Introduced Version
Senate Bill 691 History
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Senate Bill No. 691
(By Senator Bowman)
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[Introduced February 23, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §
21A-5-7
of the code of West Virginia,
1931, as amended, relating to failure to provide wage and
contribution information to the commissioner; and liability
imposed where a failure to submit information or payments
under this chapter is willful.
Be it enacted by the Legislature of West
Virginia:
That §
21A-5-7
of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.
§21A-5-7. Joint and separate accounts.
(1) The commissioner shall maintain a separate account for
each employer, and shall credit his account with all contributions
paid by him or her prior to the first day of July, first, one
thousand nine hundred sixty-one. On and after the first day of July, first, one thousand nine hundred sixty-one, the commissioner
shall maintain a separate account for each employer, and shall
credit said employer's account with all contributions of such
employer in excess of seven tenths of one percent of taxable wages;
and on and after the first day of
July, first, one thousand nine
hundred seventy-one, the commissioner shall maintain a separate
account for each employer, and shall credit said employer's account
with all contributions of such employer in excess of four tenths of
one percent of taxable wages: Provided, That any adjustment made
in any employer's account after the computation date shall not be
used in the computation of the balance of an employer until the
next following computation date: Provided, however, That nothing
in this chapter shall be construed to grant an employer or
individual in his or her service prior claims or rights to the
amounts paid by him into the fund, either on his or her behalf or
on behalf of such individuals. The account of any employer which
had been inactive for a period of four consecutive calendar years
shall be terminated for all purposes.
(2) Benefits paid to an eligible individual for regular and
extended total or partial unemployment beginning after the
effective date of this article shall be charged to the account of
the last employer with whom he or she has been employed as much as
thirty working days, whether or not such days are consecutive:
Provided, That no employer's account shall be charged with benefits paid to any individual who has been separated from a noncovered
employing unit in which he or she was employed as much as thirty
days, whether or not such days are consecutive: Provided, however,
That no employer's account shall be charged with more than fifty
percent of the benefits paid to an eligible individual as extended
benefits under the provisions of article six-a of this chapter:
Provided further, That state and local government employers shall
be charged with one hundred percent of the benefits paid to an
eligible individual as extended benefits. Beginning on July one,
one thousand nine hundred eighty-four, benefits paid to an
individual are to be charged to the accounts of his or her
employers in the base period, the amount of such charges,
chargeable to the account of each such employer, to be that portion
of the total benefits paid such individual as the wages paid him or
her by such employer in the base period are to the total wages paid
him or her during his or her base period for insured work by all
his or her employers in the base period. For the purposes of this
section, no base period employer's account shall be charged for
benefits paid under this chapter to a former employee, provided
such base period employer furnishes separation information within
fourteen days from the date the notice was mailed or delivered,
which results in a disqualification under the provision set forth
in subsection one (1), section three, article six, or subsection
two (2), section three, article six of this chapter or would have resulted in a disqualification under such subsection except for a
subsequent period of covered employment by another employing unit.
Further, no contributory base period employer's experience rating
account shall be charged for benefits paid under this chapter to an
individual who has been continuously employed by that employer on
a part-time basis, if the part-time employment continues while the
individual is separated from other employment and is otherwise
eligible for benefits. One half of extended benefits paid to an
individual after the first day of
July, one, one thousand nine
hundred eighty-four, and subsequent years are to be charged to the
accounts of his or her employers, except state and local government
employers, in the base period in the same manner provided for the
charging of regular benefits. Effective the first day of January,
one thousand nine hundred eighty-eight, the entire state share of
extended benefits paid to an individual shall be charged to the
accounts of his or her base period employers. The provisions of
this section permitting the noncharging of contributory employers'
accounts have no application to benefit charges imposed upon
reimbursable employers.
(3) The commissioner shall, for each calendar year hereafter,
classify employers in accordance with their actual experience in
the payment of contributions on their own behalf and with respect
to benefits charged against their accounts, with a view of fixing
such contribution rates as will reflect such experiences. For the purpose of fixing such contribution rates for each calendar year,
the books of the department shall be closed on July thirty-one of
the preceding calendar year, and any contributions thereafter paid,
as well as benefits thereafter paid with respect to compensable
weeks ending on or before June thirty of the preceding calendar
year, shall not be taken into account until the next annual date
for fixing contribution rates: Provided, That if an employer has
failed to furnish to the commissioner on or before July thirty-one
of such preceding calendar year the wage information for all past
periods necessary for the computation of the contribution rate,
such employer's rate shall be, if it is immediately prior to such
July thirty-one, less than three and three-tenths percent,
increased to three and three-tenths percent: Provided, however,
That any payment made or any information necessary for the
computation of a reduced rate furnished on or before the
termination of an extension of time for such payment or reporting
of such information granted pursuant to a regulation of the
commissioner authorizing such extension, shall be taken into
account for the purposes of fixing contribution rates: Provided
further, That when the time for filing any report or making any
payment required hereunder falls on Saturday, Sunday, or a legal
holiday, the due date shall be deemed to be the next succeeding
business day: And provided further, That whenever, through mistake
or inadvertence, erroneous credits or charges are found to have been made to or against the reserved account of any employer, the
rate shall be adjusted as of the first day of
January one of the
calendar year in which such mistake or inadvertence is discovered,
but payments, made under any rate assigned prior to the first day
of
January one of such year, shall not be deemed to be erroneously
collected.
(4) The commissioner may prescribe regulations for the
establishment, maintenance and dissolution of joint accounts by two
or more employers, and shall, in accordance with such regulations
and upon application by two or more employers to establish such an
account, or to merge their several individual accounts in a joint
account, maintain such joint account as if it constituted a single
employer's account.
(5) State and local government employers are hereby authorized
to enter into joint accounts and to maintain such joint account or
accounts as if it or they constituted a single employer's account
or accounts.
(6) Effective on and after the first day of
July, one, one
thousand nine hundred eighty-one, if an employer has failed to
furnish to the commissioner on or before the thirty-first day of
August, thirty-one of one thousand nine hundred eighty, and each
year thereafter, with the exception of one thousand nine hundred
eighty-one, which due date shall be the thirtieth day of
September,
thirty, one thousand nine hundred eighty-one, the wage information for all past periods necessary for the computation of the
contribution rate, such employer's rate shall be, if it is
immediately prior to the first day of
July, one, one thousand nine
hundred eighty-one, less than seven and five-tenths percent,
increased to seven and five-tenths percent. Effective
on and after
the first day of
July, two thousand four, if an employer has failed
to furnish to the commissioner on or before the thirty-first day of
July, two thousand four and each year thereafter, the wage
information for all past periods necessary for computation of the
contribution rate, or failed to pay all contribution, penalty or
interest due by the date the contribution rate is calculated, such
employer's rate shall be, it is immediately prior to the first day
of July, two thousand four, and each year thereafter, less than
seven and five-tenths percent, increased to seven and five-tenths
percent.
(7) Any officer, director, or employee of a corporation or any
manager, governor, member or employee of a limited liability
company who either individually or jointly has or should have had
control of, supervision over, or responsibility, for the filing of
tax reports or the making of payments under this article, is
personally liable for the payments where failure to file reports or
make payment is willful. For purposes of this subsection, willful
means that reports or payments were knowingly not filed or made.
An evil motive or intent to defraud is not necessary to establish willfulness. The commissioner may assess the officer, director or
employee of a corporation or any manager, governor, member or
employee of a limited liability company for the amount of the
contributions, penalties and interest in accordance with the
collection remedies set forth in this chapter.
NOTE: The purpose for the change is to identify a change in
rate for an employer-where wages and contribution information is
not provided to the commissioner and to impose liability where a
failure to provide information or payments is willful.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.