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  • Acts
  • 2003
  • Chapter 142 AN ACT RELATIVE TO THE REFORM OF THE UNEMPLOYMENT INSURANCE SYSTEM.

Whereas , The deferred operation of this act would tend to defeat its purpose, which is to reform forthwith the unemployment insurance system, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public welfare.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 9N of chapter 23 of the General Laws is hereby amended by inserting after the word "employees", in line 8, as appearing in the 2002 Official Edition, the following words:- from a list of 3 persons recommended by the president of the Massachusetts AFL-CIO.

SECTION 1A. Subsection (a) of section 9N of chapter 23 of the General Laws, as most recently amended by section 558 of chapter 26 of the acts of 2003, is hereby further amended by adding the following 4 paragraphs:-

The state advisory council shall serve as the nominating panel for the board of review established pursuant to subsection (b). Before any submission of nominations for appointment or reappointment to the board of review, the advisory council shall review applications for such nominations and consider the following factors:

(1) skills in fact-finding;

(2) demonstrated basic understanding of the unemployment insurance law; and

(3) a bachelor's degree or demonstrated writing ability as evidenced by at least 4 years in positions in which writing skills are a major job responsibility.

The review shall be made on the basis of the application, experience, education and training of the applicant, writing samples, interviews, and any other information the panel may require. When the application is for reappointment, the panel shall review, in addition to any other information, the performance since the candidate's appointment including, but not limited to:

(1) three decisions written and selected by the applicant;

(2) where applicable, the total number of cases decided by the applicant heard by an appellate body, and the number of those cases which were remanded for further proceedings;

(3) any decisions of an appellate body which specifically reference the candidate's demeanor or temperament;

(4) at the discretion of the deputy director, written complaints from attorneys received by the deputy director regarding the candidate's demeanor or temperament; and

(5) evidence of any demonstrable bias against particular defendants, claimants or attorneys.

The state advisory council shall rate the candidate as highly qualified, qualified or unqualified.

Any information regarding a candidate compiled by the state advisory council or the deputy director shall be forwarded to the governor. If the candidate is appointed or reappointed by the governor the performance evaluation and any ratings by the council shall be forwarded to the executive council.

SECTION 2. Said section 9N of said chapter 23, as so amended, is hereby further amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) There shall be in the department a board of review consisting of 3 persons to be appointed by the governor, with the advice and consent of the council. Nominees to the board of review shall be selected from a list submitted to the governor by the state advisory council. Of the members first appointed, 1 shall be appointed for a term of 2 years, 1 for a term of 4 years and 1 for a term of 6 years and thereafter, as the term of a member expires, his successor shall be appointed for a term of 6 years. Vacancies shall be filled in like manner for the remainder of an unexpired term. All members shall serve until the qualification of their respective successors. The governor shall from time to time designate 1 of the members as chairman; provided, however, that the member designated as chairman shall be an attorney. The offices and the incumbents thereof shall not be subject to chapter 31 and the rules and regulations thereunder. The positions of chairman and each of the other members of the board shall be classified in accordance with section 45 of chapter 30 and the salaries shall be determined in accordance with section 46C of said chapter 30 and each member shall devote his full time during business hours to the duties of his office. Members of the board shall receive their traveling and other necessary expenses incurred in the performance of their duties.

SECTION 3. Section 13 of chapter 151A of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by adding the following 4 paragraphs:-

Should the commissioner determine at any time that the solvency of the Unemployment Compensation Fund is in jeopardy and the continuation of benefit payments or Federal loan repayments is in danger, he shall add to every employer's contribution rate a uniform secondary adjustment payment in an amount sufficient to ensure that the Federal loans can be repaid in full before September 30.

Each employer shall be required to make contributions authorized pursuant to this section, in addition to any other payments required under this chapter, in accordance with the following table:

Employer Account
Reserve Percentage
Rate
Negative Percentage
7.0 or more
0.9
3.0 but less than 7.0
0.8
0.0 but less than 3.0
0.7
Positive Percentage
0.0 but less than 4.0
0.6
4.0 but less than 9.0
0.5
9.0 but less than 13.5
0.4
13.5 or more
0.3

The secondary adjustment payments shall be paid to the commissioner in accordance with the procedures prescribed by the commissioner. The commissioner shall deposit the receipts of such payments into the Unemployment Compensation Fund established in section 48 or the Federal Loan Interest Fund established in section 14K. Such payments shall not be subject to the allowable state tax revenue limitations established by chapter 29B or chapter 62F. Prior to the depositing of the receipts, the commissioner may deduct all administrative costs incurred as a result of this section, including an amount as determined by the United States Secretary of Labor in accordance with federal cost rules, if applicable.

Except where inconsistent with the terms of this section, the terms and conditions of this chapter which are applicable to the payments and the collection of contributions shall apply to the same extent to the payment of and the collection of secondary adjustment payments, including that those payments shall be credited to each employer's account for the purpose of determining the employer's experience rate for the next succeeding calendar year pursuant to paragraph (1) of subsection (h) of section 14. Upon his determination that a secondary adjustment payment is due, the commissioner shall give notice to the joint committee on commerce and labor of the amount necessary for collection to maintain the solvency of the Fund. The notice shall be made within 10 days.

SECTION 4. Subsection (a) of section 14 of said chapter 151A, as so appearing, is hereby amended by striking out paragraph (4) and inserting in place thereof the following paragraph:-

(4) "Unemployment insurance taxable wage base", with respect to calendar years beginning on or after January 1, 2004, the term "unemployment insurance taxable wage base" shall mean $14,000.

SECTION 5. Subsection (i) of said section 14 of said chapter 151A, as so appearing, is hereby amended by striking out paragraph (1) and inserting in place thereof the following paragraph:-

(1) With respect to calendar years beginning on or after January 1, 2004, the experience rate of an employer qualifying therefor under subsection (b) shall be the rate which appears in the column headed by the unemployment compensation reserve percentage as of the applicable computation date and on the line with the applicable employer account reserve percentage as set forth in the experience rate table:

EXPERIENCE RATE TABLE UNEMPLOYMENT COMPENSATION FUND RESERVE PERCENTAGE

ABCDEFG
1.75% and
over
1.6% or
more but less
than 1.75%
1.4% or
more but less
than 1.6%
1.1% or
more but less
than 1.4%
0.8% or
more but less
than 1.1%
0.5% or
more but less
than 0.8%
less than
0.5%
Employer Account
Reserve Percentages
Negative Percentage
15 or more7.808.749.7810.9612.2713.7515.40
13.0 but less than 15.07.408.299.2810.4011.6413.0414.61
11.0 but less than 13.07.007.848.789.8311.0112.3413.82
9.0 but less than 11.06.607.398.289.2710.3911.6313.03
7.0 but less than 9.06.209.947.788.719.7610.9312.24
5.0 but less than 7.05.806.507.288.159.1310.2211.45
3.0 but less than 5.05.406.056.777.598.509.5210.66
1.0 but less than 3.05.005.606.277.027.878.819.87
0.0 but less than 1.04.605.155.776.467.248.119.08
Positive Percentage
0.0 but less than 0.53.904.374.895.486.146.877.70
0.5 but less than 1.03.804.264.775.345.986.707.50
1.0 but less than 1.53.704.144.645.205.826.527.30
1.5 but less than 2.03.604.034.525.065.666.347.11
2.0 but less than 2.53.503.924.394.925.516.176.91
2.5 but less than 3.03.403.814.264.785.355.996.71
3.0 but less than 3.53.303.704.144.645.195.826.51
3.5 but less than 4.03.203.584.014.505.045.646.32
4.0 but less than 4.53.103.473.894.364.885.466.12
4.5 but less than 5.03.003.363.764.214.725.295.92
5.0 but less than 5.52.903.253.644.074.565.115.72
5.5 but less than 6.02.803.143.513.934.414.935.53
6.0 but less than 6.52.703.023.393.794.254.765.33
6.5 but less than 7.02.602.913.263.654.094.585.13
7.0 but less than 7.52.502.803.143.513.934.414.93
7.5 but less than 8.02.402.693.013.373.784.234.74
8.0 but less than 8.52.302.582.893.233.624.054.54
8.5 but less than 9.02.202.462.763.093.463.884.34
9.0 but less than 9.52.102.352.632.953.303.704.15
9.5 but less than 10.02.002.242.512.813.153.523.95
10.0 but less than 10.51.902.132.382.672.993.353.75
10.5 but less than 11.01.802.022.262.532.833.173.55
11.0 but less than 11.51.701.902.132.392.673.003.36
11.5 but less than 12.01.601.792.012.252.522.823.16
12.0 but less than 12.51.501.681.882.112.362.642.96
12.5 but less than 13.01.401.571.761.972.202.472.76
13.0 but less than 13.51.301.461.631.832.052.292.57
13.5 but less than 14.01.201.341.511.691.892.112.37
14.0 but less than 15.01.001.121.251.401.571.761.97
15.0 but less than 16.00.901.011.131.261.421.591.78
16 or more0.800.901.001.121.261.411.58

SECTION 6. Section 14F of said chapter 151A, as so appearing, is hereby amended by striking out, in lines 29 and 30, the words "the months of January, April, and August" and inserting in place thereof the following words:- every month.

SECTION 7. Subsection (a) of section 15 of said chapter 151A, as so appearing, is hereby amended by adding the following paragraph:-

Notwithstanding section 47, if an employer or an officer or agent of an employer knowingly fails or refuses to pay any contribution, payment in lieu of contribution or interest charge or attempts in any manner to evade or defeat any contribution or payment in lieu of contribution or who knowingly makes a false statement or misrepresents the employment status of an individual under his employ to avoid or reduce any contribution, he shall be punished by a fine equal to the total amount of contributions owed, including any interest, in addition to a penalty equal to the total amount that the individual fraudulently collected during the total period in which such individual was under his employ.

SECTION 8. Subsection (e) of section 25 of said chapter 15lA is hereby amended by inserting after the eighth paragraph the following 2 paragraphs:-

A temporary employee of a temporary help firm shall be deemed to have voluntarily quit employment if the employee does not contact the temporary help firm for reassignment before filing for benefits and the unemployment benefits may be denied for failure to do so. Failure to contact the temporary help firm shall not be deemed a voluntary quitting unless the claimant has been advised of the obligation in writing to contact the firm upon completion of an assignment.

For the purposes of this paragraph, "temporary help firm" shall mean a firm that hires its own employees and assigns them to clients to support or supplement the client's workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects. "Temporary employee" shall mean an employee assigned to work for the clients of a temporary help firm.

SECTION 9. Said section 25 of said chapter 151A, as so appearing, is hereby amended by adding the following subsection:-

(j) Any week in which the individual fraudulently collects benefits while not in total or partial unemployment. Whoever fraudulently collects benefits while not in total or partial unemployment, may be disqualified for each otherwise compensable week for each such week of erroneous payment; provided, however, that the amount in question shall be reduced by any earnings disregard in subsection (d) of section 29; provided further, that in the discretion of the commissioner, an amount erroneously paid may be deducted first from any future payments of benefits accruing to the individual under this chapter; provided further, that the amount deducted each week shall not exceed 25 per cent of the individual's weekly unemployment benefit rate; and provided further, that the individual shall have had actual notice of the requirement to report his earnings and the notice shall have met the requirements of clause iii of subsection (d) of section 62A. Any individual subjected to a deduction under this section may file an appeal and obtain review in accordance with sections 39 to 42, inclusive, and section 71.

SECTION 10. Section 30 of said chapter 151A, as so appearing, is hereby amended by striking out, in line 5, the word "twenty-nine" and inserting in place thereof the following words:- 29; provided, however, that if in any month the average local unemployment for the last 12 months, as determined by the United States Department of Labor is equal to or below 5.1 per cent in each of the 10 metropolitan statistical areas of the commonwealth, the total benefits which an unemployed individual who then files a claim may receive during his benefit year shall be an amount equal to 36 per cent of his wages in the base period or an amount equal to 26 times his benefit rate, whichever is less, plus dependency benefits payable under said section 29; provided further that no such reduction in benefit rate from 30 times to 26 times the benefit rate due to the operation of this section shall occur to an individual's total benefit amount if, in any month during the individual's benefit year, the requirements of this section have not been met.

NO SECTION 11.

SECTION 12. Said section 47 of said chapter 151A, as so appearing, is hereby further amended by adding the following paragraph:-

On or before October 15 of the first year, the department shall file with the house and senate committees on ways and means and the clerks of the house of representatives and the senate and the joint committee on commerce and labor a report which shall contain a comprehensive evaluation of the effectiveness of collections and payments authorized by section 15, subsection (a) of section 47, section 58 and section 69D including, but not limited to, the total amount of monies collected and deposited into the contingent fund pursuant to those sections.

SECTION 13. Section 58A of said chapter 151A, as so appearing, is hereby amended by adding the following paragraph:-

Notwithstanding the foregoing, the commissioner may pay from the contingent fund to an individual who has voluntarily provided information to the department which leads to the establishment of an overpayment or to a determination that an employer has filed a false or fraudulent contribution report an amount not to exceed 10 per cent of the total amount of the penalty assessed and collected pursuant to subsection (a) of section 15, section 47, section 69D or section 69E. An employer shall not take any adverse action against an individual because the individual has reported such information to the department. Any employer who takes such adverse action shall be liable in a civil action, action for contempt or other appropriate proceeding to such employee for all wages and employment benefits lost by the employee as a result of such action, litigation costs and reasonable attorney fees. An employee may bring an action in the appropriate district court department or the superior court department of Suffolk county for the relief provided in this subsection. The department shall make available a toll free telephone number for the purpose of reporting such fraudulent acts and shall adequately promote and advertise the number to the public.

SECTION 13A. Section 69 of said chapter 151A, as so appearing, is hereby amended by inserting after the word "chapter", in line 5, the following words:- provided that there has been a final decision as defined in section 69D.

SECTION 14. Said chapter 151A is hereby further amended by inserting after section 69C the following section:-

Section 69D. As used in this section, the term "final" shall mean that: (1) there is no pending hearing or appeal under section 39 to 42, inclusive, from a decision determining that an individual knowingly and willfully failed to furnish information; (2) no hearing or appeal from a decision on ineligibility for benefits is pending; (3) no request for waiver pursuant to subsection (c) of section 69 is pending; (4) no request for a redetermination pursuant to section 71 is pending; and (5) from a determination of overpayment, an opportunity for an interview and all appeal rights have been exhausted or not taken within the time allowed by law.

SECTION 15. Notwithstanding section 14 of chapter 151A of the General Laws, the experience rate of an employer qualifying for it under subsection (b) of said section 14 of said chapter 151A shall be the rate which appears in the column designated "D" for calendar years 2004, 2005, 2006 and 2007.

SECTION 16. This act shall take effect on January 1, 2004.

Passed without Governor's signature, December 1, 2003