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South Carolina General Assembly
118th Session, 2009-2010
S. 853
STATUS INFORMATION
General Bill
Sponsors: Senator Anderson
Document Path: l:\council\bills\dka\3839dw09.docx
Companion/Similar bill(s): 4060
Introduced in the Senate on May 19, 2009
Currently residing in the Senate Committee on Labor, Commerce and Industry
Summary: Employment Security Commission
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
5/19/2009 Senate Introduced and read first time SJ-7
5/19/2009 Senate Referred to Committee on Labor, Commerce and Industry SJ-7
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
5/19/2009
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9 A BILL
10
11 TO AMEND SECTION 41-27-370, AS AMENDED, CODE OF
12 LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
13 DEFINITION OF “UNEMPLOYED” FOR PURPOSES OF THE
14 SOUTH CAROLINA EMPLOYMENT SECURITY LAW AND
15 THE REDUCTION OF UNEMPLOYMENT BENEFITS TO
16 REFLECT PENSION AND OTHER PAYMENTS
17 ATTRIBUTABLE TO WORK, SO AS TO ELIMINATE
18 EMPLOYER-FILED CLAIMS; TO AMEND SECTION
19 41-27-380, RELATING TO THE DEFINITION OF “WAGES”,
20 SO AS TO INCREASE THE TAXABLE WAGE BASE
21 BEGINNING DECEMBER 31, 2008; TO AMEND SECTION
22 41-27-510, RELATING TO REGULATIONS APPLICABLE TO
23 UNEMPLOYED INDIVIDUALS, SO AS TO CONFORM THE
24 SECTION TO THE AMENDMENTS TO SECTION 41-27-370;
25 TO AMEND SECTION 41-29-170, AS AMENDED, RELATING
26 TO THE DISCLOSURE OF CERTAIN INFORMATION TO
27 ENSURE THAT A CLAIMANT, OR HIS LEGAL
28 REPRESENTATIVE, BE SUPPLIED WITH RECORDS IN
29 ORDER TO MAKE A CLAIM, SO AS TO ADD A PROVISION
30 TO PROVIDE UNEMPLOYMENT INFORMATION
31 NECESSARY FOR WORKFORCE IMPROVEMENT AND
32 PROGRAM EVALUATION TO THE AGENCY
33 ADMINISTERING THE WORKFORCE INVESTMENT ACT;
34 TO AMEND SECTION 41-31-50, AS AMENDED, RELATING
35 TO THE COMPUTATION OF RATES OF CONTRIBUTIONS
36 BY EMPLOYERS, SO AS TO RESTRUCTURE THE
37 COMPUTATION FOR CERTAIN EMPLOYERS; TO AMEND
38 SECTION 41-31-80, AS AMENDED, RELATING TO THE
39 STATEWIDE RESERVE RATIO, SO AS TO ADJUST THE
40 RATES OF CONTRIBUTION FOR CERTAIN EMPLOYERS;
41 TO AMEND SECTION 41-35-50, RELATING TO THE
42 MAXIMUM POTENTIAL BENEFITS OF AN INSURED
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1 WORKER, SO AS TO CHANGE THE FORMULA FOR
2 CALCULATING THE BENEFIT; TO AMEND SECTION
3 41-35-120, AS AMENDED, RELATING TO
4 DISQUALIFICATION OF BENEFITS, SO AS TO ADD A
5 PROVISION PROVIDING FOR “GROSS MISCONDUCT” AND
6 CONFORMING THE TERM “MOST RECENT BONA FIDE
7 EMPLOYER” TO ITS DEFINITION IN SECTION 41-35-110(5),
8 AND TO REQUIRE THE DEDUCTION OF SEVERANCE PAY
9 FROM UNEMPLOYMENT COMPENSATION PAYMENTS.
10
11 Be it enacted by the General Assembly of the State of South
12 Carolina:
13
14 SECTION 1. Section 41-27-370(1), (3), and (4) is amended to
15 read:
16
17 “(1) An individual is deemed „unemployed‟ in any week during
18 which he performs no services and with respect to which no wages
19 are payable to him or in any week of less than full-time work if the
20 wages payable to him with respect to such week are less than his
21 weekly benefit amount. The commission must shall prescribe
22 regulations applicable to unemployed individuals, making such the
23 distinctions in the procedures as to total unemployment, part-total
24 unemployment, and partial unemployment of individuals attached
25 to their regular jobs, and other forms of short-time work, as the
26 commission deems considers necessary.
27
28 (3) No An individual may not be considered as unemployed in
29 any week in which the commission finds that his unemployment is
30 due to a vacation week with respect to which the individual is
31 receiving or has received his regular wages. This subsection is not
32 applicable to any a claimant whose employer fails to comply, in
33 respect to such the vacation period, with the requirements of all
34 regulations or procedures of the commission regarding the filing of
35 notices, reports, or information, or claims in connection with
36 individual, group, or mass separations arising from the vacation.
37 (4) No An individual may not be considered as unemployed in
38 any week, (not to exceed two in any benefit year), in which the
39 commission finds that his unemployment is due to a vacation week
40 which is constituted a vacation period without pay by reason of a
41 written contract between the employer and the employees or by
42 reason of the employer‟s vacation policy and practice to his
43 employees. This provision applies only if it is found by the
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1 commission that employment will be available for the claimant
2 with the employer at the end of a vacation period as described in
3 this section. This subsection is not applicable to any a claimant
4 whose employer fails to comply, in respect to such the vacation
5 period, with the requirements of all regulations or procedures of
6 the commission regarding the filing of notices, reports, or
7 information, or claims in connection with individual, group, or
8 mass separations arising from the vacation.”
9
10 SECTION 2. Section 41-27-380(2) of the 1976 Code is amended
11 to read:
12
13 “(2) For the purpose of Chapter 31, Article 1, of this title,
14 beginning after December 31, 2008, „wages‟ does not include that
15 part of remuneration which, after remuneration equal to seven
16 twelve thousand dollars has been paid in a calendar year to an
17 individual by an employer or his predecessor or with respect to
18 employment during any calendar year, is paid to the individual by
19 the employer during the calendar year unless that part of the
20 remuneration is subject to a tax under a federal law imposing a tax
21 against which credit may be taken for contributions required to be
22 paid into a state unemployment fund. For years beginning after
23 December 31, 2009, „wages‟ does not include that part of
24 remuneration greater than thirty-five percent of the statewide
25 annual wage for the previous calendar year as computed by
26 multiplying by fifty-two the statewide weekly wage pursuant to
27 Section 41-27-360, rounded to the next lower five hundred dollars,
28 provided that this amount is not less than that part of the
29 remuneration subject to a tax under a federal law imposing a tax
30 against which credit may be taken for contributions required to be
31 paid into a state unemployment fund. For the purposes of this
32 subsection, employment includes service constituting employment
33 under any unemployment compensation law of another state.”
34
35 SECTION 3. Section 41-27-510 of the 1976 Code is amended to
36 read:
37
38 “Section 41-27-510. The commission shall prescribe
39 regulations applicable to unemployed individuals, making such the
40 distinctions in the procedures as to total unemployment, part-total
41 unemployment, and partial unemployment of the individuals
42 attached to their regular jobs and other forms of short-time work as
43 the commission deems considers necessary.”
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1
2 SECTION 4. Section 41-29-170 of the 1976 Code, as last
3 amended by Act 203 of 2002, is further amended by adding:
4
5 “(D) In response to a request, which contains sufficient
6 individual identifying information, from the agency administering
7 the federal Workforce Investment Act, the commission shall
8 provide information obtained pursuant to the provisions of
9 Chapters 27 through 42 considered necessary for workforce
10 improvement and the evaluation of these programs, including
11 available wage information, to the requesting agency. The costs of
12 providing the information, including the costs of protecting the
13 privacy of individuals and employing units, must be borne by the
14 receiving agency.”
15
16 SECTION 5. Section 41-31-50(1) of the 1976 Code, as last
17 amended by Act 37 of 1999, is further amended by adding at the
18 end:
19
20 “(e) With respect to any calendar year commencing with the
21 calendar year 2010:
22 (i) one and four hundredths percent, if the excess equals or
23 exceeds nine percent of his most recent annual payroll;
24 (ii) two and four hundredths percent, if the excess equals or
25 exceeds seven percent but is less than nine percent of his most
26 recent annual payroll;
27 (iii) three and four hundredths percent, if the excess is less
28 than seven percent of his most recent annual payroll.”
29
30 SECTION 6. Section 41-31-50(2) of the 1976 Code, as last
31 amended by Act 37 of 1999, is further amended by adding at the
32 end:
33
34 “(d) With respect to any calendar year commencing with the
35 calendar year 2010;
36 (i) four and fifty-four hundredths percent if the deficit is less
37 than ten percent of his most recent annual payroll;
38 (ii) six and four hundredths percent if the deficit equals or
39 exceeds ten percent but is less than twenty percent of his most
40 recent annual payroll;
41 (iii) seven and fifty-four hundredths percent if the deficit
42 equals or exceeds twenty percent but is less than thirty percent of
43 his most recent annual payroll;
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1 (iv) nine and four hundredths percent if the deficit equals or
2 exceeds thirty percent but is less than forty percent of his most
3 recent annual payroll;
4 (v) ten and fifty-four hundredths percent if the deficit equals
5 or exceeds forty percent of his most recent annual payroll.”
6
7 SECTION 7. Section 41-31-80 of the 1976 Code, as last amended
8 by Act 37 of 1999, is further amended by adding at the end:
9
10 “(3) For the base rate computations made for years commencing
11 with calendar year 2010, when the statewide reserve ratio
12 computed during any calendar year is less than two percent, all
13 contribution base rates as computed pursuant to Sections 41-31-40
14 and 41-31-50 are adjusted as follows:
15 (a) one-tenth percent, if the statewide reserve ratio is less
16 than two percent but not less than one and four-tenths percent;
17 (b) two-tenths percent, if the statewide reserve ratio is less
18 than one and four-tenths percents.”
19
20 SECTION 8. Section 41-35-50 of the 1976 Code is amended to
21 read:
22
23 “Section 41-35-50. The maximum potential benefits of any an
24 insured worker in a benefit year are the lesser of:
25 (1) twenty-six times his weekly benefit amount.; or
26 (2) one-third of his wages for insured work paid during his
27 base period.
28 If the resulting amount is not a multiple of one dollar, the
29 amount must be reduced to the next lower multiple of one dollar,
30 except that no an insured worker may not receive benefits in a
31 benefit year unless, subsequent to the beginning of the next
32 preceding benefit year during which he received benefits, he
33 performed „insured work‟ as defined in Section 41-27-300 and
34 earned wages in the employ of a single employer in an amount
35 equal to not less than eight ten times the weekly benefit amount
36 established for the individual in the preceding benefit year.”
37
38 SECTION 9. Section 41-35-120(1), (2), and (6) of the 1976 Code,
39 as last amended by Act 50 of 2005, is further amended to read:
40
41 “(1) Leaving work voluntarily. - If the commission finds that
42 he has left voluntarily, without good cause, his most recent work
43 prior to bona fide employer before filing a request for
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1 determination of insured status or a request for initiation of a claim
2 series within an established benefit year, with ineligibility
3 beginning with the effective date of the request and continuing
4 until he has secured employment and shows to the satisfaction of
5 the commission that he has performed services in employment as
6 defined by Chapters 27 through 41 of this title and earned wages
7 for such the services equal to at least eight ten times the weekly
8 benefit amount of his claim.
9 (2) Discharge for cause connected with the employment.
10 (a)(i) If the commission finds that he has been discharged
11 for cause connected with his most recent work prior to bona fide
12 employer before filing a request for determination of insured status
13 or a request for initiation of a claim series within an established
14 benefit year, with ineligibility beginning with the effective date of
15 the request, and continuing not less than five nor more than the
16 next twenty-six ten weeks, in addition to the waiting period, with a
17 corresponding and mandatory reduction of the insured worker‟s
18 benefits to be calculated by multiplying his weekly benefit amount
19 by the number of weeks of his disqualification. The ineligibility
20 period must be determined by the commission in each case
21 according to the seriousness of the cause for discharge. A charge
22 of discharge for cause connected with the employment may not be
23 made for failure to meet production requirements unless the failure
24 is occasioned by wilful failure or neglect of duty. „Cause
25 connected with the employment‟ as used in this item requires more
26 than a failure in good performance of the employee as the result of
27 inability or incapacity.
28 (ii) If the commission finds that he has been discharged
29 from his most recent bona fide employer before filing a request for
30 determination of insured status or a request for initiation of a claim
31 series within an established benefit year for gross misconduct, with
32 ineligibility beginning with the effective date of the request, and
33 continuing for twenty-six weeks, in addition to the waiting period,
34 with a corresponding and mandatory reduction of the insured
35 worker‟s benefits . „Gross misconduct‟ as used in this subsubitem
36 includes, but is not limited to, conduct that causes a substantial
37 monetary or property loss to the employer, fighting on the job,
38 patient or client abuse or life-endangering neglect, drug use as
39 defined in subitem (b) of this section, working while impaired by
40 alcohol or a legal drug used improperly, or sexual, racial, or
41 religious harassment involving physical acts.
42 (b) An insured worker is considered to have been discharged
43 for cause pursuant to this item, and is ineligible for benefits if the:
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1 (i) company has communicated a policy prohibiting the
2 illegal use of drugs, the violation of which may result in
3 termination; and
4 (ii) insured worker fails or refuses to provide a specimen
5 pursuant to a request from the employer, or otherwise fails or
6 refuses to cooperate by providing an adulterated specimen; or
7 (iii) insured worker provides a blood, hair, or urine
8 specimen during a drug test administered on behalf of the
9 employer, which tests positive for illegal drugs or legal drugs used
10 unlawfully, provided:
11 (A) the sample was collected and labeled by a licensed
12 health care professional or another individual authorized to collect
13 and label test samples by federal or state law, including law
14 enforcement personnel; and
15 (B) the test was performed by a laboratory certified by
16 the National Institute on Drug Abuse United States Department of
17 Health and Human Services, the College of American Pathologists
18 or the State Law Enforcement Division; and
19 (C) any initial positive test was confirmed on the
20 specimen using the gas chromatography/mass spectrometry
21 method, or an equivalent or more accurate scientifically accepted
22 methods approved by the National Institute on Drug Abuse.
23 (iv) for purposes of this item, „unlawfully‟ means without
24 a prescription.
25 (c) If an insured worker makes an admission pursuant to the
26 employer‟s policy, which provides that voluntary admissions made
27 before the employer‟s request to the employee to submit to testing
28 may protect an employee from immediate termination, then the
29 admission is inadmissible for purposes of this section as long as
30 the:
31 (A) employer has communicated a written policy, which
32 provides protection from immediate termination for employees
33 who voluntarily admit prohibited drug use before the employer‟s
34 request to submit to a test; and
35 (B) employee makes the admission specifically pursuant to
36 the employer‟s policy.
37 (d) Information, interviews, reports, and drug-test results,
38 written or otherwise, received by an employer through a
39 drug-testing program may be used or received in evidence in
40 proceedings conducted pursuant to the provisions of this title for
41 the purposes of determining eligibility for unemployment
42 compensation, including any administrative or judicial appeal.
43
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1 (6) Voluntary retirement. - If the commission finds that he
2 voluntarily retired from his most recent work bona fide employer
3 with the ineligibility beginning with the effective date of his claim
4 and continuing for the duration of his unemployment and until the
5 individual submits satisfactory evidence of having had new
6 employment and of having earned wages of not less than eight ten
7 times his weekly benefit amount as defined in Section 41-35-40.
8 For the purpose of this section „most recent work‟ means the work
9 from which the individual retired regardless of any work
10 subsequent to his retirement in which he earned less than eight
11 times his weekly benefit amount.”
12
13 SECTION 10. Section 41-35-120 of the 1976 Code, as last
14 amended by Act 50 of 2005, is further amended by adding at the
15 end:
16
17 “(7)(a) Separation wages. - A week subsequent to a
18 separation, a layoff, or a reduction-in-force, whether announced as
19 „voluntary‟ or not, in which an individual receives or will receive
20 as a condition of his separation from employment, remuneration in
21 the form of:
22 (i) wages instead of notice;
23 (ii) terminal leave pay;
24 (iii) severance pay; or
25 (iv) dismissal payments by whatever name, regardless of
26 whether the remuneration is voluntary or required by terms of the
27 reduction-in-force, a labor contract, or other agreement.
28 (b) If the remuneration is less than the benefits which would
29 otherwise be due, he is entitled to receive for that week, if
30 otherwise eligible, benefits reduced by the amount of the
31 remuneration pursuant to the calculation provided for in Section
32 41-35-60. In the case of lump sum payments, the payments must
33 be prorated by weeks on the basis of the most recent weekly wage
34 of the individual from the paying employer.”
35
36 SECTION 11. This act takes effect upon approval by the
37 Governor.
38 ----XX----
39
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