West Virginia Legislature
2016 Regular Session
Introduced
House Bill 2520
2015 Carryover
(By Delegates Rowan, Border, Campbell, Arvon, Kessinger, Miller and Longstreth)
[Introduced January 13, 2016; 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; 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 Amisconduct@ 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 the present law, and underscoring indicates new language that would be added.
'21A-6-18 is new; therefore, it has been completely underscored .