Bill 249

                    Current Status

Bill Number:               249
Ratification Number:       106
Act Number                 62
Introducing Body:          Senate
Subject:                   Employment security, contributions and
                           payments in lieu of employment
           security, benefits and claims for employment security, and
protection of
           rights and benefits

(A62, R106, S249)

AN ACT TO AMEND SECTIONS 41-27-370, 41-27-380, 41-31-60, 41-35-20, 4l-35-120, 41-35-330, AND 41-35-420, ALL AS AMENDED, AND SECTIONS 41-35-40, 41-35-50, 41-35-60, 41-35-310, 41-35-340, 41-35-440, 41-35-450, AND 41-39-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, TO AMEND THE 1976 CODE BY ADDING SECTION 41-35-140, AND TO REPEAL SECTION 41-35-320, ALL RELATING TO LABOR AND EMPLOYMENT, EMPLOYMENT SECURITY, CONTRIBUTIONS AND PAYMENTS IN LIEU OF EMPLOYMENT SECURITY, BENEFITS AND CLAIMS FOR EMPLOYMENT SECURITY, AND PROTECTION OF RIGHTS AND BENEFITS WITH RESPECT TO EMPLOYMENT SECURITY, SO AS TO CHANGE AND UPDATE PROVISIONS OF THIS STATE'S STATUTORY LAW TO CONFORM TO FEDERAL LAW RELATING TO THE SAME SUBJECT MATTER.

Be it enacted by the General Assembly of the State of South Carolina:

Unemployed individuals

SECTION 1. Section 41-27-370 of the 1976 Code, as last amended by Act 108 of 1981, is further amended to read:

"Section 41-27-370. (1) An individual is deemed 'unemployed' in any week during which he performs no services and with respect to which no wages are payable to him or in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount. The commission must prescribe regulations applicable to unemployed individuals, making such distinctions in the procedures as to total unemployment, part-total unemployment, partial unemployment of individuals attached to their regular jobs, and other forms of short-time work, as the commission deems necessary.

(2) An individual is deemed 'unemployed' in any week during which no governmental or other pension, retirement or retired pay, annuity, or other similar periodic payment which is attributable to his employment is payable to him or, if such payment is payable to him with respect to such weeks, the amount thereof is less than his weekly benefit amount. Each eligible individual who is unemployed in any week and who is receiving a governmental or other pension, retirement or retired pay, annuity, or other similar periodic payment which is attributable to his employment must be paid with respect to such week a benefit in an amount equal to his weekly benefit amount less the pension, retirement or retired pay, annuity, or other similar periodic payment payable to him with respect to such week. Such benefit if not a multiple of one dollar must be computed to the next lower multiple of one dollar. The amount of benefits payable to an individual for any week which begins after the effective date of the applicable provision in the Federal Unemployment Tax Act and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or other similar periodic payment which is based on the previous work of such individual must be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment which is reasonably attributable to such week. However, if the provisions of the Federal Unemployment Tax Act permit, the requirements of this subsection shall only apply in the case of a pension, retirement or retired pay, annuity, or other similar periodic payment under a plan maintained (or contributed to) by a base period employer or chargeable employer.

In the event the individual has participated in any pension, retirement or retired pay, annuity, or other similar plan of the base period employer or chargeable employer by having made contributions to such plan, the weekly benefit amount payable to such individual for such week shall be reduced (but not below zero):

(a) by the pro-rated weekly amount of the pension after deductions of that portion of the pension that is directly attributable to the percentage of the contributions made to the plan by such individual; or

(b) by no part of the pension if the entire contributions to the plan were provided by such individual, or by the individual and an employer (or any other person or organization) who is not a base period employer or chargeable employer; or

(c) by the entire pro-rated weekly amount of the pension if item (a) or item (b) does not apply.

This provision is effective for all weeks commencing on or after August 29, 1982.

(3) No individual may be considered as unemployed in any week in which the commission finds that his unemployment is due to a vacation week with respect to which the individual is receiving or has received his regular wages. This subsection is not applicable to any claimant whose employer fails to comply, in respect to such vacation period, with the requirements of all regulations or procedures of the commission regarding the filing of notices, reports, information, or claims in connection with individual, group, or mass separations arising from the vacation.

(4) No individual may be considered as unemployed in any week (not to exceed two in any benefit year) in which the commission finds that his unemployment is due to a vacation week which is constituted a vacation period without pay by reason of a written contract between the employer and the employees or by reason of the employer's vacation policy and practice to his employees. This provision applies only if it is found by the commission that employment will be available for the claimant with the employer at the end of a vacation period as described in this section. This subsection is not applicable to any claimant whose employer fails to comply, in respect to such vacation period, with the requirements of all regulations or procedures of the commission regarding the filing of notices, reports, information, or claims in connection with individual, group, or mass separations arising from the vacation."

Payment by employing unit

SECTION 2. Item (c) of subsection (1) of Section 41-27-380 of the 1976 Code, as last amended by Act 108 of 1981, is further amended to read:

"(c) The payment by an employing unit (without deduction from the remuneration of the individual in its employ) of the tax imposed upon an individual in its employ, under Section 3101 of the federal Internal Revenue Code, only if such service is agricultural labor or domestic service in a private home of the employer.".

Date of computation

SECTION 3. Subsection (1) of Section 41-31-60 of the 1976 Code, as added by Act 108 of 1981, is amended to read:

"(1) If on the computation date upon which an employer's rate is to be computed as provided in Section 41-31-40 there is a delinquent report, a rate of two and seven-tenths percent will be assigned for the next calendar year. However, if the rate for the prior year of the employer is greater than two and seven-tenths percent, the higher rate will remain in effect until the next computation date. The assigned rate will be applicable for the entire computation period even though the delinquent report is subsequently received."

Benefits

SECTION 4. Section 41-35-20 of the 1976 Code, as last amended by Act 386 of 1982, is further amended to read:

"Section 41-35-20. (1) Benefits based on service in an instructional, research, or principal administrative capacity in an institution of higher education as defined in Section 41-27-290 or educational institution as defined in Section 41-27-340 shall not be paid to an individual for any week of unemployment which begins during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, if the individual has a contract or a reasonable assurance that such individual will perform services in such capacity for both such academic years or both such terms.

(2)(a) With respect to services performed after

December 31, 1977, in any other capacity for an educational institution or institution of higher education, irrespective of whether such institution is a public, private, or nonprofit organization, benefits may not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms. However, if compensation is denied to any individual under this paragraph and such individual was not offered an opportunity to perform such services for the educational institution or institution of higher education for the second of such academic years or terms, such individual is entitled to a retroactive payment of compensation for each week for which the individual filed a timely claim for compensation and for which compensation was denied solely by reason of this item (a).

(b) The provisions of this subsection apply both to employees of the educational institution concerned or to persons employed by a governmental agency or entity which is established and operated exclusively for the purpose of providing services to one or more educational institutions and such persons perform such services in the educational institution.

(3) For the purpose of this section 'reasonable assurance' means a written notice of intent to rehire.

(4) School employees are not eligible for unemployment compensation for any established and customary holiday or vacation period during the school year when that period has been placed on the school calendar for that school year."

Insured worker's weekly benefit amount

SECTION 5. Section 41-35-40 of the 1976 Code is amended to read:

"Section 41-35-40. An insured worker's weekly benefit amount is fifty percent of his weekly average wage, as defined in Section 41-27-140, and the weekly benefit amount, if not a multiple of one dollar, must be computed to the next lower multiple of one dollar. However, no insured worker's weekly benefit amount may be less than twenty dollars nor greater than sixty-six and two-thirds percent of the statewide average weekly wage most recently computed before the beginning of the individual's benefit year."

Maximum potential benefits

SECTION 6. Section 41-35-50 of the 1976 Code is amended to read:

"Section 41-35-50. The maximum potential benefits of any insured worker in a benefit year are the lesser of:

(1) Twenty-six times his weekly benefit amount.

(2) One-third of his wages for insured work paid during his

base period.

If the resulting amount is not a multiple of one dollar, the amount must be reduced to the next lower multiple of one dollar, except that no insured worker may receive benefits in a benefit year unless, subsequent to the beginning of the next preceding benefit year during which he received benefits, he performed 'insured work' as defined in Section 41-27-300 and earned wages in the employ of a single employer in an amount equal to not less than eight times the weekly benefit amount established for the individual in the preceding benefit year."

Benefits of eligible individuals

SECTION 7. Section 41-35-60 of the 1976 Code is amended to read:

"Section 41-35-60. Each eligible individual who is unemployed in any week must be paid with respect to such week a benefit in an amount equal to his weekly benefit amount less that part of the wages (if any) payable to him with respect to such week which is in excess of one-fourth of his weekly benefit amount. Such benefit if not a multiple of one dollar must be computed to the next lower multiple of one dollar."

Persons not to be denied benefits

SECTION 8. Section 41-35-120 of the 1976 Code, as last amended by Act 340 of 1982, is further amended by adding to item (3) the following new subitem:

"(e) Notwithstanding any other provision of this chapter, no otherwise eligible individual may be denied benefits for any week because he is in training approved under Section 236(a)(1) of the Trade Act of 1974, nor may the individual be denied benefits by reason of leaving work to enter training, so long as the work left is not suitable employment, or because of the application to any such week in training of provisions in this law (or any applicable federal unemployment compensation law), relating to availability for work, active search for work, or refusal to accept work.

For purposes of this subitem, the term 'suitable employment' means, with respect to an individual, work of a substantially equal or higher skill level than the individual's past adversely affected employment (as defined for purposes of the Trade Act of 1974), and wages for such work at not less than eighty percent of the individual's average weekly wage as determined for the purposes of the Trade Act of 1974."

Commission may require disclosure

SECTION 9. The 1976 Code is amended by adding:

"Section 41-35-140. (a) The commission may require an individual filing a new claim for unemployment compensation to disclose, at the time of filing the claim, whether or not the individual owes child support obligations as defined under subsection (g), or, pursuant to an agreement between the commission and the state or local child support enforcement agency, the state or local child support enforcement agency must notify the commission whether a particular individual who has filed a new or continued claim for unemployment compensation, at the time of filing the claim, owes child support obligations, or if the state or local child support enforcement agency advises the commission that the individual owes child support obligations and the individual is determined to be eligible for unemployment compensation, the commission must notify the state or local child support enforcement agency enforcing the obligations that the individual has been determined to be eligible for unemployment compensation.

(b) The commission must deduct and withhold from any unemployment compensation payable to an individual who owes child support obligations as defined under subsection (g):

(1) The amount specified by the individual to the commission to be deducted and withheld under this section, if neither (2) nor (3) of this subsection (b) is applicable;

(2) The amount, if any, determined pursuant to an agreement submitted to the commission under Section 454 (20)(B)(i) of the Social Security Act by the state or local child support enforcement agency unless (3) is applicable; or

(3) Any amount otherwise required to be deducted and withheld from unemployment compensation pursuant to legal process, as that term is defined in Section 462(e) of the Social Security Act, properly served upon the commission.

(c) Any amount deducted and withheld under subsection (b) must be paid by the commission to the appropriate state or local child support enforcement agency.

(d) Any amount deducted and withheld under subsection (b) must for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by the individual to the state or local child support enforcement agency in satisfaction of the individual's child support obligations.

(e) For purposes of subsections (a) through (d), the term 'unemployment compensation' means any compensation payable under this act, including amounts payable by the commission pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment.

(f) This section applies only if appropriate arrangements have been made for reimbursement by the state or local child support enforcement agency for the administrative costs incurred by the commission under this section which are attributable to child support obligations being enforced by the state or local child support enforcement agency.

(g) The term 'child support obligations' is defined for purposes of these provisions as including only obligations which are being enforced pursuant to a plan described in Section 454 of the Social Security Act which has been approved by the Secretary of Health and Human Services under Part D of Title IV of the Social Security Act.

(h) The term 'state or local child support enforcement agency' as used in these provisions means any agency of this State or a political subdivision of this State operating pursuant to a plan described in subsection (g).

(i) This section is effective for all weeks commencing on or after October 1, 1982."

Extended benefit period defined

SECTION 10. Section 41-35-310 of the 1976 Code is amended to read:

"Section 41-35-310. 'Extended benefit period' means a period which (1) Begins with the third week after a week for which there is a state 'on' indicator; and

(2) Ends with either of the following weeks, whichever occurs later:

(a) The third week after the first week for which there is a state 'off' indicator.

(b) The thirteenth consecutive week of such period.

No extended benefit period may begin by reason of a state 'on' indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this State."

'State "on" indicator'

SECTION 11. Section 41-35-330 of the 1976 Code, as last amended by Act 161 of 1977, is further amended to read:

"Section 41-35-330. (1) There is a 'state "on" indicator' for this State for a week if the commission determines, in accordance with the regulations of the U. S. Secretary of Labor, that for the period consisting of such week and the immediately preceding twelve weeks the rate of insured unemployment (not seasonally adjusted) under Chapters 27 through 41 of this title:

(a) Equaled or exceeded one hundred twenty percent of the average of such rates for the corresponding thirteen week period ending in each of the preceding two calendar years, and

(b) Equaled or exceeded five percent. With respect to benefits for weeks of unemployment beginning after July 1, 1977, the determination of whether there has been a 'state "on" or "off" indicator'for this State beginning or ending any extended benefit period must be made under this section as if

(i) paragraph (1) did not contain subparagraph (a); and

(ii) the word 'five' contained in subparagraph (b) thereof were 'six' except that, notwithstanding any such provision of this section, any week for which there would otherwise be a 'state "on" indicator' for this State must continue to be such a week and shall not be determined to be a week for which there is a 'state "off" indicator' for this State.

(2) There is a 'state "off" indicator' for this State for a week if, for the period consisting of such week and the immediately preceding twelve weeks, either subparagraph (a) or (b) of paragraph (1) was not satisfied.

(3) This section is applicable for all weeks beginning after September 25, 1982"

Rate of insured employment defined

SECTION 12. Section 41-35-340 of the 1976 Code is amended to read:

"Section 41-35-340. 'Rate of insured unemployment', for purposes of Section 41-35-330, means the percentage derived by dividing:

(1) The average weekly number of individuals filing claims for regular state compensation in this State for weeks of unemployment with respect to the most recent thirteen-consecutive-week period, as determined by the commission on the basis of its reports to the U. S. Secretary of Labor, by

(2) The average monthly employment covered under Chapters 27 through 41 of this title for the first four of the most recent six completed calendar quarters ending before the end of such thirteen-week period."

Disqualification

SECTION 13. Subsection (2) of Section 41-35-420 of the 1976 Code, as added by Act 108 of 1981, is amended to read:

"(2)(a) Notwithstanding the provisions of Sections 41-35-410 and 41-35-420, effective for weeks beginning after March 31, 1981, an individual is disqualified for receipt of extended benefits if the commission finds that during any week of his eligibility period he has failed either to apply for, or to accept an offer of, suitable work (as defined under item (d) of this subsection), to which he was referred by the commission.

(b) Notwithstanding the provisions of Sections 41-35-410 and 41-35-420, effective for weeks beginning after March 31, 1981, an individual is disqualified for receipt of extended benefits if the commission finds that during any week of his eligibility period he has failed to furnish evidence that he has actively engaged in a systematic and sustained effort to find work.

(c) Such disqualification begins with the week in which such failure occurred and continues until he has been employed in each of four subsequent weeks (whether or not consecutive) and has earned remuneration equal to not less than four times his weekly extended benefit amount.

(d) For the purposes of this subsection, the term 'suitable work' means any work which is within the individual's capabilities to perform if:

(i) The gross average weekly remuneration payable for the work exceeds the sum of the individual's weekly extended benefit amount plus the amount, if any, of supplemental unemployment benefits (as defined in Section 501(c)(17)(D) of the Internal Revenue Code of 1954) payable to such individual for such week;

(ii) The wages payable for the work equal the higher of the minimum wages provided by Section 6(a)(1) of the Fair Labor Standards Act of 1938 (without regard to any exemption) or the state or local minimum wage;

(iii) The position was offered to the individual in writing or was listed with the State Employment Service;

(iv) Such work otherwise meets the definition of 'suitable work' for regular benefits contained in item (3) of Section 41-35-120 to the extent that such criteria of suitability are not inconsistent with the provisions of this item; and

(v) The individual cannot furnish satisfactory evidence to the commission that his prospects for obtaining work in his customary occupation within a reasonably short period of time are good. If such evidence is deemed satisfactory for this purpose, the determination of whether any work is suitable with respect to such individual must be made in accordance with the definition of suitable work contained in Section 41-35-120 without regard to the definition specified by this item (d)."

Total extended benefit amount

SECTION 14. Section 41-35-440 of the 1976 Code is amended to read:

"Section 41-35-440. (1) The total extended benefit amount payable to any eligible individual with respect to his applicable benefit year is the least of the following amounts:

(a) Fifty percent of the total amount of regular benefits which were payable to him under Chapters 27 through 41 of this title in his applicable benefit year.

(b) Thirteen times his weekly benefit amount which was payable to him under Chapters 27 through 41 of this title for a week of total unemployment in the applicable benefit year.

(2) Notwithstanding any other provision of Chapters 27 through 41 of this title, if the benefit year of any individual ends within an extended benefit period, the remaining balance of extended benefits that such individual would, but for this section, be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, must be reduced (but not below zero) by the product of the number of weeks for which the individual received any amounts as trade readjustment allowances within that benefit year, multiplied by the individual's weekly benefit amount for extended benefits."

Commission to make public announcement when extended benefit

period become effective

SECTION 15. Section 41-35-450 of the 1976 Code is amended to read:

"Section 41-35-450. Whenever an extended benefit period is to become effective in this State as a result of a state 'on' indicator, or an extended benefit period is to be terminated in this State as a result of a state 'off' indicator, the commission must make an appropriate public announcement. Computations required by the provisions of Section 41-35-340 must be made by the commission, in accordance with regulations prescribed by the U. S. Secretary of Labor."

Benefits

SECTION 16. Section 41-39-20 of the 1976 Code is amended to read:

"Section 41-39-20. No assignment, pledge, or encumbrance of any right to benefits which are or may become due or payable under Chapters 27 through 41 of this title is valid and such rights to benefits are exempt from levy, execution, attachment, or any other remedy whatsoever provided for the collection of debt, except as provided for in Section 41-35-140 of this title. Benefits received by an individual, so long as they are not mingled with other funds of the recipient, are exempt from any remedy whatsoever for the collection of all debts except those incurred for necessaries furnished to such individual or his spouse or a dependent during the time when such individual was unemployed. No waiver of any exception provided for in this section is valid."

Repeal

SECTION 17. Section 41-35-320 of the 1976 Code is repealed.

Time effective

SECTION 18. Except as otherwise provided by this act, the provisions of this act shall take effect upon approval by the Governor.