04/10/03 0922s

05/22/03 1751eba

2003 SESSION

03-1065

08/09

SENATE BILL 101-FN

COMMITTEE: Executive Departments and Administration

AMENDED ANALYSIS

This bill adds Indian tribes to the definition of employer for the purposes of unemployment compensation and makes various other changes.

This bill is a request from the department of employment security.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04/10/03 0922s

05/22/03 1751eba

03-1065

08/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

Be it Enacted by the Senate and House of Representatives in General Court convened:

116:1 New Paragraph; Unemployment Compensation; Employer Defined. Amend RSA 282-A:8 by inserting after paragraph VII the following new paragraph:

VIII. An Indian tribe as defined by 26 U.S.C. section 3306(u) of the Federal Unemployment Tax Act for which services in employment are performed within this state unless such services are otherwise excluded from employment under 26 U.S.C. section 3306 (c) of the Federal Unemployment Tax Act or under RSA 282-A:9. Indian tribes shall also include wholly owned subdivisions, subsidiaries, or business enterprises of Indian tribes.

116:2 Unemployment Compensation. Amend RSA 282-A:9, IV(s)(1)(B) to read as follows:

(B) 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; or

116:3 New Subparagraph; Unemployment Compensation. Amend RSA 282-A:9, IV(s)(1) by inserting after subparagraph (B) the following new subparagraph:

(C) Is engaged in the trade or business of the delivering or distribution of newspapers or shopping news, including any services directly related to such trade or business;

116:4 Unemployment Compensation. Amend RSA 282-A:31, III to read as follows:

III. Subparagraph I(c) shall be waived for any week with respect to any individual who is otherwise entitled to unemployment compensation benefits and is selected by the department of employment security and enrolled in a vocational training program [under the auspices of the New Hampshire department of education] approved by the commissioner of the department of employment security and is as to such week in good standing in the training program, and has not failed without good cause to attend all scheduled sessions. Remuneration for services in connection with the training program paid to any such individual shall be wages for the purposes of RSA 282-A:14.

116:5 New Paragraph; Benefit Eligibility Conditions. Amend RSA 282-A:31 by inserting after paragraph III the following new paragraph:

IV. Subparagraphs II(b) and II(c) shall apply only to services in the employ of the state or any political subdivision thereof, to Indian tribes, and to organizations defined in section 501(c)(3) and exempt under section 501(a) of the Internal Revenue Code.

116:6 New Paragraph; Unemployment Compensation. Amend RSA 282-A:32 by inserting after paragraph III the following new paragraph:

IV. For any week during which the individual resides other than in New Hampshire, another state, the District of Columbia, Puerto Rico, the Virgin Islands or a contiguous country with which the United States has an agreement with respect to unemployment compensation.

116:7 Unemployment Compensation. Amend RSA 282-A:36 to read as follows:

282-A:36 Labor Dispute. [An individual] A person shall be disqualified for benefits for any week with respect to which the commissioner finds that his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he or she is or was last employed; provided that this section shall not apply if it is shown to the satisfaction of the commissioner that:

I.(a) [He] The person is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and

(b) [He] The person does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided that, if in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment, or other premises; or

II. [He] The person has become unemployed and entitled to unemployment compensation before the commencement of the labor dispute and his connection with the employer has been totally severed, including the absence of recall rights, seniority rights and other fringe benefits and indicia of employment; or

II-a. The stoppage of work was due solely to a lockout or the failure of the employer to live up to the provision of any agreement or contract of employment entered into between the employer and his or her employees; or

III. The stoppage of work has continued for a period of 2 weeks after the termination of the labor dispute; or

IV. [He] The person has, since becoming unemployed for the reasons set forth in the introductory paragraph worked in 5 or more [consecutive] weeks in employment [for an employer] as defined in RSA 282-A:9, except RSA 282-A:9, IV(f), or wages earned in a like manner in another state, earning in each week an amount at least equal to [his] such person's maximum benefit rate plus 20 percent thereof, and then becomes unemployed from said employer due to a lack of work.

116:8 Unemployment Compensation. Amend RSA 282-A:58 to read as follows:

282-A:58 Decision. In every appeal, except those withdrawn, the chairman shall prepare a written decision which shall be sent by certified mail, return receipt requested, or first class mail, whichever the commissioner determines to be most appropriate, to each interested party at the last address of each according to the records of the department of employment security. The decision, except one on an appeal dismissed for lack of prosecution or defaulted for failure to attend, among other necessary things as determined by the commissioner, shall: set forth all the material findings and specific provisions of law necessary to support the conclusions; identify the interested parties and the account, whether fund or employer, to which benefits will be charged, if allowed; identify the week or period during which benefits are denied; identify the first week and subsequent period with respect to which benefits will be paid, if allowed; determine all things necessary to finally dispose of the case; and identify the members of the tribunal.

116:9 Unemployment Compensation. Amend RSA 282-A:69, II to read as follows:

II. Notwithstanding this section, any organization or group of organizations, described in section 501(c)(3) and exempt under section 501(a) of the Internal Revenue Code or Indian tribe as defined in RSA 282-A:8, VIII, which becomes an employer under this act, may elect to change its status either to reimburse in the manner provided for the state in RSA 282-A:70 or to pay contributions as hereinabove provided. The change in status shall be irrevocable for 3 calendar years. Thereafter the employer may elect to change its status no later than January 1, for any year, but such new change in status shall be irrevocable for 3 calendar years. Any 2 or more of such employers or any 2 or more cities, towns, counties or other political subdivisions of this state may elect, for a period of not less than 3 years, to pool their separate accounts under such rules as may be adopted by the commissioner, including appropriate bonding and fiscal safeguard requirements, and each unit shall be jointly and severally liable for payments due.

116:10 Unemployment Compensation. Amend RSA 282-A:152, I to read as follows:

I. Whenever used in this subdivision, unless the context shall otherwise require, or unless otherwise specifically provided, the word "contribution" shall include not only the principal of any contribution but also all interest, penalties, fees and other charges added thereto by law; and the term "serving officer" shall include any sheriff, deputy sheriff, constable or other officer authorized to serve any civil process. Delivery of written notice by an authorized representative of the commissioner shall be deemed proper service of process.

116:11 Unemployment Compensation. Amend RSA 282-A:155 to read as follows:

282-A:155 Interstate Collections. The courts of this state shall[, in the manner provided in RSA 282-A:143 and 153,] entertain actions in the name of the commissioner to collect benefits, contributions or interest thereon for which liability has accrued under the employment security law of any other state or of the federal government. The commissioner shall have the authority to collect any such debt by civil action in any manner provided for the collection of contributions in RSA 282-A:141-156.

116:12 Agreement Authorized. Amend RSA 282-A:178, I to read as follows:

I. The department of employment security, through its commissioner, is hereby authorized to enter into an agreement, effective April 3, 1975, with the secretary of labor of the United States to become an agent of the United States in order to carry out the provisions of Chapter 2 of Title II of the Trade Act of 1974, as amended (P.L. 93-618, as amended), and to perform such acts and do all those things necessary to fully carry out such agreement.

116:13 Agreement Authorized. Amend RSA 282-A:178, II(a) to read as follows:

(a) Solely for the purposes of carrying out the agreement authorized in [paragraph] paragraphs I and I-a, and notwithstanding other provisions of this chapter to the contrary, the provisions of this section permit:

116:14 New Paragraph; Agreement Authorized. Amend RSA 282-A:178 by inserting after paragraph I the following new paragraph:

I-a. The department of employment security, through its commissioner, is hereby authorized to enter into an agreement, effective November 4, 2002, with the Secretary of Labor of the United States to become an agent of the United States in order to carry out the provisions of the Trade Adjustment Assistance Reform Act of 2002, as amended, (P.L. 107-210, as amended), and to perform such acts and do all those things necessary to fully carry out such agreement.

116:15 New Paragraph; Exclusions. Amend RSA 282-A:9 by inserting after paragraph VI the following new paragraph:

VII. For the purposes of paragraph I, the exclusions under subparagraphs IV (o)(2), IV (o)(5),

and IV (p)(4) shall apply to Indian tribes.

116:16 New Paragraph; Payments in Lieu of Contributions. Amend RSA 282-A:69 by inserting after paragraph IV the following new paragraph:

V. The following provisions shall apply to Indian tribes electing to make payments in lieu of contributions:

(a) At the discretion of the commissioner, any Indian tribe that elects to become liable for payments in lieu of contributions shall be required within 30 days after the effective date of its election, to:

(1) Execute and file with the commissioner a surety bond approved by the commissioner; or

(2) Deposit with the commissioner money or securities on the same basis as other employers with the same election option.

(b) Failure of the Indian tribe to make required payments, including assessments of interest and penalty, within 90 days of receipt of the bill will cause the Indian tribe to lose the option to make payments in lieu of contributions for the following tax year unless payment in full is received before the contribution rate for the next tax year is computed.

(c) Any Indian tribe that loses the option to make payments in lieu of contributions due to late payment or nonpayment shall have such option reinstated if, after a period of one year, all contributions have been made timely, provided no contributions, payments in lieu of contributions for benefits paid, penalties, or interest remain outstanding.

(d) Failure of the Indian tribe to make required payments, including assessments of interest and penalty, after all collection activities deemed necessary by the commissioner have been exhausted, will cause services performed for such tribe to not be treated as employment for purposes of this section.

(e) The commissioner may determine that any Indian tribe that loses coverage under subparagraph (d) may have services performed for such tribe again included as employment for purposes of RSA 282-A:9 if all contributions, payments in lieu of contributions, penalties and interest have been paid.

(f) The commissioner shall notify the United States Internal Revenue Service and the United States Department of Labor of any termination or reinstatement of coverage made under subparagraphs (d) and (e).

(g) Notices of payment and reporting delinquency to Indian tribes shall include information that failure to make full payment within the prescribed time frame:

(1) Shall cause the Indian tribe to be liable for federal unemployment tax;

(2) Shall cause the Indian tribe to lose the option to make payments in lieu of contributions; and

(3) Could cause the Indian tribe to be excepted from the definition of employer, as provided in RSA 282-A:8, and services in the employ of the Indian tribe to be excepted from employment.

(h) Extended benefits paid that are attributable to service in the employ of an Indian tribe and not reimbursed by the federal government shall be financed in their entirety by such Indian tribe.

116:17 Waiver of Costs. Amend RSA 282-A:29 to read as follows:

282-A:29 Adjustment of Overpaid Benefit Account by Compromise.

I. The commissioner may, with the approval of the attorney general, effect by written stipulation such settlement of any overpaid benefit account due under the provisions of this chapter as he or she may deem to be for the best interests of the state; and the payment of the sum so agreed upon shall be a full satisfaction of such overpaid benefit account.

II. Payment by a debtor of interest, penalties, fees, and legal costs due under the provisions of this chapter totaling $50 or less may be waived by the commissioner of the department of employment security as he or she may deem to be for the best interests of the state.

116:18 Waiver of Costs. Amend RSA 282-A:148 to read as follows:

282-A:148 Adjustment of Contribution by Compromise.

I. The commissioner of the department of employment security may, with the approval of the attorney general, effect by written stipulation such settlement of the contribution or interest due under the provisions of this chapter as he or she may deem to be for the best interests of the state, and the payment of the sum so agreed upon shall be a full satisfaction of such contribution and interest.

II. Payment by a debtor of interest, penalties, fees, and legal costs due under the provisions of this chapter totaling $50 or less may be waived by the commissioner of the department of employment security as he or she may deem to be for the best interests of the state.

116:19 Effective Date.

I. Section 5 of this act shall take effect upon its passage.

II. The remainder of this act shall take effect 60 days after its passage.

(Approved: Enacted in accordance with Article 44, Part II, N.H. Constitution, without signature of Governor, June 9, 2003)

(Effective Date: I. Section 5 shall take effect June 9, 2003.