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S.B. 5
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EMPLOYMENT SECURITY MODIFICATIONS
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2004 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Scott K. Jenkins
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Karen Hale
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LONG TITLE
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General Description:
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This bill modifies the benefits and eligibility provisions of the Employment Security
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Act and a related provision of the Utah Exemptions Act.
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Highlighted Provisions:
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This bill:
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. modifies the filing penalty for failure to provide timely quarterly wage information;
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. provides a filing penalty for failure to make timely reimbursable employment and
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wage reports;
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. removes an archaic provision regarding reimbursable employers paying premiums
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or expenditures in advance;
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. makes a technical change to the definition of employer;
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. modifies the fraud penalty and overpayment calculation provisions;
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. provides, consistent with federal law, that unemployment benefits may not have
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creditor's claims deducted from them; and
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. makes certain technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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This bill takes effect on July 1, 2004.
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Utah Code Sections Affected:
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AMENDS:
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35A-4-305, as last amended by Chapter 135, Laws of Utah 2003
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35A-4-309, as last amended by Chapter 144, Laws of Utah 2001
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35A-4-310, as renumbered and amended by Chapter 240, Laws of Utah 1996
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35A-4-405, as last amended by Chapter 144, Laws of Utah 2001
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78-23-10, as last amended by Chapter 9, Laws of Utah 2001
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
35A-4-305
is amended to read:
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35A-4-305. Collection of contributions -- Unpaid contributions to bear interest.
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(1) (a) Contributions unpaid on the date on which they are due and payable, as
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prescribed by the division, shall bear interest at the rate of 1% per month from and after that
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date until payment plus accrued interest is received by the division.
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(b) (i) Contribution reports not made and filed by the date on which they are due as
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prescribed by the division [shall be] are subject to a penalty to be assessed and collected in the
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same manner as contributions due under this section equal to 5% of the contribution due if the
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failure to file on time was not more than 15 days, with an additional 5% for each additional 15
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days or fraction thereof during which the failure continued, but not to exceed 25% in the
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aggregate and not less than $25 with respect to each reporting period.
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(ii) If a report is filed after the required time and it is shown to the satisfaction of the
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division or its authorized representative that the failure to file was due to a reasonable cause
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and not to willful neglect, no addition shall be made to the contribution.
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(c) (i) If contributions are unpaid after ten days from the date of the mailing or personal
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delivery by the division or its authorized representative, of a written demand for payment, there
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shall attach to the contribution, to be assessed and collected in the same manner as
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contributions due under this section, a penalty equal to 5% of the contribution due.
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(ii) A penalty may not attach if within ten days after the mailing or personal delivery,
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arrangements for payment have been made with the division, or its authorized representative,
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and payment is made in accordance with those arrangements.
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(d) The division shall assess as a penalty a service charge, in addition to any other
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penalties that may apply, in an amount not to exceed the service charge imposed by Section
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7-15-1
for dishonored instruments if:
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(i) any amount due the division for contributions, interest, other penalties or benefit
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overpayments is paid by check, draft, order, or other instrument; and
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(ii) the instrument is dishonored or not paid by the institution against which it is drawn.
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(e) Except for benefit overpayments under Subsection
35A-4-405
(5), benefit
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overpayments, contributions, interest, penalties, and assessed costs, uncollected three years
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after they become due, may be charged as uncollectable and removed from the records of the
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division if:
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(i) no assets belonging to the liable person and subject to attachment can be found; and
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(ii) in the opinion of the division there is no likelihood of collection at a future date.
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(f) Interest and penalties collected in accordance with this section shall be paid into the
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Special Administrative Expense Fund.
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(g) Action required for the collection of sums due under this chapter is subject to the
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applicable limitations of actions under Title 78, Chapter 12, Limitation of Actions.
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(2) (a) If an employer fails to file a report when prescribed by the division for the
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purpose of determining the amount of the employer's contribution due under this chapter, or if
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the report when filed is incorrect or insufficient or is not satisfactory to the division, the
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division may determine the amount of wages paid for employment during the period or periods
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with respect to which the reports were or should have been made and the amount of
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contribution due from the employer on the basis of any information it may be able to obtain.
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(b) The division shall give written notice of the determination to the employer.
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(c) The determination is considered correct unless:
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(i) the employer, within ten days after mailing or personal delivery of notice of the
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determination, applies to the division for a review of the determination as provided in Section
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35A-4-508
; or
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(ii) unless the division or its authorized representative of its own motion reviews the
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determination.
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(d) The amount of contribution so determined shall be subject to penalties and interest
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as provided in Subsection (1).
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(3) (a) If, after due notice, an employer defaults in the payment of contributions,
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interest, or penalties on the contributions, or a claimant defaults in a repayment of benefit
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overpayments and penalties on the overpayments, the amount due shall be collectible by civil
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action in the name of the division, and the employer adjudged in default shall pay the costs of
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the action.
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(b) Civil actions brought under this section to collect contributions, interest or penalties
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from an employer, or benefit overpayments and penalties from a claimant shall be:
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(i) heard by the court at the earliest possible date; and
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(ii) entitled to preference upon the calendar of the court over all other civil actions
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except:
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(A) petitions for judicial review under this chapter; and
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(B) cases arising under the workers' compensation law of this state.
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(c) (i) (A) To collect contributions, interest or penalties, or benefit overpayments and
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penalties due from employers or claimants located outside Utah, the division may employ
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private collectors providing debt collection services outside Utah.
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(B) Accounts may be placed with private collectors only after the employer or claimant
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has been given a final notice that the division intends to place the account with a private
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collector for further collection action.
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(C) The notice shall advise the employer or claimant of the employer's or claimant's
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rights under this chapter and the applicable rules of the department.
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(ii) (A) A private collector may receive as compensation up to 25% of the lesser of the
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amount collected or the amount due, plus the costs and fees of any civil action or postjudgment
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remedy instituted by the private collector with the approval of the division.
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(B) The employer or claimant shall be liable to pay the compensation of the collector,
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costs, and fees in addition to the original amount due.
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(iii) A private collector is subject to the federal Fair Debt Collection Practices Act, 15
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U.S.C. Sec. 1692 et seq.
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(iv) (A) A civil action may not be maintained by any private collector without specific
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prior written approval of the division.
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(B) When division approval is given for civil action against an employer or claimant,
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the division may cooperate with the private collector to the extent necessary to effect the civil
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action.
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(d) (i) Notwithstanding Section
35A-4-312
, the division may disclose the contribution,
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interest, penalties or benefit overpayments and penalties, costs due, the name of the employer
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or claimant, and the employer's or claimant's address and telephone number when any
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collection matter is referred to a private collector under Subsection (3)(c).
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(ii) A private collector is subject to the confidentiality requirements and penalty
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provisions provided in Section
35A-4-312
and Subsection
76-8-1301
(4), except to the extent
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disclosure is necessary in any civil action to enforce collection of the amounts due.
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(e) An action taken by the division under this section may not be construed to be an
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election to forego other collection procedures by the division.
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(4) (a) In the event of a distribution of an employer's assets under an order of a court
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under the laws of Utah, including a receivership, assignment for benefits of creditors,
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adjudicated insolvency, composition, or similar proceedings, contributions then or thereafter
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due shall be paid in full prior to all other claims except taxes and claims for wages of not more
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than $400 to each claimant, earned within five months of the commencement of the
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proceeding.
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(b) If an employer commences a proceeding in the Federal Bankruptcy Court under a
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chapter of the Bankruptcy Reform Act of 1978, 11 U.S.C. 101 et seq., as amended,
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contributions, interest, and penalties then or thereafter due shall be entitled to the priority
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provided for taxes, interest, and penalties in the Bankruptcy Reform Act of 1978.
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(5) (a) In addition and as an alternative to any other remedy provided by this chapter
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and provided that no appeal or other proceeding for review provided by this chapter is then
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pending and the time for taking it has expired, the division may issue a warrant in duplicate,
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under its official seal, directed to the sheriff of any county of the state, commanding the sheriff
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to levy upon and sell the real and personal property of a delinquent employer or claimant found
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within the sheriff's county for the payment of the contributions due thereon, with the added
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penalties, interest, or benefit overpayment and penalties, and costs, and to return the warrant to
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the division and pay into the fund the money collected by virtue of the warrant by a time to be
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specified in the warrant, not more than 60 days from the date of the warrant.
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(b) (i) Immediately upon receipt of the warrant in duplicate, the sheriff shall file the
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duplicate with the clerk of the district court in the sheriff's county.
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(ii) The clerk shall enter in the judgment docket, in the column for judgment debtors,
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the name of the delinquent employer or claimant mentioned in the warrant, and in appropriate
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columns the amount of the contribution, penalties, interest, or benefit overpayment and
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penalties, and costs, for which the warrant is issued and the date when the duplicate is filed.
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(c) The amount of the docketed warrant shall:
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(i) have the force and effect of an execution against all personal property of the
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delinquent employer; and
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(ii) become a lien upon the real property of the delinquent employer or claimant in the
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same manner and to the same extent as a judgment duly rendered by a district court and
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docketed in the office of the clerk.
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(d) After docketing, the sheriff shall:
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(i) proceed in the same manner as is prescribed by law with respect to execution issued
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against property upon judgments of a court of record; and
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(ii) be entitled to the same fees for the sheriff's services in executing the warrant, to be
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collected in the same manner.
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(6) (a) Contributions imposed by this chapter are a lien upon the property of an
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employer liable for the contribution required to be collected under this section who shall sell
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out the employer's business or stock of goods or shall quit business, if the employer fails to
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make a final report and payment on the date subsequent to the date of selling or quitting
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business on which they are due and payable as prescribed by rule.
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(b) (i) An employer's successor, successors, or assigns, if any, are required to withhold
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sufficient of the purchase money to cover the amount of the contributions and interest or
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penalties due and payable until the former owner produces a receipt from the division showing
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that they have been paid or a certificate stating that no amount is due.
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(ii) If the purchaser of a business or stock of goods fails to withhold sufficient purchase
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money, the purchaser [shall be] is personally liable for the payment of the amount of the
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contributions required to be paid by the former owner, interest and penalties accrued and
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unpaid by the former owner, owners, or assignors.
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(7) (a) If an employer is delinquent in the payment of a contribution, the division may
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give notice of the amount of the delinquency by registered mail to all persons having in their
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possession or under their control, any credits or other personal property belonging to the
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employer, or owing any debts to the employer at the time of the receipt by them of the notice.
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(b) A person notified under Subsection (7)(a) shall neither transfer nor make any other
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disposition of the credits, other personal property, or debts until:
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(i) the division has consented to a transfer or disposition; or
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(ii) 20 days after the receipt of the notice.
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(c) All persons notified under Subsection (7)(a) shall, within five days after receipt of
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the notice, advise the division of credits, other personal property, or other debts in their
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possession, under their control or owing by them, as the case may be.
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(8) (a) (i) Each employer shall furnish the division necessary information for the proper
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administration of this chapter and shall include wage information for each employee, for each
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calendar quarter.
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(ii) The information shall be furnished at a time, in the form, and to those individuals
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as the department may by rule require.
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(b) (i) Each employer shall furnish each individual worker who is separated that
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information as the department may by rule require, and shall furnish within 48 hours of the
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receipt of a request from the division a report of the earnings of any individual during the
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individual's base-period.
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(ii) The report shall be on a form prescribed by the division and contain all information
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prescribed by the division.
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(c) (i) For each failure by an employer to conform to this Subsection (8) the division
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shall, unless good cause is shown [to the satisfaction of the division for the failure], assess a
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$50 penalty if the filing was not more than 15 days late.
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(ii) If the filing is more than 15 days late, the division shall assess an additional penalty
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of $50 for each 15 days, or a fraction of the 15 days that the filing is late, not to exceed $250
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per filing.
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(iii) The penalty is to be collected in the same manner as contributions due under this
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chapter.
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(d) The division shall prescribe rules providing standards for determining which
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contribution reports must be filed on magnetic media or in other machine-readable form. In
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prescribing these rules, the division:
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(i) [shall] may not require any employer to file contribution reports on magnetic media
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unless that employer is required to file wage data on at least 250 employees during any
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calender quarter;
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(ii) shall take into account, among other relevant factors, the ability of the employer to
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comply at reasonable cost with the requirements of the rules; and
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(iii) may require an employer to post a bond for failure to comply with the rules
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required by this Subsection (8)(d).
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(9) (a) (i) An employer liable for payments in lieu of contributions shall file
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Reimbursable Employment and Wage Reports.
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(ii) The reports are due on the last day of the month that follows the end of each
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calendar quarter unless the division, after giving notice, changes the due date.
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(iii) A report postmarked on or before the due date is considered timely.
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(b) (i) Unless the employer can show good cause, the division shall assess a $50
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penalty against an employer who does not file Reimbursable Employment and Wage Reports
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within the time limits set out in Subsection (9)(a) if the filing was not more than 15 days late.
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(ii) If the filing is more than 15 days late, the division shall assess an additional penalty
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of $50 for each 15 days, or a fraction of the 15 days that the filing is late, not to exceed $250
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per filing.
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(iii) The division shall assess and collect the penalties referred to in this Subsection
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(9)(b) in the same manner as prescribed in Sections
35A-4-309
and
35A-4-311
.
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[(9)] (10) If a person liable to pay a contribution or benefit overpayment imposed by
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this chapter neglects or refuses to pay it after demand, the amount, including any interest,
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additional amount, addition to contributions, or assessable penalty, together with any additional
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accruable costs, shall be a lien in favor of the division upon all property and rights to property,
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whether real or personal belonging to the person.
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[(10)] (11) (a) The lien imposed by Subsection [(9)] (10) arises at the time the
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assessment, as defined in the department rules, is made and continues until the liability for the
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amount assessed, or a judgment against the taxpayer arising out of the liability, is satisfied.
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(b) The lien imposed by Subsection [(9)] (10) is not valid as against any purchaser,
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holder of a security interest, mechanics' lien holder, or judgment lien creditor until a warrant
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which meets the requirements of Subsection (5) has been filed with the clerk of the district
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court. For the purposes of this Subsection [(10)] (11)(b):
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(i) "Judgment lien creditor" means a person who obtains a valid judgment of a court of
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record for recovery of specific property or a sum certain of money, and who in the case of a
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recovery of money, has a perfected lien under the judgment on the property involved. A
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judgment lien does not include inchoate liens such as attachment or garnishment liens until
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they ripen into a judgment. A judgment lien does not include the determination or assessment
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of a quasi-judicial authority, such as a state or federal taxing authority.
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(ii) "Mechanics' lien holder" means any person who has a lien on real property, or on
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the proceeds of a contract relating to real property, for services, labor, or materials furnished in
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connection with the construction or improvement of the property. A person has a lien on the
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earliest date the lien becomes valid against subsequent purchasers without actual notice, but not
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before the person begins to furnish the services, labor, or materials.
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(iii) "Person" means:
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(A) an individual;
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(B) a trust;
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(C) an estate;
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(D) a partnership;
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(E) an association;
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(F) a company;
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(G) a limited liability company;
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(H) a limited liability partnership; or
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(I) a corporation.
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(iv) "Purchaser" means a person who, for adequate and full consideration in money or
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money's worth, acquires an interest, other than a lien or security interest, in property which is
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valid under state law against subsequent purchasers without actual notice.
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(v) "Security interest" means any interest in property acquired by contract for the
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purpose of securing payment or performance of an obligation or indemnifying against loss or
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liability. A security interest exists at any time:
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(A) the property is in existence and the interest has become protected under the law
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against a subsequent judgment lien arising out of an unsecured obligation; and
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(B) to the extent that, at that time, the holder has parted with money or money's worth.
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Section 2.
Section
35A-4-309
is amended to read:
274
35A-4-309. Nonprofit organizations -- Contributions -- Payments in lieu of
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contributions.
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(1) Notwithstanding any other provisions of this chapter for payments by employers,
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benefits paid to employees of nonprofit organizations, as described in Section 501(c)(3) of the
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Internal Revenue Code, 26 U.S.C. 501(c)(3), that [is] are exempt from income tax under
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Section 501(a), shall be financed in accordance with the following provisions:
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(a) Any nonprofit organization which is, or becomes, subject to this chapter [on or after
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January 1, 1972,] shall pay contributions under [the provisions of] Section
35A-4-303
, unless it
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elects in accordance with this Subsection (1) to pay to the division for the unemployment fund
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an amount equal to the amount of regular benefits and of 1/2 of the extended benefits paid that
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is attributable to service in the employ of [such] the nonprofit organization, to individuals for
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weeks of unemployment that begin during the effective period of this election.
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(b) (i) Any nonprofit organization that is, or becomes, subject to this chapter [on or
287
after January 1, 1972,] may elect to become liable for payments in lieu of contributions for a
288
period of not less than one contribution year beginning with the date on which the organization
289
becomes subject to this chapter.
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(ii) The nonprofit organization shall file a written notice of its election with the
291
division not later than 30 days immediately following the date that the division gives notice to
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the organization that it is subject to this chapter.
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(c) Any nonprofit organization that makes an election in accordance with Subsection
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(1)(b)(i) shall continue to be liable for payments in lieu of contributions until it files with the
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division a written notice terminating its election, not later than 30 days prior to the beginning of
296
the contribution year for which this termination shall first be effective.
297
(d) (i) Any nonprofit organization that has been paying contributions under this chapter
298
for a period subsequent to January 1, 1972, may change to a reimbursable basis by filing with
299
the division, no later than 30 days prior to the beginning of any contribution year, a written
300
notice of election to become liable for payments in lieu of contributions.
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(ii) This election is not terminable by the organization for that year or the next year.
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(e) The division may, for good cause, extend the period within which a notice of
303
election or a notice of termination must be filed and may permit an election to be retroactive
304
[but not with respect to benefits paid prior to January 1, 1970].
305
(f) (i) The division, in accordance with department rules, shall notify each nonprofit
306
organization of any determination that the division may make of the organization's status as an
307
employer, of the effective date of any election that it makes, and of any termination of this
308
election.
309
(ii) These determinations shall be subject to reconsideration, appeal, and review in
310
accordance with [the provisions of] Section
35A-4-508
.
311
(2) Payments in lieu of contributions shall be made in accordance with [the provisions
312
of] this Subsection (2).
313
(a) At the end of each calendar month, or at the end of any other period as determined
314
by the division, the division shall bill each nonprofit organization or group of [such] nonprofit
315
organizations that has elected to make payments in lieu of contributions for an amount equal to
316
the full amount of regular benefits plus 1/2 of the amount of extended benefits paid during this
317
month or other prescribed period that is attributable to service in the employ of the
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organization.
319
[(b) (i) Every nonprofit organization that has elected payments in lieu of contributions
320
may request permission to make payments under one of the methods provided in Subsection
321
(2)(b). The method selected becomes effective upon approval by the division. At the end of
322
each calendar month, or at the end of such other period as determined by the division, the
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division shall bill each organization for an amount representing the organization's choice of the
324
following:]
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[(A) for 1972, 0.1% of its total payroll for 1971;]
326
[(B) for years after 1972, the percentage of its total payroll for the immediately
327
preceding calendar year as determined by the division, based upon the average benefit costs
328
attributable to service in the employ of nonprofit organizations during the preceding calendar
329
year; or]
330
[(C) for any organization that did not pay wages throughout the four calendar quarters
331
of the preceding calendar year, the percentage of its payroll during the year as determined by
332
the division.]
333
[(ii) At the end of each contribution year, the division may modify the monthly or other
334
period's percentage of payroll thereafter payable by the nonprofit organization in order to
335
minimize excess or insufficient payments.]
336
[(iii) At the end of each contribution year, the division shall determine whether the
337
total of payments for the year made by a nonprofit organization is less than, or in excess of, the
338
total amount of regular benefits plus 1/2 of the amount of extended benefits paid to individuals
339
during the contribution year based on wages attributable to service in the employ of the
340
organization. Each nonprofit organization whose total payments for the year are less than the
341
amount so determined shall be liable for payment of the unpaid balance to the fund in
342
accordance with Subsection (2)(c). If the total payments exceed the amount so determined for
343
the contribution year, all or a part of the excess may, at the discretion of the division, be
344
refunded from the fund or retained in the fund as part of the payments that may be required for
345
the next contribution year.]
346
[(c)] (b) Payment of any bill rendered under Subsection (2)(a) [or (2)(b)] shall be made
347
no later than 30 days after the bill was mailed to the last-known address of the nonprofit
348
organization or was otherwise delivered to it, unless there has been an application for review
349
and redetermination in accordance with Subsection (2)[(e)](d).
350
[(d)] (c) Payments made by any nonprofit organization under [the provisions of]
351
Subsection (2) [shall] may not be deducted or deductible, in whole or in part, from the
352
remuneration of individuals in the employ of the organization.
353
[(e)] (d) (i) The amount due specified in any bill from the division shall be conclusive
354
on the organization unless, not later than 15 days after the bill was mailed to its last-known
355
address or otherwise delivered to it, the organization files an application for redetermination by
356
the division or an appeal to the Workforce Appeals Board, setting forth the grounds for the
357
application or appeal.
358
(ii) The division shall promptly review and reconsider the amount due specified in the
359
bill and shall thereafter issue a redetermination in any case in which the application for
360
redetermination has been filed.
361
(iii) Any redetermination shall be conclusive on the organization unless, no later than
362
15 days after the redetermination was mailed to its last known address or otherwise delivered to
363
it, the organization files an appeal to a Workforce Appeals Board in accordance with Section
364
35A-4-508
and Chapter 1, Part 3, Adjudicative Proceedings, setting forth the grounds for the
365
appeal.
366
(iv) Proceedings on appeal to the Workforce Appeals Board from the amount of a bill
367
rendered under Subsection (2) or a redetermination of the amount shall be in accordance with
368
Section
35A-4-508
.
369
[(f)] (e) Past due payments of amounts in lieu of contributions [shall be] are subject to
370
the same interest and penalties that, under Subsection
35A-4-305
(1), attach to past due
371
contributions.
372
(3) If any nonprofit organization is delinquent in making payments in lieu of
373
contributions as required under Subsection (2), the division may terminate the organization's
374
election to make payment in lieu of contributions as of the beginning of the next contribution
375
year, and [this] the termination [shall be] is effective for that and the next contribution year.
376
(4) (a) In the discretion of the division, any nonprofit organization that elects to
377
become liable for payments in lieu of contributions shall be required, within 30 days after the
378
effective date of its election, to deposit money with the division.
379
(b) The amount of the deposit shall be determined in accordance with [the provisions
380
of] this Subsection (4).
381
[(a)] (c) (i) The amount of the deposit required by this Subsection (4) shall be equal to
382
1% of the organization's total wages paid for employment as defined in Section
35A-4-204
for
383
the four calendar quarters immediately preceding the effective date of the election, or the
384
biennial anniversary of the effective date of election, whichever date shall be most recent and
385
applicable.
386
(ii) If the nonprofit organization did not pay wages in each of these four calendar
387
quarters, the amount of the deposit [shall be] is as determined by the division.
388
[(b)] (d) (i) Any deposit of money in accordance with this Subsection (4) shall be
389
retained by the division in an escrow account until liability under the election is terminated, at
390
which time it shall be returned to the organization, less any deductions as provided in this
391
Subsection (4).
392
(ii) The division may deduct from the money deposited under this Subsection (4) by a
393
nonprofit organization to the extent necessary to satisfy any due and unpaid payments in lieu of
394
contributions and any applicable interest and penalties provided for in Subsection (2)[(f)](e).
395
(iii) The division shall require the organization within 30 days following any deduction
396
from a money deposit under [the provisions of] this Subsection (4) to deposit sufficient
397
additional money to make whole the organization's deposit at the prior level.
398
(iv) (A) The division may, at any time, review the adequacy of the deposit made by any
399
organization.
400
(B) If, as a result of this review, the division determines that an adjustment is
401
necessary, it shall require the organization to make additional deposit within 30 days of written
402
notice of the division's determination or shall return to it any portion of the deposit the division
403
no longer considers necessary, as considered appropriate.
404
[(c)] (e) If any nonprofit organization fails to make a deposit, or to increase or make
405
whole the amount of a previously made deposit, as provided under this Subsection (4), the
406
division may terminate the organization's election to make payments in lieu of contributions.
407
[(d)] (f) (i) Termination under Subsection (4)[(c)](e) shall continue for not less than the
408
four-consecutive-calendar-quarter period beginning with the quarter in which the termination
409
becomes effective.
410
(ii) The division may extend for good cause the applicable filing, deposit, or
411
adjustment period by not more than 60 days.
412
(5) (a) Each employer liable for payments in lieu of contributions shall pay to the
413
division for the fund the amount of regular benefits plus the amount of 1/2 of extended benefits
414
paid that are attributable to service in the employ of the employer.
415
(b) If benefits paid to an individual are based on wages paid by more than one
416
employer and one or more of these employers are liable for payments in lieu of contributions,
417
the amount payable to the fund by each employer liable for the payments shall be determined in
418
accordance with [the provisions of] Subsection (5)[(a)](c) or [(b)] (d).
419
[(a)] (c) If benefits paid to an individual are based on wages paid by one or more
420
employers who are liable for payments in lieu of contributions and on wages paid by one or
421
more employers who are liable for contributions, the amount of benefits payable by each
422
employer that is liable for payments in lieu of contributions shall be an amount that bears the
423
same ratio to the total benefits paid to the individual as the total base-period wages paid to the
424
individual by [such] that employer bear to the total base-period wages paid to the individual by
425
all of the individual's base-period employers.
426
[(b)] (d) If benefits paid to an individual are based on wages paid by two or more
427
employers who are liable for payments in lieu of contributions, the amount of benefits payable
428
by each [such employer] of those employers shall be an amount which bears the same ratio to
429
the total benefits paid to the individual as the total base-period wages paid to the individual by
430
the employer bear to the total base-period wages paid to the individual by all of the
431
individual's base-period employers.
432
(6) (a) (i) Two or more employers who have become liable for payments in lieu of
433
contributions, in accordance with [the provisions of] this section and Subsection
434
35A-4-204
(2)(d), may file a joint application to the division for the establishment of a group
435
account for the purpose of sharing the cost of benefits paid that are attributable to service in the
436
employ of these employers.
437
(ii) Each application shall identify and authorize a group representative to act as the
438
group's agent for the purpose of this Subsection (6).
439
(b) (i) Upon approval of the application, the division shall establish a group account for
440
these employers effective as of the beginning of the calendar quarter in which it receives the
441
application and shall notify the group's representative of the effective date of the account.
442
(ii) This account shall remain in effect for not less than two contribution years and
443
thereafter until terminated at the discretion of the division or upon application by the group.
444
(c) Upon establishment of the account, each member of the group [shall be] is liable
445
for payments in lieu of contributions with respect to each calendar quarter in the amount that
446
bears the same ratio to the total benefits paid in such quarter attributable to service performed
447
in the employ of all members of the group as the total wages paid for service in employment by
448
such member in such quarter bear to the total wages paid during such quarter for service
449
performed in the employ of all members of the group.
450
(d) The department shall prescribe rules, with respect to applications for establishment,
451
maintenance, and termination of group accounts authorized by this Subsection (6), for addition
452
of new members to, and withdrawal of active members from, these accounts, for the
453
determination of the amounts that are payable under this Subsection (6) by members of the
454
group, and the time and manner of these payments.
455
(7) (a) An employing unit that acquires a nonprofit organization or substantially all the
456
assets of a nonprofit organization that has elected reimbursable coverage as defined in
457
Subsection (1), in accordance with rules made by the commission, shall be given the subject
458
date of the transferring nonprofit organization, provided the transferring nonprofit organization
459
ceases to operate as an employing unit at the point of acquisition.
460
(b) The acquiring entity shall reimburse the Unemployment Compensation Fund for the
461
transferring nonprofit organization's share of any unreimbursed benefits paid to former
462
employees of the transferring nonprofit organization.
463
Section 3.
Section
35A-4-310
is amended to read:
464
35A-4-310. Employing units.
465
(1) (a) Any employing unit that is or becomes an employer subject to this chapter
466
within any calendar quarter [shall be] is subject to this chapter during the [whole of the] entire
467
calendar quarter.
468
(b) (i) No employing unit is liable as an employer under Section
35A-4-302
for any
469
period prior to three calendar years immediately preceding the calendar year in which the
470
division determines the employing unit to be an employer as defined in Section
35A-4-203
.
471
(ii) This limitation does not apply if the division determines that the employing unit
472
knowingly or willfully failed to report to the division to avoid liability for contributions
473
imposed by this chapter.
474
[(2) (a) Except as otherwise provided in Subsection (3), an employing unit shall cease
475
to be an employer subject to this chapter only as of the first day of January of any calendar
476
year, if it files with the division, prior to the last day of March of such year, a written
477
application for termination of coverage, and the division finds that there was no calendar
478
quarter within the preceding calendar year during which there were wages paid for employment
479
amounting to a total of $140 or more.]
480
[(b)] (2) Notwithstanding the other provisions of this section, the division may on its
481
own initiative terminate coverage when it finds that an employing unit had no calendar quarter
482
within the preceding calendar year during which there were wages paid for employment
483
[amounting to a total of $140 or more] and the division finds that during the preceding calendar
484
year the employing unit did not meet any of the conditions for subjectivity to this chapter.
485
(3) (a) (i) An employing unit not otherwise subject to this chapter that files with the
486
division its written election to become an employer subject to this chapter for not less than two
487
calendar years shall, with the written approval of the election by the division, become an
488
employer subject to this chapter to the same extent as all other employers, as of the date stated
489
in the approval[, and].
490
(ii) The employing unit shall cease to be subject to this chapter as of January 1 of any
491
calendar year subsequent to [such] the two calendar years, referred to in Subsection (3)(a)(i)
492
only if, at least 30 days prior to the first day of January, it has filed with the division a written
493
notice to the effect.
494
(b) (i) Services which do not constitute employment as defined in this chapter shall,
495
upon the filing by the employing unit for whom the services are performed of a written election
496
that services performed by individuals in its employ in one or more distinct establishments or
497
places of work shall be considered to constitute employment for all the purposes of this chapter
498
for not less than two calendar years, and upon the written approval of the election by the
499
division, be considered to constitute employment subject from and after the date stated in
500
[such] the approval[, and].
501
(ii) The services referred to in Subsection (3)(b)(i) shall cease to be considered to be
502
employment subject to this chapter as of January 1 of any calendar year subsequent to the two
503
calendar years only if, at least 30 days prior to the first day of January, the employing unit has
504
filed with the division a written notice to that effect.
505
Section 4.
Section
35A-4-405
is amended to read:
506
35A-4-405. Ineligibility for benefits.
507
[An] Except as otherwise provided in Subsection (5), an individual is ineligible for
508
benefits or for purposes of establishing a waiting period:
509
(1) (a) For the week in which the claimant left work voluntarily without good cause, if
510
so found by the division, and for each week thereafter until the claimant has performed services
511
in bona fide, covered employment and earned wages for those services equal to at least six
512
times the claimant's weekly benefit amount.
513
(b) A claimant [shall] may not be denied eligibility for benefits if the claimant leaves
514
work under circumstances [of such a nature that] where it would be contrary to equity and good
515
conscience to impose a disqualification.
516
(c) Using available information from employers and the claimant, the division shall
517
consider for the purposes of this chapter the reasonableness of the claimant's actions, and the
518
extent to which the actions evidence a genuine continuing attachment to the labor market in
519
reaching a determination of whether the ineligibility of a claimant is contrary to equity and
520
good conscience.
521
(d) Notwithstanding any other subsection of this section, a claimant who has left work
522
voluntarily to accompany, follow, or join the claimant's spouse to or in a new locality does so
523
without good cause for purposes of Subsection (1).
524
(2) (a) For the week in which the claimant was discharged for just cause or for an act or
525
omission in connection with employment, not constituting a crime, which is deliberate, willful,
526
or wanton and adverse to the employer's rightful interest, if so found by the division, and
527
thereafter until the claimant has earned an amount equal to at least six times the claimant's
528
weekly benefit amount in bona fide covered employment.
529
(b) For the week in which [he] the claimant was discharged for dishonesty constituting
530
a crime or any felony or class A misdemeanor in connection with [his] the claimant's work as
531
shown by the facts, together with [his] the claimant's admission, or as shown by [his] the
532
claimant's conviction of that crime in a court of competent jurisdiction and for the 51 next
533
following weeks.
534
(c) Wage credits shall be deleted from the claimant's base period, and are not available
535
for this or any subsequent claim for benefits.
536
(3) (a) (i) If the division finds that the claimant has failed without good cause to
537
properly apply for available suitable work, to accept a referral to suitable work offered by the
538
employment office, or to accept suitable work offered by an employer or the employment
539
office.
540
(ii) The ineligibility continues until the claimant has performed services in bona fide
541
covered employment and earned wages for the services in an amount equal to at least six times
542
the claimant's weekly benefit amount.
543
(b) (i) A claimant [shall] may not be denied eligibility for benefits for failure to apply,
544
accept referral, or accept available suitable work under circumstances [of such a nature that]
545
where it would be contrary to equity and good conscience to impose a disqualification.
546
(ii) The division shall consider the purposes of this chapter, the reasonableness of the
547
claimant's actions, and the extent to which the actions evidence a genuine continuing
548
attachment to the labor market in reaching a determination of whether the ineligibility of a
549
claimant is contrary to equity and good conscience.
550
(c) In determining whether [or not] work is suitable for an individual, the division shall
551
consider the:
552
(i) degree of risk involved to his health, safety, and morals;
553
(ii) individual's physical fitness and prior training;
554
(iii) individual's prior earnings and experience;
555
(iv) individual's length of unemployment;
556
(v) prospects for securing local work in his customary occupation;
557
(vi) wages for similar work in the locality; and
558
(vii) distance of the available work from his residence.
559
(d) Prior earnings shall be considered on the basis of all four quarters used in
560
establishing eligibility and not just the earnings from the most recent employer. The division
561
shall be more prone to find work as suitable the longer the claimant has been unemployed and
562
the less likely the prospects are to secure local work in his customary occupation.
563
(e) Notwithstanding any other provision of this chapter, no work is suitable, and
564
benefits [shall] may not be denied under this chapter to any otherwise eligible individual for
565
refusing to accept new work under any of the following conditions:
566
(i) if the position offered is vacant due directly to a strike, lockout, or other labor
567
dispute;
568
(ii) if the wages, hours, or other conditions of the work offered are substantially less
569
favorable to the individual than those prevailing for similar work in the locality; or
570
(iii) if as a condition of being employed the individual would be required to join a
571
company union or to resign from or refrain from joining any bona fide labor organization.
572
(4) For any week in which the division finds that [his] the claimant's unemployment is
573
due to a stoppage of work that exists because of a strike involving [his] the claimant's grade,
574
class, or group of workers at the factory or establishment at which [he] the claimant is or was
575
last employed.
576
(a) If the division finds that a strike has been fomented by a worker of any employer,
577
none of the workers of the grade, class, or group of workers of the individual who is found to
578
be a party to the plan, or agreement to foment a strike, shall be eligible for benefits. However,
579
if the division finds that the strike is caused by the failure or refusal of any employer to
580
conform to [the provisions of] any law of the state or of the United States pertaining to hours,
581
wages, or other conditions of work, the strike [shall] may not render the workers ineligible for
582
benefits.
583
(b) If the division finds that the employer, [his] the employer's agent or representative
584
has conspired, planned, or agreed with any of [his] the employer's workers, their agents or
585
representatives to foment a strike, that strike [shall] may not render the workers ineligible for
586
benefits.
587
(c) A worker may receive benefits if, subsequent to [his] the worker's unemployment
588
because of a strike as defined in this Subsection (4), [he] the worker has obtained employment
589
and has been paid wages of not less than the amount specified in Subsection
35A-4-401
(4) and
590
has worked as specified in Subsection
35A-4-403
(1)(f). During the existence of the stoppage
591
of work due to this strike the wages of the worker used for the determination of his benefit
592
rights [shall] may not include any wages [he] the worker earned from the employer involved in
593
the strike.
594
(5) (a) For each week with respect to which the claimant willfully made a false
595
statement or representation or knowingly failed to report a material fact to obtain any benefit
596
under the provisions of this chapter, and an additional 13 weeks for the first week the statement
597
or representation was made or fact withheld and six weeks for each week thereafter; the
598
additional weeks not to exceed 49 weeks.
599
(b) The additional period shall commence on the Sunday following the issuance of a
600
determination finding the claimant in violation of this Subsection (5).
601
(c) (i) Each [individual] claimant found in violation of this Subsection (5) shall repay
602
to the division the [amount of benefits the claimant actually received] overpayment and, as a
603
civil penalty, an amount equal to the [benefits the claimant received by direct reason of his
604
fraud] overpayment.
605
(ii) The overpayment is the amount of benefits the claimant received by direct reason
606
of fraud.
607
(iii) The penalty amount shall be regarded as any other penalty under this chapter.
608
(iv) These amounts shall be collectible by civil action or warrant in the manner
609
provided in Subsections
35A-4-305
(3) and (5).
610
(d) A claimant is ineligible for future benefits or waiting week credit, and any wage
611
credits earned by the claimant shall be unavailable for purposes of paying benefits, if any
612
amount owed under this Subsection (5) remains unpaid.
613
(e) Determinations under this Subsection (5) shall be appealable in the manner
614
provided by this chapter for appeals from other benefit determinations.
615
(f) If the fraud determination is based solely on unreported or under reported work or
616
earnings, or both, and the claimant would have been eligible for benefits if the work or
617
earnings, or both, had been correctly reported, the individual does not lose eligibility because of
618
the misreporting but is liable for the overpayment and the penalties in Subsection (5)(c).
619
(6) For any week with respect to which or a part of which [he] the claimant has
620
received or is seeking unemployment benefits under an unemployment compensation law of
621
another state or the United States. If the appropriate agency of the other state or of the United
622
States finally determines that [he] the claimant is not entitled to those unemployment benefits,
623
this disqualification does not apply.
624
(7) (a) For any week with respect to which [he] the claimant is receiving, has received,
625
or is entitled to receive remuneration in the form of:
626
(i) wages in lieu of notice, or a dismissal or separation payment; or
627
(ii) accrued vacation or terminal leave payment.
628
(b) If the remuneration is less than the benefits that would otherwise be due, [he] the
629
claimant is entitled to receive for that week, if otherwise eligible, benefits reduced as provided
630
in Subsection
35A-4-401
(3).
631
(8) (a) For any week in which the individual's benefits are based on service for an
632
educational institution in an instructional, research, or principal administrative capacity and
633
that begins during the period between two successive academic years, or during a similar
634
period between two regular terms, whether or not successive, or during a period of paid
635
sabbatical leave provided for in the individual's contract if the individual performs services in
636
the first of those academic years or terms and if there is a contract or reasonable assurance that
637
the individual will perform services in that capacity for an educational institution in the second
638
of the academic years or terms.
639
(b) (i) For any week in which the individual's benefits are based on service in any other
640
capacity for an educational institution, and that week begins during a period between two
641
successive academic years or terms if the individual performs those services in the first of the
642
academic years or terms and there is a reasonable assurance that the individual will perform the
643
services in the second of the academic years or terms.
644
(ii) If compensation is denied to any individual under this Subsection (8) and the
645
individual was not offered an opportunity to perform the services for the educational institution
646
for the second of the academic years or terms, the individual shall be entitled to a retroactive
647
payment of compensation for each week for which the individual filed a timely claim for
648
compensation and for which compensation was denied solely by reason of this Subsection (8).
649
(c) With respect to any services described in Subsection (8)(a) or (b), compensation
650
payable on the basis of those services shall be denied to an individual for any week that
651
commences during an established and customary vacation period or holiday recess if the
652
individual performs the services in the period immediately before the vacation period or
653
holiday recess, and there is a reasonable assurance that the individual will perform the services
654
in the period immediately following the vacation period or holiday recess.
655
(d) (i) With respect to services described in Subsection (8)(a) or (b), compensation
656
payable on the basis of those services as provided in Subsection (8)(a), (b), or (c) shall be
657
denied to an individual who performed those services in an educational institution while in the
658
employ of an educational service agency.
659
(ii) For purposes of this Subsection (8)(d), "educational service agency" means a
660
governmental agency or entity established and operated exclusively for the purpose of
661
providing the services described in Subsection (8)(a) or (b) to an educational institution.
662
(e) Benefits based on service in employment, defined in Subsections
35A-4-204
(2)(d)
663
and (e) are payable in the same amount, on the same terms and subject to the same conditions
664
as compensation payable on the basis of other service subject to this chapter.
665
(9) For any week that commences during the period between two successive sport
666
seasons or similar periods if the individual performed any services, substantially all of which
667
consists of participating in sports or athletic events or training or preparing to participate in the
668
first of those seasons or similar periods and there is a reasonable assurance that individual will
669
perform those services in the later of the seasons or similar periods.
670
(10) (a) For any week in which the benefits are based upon services performed by an
671
alien, unless the alien is an individual who has been lawfully admitted for permanent residence
672
at the time the services were performed, was lawfully present for purposes of performing the
673
services or, was permanently residing in the United States under color of law at the time the
674
services were performed, including an alien who is lawfully present in the United States as a
675
result of the application of Subsection 212(d)(5) of the Immigration and Nationality Act, 8
676
U.S.C. 1182(d)(5)(A).
677
(b) Any data or information required of individuals applying for benefits to determine
678
whether benefits are not payable to them because of their alien status shall be uniformly
679
required from all applicants for benefits.
680
(c) In the case of an individual whose application for benefits would otherwise be
681
approved, no determination that benefits to the individual are not payable because of his alien
682
status shall be made except upon a preponderance of the evidence.
683
Section 5.
Section
78-23-10
is amended to read:
684
78-23-10. Allowable claims against exempt property.
685
(1) Notwithstanding other provisions of this chapter, but subject to the provisions of
686
the Utah Uniform Consumer Credit Code:
687
(a) A creditor may levy against exempt property of any kind, except unemployment
688
benefits, to enforce a claim for:
689
(i) alimony, support, or maintenance;
690
(ii) unpaid earnings of up to one month's compensation or the full-time equivalent of
691
one month's compensation for personal services of an employee; or
692
(iii) state or local taxes.
693
(b) The only deductions that can be withheld from unemployment benefits are those
694
listed in Section
35A-4-103
.
695
[(b)] (c) A creditor may levy against exempt property to enforce a claim for:
696
(i) the purchase price of the property or a loan made for the purpose of enabling an
697
individual to purchase the specific property used for that purpose;
698
(ii) labor or materials furnished to make, repair, improve, preserve, store, or transport
699
the specific property; and
700
(iii) a special assessment imposed to defray costs of a public improvement benefiting
701
the property.
702
(2) This section does not affect the right to enforce any statutory lien or security
703
interest in exempt property.
704
Section 6. Effective date.
705
This bill takes effect on July 1, 2004.
Legislative Review Note
as of 10-15-03 4:03 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
Interim Committee Note
as of 12-09-03 9:04 AM
The Workforce Services and Community and Economic Development Interim Committee
recommended this bill.
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