ENROLLED
H. B. 301
(By Mr. Speaker, Mr. Thompson, and Delegate Armstead)
[By Request of the Executive]
[Passed August 12, 2009; in effect from passage.]
AN ACT to amend and reenact §21A-6A-1, §21A-6A-5 and §21A-6A-6 of
the Code of West Virginia, 1931, as amended, all relating to
extended unemployment compensation benefits; providing for a
temporary "state 'on' indicator" based on the average rate of
total unemployment; providing for temporary increases in the
extended benefit period and total extended benefit amount
during a high unemployment period; making technical amendments
throughout; and correcting nomenclature throughout.
Be it enacted by the Legislature of West Virginia:
That §21A-6A-1, §21A-6A-5 and §21A-6A-6 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 6A. EXTENDED BENEFITS PROGRAM.
§21A-6A-1. Definitions.
As used in this article, unless the context clearly requires otherwise:
(1) "Extended benefit period" means a period which:
(A) Begins with the third week after a week for which there is
a state "on" indicator; and
(B) Ends with either of the following weeks, whichever occurs
later:
(i) The third week after the first week for which there is a
state "off" indicator; or
(ii) The thirteenth consecutive week of such period. However,
for periods beginning in a "high unemployment period," as
determined in accordance with subdivision (3), section five of this
article, paragraph (B)(ii) of this subdivision shall be applied by
substituting "twentieth" for "thirteenth."
Notwithstanding the foregoing provisions of this subdivision,
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) After September 25, 1982, there is a "state 'on'
indicator" for this state for a week if the commissioner
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 article:
(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 five percent.
(C) An extended benefit period shall be made hereunder as if
subdivision (2) did not contain paragraph (A) thereof, but only if
the commissioner determines that the rate of insured unemployment
(not seasonally adjusted) equals or exceeds six percent.
(3) For weeks of unemployment beginning on or after February
1, 2009, and ending on or before December 5, 2009, or, if the
application of section 2005(a) of Title II of Division B of the
American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5,
123 Stat. 115 (2009)("ARRA") is extended by act of Congress, ending
on or before a date to be determined by the commissioner not to
exceed the extended application of section 2005(a) of the ARRA,
there is a "state 'on' indicator" for this state for a week if the
commissioner determines, in accordance with regulations of the
United States Secretary of Labor, that:
(A) The average rate of total unemployment (seasonally
adjusted) 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 for
the three-month period specified in paragraph (A) of this subdivision equals or exceeds one hundred ten percent of such
average for either or both of the corresponding three-month periods
ending in the two preceding calendar years.
(4) There is a state "off" indicator for a week if, for the
period consisting of such week and the immediately preceding twelve
weeks, none of the options specified in either subdivision (2) or
subdivision (3) result in a "state 'on' indicator."
(5) "Rate of insured unemployment" 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 commissioner on the basis of his or her reports
to the United States Secretary of Labor, by
(B) 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.
(6) "Regular benefits" means benefits payable to an individual
under this chapter or under any other state law (including benefits
payable to federal civilian employees and to ex-servicemen pursuant
to 5 U.S.C., chapter 85) other than extended benefits.
(7) "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 or her
eligibility period.
(8) "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. Notwithstanding any provision of this code
to the contrary, an individual's eligibility period shall include
any eligibility period provided in section 2005(b) of the ARRA.
(9) "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 which were available to him or her under this chapter 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
subdivision, an individual shall be deemed to have received all of
the regular benefits which were available to him or her although
(i) as a result of a pending appeal with respect to wages or
employment which were not considered in the original monetary
determination in his or her benefit year, he or she may
subsequently be determined to be entitled to added regular
benefits, or (ii) he or she may be entitled to regular benefits with respect to future weeks of unemployment, but such benefits are
not payable with respect to such week of unemployment by reason of
the provisions of section one-a, article six of this chapter; or
(B) His or her benefit year having expired prior to such week,
has no, or insufficient, wages or employment on the basis of which
he or she could establish a new benefit year which would include
such week; and
(C) Has no right to unemployment benefits or allowances, as
the case may be, under the Railroad Unemployment Insurance Act, 45
U.S.C., §361,
et seq., the Trade Expansion Act of 1962, 19 U.S.C.,
§1801,
et seq., the Automotive Products Trade Act of 1965, 19
U.S.C., §2001,
et seq., 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 the Virgin
Islands or 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.
(10) "State law" means the unemployment insurance law of any
state, approved by the United States Secretary of Labor under 26
U.S.C., §3304.
(11) No individual shall be entitled to extended benefits
during a period of unemployment if he or she was disqualified under the provisions of subdivision (1), (2) or (3) of section three,
article six of this chapter, which disqualification shall not be
terminated until such individual has returned to covered employment
and has been employed in covered employment for at least thirty
working days.
(12)(A) Notwithstanding any other provisions of this section,
an individual shall be ineligible for payment of extended benefits
for any week of unemployment in his or her eligibility period if
the commissioner finds that during such period:
(i) He or she failed to accept an offer of suitable work or
failed to apply for suitable work (as defined under subdivision
(12)(C) of this section), to which he or she was referred by the
commissioner; or
(ii) He or she failed to actively engage in seeking work as
prescribed under subdivision (12)(E) of this section.
(B) An individual who has been found ineligible for extended
benefits by reason of the provisions in subdivision (12)(A) of this
section shall also be denied benefits beginning with the first day
of the week following the week in which such failure occurred and
until he or she has been employed in each of four subsequent weeks
(whether or not consecutive) and has earned remuneration equal to
not less than four times the extended weekly benefit amount;
(C) For purposes of this subdivision the term "suitable work"
means, with respect to any individual, any work which is within such individual's capabilities:
Provided, That the gross average
weekly remuneration payable for the work must exceed the sum of:
(i) The individual's average weekly benefit amount (as
determined under subdivision (12)(D) of this section) plus;
(ii) The amount, if any, of supplemental unemployment benefits
(as defined in 26 U.S.C., §501(c)(17)(D)) payable to such
individual for such week; and further,
(iii) Pays wages equal to the higher of:
(I) The minimum wages provided by 29 U.S.C., §206(a)(1),
without regard to any exemption; or
(II) The state or local minimum wage;
(iv) Provided that no individual shall be denied extended
benefits for failure to accept an offer or referral to any job
which meets the definition of suitability as described above if:
(I) The position was not offered to such individual in writing
and was not listed with the employment service; or
(II) Such failure could not result in a denial of benefits
under the definition of suitable work for regular benefit claimants
in section five, article six of this chapter, to the extent that
the criteria of suitability in that section are not inconsistent
with the provisions of this subdivision; or
(III) The individual furnishes satisfactory evidence to the
commissioner that his or her prospects for obtaining work in his or
her customary occupation within a reasonably short period are good. If such evidence is deemed satisfactory for this purpose, the
determination of whether any work is suitable with respect to such
individual shall be made in accordance with the definition of
suitable work in section five, article six of this chapter, without
regard to the definition specified in this subdivision.
(D) Notwithstanding the provisions of this section to the
contrary, no work shall be deemed to be suitable work for an
individual which does not accord with the labor standard provisions
required by 26 U.S.C., §3304(a)(5) and set forth herein under
subdivision (12)(C)(iii)(I) of this section.
(E) For the purposes of subdivision (12)(A)(ii) of this
section an individual shall be treated as actively engaged in
seeking work during any week if:
(i) The individual has engaged in a systematic and sustained
effort to obtain work during such week, and
(ii) The individual furnishes tangible evidence that he or she
has engaged in such effort during such week.
(F) The employment service shall refer any claimant entitled
to extended benefits under this article to any suitable work which
meets the criteria prescribed in subdivision (12)(C) of this
section.
(G) An individual shall not be eligible to receive extended
benefits with respect to any week of unemployment in his or her
eligibility period if such individual has been disqualified for regular benefits under this chapter because he or she voluntarily
left work, was discharged for misconduct or refused an offer of
suitable work unless the disqualification imposed for such reasons
has been terminated in accordance with specific conditions
established under this subdivision requiring the individual to
perform service for remuneration subsequent to the date of such
disqualification.
(13) Notwithstanding any other provisions of this chapter, 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 section, 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 any amounts as trade readjustment allowances
within that benefit year, multiplied by the individual's weekly
benefit amount for extended benefits.
(14) An unemployed individual shall be eligible to receive
benefits with respect to any week only if it has been found that he
or she has been paid wages by an employer who was subject to the
provisions of this chapter during the base period of his or her
current benefit year in an amount at least equal to forty times his
or her benefit rate for total unemployment.
(15) The provisions of subdivisions (11) and (12) of this section shall not apply at any time should such provisions be
temporarily or permanently suspended by federal law. If these
provisions are suspended by federal law, the provisions of state
law which apply to claims for and the payment of regular benefits
shall apply to claims for and the payment of extended benefits.
§21A-6A-5. Total extended benefit amount.
The total extended benefit amount payable to an eligible
individual with respect to his or her applicable benefit year shall
be the least of the following amounts:
(1) Fifty percent of the total amount of regular benefits
which were payable to him or her under this chapter in his or her
applicable benefit year;
(2) Thirteen times his or her weekly benefit amount which was
payable to him or her under this chapter for a week of total
unemployment in the applicable benefit year: Provided, That an
individual filing for extended benefits through the interstate
benefit payment plan and residing in a state where an extended
benefit period is not in effect shall be limited to payment for
only the first two weeks of such extended benefits: Provided,
however, That 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 an order issued under
section 252 of the Balanced Budget and Emergency Deficit Control
Act of 1985, 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 section four, article six-a of this chapter in the weekly
amounts paid to the individual.
(3)(A) For weeks beginning in a high unemployment period,
subdivision (1) of this section shall be applied by substituting
"eighty percent" for "fifty percent" and subdivision (2) of this
section shall be applied by substituting "twenty" for "thirteen."
(B)
For the purposes of this article,
the term "high
unemployment period" means any period during which the provisions
of subdivision (3), section one of this article would result in a
"state 'on' indicator" if subdivision (3), section one of this
article were applied by substituting "eight percent" for "six and
one-half percent."
§21A-6A-6. Beginning and termination of extended benefit period.
(1) Whenever an extended benefit period is to become effective
in this state, or in all states, as a result of a state or a
national "on" indicator, or an extended benefit period is to be
terminated in this state as a result of a state "off" indicator or
state and national "off" indicators, the commissioner shall make an
appropriate public announcement.
(2) Computations required by the provisions of subdivision
(5), section one of this article shall be made by the commissioner,
in accordance with regulations prescribed by the United States Secretary of Labor.
(3) Whenever, during a period when emergency unemployment
compensation benefits are being paid under the provisions of the
Emergency Unemployment Compensation Act of 1991, as amended, or
under any subsequent extension or reenactment thereof, the state
"on" indicator as defined in subdivisions (2) or (3) of section one
of this article triggers on a period of extended benefits, the
Governor of this state may elect to not implement the state
statutory provision and continue the payment of benefits under the
Emergency Unemployment Compensation Act of 1991, as amended, to
those individuals who have exhausted their entitlement to regular
unemployment compensation under state law.