MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Appropriations
By: Representative Bell
AN ACT TO AMEND SECTIONS 71-5-5, 71-5-7, 71-5-11, 71-5-19, 71-5-351, 71-5-353, 71-5-355, 71-5-367, 71-5-389, 71-5-453, 71-5-455, 71-5-505 AND 71-5-511, MISSISSIPPI CODE OF 1972, TO PLACE ADMINISTRATIVE CONTROL OVER THE UNEMPLOYMENT TRUST FUND AND THE UNEMPLOYMENT COMPENSATION FUND EXCLUSIVELY IN THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY (MDES); TO REVISE CERTAIN TERMS IN THE MISSISSIPPI EMPLOYMENT SECURITY LAW; TO GIVE THE MDES THE AUTHORITY TO ADMINISTRATIVELY ISSUE GARNISHMENTS TO COLLECT DELINQUENT EMPLOYER TAXES AND RECOVER UNEMPLOYMENT BENEFIT OVERPAYMENTS; TO AUTHORIZE THE EXECUTIVE DIRECTOR OF THE MDES TO GRANT EXTENSIONS OF TIME TO FILE CERTAIN REPORTS UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE ADDITIONAL FUNDS FOR THE MISSISSIPPI WORKFORCE ENHANCEMENT TRAINING FUND FOR ONE CALENDAR YEAR; TO PROVIDE THAT AN EMPLOYER SHALL BE CHARGED AGAINST HIS EXPERIENCE RATING IF THE EMPLOYER FAILS TO RESPOND ADEQUATELY OR TIMELY TO A REQUEST OF THE MDES FOR INFORMATION RELATING TO AN UNEMPLOYMENT CLAIM THAT WAS SUBSEQUENTLY DETERMINED IMPROPERLY PAID AND THE EMPLOYER HAS FAILED TO RESPOND TIMELY OR ADEQUATELY TO SUCH REQUESTS; TO EXPAND THE DEFINITION OF THE TERM "DEBTOR" AND "REFUND" UNDER THE PROVISIONS THAT ALLOW MDES TO COLLECT DEBTS THROUGH SETOFFS AGAINST A TAXPAYER'S INCOME TAX REFUND; TO REVISE THE MANNER IN WHICH NOTICE IS GIVEN TO A TAXPAYER OF A HEARING TO PROTEST A SETOFF AGAINST THE TAXPAYER'S STATE INCOME TAX REFUND FOR DEBTS THE TAXPAYER OWES MDES; TO PROVIDE THAT THE ONE WEEK WAITING PERIOD FOR UNEMPLOYMENT BENEFITS MAY BE WAIVED ONLY UPON A PRESIDENTIAL DISASTER DECLARATION AUTHORIZING ASSISTANCE TO INDIVIDUALS AND ONLY IN AREAS IDENTIFIED IN THE DISASTER DECLARATION FOR INDIVIDUAL ASSISTANCE; TO REQUIRE THAT AN UNEMPLOYED INDIVIDUAL MUST BE ACTIVELY SEEKING WORK TO BE ELIGIBLE TO RECEIVE BENEFITS; TO AMEND SECTIONS 71-5-13, 71-5-357, 71-5-361 AND 71-5-501, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 71-5-5, Mississippi Code of 1972, is amended as follows:
71-5-5. The Legislature
finds and declares that the existence and continued operation of a federal tax
upon employers, against which some portion of the contributions required under
this chapter may be credited, will protect Mississippi employers from undue
disadvantages in their competition with employers in other states. If at any
time, upon a formal complaint to the Governor, he shall find that Title IX of
the Social Security Act has been amended or repealed by Congress or has been
held unconstitutional by the Supreme Court of the United States, and that, as a
result thereof, the provisions of this chapter requiring Mississippi employers
to pay contributions will subject them to a serious competitive disadvantage in
relation to employers in other states, he shall publish such findings and
proclaim that the operation of the provisions of this chapter requiring the
payment of contributions and benefits shall be suspended for a period of not
more than six (6) months. The Department of Employment Security shall
thereupon requisition from the Unemployment Trust Fund all monies therein
standing to its credit, and shall * * * deposit such
monies, together with any other monies in the Unemployment Compensation Fund,
as a special fund in any banks or public depositories in this state in which
general funds of the state may be deposited.
In all other cases, and unless the Governor shall issue such proclamation, this chapter shall remain in full force and effect.
If within the aforesaid six-month period the Governor shall find that other federal legislation has been enacted which avoids the competitive disadvantage herein described, he shall forthwith publicly so proclaim, and upon the date of such proclamation, the provisions of this chapter requiring the payment of contributions and benefits shall again become fully operative as of the date of such suspension with the same effect as if such suspension had not occurred. If within such six-month period no such other federal legislation is enacted or the Legislature of this state has not otherwise prescribed, the Department of Employment Security shall, under regulations prescribed by it, refund, without interest, to each employer by whom contributions have been paid his pro rata share of the total contributions paid under this chapter. Any interest or earnings of the fund shall be available to the Department of Employment Security to pay for the costs of making such refunds. When the Department of Employment Security shall have executed the duties herein prescribed and performed such other acts as are incidental to the termination of its duties under this chapter, the Governor shall, by public proclamation, declare that the provisions of this chapter, in their entirety, shall cease to be operative.
SECTION 2. Section 71-5-7, Mississippi Code of 1972, is amended as follows:
71-5-7. If at any time the
provisions of this chapter requiring the payment of contributions and benefits
shall be held invalid under the Constitution of this state by the Supreme Court
of this state or invalid under the United States Constitution by the Supreme
Court of the United States, the * * * department shall forthwith
requisition from the unemployment trust fund all monies therein standing to the
credit of the * * *
department, and shall * * * deposit such
monies, together with any other monies in the unemployment compensation fund,
in any banks or public depositories in this state in which general funds of the
state may be deposited. If within six (6) months after the date of such
decision the Legislature of this state enacts a new unemployment compensation
law, such monies shall be paid into the unemployment compensation fund
established thereunder. If within such six-month period the Legislature of
this state has not enacted a new unemployment compensation law, the * * * department shall, under
regulations prescribed by it, refund, without interest, to each employer by
whom contributions have been paid, his pro rata share of the total
contributions paid under this chapter. Any interest or earnings of the fund
shall be available to the * * *commission department to pay for the costs of making
such refunds. The provisions of this chapter, so far as necessary to the
execution by the * * *
department of the duties prescribed in this section and to the
performance of such other acts as are incidental to the termination of its
duties under this chapter, shall remain in full force and effect until the
completion thereof.
SECTION 3. 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. "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).
* * *C. "Contributions" means the
money payments to the State Unemployment Compensation Fund required by this
chapter.
* * *D. "Calendar quarter" means
the period of three (3) consecutive calendar months ending on March 31, June
30, September 30, or December 31.
* * *E. "Department" or
"commission" means the Mississippi Department of Employment Security,
Office of the Governor.
* * *F. "Executive director"
means the Executive Director of the Mississippi Department of Employment
Security, Office of the Governor, appointed under Section 71-5-107.
* * *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 Indian
tribe as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA),
which includes any subdivision, subsidiary or business enterprise wholly owned
by such Indian tribe, 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 (1) 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 as 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;
(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;
(10) All entities utilizing the services of any employee leasing firm shall be considered the employer of the individuals leased from the employee leasing firm. Temporary help firms shall be considered the employer of the individuals they provide to perform services for other individuals or organizations.
* * *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.
However, for purposes of
this subsection, the term "employment" shall include services described
in subsection * * *
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 or any Indian
tribe as defined in Section 3306(u) of the Federal Unemployment Tax Act (FUTA),
which includes any subdivision, subsidiary or business enterprise wholly owned
by such Indian tribe; however, 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 USCS Section 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 subsection * * *
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 or a member of an Indian tribal council;
(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 or laws of an Indian tribe, 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 or of an Indian tribe, 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 department 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 USCS Section 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 department 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 USCS Section 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 subitem (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 subitems (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 USCS Section 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 department 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 USCS Section 351(a), or as an "employee representative" as defined by the Railroad Unemployment Insurance Act, 45 USCS Section 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; however, the department is 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 USCS Section 501(a) (other than an organization described in 26 USCS Section 401(a)), or exempt from income tax under 26 USCS Section 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 * * * M 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 in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution, except those employed by political subdivisions, state and local governments, nonprofit organizations and Indian tribes, as defined by this chapter, or any other entities for which coverage is required by federal statute and regulation.
(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 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.
(p) Service performed by a "direct seller" if:
(i) Such person is engaged in the trade or business of selling (or soliciting the sale of) consumer products to any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis which the department prescribes by regulations, for resale (by the buyer or any other person) in the home or otherwise than in a permanent retail establishment; or such person is engaged in the trade or business of selling (or soliciting the sale of) consumer products in the home or otherwise than in a permanent retail establishment;
(ii) Substantially all the remuneration (whether or not paid in cash) for the performance of the services described in item (i) of this subparagraph is directly related to sales or other output (including the performance of services) rather than to the number of hours worked; and
(iii) The services performed by the person are performed pursuant to a written contract between such person and the person for whom the services are performed and such contract provides that the person will not be treated as an employee with respect to such services for federal tax purposes.
* * *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.
* * *K. "Public employment
service" means the operation of a program that offers free placement and
referral services to applicants and employers, including job development.
* * *L. "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.
* * *M. "Hospital" means an
institution which has been licensed, certified, or approved by the State
Department of Health as a hospital.
* * *N. "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.
O. "Re-employment assistance" means money payments payable to an individual as provided in this chapter and in accordance with Section 3304(a)(4) and 3306(h) of the Federal Unemployment Tax Act and Section 303(a)(5) of the Social Security Act, with respect to his unemployment through no fault of his own. Wherever the terms "benefits" or "unemployment benefits" appear in this chapter, they shall mean re-employment assistance.
P. (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 paragraphs (1) and (2) of subsection P, 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.
Q. "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 department 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 department 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 department may by regulation otherwise prescribe.
R. (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 department; however, 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 USCS Section 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].
S. "Week" means calendar week or such period of seven (7) consecutive days as the department may by regulation prescribe. The department 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.
T. "Insured work" means "employment" for "employers."
U. 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.
V. "Employee leasing arrangement" means any agreement between an employee leasing firm and a client, whereby specified client responsibilities such as payment of wages, reporting of wages for unemployment insurance purposes, payment of unemployment insurance contributions and other such administrative duties are to be performed by an employee leasing firm, on an ongoing basis.
W. "Employee leasing firm" means any entity which provides specified duties for a client company such as payment of wages, reporting of wages for unemployment insurance purposes, payment of unemployment insurance contributions and other administrative duties, in connection with the client's employees, that are directed and controlled by the client and that are providing ongoing services for the client.
X. (1) "Temporary help firm" means an entity which hires its own employees and provides those employees to other individuals or organizations to perform some service, to support or supplement the existing workforce in special situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects, with the expectation that the worker's position will be terminated upon the completion of the specified task or function.
(2) "Temporary employee" means an employee assigned to work for the clients of a temporary help firm.
Y. For the purposes of this chapter, the term "notice" shall include any official communication, statement or other correspondence required under the administration of this chapter, and sent by the department through the United States Postal Service or electronic or digital transfer, via modem or the Internet.
SECTION 4. Section 71-5-19, Mississippi Code of 1972, is amended as follows:
71-5-19. (1) Whoever makes a false statement or representation knowing it to be false, or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this chapter or under an employment security law of any other state, of the federal government or of a foreign government, either for himself or for any other person, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not longer than thirty (30) days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.
(2) Any employing unit, any officer or agent of an employing unit or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining subject hereto, or to avoid or reduce any contribution or other payment required from any employing unit under this chapter, or who willfully fails or refuses to make any such contribution or other payment, or to furnish any reports required hereunder or to produce or permit the inspection or copying of records as required hereunder, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for not longer than sixty (60) days, or by both such fine and imprisonment; and each such false statement, or representation, or failure to disclose a material fact, and each day of such failure or refusal shall constitute a separate offense. In lieu of such fine and imprisonment, the employing unit or representative, or both employing unit and representative, if such representative is an employing unit in this state and is found to be a party to such violation, shall not be eligible for a contributions rate of less than five and four-tenths percent (5.4%) for the tax year in which such violation is discovered by the department and for the next two (2) succeeding tax years.
(3) Any person who shall willfully violate any provision of this chapter or any other rule or regulation thereunder, the violation of which is made unlawful or the observance of which is required under the terms of this chapter and for which a penalty is neither prescribed herein nor provided by any other applicable statute, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for not longer than sixty (60) days, or by both such fine and imprisonment; and each day such violation continues shall be deemed to be a separate offense. In lieu of such fine and imprisonment, the employing unit or representative, or both employing unit and representative, if such representative is an employing unit in this state and is found to be a party to such violation, shall not be eligible for a contributions rate of less than five and four-tenths percent (5.4%) for the tax year in which the violation is discovered by the department and for the next two (2) succeeding tax years.
(4) (a) An overpayment of benefits occurs when a person receives benefits under this chapter:
(i) While any conditions for the receipt of benefits imposed by this chapter were not fulfilled in his case;
(ii) While he was disqualified from receiving benefits; or
(iii) When such person receives benefits and is later found to be disqualified or ineligible for any reason, including, but not limited to, a redetermination or reversal by the department or the courts of a previous decision to award such person benefits.
(b) Any person receiving an overpayment shall, in the discretion of the department, be liable to have such sum deducted from any future benefits payable to him under this chapter and shall be liable to repay to the department for the Unemployment Compensation Fund a sum equal to the overpayment amount so received by him; and such sum shall be collectible in the manner provided in Sections 71-5-363 through 71-5-383 for the collection of past-due contributions. In addition to Sections 71-5-363 through 71-5-383, the following shall apply to cases involving damages for overpaid unemployment benefits which have been obtained and/or received through fraud as defined by department regulations and laws governing the department. By definition, fraud can include failure to report earnings while filing for unemployment benefits. In the event of fraud, a penalty of twenty percent (20%) of the amount of the overpayment shall be assessed. Three-fourths (3/4) of that twenty percent (20%) penalty shall be deposited into the unemployment trust fund and shall be used only for the purpose of payment of unemployment benefits. The remainder of that twenty percent (20%) penalty shall be deposited into the Special Employment Security Administrative Fund. Interest on the overpayment balance shall accrue at a rate of one percent (1%) per month on the unpaid balance until repaid and shall be deposited into the Special Employment Security Administration Fund. All interest, penalties and damages deposited into the Special Employment Security Administration Fund shall be used by the department for administration of the Mississippi Department of Employment Security.
(c) Any such judgment against such person for collection of such overpayment shall be in the form of a seven-year renewable lien. Unless action be brought thereon prior to expiration of the lien, the department must refile the notice of the lien prior to its expiration at the end of seven (7) years. There shall be no limit upon the number of times the department may refile notices of liens for collection of overpayments.
(d) All warrants issued by the department for the collection of any unemployment tax or for an overpayment of benefits imposed by statute and collected by the department shall be used to levy on salaries, compensation or other monies due the delinquent employer or claimant. No such warrant shall be issued until after the delinquent employer or claimant has exhausted all appeal rights associated with the debt. The warrants shall be served by mail or by delivery by an agent of the department on the person or entity responsible or liable for the payment of the monies due the delinquent employer or claimant. Once served, the employer or other person owing compensation due the delinquent employer or claimant shall pay the monies over to the department in complete or partial satisfaction of the liability. An answer shall be made within thirty (30) days after service of the warrant in the form and manner determined satisfactory by the department. Failure to pay the money over to the department as required by this section shall result in the served party being personally liable for the full amount of the monies owed and the levy and collection process may be issued against the party in the same manner as other debts owed to the department. Except as otherwise provided by this section, the answer, the amount payable under the warrant and the obligation of the payor to continue payment shall be governed by the garnishment laws of this state but shall be payable to the department.
(5) The department, by agreement with another state or the United States, as provided under Section 303(g) of the Social Security Act, may recover any overpayment of benefits paid to any individual under the laws of this state or of another state or under an unemployment benefit program of the United States. Any overpayments subject to this subsection may be deducted from any future benefits payable to the individual under the laws of this state or of another state or under an unemployment program of the United States.
SECTION 5. Section 71-5-351, Mississippi Code of 1972, is amended as follows:
71-5-351. (1) 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 department for the fund each calendar quarter on or before the last day of the month next succeeding each calendar quarter in which the contributions accrue unless the employer has filed an election with the department to participate in the Mississippi Level Payment Plan (MLPP) and complies with the provision of the MLPP. The department may extend the due date of such contributions if the due date falls on a Saturday, Sunday or state or federal holiday. Such contributions shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.
(2) (a) Any employer who is a newly subject employer or any employer who meets the requirements of participation in the MLPP shall be allowed one (1) participation election per year. The department may by regulation establish exceptions to this rule as appropriate. The department shall establish by regulation the requirements for computation and adjustment of compensation and shall compute the amount of payments that will be made quarterly and notify each employer before the first tax payment is due for the year. Equal payments will be made for calendar quarters ending March, June and September and settlement will be made for any overage or shortage at the time payment is due for the December quarter.
(b) An employer who meets the following criteria may participate in the MLPP:
(i) The employer has not been delinquent in filing unemployment reports or paying unemployment taxes to the department during the last two (2) calendar years and must make current all other delinquent unemployment taxes and reports;
(ii) The employer has been an employer subject to the unemployment laws of the State of Mississippi, or in accordance with department regulations regarding MLPP, for at least twelve (12) months prior to the year the employer starts participating;
(iii) The employer must agree to file reports through the department's online system or other agency prescribed electronic facility and pay electronically;
(iv) The employer remains current in filing and paying taxes; and
(v) The employer must make the election by April 1 of the year.
(c) Employers who participate in the MLPP and pay their contribution by bank draft shall utilize the pay schedule provided for in this paragraph. The pay schedule shall be as follows:
(i) January to March due date May 15;
(ii) April to June due date August 15;
(iii) July to September due date November 15; and
(iv) October to December due date January 31.
(d) In the event the computed Size of Fund Index (SOFI) for any rate year computation falls below one percent (1.0%), the additional fifteen (15) days' delay provided for bank draft customers will be suspended for that year.
(3) 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 (1/2¢) or more, in which case it shall be increased to One Cent (1¢).
(4) For the purposes of this section and Sections 71-5-353, 71-5-357 and 71-5-359, taxable wages shall not include that part of remuneration which, after remuneration equal to Seven Thousand Dollars ($7,000.00) through December 31, 2010, and Fourteen Thousand Dollars ($14,000.00) thereafter, 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 section, the term "employment" shall include service constituting employment under any unemployment compensation law of another state.
(5) 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.
(6) The executive director may grant a reasonable extension of time beyond the statutory due date within which to file any report required by this section when it is shown to the satisfaction of the executive director that good cause for such extension exists. The executive director may, in his discretion, automatically recognize extensions of time authorized and granted by the Internal Revenue Service for the filing of tax returns.
SECTION 6. Section 71-5-353, Mississippi Code of 1972, is amended as follows:
71-5-353. (1) 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 four-tenths percent (2.4%) of taxable wages through December 31, 2010, and thereafter one percent (1%) of taxable wages, for his first year of liability, one and one-tenth percent (1.1%) of taxable wages for his second year of liability, and one and two-tenths percent (1.2%) of taxable wages for his third and subsequent years of liability unless the employer's experience-rating record has been chargeable throughout at least the twelve (12) consecutive calendar months ending on the most recent computation date at the time the rate for a year is determined; thereafter the employer's contribution rate shall be determined in accordance with the provisions of Section 71-5-355.
(2) From and after January 1, 2005, through December 31, 2009, contribution rates assigned to employers by the department, as determined pursuant to Sections 71-5-351, 71-5-353 and 71-5-355, shall be reduced by three-tenths of one percent (.3%). Such reduction shall only apply to employers whose contribution rate, determined in accordance with Sections 71-5-353 and 71-5-355, is equal to or less than five and four-tenths percent (5.4%), and shall include a three-tenths of one percent (.3%) reduction to the rate as a result of violation of provisions of this chapter. The reduction in rates provided for herein shall not apply to state boards, instrumentalities and political subdivisions of the State of Mississippi referred to in Sections 71-5-357 and 71-5-359, or to nonprofit employers providing reimbursement to the department for the unemployment fund pursuant to Section 71-5-357(a).
(3) (a) From and after January 1, 2005, through December 31, 2009, the workforce enhancement contributions shall be applied at a rate of three-tenths of one percent (.3%) upon the taxable wages, however, the workforce enhancement contribution shall not be applied to state boards, instrumentalities and political subdivisions of the State of Mississippi referred to in Sections 71-5-357 and 71-5-359, or to nonprofit employers providing reimbursement to the department for the unemployment fund pursuant to Section 71-5-357(a).
(b) There is hereby created in the Treasury of the State of Mississippi a special fund to be known as the "Mississippi Workforce Enhancement Training Fund," which consists of funds collected pursuant to this subsection (3) and subsection (4) of this section. Funds collected shall initially be deposited into the Mississippi Department of Employment Security tax bank account for clearing contribution collections and subsequently transferred to the Mississippi Workforce Enhancement Training Fund holding account described in Section 71-5-453. In the event any employer pays an amount insufficient to cover the total contributions due, the amounts due shall be satisfied in the following order:
(i) Unemployment contributions;
(ii) Workforce enhancement training contributions;
(iii) Interest and damages; then
(iv) Legal and processing costs.
The amount of contributions due for any period will be the amount due according to the actual computations unless the employer is participating in the MLPP. In that event, the amount due is the MLPP amount computed by the department.
Cost of collection and administration of the workforce enhancement training contribution shall be allocated based on a plan approved by the United States Department of Labor (USDOL) and shall be paid to the Mississippi Department of Employment Security semiannually by the State Board for Community and Junior Colleges for periods ending in December and June of each year. Payment shall be made to the department no later than sixty (60) days after the billing date.
(c) All monies collected will be initially deposited into the Mississippi Department of Employment Security bank account for clearing contribution collections and subsequently transferred to the Mississippi Workforce Enhancement Training Fund holding account and will be held by the Mississippi Department of Employment Security in such account for a period of not less than sixty (60) days. After such period, funds shall be transferred within thirty (30) days to the Mississippi Workforce Enhancement Training Fund in a manner determined by the department. Interest earnings or interest credits on deposit amounts shall be retained in the holding account to pay the banking costs of the account. If after the period of twelve (12) months interest earnings less banking costs exceeds Ten Thousand Dollars ($10,000.00), such excess amounts shall be transferred to the Mississippi Workforce Enhancement Training Fund treasury account within thirty (30) days. Such transfers shall occur once annually, during the month of January.
(d) All 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 collections of delinquent contributions designated for the Unemployment Compensation Fund and the Mississippi Workforce Enhancement Training Fund.
(e) All monies deposited into the Mississippi Workforce Enhancement Training Fund shall be utilized exclusively by the State Board for Community and Junior Colleges in accordance with the Workforce Training Act of 1994 (Section 37-153-1 et seq.) and the annual plan developed by the State Workforce Investment Board for the following purposes: to provide training at no charge to employers and employees in order to enhance employee productivity. Such training may be subject to a minimal administrative fee to be paid from the Mississippi Workforce Enhancement Training Fund as established by the State Workforce Investment Board subject to the advice of the State Board for Community and Junior Colleges. The initial priority of these funds shall be for the benefit of existing businesses located within the state. Employers may request training for existing employees and/or newly hired employees from the State Board for Community and Junior Colleges. The State Board for Community and Junior Colleges will be responsible for approving the training.
(4) The following procedure shall apply for tax years subsequent to December 31, 2009:
(a) (i) Except as otherwise provide in this paragraph, workforce enhancement training contributions shall be collected at a rate of three-tenths of one percent (.3%) through December 31, 2010, based upon taxable wages, and at a rate of fifteen one-hundredths of one percent (.15%) thereafter, based upon taxable wages.
(ii) If this act becomes effective before March 1, 2013, the contribution rate to the Workforce Enhancement Training Fund for calendar year 2013 only shall be twenty-two one-hundredths of one percent (.22%). If this act becomes effective from and after March 1, 2013, the contribution rate to the Workforce Enhancement Training Fund for calendar year 2014 shall be twenty-two one-hundredths of one percent (.22%). The contribution rate to the Workforce Enhancement Training Fund provided for in this subparagraph shall be effective for only one (1) calendar year.
(iii) Training contributions shall be reduced by the amount necessary to prevent any employer from having a combined rate greater than five and four-tenths percent (5.4%).
(b) All workforce enhancement training contributions collected shall be deposited initially into the Mississippi Department of Employment Security bank account for clearing contribution collections and shall within two (2) business days be transferred to the Workforce Enhancement Training Fund holding account. Any workforce enhancement training contribution transactions from the Mississippi Department of Employment Security account for clearing contribution collections that are deposited into the Workforce Enhancement Training Fund holding account and are not honored by a financial institution will be transferred back to the Mississippi Department of Employment Security account for clearing contribution collections out of funds in the Workforce Enhancement Training Fund holding account.
(c) For rate years subsequent to December 31, 2009, suspension of the workforce enhancement training contributions required pursuant to this subsection (4) shall occur if the insured unemployment rate exceeds an average of five and five-tenths percent (5.5%) for the three (3) consecutive months immediately preceding the effective date of the new rate year and shall remain suspended throughout the duration of that rate year. Such suspension shall continue until such time as the three (3) consecutive months immediately preceding the effective date of any subsequent rate year has an insured unemployment rate of less than an average of four and five-tenths percent (4.5%).
(5) All collections due or accrued prior to any suspension of the Workforce Enhancement Training Fund will be collected based upon the law at the time the contributions accrued, regardless of when they are actually due or collected.
SECTION 7. 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. No employer or employing unit shall be eligible for a contribution rate of less than five and four-tenths percent (5.4%) for the tax year in which the employing unit is found by the department to be in violation of Section 71-5-19(2) or (3) and for the next two (2) succeeding tax years. No representative of such employing unit who was a party to a violation as described in Section 71-5-19(2) or (3), if such representative was or is an employing unit in this state, shall be eligible for a contribution rate of less than five and four-tenths percent (5.4%) for the tax year in which such violation was detected by the department and for the next two (2) succeeding tax years.
(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 October 31 (close of business) of each calendar year bears to the aggregate of the taxable payrolls of all employers for the twelve (12) 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 16 of each calendar year or the next working day if November 16 falls on a holiday or a weekend, 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 and rounded up if any fraction remains.
(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. 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.
The CRC shall be computed as the average for the highest monthly value of the cost rate criterion computations during each of the economic cycles since the calendar year 1974 as defined by the National Bureau of Economic Research. The CRC shall be computed to four (4) decimal places and any remainder shall be rounded up.
The CRC shall be adjusted only through annual computations and additions of future economic cycles.
(k) "Size of fund index" (SOFI) is defined as the ratio of the exposure criterion (EC) to the cost rate criterion (CRC). For years following December 31, 2009, the target size of fund index will be fixed at 1.0. If the insured unemployment rate (IUR) exceeds a four and five-tenths percent (4.5%) average for the most recent completed July to June period, the target SOFI will be .8 and will remain at that level until the computed SOFI (the average exposure criterion of the current year and the preceding year divided by the average cost rate criterion) equals 1.0 or the average IUR falls to four and five-tenths percent (4.5%) or less for any period July to June. However, if the IUR falls below two and five-tenths percent (2.5%) for any period July to June the target SOFI shall be 1.2 until such time as the computed SOFI is equal to or greater than 1.0 or the IUR is equal to or greater than two and five-tenths percent (2.5%), at which point the target SOFI shall return to 1.0.
(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%). However, from and after January 1, 2005, through December 31, 2009, no employer's unemployment contribution rate shall be less than one-tenth of one percent (.1%). For years subsequent to calendar year 2010 the general experience rate in no event shall be less than two-tenths of one percent (.2%). For any year the general experience rate computes as an amount less than two-tenths of one percent (.2%) the general experience rate shall be established at two-tenths of one percent (.2%). From and after January 1, 2012, accrual rules shall apply for purposes of computing contribution rates including associated functions.
(m) The term "general experience rate" has the same meaning as the minimum tax rate.
(2) Modified rates:
(a) For any tax year, when the reserve ratio on the preceding November 16, in the case of any tax year, equals or exceeds three percent (3%), the modified rates, as hereinafter prescribed, shall be in effect. In computation of this reserve ratio, any remainder shall be rounded down.
(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 department 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 department 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 department 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;
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 Public Law 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 department, 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; or
9. Is not required to serve the one-week waiting period as described in Section 71-5-505(2). In that event, only the benefits paid in lieu of the waiting period week may be noncharged.
(iii) Notwithstanding any other provision contained herein, an employer shall not be noncharged when the department finds that the employer or the employer's agent of record was at fault for failing to respond timely or adequately to the request of the department for information relating to an unemployment claim that was subsequently determined to be improperly paid, unless the employer or the employer's agent of record shows good cause for having failed to respond timely or adequately to the request of the department for information. For purposes of this subparagraph "good cause" means an event that prevents the employer or employer's agent of record from timely responding, and includes a natural disaster, emergency or similar event, or an illness on the part of the employer, the employer's agent of record, or their staff charged with responding to such inquiries when there is no other individual who has the knowledge or ability to respond. Any agency error that resulted in a delay in, or the failure to deliver notice to, the employer or the employer's agent of record shall also be considered good cause for purposes of this subparagraph.
( * * *iv) The department 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.
The following table shall be applied to reduce contribution rates from and after January 1, 2005, through December 31, 2009, and is not intended for use for any rate years subsequent to December 31, 2009:
Benefit Ratio Individual Experience Rate:
0.0% - 0.3%
0.1 - 0.2
0.2 - 0.10
0.3 0.0
0.4 0.1
0.5 0.2
0.6 0.3
0.7 0.4
0.8 0.5
0.9 0.6
1.0 0.7
1.1 0.8
1.2 0.9
1.3 1.0
1.4 1.1
1.5 1.2
1.6 1.3
1.7 1.4
1.8 1.5
1.9 1.6
2.0 1.7
2.1 1.8
2.2 1.9
2.3 2.0
2.4 2.1
2.5 2.2
2.6 2.3
2.7 2.4
2.8 2.5
2.9 2.6
3.0 2.7
3.1 2.8
3.2 2.9
3.3 3.0
3.4 3.1
3.5 3.2
3.6 3.3
3.7 3.4
3.8 3.5
3.9 3.6
4.0 3.7
4.1 3.8
4.2 3.9
4.3 4.0
4.4 4.1
4.5 4.2
4.6 4.3
4.7 4.4
4.8 4.5
4.9 4.6
5.0 4.7
5.1 4.8
5.2 4.9
5.3 5.0
5.4 5.1
5.5 5.2
5.6 5.3
5.7 and above 5.4
( * * *v) 1. The unemployment insurance
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%), however, it is the intent of this section to provide the ability for
employers to have a tax rate, the general experience rate plus the individual
experience rate, of up to 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)( * * *iv) above.
3. The general experience rate shall be determined in the following manner: The department 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 this item 3, the term "ineffectively charged benefits" shall include:
a. 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%);
b. 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
c. 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 (subsection (2)(b)( * * *v)3a, b and c) to the taxable wages
paid during the same period divided 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. a. Except as otherwise provided in this item 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, as defined in subsection (1)(k) of this section, subtract the simple average of the current and preceding years' exposure criterions divided by the cost rate criterion, as defined in subsection (1)(j) of this section. The result is then multiplied by the product of the CRC, as defined in subsection (1)(j) of this section, 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. The sum of the general experience rate and the trust fund adjustment factor shall be multiplied by fifty percent (50%) and this product shall be computed to one (1) decimal place, and rounded to the next higher tenth.
b. Notwithstanding the minimum rate provisions as set forth in Section 71-5-355(1)(l), if this act becomes effective before March 1, 2013, the general experience rate of all employers shall be reduced by seven one hundredths of one percent (.07%) for calendar year 2013 only. If this act becomes effective from and after March 1, 2013, the general experience rate of all employers shall be reduced by seven one hundredths of one percent (.07%) for calendar year 2014 only. The general experience rate decrease provided for in this sub-item b shall be effective for only one (1) calendar year.
5. Notwithstanding
any other provisions of subsection (2)(b)( * * *v), 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 and in no year shall the general
experience rate be less than two-tenths of one percent (.2%).
6. The department 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.
( * * *vi) 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.
( * * *vii) 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 department;
3. Continued operation of the transferred portion by the successor after transfer; and
4. The execution and the filing with the department 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.
( * * *viii) 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.
( * * *ix) The department 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 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 department 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.
( * * *x) The department shall notify each
employer of his rate of contribution as determined for any tax year as soon as
reasonably possible after September 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 such notice to his last known
address, the employer files with the department an application for review and
redetermination of his contribution rate, setting forth his reasons therefor.
If the department 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 department 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 notice thereof, there shall be an appeal
to the department itself. Any such appeal shall be on the record before said
designated hearing officer, and the decision of said department shall become
final unless, within thirty (30) days after the date 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.
(3) Notwithstanding any other provision of law, the following shall apply regarding assignment of rates and transfers of experience:
(a) (i) If an employer transfers its trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management or control of the two (2) employers, then the unemployment experience attributable to the transferred trade or business shall be transferred to the employer to whom such business is so transferred. The rates of both employers shall be recalculated and made effective on January 1 of the year following the year the transfer occurred.
(ii) If, following a transfer of experience under subparagraph (i) of this paragraph (a), the department determines that a substantial purpose of the transfer of trade or business was to obtain a reduced liability of contributions, then the experience-rating accounts of the employers involved shall be combined into a single account and a single rate assigned to such account.
(b) Whenever a person who is not an employer or an employing unit under this chapter at the time it acquires the trade or business of an employer, the unemployment experience of the acquired business shall not be transferred to such person if the department finds that such person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, such person shall be assigned the new employer rate under Section 71-5-353. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the department shall use objective factors which may include the cost of acquiring the business, whether the person continued the business enterprise of the acquired business, how long such business enterprise was continued, or whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.
(c) (i) If a person knowingly violates or attempts to violate paragraph (a) or (b) of this subsection or any other provision of this chapter related to determining the assignment of a contribution rate, or if a person knowingly advises another person in a way that results in a violation of such provision, the person shall be subject to the following penalties:
1. If the person is an employer, then such employer shall be assigned the highest rate assignable under this chapter for the rate year during which such violation or attempted violation occurred and the three (3) rate years immediately following this rate year. However, if the person's business is already at such highest rate for any year, or if the amount of increase in the person's rate would be less than two percent (2%) for such year, then a penalty rate of contributions of two percent (2%) of taxable wages shall be imposed for such year. The penalty rate will apply to the successor business as well as the related entity from which the employees were transferred in an effort to obtain a lower rate of contributions.
2. If the person is not an employer, such person shall be subject to a civil money penalty of not more than Five Thousand Dollars ($5,000.00). Each such transaction for which advice was given and each occurrence or reoccurrence after notification being given by the department shall be a separate offense and punishable by a separate penalty. Any such fine shall be deposited in the penalty and interest account established under Section 71-5-114.
(ii) For purposes of this paragraph (c), the term "knowingly" means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.
(iii) For purposes of this paragraph (c), the term "violates or attempts to violate" includes, but is not limited to, intent to evade, misrepresentation or willful nondisclosure.
(iv) In addition to the penalty imposed by subparagraph (i) of this paragraph (c), any violation of this subsection may be punishable by a fine of not more than Ten Thousand Dollars ($10,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment. This subsection shall prohibit prosecution under any other criminal statute of this state.
(d) The department shall establish procedures to identify the transfer or acquisition of a business for purposes of this subsection.
(e) For purposes of this subsection:
(i) "Person" has the meaning given such term by Section 7701(a)(1) of the Internal Revenue Code of 1986; and
(ii) "Employing unit" has the meaning as set forth in Section 71-5-11.
(f) This subsection shall be interpreted and applied in such a manner as to meet the minimum requirements contained in any guidance or regulations issued by the United States Department of Labor.
SECTION 8. Section 71-5-367, Mississippi Code of 1972, is amended as follows:
71-5-367. If an employer
shall file a report in proper form and in proper amount, but shall fail to pay
the amount of contributions shown to be due thereby at the time of such filing,
or if an employer shall fail to pay any assessment as provided and made under
Section 71-5-365 within fifteen (15) days after such assessment has become
final as herein provided, the * * * department may issue a
warrant under its official seal, directed to the sheriff of any county of the state,
commanding him to levy upon and sell the real and personal property of such
employer as has defaulted in the payment of such contributions or assessments,
which may be found within his county, for the payment of the amount thereof,
together with interest, damages, if any, assessed for failure to make and file
a report or a corrected or sufficient report, and an additional sum not
exceeding one hundred percent (100%) of the amount of the unpaid contributions
due, in the discretion of the * * * department, as damages for
failure to pay, if not already assessed under Section 71-5-365 and the costs of
executing the warrant and to return such warrant to the * * * department, and to pay to it
the money collected by virtue thereof on the date specified therein. The * * * department shall cause to be
delivered to the clerk of the circuit court a copy of such warrant issued to
the sheriff. Such clerk shall enter in the judgment roll, in the column for
judgment debtors, the name of the employer mentioned in the warrant and, in
appropriate columns, the amount of contributions, interest and damages for
which the warrant is issued, a notation that the lien covers all previous,
current and future periods for the life of the lien, and the date when such
copy is filed. Thereupon the amount of such warrant so filed and entered shall
become a lien upon the title to and interest in all real and personal property,
including choses in action against negotiable instruments not past due, of the
employer against whom the warrant is issued in the same manner as a judgment
duly enrolled in the office of such clerk. Any such liens shall cover all
contributions, interest and damages owed to the * * * department from previous,
current and future periods until the expiration of such lien or until the
amount of the lien is fully satisfied. Such judgment shall not be a lien upon
the property of the employer for a period of more than seven (7) years from the
date of filing of the notice of the tax lien for failure to pay contributions,
damages and interest unless action be brought thereon before the expiration of
such time or unless the * * *commission department refiles such notice of tax lien
before the expiration of such time. The judgment shall be a lien upon the
property of the employer for a period of seven (7) years from the date of
refiling such notice of tax lien unless action be brought thereon before the
expiration of such time or unless the * * * department refiles such notice
of tax lien before the expiration of such time. There shall be no limit upon
the number of times the * * *commissiondepartment may refile notices of tax liens.
The sheriff shall proceed upon the warrant in the same manner and with like
effect as that provided by law in respect to executions issued against property
upon judgments or in attachment proceedings of a court of record, and the
remedies by garnishment shall apply; and for his services in executing the
warrant the sheriff shall be entitled to the same fees, which he may collect in
the same manner.
The * * * department may elect to issue
the warrant directly to the circuit clerk of any county of this state for
enrollment upon the judgment rolls of the county. In such case, the clerk
shall enter in the judgment roll, in the column for judgment debtors, the name
of the employer mentioned in the warrant and, in appropriate columns, the
amount of contributions, interest and damages for which the warrant is issued,
a notation that the lien covers all previous, current and future periods for
the life of the lien, and the date when such warrant is filed. The lien shall
have the same effect and remedies as that provided by law in respect to
executions issued against property upon judgments or in attachment proceedings
of a court of record, and the remedies by garnishment shall apply.
* * *
All warrants issued by the department for the collection of any unemployment
tax or for an overpayment of benefits imposed by statute and collected by the
department shall be used to levy on salaries, compensation or other monies due
the delinquent employer or claimant. No such warrant shall be issued until
after the delinquent employer or claimant has exhausted all appeal rights
associated with the debt. The warrants shall be served by mail or by delivery
by an agent of the department on the person or entity responsible or liable for
the payment of the monies due the delinquent employer or claimant. Once
served, the employer or other person owing compensation due the delinquent
employer or claimant shall pay the monies over to the department in complete or
partial satisfaction of the liability. An answer shall be made within thirty
(30) days after service of the warrant in the form and manner determined
satisfactory by the department. Failure to pay the money over to the
department as required by this section shall result in the served party being
personally liable for the full amount of the monies owed and the levy and
collection process may be issued against the party in the same manner as other
debts owed to the department. Except as otherwise provided by this section,
the answer, the amount payable under the warrant and the obligation of the
payor to continue payment shall be governed by the garnishment laws of this
state but shall be payable to the department.
SECTION 9. Section 71-5-389, Mississippi Code of 1972, is amended as follows:
71-5-389. (1) For the purposes of this section, the following terms shall have the respective meanings ascribed by this section:
(a) "Claimant agency" means the Mississippi Department of Employment Security.
(b) "Debtor" means any individual, corporation or partnership owing money or having a delinquent account with any claimant agency, which obligation has not been adjudicated satisfied by court order, set aside by court order, or discharged in bankruptcy.
(c) "Debt" means any sum due and owing any claimant agency, including costs, court costs, fines, penalties and interest which have accrued through contract, subrogation, tort, operation of law, or any other legal theory regardless of whether there is an outstanding judgment for that sum which is legally collectible and for which a collection effort has been or is being made.
(d) "Department" or "Department of Revenue" means the Department of Revenue of the State of Mississippi.
(e) "Refund" means the Mississippi income tax refund which the department determines to be due any individual taxpayer, corporation or partnership.
(2) The collection remedy authorized by this section is in addition to and is not substitution for any other remedy available by law.
(3) (a) A claimant agency may submit debts in excess of Twenty-five Dollars ($25.00) owed to it to the department for collection through setoff, under the procedure established by this section, except in cases where the validity of the debt is legitimately in dispute, an alternate means of collection is pending and believed to be adequate, or such collection would result in a loss of federal funds or federal assistance.
(b) Upon the request of a claimant agency, the department shall set off any refund, as defined herein, against the sum certified by the claimant agency as provided in this section.
(4) (a) Within the time frame specified by the department, a claimant agency seeking to collect a debt through setoff shall supply the information necessary to identify each debtor whose refund is sought to be set off and certify the amount of debt or debts owed by each such debtor.
(b) If a debtor identified by a claimant agency is determined by the department to be entitled to a refund of at least Twenty-five Dollars ($25.00), the department shall transfer an amount equal to the refund owed, not to exceed the amount of the claimed debt certified, to the claimant agency. The Department of Revenue shall send the excess amount to the debtor within a reasonable time after such excess is determined. At the time of the transfer of funds to a claimant agency pursuant to this paragraph (b), the Department of Revenue shall notify the taxpayer or taxpayers whose refund is sought to be set off that the transfer has been made. Such notice shall clearly set forth the name of the debtor, the manner in which the debt arose, the amount of the claimed debt, the transfer of funds to the claimant agency pursuant to this paragraph (b) and the intention to set off the refund against the debt, the amount of the refund in excess of the claimed debt, the taxpayer's opportunity to give written notice to contest the setoff within thirty (30) days of the date of mailing of the notice, the name and mailing address of the claimant agency to which the application for such a hearing must be sent, and the fact that the failure to apply for such a hearing, in writing, within the thirty-day period will be deemed a waiver of the opportunity to contest the setoff. In the case of a joint return or a joint refund, the notice shall also state the name of the taxpayer named in the return, if any, against whom no debt is claimed, the fact that a debt is not claimed against such taxpayer, the fact that such taxpayer is entitled to receive a refund if it is due him regardless of the debt asserted against his spouse, and that in order to obtain a refund due him such taxpayer must apply in writing for a hearing with the claimant agency named in the notice within thirty (30) days of the date of the mailing of the notice. If a taxpayer fails to apply in writing for such a hearing within thirty (30) days of the mailing of such notice, he will have waived his opportunity to contest the setoff.
(c) Upon receipt of funds transferred from the Department of Revenue pursuant to paragraph (b) of this subsection, the claimant agency shall deposit and hold such funds in an escrow account until a final determination of the validity of the debt.
(d) The claimant agency shall pay the Department of Revenue a fee, not to exceed Seventeen Dollars ($17.00) in each case in which a tax refund is identified as being available for offset. Such fees shall be deposited by the Department of Revenue into a special fund hereby created in the State Treasury, out of which the Legislature shall appropriate monies to defray expenses of the Department of Revenue in employing personnel to administer the provisions of this section.
(5) (a) When the claimant
agency receives a protest or an application in writing from a taxpayer within
thirty (30) days of the notice issued by the Department of Revenue, the
claimant agency shall set a date to hear the protest and give notice to the
taxpayer * * * through the United States Postal Service or
electronic digital transfer of the date so set. The time and place of such
hearing shall be designated in such notice and the date set shall not be less
than fifteen (15) days from the date of such notice. If, at the hearing, the
sum asserted as due and owing is found not to be correct, an adjustment to the
claim may be made. The claimant agency shall give notice to the debtor of its
final determination as provided in paragraph (c) of this subsection.
(b) No issues shall be reconsidered at the hearing which have been previously litigated.
(c) If any debtor is dissatisfied with the final determination made at the hearing by the claimant agency, he may appeal the final determination to the circuit court of the county in which the main office of the claimant agency is located by filing notice of appeal with the administrative head of the claimant agency and with the clerk of the circuit court of the county in which the appeal shall be taken within thirty (30) days from the date the notice of final determination was given by the claimant agency.
(6) (a) Upon final determination of the amount of the debt due and owing by means of hearing or by the taxpayer's default through failure to comply with timely request for review, the claimant agency shall remove the amount of the debt due and owing from the escrow account and credit such amount to the debtor's obligation.
(b) Upon transfer of the debt due and owing from the escrow account to the credit of the debtor's account, the claimant agency shall notify the debtor in writing of the finalization of the setoff. Such notice shall include a final accounting if the refund which was set off, including the amount of the refund to which the debtor was entitled prior to the setoff, the amount of the debt due and owing, the amount of the collection fee paid to the Department of Revenue, the amount of the refund in excess of the debt which was returned to the debtor by the Department of Revenue, and the amount of the funds transferred to the claimant agency in excess of the debt determined to be due and owing at a hearing, if such a hearing was held. At such time, the claimant agency shall refund to the debtor the amount of the claimed debt originally certified and transferred to it by the Department of Revenue in excess of the amount of debt finally found to be due and owing.
(7) (a) Notwithstanding the provision that prohibits disclosure by the Department of Revenue of the contents of taxpayer records or information and notwithstanding any other confidentiality statute, the Department of Revenue may provide to a claimant agency all information necessary to accomplish and effectuate the intent of the section.
(b) The information obtained by claimant agency from the Department of Revenue in accordance with the provisions of this section shall retain its confidentiality and shall only be used by a claimant agency in the pursuit of its debt collection duties and practices; and any employee or prior employee of any claimant agency who unlawfully discloses any such information for any other purpose, except as specifically authorized by law, shall be subject to the same penalties specified by law for unauthorized confidential information by an agent or employee of the Department of Revenue.
SECTION 10. Section 71-5-453, Mississippi Code of 1972, is amended as follows:
71-5-453. The * * * department shall be the * * * treasurer and custodian of the fund,
and shall administer such fund in accordance with the directions of the
department, and shall issue * * * its warrants upon it in accordance
with such regulations as the department shall prescribe. * * * The department shall maintain within
the fund three (3) separate accounts: (a) a clearing account, (b) an
unemployment trust fund account, and (c) a benefit payment account. All
monies payable to the fund, upon receipt thereof by the department, shall be * * *
immediately * * * deposited in the clearing account. Refunds payable
pursuant to Section 71-5-383 may be paid from the clearing account * * * by the * * *
department. Transfers pursuant to Section 71-5-114 of all interest, penalties
and damages collected shall be made to the Special Employment Security
Administration Fund as soon as practicable after the end of each calendar
quarter. Workforce training enhancement contributions shall be deposited into
the workforce enhancement training holding fund account as described in this
section. All other monies in the clearing account shall be immediately deposited
with the Secretary of the Treasury of the United States of America to the * * *
Unemployment Trust Fund account for the state of Mississippi,
established and maintained pursuant to Section 904 of the Social Security Act,
as amended, any provisions of law in this state relating to the deposit,
administration, release or disbursement of monies in the possession or custody
of this state to the contrary notwithstanding. The benefit account shall
consist of all monies requisitioned from this state's account in the
Unemployment Trust Fund. Except as herein otherwise provided, monies in the
clearing and benefit accounts may be deposited by the * * *
department, in any bank or public depository in which general funds of the
state may be deposited, but no public deposit insurance charge or premium shall
be paid out of the fund. The * * * department shall be
liable * * * for the faithful performance of * * * its duties in connection with the
Unemployment Compensation Fund under this chapter. A Mississippi Workforce
Training Enhancement Fund holding account shall be established by and
maintained under the control of the * * * department.
The workforce training enhancement contributions collected pursuant to the
provisions in this chapter shall be transferred from the clearing account into
the Mississippi Workforce Training Enhancement Fund holding account on the same
schedule and under the same conditions as funds transferred to the Unemployment
Compensation Fund. Such funds shall remain on deposit in the workforce
training enhancement fund account for a period of sixty (60) days. After such
period, contributions will be transferred to the Mississippi Workforce
Enhancement Training Fund by the * * * department,
within thirty (30) days. One such transfer shall be made monthly, but the
department, in its discretion, may make additional transfers in any month. In
the event such funds transferred are subsequently determined to be erroneously
paid or collected, or if deposit of such funds is denied or rejected by the
banking institution for any reason, or deposits are unable to clear drawer's
account for any reason, the funds must be reimbursed by the recipient of such
funds within thirty (30) days of mailing of notice by the * * * department
demanding such refund, unless funds are available in the workforce training
enhancement fund holding account. In that event such amounts shall be
immediately withdrawn from the workforce enhancement training holding fund
account by the * * * department and redeposited
into the clearing account.
SECTION 11. Section 71-5-455, Mississippi Code of 1972, is amended as follows:
71-5-455. Monies shall be
requisitioned from this state's account in the Unemployment Trust Fund solely
for the payment of benefits and in accordance with regulations prescribed by
the * * *
department, except that monies credited to this state's account pursuant
to Section 903 of the Social Security Act, as amended, shall be used
exclusively as provided in Section 71-5-457. No monies in the Unemployment
Compensation Fund shall be used to pay interest on any funds that might be
borrowed for the purposes of this chapter, but any such interest that might be
due shall be paid from other sources. The * * * department shall from time to
time requisition from the Unemployment Trust Fund such amounts, not exceeding
the amount standing to this state's account therein, as it deems necessary for
the payment of benefits for a reasonable future period. * * * Such
sums shall be immediately deposited by the * * * department in some bank
within this state in an account to be known as the "benefit payment
account," which shall be under the control of the * * * department and on which said
benefit payment account the * * * department or its duly
authorized representative is authorized to draw and issue its checks in payment
of benefits to individuals entitled thereto under this chapter. Expenditures
of such monies in the benefit account and benefit payment account and refunds
from the clearing account shall not be subject to any provisions of law
requiring specific appropriations or other formal release by state officers of
money in their custody. All warrants * * * shall bear the signature
of the * * *
department's duly authorized agent for that purpose.
* * *
The department shall be subject to the applicable laws pertaining to security of public fund deposits as set forth in Sections 27-105-5 and 27-105-6.
SECTION 12. Section 71-5-505, Mississippi Code of 1972, is amended as follows:
71-5-505. (1) For weeks beginning on or after July 1, 1991, each eligible individual who is totally unemployed or part totally unemployed in any week shall be paid with respect to such week a benefit in an amount equal to his weekly benefit amount less that part of his wages, if any, payable to him with respect to such week which is in excess of Forty Dollars ($40.00). Such individuals must have been totally unemployed or part totally unemployed for a waiting period of one (1) week during which he earned less than his weekly benefit amount plus Forty Dollars ($40.00). Such benefit for a benefit year effective on or after October 1, 1983, if not a multiple of One Dollar ($1.00), shall be computed to the next lower multiple of One Dollar ($1.00). Provided, however, that remuneration for "inactive duty training" or "unit training assembly" payable to such eligible individual who is a member of any of the reserve components, or remuneration for jury duty pursuant to a lawfully issued summons therefor payable to such eligible individual, shall not be considered wages which serve to reduce the otherwise payable benefit amount.
In determining whether an eligible individual is unemployed during a week, the date of commencing a shift shall determine the week for which the earnings are deducted.
(2) However, the one-week waiting period described herein shall be waived if the President of the United States declares a major disaster with regard to individual assistance in accordance with Section 401 of The Robert T. Stafford Disaster Relief and Emergency Assistance Act. The department, in its discretion, shall have the authority to noncharge an employer account for any benefits paid for unemployment due directly to such disaster, but only in those counties and/or areas identified by the disaster area for individual assistance.
SECTION 13. Section 71-5-511, Mississippi Code of 1972, is amended as follows:
71-5-511. An unemployed individual shall be eligible to receive benefits with respect to any week only if the department finds that:
(a) (i) He has registered for work at and thereafter has continued to report to the department in accordance with such regulations as the department may prescribe; except that the department may, by regulation, waive or alter either or both of the requirements of this subparagraph as to such types of cases or situations with respect to which it finds that compliance with such requirements would be oppressive or would be inconsistent with the purposes of this chapter; and
(ii) He participates in reemployment services, such as job search assistance services, if, in accordance with a profiling system established by the department, it has been determined that he is likely to exhaust regular benefits and needs reemployment services, unless the department determines that:
1. The individual has completed such services; or
2. There is justifiable cause for the claimant's failure to participate in such services.
(b) He has made a claim for benefits in accordance with the provisions of Section 71-5-515 and in accordance with such regulations as the department may prescribe thereunder.
(c) He is able to work * * *, available for work and
actively seeking work.
(d) He has been unemployed for a waiting period of one (1) week. No week shall be counted as a week of unemployment for the purposes of this subsection:
(i) Unless it occurs within the benefit year which includes the week with respect to which he claims payment of benefits;
(ii) If benefits have been paid with respect thereto;
(iii) Unless the individual was eligible for benefits with respect thereto, as provided in Sections 71-5-511 and 71-5-513, except for the requirements of this subsection.
(e) For weeks
beginning on or before July 1, 1982, he has, during his base period, been paid
wages for insured work equal to not less than thirty-six (36) times his weekly
benefit amount; he has been paid wages for insured work during at least two (2)
quarters of his base period; and he has, during that quarter of his base period
in which his total wages were highest, been paid wages for insured work equal
to not less than sixteen (16) times the minimum weekly benefit amount. For
benefit years beginning after July 1, 1982, he has, during his base period,
been paid wages for insured work equal to not less than forty (40) times his
weekly benefit amount; he has been paid wages for insured work during at least
two (2) quarters of his base period, and he has, during that quarter of his
base period in which his total wages were highest, been paid wages for insured
work equal to not less than twenty-six (26) times the minimum weekly benefit
amount. For purposes of this subsection, wages shall be counted as "wages
for insured work" for benefit purposes with respect to any benefit year
only if such benefit year begins subsequent to the date on which the employing
unit by which such wages were paid has satisfied the conditions of Section 71-5-11,
subsection * * *
H, or Section 71-5-361, subsection (3), with respect to becoming an
employer.
(f) No individual 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
service in "employment" as defined in Section 71-5-11, subsection * * * I, and earned remuneration for such
service in an amount equal to not less than eight (8) times his weekly benefit
amount applicable to his next preceding benefit year.
(g) Benefits based on
service in employment defined in Section 71-5-11, subsection * * * I(3) and * * * I(4), and Section 71-5-361, subsection
(4) shall be payable in the same amount, on the same terms, and subject to the
same conditions as compensation payable on the basis of other service subject
to this chapter, except that benefits based on service in an instructional,
research or principal administrative capacity in an institution of higher
learning (as defined in Section 71-5-11, subsection * * * N) with respect to service performed
prior to January 1, 1978, shall not be paid to an individual for any week of
unemployment which begins during the period between two (2) successive academic
years, or during a similar period between two (2) 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 contracts to perform
services in any such capacity for any institution or institutions of higher
learning for both such academic years or both such terms.
(h) Benefits based on
service in employment defined in Section 71-5-11, subsection * * * I(3) and * * * I(4), shall be payable in the same
amount, on the same terms and subject to the same conditions as compensation
payable on the basis of other service subject to this chapter, except that:
(i) With respect to service performed in an instructional, research or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two (2) successive academic years, or during a similar period between two (2) regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual, if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms, and provided that subsection (g) of this section shall apply with respect to such services prior to January 1, 1978. In no event shall benefits be paid unless the individual employee was terminated by the employer.
(ii) With respect to services performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two (2) 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, except that if compensation is denied to any individual under this subparagraph and such individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, such individual shall be 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 clause. In no event shall benefits be paid unless the individual employee was terminated by the employer.
(iii) With respect to services described in subsection (h)(i) and (ii), benefits shall not be payable on the basis of services in any such capacities to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the first of such academic years or terms, or in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.
(iv) With respect to any services described in subsection (h)(i) and (ii), benefits shall not be payable on the basis of services in any such capacities as specified in subsection (h)(i), (ii) and (iii) to any individual who performed such services in an educational institution while in the employ of an educational service agency. For purposes of this subsection, the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing such services to one or more educational institutions.
(v) With respect to services to which Sections 71-5-357 and 71-5-359 apply, if such services are provided to or on behalf of an educational institution, benefits shall not be payable under the same circumstances and subject to the same terms and conditions as described in subsection (h)(i), (ii), (iii) and (iv).
(i) Subsequent to December 31, 1977, benefits shall not be paid to any individual on the basis of any services substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two (2) successive sports seasons (or similar periods) if such individual performs such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).
(j) (i) Subsequent to December 31, 1977, benefits shall not be payable on the basis of services performed by an alien, unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed (including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act).
(ii) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
(iii) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made, except upon a preponderance of the evidence.
(k) An individual shall be deemed prima facie unavailable for work, and therefore ineligible to receive benefits, during any period which, with respect to his employment status, is found by the department to be a holiday or vacation period.
(l) A temporary employee of a temporary help firm is considered to have left the employee's last work voluntarily without good cause connected with the work if the temporary employee does not contact the temporary help firm for reassignment on completion of an assignment. A temporary employee is not considered to have left work voluntarily without good cause connected with the work under this paragraph unless the temporary employee has been advised in writing:
(i) That the temporary employee is obligated to contact the temporary help firm on completion of assignments; and
(ii) That unemployment benefits may be denied if the temporary employee fails to do so.
SECTION 14. Section 71-5-13, Mississippi Code of 1972, is amended as follows:
71-5-13. (1) The * * * department is hereby
authorized to enter into arrangements with the appropriate agencies of other
states or the federal government, whereby individuals performing services in
this and other states for a single employing unit under circumstances not
specifically provided for in Section 71-5-11, subsection * * * I, or under similar provisions in the
unemployment compensation laws of such other states, shall be deemed to be
engaged in employment performed entirely within this state or within one (1) of
such other states and whereby potential rights to benefits accumulated under
the unemployment compensation laws of one or more states or under such a law of
the federal government, or both, may constitute the basis for the payment of
benefits through a single appropriate agency under terms which the * * * department finds will be fair
and reasonable as to all affected interests and will not result in any
substantial loss to the fund.
(2) The * * * department is also authorized
to enter into arrangements with the appropriate agencies of other states or of
the federal government:
(a) Whereby wages or
services upon the basis of which an individual may become entitled to benefits
under the unemployment compensation law of another state or of the federal
government shall be deemed to be wages for employment by employers for the
purposes of Sections 71-5-501 through 71-5-507 and Section 71-5-511(e),
provided such other state agency or agency of the federal government has agreed
to reimburse the fund for such portion of benefits paid under this chapter upon
the basis of such wages or services as the * * * department finds will be fair
and reasonable as to all affected interests; and
(b) Whereby the * * * department will reimburse
other state or federal agencies charged with the administration of unemployment
compensation laws with such reasonable portion of benefits paid under the law
of any such other states or of the federal government, upon the basis of
employment or wages for employment by employers, as the * * * department finds will be fair
and reasonable as to all affected interests. Reimbursements so payable shall
be deemed to be benefits for the purposes of Sections 71-5-451 through 71-5-459.
The * * *
department is hereby authorized to make to other state or federal
agencies, and receive from such other state or federal agencies, reimbursements
from or to the fund, in accordance with arrangements pursuant to this section.
(3) The * * * department is also
authorized, in its discretion, to enter into or cooperate in arrangements with
any federal agency whereby the facilities and services of the personnel of the * * * department may be utilized
for the taking of claims and the payment of unemployment compensation or allowances
under any federal law enacted for the benefit of discharged members of the
Armed Forces.
(4) The * * * department shall participate
in any arrangements for the payment of compensation on the basis of combining
an individual's wages and employment covered under this chapter with his wages
and employment covered under the unemployment compensation laws of other states
which are approved by the United States Secretary of Labor in consultation with
the state unemployment compensation agencies as reasonably calculated to assure
the prompt and full payment of compensation in such situations and which
include provisions for:
(a) Applying the base
period of a single state law to a claim involving the combining of an
individual's wages and employment covered under two (2) or more state
unemployment compensation laws * * *; and
(b) Avoiding the duplicate use of wages and employment by reason of such combining.
SECTION 15. 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 USCS Section 501).
(a) Any nonprofit
organization which, under 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 department
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 department 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 paragraph will continue to be liable for payments in lieu of contributions unless it files with the department 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 department, 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 department 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 department, 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 subparagraph (i) of this paragraph.
(i) At the end of each calendar quarter, or at the end of any other period as determined by the department, the department 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 subparagraph (i) of this paragraph shall be made not later than forty-five (45) days after such bill was delivered to the nonprofit organization, unless there has been an application for review and redetermination in accordance with subparagraph (v) of this paragraph.
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 department 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 paragraph 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 paragraph 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. However, political subdivisions who are reimbursing employers may elect to pay to the fund an amount equal to five-tenths percent (.5%) through December 31, 2010, and shall pay twenty-five one-hundredths percent (.25%) thereafter 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 department shall be conclusive on the organization unless, not later than fifteen (15) days after the bill was delivered to it, the organization files an application for redetermination by the department, setting forth the grounds for such application or appeal. The department 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 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 department 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 subparagraph (i) or subparagraph (ii) of this paragraph.
(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 department, any nonprofit organization that elects to become liable for payments in lieu of contributions shall be required to execute and file with the department a surety bond approved by the department, or it may elect instead to deposit with the department money or securities. The amount of such bond or deposit shall be determined in accordance with the provisions of this paragraph.
(i) The amount of
the bond or deposit required by paragraph (d) shall be equal to two and seven-tenths
percent (2.7%) thereafter to December 31, 2010, and one and thirty-five one-hundredths
percent (1.35%) thereafter, 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 department.
(ii) Any bond deposited under paragraph (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 department at such times as the department 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 department 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 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 paragraph (b)(v) of this section, shall render the surety liable on the bond to the extent of the bond, as though the surety was such organization.
(iii) Any deposit of money or securities in accordance with paragraph (d) shall be retained by the department 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 department may deduct from the money deposited under paragraph (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 paragraph (b)(v) of this section. The department 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 department 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 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 subparagraph, the department 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 periods beginning with the quarter in which such termination becomes effective; however, the department 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 department.
(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 Public Law 94-566.
SECTION 16. Section 71-5-361, Mississippi Code of 1972, is amended as follows:
71-5-361. (1) Except as provided in subsection (3) of this section, any employing unit which is or becomes an employer subject to this chapter within any calendar year shall be deemed to be an employer during the whole of such calendar year.
(2) Except as otherwise provided in subsection (3) of this section:
(a) An employing unit
(other than a state hospital, state institution of higher learning, state or
state agency or other political subdivision or instrumentality) except as
provided in subsections (b) and (c) of this subsection, shall cease to be an
employer subject to this chapter only as of the first day of January of any
calendar year, only if it files with the * * * department on or before the
thirty-first day of May of such year a written application for termination of
coverage, and the * * *
department finds that during the preceding calendar year the employing
unit did not pay wages of One Thousand Five Hundred Dollars ($1,500.00) or more
in any calendar quarter and that there were no twenty (20) days, each day being
in a different week within the preceding calendar year, within which such
employing unit employed one or more individuals in employment subject to this
chapter, or four (4) or more in the case of nonprofit organizations, except if
the * * *
department finds that throughout a calendar year an employer has had no
employment, it shall cease to be an employer subject to this chapter.
(b) An agricultural
employer as defined under Section 71-5-11, subsection * * * H(4)(a) shall cease to be an
agricultural employer subject to this chapter only as of the first day of
January of any calendar year, only if it files with the * * * department on or before the
thirty-first day of May of such year a written application for termination of
coverage, and the * * *
department finds that during the preceding calendar year the employing
unit did not pay for agricultural employment wages as defined in Section 71-5-11,
subsection * * *
I(6) of Twenty Thousand Dollars ($20,000.00) in any calendar quarter of
the preceding calendar year and that there were no twenty (20) days, each day
being in a different week, within such calendar year, within which such
employing unit employed ten (10) or more individuals in employment subject to
this chapter, except if the * * * department finds that
throughout a calendar year an employer has had no employment, it shall cease to
be an employer subject to this chapter.
(c) A domestic
employer, as defined in Section 71-5-11, subsection * * * H(4)(b), shall cease to be an employer
subject to this chapter only as of the first day of January of any calendar
year, only if it files with the * * * department on or before the
thirty-first day of May of such year a written application for termination of
coverage, and the * * *
department finds that during the preceding calendar year the employing
unit did not pay wages for domestic employment of One Thousand Dollars
($1,000.00) or more in any calendar quarter of the preceding calendar year,
except if the * * *
department finds that throughout a calendar year an employer has had no
employment, it shall cease to be an employer subject to this chapter.
(d) For the purpose of
this subsection, the two (2) or more employing units mentioned in Section 71-5-11,
subsection * * *
H(5) or (6), shall be treated as a single employing unit. The * * * department may, of its own
motion, cancel and terminate the effect of registrations for purposes of its
accounting records in cases where it has found that employing units, duly
registered as covered employers under the chapter, have died, ceased business
or removed from the state without applying for termination of coverage,
provided that the rights of claimants for benefits shall not be affected thereby.
(3) (a) An employing unit,
not otherwise subject to this chapter, which files with the * * * department its written
election to become an employer subject thereto for not less than two (2)
calendar years shall, with the written approval of such election by the * * * department or the executive
director, become an employer subject hereto to the same extent as all other
employers as of the date stated in such approval, and shall cease to be subject
hereto as of January 1 of any calendar year subsequent to such two (2) calendar
years only if it files with the * * * department, on or before the
thirty-first day of May of such year, a written application for termination of
coverage thereunder.
(b) Any employing
unit, for which services that do not constitute employment as defined in this
chapter are performed, may file with the * * * department a written election
that all such services performed by individuals in its employ in one or more
distinct establishments or places of business shall be deemed to constitute
employment by an employer for all purposes of this chapter for not less than
two (2) calendar years. Upon written approval of such election by the * * * department, such services
shall be deemed to constitute employment subject to this chapter from and after
the date stated in such approval. Such services shall cease to be deemed
employment subject hereto as of January 1 of any calendar year subsequent to
such two (2) calendar years only if, prior to the thirty-first day of May of
such year, such employing unit has filed with the * * * department a written notice
to that effect.
(4) (a) Prior to January
1, 1978, any political subdivision of this state may elect to cover under this
chapter, for a period of not less than two (2) calendar years, services
performed by employees in all of the hospitals and institutions of higher
learning, as defined in Section 71-5-11, subsection * * * M or * * * N, operated by such political subdivision.
Election is to be made by filing with the * * * department a notice of such
election at least thirty (30) days prior to the effective date of such
election. The election may exclude any services described in Section 71-5-11,
subsection * * *
I(5). Any political subdivision electing coverage under this subsection
shall make payments in lieu of contributions with respect to benefits
attributable to such employment as provided with respect to nonprofit
organizations in subsections (b) and (c) of Section 71-5-357.
(b) Prior to January 1, 1978, the provisions in Section 71-5-511, subsection (g) with respect to benefit rights based on service for state and nonprofit institutions of higher learning shall be applicable also to service covered by an election under this section.
(c) Prior to January 1, 1978, the amounts required to be paid in lieu of contributions by any political subdivision under this section shall be billed and payment made as provided in subsections (b) and (c) of Section 71-5-357.
(d) Prior to January
1, 1978, an election under this section, after having been in effect for not
less than two (2) calendar years, may be terminated by filing with the * * * department written notice not
later than thirty (30) days preceding the last day of the calendar year in
which the termination is to be effective. Such termination becomes effective
as of the first day of the next ensuing calendar year with respect to services
performed on and after that date.
SECTION 17. Section 71-5-501, Mississippi Code of 1972, is amended as follows:
71-5-501. Wages earned for
services defined in Section 71-5-11( * * *H)(15)(g), irrespective of when
performed, shall not be included for purposes of determining eligibility under
Section 71-5-511(e) or weekly benefit amount under Section 71-5-503 nor shall
any benefits with respect to unemployment be payable under Section 71-5-505 on
the basis of such wages. All benefits shall be paid through employment offices
or such other agency or agencies as the * * * department may, by
regulation, designate, in accordance with such regulations as the * * * department may prescribe.
The * * *
department may, by regulation, prescribe that benefits due and payable
to claimants who die prior to the receipt or cashing of benefits checks may be
paid to the legal representative, dependents, or next of kin, of the deceased
as may be found by it to be equitably entitled thereto, and every such payment
shall be deemed a valid payment to the same extent as if made to the legal
representative of the decedent.
SECTION 18. This act shall take effect and be in force from and after its passage.