SECOND REGULAR SESSION

SENATE COMMITTEE SUBSTITUTE FOR

HOUSE COMMITTEE SUBSTITUTE FORHOUSE BILL NO. 1544

95TH GENERAL ASSEMBLY


 

     Reported from the Committee on Small Business, Insurance and Industry, February 25, 2010, with recommendation that the Senate Committee Substitute do pass.

 

TERRY L. SPIELER, Secretary.

4246S.04C


 

AN ACT

To repeal sections 288.062 and 288.500, RSMo, and to enact in lieu thereof two new sections relating to unemployment compensation, with an emergency clause.


 

Be it enacted by the General Assembly of the State of Missouri, as follows:

            Section A.  Sections 288.062 and 288.500, RSMo, are repealed and two new sections enacted in lieu thereof, to be known as sections 288.062 and 288.500, to read as follows:

            288.062.  1.  As used in this section, unless the context clearly requires otherwise:

            (1)  "Extended benefit period" means a period which begins with the third week after a week for which there is a state "on" indicator, and ends with either of the following weeks, whichever occurs later:

            (a)  The third week after the first week for which there is a state "off" indicator; or

            (b)  The thirteenth consecutive week of such period; provided, that no extended benefit period may begin by reason of a state "on" indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state;

            (2)  There is a "state 'on' indicator" for this state for a week if the director 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 rate of insured unemployment (not seasonally adjusted) under this law:

            (a)  Equaled or exceeded one hundred twenty percent 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 four percent for weeks beginning prior to or on September 25, 1982, or five percent for weeks beginning after September 25, 1982; except that, if the rate of insured unemployment as contemplated in this subdivision equals or exceeds five percent for weeks beginning prior to or on September 25, 1982, or six percent for weeks beginning after September 25, 1982, the determination of an "on" indicator shall be made under this subdivision as if this subdivision did not contain the provisions of paragraph (a) of this subdivision; [and] or

            (c)  With respect to weeks of unemployment beginning on or after February 1, 2009, and ending on or before [December 5, 2009] the week ending four weeks prior to the last week of unemployment for which one hundred percent federal sharing is available under the provisions of Public Law 111-5, Section 2005(a) or March 3, 2011, whichever should occur first:

            a.  The average rate of total unemployment in the state (seasonally adjusted), as determined by the United States Secretary of Labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds six and one-half percent; and

            b.  The average rate of total unemployment in the state (seasonally adjusted), as determined by the United States Secretary of Labor, for the three-month period referred to in subparagraph a. of this paragraph, equals or exceeds one hundred and ten percent of such average for either or both of the corresponding three-month periods ending in the two preceding calendar years;

            (3)  There is a "state 'off' indicator" for this state for a week if the director 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 rate of insured unemployment (not seasonally adjusted) under this law:

            (a)  Was less than one hundred twenty percent of the average of such rates for the corresponding thirteen-week period ending in each of the preceding two calendar years; or

            (b)  Was less than four percent (five percent for weeks beginning after September 25, 1982); except, there shall not be an "off" indicator for any week in which an "on" indicator as contemplated in paragraph (b) of subdivision (2) of this subsection exists;

            (4)  "Rate of insured unemployment", for the purposes of subdivisions (2) and (3) of this subsection, means the percentage derived by dividing:

            (a)  The average weekly number of individuals filing claims for regular compensation in this state for weeks of unemployment with respect to the most recent thirteen-consecutive-week period, as determined by the director on the basis of his or her reports to the United States Secretary of Labor, by

            (b)  The average monthly employment covered under this law for the first four of the most recent six completed calendar quarters ending before the end of such thirteen-week period;

            (5)  "Regular benefits" means benefits payable to an individual under this law or under any other state law (including benefits payable to federal civilian employees and ex-servicemen pursuant to 5 U.S.C. Chapter 85) other than extended benefits;

            (6)  "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 section for weeks of unemployment in his or her eligibility period;

            (7)  "Eligibility period" of an individual means the period consisting of the weeks in his or her benefit year which begin in an extended benefit period and, if his or her benefit year ends within such extended benefit period, any weeks thereafter which begin in such period;

            (8)  "Exhaustee" means an individual who, with respect to any week of unemployment in his or her eligibility period:

            (a)  Has received, prior to such week, all of the regular benefits that were available to him or her under this law or any other state law (including dependents' allowances and benefits payable to federal civilian employees and ex-servicemen under 5 U.S.C. Chapter 85) in his or her current benefit year that includes such week; provided, that, for the purposes of this paragraph, an individual shall be deemed to have received all of the regular benefits that were available to him or her although as a result of a pending appeal with respect to wages or employment, or both, that were not considered in the original monetary determination in his or her benefit year, he may subsequently be determined to be entitled to added regular benefits; or

            (b)  Has received, prior to such week, all the regular compensation available to him or her in his or her current benefit year that includes such week under the unemployment compensation law of the state in which he or she files a claim for extended compensation or the unemployment compensation law of any other state after a cancellation of some or all of his or her wage credits or the partial or total reduction of his or her right to regular compensation; or

            (c)  His or her benefit year having expired prior to such week, he or she has insufficient wages or employment, or both, on the basis of which he or she could establish in any state a new benefit year that would include such week, or having established a new benefit year that includes such week, he or she is precluded from receiving regular compensation by reason of a state law provision which meets the requirement of section 3304(a)(7) of the Internal Revenue Code of 1954; and

            (d)  a.  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

            b.  Has not received and is not seeking unemployment benefits under the unemployment compensation law of Canada; but if he or she is seeking such benefits and the appropriate agency finally determines that he or she is not entitled to benefits under such law he or she is considered an exhaustee;

            (9)  "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 of 1954.  

            2.  Except when the result would be inconsistent with the other provisions of this section, as provided in the regulations of the director, the provisions of this law which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits.  

            3.  An individual shall be eligible to receive extended benefits with respect to any week of unemployment in his or her eligibility period only if the deputy finds that with respect to such week:

            (1)  He or she is an exhaustee as defined in subdivision (8) of subsection 1 of this section;

            (2)  He or she has satisfied the requirements of this law 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; except that, in the case of a claim for benefits filed in another state, which is acting as an agent state under the Interstate Benefits Payment Plan as provided by regulation, which claim is based on benefit credits accumulated in this state, eligibility for extended benefits shall be limited to the first two compensable weeks unless there is an extended benefit period in effect in both this state and the agent state in which the claim was filed;

            (3)  The other provisions of this law notwithstanding, as to new extended benefit claims filed after September 25, 1982, an individual shall be eligible to receive extended benefits with respect to any week of unemployment in his or her eligibility period only if the deputy finds that the total wages in the base period of his or her benefit year equal at least one and one-half times the wages paid during that quarter of his or her base period in which his or her wages were highest.  

            4.  A claimant shall not be eligible for extended benefits following any disqualification imposed under subsection 1 or 2 of section 288.050, unless subsequent to the effective date of the disqualification, the claimant has been employed during at least four weeks and has earned wages equal to at least four times his or her weekly benefit amount.  

            5.  For the purposes of determining eligibility for extended benefits, the term "suitable work" means any work which is within such individual's capabilities except that, if the individual furnishes satisfactory evidence that the prospects for obtaining work in his or her customary occupation within a reasonably short period are good, the determination of what constitutes suitable work shall be made in accordance with the provisions of subdivision (3) of subsection 1 of section 288.050.  If a deputy finds that a person who is claiming extended benefits has refused to accept or to apply for suitable work, as defined in this subsection, or has failed to actively engage in seeking work subsequent to the effective date of his or her claim for extended benefits, that person shall be ineligible for extended benefits for the period beginning with the first day of the week in which such refusal or failure occurred.  That ineligibility shall remain in effect until the person has been employed for at least four weeks after the week in which the refusal or failure occurred and has earned wages equal to at least four times his or her weekly benefit amount.  

            6.  Extended benefits shall not be denied under subsection 5 of this section to any individual for any week by reason of a failure to accept an offer of or apply for suitable work if:

            (1)  The gross average weekly remuneration for such work does not exceed the individual's weekly benefit amount plus the amount of any supplemental unemployment benefits, as defined in section 501(c)(17)(d) of the Internal Revenue Code, payable to such individual for such week; or

            (2)  The position was not offered to such individual in writing or was not listed with the state employment service; or

            (3)  If the remuneration for the work offered is less than the minimum wage provided by Section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, without regard to any exemption or any applicable state or local minimum wage, whichever is the greater.  

            7.  For the purposes of this section, an individual shall be considered as actively engaged in seeking work during any week with respect to which the individual has engaged in a systematic and sustained effort to obtain work as indicated by tangible evidence which the individual provides to the division.  

            8.  Extended benefits shall not be denied for failure to apply for or to accept suitable work if such failure would not result in a denial of benefits under subdivision (3) of subsection 1 of section 288.050 to the extent that the provisions of subdivision (3) of subsection 1 of section 288.050 are not inconsistent with the provisions of subsections 5 and 6 of this section.  

            9.  The division shall refer any claimant entitled to extended benefits under this law to any suitable work which meets the criteria established in subsections 5 and 6 of this section.  

            10.  Notwithstanding other provisions of this chapter to the contrary, as to claims of extended benefits, subsections 4 to 9 of this section shall not apply to weeks of unemployment beginning after March 6, 1993, and before January 1, 1995.  Entitlement to extended benefits for weeks beginning after March 6, 1993, and before January 1, 1995, shall be determined in accordance with provisions of this chapter not excluded by this subsection.  

            11.  "Weekly extended benefit amount." The weekly extended benefit amount payable to an individual for a week of total unemployment in his or her eligibility period shall be an amount equal to the weekly benefit amount payable to him or her during his or her applicable benefit year, reduced by a percentage equal to the percentage of the reduction in federal payments to states under Section 204 of the Federal State Extended Unemployment Compensation Act of 1970, in accord with any order issued under any law of the United States.  Such weekly benefit amount, if not a multiple of one dollar, shall be reduced to the nearest lower full dollar amount.  

            12.  (1)  "Total extended benefit amount." The total extended benefit amount payable to any eligible individual with respect to his or her applicable benefit year shall be the lesser of the following amounts:

            (a)  Fifty percent of the total amount of regular benefits which were payable to him or her under this law in his or her applicable benefit year;

            (b)  Thirteen times his or her weekly benefit amount which was payable to him or her under this law for a week of total unemployment in the applicable benefit year.  

            (2)  Notwithstanding subdivision (1) of this subsection, during any fiscal year in which federal payments to states under Section 204 of the Federal State Extended Unemployment Compensation Act of 1970 are reduced under any order issued under any law of the United States, the total extended benefit amount payable to an individual with respect to his or her applicable benefit year shall be reduced by an amount equal to the aggregate of the reductions under subsection 11 of this section in the weekly amounts paid to the individual.  

            (3)  Notwithstanding the other provisions of this subsection, if the benefit year of any individual ends within an extended benefit period, the remaining balance of extended benefits that such individual would, but for this subdivision, 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, but not below zero, by the product of the number of weeks for which the individual received trade readjustment allowances under the Trade Act of 1974, as amended, within that benefit year, multiplied by the individual's weekly benefit amount for extended benefits.  

            (4)  (a)  Effective with respect to weeks beginning in a high unemployment period, subdivision (1) of this subsection shall be applied by substituting:

            a.  Eighty percent for fifty percent in paragraph (a) of subdivision (1) of this subsection; and

            b.  Twenty times for thirteen times in paragraph (b) of subdivision (1) of this subsection.  

            (b)  For purposes of paragraph (a) of this subdivision, the term "high unemployment period" means any period during which an extended benefit period would be in effect if subparagraph a. of paragraph (c) of subdivision (2) of subsection 1 of this section were applied by substituting eight percent for six and one-half percent.  

            13.  (1)  Whenever an extended benefit period is to become effective in this state as a result of a state "on" indicator, or an extended benefit period is to be terminated in this state as a result of a state "off" indicator, the director shall make an appropriate public announcement.  

            (2)  Computations required by the provisions of subdivision (4) of subsection 1 of this section, shall be made by the director, in accordance with regulations prescribed by the United States Secretary of Labor.

            288.500.  1.  There is created under this section a voluntary "Shared Work Unemployment Compensation Program".  In connection therewith, the division may adopt rules and establish procedures, not inconsistent with this section, which are necessary to administer this program.  

            2.  As used in this section, the following terms mean:

            (1)  "Affected unit", a specified department, shift, or other unit of three or more employees which is designated by an employer to participate in a shared work plan;

            (2)  "Division", the division of employment security;

            (3)  "Fringe benefit", health insurance, a retirement benefit received under a pension plan, a paid vacation day, a paid holiday, sick leave, and any other analogous employee benefit that is provided by an employer;

            (4)  "Normal weekly hours of work", as to any individual, the lesser of forty hours or the average obtained by dividing the total number of hours worked per week in the preceding twelve-week period by the number twelve;

            (5)  "Participating employee", an employee who works a reduced number of hours under a shared work plan;

            (6)  "Participating employer", an employer who has a shared work plan in effect;

            (7)  "Shared work benefit", an unemployment compensation benefit that is payable to an individual in an affected unit because the individual works reduced hours under an approved shared work plan;

            (8)  "Shared work plan", a program for reducing unemployment under which employees who are members of an affected unit share the work remaining after a reduction in their normal weekly hours of work;

            (9)  "Shared work unemployment compensation program", a program designed to reduce unemployment and stabilize the work force by allowing certain employees to collect unemployment compensation benefits if the employees share the work remaining after a reduction in the total number of hours of work and a corresponding reduction in wages.  

            3.  An employer who wishes to participate in the shared work unemployment compensation program established under this section shall submit a written shared work plan in a form acceptable to the division for approval.  As a condition for approval by the division, a participating employer shall agree to furnish the division with reports relating to the operation of the shared work plan as requested by the division.  The employer shall monitor and evaluate the operation of the established shared work plan as requested by the division and shall report the findings to the division.  

            4.  The division may approve a shared work plan if:

            (1)  The employer has filed all reports required to be filed under this chapter for all past and current periods and has paid all contributions due for all past and current periods;

            (2)  The shared work plan applies to and identifies a specified affected unit;

            (3)  The employees in the affected unit are identified by name and Social Security number;

            (4)  The shared work plan reduces the normal weekly hours of work for an employee in the affected unit by not less than twenty percent and not more than forty percent;

            (5)  The shared work plan applies to at least ten percent of the employees in the affected unit;

            (6)  The shared work plan describes the manner in which the participating employer treats the fringe benefits of each employee in the affected unit; and

            (7)  The employer certifies that the implementation of a shared work plan and the resulting reduction in work hours is in lieu of temporary layoffs that would affect at least ten percent of the employees in the affected unit and that would result in an equivalent reduction in work hours.  

            5.  If any of the employees who participate in a shared work plan under this section are covered by a collective bargaining agreement, the shared work plan shall be approved in writing by the collective bargaining agent.  

            6.  No shared work plan which will subsidize seasonal employers during the off-season or subsidize employers, at least fifty percent of the employees of which have normal weekly hours of work equaling thirty-two hours or less, shall be approved by the division.  No shared work plan benefits will be initiated when the reduced hours coincide with holiday earnings already committed to be paid by the employer.  Shared work plan benefits may not be denied in any week containing a holiday for which holiday earnings are committed to be paid by the employer unless the shared work benefits to be paid are for the same hours in the same day as the holiday earnings.  

            7.  The division shall approve or deny a shared work plan not later than the thirtieth day after the day on which the shared work plan is received by the division.  The division shall approve or deny a plan in writing.  If the division denies a plan, the division shall notify the employer of the reasons for the denial.  Approval or denial of a plan by the division shall be final and such determination shall be subject to review in the manner otherwise provided by law.  If approval of a plan is denied by the division, the employer may submit a new plan to the division for consideration no sooner than forty-five calendar days following the date on which the division disapproved the employer's previously submitted plan.  

            8.  The division may revoke approval of a shared work plan and terminate the plan if it determines that the shared work plan is not being executed according to the terms and intent of the shared work unemployment compensation program, or if it is determined by the division that the approval of the shared work plan was based, in whole or in part, upon information contained in the plan which was either false or substantially misleading.  

            9.  Each shared work plan approved by the division shall become effective on the first day of the week in which it is approved by the division or on a later date as specified in the shared work plan.  Each shared work plan approved by the division shall expire on the last day of the twelfth full calendar month after the effective date of such shared work plan.  

            10.  An employer may modify a shared work plan created under this section to meet changed conditions if the modification conforms to the basic provisions of the shared work plan as originally approved by the division.  The employer shall report the changes made to the plan in writing to the division at least seven days before implementing such changes.  The division shall reevaluate the shared work plan and may approve the modified shared work plan if it meets the requirements for approval under subsection 4 of this section.  The approval of a modified shared work plan shall not, under any circumstances, affect the expiration date originally set for the shared work plan.  If modifications cause the shared work plan to fail to meet the requirements for approval, the division shall deny approval of the modifications as provided in subsection 7 of this section.  

            11.  Notwithstanding any other provisions of this chapter, an individual is unemployed for the purposes of this section in any week in which the individual, as an employee in an affected unit, works less than his normal weekly hours of work in accordance with an approved shared work plan in effect for that week.  

            12.  An individual who is otherwise entitled to receive regular unemployment insurance benefits under this chapter shall be eligible to receive shared work benefits with respect to any week in which the division finds that:

            (1)  The individual is employed as a member of an affected unit subject to a shared work plan that was approved before the week in question and is in effect for that week;

            (2)  Notwithstanding the provisions of subdivision (2) of subsection 1 of section 288.040, the individual is able to work, available for work and works all available hours with the participating employer;

            (3)  The individual's normal weekly hours of work have been reduced by at least twenty percent but not more than forty percent, with a corresponding reduction in wages; and

            (4)  The individual has served a waiting week as defined in section 288.030.  

            13.  A waiting week served under the provisions of subdivision (3) of subsection 1 of section 288.040 shall serve to meet the requirements of subdivision (4) of subsection 12 of this section and a waiting week served under the provisions of subdivision (4) of subsection 12 of this section shall serve to meet the requirements of section 288.040.  Notwithstanding any other provisions of this chapter, an individual who files a new initial claim during the pendency of the twelve-month period in which a shared work plan is in effect shall serve a waiting week whether or not the individual has served a waiting week under this subsection.  

            14.  The division shall not deny shared work benefits for any week to an otherwise eligible individual by reason of the application of any provision of this chapter that relates to availability for work, active search for work, or refusal to apply for or accept work with an employer other than the participating employer under the plan.  

            15.  The division shall pay an individual who is eligible for shared work benefits under this section a weekly shared work benefit amount equal to the individual's regular weekly benefit amount for a period of total unemployment less any deductible amounts under this chapter except wages received from any employer, multiplied by the full percentage of reduction in the individual's hours as set forth in the employer's shared work plan.  If the shared work benefit amount calculated under this subsection is not a multiple of one dollar, the division shall round the amount so calculated to the next lowest multiple of one dollar.  An individual shall be ineligible for shared work benefits for any week in which the individual performs paid work for the participating employer in excess of the reduced hours established under the shared work plan.  

            16.  An individual shall not be entitled to receive shared work benefits and regular unemployment compensation benefits in an aggregate amount which exceeds the maximum total amount of benefits payable to that individual in a benefit year as provided under section 288.038.  Notwithstanding any other provisions of this chapter, an individual shall not be eligible to receive shared work benefits for more than [twenty-six] fifty-two calendar weeks during the twelve-month period of the shared work plan.  No week shall be counted as a week of unemployment for the purposes of this subsection unless it occurs within the twelve-month period of the shared work plan.  

            17.  Notwithstanding any other provision of this chapter, all benefits paid under a shared work plan which are chargeable to the participating employer or any other base period employer of a participating employee shall be charged to the account of the participating employer under the plan.  

            18.  An individual who has received all of the shared work benefits and regular unemployment compensation benefits available in a benefit year is an exhaustee under section 288.062 and is entitled to receive extended benefits under section 288.062 if the individual is otherwise eligible under that section.

            Section B.  Because immediate action is necessary to help Missourians during economic hardship, section A of this act is deemed necessary for the immediate preservation of the public health, welfare, peace, and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and section A of this act shall be in full force and effect upon its passage and approval.