H. B. 4363
(By Delegates Caputo, Longstreth, Manchin)
[Introduced
February 5, 2010
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §21A-6-3 of the Code of West Virginia,
1931, as amended, relating to removing the receipt of an
annuity, pension or other retirement pay as a disqualification
for unemployment compensation benefits.
Be it enacted by the Legislature of West Virginia:
That §21A-6-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-3. Disqualification for benefits.
Upon the determination of the facts by the commissioner, an
individual
shall be is disqualified for benefits:
(1) For the week in which he or she left his or her most
recent work voluntarily without good cause involving fault on the
part of the employer and until the individual returns to covered
employment and has been employed in covered employment at least thirty working days.
For the purpose of this subdivision, an individual
shall has
not
be deemed to have left his or her most recent work voluntarily
without good cause involving fault on the part of the employer, if
such the individual leaves his or her most recent work with an
employer and if he or she in fact, within a fourteen-day calendar
period, does return to employment with the last preceding employer
with whom he or she was previously employed within the past year
prior to his or her return to workday, and which last preceding
employer, after having previously employed
such the individual for
thirty working days or more, laid off
such the individual because
of lack of work, which layoff occasioned the payment of benefits
under this chapter or could have occasioned the payment of benefits
under this chapter had
such the individual applied for such
benefits. It is the intent of this paragraph to cause no
disqualification for benefits for
such an individual who complies
with the foregoing set of requirements and conditions. Further,
for the purpose of this subdivision, an individual
shall has not
be
deemed to have left his or her most recent work voluntarily without
good cause involving fault on the part of the employer, if
such the
individual was compelled to leave his or her work for his or her
own health-related reasons and notifies the employer prior to
leaving the job or within two business days after leaving the job
or as soon as practicable and presents written certification from
a licensed physician within thirty days of leaving the job that his or her work aggravated, worsened or will worsen the individual's
health problem.
(2) For the week in which he or she was discharged from his or
her most recent work for misconduct and the six weeks immediately
following such week; or for the week in which he or she was
discharged from his or her last thirty-day employing unit for
misconduct and the six weeks immediately following
such that week.
Such The disqualification
shall carry carries a reduction in the
maximum benefit amount equal to six times the individual's weekly
benefit. However, if the claimant returns to work in covered
employment for thirty days during his or her benefit year, whether
or not
such the days are consecutive, the maximum benefit amount
shall be increased by the amount of the decrease imposed under the
disqualification; except that:
If he or she were discharged from his or her most recent work
for one of the following reasons, or if he or she were discharged
from his or her last thirty days employing unit for one of the
following reasons: Gross misconduct consisting of willful
destruction of his or her employer's property; assault upon the
person of his or her employer or any employee of his or her
employer; if
such the assault is committed at
such the individual's
place of employment or in the course of employment; reporting to
work in an intoxicated condition, or being intoxicated while at
work; reporting to work under the influence of any controlled
substance, as defined in chapter sixty-a of this code without a valid prescription, or being under the influence of any controlled
substance, as defined in
said that chapter without a valid
prescription, while at work; adulterating or otherwise manipulating
a sample or specimen in order to thwart a drug or alcohol test
lawfully required of an employee; refusal to submit to random
testing for alcohol or illegal controlled substances for employees
in safety sensitive positions as defined in section two, article
one-d, chapter twenty-one of this code; arson, theft, larceny,
fraud or embezzlement in connection with his or her work; or any
other gross misconduct, he or she shall be and remain disqualified
for benefits until he or she has thereafter worked for at least
thirty days in covered employment:
Provided, That for the purpose
of this subdivision, the words "any other gross misconduct"
shall
include includes, but
is not
be limited to, any act or acts of
misconduct where the individual has received prior written warning
that termination of employment may result from such act or acts.
(3) For the week in which he or she failed without good cause
to apply for available, suitable work, accept suitable work when
offered, or return to his or her customary self-employment when
directed to do so by the commissioner, and for the four weeks which
immediately follow for
such the additional period as any offer of
suitable work
shall continue continues open for his or her
acceptance.
Such The disqualification
shall carry carries a
reduction in the maximum benefit amount equal to four times the
individual's weekly benefit amount.
(4) For a week in which his or her total or partial
unemployment is due to a stoppage of work which exists because of
a labor dispute at the factory, establishment or other premises at
which he or she was last employed, unless the commissioner is
satisfied that he or she: (1) Was not participating, financing or
directly interested in
such the dispute; and (2) did not belong to
a grade or class of workers who were participating, financing or
directly interested in the labor dispute which resulted in the
stoppage of work.
No A disqualification under this subdivision
shall may not be imposed if the employees are required to accept
wages, hours or conditions of employment substantially less
favorable than those prevailing for similar work in the locality,
or if employees are denied the right of collective bargaining under
generally prevailing conditions, or if an employer shuts down his
or her plant or operation or dismisses his or her employees in
order to force wage reduction, changes in hours or working
conditions. For the purpose of this subdivision if
any a stoppage
of work continues longer than four weeks after the termination of
the labor dispute which caused stoppage of work, there
shall be is
a rebuttable presumption that part of the stoppage of work which
exists after a period of four weeks after the termination of the
labor dispute did not exist because of the labor dispute; and in
that event the burden
shall be is upon the employer or other
interested party to show otherwise.
(5) For a week with respect to which he or she is receiving or has received:
(a) Wages in lieu of notice;
(b) Compensation for temporary total disability under the
workers' compensation law of any state or under a similar law of
the United States; or
(c) Unemployment compensation benefits under the laws of the
United States or any other state.
(6) For the week in which an individual has voluntarily quit
employment to marry or to perform any marital, parental or family
duty, or to attend to his or her personal business or affairs and
until the individual returns to covered employment and has been
employed in covered employment at least thirty working days.
(7) Benefits
shall may not be paid to
any an individual on the
basis of any services, substantially all of which consist of
participating in sports or athletic events or training or preparing
to so participate, for any week which commences during the period
between two successive sport seasons (or similar periods) if
such
the individual performed
such the services in the first of
such the
seasons (or similar periods) and there is a reasonable assurance
that
such the individual will perform
such the services in the
later of
such the seasons (or similar periods).
(8)(a) Benefits
shall may not be paid on the basis of services
performed by an alien unless
such the alien is an individual who
was lawfully admitted for permanent residence at the time
such the
services were performed, was lawfully present for purposes of performing
such the services or was permanently residing in the
United States under color of law at the time
such the services were
performed (including an alien who is lawfully present in the United
States as a result of the application of the provisions of Section
203(a)(7) or Section 212(d)(5) of the Immigration and Nationality
Act)
: Provided, That
any modifications to the provisions of
Section 3304(a)(14) of the federal Unemployment Tax Act as provided
by Public Law 94-566 which specify other conditions or other
effective date than stated herein for the denial of benefits based
on services performed by aliens and which modifications are
required to be implemented under state law as a condition for full
tax credit against the tax imposed by the federal Unemployment Tax
Act
shall be deemed are applicable under the provisions of this
section;
(b) Any data or information required of individuals applying
for benefits to determine whether benefits are not payable to them
because of their alien status shall be uniformly required from all
applicants for benefits;
(c) In the case of an individual whose application for
benefits would otherwise be approved, no determination that
benefits to
such the individual are not payable because of his or
her alien status
shall may be made except upon a preponderance of
the evidence.
(9) For each week in which an individual is unemployed
because, having voluntarily left employment to attend a school, college, university or other educational institution, he or she is
attending
such the school, college, university or other educational
institution, or is awaiting entrance thereto or is awaiting the
starting of a new term or session thereof, and until the individual
returns to covered employment.
(10) For each week in which he or she is unemployed because of
his or her request, or that of his or her duly authorized agent,
for a vacation period at a specified time that would leave the
employer no other alternative but to suspend operations.
(11) In the case of an individual who accepts an early
retirement incentive package, unless he or she: (i) Establishes a
well-grounded fear of imminent layoff supported by definitive
objective facts involving fault on the part of the employer; and
(ii) establishes that he or she would suffer a substantial loss by
not accepting the early retirement incentive package.
(12) For each week with respect to which he or she is
receiving or has received benefits under Title II of the Social
Security Act or similar payments under any act of Congress, or
remuneration in the form of an annuity, pension or other retirement
pay from a base period employer or chargeable employer or from any
trust or fund contributed to by a base period employer or
chargeable employer or any combination of the above, the weekly
benefit amount payable to such individual for such week shall be
reduced (but not below zero) by the prorated weekly amount of said
benefits, payments or remuneration: Provided, That if such amount of benefits is not a multiple of $1, it shall be computed to the
next lowest multiple of $1: Provided, however, That there shall be
no disqualification if in the individual's base period there are no
wages which were paid by the base period employer or chargeable
employer paying such remuneration, or by a fund into which the
employer has paid during said base period: Provided further, That
notwithstanding any other provision of this subdivision to the
contrary, the weekly benefit amount payable to such individual for
such week shall not be reduced by any retirement benefits he or she
is receiving or has received under Title II of the Social Security
Act or similar payments under any act of Congress. Claimant may be
required to certify as to whether or not he or she is receiving or
has been receiving remuneration in the form of an annuity, pension
or other retirement pay from a base period employer or chargeable
employer or from a trust fund contributed to by a base period
employer or chargeable employer.
(13) (12) For each week in which and for fifty-two weeks
thereafter, beginning with the date of the decision, if the
commissioner finds
such the individual who within twenty-four
calendar months immediately preceding
such the decision, has made
a false statement or representation knowing it to be false or
knowingly fails to disclose a material fact, to obtain or increase
any benefit or payment under this article:
Provided, That
disqualification under this subdivision
shall does not preclude
prosecution under section seven, article ten of this chapter.
NOTE: The purpose of this bill is to remove the receipt of an
annuity, pension or other retirement pay as a disqualification for
unemployment compensation benefits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.