WEST virginia Legislature
2017 regular session
Introduced
House Bill 3016
By Delegates Walters, Ambler, Cooper and Harshbarger
[Introduced March 14,
2017; 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; and to amend said code by adding thereto a new section, designated §21A-6-18, all relating to domestic violence victims' eligibility for unemployment compensation benefits; removing disqualification for certain victims of domestic violence, sexual offenses or stalking; providing employer is not chargeable for benefits under certain circumstances, and requiring training of WorkForce West Virginia employees in the nature and dynamics of domestic violence to aid employees who interact with claimants.
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; and that said code be amended by adding thereto a new section, designated §21A-6-18, all 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 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 has not left his or her most recent work voluntarily
without good cause involving fault on the part of the employer, if 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 the individual for thirty working
days or more, laid off 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 the individual applied for
benefits. It is the intent of this paragraph to cause no disqualification for
benefits for an individual who complies with the foregoing set of requirements
and conditions. Further, for the purpose of this subdivision, an individual
has not left his or her most recent work voluntarily without good cause
involving fault on the part of the employer, if the individual was compelled to
leave his or her work: for his or her own
(A) For 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; or
(B) Due to circumstances directly resulting from:
(I) Domestic violence, as defined in section two hundred two, article twenty-seven, chapter forty-eight of this code;
(II) A sexual offense in article eight-b, chapter sixty-one of this code; or
(III) Stalking as provided in section nine-a, article two, chapter sixty-one of this code by a family or household member as defined in section two hundred four, article twenty-seven, chapter forty-eight of this code; and
(IV) The benefits payable under this paragraph (B) shall be paid from the fund provided under the provisions of article eight of this chapter and are not chargeable to the employer.
(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 that 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 that week. The disqualification 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 the days are consecutive, the maximum benefit amount is 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 the assault is
committed at 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 chapter sixty-a 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 is 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" includes, but is not limited to, any act or acts of misconduct
where the individual has received prior written warning that termination of
employment may result from the act or acts: Provided, however,
That "misconduct" does not include any discharge due to circumstances
directly resulting from domestic violence, as defined in section two hundred
two, article twenty-seven, chapter forty-eight of this code; a sexual offense
in article eight-b, chapter sixty-one of this code; or stalking as defined by
section nine-a, article two, chapter sixty-one of this code by a family or
household member as defined in section two hundred four, article twenty-seven,
chapter forty-eight of this code.
(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 additional period as any offer of suitable work shall continue open for his or her acceptance. The disqualification 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) (A) Was not participating, financing or directly
interested in the dispute; and (2) (B) 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 disqualification
under this subdivision is 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 stoppage of work
continues longer than four weeks after the termination of the labor dispute
which caused stoppage of work, there 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 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) (A) Wages in lieu of notice;
(b) (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) (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: Provided, That an individual who has voluntarily quit employment to accompany a spouse serving in active military service who has been reassigned from one military assignment to another is not disqualified for benefits pursuant to this subdivision: Provided, however, That the account of the employer of an individual who leaves the employment to accompany a spouse reassigned from one military assignment to another may not be charged.
(7) Benefits may not be paid
to any 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 the individual
performed the services in the first of the seasons (or similar periods) and
there is a reasonable assurance that the individual will perform the services
in the later of the seasons (or similar periods).
(8) (a) (A)
Benefits may not be paid on the basis of services performed by an alien unless
the alien is an individual who was lawfully admitted for permanent residence at
the time the services were performed, was lawfully present for purposes of
performing the services or was permanently residing in the United States under
color of law at the time 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
in this subdivision 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 are applicable under the provisions of this section.
(b) (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) (C) In the case of an individual whose
application for benefits would otherwise be approved, no determination that
benefits to the individual are not payable because of his or her alien status
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 that 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) (A) Establishes a well-grounded fear of imminent layoff
supported by definitive objective facts involving fault on the part of the
employer; and (ii) (B) 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 the individual for that week shall be reduced (but not below zero) by the prorated weekly amount of those benefits, payments or remuneration: Provided, That if the amount of benefits is not a multiple of $1, it shall be computed to the next lowest multiple of $1: Provided, however, That there is 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 the remuneration, or by a fund into which the employer has paid during the base period: Provided further, That notwithstanding any other provision of this subdivision to the contrary, the weekly benefit amount payable to the individual for that week may 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. A 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) For each week in which and for fifty-two weeks thereafter, beginning with the date of the decision, if the commissioner finds the individual who within twenty-four calendar months immediately preceding 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 does not preclude prosecution under section seven, article ten of this chapter.
§21A-6-18. Administration of domestic violence claims.
The Executive Director of WorkForce West Virginia shall:
(1) Promulgate procedural rules providing for the confidentiality of information, including without limitation, addresses and contact information obtained in evaluating claims for domestic violence, sexual offenses and stalking by family or household members; and
(2) Establish and implement a training curriculum addressing the nature and dynamics of domestic violence to aid employees who interact with claimants:
(A) In determining whether a claimant's separation stems from domestic violence, a sexual offense or stalking by family or household members; and
(B) In reliably screening, identifying and adjudicating those claims.
NOTE: The purpose of this bill is to prevent an individual from being disqualified from receiving unemployment compensation benefits when their separation from employment is due to domestic violence, sexual offenses or stalking by family or household members. The bill provides that the employer is not chargeable for benefits paid when the separation from work is for those reasons.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.