Pursuits determined or redetermined to be a seasonal

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					                                   South Carolina General Assembly
                                       119th Session, 2011-2012

S. 478

STATUS INFORMATION

General Bill
Sponsors: Senators Ryberg and Rose
Document Path: l:\council\bills\agm\18446ab11.docx
Companion/Similar bill(s): 3286, 3762, 4198

Introduced in the Senate on January 27, 2011
Currently residing in the Senate Committee on Labor, Commerce and Industry

Summary: Unemployment Trust Fund


HISTORY OF LEGISLATIVE ACTIONS

    Date   Body Action Description with journal page number
 1/27/2011 Senate Introduced and read first time (Senate Journal-page 14)
 1/27/2011 Senate Referred to Committee on Labor, Commerce and Industry (Senate
                     Journal-page 14)
 4/14/2011 Senate Committee report: Favorable with amendment Labor, Commerce and Industry
                     (Senate Journal-page 16)
  3/7/2012 Senate Recommitted to Committee on Labor, Commerce and Industry (Senate
                     Journal-page 42)

View the latest legislative information at the LPITS web site


VERSIONS OF THIS BILL

1/27/2011
4/14/2011
 1   Indicates Matter Stricken
 2   Indicates New Matter
 3
 4   COMMITTEE REPORT
 5   April 14, 2011
 6
 7                                                              S. 478
 8
 9                      Introduced by Senator Ryberg
10
11   S. Printed 4/14/11--S.
12   Read the first time January 27, 2011.
13
14
15                         THE COMMITTEE ON
16              LABOR, COMMERCE AND INDUSTRY
17     To whom was referred a Bill (S. 478) to amend Section 41-31-5,
18   Code of Laws of South Carolina, 1976, relating to definitions
19   concerning the rate of contributions to the Unemployment Trust
20   Fund, so, etc., respectfully
21                                REPORT:
22     That they have duly and carefully considered the same and
23   recommend that the same do pass with amendment:
24
25      Amend the bill, as and if amended, page 19, by striking
26   SECTION 17 in its entirety and inserting appropriately numbered
27   new SECTIONS to read:
28      / SECTION ___. Section 41-27-260 of the 1976 Code is
29   amended by adding an appropriately numbered new item to read:
30      “(18) Services performed by a direct seller, provided that:
31         (a) the individual:
32            (i) is engaged in the trade or business of selling or
33   soliciting the sale of consumer products, including, but not limited
34   to, services or other intangibles, to any buyer on a buy-sell basis, a
35   deposit-commission basis, or any similar basis for resale by the
36   buyer or any other person in the home or otherwise than in a
37   permanent retail establishment; or
38            (ii) is engaged in the trade or business of selling or
39   soliciting the sale of consumer products, including, but not limited
40   to, services or other intangibles, in the home or otherwise than in a
41   permanent retail establishment;


     [478-1]
 1         (b) substantially all the remuneration, whether or not paid in
 2   cash, for the performance of the services described in item (a) is
 3   directly related to sales or other output, including, but not limited
 4   to, the performance of services, rather than to the number of hours
 5   worked; and
 6         (c) the services performed by the individual are performed
 7   pursuant to a written contract between the individual and the
 8   person for whom the services are performed and the contract
 9   provides that the individual will not be treated as an employee for
10   federal and state tax purposes.”
11      SECTION ___. Section 41-31-50 of the 1976 Code is amended
12   by adding:
13      “(3) For tax year 2011, no employer shall have a base tax rate
14   higher than the base tax rate for rate class twelve if during the
15   applicable rate computation period, as defined in Section 41-31-5,
16   the employer has been credited with more in tax contributions than
17   have been charged to that employer’s account for benefits.”
18      SECTION ___. Chapter 31, Title 41 of the 1976 Code is
19   amended by adding:
20      “Section 41-31-52. Effective with claims filed on or after
21   January 1, 2012:
22         (1) A seasonal pursuit is one which, because of seasonal
23   conditions making it impracticable or impossible to do otherwise,
24   customarily carries on production operations only within a
25   regularly recurring active period or periods of less than an
26   aggregate of thirty-six weeks in a calendar year. No pursuit shall
27   be considered seasonal until the department makes a determination
28   that the pursuit is seasonal. However, any successor to a seasonal
29   pursuit shall be deemed seasonal unless the successor requests
30   cancellation of the seasonal pursuit status within one hundred
31   twenty days after the acquisition. This provision shall not be
32   applicable to pending cases nor retroactive in effect.
33         (2) Upon application by a pursuit for seasonal pursuit status,
34   the department shall determine or redetermine whether the pursuit
35   is seasonal and, if seasonal, the pursuit’s active period. The
36   department may, on its own motion, redetermine a seasonal
37   pursuit’s active period.         An application for a seasonal
38   determination must be made on forms prescribed by the
39   department and must be made at least thirty days prior to the
40   beginning date of the period of production operations for which a
41   determination is requested.
42         (3) Whenever the department has determined or
43   redetermined a pursuit to be seasonal, the pursuit shall be notified

     [478-2]
 1   immediately, and the notice must contain the beginning and ending
 2   dates of the pursuit’s active period or periods. Pursuits determined
 3   or redetermined to be a seasonal pursuit shall display notices of its
 4   seasonal determination conspicuously on its premises in a
 5   sufficient number of places to be available for inspection by its
 6   workers. The notices shall be furnished by the department.
 7         (4) A seasonal determination must become effective unless
 8   an interested party files an application for review within ten days
 9   of the beginning date of the first period of production operations to
10   which it applies. An application for review shall be an application
11   for a determination of status.
12         (5) All wages paid to a seasonal worker during his base
13   period must be used in determining his weekly benefit amount;
14   provided, however, that all weekly benefit amounts so determined
15   shall be rounded to the nearest lower full dollar amount, if not a
16   full dollar amount.
17         (6)(a) A seasonal worker is eligible to receive benefits based
18   on seasonal wages only for a week of unemployment which
19   occurs, or the greater part of which occurs, within the active period
20   of the seasonal pursuit in which he earned base period wages.
21           (b) A seasonal worker is eligible to receive benefits based
22   on nonseasonal wages for any week of unemployment which
23   occurs during any active period of the seasonal pursuit in which he
24   has earned base period wages; provided he has exhausted benefits
25   based on seasonal wages. The worker is also eligible to receive
26   benefits based on nonseasonal wages for any week of
27   unemployment which occurs during the inactive period or periods
28   of the seasonal pursuit in which he earned base period wages
29   irrespective as to whether he has exhausted benefits based on
30   seasonal wages.
31           (c) The maximum amount of benefits which a seasonal
32   worker is eligible to receive, based on seasonal wages, shall be an
33   amount, adjusted to the nearest multiple of one dollar, determined
34   by multiplying the maximum benefits payable in his benefit year,
35   as provided in Section 41-35-50, by the percentage obtained by
36   dividing the seasonal wages in his base period by all of his base
37   period wages.
38           (d) The maximum amount of benefits which a seasonal
39   worker is eligible to receive based on nonseasonal wages shall be
40   an amount, adjusted to the nearest multiple of one dollar,
41   determined by multiplying the maximum benefits payable in his
42   benefit year, as provided in Section 41-35-50, by the percentage


     [478-3]
 1   obtained by dividing the nonseasonal wages in his base period by
 2   all of his base period wages.
 3           (e) In no case is a seasonal worker eligible to receive a
 4   total amount of benefits in a benefit year in excess of the
 5   maximum benefits payable for such benefit year, as provided in
 6   Section 41-35-50.
 7         (7)(a) All benefits paid to a seasonal worker based on
 8   seasonal wages shall be charged, as prescribed in Section
 9   41-31-20, against the account of his base period employer who
10   paid him such seasonal wages, and for the purpose of this
11   paragraph such seasonal wages shall be deemed to constitute all of
12   his base period wages.
13           (b) All benefits paid to a seasonal worker based on
14   nonseasonal wages shall be charged, as prescribed in Section
15   41-31-20, against the account of his base period employer who
16   paid him such nonseasonal wages, and for the purpose of this
17   paragraph such nonseasonal wages shall be deemed to constitute
18   all of his base period wages.
19         (8) The benefits payable to any otherwise eligible individual
20   shall be calculated in accordance with this section for any benefit
21   year which is established on or after the beginning date of a
22   seasonal determination applying to a pursuit by which such
23   individual was employed during the base period applicable to such
24   benefit year, as if such determination had been effective in such
25   base period.
26         (9) Nothing in this section shall be construed to limit the
27   right of any individual whose claim for benefits is determined in
28   accordance herewith to appeal from such determination as
29   provided in Section 41-35-660.
30         (10) As used in this section:
31           (a) ‘Pursuit’ means an employer or branch of an
32   employer.
33           (b) ‘Branch of an employer’ means a part of an
34   employer’s activities which is carried on or is capable of being
35   carried on as a separate enterprise.
36           (c) ‘Production operations’ means all the activities of a
37   pursuit which are primarily related to the production of its
38   characteristic goods or services.
39           (d) ‘Active period or periods’ of a seasonal pursuit means
40   the longest regularly recurring period or periods within which
41   production operations of the pursuit are customarily carried on.
42           (e) ‘Seasonal wages’ means the wages earned in a
43   seasonal pursuit within its active period or periods. The

     [478-4]
 1   department may prescribe by regulation the manner in which
 2   seasonal wages shall be reported.
 3           (f) ‘Seasonal worker’ means a worker at least twenty-five
 4   percent of whose base period wages are seasonal wages.
 5           (g) ‘Interested party’ means any individual affected by a
 6   seasonal determination.
 7           (h) ‘Inactive period or periods’ of a seasonal pursuit
 8   means that part of a calendar year which is not included in the
 9   active period or periods of such pursuit.
10           (i) ‘Nonseasonal wages’ means the wages earned in a
11   seasonal pursuit within the inactive period or periods of such
12   pursuit, or wages earned at any time in a nonseasonal pursuit.
13           (j) ‘Wages’ means remuneration for employment.”
14     SECTION ___. This act takes effect upon approval by the
15   Governor.      /
16     Amend the bill further, as and if amended, page 9, by striking
17   SECTION 10 in its entirety.
18     Amend the bill further, as and if amended, page 17, by striking
19   SECTION 14 in its entirety.
20     Renumber sections to conform.
21     Amend title to conform.
22
23   W. GREG RYBERG for Committee.
24




     [478-5]
 1
 2
 3
 4
 5
 6
 7
 8
 9                      A BILL
10
11   TO AMEND SECTION 41-31-5, CODE OF LAWS OF SOUTH
12   CAROLINA,    1976,   RELATING   TO   DEFINITIONS
13   CONCERNING THE RATE OF CONTRIBUTIONS TO THE
14   UNEMPLOYMENT TRUST FUND, SO AS TO MODIFY THE
15   METHOD OF COMPUTATION; TO AMEND SECTION
16   41-31-20, AS AMENDED, RELATING TO EMPLOYER’S
17   ACCOUNTS, SO AS TO PROVIDE THE DEPARTMENT OF
18   EMPLOYMENT AND WORKFORCE SHALL MAINTAIN A
19   SEPARATE ACCOUNT FOR EACH EMPLOYER AND SHALL
20   ACCURATELY RECORD THE DATA USED TO DETERMINE
21   AN EMPLOYER’S EXPERIENCE FOR THE PURPOSE OF
22   RATE ASSIGNMENT; TO AMEND SECTION 41-31-40, AS
23   AMENDED, RELATING TO BASE RATE COMPUTATION
24   PERIODS, SO AS TO LOWER THE NEW EMPLOYER TAX
25   CLASS FROM THIRTEEN TO TWELVE; TO AMEND
26   SECTION 41-31-50, AS AMENDED, RELATING TO BASE
27   RATE DETERMINATIONS, SO AS TO CLARIFY
28   EXCLUSIONS TO TAXABLE WAGES, AND TO PROVIDE
29   FOR CALENDAR YEAR 2011 AND SUBSEQUENT
30   CALENDAR YEARS, VOLUNTARY PAYMENTS ARE NOT
31   PERMITTED FOR THE PURPOSE OF OBTAINING A LOWER
32   RATE OF REQUIRED CONTRIBUTIONS; TO AMEND
33   SECTION 41-31-60, AS AMENDED, RELATING TO BASE
34   RATES WHERE A DELINQUENT REPORT IS RECEIVED, SO
35   AS TO CHANGE REFERENCES TO TAX RATES; TO AMEND
36   SECTION 41-31-70, AS AMENDED, RELATING TO A
37   PROHIBITION ON THE TERMINATION OF THE ACCOUNT
38   OF AN EMPLOYER, SO AS TO DELETE A BENEFIT RATIO
39   CALCULATION; TO AMEND SECTION 41-31-125, AS
40   AMENDED, RELATING TO THE ASSIGNMENT OF AN
41   EMPLOYMENT BENEFIT RECORD UPON ACQUISITION OR
42   REORGANIZATION OF AN EXISTING EMPLOYMENT

     [478]                  1
 1   UNIT, SO AS TO PROVIDE IF THE EXPERIENCE RATING
 2   ACCOUNT OF A PREDECESSOR IS EQUAL TO OR
 3   EXCEEDS TAX CLASS THIRTEEN, THIS EXPERIENCE
 4   RATING ACCOUNT MUST BE TRANSFERRED TO THE
 5   SUCCESSOR EMPLOYER; TO AMEND SECTION 41-31-140,
 6   AS AMENDED, RELATING TO LIMITS ON THE TRANSFER
 7   OF AN EXPERIENCE RATING ACCOUNT IN CERTAIN
 8   CIRCUMSTANCES TO CLARIFY TIME LIMITS OF
 9   APPLICABILITY, AND TO PROVIDE FOR FUTURE LIMITS
10   ON TRANSFERS FOR AN EXPERIENCE RATING
11   ACCOUNT; TO AMEND SECTION 41-31-670, AS AMENDED,
12   RELATING       TO     SPECIAL  PROVISIONS      FOR
13   ORGANIZATIONS THAT MADE CONTRIBUTIONS PRIOR
14   TO 1969, SO AS TO UPDATE REFERENCES TO
15   APPLICABLE TAX FORMULAS, AND TO PROVIDE FOR
16   THE MANAGEMENT OF AN ACCOUNT IF THE
17   ORGANIZATION        TERMINATES    THE    ELECTION
18   AVAILABLE UNDER THIS SECTION; TO AMEND SECTION
19   41-35-110, AS AMENDED, RELATING TO ELIGIBILITY FOR
20   BENEFITS, SO AS TO DELETE A REQUIREMENT THAT A
21   CLIENT MAINTAIN WEEKLY CONTACT WITH A
22   TEMPORARY AGENCY AFTER COMPLETION OF A
23   TEMPORARY ASSIGNMENT; TO AMEND SECTION
24   41-35-120,     AS    AMENDED,     RELATING      TO
25   DISQUALIFICATIONS FOR BENEFITS, SO AS TO
26   INCREASE THE PENALTY FOR FAILING A DRUG TEST OR
27   BEING TERMINATED FOR GROSS MISCONDUCT, AND TO
28   PROVIDE AN ADDITIONAL SOURCE FOR CERTIFYING A
29   LAB THAT MAY PERFORM A DRUG TEST; TO AMEND
30   SECTION 41-35-125, AS AMENDED, RELATING TO
31   BENEFITS FOR INDIVIDUALS UNEMPLOYED AS A
32   RESULT OF DOMESTIC ABUSE, SO AS TO REDEFINE THE
33   TERM “DISABILITY”; TO AMEND SECTION 41-35-130, AS
34   AMENDED,        RELATING    TO   PAYMENTS      NOT
35   CHARGEABLE TO A FORMER EMPLOYER, SO AS TO
36   MAKE THE SECTION APPLICABLE TO BENEFITS PAID AS
37   A RESULT OF A NATURAL DISASTER DECLARED BY THE
38   PRESIDENT OF THE UNITED STATES; TO AMEND
39   SECTION 41-35-690, AS AMENDED, RELATING TO
40   APPEALS, SO AS TO PROVIDE AN APPEAL MUST BE
41   MADE TO THE COURT OF COMMON PLEAS; TO AMEND
42   SECTION 41-39-30, AS AMENDED, RELATING TO LIMITS
43   ON FEES, SO AS TO ELIMINATE THE REQUIREMENT

     [478]                   2
 1   THAT A PERSON APPEARING AT A HEARING UNDER
 2   THIS SECTION MUST BE REPRESENTED BY AN
 3   ATTORNEY; AND TO AMEND SECTION 41-41-40, AS
 4   AMENDED, RELATING TO THE RECOVERY OF BENEFITS
 5   PAID TO A PERSON NOT ENTITLED TO BENEFITS, SO AS
 6   TO PROVIDE AN ADDITIONAL MEANS FOR ATTEMPTING
 7   A COLLECTION UNDER THIS SECTION.
 8
 9   Be it enacted by the General Assembly of the State of South
10   Carolina:
11
12   SECTION 1. Section 41-31-5(1) of the 1976 Code, as added by
13   Act 234 of 2010, is amended to read:
14
15      “(1) ‘Benefit ratio’ means:
16        (a) for the period of January 1, 2011, through December 31,
17   2013, the number calculated by dividing the average sum of all
18   benefits charged to an employer during the forty calendar quarters
19   immediately preceding the calculation date by the sum of the
20   employer’s average taxable payroll during for the same period. If
21   fewer than forty but more than four one calendar quarters quarter
22   of data are available, the data from those available calendar
23   quarters shall be used in the calculation. The benefit ratio must be
24   calculated annually on July first using data for quarters filed
25   through June thirtieth of the current year to the sixth decimal place;
26        (b) from January 1, 2014, the number calculated by dividing
27   the average sum of all benefits charged to an employer during the
28   twelve calendar quarters immediately preceding the calculation
29   date by the sum of the employer’s average taxable payroll during
30   for the same period. If fewer than twelve but more than four one
31   calendar quarters of data are available, the data from those
32   available calendar quarters shall be used in the calculation. The
33   benefit ratio must be calculated annually on July first using data
34   for quarters filed through June thirtieth of the current year to the
35   sixth decimal place.”
36
37   SECTION 2. Section 41-31-20(A) of the 1976 Code, as last
38   amended by Act 234 of 2010, is further amended to read:
39
40     “(A) The department shall maintain a separate account for each
41   employer and shall credit the account of each with all the
42   contributions paid on his behalf, but accurately record the data
43   used to determine an employer’s experience for the purpose of rate

     [478]                             3
 1   assignments. Nothing in Chapters 27 through 41 of this title shall
 2   be construed to grant any employer or individual in his service
 3   prior claims or rights to the amounts paid by him into the fund
 4   either on his behalf or on behalf of such individuals. Benefits paid
 5   to an eligible individual shall be charged, in the amounts provided
 6   in Chapters 27 through 41 of this title, against the accounts of his
 7   most recent employer. No employer shall be deemed as the most
 8   recent employer for the purpose of this section unless the eligible
 9   person to whom benefits are paid earned wages in the employ of
10   the employer equal to at least eight times the weekly benefit
11   amount of the eligible claimant.”
12
13   SECTION 3. Section 41-31-40 of the 1976 Code, as last amended
14   by Act 234 of 2010, is further amended to read:
15
16      “Section 41-31-40. Each employer’s base rate for the twelve
17   months commencing January first of any calendar year is
18   determined in accordance with Section 41-31-50 on the basis of his
19   record up to July first through June thirtieth of the preceding
20   calendar year, but no employer’s base rate is less than the rate
21   applicable for rate class thirteen twelve until there have been
22   twelve consecutive months of coverage after first becoming liable
23   for contributions under Chapters 27 through 41 of this title. Each
24   employer who completes twelve consecutive calendar months of
25   coverage after first becoming liable for contributions during the
26   current calendar year shall have a base rate computed on the basis
27   of his record up through the next occurring June thirtieth, with that
28   base rate being effective for the next calendar year beginning in
29   January.”
30
31   SECTION 4. Section 41-31-50 of the 1976 Code, as last amended
32   by Act 234 of 2010, is further amended to read:
33
34      “Section 41-31-50. Each employer eligible for a rate
35   computation shall have his base tax rate determined in the
36   following manner:
37      (1)(a)(i) Annually the department must calculate a contribution
38   rate for each employer qualified for an experience rating. The
39   contribution rate must correspond to the rate calculated for the
40   employer’s benefit ratio class.
41           (ii) To determine an employer’s benefit ratio rank, the
42   department must list all employers by increasing benefit ratios,
43   from the lowest benefit ratio to the highest benefit ratio. The list

     [478]                             4
 1   must be divided into classes ranked one through twenty. Each
 2   class must contain approximately five percent of the total taxable
 3   wages, excluding reimbursable employment wage employers with
 4   less than twelve months of accomplished liability, employers with
 5   outstanding tax liens, delinquent tax class employers, and
 6   employers who reimburse the department in lieu of contributions,
 7   paid in covered employment during the four completed calendar
 8   quarters immediately preceding the computation date. Each
 9   employer must be placed in the class that corresponds with the
10   employer’s benefit ratio.
11            (iii) If an employer’s taxable wages qualify the employer
12   for two separate classes, the employer shall be afforded the class
13   assigned the lower contribution rate. Employers with identical
14   benefit ratios shall be assigned to the same class.
15         (b) The income needed to pay benefits for the calendar year
16   plus any applicable income needed to reach the solvency target
17   must be divided by the estimated taxable wages for the calendar
18   year. The result rounded to the next higher one-hundredth of one
19   percent is the average required rate needed to pay benefits and
20   achieve solvency targets.
21         (c) The rate for class twenty will be set such that the entire
22   schedule raises the income required to pay benefits for the year, as
23   well as the income necessary to move the trust fund toward the
24   solvency target, subject to the structure provided in this chapter.
25   However, the rate for class twenty must be at least five and
26   four-tenths percent.
27      (2)(a) If the calculated rate necessary for benefit rate class
28   twenty exceeds five and four-tenths percent, then the rate for each
29   preceding benefit rate class shall be equal to ninety percent of the
30   rate calculated for the succeeding class, except that rate class
31   twelve shall be set at one-fourth the rate calculated for class
32   twenty, provided that the rate for class one shall be zero.
33         (b)(i) If the computed rate necessary for class twenty is less
34   than five and four-tenths percent, then the rate for class twenty
35   shall be set at five and four-tenths percent.
36            (ii) The rate for rate class twelve shall be calculated by
37   multiplying the average tax rate computed in subsection item
38   (1)(b) by twenty, subtracting five and four-tenths percent, and
39   dividing by nineteen.
40            (iii) The contribution rate for rate classes eleven through
41   one shall be equal to ninety percent of the rate for the succeeding
42   class, provided that the rate for class one shall be zero.


     [478]                            5
 1           (iv) The contribution rate for class thirteen shall be equal
 2   to one hundred twenty percent of the rate calculated for rate class
 3   twelve.
 4           (v) The contribution rate for rate class nineteen shall be
 5   set at an amount that allows for average contributions, beginning
 6   with class eighteen and ending with class fourteen, that are equal
 7   to ninety percent of the preceding class.
 8      (3) For calendar year 2011 and any subsequent calendar year,
 9   voluntary payments are not permitted for the purpose of obtaining
10   a lower rate of required contributions.”
11
12   SECTION 5. Section 41-31-60 of the 1976 Code, as last amended
13   by Act 234 of 2010, is further amended to read:
14
15      “Section 41-31-60. (A) If on the computation date upon which
16   an employer’s base tax rate is to be computed as provided in
17   Section 41-31-40 there is a delinquent report, a base rate of two
18   and sixty-four hundredths percent the tax class twenty rate must be
19   assigned to the employer for the period to which the computation
20   applies. If the base rate for the prior year or the computed base
21   rate for the computation period is greater than two and sixty-four
22   hundredths percent, the higher rate must be assigned until the next
23   computation date.
24      (B) No employer is permitted to pay his unemployment
25   compensation tax at a reduced base tax rate class for any quarter
26   when a tax execution issued in accordance with Section 41-31-390
27   with respect to delinquent unemployment compensation tax for a
28   previous quarter is unpaid and outstanding against the employer.
29   If on the computation date upon which an employer’s base tax rate
30   is computed as provided in Section 41-31-40 there is an
31   outstanding tax execution, a base rate of two and sixty-four
32   hundredths percent the tax class twenty rate must be assigned for
33   the period to which the computation applies. If the base rate for
34   the prior year or the computed base rate for the computation period
35   is greater than two and sixty-four hundredths percent, the highest
36   base rate must be assigned to the employer until the next
37   computation date or until such time as any all outstanding tax
38   execution has executions have been paid.”
39
40   SECTION 6. Section 41-31-70 of the 1976 Code, as last amended
41   by Act 234 of 2010, is further amended to read:
42


     [478]                            6
 1      “Section 41-31-70. If the department finds that an employer
 2   ceased to render employment solely due to the closing of the
 3   business because of the entrance of one or more of the owners,
 4   officers, partners, or the majority stockholders into the Armed
 5   Forces of the United States, or any of its allies, or of the United
 6   Nations after January 1, 1951, such employer’s account shall not
 7   be terminated; and, if the business is resumed and employment
 8   rendered within two years after the discharge or release from
 9   active duty in the armed forces of the person or persons, the
10   employer’s experience shall be deemed to have been continuous
11   throughout that period. The benefit ratio of the employer shall be
12   the amount calculated pursuant to Section 41-31-5, including
13   benefits paid to any individual during the period the employer was
14   in the armed forces, divided by his average annual payroll for the
15   most recent year during the whole of which the employer has been
16   in business and has rendered employment. This provision shall not
17   be construed to authorize cash refunds and any adjustments
18   required hereunder shall be only by credit certificate.”
19
20   SECTION 7. Section 41-31-125(C) of the 1976 Code, as last
21   amended by Act 234 of 2010, is further amended to read:
22
23      “(C) If the experience rating account of the predecessor
24   employer contains a debit balance, defined as an excess of total
25   benefits charged over total contributions paid, the experience
26   rating account of the predecessor employer must be transferred to
27   the successor employer in accordance with the provisions of
28   Section 41-31-140 is equal to or exceeds tax class thirteen, the
29   experience rating account of the predecessor employer in any event
30   must be transferred to the successor employer in accordance with
31   the provisions of Section 41-31-140.”
32
33   SECTION 8. Section 41-31-140 of the 1976 Code, as last
34   amended by Act 234 of 2010, is further amended to read:
35
36      “Section 41-31-140. (A) For the purposes of this section and
37   for tax years 2010 and prior, ‘debit balance’ means the excess of
38   total benefits charged over total contributions made.
39      (B) For acquisitions that occur in tax years 2010 and prior, no
40   transfer of experience rating accounts, in whole or in part, is
41   permitted under the provisions of Sections 41-31-100 to 41-31-130
42   unless all unemployment compensation taxes based on wages paid
43   by the transferring employer prior to the date of the transfer are

     [478]                            7
 1   paid by the transferring employer when due or assumed by the
 2   acquiring employer within sixty days from the date he is notified
 3   by the department that the transfer cannot be allowed because of
 4   unpaid unemployment compensation taxes. If the experience
 5   rating account of the predecessor employer contains a debit
 6   balance, the experience rating account of the predecessor employer
 7   in any event must be transferred to the successor employer in
 8   accordance with the provisions of Sections 41-31-100 and
 9   41-31-120.
10      (C) Effective for acquisitions occurring in tax years 2011 and
11   later, no transfer of benefit charges or taxable wages, in whole or
12   in part, is permitted pursuant to the provisions of Sections
13   41-31-100 through 41-31-130 unless all unemployment
14   compensation taxes based on wages paid by the transferring
15   employer prior to the date of transfer are paid by the transferring
16   employer when due or assumed by the acquiring employer within
17   sixty days from the date he is notified by the department that the
18   transfer cannot be allowed because of unpaid unemployment
19   compensation taxes or outstanding contribution reports. If the
20   predecessor employer has an acquisition year tax class of thirteen
21   or higher, the experience of the predecessor employer in any event
22   must be transferred to the successor employer in accordance with
23   the provisions of Sections 41-31-100 and 41-31-120.”
24
25   SECTION 9. Section 41-31-670(B) of the 1976 Code, as last
26   amended by Act 234 of 2010, is further amended to read:
27
28      “(B) Any nonprofit organization which has elected to become
29   liable for payments in lieu of contributions under the provisions of
30   Sections 41-31-620 and 41-31-630 and thereafter terminates the
31   election shall become an employer liable for the payments of
32   contributions upon the effective date of the termination but no such
33   employer’s base tax rate thereafter may be less than two and
34   sixty-four hundredths percent tax rate class twelve until there have
35   been twenty-four consecutive calendar months of coverage after so
36   becoming liable for the payment of contributions. If the employer
37   has been an employer liable for the payment of contributions prior
38   to election to become liable for payments in lieu of contributions,
39   the balance in the experience rating account of the employer as of
40   the termination date of the election to become liable for payments
41   in lieu of contributions is transferred to the new experience rating
42   account then established for the employer. Upon termination of
43   the election to reimburse the department in lieu of contributions, if

     [478]                             8
 1   the employer was previously an employer liable for contributions,
 2   the previously established contributory account will be reopened.”
 3
 4   SECTION 10. Section 41-35-110(3)(c) of the 1976 Code, as last
 5   amended by Act 146 of 2010, is further amended to read:
 6
 7      “(c) no claimant shall be eligible to receive benefits or waiting
 8   period credit following the completion of a temporary work
 9   assignment unless the claimant shows that he informed the
10   temporary employment agency that provided the assignment of the
11   assignment’s completion, has maintained on-going weekly contact
12   with the agency after completion of the assignment, and that the
13   agency has not provided a subsequent assignment for which the
14   claimant’s prior training or experience shows him to be fitted or
15   qualified;”
16
17   SECTION 11. Section 41-35-120 of the 1976 Code, as last
18   amended by Act 146 of 2010, is further amended to read:
19
20      “Section 41-35-120. An insured worker is ineligible for
21   benefits for:
22      (1) Leaving work voluntarily. If the department finds he left
23   voluntarily, without good cause, his most recent work prior to
24   filing a request for determination of insured status or a request for
25   initiation of a claim series within an established benefit year, with
26   ineligibility beginning with the effective date of the request and
27   continuing until he has secured employment and shows to the
28   satisfaction of the department that he has performed services in
29   employment as defined by Chapters 27 through 41 of this title and
30   earned wages for those services equal to at least eight times the
31   weekly benefit amount of his claim.
32      (2) Discharge for cause connected with the employment. If the
33   department finds that he has been discharged for cause connected
34   with his most recent work prior to filing a request for
35   determination of insured status or a request for initiation of a claim
36   series within an established benefit year, with ineligibility
37   beginning with the effective date of the request, and continuing not
38   less than five nor more than the next twenty-six weeks, in addition
39   to the waiting period, with a corresponding and mandatory
40   reduction of the insured worker’s benefits to be calculated by
41   multiplying his weekly benefit amount by the number of weeks of
42   his disqualification. The ineligibility period must be determined
43   by the department in each case according to the seriousness of the

     [478]                             9
 1   cause for discharge. A charge of discharge for cause connected
 2   with the employment may not be made for failure to meet
 3   production requirements unless the failure is occasioned by wilful
 4   failure or neglect of duty. ‘Cause connected with the employment’
 5   as used in this item requires more than a failure in good
 6   performance of the employee as the result of inability or
 7   incapacity.
 8      (3)(a) Discharge for illegal drug use, and is ineligible for
 9   benefits beginning with the effective date of the request and
10   continuing until he has secured employment and shows to the
11   satisfaction of the department that he has performed services in
12   employment as defined by Chapters 27 through 41 of this title and
13   earned wages for those services equal to at least eight times the
14   weekly benefit amount of his claim not less than twenty-six weeks,
15   in addition to the waiting period, with a corresponding and
16   mandatory reduction of the insured worker’s benefits to be
17   calculated by multiplying his weekly benefit amount by the
18   number of weeks of his disqualification if the:
19           (i) company has communicated a policy prohibiting the
20   illegal use of drugs, the violation of which may result in
21   termination; and
22           (ii) insured worker fails or refuses to provide a specimen
23   pursuant to a request from the employer, or otherwise fails or
24   refuses to cooperate by providing an adulterated specimen; or
25           (iii) insured worker provides a blood, hair, or urine
26   specimen during a drug test administered on behalf of the
27   employer, which tests positive for illegal drugs or legal drugs used
28   unlawfully, provided:
29              (A) the sample was collected and labeled by a licensed
30   health care professional or another individual authorized to collect
31   and label test samples by federal or state law, including law
32   enforcement personnel; and
33              (B) the test was performed by a laboratory certified by
34   the National Institute on Drug Abuse, the College of American
35   Pathologists, the Substance Abuse and Mental Health Services
36   Administration, or the State Law Enforcement Division; and
37              (C) an initial positive test was confirmed on the
38   specimen using the gas chromatography/mass spectrometry
39   method, or an equivalent or a more accurate scientifically accepted
40   method approved by the National Institute on Drug Abuse;
41           (iv) for purposes of this item, ‘unlawfully’ means without
42   a prescription.


     [478]                            10
 1         (b) If an insured worker makes an admission pursuant to the
 2   employer’s policy, which provides that voluntary admissions made
 3   before the employer’s request to the employee to submit to testing
 4   may protect an employee from immediate termination, then the
 5   admission is inadmissible for purposes of this section as long as
 6   the:
 7            (i) employer has communicated a written policy, which
 8   provides protection from immediate termination for employees
 9   who voluntarily admit prohibited drug use before the employer’s
10   request to submit to a test; and
11            (ii) employee makes the admission specifically pursuant to
12   the employer’s policy.
13         (c) Information, interviews, reports, and drug-test results,
14   written or otherwise, received by an employer through a
15   drug-testing program may be used or received in evidence in
16   proceedings conducted pursuant to the provisions of this title for
17   the purposes of determining eligibility for unemployment
18   compensation, including administrative or judicial appeal.
19      (4) Discharge for gross misconduct, and is ineligible for
20   benefits beginning with the effective date of the request and
21   continuing until he has secured employment and shows to the
22   satisfaction of the department that he has performed services in
23   employment as defined by Chapters 27 through 41 of this title and
24   earned wages for those services equal to at least eight times the
25   weekly benefit amount of his claim not less than twenty-six weeks,
26   in addition to the waiting period, with a corresponding and
27   mandatory reduction of the insured worker’s benefits to be
28   calculated by multiplying his weekly benefit amount by the
29   number of weeks of his disqualification if he is discharged due to:
30            (i) wilful or reckless employee damage to employer
31   property that results in damage of more than fifty dollars;
32            (ii) employee an employee’s consumption of alcohol or
33   being under the influence of alcohol on employer property in
34   violation of a written company policy restricting or prohibiting
35   consumption of alcohol;
36            (iii) employee theft of items valued at more than fifty
37   dollars;
38            (iv) failure to comply with applicable state or federal drug
39   and alcohol testing and use regulations including, but not limited
40   to, 49 C.F.R. part 40 and part 382 of the federal motor carrier
41   safety regulations, while on the job or on duty, and regulations
42   applicable for employees performing transportation and other


     [478]                            11
 1   safety sensitive job functions as defined by the federal
 2   government;
 3           (v) employee committing criminal assault or battery of
 4   another employee or a customer;
 5           (vi) employee committing criminal abuse of patient or
 6   child in his professional care;
 7           (vii) employee insubordination, which is defined as wilful
 8   failure to comply with a lawful, reasonable order of a supervisor
 9   directly related to the employee’s employment as described in an
10   applicable written job description; or
11           (viii) employee wilful neglect of duty directly related to
12   the employee’s employment as described in an applicable written
13   job description.
14      (5) Failure to accept work.
15        (a) If the department finds he has failed, without good cause:
16           (i)(A) either to apply for available suitable work, when so
17   directed by the employment office or the department;
18              (B) to accept available suitable work when offered to
19   him by the employment office or an employer; or
20              (C) to return to his customary self-employment, if any,
21   when so directed by the department, the ineligibility begins with
22   the week the failure occurred and continues until he has secured
23   employment and shows to the satisfaction of the department that
24   he has performed services in employment as defined in Chapters
25   27 through 41 of this title and earned wages for services equal to at
26   least eight times the weekly benefit amount of his claim.
27        (b) In determining whether work is suitable for an
28   individual, the department must consider, based on a standard of
29   reasonableness as it relates to the particular individual concerned,
30   the degree of risk involved to his health, safety, and morals, his
31   physical fitness and prior training, his experience and prior
32   earnings, his length of unemployment and prospects for securing
33   local work in his customary occupation, and the distance of the
34   available work from his residence.
35        (c) Notwithstanding another provision of Chapters 27
36   through 41 of this title, work is not considered suitable and
37   benefits may not be denied under these chapters to an otherwise
38   eligible individual for refusing to accept new work under any of
39   the following conditions:
40           (i) if the position offered is vacant due directly to a strike,
41   lockout, or other labor dispute;



     [478]                             12
 1            (ii) if the wages, hours, or other conditions of the work
 2   offered are substantially less favorable to the individual than those
 3   prevailing for similar work in the locality; or
 4            (iii) if, as a condition of being employed, the individual
 5   would be required to join a company union or to resign from or
 6   refrain from joining any bona fide labor organization.
 7         (d) Notwithstanding another provision of Chapters 27
 8   through 41 of this title, an otherwise eligible individual may not be
 9   denied a benefit for a week for failure to apply for, or refusal to
10   accept, suitable work because he is in training with the approval of
11   the department.
12         (e) Notwithstanding another provision of this chapter, an
13   otherwise eligible individual may not be denied a benefit for a
14   week because he is in training approved under Section 236(a)(1) of
15   the Trade Act of 1974, nor may the individual be denied benefits
16   by reason of leaving work to enter training, if the work left is not
17   suitable employment, or because of the application to a week in
18   training of provisions in this law or an applicable federal
19   unemployment compensation law, relating to availability for work,
20   active search for work, or refusal to accept work. For purposes of
21   this subitem, ‘suitable employment’ means, with respect to an
22   individual, work of a substantially equal or higher skill level than
23   the individual’s past adversely affected employment, as defined for
24   purposes of the Trade Act of 1974, and wages for the work at not
25   less than eighty percent of the individual’s average weekly wage as
26   determined for the purposes of the Trade Act of 1974.
27      (6) Labor dispute. For a week in which the department finds
28   that his total or partial unemployment is directly due to a labor
29   dispute in active progress in the factory, establishment, or other
30   premises at which he was last employed. This paragraph does not
31   apply if it is shown to the satisfaction of the department that he:
32         (a) is not participating in, financing, or directly interested in
33   the labor dispute;
34         (b) does not belong to a grade or class of workers of which,
35   immediately before he became unemployed by reason of the
36   dispute, there were members employed at the premises at which
37   the dispute exists, any of whom are participating in or directly
38   interested in the dispute. If separate branches of work, which are
39   commonly conducted as separate businesses in separate premises,
40   are conducted in separate departments of the same premises, each
41   department for the purpose of this item is considered to be a
42   separate factory, establishment, or other premises.


     [478]                             13
 1      (7) Receiving benefits elsewhere. For a week in which, or a
 2   part of which, he has received or is seeking unemployment benefits
 3   under an unemployment compensation law of another state or of
 4   the United States. If the appropriate agency of the other state or of
 5   the United States finally determines that he is not entitled to
 6   unemployment benefits, this disqualification does not apply.
 7      (8) Voluntary retirement. If the department finds that he
 8   voluntarily retired from his most recent work with the ineligibility
 9   beginning with the effective date of his claim and continuing for
10   the duration of his unemployment and until the individual submits
11   satisfactory evidence of having had new employment and of
12   having earned wages of not less than eight times his weekly benefit
13   amount as defined in Section 41-35-40. For the purpose of this
14   section, ‘most recent work’ means the work from which the
15   individual retired regardless of any work subsequent to his
16   retirement in which he earned less than eight times his weekly
17   benefit amount.”
18
19   SECTION 12. Section 41-35-125 of the 1976 Code, as last
20   amended by Act 234 of 2010, is further amended to read:
21
22      “Section 41-35-125. (A)(1) Notwithstanding the provisions of
23   Section 41-35-120, an individual is eligible for waiting week credit
24   and for unemployment compensation if the department finds that
25   the individual has left work voluntarily or has been discharged
26   because of circumstances directly resulting from domestic abuse
27   and:
28           (a) reasonably fears future domestic abuse at or en route
29   to the workplace;
30           (b) needs to relocate to avoid future domestic abuse; or
31           (c) reasonably believes that leaving work is necessary for
32   his safety or the safety of his family.
33        (2) When determining if an individual has experienced
34   domestic abuse for the purpose of receiving unemployment
35   compensation, the department must require him to provide
36   documentation of domestic abuse including, but not limited to,
37   such as police or court records or other documentation of abuse
38   from a shelter worker, attorney, member of the clergy, or medical
39   or other professional from whom the individual has sought
40   assistance.
41        (3) Documentation or evidence of domestic abuse acquired
42   by the department pursuant to this section must be kept


     [478]                            14
 1   confidential unless consent for disclosure is given, in writing, by
 2   the individual.
 3      (B)(1) Notwithstanding the provisions of Section 41-35-120, an
 4   individual is eligible for waiting week credit and for
 5   unemployment compensation if the department finds that the
 6   individual was separated from employment due to compelling
 7   family circumstances.
 8        (2) For the purposes of this subsection:
 9           (a) ‘Immediate family member’ means a claimant’s
10   spouse, parents, or minor dependent children.
11           (b) ‘Illness’ means a verified disability illness that
12   necessitates the care of the disabled ill person for a period of time
13   that exceeds the amount of time the employer will provide paid or
14   unpaid leave. Disability, includes, but is not limited to, mental and
15   physical disabilities, permanent and temporary disabilities, and
16   partial and total disabilities.
17           (c) ‘Disability’ means a verified disability which
18   necessitates the care of the disabled person for a period of time
19   longer than the employer is willing to grant paid or unpaid leave.
20   Disability encompasses all types of disability, including mental
21   and physical disabilities, permanent and temporary disabilities, and
22   partial and total disabilities.
23           (d) ‘Compelling family circumstances’ means:
24              (i) that a claimant was separated from employment
25   with the employer because of the illness or disability of the
26   claimant and, based upon available information, the department
27   finds that it was medically necessary for the claimant to stop
28   working or change occupations;
29              (ii) the claimant was separated from work due to the
30   illness or disability of an immediate family member; and
31              (iii) the claimant’s spouse was transferred or employed
32   in another city or state, the family is required to move to the
33   location of that job, the location is outside the commuting distance
34   of the claimants previous employment, and the claimant separates
35   from employment in order to move to the new location with his
36   spouse.
37        (2) Notwithstanding the provisions of Section 41-35-120, an
38   individual is eligible for waiting week credit and for
39   unemployment compensation if the department finds that the
40   individual was separated from employment due to compelling
41   family circumstances.”
42


     [478]                            15
 1   SECTION 13. Section 41-35-130 of the 1976 Code, as last
 2   amended by Act 146 of 2010, is further amended to read:
 3
 4      “Section 41-35-130. (A) A benefit paid to a claimant for
 5   unemployment immediately after the expiration of disqualification
 6   for:
 7         (1) voluntarily leaving his most recent work without good
 8   cause;
 9         (2) discharge from his most recent work for misconduct; or
10         (3) refusal of suitable work without good cause must not be
11   charged to the account of an employer.
12      (B) A benefit paid to a claimant must not be charged against the
13   account of an employer by reason of the provisions of this
14   subsection if the department determines under Section 41-35-120
15   that the individual:
16         (1) voluntarily left his most recent employment with that
17   employer without good cause;
18         (2) was discharged from his most recent employment with
19   that employer for misconduct connected with his work; or
20         (3) subsequent to his most recent employment refused
21   without good cause to accept an offer of suitable work made by
22   that employer if the employer furnishes the department with those
23   notices regarding the separation of the individual from work or the
24   refusal of the individual to accept an offer of work as are required
25   by the law and regulations of the department.
26      (C) If a benefit is paid pursuant to a decision that is finally
27   reversed in subsequent proceedings with respect to it, an
28   employer’s account must not be charged with a benefit paid.
29      (D) A benefit paid to a claimant for a week in which he is in
30   training with the approval of the department must not be charged
31   to an employer.
32      (E) Benefits paid as a result of a natural disaster declared by the
33   President of the United States.
34      (F) The provisions of subsections (A) through (D) (E), all
35   inclusive, with respect to the noncharging of benefits paid must be
36   applicable only to an employer subject to the payment of
37   contributions.
38      (FG)A benefit paid to a claimant during an extended benefit
39   period, as defined in Article 3, Chapter 35, must not be charged to
40   an employer; except that a non-profit nonprofit organization
41   electing to become liable for payments in lieu of contributions in
42   accordance with Section 41-31-620 must reimburse fifty percent of
43   extended benefits attributable to services performed in its employ

     [478]                             16
 1   and that after January 1, 1979, the State or a political subdivision
 2   or instrumentality of it as defined in Section 41-27-230(2)(b)
 3   electing to become liable for payment in lieu of contributions in
 4   accordance with Section 41-31-620 must reimburse all extended
 5   benefits attributable to services performed in its employ.
 6      (GH) A nonprofit organization that elects to make a payment
 7   in lieu of a contribution to the unemployment compensation fund
 8   as provided in Section 41-31-620(2) or Section 41-31-810 is not
 9   liable to make those payments with respect to the benefits paid to
10   an individual whose base period wages include wages for
11   previously uncovered services as defined in Section 41-35-65 to
12   the extent that the unemployment compensation fund is reimbursed
13   for those benefits pursuant to Section 121 of P.L. 94-566.
14      (HI) A benefit paid to an individual whose base period wages
15   include wages for previously uncovered services as defined in
16   Section 41-35-65 must not be charged against the account of an
17   employer to the extent that the unemployment compensation fund
18   is reimbursed for those benefits pursuant to Section 121 of P.L.
19   94-566.
20      (IJ) A benefit paid to an individual pursuant to Section
21   41-35-125 must not be charged to the account of a contributing
22   employer.
23      (JK) A benefit paid to an individual pursuant to Section
24   41-35-126 must not be charged to the account of a contributing
25   employer.”
26
27   SECTION 14. Section 41-35-690 of the 1976 Code, as last
28   amended by Act 146 of 2010, is further amended to read:
29
30      “Section 41-35-690. The procedure provided in this chapter for
31   appeals from a determination or redetermination to the appeal
32   tribunal and for appeals from the tribunal, first to the Department
33   of Employment and Workforce Appellate Panel, as established by
34   Section 41-29-300, and afterward to the administrative law court
35   of common pleas, pursuant to Section 41-29-300(C)(1), is the sole
36   and exclusive appeal procedure.”
37
38   SECTION 15. Section 41-39-30 of the 1976 Code, as last
39   amended by Act 146 of 2010, is further amended to read:
40
41       “Section 41-39-30. An individual claiming benefits may not be
42   charged a fee in a proceeding under Chapters 27 through 41 of this
43   title by the department or its representatives or by a court or an

     [478]                            17
 1   officer, except an attorney, of it. An individual claiming a benefit
 2   in a proceeding before the department or a court must may be
 3   represented by an attorney or other duly authorized agent, but an
 4   attorney or agent must not charge or receive for this service more
 5   than an amount approved by the department. A person who
 6   violates a provision of this section, for each offense, must be fined
 7   not less than fifty dollars nor more than five hundred dollars,
 8   imprisoned for not more than six months, or both.”
 9
10   SECTION 16. Section 41-41-40(A) of the 1976 Code, as last
11   amended by Act 146 of 2010, is further amended to read:
12
13      “(A)(1) A person who has received a sum as benefits under
14   Chapters 27 through 41 while conditions for the receipt of benefits
15   imposed by these chapters were not fulfilled or while he was
16   disqualified from receiving benefits is liable to repay the
17   department for the unemployment compensation fund a sum equal
18   to the amount received by him.
19         (2) If full repayment of benefits, to which an individual was
20   determined not entitled, has not been made, the sum must be
21   deducted from future benefits payable to him under Chapters 27
22   through 41, and the sum must be collectible in the manner
23   provided in Sections 41-31-380 to 41-31-400 for the collection of
24   past due contributions.
25         (3) The department may attempt collection of overpayments
26   through the South Carolina Department of Revenue in accordance
27   with Section 12-56-10, et seq. If the overpayment is collectible in
28   accordance with Section 12-56-60, the department shall add to the
29   amount of the overpayment a collection fee of not more than
30   twenty-five dollars for each collection attempt to defray
31   administrative costs.
32         (4) The department may attempt collection of overpayment
33   through the federal Unemployment Compensation Treasury Offset
34   Program (UCTOP). If the overpayment is collectible, the
35   department shall add to the amount of the overpayment a
36   collection fee not to exceed the administrative costs set by this
37   program.
38         (5) Notwithstanding any other provision of this section, no
39   action to enforce recovery or recoupment of any overpayment may
40   begin after five years from the date of the final determination for
41   nonfraudulent overpayments nor after eight years from the date of
42   the final determination for fraudulent overpayments.”
43

     [478]                            18
1 SECTION 17. This act takes effect upon approval by the
2 Governor.
3                       ----XX----
4




  [478]                     19

				
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