WEST virginia Legislature
2017 regular session
By
[
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; 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)(i) Due to circumstances directly resulting from:
(I) Domestic violence, as defined in section two hundred two,
article twenty-seven, chapter forty-eight;
(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 by a family or household member as defined in section two
hundred four, article twenty-seven, chapter forty-eight; and
(ii) The individual:
(I) Reasonably fears future domestic violence, a future
sexual offense or stalking at or on route to or from the individual's place of
employment;
(II) Wishes to relocate to another geographic area in order
to avoid future domestic violence, sexual offense or stalking against the
individual, the individual's family, or coworkers;
(III) Reasonably believes that leaving work is necessary for
the future safety of the individual, the individual's family, or coworkers;
(IV) Is required to leave employment as a condition of
receiving services or shelter from an agency which provides support services or
shelter to victims of domestic violence and sexual assault; or
(V) Reasonably believes for any reason related to domestic
violence or a sexual offense that termination of employment is necessary for
the future safety of the individual, the individual's family, or coworkers.
(iii) 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.
(iv) In the event that an employer contests the claim, the
claimant must provide documentation of other action initiated by the claimant
for safety including, but not limited to, a protective order application, a
police report, a medical record or a safety plan from a licensed domestic
violence or sexual assault center or a licensed counselor.
(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;
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 by a
family or household member as defined in section two hundred four, article
twenty-seven, chapter forty-eight.
(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 individual must
seek and accept new suitable work in order to remain eligible for benefits. 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.