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HF 3409

as introduced - 86th Legislature (2009 - 2010) Posted on 03/04/2010 10:01am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to workforce development; clarifying duties and responsibilities;
modifying unemployment insurance; amending Minnesota Statutes 2008,
sections 116L.665, subdivision 3; 136F.06, by adding a subdivision; 268.095, as
amended; Minnesota Statutes 2009 Supplement, section 268.105, subdivision 1;
proposing coding for new law in Minnesota Statutes, chapters 116L; 268.

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

Section 1.

Minnesota Statutes 2008, section 116L.665, subdivision 3, is amended to
read:


Subd. 3.

Purpose; duties.

The governor's Workforce Development Council shall
replace the governor's Job Training Council and assume all of its requirements, duties,
and responsibilities under the Workforce Investment Act. Additionally, the Workforce
Development Council shall assume the following duties and responsibilities:

(a) Review the provision of services and the use of funds and resources under
applicable federal human resource programs and advise the governor on methods of
coordinating the provision of services and the use of funds and resources consistent with
the laws and regulations governing the programs. For purposes of this section, applicable
federal and state human resource programs mean the:

(1) Workforce Investment Act, United States Code, title 29, section 2911, et seq.;

(2) Carl D. Perkins Vocational and Applied Technology Education Act, United
States Code, title 20, section 2301, et seq.;

(3) Adult Education Act, United States Code, title 20, section 1201, et seq.;

(4) Wagner-Peyser Act, United States Code, title 29, section 49;

(5) Personal Responsibility and Work Opportunities Act of 1996 (TANF);

(6) Food Stamp Act of 1977, United States Code, title 7, section 6(d)(4), Food Stamp
Employment and Training Program, United States Code, title 7, section 2015(d)(4); and

(7) programs defined in section 116L.19, subdivision 5.

Additional federal and state programs and resources can be included within the scope
of the council's duties if recommended by the governor after consultation with the council.

(b) Review federal, state, and local education, postsecondary, job skills training,
and youth employment programs, and make recommendations to the governor and the
legislature for establishing an integrated seamless system for providing education and
work skills development services to learners and workers of all ages.

(c) Advise the governor on the development and implementation of statewide and
local performance standards and measures relating to applicable federal human resource
programs and the coordination of performance standards and measures among programs.

(d) Promote education and employment transitions programs and knowledge and
skills of entrepreneurship among employers, workers, youth, and educators, and encourage
employers to provide meaningful work-based learning opportunities;

(e) Evaluate and identify exemplary education and employment transitions programs
and provide technical assistance to local partnerships to replicate the programs throughout
the state.

(f) Advise the governor on methods to evaluate applicable federal human resource
programs.

(g) Sponsor appropriate studies to identify human investment needs in Minnesota
and recommend to the governor goals and methods for meeting those needs.

(h) Recommend to the governor goals and methods for the development and
coordination of a human resource system in Minnesota.

(i) Examine federal and state laws, rules, and regulations to assess whether they
present barriers to achieving the development of a coordinated human resource system.

(j) Recommend to the governor and to the federal government changes in state or
federal laws, rules, or regulations concerning employment and training programs that
present barriers to achieving the development of a coordinated human resource system.

(k) Recommend to the governor and to the federal government waivers of laws and
regulations to promote coordinated service delivery.

(l) Sponsor appropriate studies and prepare and recommend to the governor a
strategic plan which details methods for meeting Minnesota's human investment needs
and for developing and coordinating a state human resource system.

new text begin (m) In consultation with local workforce councils and the Department of
Employment and Economic Development, develop an ongoing process to identify and
address local gaps in workforce services.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

new text begin [116L.98] WORKFORCE PROGRAM OUTCOMES.
new text end

new text begin The commissioner shall develop and implement a set of standard approaches for
assessing the outcomes of workforce programs under chapter 116L. The outcomes
assessed must include, but are not limited to, periodic comparisons of workforce program
participants and nonparticipants.
new text end

new text begin The commissioner shall also monitor legislative appropriations to recipients and
administered by the department on a pass-through basis by the department and develop
a consistent and equitable method of assessing recipients for the costs of its monitoring
activities.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

Minnesota Statutes 2008, section 136F.06, is amended by adding a subdivision
to read:


new text begin Subd. 4. new text end

new text begin Workforce focus. new text end

new text begin The board must identify colleges offering flexible
academic programs that accommodate the needs of laid-off workers and assist its other
institutions in determining whether to offer similar programs.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 4.

Minnesota Statutes 2008, section 268.095, as amended by Laws 2009, chapter
15, sections 8 and 9, and Laws 2009, chapter 78, article 3, sections 11 and 12, and article
4, sections 29 and 30, is amended to read:


268.095 INELIGIBILITY BECAUSE OF QUIT OR DISCHARGE.

Subdivision 1.

Quit.

An applicant who quit employment is ineligible for all
unemployment benefits according to subdivision 10 except when:

(1) the applicant quit the employment because of a good reason caused by the
employer as defined in subdivision 3;

(2) the applicant quit the employment to accept other covered employment that
provided substantially better terms and conditions of employment, but the applicant did
not work long enough at the second employment to have sufficient subsequent earnings to
satisfy the period of ineligibility that would otherwise be imposed under subdivision 10
for quitting the first employment;

(3) the applicant quit the employment within 30 calendar days of beginning the
employment because the employment was unsuitable for the applicant;

(4) the employment was unsuitable for the applicant and the applicant quit to enter
reemployment assistance training;

(5) the employment was part time and the applicant also had full-time employment
in the base period, from which full-time employment the applicant separated because of
reasons for which the applicant was held not to be ineligible, and the wage credits from
the full-time employment are sufficient to meet the minimum requirements to establish a
benefit account under section 268.07;

(6) the applicant quit because the employer notified the applicant that the applicant
was going to be laid off because of lack of work within 30 calendar days. An applicant
who quit employment within 30 calendar days of a notified date of layoff because of lack
of work is ineligible for unemployment benefits through the end of the week that includes
the scheduled date of layoff;

(7) the applicant quit the employment (i) because the applicant's serious illness or
injury made it medically necessary that the applicant quit; or (ii) in order to provide
necessary care because of the illness, injury, or disability of an immediate family member
of the applicant. This exception only applies if the applicant informs the employer of
the medical problem and requests accommodation and no reasonable accommodation
is made available.

If the applicant's serious illness is chemical dependency, this exception does not
apply if the applicant was previously diagnosed as chemically dependent or had treatment
for chemical dependency, and since that diagnosis or treatment has failed to make
consistent efforts to control the chemical dependency.

This exception raises an issue of the applicant's being available for suitable
employment under section 268.085, subdivision 1, that the commissioner must determine;

(8) the applicant's loss of child care for the applicant's minor child caused the
applicant to quit the employment, provided the applicant made reasonable effort to obtain
other child care and requested time off or other accommodation from the employer and no
reasonable accommodation is available.

This exception raises an issue of the applicant's being available for suitable
employment under section 268.085, subdivision 1, that the commissioner must determine;

(9) domestic abuse of the applicant or an immediate family member of the applicant,
necessitated the applicant's quitting the employment. Domestic abuse must be shown
by one or more of the following:

(i) a district court order for protection or other documentation of equitable relief
issued by a court;

(ii) a police record documenting the domestic abuse;

(iii) documentation that the perpetrator of the domestic abuse has been convicted
of the offense of domestic abuse;

(iv) medical documentation of domestic abuse; or

(v) written statement that the applicant or an immediate family member of the
applicant is a victim of domestic abuse, provided by a social worker, member of the
clergy, shelter worker, attorney at law, or other professional who has assisted the applicant
in dealing with the domestic abuse.

Domestic abuse for purposes of this clause is defined under section 518B.01; deleted text begin or
deleted text end

(10) the applicant quit in order to relocate to accompany a spouse whose job location
changed making it impractical for the applicant to commutenew text begin ; or
new text end

new text begin (11) the applicant quit employment at the conclusion of a temporary job assignment
with the client of a staffing service employer. For the purposes of this section, a "staffing
service employer" is an employer whose business involves employing individuals directly
for the purpose of furnishing temporary job assignment workers to clients of the staffing
service
new text end .

Subd. 2.

Quit defined.

(a) A quit from employment occurs when the decision to end
the employment was, at the time the employment ended, the employee's.

(b) An employee who has been notified that the employee will be discharged in the
future, who chooses to end the employment while employment in any capacity is still
available, is considered to have quit the employment.

(c) An employee who seeks to withdraw a previously submitted notice of quitting is
considered to have quit the employment if the employer does not agree that the notice
may be withdrawn.

(d) An applicant whodeleted text begin , within five calendar days after completion of a suitable
temporary job assignment from a staffing service employer, (1) fails without good cause
to affirmatively request an additional job assignment, (2) refuses without good cause an
additional suitable job assignment offered, or (3)
deleted text end accepts employment with the client of
deleted text begin thedeleted text end new text begin anew text end staffing servicenew text begin employernew text end , is considered to have quit employment with the staffing
servicenew text begin employernew text end . Accepting employment with the client of the staffing servicenew text begin employernew text end
meets the requirements of the exception to ineligibility under subdivision 1, clause (2).

deleted text begin This paragraph applies only if, at the time of beginning of employment with the
staffing service employer, the applicant signed and was provided a copy of a separate
document written in clear and concise language that informed the applicant of this
paragraph and that unemployment benefits may be affected.
deleted text end

deleted text begin For purposes of this paragraph, "good cause" is a reason that is significant and
would compel an average, reasonable worker, who would otherwise want an additional
temporary job assignment with the staffing service employer, (1) to fail to contact the
staffing service employer, or (2) to refuse an offered assignment.
deleted text end

deleted text begin For purposes of this paragraph, a "staffing service employer" is an employer whose
business involves employing individuals directly for the purpose of furnishing temporary
job assignment workers to clients of the staffing service.
deleted text end

Subd. 3.

Good reason caused by the employer defined.

(a) A good reason caused
by the employer for quitting is a reason:

(1) that is directly related to the employment and for which the employer is
responsible;

(2) that is adverse to the worker; and

(3) that would compel an average, reasonable worker to quit and become
unemployed rather than remaining in the employment.

(b) The analysis required in paragraph (a) must be applied to the specific facts
of each case.

(c) If an applicant was subjected to adverse working conditions by the employer, the
applicant must complain to the employer and give the employer a reasonable opportunity
to correct the adverse working conditions before that may be considered a good reason
caused by the employer for quitting.

(d) A reason for quitting employment is not considered a good reason caused by
the employer for quitting if the reason for quitting occurred because of the applicant's
employment misconduct.

(e) Notification of discharge in the future, including a layoff because of lack of work,
is not considered a good reason caused by the employer for quitting.

(f) An applicant has a good reason caused by the employer for quitting if it results
from sexual harassment of which the employer was aware, or should have been aware,
and the employer failed to take timely and appropriate action. Sexual harassment means
unwelcome sexual advances, requests for sexual favors, sexually motivated physical
contact or other conduct or communication of a sexual nature when:

(1) the applicant's submission to the conduct or communication is made a term
or condition of the employment;

(2) the applicant's submission to or rejection of the conduct or communication is the
basis for decisions affecting employment; or

(3) the conduct or communication has the purpose or effect of substantially
interfering with an applicant's work performance or creating an intimidating, hostile, or
offensive working environment.

(g) The definition of a good reason caused by the employer for quitting employment
provided by this subdivision is exclusive and no other definition applies.

Subd. 4.

Discharge.

An applicant who was discharged from employment by an
employer is ineligible for all unemployment benefits according to subdivision 10 only if:

(1) the applicant was discharged because of employment misconduct as defined
in subdivision 6; or

(2) the applicant was discharged because of aggravated employment misconduct as
defined in subdivision 6a.

Subd. 5.

Discharge defined.

(a) A discharge from employment occurs when any
words or actions by an employer would lead a reasonable employee to believe that the
employer will no longer allow the employee to work for the employer in any capacity. A
layoff because of lack of work is considered a discharge. A suspension from employment
without pay of more than 30 calendar days is considered a discharge.

(b) An employee who gives notice of intention to quit the employment and is not
allowed by the employer to work the entire notice period is considered discharged from
the employment as of the date the employer will no longer allow the employee to work. If
the discharge occurs within 30 calendar days before the intended date of quitting, then,
as of the intended date of quitting, the separation from employment is considered a quit
from employment subject to subdivision 1.

new text begin (c) An applicant who has completed a temporary job assignment with the client of a
staffing service employer is deemed to have been discharged by the employer.
new text end

Subd. 6.

Employment misconduct defined.

(a) Employment misconduct means
any deleted text begin intentional, negligent, or indifferentdeleted text end conduct, on the job or off the job that deleted text begin displays
clearly:
deleted text end

deleted text begin (1) a seriousdeleted text end new text begin is an egregiousnew text end violation of the standards of behavior the employer has
the right to reasonably expect of the employeedeleted text begin ; ordeleted text end new text begin and displays clearlynew text end

deleted text begin (2)deleted text end a substantial lack of concern for the employment.

(b) Regardless of paragraph (a), the following is not employment misconduct:

(1) conduct that was a consequence of the applicant's mental illness or impairment;

(2) new text begin conduct that was a consequence of the applicant's new text end inefficiency or inadvertence;

(3) simple unsatisfactory conduct;

(4) conduct an average reasonable employee would have engaged in under the
circumstances;

(5) deleted text begin poor performance because ofdeleted text end new text begin conduct that was a consequence of the applicant's
new text end inability or incapacity;

(6) good faith errors in judgment if judgment was required;

(7) absence because of illness or injury of the applicant, with proper notice to the
employer;

(8) absence, with proper notice to the employer, in order to provide necessary care
because of the illness, injury, or disability of an immediate family member of the applicant;

(9) conduct that was a deleted text begin direct resultdeleted text end new text begin consequencenew text end of the applicant's chemical
dependency, unless the applicant was previously diagnosed chemically dependent or had
treatment for chemical dependency, and since that diagnosis or treatment has failed to
make consistent efforts to control the chemical dependency; or

(10) conduct that was a deleted text begin resultdeleted text end new text begin consequencenew text end of the applicant, or an immediate family
member of the applicant, being a victim of domestic abuse as defined under section
518B.01. Domestic abuse must be shown as provided for in subdivision 1, clause (9).

(c) Regardless of paragraph (b), clause (9), conduct in violation of sections 169A.20,
169A.31, or 169A.50 to 169A.53 that interferes with or adversely affects the employment
is employment misconduct.

(d) If the conduct for which the applicant was discharged involved only a single
incident, that is an important fact that must be considered in deciding whether the conduct
rises to the level of employment misconduct under paragraph (a).

(e) The definition of employment misconduct provided by this subdivision is
exclusive and no other definition applies.

Subd. 6a.

Aggravated employment misconduct defined.

(a) For the purpose of
this section, "aggravated employment misconduct" means:

(1) the commission of any act, on the job or off the job, that would amount to a gross
misdemeanor or felony if the act substantially interfered with the employment or had a
significant adverse effect on the employment; or

(2) for an employee of a facility as defined in section 626.5572, aggravated
employment misconduct includes an act of patient or resident abuse, financial exploitation,
or recurring or serious neglect, as defined in section 626.5572 and applicable rules.

(b) If an applicant is convicted of a gross misdemeanor or felony for the same act for
which the applicant was discharged, it is aggravated employment misconduct if the act
substantially interfered with the employment or had a significant adverse effect on the
employment.

(c) The definition of aggravated employment misconduct provided by this
subdivision is exclusive and no other definition applies.

Subd. 7.

Act or omissions after separation.

An applicant may not be held
ineligible for unemployment benefits under this section for any acts or omissions occurring
after the applicant's separation from employment with the employer. A layoff because of
lack of work is considered a separation from employment.

Subd. 10.

Ineligibility duration.

(a) Ineligibility from the payment of all
unemployment benefits under subdivisions 1 and 4 is for the duration of the applicant's
unemployment and until the end of the calendar week that the applicant had total earnings
in subsequent covered employment of eight times the applicant's weekly unemployment
benefit amount.

(b) Ineligibility imposed under subdivisions 1 and 4 begins on the Sunday of the
week that the applicant became separated from employment.

(c) In addition to paragraph (a), if the applicant was discharged from employment
because of aggravated employment misconduct, wage credits from that employment are
canceled and cannot be used for purposes of a benefit account under section 268.07,
subdivision 2.

Subd. 11.

Application.

(a) This section and section 268.085, subdivision 13c,
apply to all covered employment, full time or part time, temporary or of limited duration,
permanent or of indefinite duration, that occurred in Minnesota during the base period, the
period between the end of the base period and the effective date of the benefit account,
or the benefit year.

(b) Paragraph (a) also applies to employment covered under an unemployment
insurance program of any other state or established by an act of Congress.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for determinations and appeal
decisions under section 268.105, subdivision 1, issued on and after the Sunday following
final enactment.
new text end

Sec. 5.

new text begin [268.102] BENEFITS REVIEW SPECIALIST.
new text end

new text begin Subdivision 1. new text end

new text begin Benefits review specialist. new text end

new text begin The commissioner shall allocate
unemployment insurance administrative or discretionary funds in an amount sufficient to
finance the selection of at least ten unemployment insurance staff persons knowledgable
about eligibility, benefit determinations, and benefit calculations and designate them as
benefit review specialists to work with benefit applicants in order to correct errors in
applications, answer questions, and resolve issues before appeal.
new text end

new text begin Subd. 2. new text end

new text begin Review option provided. new text end

new text begin Notwithstanding any law or rule to the contrary,
an applicant may request that any issue of ineligibility, determination of ineligibility,
benefit amount or any other issue under this chapter be reviewed by a benefits review
specialist prior to an appeal under sections 268.103 to 268.105.
new text end

new text begin Subd. 3. new text end

new text begin Notice. new text end

new text begin The commissioner must include with any notice to or
communication with an applicant, notification of an applicant's right to request a review as
provided in subdivision 2, by a benefits review specialist.
new text end

Sec. 6.

Minnesota Statutes 2009 Supplement, section 268.105, subdivision 1, is
amended to read:


Subdivision 1.

Evidentiary hearing by unemployment law judge.

(a) Upon
a timely appeal having been filed, the department must send, by mail or electronic
transmission, a notice of appeal to all involved parties that an appeal has been filed, and
that a de novo due process evidentiary hearing will be scheduled. The notice must set out
the parties' rights and responsibilities regarding the hearing. The notice must explain that
the facts will be determined by the unemployment law judge based upon a preponderance
of the evidence. The notice must explain in clear and simple language the meaning of the
term "preponderance of the evidence." The department must set a time and place for a
de novo due process evidentiary hearing and send notice to any involved applicant and
any involved employer, by mail or electronic transmission, not less than ten calendar
days before the date of the hearing.

(b) The evidentiary hearing is conducted by an unemployment law judge as an
evidence gathering inquiry. At the beginning of the hearing the unemployment law judge
must fully explain how the hearing will be conducted, that the applicant has the right to
request that the hearing be rescheduled so that documents or witnesses can be subpoenaed,
that the facts will be determined based on a preponderance of the evidence, and, in
clear and simple language, the meaning of the term "preponderance of the evidence."
The unemployment law judge must ensure that all relevant facts are clearly and fully
developed. The department may adopt rules on evidentiary hearings. The rules need
not conform to common law or statutory rules of evidence and other technical rules of
procedure. The department has discretion regarding the method by which the evidentiary
hearing is conducted. A report of any employee of the department, except a determination,
made in the regular course of the employee's duties, is competent evidence of the facts
contained in it. An affidavit or written statement based on personal knowledge and signed
under penalty of perjury is competent evidence of the facts contained in it; however, the
veracity of statements contained within the document or the credibility of the witness
making the statement may be disputed with other documents or testimony and production
of such documents or testimony may be compelled by subpoena.

(c) After the conclusion of the hearing, upon the evidence obtained, the
unemployment law judge must make findings of fact and decision and send those, by mail
or electronic transmission, to all involved parties. When the credibility of an involved
party or witness testifying in an evidentiary hearing has a significant effect on the outcome
of a decision, the unemployment law judge must set out the reason for crediting or
discrediting that testimony. The unemployment law judge's decision is final unless a
request for reconsideration is filed under subdivision 2.

(d) Regardless of paragraph (c), if the appealing party fails to participate in the
evidentiary hearing, the unemployment law judge has the discretion to dismiss the appeal
by summary order. By failing to participate, the appealing party is considered to have
failed to exhaust available administrative remedies unless the appealing party files a
request for reconsideration under subdivision 2 and establishes good cause for failing to
participate in the evidentiary hearing under subdivision 2, paragraph (d). Submission
of a written statement does not constitute participation. The applicant must participate
personally and appearance solely by a representative does not constitute participation.

(e) Only employees of the department who are attorneys licensed to practice law
in Minnesota may serve as the chief unemployment law judge, senior unemployment
law judges who are supervisors, or unemployment law judges. The commissioner
must designate a chief unemployment law judge. The chief unemployment law judge
may transfer to another unemployment law judge any proceedings pending before an
unemployment law judge.

new text begin (f) A full-time unemployment law judge must be paid a salary of a minimum of 60
percent and a maximum of 80 percent of the salary set under section 15A.083, subdivision
7, for a workers' compensation judge; the salary paid within that range to any single
unemployment law judge is based on experience and performance.
new text end

Sec. 7. new text begin CUSTOMER SERVICE.
new text end

new text begin The commissioner must assign at least one full-time equivalent unemployment
insurance customer service staff person to each workforce center to assist applicants in
applying for benefits, accessing resource room resources, searching for jobs, accessing
training and other services available to unemployed workers and answer questions about
unemployment benefits and options.
new text end