEGINNING 21 DECEMBER 31, 2008; TO AMEND SECTION 4127510, 22 RELATING TO REGULATIONS APPLICABLE TO 23 UNEMPLOYED INDIVIDUALS, SO AS TO CONFORM THE 24 SECTION TO THE AMENDMENTS TO SECTION 4127370; TO 25 AMEND SECTION 4129170, AS AMENDED, RELATING TO 26 THE DISCLOSURE OF CERTAIN INFORMATION TO 27 ENSURE THAT A CLAIMANT, OR HIS LEGAL 28 REPRESENTATIVE, BE SUPPLIED WITH RECORDS IN 29 ORDER TO MAKE A CLAIM, SO AS TO ADD A PROVISION 30 TO PROVIDE UNEMPLOYMENT INFORMATION 31 NECESSARY FOR WORKFORCE IMPROVEMENT AND 32 PROGRAM EVALUATION TO THE AGENCY 33 ADMINISTERING THE WORKFORCE INVESTMENT ACT; 34 TO AMEND SECTION 413150, AS AMENDED, RELATING 35 TO THE COMPUTATION OF RATES OF CONTRIBUTIONS 36 BY EMPLOYERS, SO AS TO RESTRUCTURE THE 37 COMPUTATION FOR CERTAIN EMPLOYERS; TO AMEND 38 SECTION 413180, AS AMENDED, RELATING TO THE 39 STATEWIDE RESERVE RATIO, SO AS TO ADJUST THE 40 RATES OF CONTRIBUTION FOR CERTAIN EMPLOYERS; 41 TO AMEND SECTION 41-35-50, RELATING TO THE 42 MAXIMUM POTENTIAL BENEFITS OF AN INSURED

[4060] 2 1 WORKER, SO AS TO CHANGE THE FORMULA FOR 2 CALCULATING THE BENEFIT; TO AMEND SECTION 3 4135120, AS AMENDED, RELATING TO 4 DISQUALIFICATION OF BENEFITS, SO AS TO ADD A 5 PROVISION PROVIDING FOR “GROSS MISCONDUCT” AND 6 CONFORMING THE TERM “MOST RECENT BONA FIDE 7 EMPLOYER” TO ITS DEFINITION IN SECTION 4135110(5), 8 AND TO REQUIRE THE DEDUCTION OF SEVERANCE PAY 9 FROM UNEMPLOYMENT COMPENSATION PAYMENTS. 10 11 Be it enacted by the General Assembly of the State of South 12 Carolina: 13 14 SECTION 1. Section 4127370(1), (3), and (4) is amended to read: 15 16 “(1) An individual is deemed ‘unemployed’ in any week during 17 which he performs no services and with respect to which no wages 18 are payable to him or in any week of less than fulltime work if the 19 wages payable to him with respect to such week are less than his 20 weekly benefit amount. The commission must shall prescribe 21 regulations applicable to unemployed individuals, making such the 22 distinctions in the procedures as to total unemployment, parttotal 23 unemployment, and partial unemployment of individuals attached 24 to their regular jobs, and other forms of shorttime work, as the 25 commission deems considers necessary. 26 27 (3) No An individual may not be considered as unemployed in 28 any week in which the commission finds that his unemployment is 29 due to a vacation week with respect to which the individual is 30 receiving or has received his regular wages. This subsection is not 31 applicable to any a claimant whose employer fails to comply, in 32 respect to such the vacation period, with the requirements of all 33 regulations or procedures of the commission regarding the filing of 34 notices, reports, or information, or claims in connection with 35 individual, group, or mass separations arising from the vacation. 36 (4) No An individual may not be considered as unemployed in 37 any week, (not to exceed two in any benefit year), in which the 38 commission finds that his unemployment is due to a vacation week 39 which is constituted a vacation period without pay by reason of a 40 written contract between the employer and the employees or by 41 reason of the employer’s vacation policy and practice to his 42 employees. This provision applies only if it is found by the 43 commission that employment will be available for the claimant

[4060] 3 1 with the employer at the end of a vacation period as described in 2 this section. This subsection is not applicable to any a claimant 3 whose employer fails to comply, in respect to such the vacation 4 period, with the requirements of all regulations or procedures of 5 the commission regarding the filing of notices, reports, or 6 information, or claims in connection with individual, group, or 7 mass separations arising from the vacation.” 8 9 SECTION 2. Section 4127380(2) of the 1976 Code is amended to 10 read: 11 12 “(2) For the purpose of Chapter 31, Article 1, of this title, 13 beginning after December 31, 2008, ‘wages’ does not include that 14 part of remuneration which, after remuneration equal to seven 15 twelve thousand dollars has been paid in a calendar year to an 16 individual by an employer or his predecessor or with respect to 17 employment during any calendar year, is paid to the individual by 18 the employer during the calendar year unless that part of the 19 remuneration is subject to a tax under a federal law imposing a tax 20 against which credit may be taken for contributions required to be 21 paid into a state unemployment fund. For years beginning after 22 December 31, 2009, ‘wages’ does not include that part of 23 remuneration greater than thirtyfive percent of the statewide 24 annual wage for the previous calendar year as computed by 25 multiplying by fiftytwo the statewide weekly wage pursuant to 26 Section 4127360, rounded to the next lower five hundred dollars, 27 provided that this amount is not less than that part of the 28 remuneration subject to a tax under a federal law imposing a tax 29 against which credit may be taken for contributions required to be 30 paid into a state unemployment fund. For the purposes of this 31 subsection, employment includes service constituting employment 32 under any unemployment compensation law of another state.” 33 34 SECTION 3. Section 4127510 of the 1976 Code is amended to 35 read: 36 37 “Section 4127510. The commission shall prescribe regulations 38 applicable to unemployed individuals, making such the distinctions 39 in the procedures as to total unemployment, parttotal 40 unemployment, and partial unemployment of the individuals 41 attached to their regular jobs and other forms of shorttime work as 42 the commission deems considers necessary.” 43

[4060] 4 1 SECTION 4. Section 4129170 of the 1976 Code, as last amended 2 by Act 203 of 2002, is further amended by adding: 3 4 “(D) In response to a request, which contains sufficient 5 individual identifying information, from the agency administering 6 the federal Workforce Investment Act, the commission shall 7 provide information obtained pursuant to the provisions of 8 Chapters 27 through 42 considered necessary for workforce 9 improvement and the evaluation of these programs, including 10 available wage information, to the requesting agency. The costs of 11 providing the information, including the costs of protecting the 12 privacy of individuals and employing units, must be borne by the 13 receiving agency.” 14 15 SECTION 5. Section 413150(1) of the 1976 Code, as last 16 amended by Act 37 of 1999, is further amended by adding at the 17 end: 18 19 “(e) With respect to any calendar year commencing with the 20 calendar year 2010: 21 (i) one and four hundredths percent, if the excess equals or 22 exceeds nine percent of his most recent annual payroll; 23 (ii) two and four hundredths percent, if the excess equals or 24 exceeds seven percent but is less than nine percent of his most 25 recent annual payroll; 26 (iii) three and four hundredths percent, if the excess is less 27 than seven percent of his most recent annual payroll.” 28 29 SECTION 6. Section 413150(2) of the 1976 Code, as last 30 amended by Act 37 of 1999, is further amended by adding at the 31 end: 32 33 “(d) With respect to any calendar year commencing with the 34 calendar year 2010; 35 (i) four and fiftyfour hundredths percent if the deficit is less 36 than ten percent of his most recent annual payroll; 37 (ii) six and four hundredths percent if the deficit equals or 38 exceeds ten percent but is less than twenty percent of his most 39 recent annual payroll; 40 (iii) seven and fiftyfour hundredths percent if the deficit 41 equals or exceeds twenty percent but is less than thirty percent of 42 his most recent annual payroll;

[4060] 5 1 (iv) nine and four hundredths percent if the deficit equals or 2 exceeds thirty percent but is less than forty percent of his most 3 recent annual payroll; 4 (v) ten and fiftyfour hundredths percent if the deficit equals 5 or exceeds forty percent of his most recent annual payroll.” 6 7 SECTION 7. Section 413180 of the 1976 Code, as last amended 8 by Act 37 of 1999, is further amended by adding at the end: 9 10 “(3) For the base rate computations made for years commencing 11 with calendar year 2010, when the statewide reserve ratio 12 computed during any calendar year is less than two percent, all 13 contribution base rates as computed pursuant to Sections 413140 14 and 413150 are adjusted as follows: 15 (a) onetenth percent, if the statewide reserve ratio is less 16 than two percent but not less than one and fourtenths percent; 17 (b) twotenths percent, if the statewide reserve ratio is less 18 than one and fourtenths percents.” 19 20 SECTION 8. Section 41-35-50 of the 1976 Code is amended to 21 read: 22 23 “Section 41-35-50. The maximum potential benefits of any an 24 insured worker in a benefit year are the lesser of: 25 (1) twentysix times his weekly benefit amount.; or 26 (2) onethird of his wages for insured work paid during his base 27 period. 28 If the resulting amount is not a multiple of one dollar, the 29 amount must be reduced to the next lower multiple of one dollar, 30 except that no an insured worker may not receive benefits in a 31 benefit year unless, subsequent to the beginning of the next 32 preceding benefit year during which he received benefits, he 33 performed ‘insured work’ as defined in Section 4127300 and 34 earned wages in the employ of a single employer in an amount 35 equal to not less than eight ten times the weekly benefit amount 36 established for the individual in the preceding benefit year.” 37 38 SECTION 9. Section 4135120(1), (2), and (6) of the 1976 Code, 39 as last amended by Act 50 of 2005, is further amended to read: 40 41 “(1) Leaving work voluntarily. If the commission finds that 42 he has left voluntarily, without good cause, his most recent work 43 prior to bona fide employer before filing a request for

[4060] 6 1 determination of insured status or a request for initiation of a claim 2 series within an established benefit year, with ineligibility 3 beginning with the effective date of the request and continuing 4 until he has secured employment and shows to the satisfaction of 5 the commission that he has performed services in employment as 6 defined by Chapters 27 through 41 of this title and earned wages 7 for such the services equal to at least eight ten times the weekly 8 benefit amount of his claim. 9 (2) Discharge for cause connected with the employment. 10 (a)(i) If the commission finds that he has been discharged 11 for cause connected with his most recent work prior to bona fide 12 employer before filing a request for determination of insured status 13 or a request for initiation of a claim series within an established 14 benefit year, with ineligibility beginning with the effective date of 15 the request, and continuing not less than five nor more than the 16 next twentysix ten weeks, in addition to the waiting period, with a 17 corresponding and mandatory reduction of the insured worker’s 18 benefits to be calculated by multiplying his weekly benefit amount 19 by the number of weeks of his disqualification. The ineligibility 20 period must be determined by the commission in each case 21 according to the seriousness of the cause for discharge. A charge 22 of discharge for cause connected with the employment may not be 23 made for failure to meet production requirements unless the failure 24 is occasioned by wilful failure or neglect of duty. ‘Cause 25 connected with the employment’ as used in this item requires more 26 than a failure in good performance of the employee as the result of 27 inability or incapacity. 28 (ii) If the commission finds that he has been discharged 29 from his most recent bona fide employer before filing a request for 30 determination of insured status or a request for initiation of a claim 31 series within an established benefit year for gross misconduct, with 32 ineligibility beginning with the effective date of the request, and 33 continuing for twentysix weeks, in addition to the waiting period, 34 with a corresponding and mandatory reduction of the insured 35 worker’s benefits . ‘Gross misconduct’ as used in this subsubitem 36 includes, but is not limited to, conduct that causes a substantial 37 monetary or property loss to the employer, fighting on the job, 38 patient or client abuse or lifeendangering neglect, drug use as 39 defined in subitem (b) of this section, working while impaired by 40 alcohol or a legal drug used improperly, or sexual, racial, or 41 religious harassment involving physical acts. 42 (b) An insured worker is considered to have been discharged 43 for cause pursuant to this item, and is ineligible for benefits if the:

[4060] 7 1 (i) company has communicated a policy prohibiting the 2 illegal use of drugs, the violation of which may result in 3 termination; and 4 (ii) insured worker fails or refuses to provide a specimen 5 pursuant to a request from the employer, or otherwise fails or 6 refuses to cooperate by providing an adulterated specimen; or 7 (iii) insured worker provides a blood, hair, or urine 8 specimen during a drug test administered on behalf of the 9 employer, which tests positive for illegal drugs or legal drugs used 10 unlawfully, provided: 11 (A) the sample was collected and labeled by a licensed 12 health care professional or another individual authorized to collect 13 and label test samples by federal or state law, including law 14 enforcement personnel; and 15 (B) the test was performed by a laboratory certified by 16 the National Institute on Drug Abuse United States Department of 17 Health and Human Services, the College of American Pathologists 18 or the State Law Enforcement Division; and 19 (C) any initial positive test was confirmed on the 20 specimen using the gas chromatography/mass spectrometry 21 method, or an equivalent or more accurate scientifically accepted 22 methods approved by the National Institute on Drug Abuse. 23 (iv) for purposes of this item, ‘unlawfully’ means without 24 a prescription. 25 (c) If an insured worker makes an admission pursuant to the 26 employer’s policy, which provides that voluntary admissions made 27 before the employer’s request to the employee to submit to testing 28 may protect an employee from immediate termination, then the 29 admission is inadmissible for purposes of this section as long as 30 the: 31 (A) employer has communicated a written policy, which 32 provides protection from immediate termination for employees 33 who voluntarily admit prohibited drug use before the employer’s 34 request to submit to a test; and 35 (B) employee makes the admission specifically pursuant to 36 the employer’s policy. 37 (d) Information, interviews, reports, and drugtest results, 38 written or otherwise, received by an employer through a 39 drugtesting program may be used or received in evidence in 40 proceedings conducted pursuant to the provisions of this title for 41 the purposes of determining eligibility for unemployment 42 compensation, including any administrative or judicial appeal. 43

[4060] 8 1 (6) Voluntary retirement. If the commission finds that he 2 voluntarily retired from his most recent work bona fide employer 3 with the ineligibility beginning with the effective date of his claim 4 and continuing for the duration of his unemployment and until the 5 individual submits satisfactory evidence of having had new 6 employment and of having earned wages of not less than eight ten 7 times his weekly benefit amount as defined in Section 413540. 8 For the purpose of this section ‘most recent work’ means the work 9 from which the individual retired regardless of any work 10 subsequent to his retirement in which he earned less than eight 11 times his weekly benefit amount.” 12 13 SECTION 10. Section 4135120 of the 1976 Code, as last 14 amended by Act 50 of 2005, is further amended by adding at the 15 end: 16 17 “(7)(a) Separation wages. A week subsequent to a separation, 18 a layoff, or a reductioninforce, whether announced as ‘voluntary’ 19 or not, in which an individual receives or will receive as a 20 condition of his separation from employment, remuneration in the 21 form of: 22 (i) wages instead of notice; 23 (ii) terminal leave pay; 24 (iii) severance pay; or 25 (iv) dismissal payments by whatever name, regardless of 26 whether the remuneration is voluntary or required by terms of the 27 reductioninforce, a labor contract, or other agreement. 28 (b) If the remuneration is less than the benefits which would 29 otherwise be due, he is entitled to receive for that week, if 30 otherwise eligible, benefits reduced by the amount of the 31 remuneration pursuant to the calculation provided for in Section 32 413560. In the case of lump sum payments, the payments must be 33 prorated by weeks on the basis of the most recent weekly wage of 34 the individual from the paying employer.” 35 36 SECTION 11. This act takes effect upon approval by the 37 Governor. 38 XX 39

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