MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Labor; Judiciary

By: Senator(s) Lee

AN ACT TO AMEND SECTIONS 71-5-11, 71-5-351, 71-5-353, 71-5-355 AND 71-5-357, MISSISSIPPI CODE OF 1972, TO DELETE CERTAIN DEFINITIONS, REFERENCES AND TABLES IN THE MISSISSIPPI EMPLOYMENT SECURITY LAW WHICH ARE APPLICABLE TO PRIOR CALENDAR YEARS, AND TO CLARIFY THE TERM "TAXABLE WAGES" FOR PURPOSES OF THE EMPLOYER'S RATE OF CONTRIBUTIONS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 71-5-11, Mississippi Code of 1972, is amended as follows:

71-5-11. As used in this chapter, unless the context clearly requires otherwise:

A. "Base period" means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual's benefit year.

B. "Benefits" means the money payments payable to an individual, as provided in this chapter, with respect to his unemployment.

C. "Benefit year" with respect to any individual means the period beginning with the first day of the first week with respect to which he first files a valid claim for benefits, and ending with the day preceding the same day of the same month in the next calendar year; and, thereafter, the period beginning with the first day of the first week with respect to which he next files his valid claim for benefits, and ending with the day preceding the same day of the same month in the next calendar year. Any claim for benefits made in accordance with Section 71-5-515 shall be deemed to be a "valid claim" for purposes of this subsection if the individual has been paid the wages for insured work required under Section 71-5-511(e).

D. "Contributions" means the money payments to the State Unemployment Compensation Fund required by this chapter.

E. "Calendar quarter" means the period of three (3) consecutive calendar months ending on March 31, June 30, September 30, or December 31.

F. "Commission" means the Mississippi Employment Security Commission.

G. "Employing unit" means this state or another state or any instrumentalities or any political subdivisions thereof or any of their instrumentalities or any instrumentality of more than one (1) of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions, any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or had in its employ one or more individuals performing services for it within this state. All individuals performing services within this state for any employing unit which maintains two (2) or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this chapter. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of the work. All individuals performing services in the employ of an elected fee-paid county official, other than those related by blood or marriage within the third degree computed by the rule of the civil law to such fee-paid county official, shall be deemed to be employed by such county as the employing unit for all the purposes of this chapter. For purposes of defining an "employing unit" which shall pay contributions on remuneration paid to individuals, if two (2) or more related corporations concurrently employ the same individual and compensate such individual through a common paymaster which is one of such corporations, then each such corporation shall be considered to have paid as remuneration to such individual only the amounts actually disbursed by it to such individual and shall not be considered to have paid as remuneration to such individual such amounts actually disbursed to such individual by another of such corporations.

H. "Employer" means:

(1) Any employing unit which * * *,

(a) In any calendar quarter in either the current or preceding calendar year paid for service in employment wages of One Thousand Five Hundred Dollars ($1,500.00) or more, except as provided in paragraph (9) of this subsection, or

(b) For some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year had in employment at least one (1) individual (irrespective of whether the same individual was in employment in each such day), except as provided in paragraph (9) of this subsection;

(2) Any employing unit for which service in employment, as defined in subsection I(3) of this section, is performed;

(3) Any employing unit for which service in employment, as defined in subsection I(4) of this section, is performed;

(4) (a) Any employing unit for which agricultural labor, as defined in subsection I(6) of this section, is performed * * *;

(b) Any employing unit for which domestic service in employment, as defined in subsection I(7) of this section, is performed * * *;

(5) Any individual or employing unit which acquired the organization, trade, business, or substantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this chapter;

(6) Any individual or employing unit which acquired its organization, trade, business, or substantially all the assets thereof, from another employing unit, if the employment record of the acquiring individual or employing unit subsequent to such acquisition, together with the employment record of the acquired organization, trade, or business prior to such acquisition, both within the same calendar year, would be sufficient to constitute an employing unit an employer subject to this chapter under paragraph (1) or (3) of this subsection;

(7) Any employing unit which, having become an employer under paragraph (1), (3), (5) or (6) of this subsection or under any other provisions of this chapter, has not, under Section 71-5-361, ceased to be an employer subject to this chapter; or

(8) For the effective period of its election pursuant to Section 71-5-361(3), any other employing unit which has elected to become subject to this chapter.

(9) (a) In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under paragraph (1) or (4)(a) of this subsection, the wages earned or the employment of an employee performing domestic service * * *, shall not be taken into account.

(b) In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under paragraph (1) or (4)(b) of this subsection, the wages earned or the employment of an employee performing services in agricultural labor * * *, shall not be taken into account. If an employing unit is determined an employer of agricultural labor, such employing unit shall be determined an employer for purposes of paragraph (1) of this subsection.

I. "Employment" means and includes:

(1) Any service performed * * *, which was employment as defined in this section * * * and, subject to the other provisions of this subsection, * * * including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.

(2) Services performed for remuneration for a principal:

(a) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry cleaning services;

(b) As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, a principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operator of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations.

Provided, that for purposes of this subsection, the term "employment" shall include services described in subsections I(2)(a) and (b) of this section, only if:

(i) The contract of service contemplates that substantially all of the services are to be performed personally by such individual;

(ii) The individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and

(iii) The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.

(3) * * * Service performed * * * in the employ of this state or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than one (1) of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions; provided that such service is excluded from "employment" as defined in the Federal Unemployment Tax Act by Section 3306(c)(7) of that act and is not excluded from "employment" under subsection I(5) of this section.

(4) (a) Services performed in the employ of a religious, charitable, educational, or other organization, but only if the service is excluded from "employment" as defined in the Federal Unemployment Tax Act, 26 USCA Sec. 3306(c)(8), and

(b) The organization had four (4) or more individuals in employment for some portion of a day in each of twenty (20) different weeks, whether or not such weeks were consecutive, within the current or preceding calendar year, regardless of whether they were employed at the same moment of time.

(5) For the purposes of subsections I(3) and (4) of this section, the term "employment" does not apply to service performed:

(a) In the employ of:

(i) A church or convention or association of churches; or

(ii) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or

(b) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry, or by a member of a religious order in the exercise of duties required by such order; or

(c) * * * In the employ of a governmental entity referred to in subsection I(3) * * *, if such service is performed by an individual in the exercise of duties:

(i) As an elected official;

(ii) As a member of a legislative body, or a member of the judiciary, of a state or political subdivision;

(iii) As a member of the State National Guard or Air National Guard;

(iv) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;

(v) In a position which, under or pursuant to the laws of this state, is designated as:

1. A major nontenured policy-making or advisory position, or

2. A policy-making or advisory position the performance of the duties of which ordinarily does not require more than eight (8) hours per week; or

(d) In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such rehabilitation or remunerative work; or

(e) * * * By an inmate of a custodial or penal institution; or

(f) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or agency of a state or political subdivision thereof, by an individual receiving such work relief or work training, unless coverage of such service is required by federal law or regulation.

(6) Service performed * * * by an individual in agricultural labor as defined in paragraph (15)(a) of this subsection when:

(a) Such service is performed for a person who:

(i) During any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of Twenty Thousand Dollars ($20,000.00) or more to individuals employed in agricultural labor * * *, or

(ii) For some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor * * * ten (10) or more individuals, regardless of whether they were employed at the same moment of time.

(b) For the purposes of subsection I(6) any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of such crew leader:

(i) If such crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or crop dusting equipment, or any other mechanized equipment, which is provided by such crew leader; and

(ii) If such individual is not an employee of such other person within the meaning of subsection I(1).

(c) For the purpose of subsection I(6), in the case of any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of such crew leader under paragraph (6)(b) of this subsection:

(i) Such other person and not the crew leader shall be treated as the employer of such individual; and

(ii) Such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on his own behalf or on behalf of such other person) for the service in agricultural labor performed for such other person.

(d) For the purposes of subsection I(6) the term "crew leader" means an individual who:

(i) Furnishes individuals to perform service in agricultural labor for any other person;

(ii) Pays (either on his own behalf or on behalf of such other person) the individuals so furnished by him for the service in agricultural labor performed by them; and

(iii) Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.

(7) The term "employment" shall include domestic service * * * in a private home, local college club or local chapter of a college fraternity or sorority performed for an employing unit which paid cash remuneration of One Thousand Dollars ($1,000.00) or more in any calendar quarter in the current or the preceding calendar year to individuals employed in such domestic service. For the purpose of this subsection, the term "employment" does not apply to service performed as a "sitter" at a hospital in the employ of an individual.

(8) An individual's entire service, performed within or both within and without this state, if:

(a) The service is localized in this state; or

(b) The service is not localized in any state but some of the service is performed in this state, and

(i) The base of operations or, if there is no base of operations, the place from which such service is directed or controlled is in this state; or

(ii) The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state.

(9) Services not covered under paragraph (8) of this subsection and performed entirely without this state, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other state or of the federal government, shall be deemed to be employment subject to this chapter if the individual performing such services is a resident of this state and the commission approves the election of the employing unit for whom such services are performed that the entire service of such individual shall be deemed to be employment subject to this chapter.

(10) Service shall be deemed to be localized within a state if:

(a) The service is performed entirely within such state; or

(b) The service is performed both within and without such state, but the service performed without such state is incidental to the individual's service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.

(11) The services of an individual who is a citizen of the United States, performed outside the United States * * * (except in Canada * * *), in the employ of an American employer (other than service which is deemed "employment" under the provisions of paragraph (8), (9) or (10) of this subsection or the parallel provisions of another state's law), if:

(a) The employer's principal place of business in the United States is located in this state; or

(b) The employer has no place of business in the United States, but

(i) The employer is an individual who is a resident of this state; or

(ii) The employer is a corporation which is organized under the laws of this state; or

(iii) The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one (1) other state; or

(c) None of the criteria of subparagraphs (a) and (b) of this paragraph are met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state; or

(d) An "American employer," for purposes of this paragraph, means a person who is:

(i) An individual who is a resident of the United States; or

(ii) A partnership if two-thirds (2/3) or more of the partners are residents of the United States; or

(iii) A trust, if all of the trustees are residents of the United States; or

(iv) A corporation organized under the laws of the United States or of any state.

(12) All services performed by an officer or member of the crew of an American vessel on or in connection with such vessel, if the operating office from which the operations of such vessel operating on navigable waters within, or within and without, the United States are ordinarily and regularly supervised, managed, directed, and controlled is within this state; notwithstanding the provisions of subsection I(8).

(13) Service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund, or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, 26 USCA Sec. 3301 et seq., is required to be covered under this chapter, notwithstanding any other provisions of this subsection.

(14) Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commission that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.

(15) The term "employment" shall not include:

(a) Agricultural labor, except as provided in subsection I(6) of this section. The term "agricultural labor" includes all services performed:

(i) On a farm or in a forest in the employ of any employing unit in connection with cultivating the soil, in connection with cutting, planting, deadening, marking or otherwise improving timber, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, fur-bearing animals, and wildlife;

(ii) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;

(iii) In connection with the production or harvesting of naval stores products or any commodity defined in the Federal Agricultural Marketing Act, 12 USCA Sec. 1141j(g), or in connection with the raising or harvesting of mushrooms, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;

(iv) (A) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half (1/2) of the commodity with respect to which such service is performed;

(B) In the employ of a group of operators of farms (or a cooperative organization of which such operators are members) in the performance of service described in subparagraph (A), but only if such operators produced more than one-half (1/2) of the commodity with respect to which such service is performed;

(C) The provisions of subparagraphs (A) and (B) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption;

(v) On a farm operated for profit if such service is not in the course of the employer's trade or business;

(vi) As used in paragraph (15)(a) of this subsection, the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.

(b) Domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, except as provided in subsection I(7) of this section, or service performed as a "sitter" at a hospital in the employ of an individual.

(c) Casual labor not in the usual course of the employing unit's trade or business.

(d) Service performed by an individual in the employ of his son, daughter, or spouse, and service performed by a child under the age of twenty-one (21) in the employ of his father or mother.

(e) Service performed in the employ of the United States Government or of an instrumentality wholly owned by the United States; except that if the Congress of the United States shall permit states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment compensation act, then to the extent permitted by Congress and from and after the date as of which such permission becomes effective, all of the provisions of this chapter shall be applicable to such instrumentalities and to services performed by employees for such instrumentalities in the same manner, to the same extent, and on the same terms as to all other employers and employing units. If this state should not be certified under the Federal Unemployment Tax Act, 26 USCA Sec. 3304(c), for any year, then the payment required by such instrumentality with respect to such year shall be deemed to have been erroneously collected and shall be refunded by the commission from the fund in accordance with the provisions of Section 71-5-383.

(f) Service performed in the employ of an "employer" as defined by the Railroad Unemployment Insurance Act, 45 USCA Sec. 351(a), or as an "employee representative" as defined by the Railroad Unemployment Insurance Act, 45 USCA Sec. 351(f), and service with respect to which unemployment compensation is payable under an unemployment compensation system for maritime employees, or under any other unemployment compensation system established by an act of Congress; provided that the commission is hereby authorized and directed to enter into agreements with the proper agencies under such act or acts of Congress, which agreements shall become effective ten (10) days after publication thereof in the manner provided in Section 71-5-117 for general rules, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this chapter, acquired rights to unemployment compensation under such act or acts of Congress or who have, after acquiring potential rights to unemployment compensation under such act or acts of Congress, acquired rights to benefits under this chapter.

(g) Service performed in any calendar quarter in the employ of any organization exempt from income tax under the Internal Revenue Code, 26 USCA Sec. 501(a) (other than an organization described in 26 USCA Sec. 401(a)), or exempt from income tax under 26 USCA Sec. 521 if the remuneration for such service is less than Fifty Dollars ($50.00).

(h) Service performed in the employ of a school, college, or university if such service is performed:

(i) By a student who is enrolled and is regularly attending classes at such school, college, or university, or

(ii) By the spouse of such a student if such spouse is advised, at the time such spouse commences to perform such service, that

(A) The employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by such school, college, or university, and

(B) Such employment will not be covered by any program of unemployment insurance.

(i) Service performed by an individual under the age of twenty-two (22) who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers.

(j) Service performed in the employ of a hospital, if such service is performed by a patient of the hospital, as defined in subsection L of this section.

(k) Service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly attending classes in a nurses' training school chartered or approved pursuant to state law; and services performed as an intern in the employ of a hospital by an individual who has completed a four-year course in a medical school chartered or approved pursuant to state law.

(l) Service performed by an individual as an insurance agent or as an insurance solicitor, if all such service performed by such individual is performed for remuneration solely by way of commission.

(m) Service performed by an individual under the age of eighteen (18) in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution.

(n) If the services performed during one-half (1/2) or more of any pay period by an employee for the employing unit employing him constitute employment, all the services of such employee for such period shall be deemed to be employment; but if the services performed during more than one-half (1/2) of any such pay period by an employee for the employing unit employing him do not constitute employment, then none of the services of such employee for such period shall be deemed to be employment. As used in this subsection the term "pay period" means a period (of not more than thirty-one (31) consecutive days) for which a payment of remuneration is ordinarily made to the employee by the employing unit employing him.

(o) Service performed by an individual who is a CETA/PSE (Comprehensive Employment Training Act/Public Service Employment) participant unless coverage of such service is required by federal law or regulation.

(p) Service performed by a barber or beautician whose work station is leased to him or her by the owner of the shop in which he or she works and who is compensated directly by the patrons he or she serves and who is free from direction and control by the lessor.

J. "Employment office" means a free public employment office or branch thereof, operated by this state or maintained as a part of the state controlled system of public employment offices.

"Public employment service" means the operation of a program that offers free placement and referral services to applicants and employers, including job development.

K. "Fund" means the Unemployment Compensation Fund established by this chapter, to which all contributions required and from which all benefits provided under this chapter shall be paid.

L. "Hospital" means an institution which has been licensed, certified, or approved by the Mississippi Commission on Hospital Care as a hospital.

M. "Institution of higher learning," for the purposes of this section, means an educational institution which:

(1) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;

(2) Is legally authorized in this state to provide a program of education beyond high school;

(3) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of postgraduate or postdoctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation;

(4) Is a public or other nonprofit institution;

(5) Notwithstanding any of the foregoing provisions of this subsection, all colleges and universities in this state are institutions of higher learning for purposes of this section.

N. (1) "State" includes, in addition to the states of the United States of America, the District of Columbia, Commonwealth of Puerto Rico and the Virgin Islands.

(2) The term "United States" when used in a geographical sense includes the states, the District of Columbia, Commonwealth of Puerto Rico and the Virgin Islands.

(3) The provisions of subsections (1) and (2) of paragraph N, as including the Virgin Islands, shall become effective on the day after the day on which the United States Secretary of Labor approves for the first time under Section 3304(a) of the Internal Revenue Code of 1954 an unemployment compensation law submitted to the secretary by the Virgin Islands for such approval.

O. "Unemployment."

(1) An individual shall be 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 as computed and adjusted in Section 71-5-505. The commission shall prescribe regulations applicable to unemployed individuals, making such distinctions in the procedure 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's week of total unemployment shall be deemed to commence only after his registration at an employment office, except as the commission may by regulation otherwise prescribe.

P. (1) "Wages" means all remuneration for personal services, including commissions and bonuses and the cash value of all remuneration in any medium other than cash, except that "wages," for purposes of determining employer's coverage and payment of contributions for agricultural and domestic service means cash remuneration only. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the commission; provided, that the term "wages" shall not include:

(a) The amount of any payment made to, or on behalf of, an employee under a plan or system established by an employer which makes provision for his employees generally or for a class or classes of his employees (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment), on account of:

(i) Retirement, or

(ii) Sickness or accident disability, or

(iii) Medical or hospitalization expenses in connection with sickness or actual disability, or

(iv) Death, provided the employee:

(A) Has not the option to receive, instead of provision for such death benefit, any part of such payment or, if such death benefit is insured, any part of the premiums (or contributions to premiums) paid by his employer, and

(B) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit, to assign such benefit or to receive a cash consideration in lieu of such benefit, either upon his withdrawal from the plan or system providing for such benefit or upon termination of such plan or system or policy of insurance or of his employment with such employer;

(b) Dismissal payments which the employer is not legally required to make;

(c) Payment by an employer (without deduction from the remuneration of an employee) of the tax imposed by the Internal Revenue Code, 26 USCA Sec. 3101;

(d) From and after January 1, 1992, the amount of any payment made to or on behalf of an employee for a "cafeteria" plan, which meets the following requirements:

(i) Qualifies under Section 125 of the Internal Revenue Code;

(ii) Covers only employees;

(iii) Covers only noncash benefits;

(iv) Does not include deferred compensation plans.

(2) [Not enacted].

Q. "Week" means calendar week or such period of seven (7) consecutive days as the commission may by regulation prescribe. The commission may by regulation prescribe that a week shall be deemed to be in, within, or during any benefit year which includes any part of such week.

R. "Insured work" means "employment" for "employers."

S. The term "includes" and "including," when used in a definition contained in this chapter, shall not be deemed to exclude other things otherwise within the meaning of the term defined.

SECTION 2. Section 71-5-351, Mississippi Code of 1972, is amended as follows:

71-5-351. Contributions shall accrue and become payable by each employer for each calendar year in which he is subject to this chapter. Such contributions shall become due and be paid by each employer to the commission for the fund in monthly installments on or before the last day of the month next succeeding each month in which the contributions accrue, except that the commission may by regulation make such contributions due and payable quarterly instead of monthly. Such contributions shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.

For purposes of payment of contributions on remuneration paid to individuals, if two (2) or more related corporations concurrently employ the same individual and compensate such individual through a common paymaster which is one of such corporations, each such corporation shall be considered to have paid as remuneration to such individual only the amounts actually disbursed by it to such individual and shall not be considered to have paid as remuneration to such individual such amounts actually disbursed to such individual by another of such corporations.

In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to One-half Cent (1/24) or more, in which case it shall be increased to One Cent (14).

For the purposes of this section and Section 71-5-353, * * * taxable wages shall not include that part of remuneration which, after remuneration equal to Seven Thousand Dollars ($7,000.00) has been paid in a calendar year to an individual by an employer or his predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state employment fund. For the purposes of this subsection, the term "employment" shall include service constituting employment under any unemployment compensation law of another state.

Provided, however, that, absent evidence of willful or fraudulent attempt to avoid taxation, the effective date of liability of an employer or assessment of liability for covered employment against an employer shall not occur for any period preceding the three (3) calendar years before the date of registration or assessment, unless said three-year limitations period is waived by the employer.

SECTION 3. Section 71-5-353, Mississippi Code of 1972, is amended as follows:

71-5-353.

 * * * Each employer shall pay contributions equal to five and four-tenths percent (5.4%) of taxable wages paid by him * * * each calendar year * * *, except as may be otherwise provided in Section 71-5-361 and except that each newly subject employer * * * shall pay contributions at the rate of two and seven-tenths percent (2.7%) of taxable wages until his experience-rating record has been chargeable throughout not less than the twelve (12) consecutive calendar months ending on the computation date; thereafter his contribution rate shall be determined in accordance with the provisions of Section 71-5-355.

SECTION 4. Section 71-5-355, Mississippi Code of 1972, is amended as follows:

71-5-355. (1) As used in this section, the following words and phrases shall have the following meanings, unless the context clearly requires otherwise:

(a) "Tax year" means any period beginning on January 1 and ending on December 31 of a year.

(b) "Computation date" means June 30 of any calendar year immediately preceding the tax year during which the particular contribution rates are effective.

(c) "Effective date" means January 1 of the tax year.

(d) Except as hereinafter provided, "payroll" means the total of all wages paid for employment by an employer as defined in Section 71-5-11, subsection H, plus the total of all remuneration paid by such employer excluded from the definition of wages by Section 71-5-351. For the computation of modified rates, "payroll" means the total of all wages paid for employment by an employer as defined in Section 71-5-11, subsection H.

(e) For the computation of modified rates, "eligible employer" means an employer whose experience-rating record has been chargeable with benefits throughout the thirty-six (36) consecutive calendar-month period ending on the computation date, except that any employer who has not been subject to the Mississippi Employment Security Law for a period of time sufficient to meet the thirty-six (36) consecutive calendar-month requirement shall be an eligible employer if his experience-rating record has been chargeable throughout not less than the twelve (12) consecutive calendar-month period ending on the computation date. * * * No employer shall be considered eligible for a contribution rate less than five and four-tenths percent (5.4%) with respect to any tax year * * *, who has failed to file any two (2) quarterly reports within the qualifying period by September 30 following the computation date.

(f) With respect to any tax year, "reserve ratio" means the ratio which the total amount available for the payment of benefits in the Unemployment Compensation Fund, excluding any amount which has been credited to the account of this state under Section 903 of the Social Security Act, as amended, and which has been appropriated for the expenses of administration pursuant to Section 71-5-457 whether or not withdrawn from such account, on November 1 of each calendar year bears to the aggregate of the taxable payrolls of all employers for the twelve (l2) calendar months ending on June 30 next preceding.

(g) "Modified rates" means the rates of employer contributions determined under the provisions of this chapter and the rates of newly subject employers, as provided in Section 71-5-353.

(h) For the computation of modified rates, "qualifying period" means a period of not less than the thirty-six (36) consecutive calendar months ending on the computation date throughout which an employer's experience-rating record has been chargeable with benefits; except that with respect to any eligible employer who has not been subject to this article for a period of time sufficient to meet the thirty-six (36) consecutive calendar-month requirement, "qualifying period" means the period ending on the computation date throughout which his experience-rating record has been chargeable with benefits, but in no event less than the twelve (12) consecutive calendar-month period ending on the computation date throughout which his experience-rating record has been so chargeable.

(i) The "exposure criterion" (EC) is defined as the cash balance of the Unemployment Compensation Fund which is available for the payment of benefits as of November 1 of each calendar year, divided by the total wages, exclusive of wages paid by all state agencies, all political subdivisions, reimbursable nonprofit corporations, and tax exempt public service employment, for the twelve-month period ending June 30 immediately preceding such date. The EC shall be computed to four (4) decimal places.

(j) The "cost rate criterion" (CRC) is defined as follows: Beginning with January 1974, the benefits paid for the twelve-month period ending December 1974 are summed and divided by the total wages for the twelve-month period ending on June 30, 1975. Similar ratios are computed by subtracting the earliest month's benefit payments and adding the benefits of the next month in the sequence and dividing each sum of twelve (12) months' benefits by the total wages for the twelve-month period ending on the June 30 which is nearest to the final month of the period used to compute the numerator. If December is the final month of the period used to compute the numerator, then the twelve-month period ending the following June 30 will be used for the denominator. The highest value of these ratios beginning with the ratio for benefits paid in calendar year 1974 is the cost rate criterion. The cost rate criterion shall be computed to four (4) decimal places. Benefits and total wages used in the computation of the cost rate criterion shall exclude all benefits and total wages applicable to state agencies, political subdivisions, reimbursable nonprofit corporations, and tax exempt PSE employment.

(k) "Size of fund index" (SOFI) is defined as the ratio of the EC to the CRC.

(l) * * * No employer's contribution rate shall exceed five and four-tenths percent (5.4%), nor be less than four-tenths of one percent (.4%).

(2) Modified rates:

(a) For any tax year, when the reserve ratio on the preceding November 1, in the case of any tax year, equals or exceeds four percent (4%), the modified rates, as hereinafter prescribed, shall be in effect.

(b) Modified rates shall be determined for the tax year for each eligible employer on the basis of his experience-rating record in the following manner:

(i) The commission shall maintain an experience-rating record for each employer. Nothing in this chapter shall be construed to grant any employer or individuals performing services for him any prior claim or rights to the amounts paid by the employer into the fund.

(ii) Benefits paid to an eligible individual shall be charged against the experience-rating record of his base period employers in the proportion to which the wages paid by each base period employer bears to the total wages paid to the individual by all the base period employers, provided that benefits shall not be charged to an employer's experience-rating record if the commission finds that the individual:

1. Voluntarily left the employ of such employer without good cause attributable to the employer,

2. Was discharged by such employer for misconduct connected with his work,

3. Refused an offer of suitable work by such employer without good cause, and the commission further finds that such benefits are based on wages for employment for such employer prior to such voluntary leaving, discharge or refusal of suitable work, as the case may be, or

4. Had base period wages which included wages for previously uncovered services as defined in Section 71-5-511(e) to the extent that the Unemployment Compensation Fund is reimbursed for such benefits pursuant to Section 121 of P.L. 94-566,

5. Extended benefits paid under the provisions of Section 71-5-541 which are not reimbursable from federal funds shall be charged to the experience-rating record of base period employers,

6. Is still working for such employer on a regular part-time basis under the same employment conditions as hired. Provided, however, that benefits shall be charged against an employer if an eligible individual is paid benefits who is still working for such employer on a part-time "as-needed" basis,

7. Was hired to replace a United States serviceman or servicewoman called into active duty and was laid off upon the return to work by that serviceman or servicewoman, unless such employer is a state agency or other political subdivision or instrumentality of the state,

8. Was paid benefits during any week while in training with the approval of the commission, under the provisions of Section 71-5-513B, or for any week while in training approved under Section 236(a)(1) of the Trade Act of 1974, under the provisions of Section 71-5-513C.

(iii) The commission shall compute a benefit ratio for each eligible employer, which shall be the quotient obtained by dividing the total benefits charged to his experience-rating record during the period his experience-rating record has been chargeable, but not less than the twelve (12) consecutive calendar-month period nor more than the thirty-six (36) consecutive calendar-month period ending on the computation date, by his total taxable payroll for the same period on which all contributions due have been paid on or before the September 30 immediately following the computation date. Such benefit ratio shall be computed to the tenth of a percent (.1%), rounding any remainder to the next higher tenth.

If for the calendar year 1995, or any calendar year thereafter, the size of fund index (SOFI), as defined in this section, shall have computed for such calendar year at 1.75 or above, for purposes of adjustment of the general experience rate for such calendar year, then Table 6 or one of the tables subsequent to Table 6 shall be applied, according to their provisions:

TABLE 1

ILLUSTRATES A .10% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.51 OR ABOVE BUT LESS THAN 1.55

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.20

0.4 0.30

0.5 0.40

0.6 0.50

0.7 0.60

0.8 0.70

0.9 0.80

1.0 0.90

1.1 1.00

1.2 1.10

1.3 1.20

1.4 1.30

1.5 1.40

1.6 1.50

1.7 1.60

1.8 1.70

1.9 1.80

2.0 1.90

2.1 2.00

2.2 2.10

2.3 2.20

2.4 2.30

2.5 2.40

2.6 2.50

2.7 2.60

2.8 2.70

2.9 2.80

3.0 2.90

3.1 3.00

3.2 3.10

3.3 3.20

3.4 3.30

3.5 3.40

3.6 3.50

3.7 3.60

3.8 3.70

3.9 3.80

4.0 3.90

4.1 4.00

4.2 4.10

4.3 4.20

4.4 4.30

4.5 4.40

4.6 4.50

4.7 4.60

4.8 4.70

4.9 4.80

5.0 4.90

5.1 5.00

5.2 5.10

5.3 5.20

5.4 5.30

5.5 and above 5.40

TABLE 2

ILLUSTRATES A .20% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.55 OR ABOVE BUT LESS THAN 1.60

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.20

0.5 0.30

0.6 0.40

0.7 0.50

0.8 0.60

0.9 0.70

1.0 0.80

1.1 0.90

1.2 1.00

1.3 1.10

1.4 1.20

1.5 1.30

1.6 1.40

1.7 1.50

1.8 1.60

1.9 1.70

2.0 1.80

2.1 1.90

2.2 2.00

2.3 2.10

2.4 2.20

2.5 2.30

2.6 2.40

2.7 2.50

2.8 2.60

2.9 2.70

3.0 2.80

3.1 2.90

3.2 3.00

3.3 3.10

3.4 3.20

3.5 3.30

3.6 3.40

3.7 3.50

3.8 3.60

3.9 3.70

4.0 3.80

4.1 3.90

4.2 4.00

4.3 4.10

4.4 4.20

4.5 4.30

4.6 4.40

4.7 4.50

4.8 4.60

4.9 4.70

5.0 4.80

5.1 4.90

5.2 5.00

5.3 5.10

5.4 5.20

5.5 5.30

5.6 and above 5.40

TABLE 3

ILLUSTRATES A .30% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.60 OR ABOVE BUT LESS THAN 1.65

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.20

0.6 0.30

0.7 0.40

0.8 0.50

0.9 0.60

1.0 0.70

1.1 0.80

1.2 0.90

1.3 1.00

1.4 1.10

1.5 1.20

1.6 1.30

1.7 1.40

1.8 1.50

1.9 1.60

2.0 1.70

2.1 1.80

2.2 1.90

2.3 2.00

2.4 2.10

2.5 2.20

2.6 2.30

2.7 2.40

2.8 2.50

2.9 2.60

3.0 2.70

3.1 2.80

3.2 2.90

3.3 3.00

3.4 3.10

3.5 3.20

3.6 3.30

3.7 3.40

3.8 3.50

3.9 3.60

4.0 3.70

4.1 3.80

4.2 3.90

4.3 4.00

4.4 4.10

4.5 4.20

4.6 4.30

4.7 4.40

4.8 4.50

4.9 4.60

5.0 4.70

5.1 4.80

5.2 4.90

5.3 5.00

5.4 5.10

5.5 5.20

5.6 5.30

5.7 and above 5.40

TABLE 4

ILLUSTRATES A .40% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.65 OR ABOVE BUT LESS THAN 1.70

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.10

0.6 0.20

0.7 0.30

0.8 0.40

0.9 0.50

1.0 0.60

1.1 0.70

1.2 0.80

1.3 0.90

1.4 1.00

1.5 1.10

1.6 1.20

1.7 1.30

1.8 1.40

1.9 1.50

2.0 1.60

2.1 1.70

2.2 1.80

2.3 1.90

2.4 2.00

2.5 2.10

2.6 2.20

2.7 2.30

2.8 2.40

2.9 2.50

3.0 2.60

3.1 2.70

3.2 2.80

3.3 2.90

3.4 3.00

3.5 3.10

3.6 3.20

3.7 3.30

3.8 3.40

3.9 3.50

4.0 3.60

4.1 3.70

4.2 3.80

4.3 3.90

4.4 4.00

4.5 4.10

4.6 4.20

4.7 4.30

4.8 4.40

4.9 4.50

5.0 4.60

5.1 4.70

5.2 4.80

5.3 4.90

5.4 5.00

5.5 5.10

5.6 5.20

5.7 5.30

5.8 and above 5.40

TABLE 5

ILLUSTRATES A .50% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.70 OR ABOVE BUT LESS THAN 1.75

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.10

0.6 0.10

0.7 0.20

0.8 0.30

0.9 0.40

1.0 0.50

1.1 0.60

1.2 0.70

1.3 0.80

1.4 0.90

1.5 1.00

1.6 1.10

1.7 1.20

1.8 1.30

1.9 1.40

2.0 1.50

2.1 1.60

2.2 1.70

2.3 1.80

2.4 1.90

2.5 2.00

2.6 2.10

2.7 2.20

2.8 2.30

2.9 2.40

3.0 2.50

3.1 2.60

3.2 2.70

3.3 2.80

3.4 2.90

3.5 3.00

3.6 3.10

3.7 3.20

3.8 3.30

3.9 3.40

4.0 3.50

4.1 3.60

4.2 3.70

4.3 3.80

4.4 3.90

4.5 4.00

4.6 4.10

4.7 4.20

4.8 4.30

4.9 4.40

5.0 4.50

5.1 4.60

5.2 4.70

5.3 4.80

5.4 4.90

5.5 5.00

5.6 5.10

5.7 5.20

5.8 5.30

5.9 and above 5.40

TABLE 6

ILLUSTRATES A .60% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.75 OR ABOVE BUT LESS THAN 1.80

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.10

0.6 0.10

0.7 0.10

0.8 0.20

0.9 0.30

1.0 0.40

1.1 0.50

1.2 0.60

1.3 0.70

1.4 0.80

1.5 0.90

1.6 1.00

1.7 1.10

1.8 1.20

1.9 1.30

2.0 1.40

2.1 1.50

2.2 1.60

2.3 1.70

2.4 1.80

2.5 1.90

2.6 2.00

2.7 2.10

2.8 2.20

2.9 2.30

3.0 2.40

3.1 2.50

3.2 2.60

3.3 2.70

3.4 2.80

3.5 2.90

3.6 3.00

3.7 3.10

3.8 3.20

3.9 3.30

4.0 3.40

4.1 3.50

4.2 3.60

4.3 3.70

4.4 3.80

4.5 3.90

4.6 4.00

4.7 4.10

4.8 4.20

4.9 4.30

5.0 4.40

5.1 4.50

5.2 4.60

5.3 4.70

5.4 4.80

5.5 4.90

5.6 5.00

5.7 5.10

5.8 5.20

5.9 5.30

6.0 and above 5.40

TABLE 7

ILLUSTRATES A .70% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.80 OR ABOVE BUT LESS THAN 1.85

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.10

0.6 0.10

0.7 0.10

0.8 0.10

0.9 0.20

1.0 0.30

1.1 0.40

1.2 0.50

1.3 0.60

1.4 0.70

1.5 0.80

1.6 0.90

1.7 1.00

1.8 1.10

1.9 1.20

2.0 1.30

2.1 1.40

2.2 1.50

2.3 1.60

2.4 1.70

2.5 1.80

2.6 1.90

2.7 2.00

2.8 2.10

2.9 2.20

3.0 2.30

3.1 2.40

3.2 2.50

3.3 2.60

3.4 2.70

3.5 2.80

3.6 2.90

3.7 3.00

3.8 3.10

3.9 3.20

4.0 3.30

4.1 3.40

4.2 3.50

4.3 3.60

4.4 3.70

4.5 3.80

4.6 3.90

4.7 4.00

4.8 4.10

4.9 4.20

5.0 4.30

5.1 4.40

5.2 4.50

5.3 4.60

5.4 4.70

5.5 4.80

5.6 4.90

5.7 5.00

5.8 5.10

5.9 5.20

6.0 5.30

6.1 and above 5.40

TABLE 8

ILLUSTRATES A .80% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.85 OR ABOVE BUT LESS THAN 1.90

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.10

0.6 0.10

0.7 0.10

0.8 0.10

0.9 0.10

1.0 0.20

1.1 0.30

1.2 0.40

1.3 0.50

1.4 0.60

1.5 0.70

1.6 0.80

1.7 0.90

1.8 1.00

1.9 1.10

2.0 1.20

2.1 1.30

2.2 1.40

2.3 1.50

2.4 1.60

2.5 1.70

2.6 1.80

2.7 1.90

2.8 2.00

2.9 2.10

3.0 2.20

3.1 2.30

3.2 2.40

3.3 2.50

3.4 2.60

3.5 2.70

3.6 2.80

3.7 2.90

3.8 3.00

3.9 3.10

4.0 3.20

4.1 3.30

4.2 3.40

4.3 3.50

4.4 3.60

4.5 3.70

4.6 3.80

4.7 3.90

4.8 4.00

4.9 4.10

5.0 4.20

5.1 4.30

5.2 4.40

5.3 4.50

5.4 4.60

5.5 4.70

5.6 4.80

5.7 4.90

5.8 5.00

5.9 5.10

6.0 5.20

6.1 5.30

6.2 and above 5.40

TABLE 9

ILLUSTRATES A .90% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.90 OR ABOVE BUT LESS THAN 1.95

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.10

0.6 0.10

0.7 0.10

0.8 0.10

0.9 0.10

1.0 0.10

1.1 0.20

1.2 0.30

1.3 0.40

1.4 0.50

1.5 0.60

1.6 0.70

1.7 0.80

1.8 0.90

1.9 1.00

2.0 1.10

2.1 1.20

2.2 1.30

2.3 1.40

2.4 1.50

2.5 1.60

2.6 1.70

2.7 1.80

2.8 1.90

2.9 2.00

3.0 2.10

3.1 2.20

3.2 2.30

3.3 2.40

3.4 2.50

3.5 2.60

3.6 2.70

3.7 2.80

3.8 2.90

3.9 3.00

4.0 3.10

4.1 3.20

4.2 3.30

4.3 3.40

4.4 3.50

4.5 3.60

4.6 3.70

4.7 3.80

4.8 3.90

4.9 4.00

5.0 4.10

5.1 4.20

5.2 4.30

5.3 4.40

5.4 4.50

5.5 4.60

5.6 4.70

5.7 4.80

5.8 4.90

5.9 5.00

6.0 5.10

6.1 5.20

6.2 5.30

6.3 and above 5.40

TABLE 10

ILLUSTRATES A 1.00% REDUCTION OF THE INDIVIDUAL EXPERIENCE RATE

BASED ON A SOFI FACTOR OF 1.95 OR ABOVE

A B

If Benefit Ratio is The Individual Experience Rate is

0.0% 0.10%

0.1 0.10

0.2 0.10

0.3 0.10

0.4 0.10

0.5 0.10

0.6 0.10

0.7 0.10

0.8 0.10

0.9 0.10

1.0 0.10

1.1 0.10

1.2 0.20

1.3 0.30

1.4 0.40

1.5 0.50

1.6 0.60

1.7 0.70

1.8 0.80

1.9 0.90

2.0 1.00

2.1 1.10

2.2 1.20

2.3 1.30

2.4 1.40

2.5 1.50

2.6 1.60

2.7 1.70

2.8 1.80

2.9 1.90

3.0 2.00

3.1 2.10

3.2 2.20

3.3 2.30

3.4 2.40

3.5 2.50

3.6 2.60

3.7 2.70

3.8 2.80

3.9 2.90

4.0 3.00

4.1 3.10

4.2 3.20

4.3 3.30

4.4 3.40

4.5 3.50

4.6 3.60

4.7 3.70

4.8 3.80

4.9 3.90

5.0 4.00

5.1 4.10

5.2 4.20

5.3 4.30

5.4 4.40

5.5 4.50

5.6 4.60

5.7 4.70

5.8 4.80

5.9 4.90

6.0 5.00

6.1 5.10

6.2 5.20

6.3 5.30

6.4 and above 5.40

(iv) 1. * * * The contribution rate for each eligible employer shall be the sum of two (2) rates: His individual experience rate in the range from zero percent (0%) to five and four-tenths percent (5.4%), plus a general experience rate. In no event shall the resulting rate be in excess of five and four-tenths percent (5.4%).

2. The employer's individual experience rate shall be equal to his benefit ratio as computed under subsection (2)(b)(iii) above.

3. The general experience rate shall be determined in the following manner: The commission shall determine annually, for the thirty-six (36) consecutive calendar-month period ending on the computation date, the amount of benefits which were not charged to the record of any employer and of benefits which were ineffectively charged to the employer's experience-rating record. For the purposes of subsection (2)(b)(iv)3, the term "ineffectively charged benefits" shall include:

 * * * The total of the amounts of benefits charged to the experience-rating records of all eligible employers which caused their benefit ratios to exceed five and four-tenths percent (5.4%), the total of the amounts of benefits charged to the experience-rating records of all ineligible employers which would cause their benefit ratios to exceed five and four-tenths percent (5.4%) if they were eligible employers, and the total of the amounts of benefits charged or chargeable to the experience-rating record of any employer who has discontinued his business or whose coverage has been terminated within such period; provided, that solely for the purposes of determining the amounts of ineffectively charged benefits as herein defined, a "benefit ratio" shall be computed for each ineligible employer, which shall be the quotient obtained by dividing the total benefits charged to his experience-rating record throughout the period ending on the computation date, during which his experience-rating record has been chargeable with benefits, by his total taxable payroll for the same period on which all contributions due have been paid on or before the September 30 immediately following the computation date; and provided further, that such benefit ratio shall be computed to the tenth of one percent (.1%) and any remainder shall be rounded to the next higher tenth. The ratio of the sum of these amounts to the taxable wages paid during the same period by all eligible employers whose benefit ratio did not exceed five and four-tenths percent (5.4%), computed to the next higher tenth of one percent (.1%), shall be the general experience rate.

4. * * * The general experience rate shall be adjusted by use of the size of fund index factor. This factor may be positive or negative, and shall be determined as follows: From the target SOFI of 1.50, subtract the simple average of the current and preceding years' exposure criterions divided by the cost rate criterion. The result is then multiplied by the product of the CRC and total wages for the twelve-month period ending June 30 divided by the taxable wages for the twelve-month period ending June 30. This is the percentage positive or negative added to the general experience rate. This percentage is computed to one (1) decimal place, and rounded to the next higher tenth. * * *

5. Notwithstanding any other provisions of subsection (2)(b)(iv), if the general experience rate for any tax year * * * as computed and adjusted on the basis of the size of fund index is a negative percentage, it shall be disregarded.

6. * * * The commission shall include in its annual rate notice to employers a brief explanation of the elements of the general experience rate, and shall include in its regular publications an annual analysis of benefits not charged to the record of any employer, and of the benefit experience of employers by industry group whose benefit ratio exceeds four percent (4%), and of any other factors which may affect the size of the general experience rate.

(v) When any employing unit in any manner succeeds to or acquires the organization, trade, business or substantially all the assets thereof of an employer, excepting any assets retained by such employer incident to the liquidation of his obligations, whether or not such acquiring employing unit was an employer within the meaning of Section 71-5-11, subsection H, prior to such acquisition, and continues such organization, trade or business, the experience-rating and payroll records of the predecessor employer shall be transferred as of the date of acquisition to the successor employer for the purpose of rate determination.

(vi) When any employing unit succeeds to or acquires a distinct and severable portion of an organization, trade or business, the experience-rating and payroll records of such portion, if separately identifiable, shall be transferred to the successor upon:

1. The mutual consent of the predecessor and the successor,

2. Approval of the commission,

3. Continued operation of the transferred portion by the successor after transfer, and

4. The execution and the filing with the commission by the predecessor employer of a waiver relinquishing all rights to have the experience-rating and payroll records of the transferred portion used for the purpose of determining modified rates of contribution for such predecessor.

(vii) If the successor was an employer subject to this chapter prior to the date of acquisition, it shall continue to pay contributions at the rate applicable to it from the date the acquisition occurred until the end of the then current tax year. If the successor was not an employer prior to the date of acquisition, it shall pay contributions at the rate applicable to the predecessor or, if more than one (1) predecessor and the same rate is applicable to both, the rate applicable to the predecessor or predecessors, from the date the acquisition occurred until the end of the then current tax year. If the successor was not an employer prior to the date the acquisition occurred and simultaneously acquires the businesses of two (2) or more employers to whom different rates of contributions are applicable, it shall pay contributions from the date of the acquisition until the end of the current tax year at a rate computed on the basis of the combined experience-rating and payroll records of the predecessors as of the computation date for such tax year. In all cases the rate of contributions applicable to such successor for each succeeding tax year shall be computed on the basis of the combined experience-rating and payroll records of the successor and the predecessor or predecessors.

(viii) The commission shall notify each employer quarterly of the benefits paid and charged to his experience-rating record; and such notification, in the absence of an application for redetermination filed within thirty (30) days after the date of the mailing of such notice, shall be final, conclusive and binding upon the employer for all purposes. A redetermination, made after notice and opportunity for a fair hearing, by a hearing officer designated by the commission who shall consider and decide these and related applications and protests; and the finding of fact in connection therewith may be introduced into any subsequent administrative or judicial proceedings involving the determination of the rate of contributions of any employer for any tax year, and shall be entitled to the same finality as is provided in this subsection with respect to the findings of fact in proceedings to redetermine the contribution rate of an employer.

(ix) The commission shall notify each employer of his rate of contribution as determined for any tax year as soon as reasonably possible after November 1 of the preceding year. Such determination shall be final, conclusive and binding upon such employer unless, within thirty (30) days after the date of the mailing of such notice to his last known address, the employer files with the commission an application for review and redetermination of his contribution rate, setting forth his reasons therefor. If the commission grants such review, the employer shall be promptly notified thereof and shall be afforded an opportunity for a fair hearing by a hearing officer designated by the commission who shall consider and decide these and related applications and protests; but no employer shall be allowed, in any proceeding involving his rate of contributions or contribution liability, to contest the chargeability to his account of any benefits paid in accordance with a determination, redetermination or decision pursuant to Sections 71-5-515 through 71-5-533 except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for him, and then only in the event that he was not a party to such determination, redetermination, decision or to any other proceedings provided in this chapter in which the character of such services was determined. The employer shall be promptly notified of the denial of this application or of the redetermination, both of which shall become final unless, within ten (10) days after the date of mailing of notice thereof, there shall be an appeal to the commission itself. Any such appeal shall be on the record before said designated hearing officer, and the decision of said commission shall become final unless, within thirty (30) days after the date of mailing of notice thereof to the employer's last known address, there shall be an appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, in accordance with the provisions of law with respect to review of civil causes by certiorari.

SECTION 5. Section 71-5-357, Mississippi Code of 1972, is amended as follows:

71-5-357. Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this section. For the purpose of this section, a nonprofit organization is an organization (or group of organizations) described in Section 501(c)(3) of the Internal Revenue Code of 1954 which is exempt from income tax under Section 501(a) of such code (26 USCA Sec. 501).

(a) Any nonprofit organization which, pursuant to section 71-5-11, subsection H(3), is or becomes subject to this chapter * * * shall pay contributions under the provisions of Sections 71-5-351 through 71-5-355 unless it elects, * * * in accordance with this paragraph, to pay to the commission for the unemployment fund an amount equal to the amount of regular benefits and one-half (1/2) of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization, to individuals for weeks of unemployment which begin during the effective period of such election.

(i) Any nonprofit organization which becomes subject to this chapter may elect to become liable for payments in lieu of contributions for a period of not less than twelve (12) months, beginning with the date on which such subjectivity begins, by filing a written notice of its election with the commission not later than thirty (30) days immediately following the date of the determination of such subjectivity.

(ii) Any nonprofit organization which makes an election in accordance with subparagraph (i) of this subsection will continue to be liable for payments in lieu of contributions unless it files with the commission a written termination notice not later than thirty (30) days prior to the beginning of the tax year for which such termination shall first be effective.

(iii) Any nonprofit organization which has been paying contributions under this chapter may change to a reimbursable basis by filing with the commission, not later than thirty (30) days prior to the beginning of any tax year, a written notice of election to become liable for payments in lieu of contributions. Such election shall not be terminable by the organization for that and the next tax year.

(iv) The commission may for good cause extend the period within which a notice of election or a notice of termination must be filed, and may permit an election to be retroactive.

(v) The commission, in accordance with such regulations as it may prescribe, shall notify each nonprofit organization of any determination which it may make of its status as an employer, of the effective date of any election which it makes and of any termination of such election. Such determinations shall be subject to reconsideration, appeal and review in accordance with the provisions of Sections 71-5-351 through 71-5-355.

(b) Payments in lieu of contributions shall be made in accordance with the provisions of paragraph (i) of this subsection.

(i) At the end of each calendar quarter, or at the end of any other period as determined by the commission, the commission shall bill each nonprofit organization (or group of such organizations) which has elected to make payments in lieu of contributions, for an amount equal to the full amount of regular benefits plus one-half (1/2) of the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the employ of such organization.

(ii) Payment of any bill rendered under paragraph (i) of this subsection shall be made not later than thirty (30) days after such bill was mailed to the last known address of the nonprofit organization or was otherwise delivered to it, unless there has been an application for review and redetermination in accordance with paragraph (v) of this subsection.

1. All of the enforcement procedures for the collection of delinquent contributions contained in Sections 71-5-363 through 71-5-383 shall be applicable in all respects for the collection of delinquent payments due by nonprofit organizations who have elected to become liable for payments in lieu of contributions.

2. If any nonprofit organization is delinquent in making payments in lieu of contributions, the commission may terminate such organization's election to make payments in lieu of contributions as of the beginning of the next tax year, and such termination shall be effective for the balance of such tax year.

(iii) Payments made by any nonprofit organization under the provisions of this subsection shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization.

(iv) Payments due by employers who elect to reimburse the fund in lieu of contributions as provided in this subsection may not be noncharged under any condition. The reimbursement must be on a dollar-for-dollar basis (One Dollar ($1.00) reimbursement for each dollar paid in benefits) in every case, so that the trust fund shall be reimbursed in full, such reimbursement to include, but not be limited to, benefits or payments erroneously or incorrectly paid, or paid as a result of a determination of eligibility which is subsequently reversed, or paid as a result of claimant fraud. Provided that political subdivisions who are reimbursing employers may elect to pay to the fund an amount equal to five-tenths percent (.5%) of the taxable wages paid during the calendar year with respect to employment, and those employers who so elect shall be relieved of liability for reimbursement of benefits paid under the same conditions that benefits are not charged to the experience rating record of a contributing employer as provided in Section 71-5-355(2)(b)(ii) other than Clause 5 thereof. Benefits paid in such circumstances for which reimbursing employers are relieved of liability for reimbursement shall not be considered attributable to service in the employment of such reimbursing employer.

(v) The amount due specified in any bill from the commission shall be conclusive on the organization unless, not later than fifteen (15) days after the bill was mailed to its last known address or otherwise delivered to it, the organization files an application for redetermination by the commission, setting forth the grounds for such application or appeal. The commission shall promptly review and reconsider the amount due specified in the bill and shall thereafter issue a redetermination in any case in which such application for redetermination has been filed. Any such redetermination shall be conclusive on the organization unless, not later than fifteen (15) days after the redetermination was mailed to its last known address or otherwise delivered to it, the organization files an appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, in accordance with the provisions of law with respect to review of civil causes by certiorari.

(vi) Past due payments of amounts in lieu of contributions shall be subject to the same interest and penalties that, pursuant to Section 71-5-363, apply to past due contributions.

(c) Each employer that is liable for payments in lieu of contributions shall pay to the commission for the fund the amount of regular benefits plus the amount of one-half (1/2) of extended benefits paid are attributable to service in the employ of such employer. If benefits paid to an individual are based on wages paid by more than one (1) employer and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with the provisions of paragraph (i) or paragraph (ii) of this subsection.

(i) If benefits paid to an individual are based on wages paid by one or more employers that are liable for payment in lieu of contributions and on wages paid by one or more employers who are liable for contributions, the amount of benefits payable by each employer that is liable for payments in lieu of contributions shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.

(ii) If benefits paid to an individual are based on wages paid by two (2) or more employers that are liable for payments in lieu of contributions, the amount of benefits payable by each such employer shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.

(d) In the discretion of the commission, any nonprofit organization that elects to become liable for payments in lieu of contributions shall be required, within thirty (30) days after the effective date of its election, to execute and file with the commission a surety bond approved by the commission, or it may elect instead to deposit with the commission money or securities. The amount of such bond or deposit shall be determined in accordance with the provisions of this subsection.

(i) The amount of the bond or deposit required by subsection (d) shall be equal to two and seven-tenths percent (2.7%) of the organization's taxable wages paid for employment as defined in Section 71-5-11, subsection I(4), for the four (4) calendar quarters immediately preceding the effective date of the election, the renewal date in the case of a bond, or the biennial anniversary of the effective date of election in the case of a deposit of money or securities, whichever date shall be most recent and applicable. If the nonprofit organization did not pay wages in each of such four (4) calendar quarters, the amount of the bond or deposit shall be as determined by the commission.

(ii) Any bond deposited under subsection (d) shall be in force for a period of not less than two (2) tax years and shall be renewed with the approval of the commission at such times as the commission may prescribe, but not less frequently than at intervals of two (2) years as long as the organization continues to be liable for payments in lieu of contributions. The commission shall require adjustments to be made in a previously filed bond as it deems appropriate. If the bond is to be increased, the adjusted bond shall be filed by the organization within thirty (30) days of the date notice of the required adjustment was mailed or otherwise delivered to it. Failure by any organization covered by such bond to pay the full amount of payments in lieu of contributions when due, together with any applicable interest and penalties provided in subsection (b)(v) of this section, shall render the surety liable on said bond to the extent of the bond, as though the surety was such organization.

(iii) Any deposit of money or securities in accordance with subsection (d) shall be retained by the commission in an escrow account until liability under the election is terminated, at which time it shall be returned to the organization, less any deductions as hereinafter provided. The commission may deduct from the money deposited under subsection (d) by a nonprofit organization, or sell the securities it has so deposited, to the extent necessary to satisfy any due and unpaid payments in lieu of contributions and any applicable interest and penalties provided for in subsection (b)(v) of this section. The commission shall require the organization, within thirty (30) days following any deduction from a money deposit or sale of deposited securities under the provisions hereof, to deposit sufficient additional money or securities to make whole the organization's deposit at the prior level. Any cash remaining from the sale of such securities shall be a part of the organization's escrow account. The commission may, at any time, review the adequacy of the deposit made by any organization. If, as a result of such review, it determines that an adjustment is necessary, it shall require the organization to make additional deposit within thirty (30) days of written notice of its determination or shall return to it such portion of the deposit as it no longer considers necessary, whichever action is appropriate. Disposition of income from securities held in escrow shall be governed by the applicable provisions of the state law.

(iv) If any nonprofit organization fails to file a bond or make a deposit, or to file a bond in an increased amount, or to increase or make whole the amount of a previously made deposit as provided under this paragraph, the commission may terminate such organization's election to make payments in lieu of contributions, and such termination shall continue for not less than the four (4) consecutive calendar-quarter period beginning with the quarter in which such termination becomes effective; provided, that the commission may extend for good cause the applicable filing, deposit or adjustment period by not more than thirty (30) days.

(v) Group account shall be established according to regulations prescribed by the commission.

(e) Any employer which elects to make payments in lieu of contributions into the unemployment compensation fund as provided in this paragraph shall not be liable to make such payments with respect to the benefits paid to any individual whose base-period wages include wages for previously uncovered services as defined in Section 71-5-511(e) to the extent that the Unemployment Compensation Fund is reimbursed for such benefits pursuant to Section 121 of P.L. 94-566.

SECTION 6. This act shall take effect and be in force from and after July 1, 1998.