2nd Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to unemployment insurance; modifying 1.3 definitions; making technical, housekeeping, and 1.4 policy changes; modifying penalty provisions; amending 1.5 Minnesota Statutes 2002, sections 176.011, subdivision 1.6 20; 268.035, subdivisions 3, 8a, 12a, 17, 20, 23a, 28, 1.7 by adding a subdivision; 268.043; 268.044, 1.8 subdivisions 2, 3, 4; 268.051, subdivisions 4, 7; 1.9 268.0511; 268.053, subdivision 2; 268.057, as amended; 1.10 268.058, as amended; 268.059, subdivision 3; 268.0625, 1.11 as amended; 268.064, subdivisions 1, 3; 268.065, 1.12 subdivisions 1, 2; 268.07, subdivisions 1, 3; 268.085, 1.13 subdivisions 2, 12, 13a, 14; 268.095, subdivisions 4, 1.14 6a; 268.101, subdivisions 2, 4; 268.103; 268.105, as 1.15 amended; 268.115, subdivision 5; 268.125, subdivision 1.16 5; 268.135, subdivisions 1, 2, 4; 268.145, subdivision 1.17 1; 268.18, subdivisions 2b, 6; 268.182; 268.184; 1.18 Minnesota Statutes 2003 Supplement, sections 268.035, 1.19 subdivision 15; 268.042, subdivisions 1, 3; 268.044, 1.20 subdivisions 1, 1a; 268.045; 268.047, subdivision 5; 1.21 268.051, subdivisions 1, 1a, 3, 5, 6; 268.052, 1.22 subdivisions 1, 2; 268.053, subdivisions 1, 3; 1.23 268.059, subdivision 1; 268.063; 268.066; 268.067; 1.24 268.0675; 268.07, subdivision 2; 268.085, subdivisions 1.25 1, 3, 4, 5, 6; 268.095, subdivisions 1, 3; 268.101, 1.26 subdivisions 3, 3a; 268.18, subdivisions 1, 2; 1.27 268.186; 268.19, subdivision 2; proposing coding for 1.28 new law in Minnesota Statutes, chapter 268. 1.29 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.30 Section 1. Minnesota Statutes 2002, section 176.011, 1.31 subdivision 20, is amended to read: 1.32 Subd. 20. [AVERAGE WEEKLY WAGE.] The statewide average 1.33 weekly wage for any year means that wage determined by the 1.34 commissioner in the following manner: On or before July 1 1.35 preceding the year in which the wage is to be applicable, the 1.36 total wages reported on
taxwage detail reports to the 1.37 Department of Employment and Economic SecurityDevelopment for 2.1 the preceding 12 months ending on December 31 of that year shall 2.2 be divided by the average monthly number of covered workers 2.3 (determined by dividing the total covered workers reported for 2.4 the year ending December 31 by 12). The average annual wage 2.5 thus obtained shall be divided by 52 and the average weekly wage 2.6 thus determined rounded to the next highest dollar. 2.7 Sec. 2. [268.032] [ELECTRONIC TRANSMISSION; WHEN ALLOWED; 2.8 SENDING TO LAST KNOWN ADDRESS REQUIRED.] 2.9 (a) If any required notice, determination, or decision 2.10 issued under this chapter provides that the commissioner may 2.11 send the notice, determination, or decision by mail or 2.12 electronic transmission, the commissioner may send the notice, 2.13 determination, or decision to an applicant or employer by 2.14 electronic transmission only if the applicant or employer has 2.15 affirmatively indicated that the applicant or employer would 2.16 prefer required notices, determinations, or decisions be sent by 2.17 electronic transmission rather than by mail. An applicant or 2.18 employer may withdraw an indicated preference for electronic 2.19 transmission. 2.20 (b) If any required notice, determination, or decision 2.21 issued under this chapter is sent by mail to an applicant or an 2.22 employer, the notice, determination, or decision must be sent to 2.23 the last known address. If any required notice, determination, 2.24 or decision issued under this chapter is sent by electronic 2.25 transmission, the notice, determination, or decision must be 2.26 sent to the last known electronic address of the applicant or 2.27 employer. If any required notice, determination, or decision 2.28 issued under this chapter is sent by electronic transmission and 2.29 the commissioner is notified that the electronic address of the 2.30 applicant or employer is no longer in service, the commissioner 2.31 must then send the required notice, determination, or decision 2.32 by mail to the last known address. 2.33 [EFFECTIVE DATE.] This section is effective July 1, 2005. 2.34 Sec. 3. [268.033] [COMPUTATION OF TIME.] 2.35 The computation of time provisions of section 645.151 apply 2.36 to this chapter. 3.1 Sec. 4. Minnesota Statutes 2002, section 268.035, 3.2 subdivision 3, is amended to read: 3.3 Subd. 3. [BACK PAY.] "Back pay" means a retroactive 3.4 payment of money by an employer to an employee or former 3.5 employee for lost wages as determined by an arbitration award,3.6 administrative or judicial decision, or negotiated settlement. 3.7 Sec. 5. Minnesota Statutes 2002, section 268.035, 3.8 subdivision 8a, is amended to read: 3.9 Subd. 8a. [COMMISSIONER.] "Commissioner" means the 3.10 commissioner of employment and economic securitydevelopment. 3.11 Sec. 6. Minnesota Statutes 2002, section 268.035, 3.12 subdivision 12a, is amended to read: 3.13 Subd. 12a. [DEPARTMENT.] "Department" means the Department 3.14 of Employment and Economic SecurityDevelopment. 3.15 Sec. 7. Minnesota Statutes 2002, section 268.035, is 3.16 amended by adding a subdivision to read: 3.17 Subd. 12b. [ELECTRONIC TRANSMISSION.] "Electronic 3.18 transmission" means a communication sent by electronic, digital, 3.19 magnetic, wireless, optical, electromagnetic or similar 3.20 capabilities, and, when permitted by the commissioner, a 3.21 telephone communication. 3.22 Sec. 8. Minnesota Statutes 2003 Supplement, section 3.23 268.035, subdivision 15, is amended to read: 3.24 Subd. 15. [EMPLOYMENT.] "Employment" means service 3.25 performed by: 3.26 (1) an individual who is considered an employee under the 3.27 common law of employer-employee and not considered an 3.28 independent contractor; 3.29 (2) an officer of a corporation; 3.30 (3) a member of a limited liability company who has less3.31 than a 25 percent ownership share andis considered an employee 3.32 under the common law of employer-employee; or 3.33 (4) an individual who performs services for a person for 3.34 compensation, as: 3.35 (i) an agent-driver or commission-driver engaged in 3.36 distributing meat products, vegetable products, fruit products, 4.1 beverages, or laundry or dry cleaning services; or 4.2 (ii) a traveling or city salesperson, other than as an 4.3 agent-driver or commission-driver, engaged full-time in the 4.4 solicitation on behalf of the person, of orders from 4.5 wholesalers, retailers, contractors, or operators of hotels, 4.6 restaurants, or other similar establishments for merchandise for 4.7 resale or supplies for use in their business operations. 4.8 This clause shall apply only if the contract of service 4.9 provides that substantially all of the services are to be 4.10 performed personally by the individual, and the services are 4.11 part of a continuing relationship with the person for whom the 4.12 services are performed, and the individual does not have a 4.13 substantial investment in facilities used in connection with the 4.14 performance of the services, other than facilities for 4.15 transportation. 4.16 [EFFECTIVE DATE.] This section is effective January 1, 2005. 4.17 Sec. 9. Minnesota Statutes 2002, section 268.035, 4.18 subdivision 17, is amended to read: 4.19 Subd. 17. [FILING; FILED.] "Filing" or "filed" means the 4.20 delivery of any document to the commissioner or any of the 4.21 commissioner's agents, or the depositing of the document in the 4.22 United States mail properly addressed to the department with 4.23 postage prepaid, in which case the document shall be considered 4.24 filed on the day indicated by the cancellation mark of the 4.25 United States Postal Service. 4.26 If, where allowed, an application, protest, appeal, or 4.27 other required action is made by telephone orelectronic 4.28 transmission, it shall be considered filed on the day received 4.29 by the department. 4.30 Sec. 10. Minnesota Statutes 2002, section 268.035, 4.31 subdivision 20, is amended to read: 4.32 Subd. 20. [NONCOVERED EMPLOYMENT.] "Noncovered employment" 4.33 means: 4.34 (1) employment for the United States government or an 4.35 instrumentality thereof, including military service; 4.36 (2) employment for a state, other than Minnesota, or a 5.1 political subdivision or instrumentality thereof; 5.2 (3) employment for a foreign government; 5.3 (4) employment for an instrumentality wholly owned by a 5.4 foreign government, if the employment is of a character similar 5.5 to that performed in foreign countries by employees of the 5.6 United States government or an instrumentality thereof and the 5.7 United States Secretary of State has certified that the foreign 5.8 government grants an equivalent exemption to similar employment 5.9 performed in the foreign country by employees of the United 5.10 States government and instrumentalities thereof; 5.11 (5) employment covered under United States Code, title 45, 5.12 section 351, the Railroad Unemployment Insurance Act; 5.13 (6) employment covered by a reciprocal arrangement between 5.14 the commissioner and another state or the federal government 5.15 which provides that all employment performed by an individual 5.16 for an employer during the period covered by the reciprocal 5.17 arrangement is considered performed entirely within another 5.18 state; 5.19 (7) employment for a church or convention or association of 5.20 churches, or an organization operated primarily for religious 5.21 purposes that is operated, supervised, controlled, or 5.22 principally supported by a church or convention or association 5.23 of churches described in United States Code, title 26, section 5.24 501(c)(3) of the federal Internal Revenue Code and exempt from 5.25 income tax under section 501(a); 5.26 (8) employment of a duly ordained or licensed minister of a 5.27 church in the exercise of a ministry or by a member of a 5.28 religious order in the exercise of duties required by the order, 5.29 for Minnesota or a political subdivision or an organization 5.30 described in United States Code, title 26, section 501(c)(3) of 5.31 the federal Internal Revenue Code and exempt from income tax 5.32 under section 501(a); 5.33 (9) employment of an individual receiving rehabilitation of 5.34 "sheltered" work in a facility conducted for the purpose of 5.35 carrying out a program of rehabilitation for individuals whose 5.36 earning capacity is impaired by age or physical or mental 6.1 deficiency or injury or a program providing "sheltered" work for 6.2 individuals who because of an impaired physical or mental 6.3 capacity cannot be readily absorbed in the competitive labor 6.4 market. This clause applies only to services performed for 6.5 Minnesota or a political subdivision or an organization 6.6 described in United States Code, title 26, section 501(c)(3) of 6.7 the federal Internal Revenue Code and exempt from income tax 6.8 under section 501(a) in a facility certified by the 6.9 Rehabilitation Services Branch of the department or in a day 6.10 training or habilitation program licensed by the Department of 6.11 Human Services; 6.12 (10) employment of an individual receiving work relief or 6.13 work training as part of an unemployment work relief or work 6.14 training program assisted or financed in whole or in part by any 6.15 federal agency or an agency of a state or political subdivision 6.16 thereof. This clause applies only to employment for Minnesota 6.17 or a political subdivision or an organization described in 6.18 United States Code, title 26, section 501(c)(3) of the federal 6.19 Internal Revenue Code and exempt from income tax under section 6.20 501(a). This clause shall not apply to programs that require 6.21 unemployment benefit coverage for the participants; 6.22 (11) employment for Minnesota or a political subdivision as 6.23 an elected official, a member of a legislative body, or a member 6.24 of the judiciary; 6.25 (12) employment as a member of the Minnesota National Guard 6.26 or Air National Guard; 6.27 (13) employment for Minnesota, a political subdivision, or 6.28 instrumentality thereof, as an employee serving only on a 6.29 temporary basis in case of fire, flood, tornado, or similar 6.30 emergency; 6.31 (14) employment as an election official or election worker 6.32 for Minnesota or a political subdivision, but only if the 6.33 compensation for that employment was less than $1,000 in a 6.34 calendar year; 6.35 (15) employment for Minnesota that is a major policy making 6.36 or advisory position in the unclassified service, including 7.1 those positions established pursuant to section 43A.08, 7.2 subdivision 1a; 7.3 (16) employment for a political subdivision of Minnesota 7.4 that is a nontenured major policy making or advisory position; 7.5 (17) domestic employment in a private household, local 7.6 college club, or local chapter of a college fraternity or 7.7 sorority performed for a person, only if the wages paid in any 7.8 calendar quarter in either the current or preceding calendar 7.9 year to all individuals in domestic employment totaled less than 7.10 $1,000. 7.11 "Domestic employment" includes all service in the operation 7.12 and maintenance of a private household, for a local college 7.13 club, or local chapter of a college fraternity or sorority as 7.14 distinguished from service as an employee in the pursuit of an 7.15 employer's trade or business; 7.16 (18) employment of an individual by a son, daughter, or 7.17 spouse, and employment of a child under the age of 18 by the 7.18 child's father or mother; 7.19 (19) employment of an inmate of a custodial or penal 7.20 institution; 7.21 (20) employment for a school, college, or university by a 7.22 student who is enrolled and is regularly attending classes at 7.23 the school, college, or university; 7.24 (21) employment of an individual who is enrolled as a 7.25 student in a full-time program at a nonprofit or public 7.26 educational institution that maintains a regular faculty and 7.27 curriculum and has a regularly organized body of students in 7.28 attendance at the place where its educational activities are 7.29 carried on, taken for credit at the institution, that combines 7.30 academic instruction with work experience, if the employment is 7.31 an integral part of the program, and the institution has so 7.32 certified to the employer, except that this clause shall not 7.33 apply to employment in a program established for or on behalf of 7.34 an employer or group of employers; 7.35 (22) employment of university, college, or professional 7.36 school students in an internship or other training program with 8.1 the city of St. Paul or the city of Minneapolis pursuant to Laws 8.2 1990, chapter 570, article 6, section 3; 8.3 (23) employment for a hospital by a patient of the 8.4 hospital. "Hospital" means an institution that has been 8.5 licensed by the Department of Health as a hospital; 8.6 (24) employment as a student nurse for a hospital or a 8.7 nurses' training school by an individual who is enrolled and is 8.8 regularly attending classes in an accredited nurses' training 8.9 school; 8.10 (25) employment as an intern for a hospital by an 8.11 individual who has completed a four-year course in an accredited 8.12 medical school; 8.13 (26) employment as an insurance salesperson, by other than 8.14 a corporate officer, if all the compensation for the employment 8.15 is solely by way of commission. The word "insurance" shall 8.16 include an annuity and an optional annuity; 8.17 (27) employment as an officer of a township mutual 8.18 insurance company or farmer's mutual insurance company operating 8.19 pursuant to chapter 67A; 8.20 (28) employment of a corporate officer, if the officer owns 8.21 25 percent or more of the employer corporation, and employment 8.22 of a member of a limited liability company, if the member owns 8.23 25 percent or more of the employer limited liability company; 8.24 (29) employment as a real estate salesperson, by other than 8.25 a corporate officer, if all the compensation for the employment 8.26 is solely by way of commission; 8.27 (29)(30) employment as a direct seller as defined in 8.28 United States Code, title 26, section 3508; 8.29 (30)(31) employment of an individual under the age of 18 8.30 in the delivery or distribution of newspapers or shopping news, 8.31 not including delivery or distribution to any point for 8.32 subsequent delivery or distribution; 8.33 (31)(32) casual employment performed for an individual, 8.34 other than domestic employment under clause (17), that does not 8.35 promote or advance that employer's trade or business; 8.36 (32)(33) employment in "agricultural employment" unless 9.1 considered "covered agricultural employment" under subdivision 9.2 11; or 9.3 (33)(34) if employment during one-half or more of any pay 9.4 period was covered employment, all the employment for the pay 9.5 period shall be considered covered employment; but if during 9.6 more than one-half of any pay period the employment was 9.7 noncovered employment, then all of the employment for the pay 9.8 period shall be considered noncovered employment. "Pay period" 9.9 means a period of not more than a calendar month for which a 9.10 payment or compensation is ordinarily made to the employee by 9.11 the employer. 9.12 [EFFECTIVE DATE.] This section is effective January 1, 2005. 9.13 Sec. 11. Minnesota Statutes 2002, section 268.035, 9.14 subdivision 23a, is amended to read: 9.15 Subd. 23a. [SUITABLE EMPLOYMENT.] (a) Suitable employment 9.16 means employment in the applicant's labor market area that is 9.17 reasonably related to the applicant's qualifications. In 9.18 determining whether any employment is suitable for an applicant, 9.19 the degree of risk involved to the health and safety, physical 9.20 fitness, prior training, experience, length of unemployment, 9.21 prospects for securing employment in the applicant's customary 9.22 occupation, and the distance of the employment from the 9.23 applicant's residence shall be considered. 9.24 (b) In determining what is suitable employment, primary 9.25 consideration shall be given to the temporary or permanent 9.26 nature of the applicant's separation from employment and whether 9.27 the applicant has favorable prospects of finding employment in 9.28 the applicant's usual or customary occupation at the applicant's 9.29 past wage level within a reasonable period of time. 9.30 If prospects are unfavorable, employment at lower skill or 9.31 wage levels is suitable if the applicant is reasonably suited 9.32 for the employment because ofconsidering the applicant's 9.33 education, training, work experience, orand current physical 9.34 and mental ability. 9.35 The total compensation must be considered, including the 9.36 wage rate, hours of employment, method of payment, overtime 10.1 practices, bonuses, incentive payments, and fringe benefits. 10.2 (c) When potential employment is at a rate of pay lower 10.3 than the applicant's former rate, consideration must be given to 10.4 the length of the applicant's unemployment and the proportion of 10.5 difference in the rates. Employment that may not be suitable 10.6 because of lower wages during the early weeks of the applicant's 10.7 unemployment may become suitable as the duration of unemployment 10.8 lengthens. 10.9 (d) For an applicant seasonally unemployed, suitable 10.10 employment includes temporary work in a lower skilled occupation 10.11 that pays average gross weekly wages equal to or more than 150 10.12 percent of the applicant's weekly unemployment benefit amount. 10.13 (e) If a majority of the applicant's wage credits were 10.14 earned from part-time employment, part-time employment in a 10.15 position with comparable skills and comparable hours that pays 10.16 average gross weekly wages equal to or more than 150 percent of 10.17 the applicant's weekly unemployment benefit amount shall be 10.18 considered suitable employment. 10.19 (f) To determine suitability of employment in terms of 10.20 shifts, the arrangement of hours in addition to the total number 10.21 of hours is to be considered. Employment on a second, third, 10.22 rotating, or split shift is suitable employment if it is 10.23 customary in the occupation in the labor market area. 10.24 (g) Employment shall not be considered suitable if: 10.25 (1) the position offered is vacant because of a labor 10.26 dispute; 10.27 (2) the wages, hours, or other conditions of employment are 10.28 substantially less favorable than those prevailing for similar 10.29 employment in the labor market area; or 10.30 (3) as a condition of becoming employed, the applicant 10.31 would be required to join a company union or to resign from or 10.32 refrain from joining any bona fide labor organization. 10.33 [EFFECTIVE DATE.] This section is effective August 1, 2004, 10.34 and applies to all determinations and decisions issued by the 10.35 department on or after August 1, 2004. 10.36 Sec. 12. Minnesota Statutes 2002, section 268.035, 11.1 subdivision 28, is amended to read: 11.2 Subd. 28. [WAGE DETAIL REPORT.] "Wage detail report" means 11.3 the report of wages paid and hours worked byon each employee in 11.4 covered employment required from an employer on a calendar 11.5 quarter basis under section 268.044. An auxiliary report broken11.6 down by business locations, when required by the commissioner,11.7 shall contain the number of employees in covered employment for11.8 each month, and the quarterly total wages for each location.11.9 The auxiliary report may be made part of the wage detail report,11.10 the tax report, or filed separately, as required by the11.11 commissioner.11.12 [EFFECTIVE DATE.] This section is effective July 1, 2005. 11.13 Sec. 13. Minnesota Statutes 2003 Supplement, section 11.14 268.042, subdivision 1, is amended to read: 11.15 Subdivision 1. [EMPLOYER FOR PART OF YEAR11.16 REGISTRATION.] (a) Each employer shall, upon or before the 11.17 submission of its first wage detail report under section 11.18 268.044, register with the commissioner for a tax account or a 11.19 reimbursable account, by electronic transmission in a format 11.20 prescribed by the commissioner. The employer must provide all 11.21 required information for registration. 11.22 (b) Except as provided in subdivision 3, any organization 11.23 or person that is or becomes an employer subject to the 11.24 Minnesota Unemployment Insurance Law within any calendar year 11.25 shall be considered to be subject to these sectionsthis chapter 11.26 the entire calendar year. 11.27 (c) Upon the termination of business, an employer that has 11.28 been assigned a tax account or reimbursable account shall notify 11.29 the commissioner by electronic transmission, in a format 11.30 prescribed by the commissioner, that the employer no longer has 11.31 employees and does not intend or expect to pay wages to any 11.32 employees in the next calendar year and into the foreseeable 11.33 future. Upon such notification, the commissioner shall not 11.34 require the employer to file wage detail reports under section 11.35 268.044, subdivision 1, paragraph (d), commencing the calendar 11.36 quarter after the notice of termination was received by the 12.1 commissioner. 12.2 [EFFECTIVE DATE.] This section is effective July 1, 2005. 12.3 Sec. 14. Minnesota Statutes 2003 Supplement, section 12.4 268.042, subdivision 3, is amended to read: 12.5 Subd. 3. [ELECTION AGREEMENTS; TERMINATIONTO HAVE 12.6 NONCOVERED EMPLOYMENT CONSIDERED COVERED EMPLOYMENT.] (a) Any 12.7 employer that has employment performed for it that does not12.8 constitute coveredis noncovered employment under section 12.9 268.035, subdivision 20, may file with the commissioner a12.10 written, by electronic transmission in a format prescribed by 12.11 the commissioner, an election that all such employment, in one 12.12 or more distinct establishments or places of business, shall be 12.13 considered covered employment for not less than two calendar 12.14 years. The commissioner shall have discretion on the approval 12.15 of any election. Upon the writtenapproval of the commissioner, 12.16 sent by mail or electronic transmission, the employment shall 12.17 constitute covered employment from andbeginning the calendar 12.18 quarter after the date stated in theof approval or beginning a 12.19 later calendar quarter if requested by the employer. The 12.20 employment shall cease to be considered covered employment as of 12.21 the first day of January of any calendar year only if at least 12.22 30 calendar days prior to the first day of January the employer 12.23 has filed with the commissioner, by electronic transmission in a 12.24 format prescribed by the commissioner, a writtennotice to that 12.25 effect. 12.26 (b) The commissioner must terminate any election agreement 12.27 under this subdivision upon 30 calendar days' notice sent by 12.28 mail or electronic transmission, if the employer fails to pay12.29 allis delinquent on any taxes due or reimbursements due the 12.30 trust fund. 12.31 [EFFECTIVE DATE.] This section is effective July 1, 2005. 12.32 Sec. 15. [268.0425] [ELECTRONIC TRANSACTION PRESUMPTION.] 12.33 If any electronic transaction is done under this chapter 12.34 using an identification number or code assigned an employer by 12.35 the commissioner, the transaction is presumed as done by that 12.36 employer unless a preponderance of the available evidence 13.1 demonstrates that it was not done by that employer. 13.2 Sec. 16. Minnesota Statutes 2002, section 268.043, is 13.3 amended to read: 13.4 268.043 [DETERMINATIONS OF COVERAGE.] 13.5 (a) The commissioner, upon the commissioner's own motion or 13.6 upon application of an organization or person, shall determine 13.7 if that organization or person is an employer or whether 13.8 services performed for it constitute employment and covered 13.9 employment, or whether the compensation for services constitutes 13.10 wages, and shall notify the organization or person of the 13.11 determination. The determination shall be final unless the 13.12 organization or person, within 30 calendar days after sending of 13.13 the determination by mail or electronic transmission, files an13.14 appeal. Proceedings on the appeal shall be conducted in13.15 accordance with section 2220.127.116.11 (b) The commissioner may at any time upon the13.17 commissioner's own motion correct any error of the department13.18 resulting in an erroneous determination under this section. A13.19 corrected determinationa protest. Upon receipt of a protest, 13.20 the commissioner shall review all available evidence and 13.21 determine whether an error has been made. The commissioner 13.22 shall send to the organization or person, by mail or electronic 13.23 transmission, an affirmation or redetermination. The 13.24 affirmation or redetermination shall be final unless, within 30 13.25 calendar days after sending of the corrected determination13.26 affirmation or redetermination to the organization or person by 13.27 mail or electronic transmission, an appeal is filed. 13.28 Proceedings on the appeal shall be conducted in accordance with 13.29 section 268.105. 13.30 (c)(b) No organization or person shall be initially 13.31 determined an employer, or that services performed for it were 13.32 in employment or covered employment, for periods more than four 13.33 years prior to the year in which the determination is made, 13.34 unless the commissioner finds that there was fraudulent action 13.35 to avoid liability under this chapter. 13.36 [EFFECTIVE DATE.] This section is effective July 1, 2005. 14.1 Sec. 17. Minnesota Statutes 2003 Supplement, section 14.2 268.044, subdivision 1, is amended to read: 14.3 Subdivision 1. [WAGE DETAIL REPORT.] (a) Each employer 14.4 that has employees in covered employment shall filesubmit a 14.5 quarterly wage detail report by electronic transmission, in a 14.6 manner andformat prescribed by the commissioner. The report 14.7 shall include for each employee in covered employment, the 14.8 employee's name, Social Security number, the total wages paid to 14.9 the employee, and total number of paid hours worked. For 14.10 employees exempt from the definition of employee in section 14.11 177.23, subdivision 7, clause (6), the employer shall report 40 14.12 hours worked for each week any duties were performed by a 14.13 full-time employee and shall report a reasonable estimate of the 14.14 hours worked for each week duties were performed by a part-time 14.15 employee. In addition, the wage detail report shall include the 14.16 number of employees employed on the 12th day of each calendar 14.17 month and, if required by the commissioner, the report shall be 14.18 broken down by business location and type of employment. If the 14.19 information required is not filedsubmitted in a manner and 14.20 format prescribed by the commissioner, it shall not be 14.21 considered a wage detail report. The report is due and must 14.22 be filedreceived by the commissioner on or before the last day 14.23 of the month following the end of the calendar quarter. The 14.24 commissioner may delay the due date on a specific calendar 14.25 quarter in the event the department is unable to accept wage 14.26 detail reports electronically. 14.27 (b) The employer may report the wages paid to the nearest14.28 next lower whole dollar amount. 14.29 (c) An employer need not include the name of the employee 14.30 or other required information on the wage detail report if 14.31 disclosure is specifically exempted from being reported by 14.32 federal law. 14.33 (d) A wage detail report must be submitted for each 14.34 calendar quarter even though no wages were paid, unless the 14.35 employer has notified the commissioner, under section 268.042, 14.36 subdivision 1, paragraph (c), of termination of business. 15.1 [EFFECTIVE DATE.] This section is effective July 1, 2005. 15.2 Sec. 18. Minnesota Statutes 2003 Supplement, section 15.3 268.044, subdivision 1a, is amended to read: 15.4 Subd. 1a. [ELECTRONIC TRANSMISSION OF REPORT REQUIRED.] 15.5 Each employer that has 50 or more employees to report for a15.6 calendar quarter under subdivision 1must filesubmit the 15.7 quarterly wage detail report by electronic transmission in a 15.8 format prescribed by the commissioner. The commissioner shall 15.9 have the discretion to accept wage detail reports by magnetic15.10 media in a format prescribed by the commissioner. Wage detail15.11 reports from an employer with 50 or more employees to report for15.12 a calendar quarterthat are filedsubmitted by any other means 15.13 or the commissioner may be returnedreturn the report submitted 15.14 by other than electronic transmission to the employer, and 15.15 reports returned shall be considered as not filedsubmitted and 15.16 the penaltieslate fees under subdivision 2 may be imposed. 15.17 [EFFECTIVE DATE.] This section is effective July 1, 2005. 15.18 Sec. 19. Minnesota Statutes 2002, section 268.044, 15.19 subdivision 2, is amended to read: 15.20 Subd. 2. [FAILURE TO TIMELY FILE REPORT; LATE FEES.] (a) 15.21 Any employer whothat fails to filesubmit the quarterly wage 15.22 detail report when due shall pay to the department, for each15.23 month the report is delinquent, a penalty of one-half of one15.24 percent of total wages paid that quarter.a late fee of $10 per 15.25 employee, computed based upon the highest of: 15.26 (1) the number of employees reported on the last wage 15.27 detail report submitted; 15.28 (2) the number of employees reported in the corresponding 15.29 quarter of the prior calendar year; or 15.30 (3) if no wage detail report has ever been submitted, the 15.31 number of employees listed at the time of employer registration. 15.32 The penaltylate fee shall notbe assessedwaived if the 15.33 wage detail report is properly made and filedreceived within 30 15.34 calendar days after a demand for the report is mailedsent to 15.35 the employer's address of recordemployer by mail or electronic 15.36 transmission. A late fee assessed an employer may not be waived 16.1 more than once each 12 months. In no case shallThe amount of 16.2 the penalty, iflate fee assessed ,shall not be less 16.3 than $25$50. Penalties16.4 (b) If the wage detail report is not received in a manner 16.5 and format prescribed by the commissioner within 30 calendar 16.6 days after demand is sent under paragraph (a), the late fee 16.7 assessed under paragraph (a) shall double and a renewed demand 16.8 notice and notice of the increased late fee shall be sent to the 16.9 employer by mail or electronic transmission. 16.10 (c) Late fees due under this subdivision may be waived16.11 compromised under section 268.067 where good cause for 16.12 late filingsubmission is found by the commissioner. 16.13 [EFFECTIVE DATE.] This section is effective July 1, 2005. 16.14 Sec. 20. Minnesota Statutes 2002, section 268.044, 16.15 subdivision 3, is amended to read: 16.16 Subd. 3. [MISSING OR ERRONEOUS INFORMATION.] Any employer 16.17 who filessubmits the wage detail report, but knowinglyfails to 16.18 include any of the requiredemployee information or knowingly16.19 enters erroneous information, shall be subject to a penaltyan 16.20 administrative service fee of $25 for each employee for whom the 16.21 information is missing or erroneous. An administrative service 16.22 fee may be compromised under section 268.067 if the commissioner 16.23 determines that the failure or error by the employer was 16.24 inadvertent. 16.25 [EFFECTIVE DATE.] This section is effective July 1, 2005. 16.26 Sec. 21. Minnesota Statutes 2002, section 268.044, 16.27 subdivision 4, is amended to read: 16.28 Subd. 4. [ PENALTIESFEES.] The penaltiesfees provided for 16.29 in subdivisions 2 and 3 are in addition to interest and other 16.30 penalties imposed by this chapter and shall be collected in the 16.31 same manner as delinquent taxes and shall be credited to the 16.32 contingent account. 16.33 [EFFECTIVE DATE.] This section is effective July 1, 2005. 16.34 Sec. 22. Minnesota Statutes 2003 Supplement, section 16.35 268.045, is amended to read: 16.36 268.045 [EMPLOYER TAX OR REIMBURSABLE ACCOUNTS.] 17.1 (a)Subdivision 1. [ACCOUNT FOR EACH EMPLOYER.] The 17.2 commissioner shall maintain a tax account for each taxpaying 17.3 employer and a reimbursable account for each nonprofit or 17.4 government employer that has elected to be liable for 17.5 reimbursements if that employer has employees in covered 17.6 employment in the current or the prior calendar year, except as 17.7 provided in this section. The commissioner shall assess the tax 17.8 account of a taxpaying employer for all the taxes due under 17.9 section 268.051 and credit the tax account with all taxes paid. 17.10 The commissioner shall charge the reimbursable account of a 17.11 nonprofit or government employer that elects to make 17.12 reimbursements for any unemployment benefits determined 17.13 chargeable to the employer under section 268.047 and shall 17.14 credit the reimbursable account with the payments made. 17.15 (b)Subd. 2. [COMMON PAYMASTER TAX ACCOUNT.] Two or more 17.16 related taxpaying corporations concurrently employing the same 17.17 employees and compensating those employees through a common 17.18 paymaster that is one of the corporations may apply to, by 17.19 electronic transmission, in a format prescribed by the 17.20 commissioner, to establish a common paymaster tax account that 17.21 shall be the tax account of the common paymaster 17.22 corporation. The commissioner shall have discretion on approval 17.23 of a common paymaster tax account. If approved, the separate 17.24 tax accounts shall be maintained, but the employees compensated 17.25 through the common paymaster shall be reported under section 17.26 268.044 as employees of the common paymaster corporation. The 17.27 corporations using the common paymaster tax account shall be 17.28 jointly and severally liable for any unpaid taxes, penalties,17.29 and interest owingamounts due under this chapter and section 17.30 116L.20 from the common paymaster tax account. 17.31 (c)Subd. 3. [JOINT TAX ACCOUNT.] Two or more taxpaying 17.32 employers having 50 percent or more common ownership and 17.33 compensating employees through a single payer that is one of the 17.34 employers may apply toby electronic transmission in a format 17.35 prescribed by the commissioner for a mergingcombining of the 17.36 experience ratings of the employers into a single experience 18.1 rating and joint tax account. The commissioner shall have 18.2 discretion on approval of a joint tax account. 18.3 If approved, the joint tax account shall be effective on 18.4 that date assigned by the commissioner and shall remain in 18.5 effect for not less than two calendar years, and continuing 18.6 unless writtennotice terminating the joint tax account is filed 18.7 with the commissioner by electronic transmission, in a format 18.8 prescribed by the commissioner. The termination shall be 18.9 effective on January 1 next following the filing of the written18.10 notice of termination. 18.11 The employers in the joint tax account shall be jointly and 18.12 severally liable for any unpaid taxes, penalties, and interest18.13 owingamounts due under this chapter and section 116L.20 from 18.14 the joint tax account. 18.15 (d)Subd. 4. [GROUP REIMBURSABLE ACCOUNT.] Two or more 18.16 nonprofit or government employers that have elected to be liable 18.17 for reimbursements may apply to the commissioner for the 18.18 establishment of a group reimbursable account for the purpose of 18.19 sharing the cost of unemployment benefits charged based upon 18.20 wage credits from all employers in the group. The application, 18.21 filed by electronic transmission in a format prescribed by the 18.22 commissioner, shall identify and authorize a group 18.23 representative to act as the group's agent for the purposes of 18.24 the reimbursable account. The commissioner shall have 18.25 discretion on approval of a group reimbursable account. If 18.26 approved, the commissioner shall establish a group reimbursable 18.27 account for the employers effective as of the beginning of the 18.28 calendar year that the application is received. The 18.29 reimbursable account shall remain in effect for not less than 18.30 two calendar years and thereafter until terminated at the 18.31 discretion of the commissioner or upon application by the group, 18.32 filed by electronic transmission in a format prescribed by the 18.33 commissioner, at least 30 calendar days prior to the end of the 18.34 two year period or 30 calendar days prior to January 1 of any 18.35 following calendar year. Each nonprofit or government employer 18.36 in the group shall be jointly and severally liable for 19.1 reimbursements for all unemployment benefits paid based upon 19.2 wage credits from all employers in the group during the period 19.3 the group reimbursable account was in effect. 19.4 [EFFECTIVE DATE.] This section is effective July 1, 2005. 19.5 Sec. 23. Minnesota Statutes 2003 Supplement, section 19.6 268.047, subdivision 5, is amended to read: 19.7 Subd. 5. [NOTICE OF UNEMPLOYMENT BENEFITS PAID.] (a) The 19.8 commissioner shall notify each employer at least quarterly by 19.9 mail or electronic transmission of the unemployment benefits 19.10 paid each applicant that will be used in computing the future 19.11 tax rate of a taxpaying employer, or that have been charged to 19.12 the reimbursable account of a nonprofit or government employer 19.13 that has elected to be liable for reimbursements. Unless a19.14 protest is filed within 30 calendar days from the date of19.15 sending of the notice, the notice shall be final and shall not19.16 be subject to collateral attack by way of review of a tax rate19.17 notice or application for a credit adjustment or refund.19.18 (b) Upon receipt of a protest, the commissioner shall19.19 review unemployment benefits to be used in computing the future19.20 tax rate of a taxpaying employer or charged to the reimbursable19.21 account of a nonprofit or government employer that has elected19.22 to be liable for reimbursements and determine whether there has19.23 been an error made. The commissioner shall either affirm or19.24 make a redetermination of the unemployment benefits paid to be19.25 used in computing the future tax rate of a taxpaying employer or19.26 charged to the reimbursable account of a nonprofit or government19.27 employer that has elected to be liable for reimbursements, and a19.28 notice of affirmation or redetermination shall be sent to the19.29 employer by mail or electronic transmission.19.30 (c) The affirmation or redetermination shall be final19.31 unless the employer files an appeal within 30 calendar days19.32 after the date the affirmation or redetermination was sent.19.33 Proceedings on the appeal shall be conducted in accordance with19.34 section 218.104.22.168 (d) An employer may not collaterally attack, by way of a19.36 protest to a notice of unemployment benefits paid, any prior20.1 determination or decision holding that unemployment benefits20.2 paid shall be used in computing the future tax rate of a20.3 taxpaying employer or charged to the reimbursable account of a20.4 nonprofit or government employer that has elected to be liable20.5 for reimbursements which determination or decision has become20.6 final.20.7 (e)A notice under this subdivision shall not be subject to 20.8 protest or appeal. The commissioner may at any time upon the 20.9 commissioner's own motion correct a clericalany error that 20.10 resulted in an incorrect notice under paragraph (a) and issue a 20.11 corrected notice. 20.12 [EFFECTIVE DATE.] This section is effective July 1, 2005. 20.13 Sec. 24. Minnesota Statutes 2003 Supplement, section 20.14 268.051, subdivision 1, is amended to read: 20.15 Subdivision 1. [PAYMENTS.] (a) Unemployment insurance 20.16 taxes and any additional assessments, fees, or surcharges shall 20.17 accrue and become payable by each employer for each calendar 20.18 year on the taxable wages that the employer paid wagesto 20.19 employees in covered employment, except for: 20.20 (1) nonprofit organizations that elect to make 20.21 reimbursements as provided in section 268.053; and 20.22 (2) the state of Minnesota and political subdivisions that 20.23 make reimbursements, unless they elect to pay taxes as provided 20.24 in section 268.052. 20.25 Except as allowed under section 268.0511, each employer 20.26 shall pay taxes quarterly, at the employer's assigned tax rate, 20.27 on the taxable wages paid to each employee. The commissioner 20.28 shall compute the tax due from the wage detail report required 20.29 under section 268.044 and notify the employer of the tax due. 20.30 The taxes and any additional assessments, fees, or surcharges 20.31 shall be paid to the trust fund and must be received by the 20.32 department on or before the last day of the month following the 20.33 end of the calendar quarter. 20.34 (b) The total payment due may be paid in antax amount 20.35 computed, if not a whole dollar, shall be rounded down to the 20.36 nearestnext lower whole dollar. 21.1 (c) When the total payment due for any calendar quarter is21.2 less than $1, it shall be disregarded.If for any reason the 21.3 wages on the wage detail report under section 268.044 are 21.4 adjusted for any quarter, the commissioner shall recompute the 21.5 taxes due for that quarter and assess the employer for any 21.6 amount due or credit the employer as appropriate. 21.7 [EFFECTIVE DATE.] This section is effective July 1, 2005. 21.8 Sec. 25. Minnesota Statutes 2003 Supplement, section 21.9 268.051, subdivision 1a, is amended to read: 21.10 Subd. 1a. [ TAX REPORTSPAYMENTS BY ELECTRONIC PAYMENT 21.11 REQUIRED.] (a) Every employer , except those nonprofit and21.12 government employers that have elected to make reimbursements,21.13 shall submit a tax report on a form, or in a manner, prescribed21.14 by the commissioner on or before the last day of the month21.15 following the end of the calendar quarter, unless the employer21.16 meets the requirements for submitting tax reports annually under21.17 section 268.0511. An employer that fails to submit a tax report21.18 when due, or submits an incorrect tax report, shall be subject21.19 to section 268.057, subdivision 1that reports 500 or more 21.20 employees in any calendar quarter on the wage detail report 21.21 required under section 268.044 shall make any payments due under 21.22 this chapter and section 116L.20 by electronic payment. 21.23 (b) Each tax report shall include the total wages paid and21.24 the taxable wages paid that quarter, the amount of tax due, and21.25 any other information required by the commissioner.All 21.26 third-party processors, paying quarterly taxes on behalf of a 21.27 client company, shall make any payments due under this chapter 21.28 and section 116L.20 by electronic payment. 21.29 (c) A tax report must be submitted for each calendar21.30 quarter even though no wages were paid or no tax is21.31 due.Regardless of paragraph (a) or (b), the commissioner shall 21.32 have discretion to accept payment by other means. 21.33 [EFFECTIVE DATE.] This section is effective July 1, 2005. 21.34 Sec. 26. Minnesota Statutes 2003 Supplement, section 21.35 268.051, subdivision 3, is amended to read: 21.36 Subd. 3. [COMPUTATION OF A TAXPAYING EMPLOYER'S EXPERIENCE 22.1 RATING.] (a) For each calendar yearOn or before each December 22.2 15, the commissioner shall compute an experience rating for each 22.3 taxpaying employer who has been subject to paying unemployment 22.4 taxes for at leastthe 12 calendar months ending on the prior to22.5 July 1 of the priorJune 30. The experience rating computed 22.6 shall be applicable for the following calendar year. 22.7 (b)The experience rating shall be the ratio obtained by 22.8 dividing 125 percent of the total unemployment benefits required 22.9 under section 268.047 to be used in computing the employer's tax 22.10 rate during the 48 calendar months ending on the prior June 30 22.11 of the prior calendar year, by the employer's total taxable 22.12 payroll for that same period. 22.13 (c) For purposes of paragraph (b), only that taxable22.14 payroll upon which taxes have been paid on or before September22.15 30 of the prior calendar year may be used in computing an22.16 employer's experience rating.22.17 (d)(b) The experience rating shall be computed to the 22.18 nearest one-tenthone-hundredth of a percent, to a maximum of 22.19 8.98.90 percent. 22.20 [EFFECTIVE DATE.] This section is effective July 1, 2005. 22.21 Sec. 27. Minnesota Statutes 2002, section 268.051, 22.22 subdivision 4, is amended to read: 22.23 Subd. 4. [EXPERIENCE RATING TRANSFER.] (a) When a 22.24 taxpaying employer acquires the organization, trade or business 22.25 or substantially all the assets of another employer, and there 22.26 is 25 percent or more common ownership, directly or indirectly, 22.27 between the predecessor and successor, the experience rating of 22.28 the predecessor employer shall be transferred as of the date of 22.29 acquisition to the successor employer for the purpose of 22.30 computing a tax rate. 22.31 (b) When a taxpaying employer acquires a distinct severable 22.32 portion of the organization, trade, business, or assets that is 22.33 less than substantially all of the employing enterprises of 22.34 another employer, and there is 25 percent or more common 22.35 ownership, directly or indirectly, between the predecessor and 22.36 successor, the successor employer shall acquire thethat 23.1 percentage of a predecessor's experience rating attributable to23.2 the portion it acquiredequal to that percentage of the 23.3 predecessor's employment positions it has obtained, and the 23.4 predecessor employer shall retain that percentage of the 23.5 experience rating attributable to the portionequal to that 23.6 percentage of the employment positions that it has retained, if 23.7 (1)the successor makes a written request to applyfiles an 23.8 application by electronic transmission, in a format prescribed 23.9 by the commissioner, for the transfer of a percentage of the 23.10 experience rating attributable to the severable portion acquired23.11 fromof the predecessor within 180 calendar days from the date 23.12 of acquisition, and (2) files an application within the time and23.13 in the manner prescribed by the commissionerthat furnishes 23.14 sufficient information to substantiate the severable portion23.15 acquisition and to assign the appropriate portionpercentage of 23.16 the experience rating. 23.17 (c) The term "common ownership" for purposes of this 23.18 subdivision includes ownership by a spouse, parent, child, 23.19 brother, sister, aunt, uncle, niece, nephew, or first cousin, by 23.20 birth or by marriage. 23.21 (d) If the successor employer under paragraphs (a) and (b) 23.22 had an experience rating at the time of the acquisition, the 23.23 transferred experience rating of the predecessor shall be 23.24 combined with the successor's experience rating for purposes of 23.25 computing a tax rate. 23.26 (e) If there has been a transfer of an experience rating 23.27 under paragraph (a) or (b), employment with a predecessor 23.28 employer shall not be considered to have been terminated if 23.29 similar employment is offered by the successor employer and 23.30 accepted by the employee. 23.31 (f) The commissioner, upon the commissioner's own motion or 23.32 upon application of an employer shall determine if an employer 23.33 is a successor within the meaning of this subdivision and shall 23.34 send the determination to the employer by mail or electronic 23.35 transmission. The determination shall be final unless a protest 23.36 is filed by the employer within 30 calendar days after sending 24.1 the determination. Upon receipt of a protest, the commissioner 24.2 shall review all available evidence and determine whether an 24.3 error has been made. The commissioner shall either affirm or 24.4 make a redetermination on whether the employer is a successor 24.5 within the meaning of this subdivision and send the employer, by 24.6 mail or electronic transmission, the affirmation or 24.7 redetermination. The affirmation or redetermination shall be 24.8 final unless an appeal is filed by the employer within 30 24.9 calendar days after the sending of the determinationaffirmation 24.10 or redetermination. Proceedings on the appeal shall be 24.11 conducted in accordance with section 268.105. 24.12 (g) The commissioner may, as the result of any 24.13 determination or decision regarding succession or nonsuccession, 24.14 recompute the tax rate of all employers affected by the 24.15 determination or decision for any year, including the year of 24.16 the acquisition and subsequent years, that is affected by the 24.17 transfer or nontransfer of part or all of the experience 24.18 rating. This paragraph does not apply to rates that have become 24.19 final before the filing of a written request to applyan 24.20 application for the transfer of a severable portion of the 24.21 experience rating under paragraph (b). 24.22 (h) Should an employer not have been in operation long 24.23 enough to qualify for an experience rating under subdivision 3, 24.24 paragraph (a), the experience rating for purposes of this 24.25 subdivision shall consist of those factors that normally make up 24.26 an experience rating, without the 12-month minimum. 24.27 (i) If the commissioner finds that a transaction was done, 24.28 in whole or in part, to avoid an experience rating or the 24.29 transfer of an experience rating, the commissioner may transfer 24.30 all or part of the experience rating regardless of the 24.31 requirements or limitations of paragraphparagraphs (a) and (b). 24.32 This shall include the transferring of employees from the 24.33 payroll of an employer with a higher experience rating to the 24.34 payroll of an employer with a lower experience rating. 24.35 (j) Regardless of paragraph (a), if there is an acquisition 24.36 or merger of a publicly held corporation by or with another 25.1 publicly held corporation the experience ratings of the 25.2 corporations shall be combined as of the date of acquisition or 25.3 merger for the purpose of computing a tax rate. 25.4 [EFFECTIVE DATE.] This section is effective July 1, 2005. 25.5 Sec. 28. Minnesota Statutes 2003 Supplement, section 25.6 268.051, subdivision 5, is amended to read: 25.7 Subd. 5. [TAX RATE FOR NEW EMPLOYERS.] (a) Each new 25.8 taxpaying employer that does not qualify for an experience 25.9 rating under subdivision 3, except new employers in a high 25.10 experience rating industry, shall be assigned, for a calendar 25.11 year, a tax rate the higher of (1) one percent, or (2) the tax 25.12 rate computed, to the nearest one-hundredth of a percent, by 25.13 dividing the total amount of unemployment benefits paid all 25.14 applicants during the 48 calendar months ending on June 30 of 25.15 the prior calendar year by the total taxable wages of all 25.16 taxpaying employers during the same period, plus the applicable 25.17 base tax rate and any additional assessments under subdivision 25.18 2, paragraph (d). 25.19 (b) Each new taxpaying employer in a high experience rating 25.20 industry that does not qualify for an experience rating under 25.21 subdivision 3, shall be assigned, for a calendar year, a tax 25.22 rate of 8.08.00 percent, plus the applicable base tax rate and 25.23 any additional assessments under subdivision 2, paragraph (d). 25.24 An employer is considered to be in a high experience rating 25.25 industry if: 25.26 (1) the employer is engaged in residential, commercial, or 25.27 industrial construction, including general contractors; 25.28 (2) the employer is engaged in sand, gravel, or limestone 25.29 mining; 25.30 (3) the employer is engaged in the manufacturing of 25.31 concrete, concrete products, or asphalt; or 25.32 (4) the employer is engaged in road building, repair, or 25.33 resurfacing, including bridge and tunnels and residential and 25.34 commercial driveways and parking lots. 25.35 (c) The commissioner shall send to the new employer, by 25.36 mail or electronic transmission, notice of the tax rate 26.1 assigned. An employer may protest the assignment of a tax rate 26.2 in accordance with the procedures in subdivision 6, paragraph 26.3 (c). 26.4 [EFFECTIVE DATE.] This section is effective July 1, 2005. 26.5 Sec. 29. Minnesota Statutes 2003 Supplement, section 26.6 268.051, subdivision 6, is amended to read: 26.7 Subd. 6. [NOTICE OF TAX RATE.] (a) On or before each 26.8 December 15, the commissioner shall notify each employer by mail 26.9 or electronic transmission of the employer's tax rate, along 26.10 with any additional assessments, fees, or surcharges, as26.11 determinedfor anythe following calendar year. The notice 26.12 shall contain the base tax rate and the factors used in 26.13 determining the employer's experience rating. Unless a protest 26.14 of the tax rate is made, the assignedcomputed tax rate shall be 26.15 final except for fraud and shall be the rate at which taxes 26.16 shall be paid. The tax rate shall not be subject to collateral 26.17 attack by way of claim for a credit adjustment or refund, or 26.18 otherwise. 26.19 (b) If the legislature, subsequent to the sending of the 26.20 tax rate, changes any of the factors used to determine the rate, 26.21 the earlier notice shall be void. A new tax rate based on the 26.22 new factors shall be computed and sent to the employer. 26.23 (c) A review of an employer's tax rate may be obtained by 26.24 the employer filing , in a manner prescribed by the commissioner,26.25 a protest within 30 calendar days from the date the tax rate 26.26 notice was sent to the employer. Upon receipt of the protest, 26.27 the commissioner shall review the tax rate to determine whether 26.28 or not there has been any clerical error orerror in computation 26.29 or assignment of the tax rate. The commissioner shall either 26.30 affirm or make a redetermination of the rate and a notice of the 26.31 affirmation or redetermination shall be sent to the employer by 26.32 mail or electronic transmission. The affirmation or 26.33 redetermination shall be final unless the employer files an 26.34 appeal within 30 calendar days after the date the affirmation or 26.35 redetermination was sent. Proceedings on the appeal shall be 26.36 conducted in accordance with section 268.105. 27.1 (d) The commissioner may at any time upon the 27.2 commissioner's own motion correct any error in the computation 27.3 or the assignment of an employer's tax rate. 27.4 Sec. 30. Minnesota Statutes 2002, section 268.051, 27.5 subdivision 7, is amended to read: 27.6 Subd. 7. [TAX RATE BUYDOWN.] (a) Any taxpaying employer 27.7 who has been assigned a tax rate based upon an experience rating 27.8 may, upon the voluntary payment of an amount equivalent to any 27.9 portion or all of the unemployment benefits used in computing 27.10 the experience rating plus a surcharge of 25 percent, obtain a 27.11 cancellation of unemployment benefits used equal to the payment 27.12 made, less the surcharge. Upon the payment, the commissioner 27.13 shall compute a new experience rating for the employer, 27.14 and determinecompute a new tax rate. 27.15 (b) Voluntary payments may be made only during the 3027.16 calendar day period immediately following the date of sending of27.17 the notice of tax rate. This period may be extended, upon a27.18 showing of good cause, but in no event shall a voluntary payment27.19 be allowed afterby electronic payment and must be received 27.20 within 120 calendar days from the beginning of the calendar year 27.21 for which the tax rate is effective. 27.22 (c) Voluntary payments made within the time required will27.23 not be refunded unless a request is made in writing within 3027.24 calendar days after sending of the notice of the new tax rate.27.25 [EFFECTIVE DATE.] This section is effective July 1, 2005. 27.26 Sec. 31. Minnesota Statutes 2002, section 268.0511, is 27.27 amended to read: 27.28 268.0511 [ANNUAL PAYMENT OF SMALL LIABILITIES.] 27.29 (a) An employer may file tax reports andpay all taxes, 27.30 surcharges, and assessments due under this chapter and section 27.31 116L.20, except late fees under section 268.044, for any 27.32 calendar year on an annual basis if the employer: 27.33 (1) has an experience rating of zero for that calendar 27.34 year; 27.35 (2) had total taxable wages paid in the 12-month period 27.36 ending the prior June 30 of less than five times the state's 28.1 taxable wage base; and 28.2 (3) has no outstanding tax or assessment liability,28.3 including penalties and interestdelinquent amounts due under 28.4 this chapter or section 116L.20. 28.5 (b) Tax reports and taxes and assessmentsAll amounts due 28.6 under this section for any calendar year shall be paid on or 28.7 before the following January 31. 28.8 [EFFECTIVE DATE.] This section is effective July 1, 2005. 28.9 Sec. 32. Minnesota Statutes 2003 Supplement, section 28.10 268.052, subdivision 1, is amended to read: 28.11 Subdivision 1. [PAYMENTS.] In lieu of taxes payable on a 28.12 quarterly basis, the state of Minnesota or its political 28.13 subdivisions shall reimburse the trust fund the amount of 28.14 unemployment benefits charged to its reimbursable account under 28.15 section 268.047. Reimbursements in the amount of unemployment 28.16 benefits charged to the reimbursable account during a calendar 28.17 quarter shall be mademust be received by the department on or 28.18 before the last day of the month following the month that the 28.19 notice of unemployment benefits paid is sent pursuant to section 28.20 268.047, subdivision 5. Past due reimbursements shall be 28.21 subject to the same interest charges and collection procedures 28.22 that apply to past due taxes. 28.23 [EFFECTIVE DATE.] This section is effective July 1, 2005. 28.24 Sec. 33. Minnesota Statutes 2003 Supplement, section 28.25 268.052, subdivision 2, is amended to read: 28.26 Subd. 2. [ELECTION BY STATE OR POLITICAL SUBDIVISION TO BE 28.27 A TAXPAYING EMPLOYER.] (a) The state or political subdivision 28.28 excluding a school district may elect to be a taxpaying employer 28.29 for any calendar year if a notice of election is filed within 30 28.30 calendar days following January 1 of that calendar year. Upon 28.31 election, the state or political subdivision shall be assigned 28.32 the new employer tax rate under section 268.051, subdivision 5, 28.33 for the calendar year of the election and until it qualifies for 28.34 an experience rating under section 268.051, subdivision 3. 28.35 (b) An election shall be for a minimum period of two 28.36 calendar years following the effective date of the election and 29.1 continue unless a notice terminating the election is filed not 29.2 later than 30 calendar days before the beginning of the calendar 29.3 year. The termination shall be effective at the beginning of 29.4 the next calendar year. Upon election, the commissioner shall 29.5 establish a reimbursable account for the state or political 29.6 subdivision. A termination of election shall be allowed only if 29.7 the state or political subdivision has, since the beginning of 29.8 the experience rating period under section 268.051, subdivision 29.9 3, paid taxes and made voluntary payments under section 268.051, 29.10 subdivision 7, equal to or more than 125 percent of the 29.11 unemployment benefits used in computing the experience rating. 29.12 In addition, any unemployment benefits paid after the experience 29.13 rating period shall be transferred to the new reimbursable 29.14 account of the state or political subdivision. If the amount of 29.15 taxes and voluntary payments paid since the beginning of the 29.16 experience rating period exceeds 125 percent of the amount of 29.17 unemployment benefits paid during the experience rating period, 29.18 that amount in excess shall be applied against any unemployment 29.19 benefits paid after the experience rating period. 29.20 (c) The method of payments to the trust fund under 29.21 subdivisions 3 and 4 shall apply to all taxes paid by or due 29.22 from the state or political subdivision that elects to be 29.23 taxpaying employers under this subdivision. 29.24 (d) The commissioner may allowA notice of election or a 29.25 notice terminating election toshall be filed by mail or29.26 electronic transmission in a format prescribed by the 29.27 commissioner. 29.28 [EFFECTIVE DATE.] This section is effective July 1, 2005. 29.29 Sec. 34. Minnesota Statutes 2003 Supplement, section 29.30 268.053, subdivision 1, is amended to read: 29.31 Subdivision 1. [ELECTION.] (a) Any nonprofit organization 29.32 that has employees in covered employment shall pay taxes on a 29.33 quarterly basis pursuant to section 268.051 unless it elects to 29.34 make reimbursements to the trust fund the amount of unemployment 29.35 benefits charged to its reimbursable account under section 29.36 268.047. 30.1 The organization may elect to make reimbursements for a 30.2 period of not less than two calendar years beginning with the 30.3 date that the organization was determined to be an employer with 30.4 covered employment by filing a notice of election not later than 30.5 30 calendar days after the date of the determination. 30.6 (b) Any nonprofit organization that makes an election will 30.7 continue to be liable for reimbursements until it files a notice 30.8 terminating its election not later than 30 calendar days before 30.9 the beginning of the calendar year the termination is to be 30.10 effective. 30.11 (c) A nonprofit organization that has been making 30.12 reimbursements that files a notice of termination of election 30.13 shall be assigned the new employer tax rate under section 30.14 268.051, subdivision 5, for the calendar year of the termination 30.15 of election and until it qualifies for an experience rating 30.16 under section 268.051, subdivision 3. 30.17 (d) Any nonprofit organization that has been paying taxes 30.18 may elect to make reimbursements by filing no less than 30 30.19 calendar days before January 1 of any calendar year a notice of 30.20 election. Upon election, the commissioner shall establish a 30.21 reimbursable account for the nonprofit organization. An 30.22 election shall be allowed only if the nonprofit organization 30.23 has, since the beginning of the experience rating period under 30.24 section 268.051, subdivision 3, paid taxes and made voluntary 30.25 payments under section 268.051, subdivision 7, equal to or more 30.26 than 125 percent of the unemployment benefits used in computing 30.27 the experience rating. In addition, any unemployment benefits 30.28 paid after the experience rating period shall be transferred to 30.29 the new reimbursable account of the nonprofit organization. If 30.30 the amount of taxes and voluntary payments paid since the 30.31 beginning of the experience rating period exceeds 125 percent of 30.32 the amount of unemployment benefits paid during the experience 30.33 rating period, that amount in excess shall be applied against 30.34 any unemployment benefits paid after the experience rating 30.35 period. The election shall not be terminable by the 30.36 organization for that and the next calendar year. 31.1 (e) The commissioner may for good cause extend the period 31.2 that a notice of election, or a notice of termination, must be 31.3 filed and may permit an election to be retroactive. 31.4 (f) The commissioner may allowA notice of election or 31.5 notice terminating election toshall be filed by mail or31.6 electronic transmission in a format prescribed by the 31.7 commissioner. 31.8 [EFFECTIVE DATE.] This section is effective July 1, 2005. 31.9 Sec. 35. Minnesota Statutes 2002, section 268.053, 31.10 subdivision 2, is amended to read: 31.11 Subd. 2. [DETERMINATION, PROTEST, AND APPEAL.] The 31.12 commissioner shall notify each nonprofit organization by mail or 31.13 electronic transmission of any determination of its status as an 31.14 employer with covered employment and of the effective date of 31.15 any election or termination of election. The determinations 31.16 shall be final unless an appeala protest is filed within 30 31.17 calendar days after sending of the determination. Upon receipt 31.18 of a protest, the commissioner shall review all available 31.19 evidence and determine whether an error has been made. The 31.20 commissioner shall send to the nonprofit organization, by mail 31.21 or electronic transmission, an affirmation or redetermination. 31.22 The affirmation or redetermination shall be final unless an 31.23 appeal is filed within 30 calendar days of sending the 31.24 affirmation or redetermination. Proceedings on the appeal shall 31.25 be conducted in accordance with section 268.105. 31.26 [EFFECTIVE DATE.] This section is effective July 1, 2005. 31.27 Sec. 36. Minnesota Statutes 2003 Supplement, section 31.28 268.053, subdivision 3, is amended to read: 31.29 Subd. 3. [PAYMENTS.] (a) Reimbursements, in the amount of 31.30 unemployment benefits charged to the reimbursable account, 31.31 during a calendar quarter, shall be mademust be received by the 31.32 department on or before the last day of the month following the 31.33 month that the notice of unemployment benefits paid is sent 31.34 pursuant to section 268.047, subdivision 5. 31.35 (b) Past due reimbursements shall be subject to the same 31.36 interest charges and collection procedures that apply to past 32.1 due taxes. 32.2 (c) If any nonprofit organization is delinquent in making 32.3 reimbursements, the commissioner may terminate the 32.4 organization's election to make reimbursements as of the 32.5 beginning of the next calendar year, and the termination shall 32.6 be effective for that and the following calendar year. A 32.7 nonprofit organization that has its election terminated under 32.8 this paragraph shall be assigned the new employer tax rate under 32.9 section 268.051, subdivision 5, until the organization qualifies 32.10 for an experience rating under section 268.051, subdivision 3. 32.11 [EFFECTIVE DATE.] This section is effective July 1, 2005. 32.12 Sec. 37. Minnesota Statutes 2002, section 268.057, as 32.13 amended by Laws 2003, First Special Session chapter 3, article 32.14 2, sections 6 and 20, is amended to read: 32.15 268.057 [COLLECTION OF TAXES.] 32.16 Subdivision 1. [ REPORTS; DELINQUENCIES; PENALTIESAMOUNT 32.17 COMPUTED PRESUMED CORRECT.] (a) Any employer who knowingly fails32.18 to submit to the commissioner any tax report at the time the32.19 report is required under section 268.051, subdivision 1a, or32.20 268.0511 shall pay to the department a penalty of up to $25 or32.21 an amount of 1-1/2 percent of taxes accrued for each month from32.22 and after the due date until the tax report is properly32.23 submitted, whichever is greater.32.24 (b) If any employer required to submit tax reports fails to32.25 do so, or submits, willfully or otherwise, an incorrect or false32.26 tax report, the employer shall, on the demand of the32.27 commissioner sent by mail or electronic transmission, submit the32.28 tax report, or corrected report, within ten days and at the same32.29 time pay the tax due. If the employer fails within that time to32.30 submit the tax report or corrected report and pay any tax due,32.31 the commissioner shall make an estimated tax report from the32.32 commissioner's own knowledge and from information the32.33 commissioner may obtain and assess a tax on that basis. That32.34 assessed tax, plus any penalties and interest, shall be paid32.35 within ten days after notice of the amount due has been sent by32.36 mail or electronic transmission. Any assessed tax because of33.1 the failure of the employer to submit a tax report or corrected33.2 tax report shall be prima facie correct and valid, and the33.3 employer shall have the burden of establishing its incorrectness33.4 or invalidity in any subsequent action or proceeding. Whenever33.5 the delinquent employer files a tax report or corrected tax33.6 report, the commissioner may, on finding it substantially33.7 correct, accept that report.33.8 (c) If the commissioner finds that any part of any33.9 employer's tax deficiency is due to fraud with intent to avoid33.10 payment of taxes to the trust fund, 50 percent of the total33.11 amount of the deficiency or $500, whichever is greater, shall be33.12 assessed as a penalty against the employer and collected in33.13 addition to the deficiency.33.14 (d) The penalties provided for in paragraphs (a) and (c)33.15 are in addition to interest and any other penalties and shall be33.16 paid to the department and credited to the contingent account.33.17 (e) An employer or officer or agent of an employer is33.18 guilty of a gross misdemeanor, unless the tax or other payment33.19 involved exceeds $500, in which case the person is guilty of a33.20 felony, if the individual:33.21 (1) in order to avoid becoming or remaining a subject33.22 employer or to avoid or reduce any tax or other payment required33.23 under this chapter:33.24 (i) makes a false statement or representation knowing it to33.25 be false; or33.26 (ii) knowingly fails to disclose a material fact; or33.27 (2) willfully fails or refuses to pay any taxes or other33.28 payment at the time required.33.29 Subd. 2. [TAX OR PAYMENT IN LIEU OF TAX PRESUMED VALID.]33.30 The tax and payment in lieu of taxAny amount due from an 33.31 employer, as assessedcomputed by the commissioner, including33.32 any penalties,shall be presumed to be valid andcorrectly 33.33 determined and assessed, and the burden shall be upon the 33.34 employer to show its incorrectness or invalidity. A statement 33.35 by the commissioner of the amount of the tax, payment in lieu of33.36 tax, interest and penalties as determined or assessed by the34.1 commissioner,due shall be admissible in evidence in any court 34.2 or administrative proceeding and shall be prima facie evidence 34.3 of the facts in the statement. 34.4 Subd. 2. [PRIORITY OF PAYMENTS.] (a) Any payment received 34.5 from a taxpaying employer shall be applied in the following 34.6 order: 34.7 (1) unemployment insurance taxes; then 34.8 (2) special assessment for interest on any federal loan; 34.9 then 34.10 (3) workforce development fee; then 34.11 (4) interest on past due taxes; then 34.12 (5) penalties, late fees, administrative service fees, and 34.13 costs. 34.14 (b) Paragraph (a) shall be the priority used for all 34.15 payments received from a taxpaying employer, regardless of how 34.16 the employer may designate the payment to be applied, except 34.17 when: 34.18 (1) there is an outstanding lien and the employer 34.19 designates that the payment made should be applied to satisfy 34.20 the lien; 34.21 (2) the payment is for back pay withheld from an applicant 34.22 pursuant to section 268.085, subdivision 6, paragraph (b); 34.23 (3) the payment is specifically designated by the employer 34.24 to be applied to an outstanding overpayment of unemployment 34.25 benefits of an applicant; 34.26 (4) a court or administrative order directs that the 34.27 payment be applied to a specific obligation; 34.28 (5) a preexisting payment plan provides for the application 34.29 of payment; or 34.30 (6) the commissioner, under the compromise authority of 34.31 section 268.067, agrees to apply the payment to a different 34.32 priority. 34.33 Subd. 3. [ CONFESSION OF JUDGMENTESTIMATING THE TAX 34.34 DUE.] (a) Any tax report or other form that is required to be34.35 filed with the commissioner concerning taxes or reimbursements34.36 due, shall contain a written declaration that it is made under35.1 the penalties for willfully making a false report and shall35.2 contain a confession of judgment for the amount of the tax or35.3 reimbursements shown due thereon to the extent not timely paid35.4 together with any interest and penalty due under this chapter.35.5 (b) The commissioner may, within six years after the report35.6 or other form is filed, regardless of section 541.09, enter35.7 judgment on any confession of judgment after 20 calendar days'35.8 notice served upon the employer by mail. The judgment shall be35.9 entered by the court administrator of any county upon the filing35.10 of a photocopy of the confession of judgment along with a35.11 statement of the commissioner that the tax or payment in lieu of35.12 tax has not been paid.Only if an employer fails to make all 35.13 necessary records available for an audit pursuant to section 35.14 268.186, paragraph (b), and the commissioner has reason to 35.15 believe the employer has not reported all the required wages on 35.16 the quarterly wage detail reports under section 268.044, may the 35.17 commissioner then estimate the amount of tax due and assess the 35.18 employer the estimated amount due. 35.19 Subd. 4. [COSTS.] Any person that fails to pay any taxes,35.20 reimbursements, or unemployment benefit overpayment, including35.21 interest and penalties,amount when due under this chapter is 35.22 liable for any filing fees, recording fees, sheriff fees, costs 35.23 incurred by referral to any public or private collection agency, 35.24 or litigation costs, including attorney fees, incurred in the 35.25 collection of the amounts due. 35.26 If any check or money order, intendered payment of any 35.27 amount due, is not honored when presented to a financial 35.28 institution for payment, a fee of $25 shall be assessed. 35.29 Costs and fees collected under this subdivision shall be 35.30 credited to the administration account to be used by the 35.31 commissioner to ensure integrity in the administration of the 35.32 unemployment insurance program. 35.33 Subd. 5. [INTEREST ON AMOUNTS PAST DUE TAXES.] If 35.34 any taxes, reimbursements, fees, assessments, surcharges, or any35.35 penaltiesamounts due from an employer under this chapter or 35.36 section 268.184116L.20, except late fees under section 268.044, 36.1 are not paidreceived on the date due the unpaid balance shall 36.2 bear interest at the rate of one and one-half percent per month 36.3 or any part thereof. Any payments received by mail postmarked36.4 on a day following the date due shall be considered to have been36.5 paid on the due date if there is substantial evidence that the36.6 payment was actually deposited in the United States mail36.7 properly addressed to the department with postage prepaid36.8 thereon on or before the due date.Interest assessed, if not a 36.9 whole dollar amount, shall be rounded down to the next lower 36.10 whole dollar. Interest collected shall be credited to the 36.11 contingent account. Interest may be waivedcompromised under 36.12 section 268.067. 36.13 Subd. 6. [INTEREST ON JUDGMENTS.] Regardless of section 36.14 549.09, if judgment is entered upon any past due tax or36.15 reimbursementsamounts from an employer under this chapter or 36.16 section 116L.20, the unpaid judgment shall bear interest at the 36.17 rate specified in subdivision 5 until the date of payment. 36.18 Subd. 7. [CREDIT ADJUSTMENTS, REFUNDS.] (a) If an employer 36.19 makes an application for a credit adjustment of any amount 36.20 paid as taxes or interest thereonunder this chapter or section 36.21 116L.20 within four years of the year that the payment was made, 36.22 in a manner and format prescribed by the commissioner, and the 36.23 commissioner determines that the payment or any portion was 36.24 erroneous, the commissioner shall make an adjustment and issue a 36.25 credit without interest. If a credit cannot be used, the 36.26 commissioner shall refund, without interest, the amount 36.27 erroneously paid. The commissioner, on the commissioner's own 36.28 motion, may make a credit adjustment or refund under this 36.29 subdivision. 36.30 Any refund returned to the commissioner shall be considered 36.31 unclaimed property under chapter 345. 36.32 (b) If a credit adjustment or refund is denied in whole or 36.33 in part, a notice of denial shall be sent to the employer by 36.34 mail or electronic transmission. Within 30 calendar days after 36.35 sending of the notice of denial, the employer may appealprotest. 36.36 Upon receipt of a timely protest, the commissioner shall 37.1 review the denial and either affirm the denial or redetermine 37.2 the credit adjustment or refund. The affirmation of denial or 37.3 redetermination of the credit adjustment or refund, sent by mail 37.4 or electronic transmission, shall be final unless an employer 37.5 files an appeal within 30 calendar days after sending. 37.6 Proceedings on the appeal shall be conducted in accordance with 37.7 section 268.105. 37.8 Subd. 10. [PRIORITIES UNDER LEGAL DISSOLUTIONS OR 37.9 DISTRIBUTIONS.] In the event of any distribution of an 37.10 employer's assets pursuant to an order of any court, including 37.11 any receivership, assignment for benefit of creditors, 37.12 adjudicated insolvency, or similar proceeding, taxes then or 37.13 thereafter due shall be paid in full prior to all other claims 37.14 except claims for wages of not more than $1,000 per former 37.15 employee, earned within six months of the commencement of the 37.16 proceedings. In the event of an employer's adjudication in 37.17 bankruptcy under federal law, taxes then or thereafter due shall 37.18 be entitled to the priority provided in that law for taxes due 37.19 any state. 37.20 [EFFECTIVE DATE.] This section is effective July 1, 2005. 37.21 Subdivision 5 does not apply to late tax report penalties issued 37.22 prior to July 1, 2005. 37.23 Sec. 38. Minnesota Statutes 2002, section 268.058, as 37.24 amended by Laws 2003, First Special Session chapter 3, article 37.25 2, section 20, is amended to read: 37.26 268.058 [LIEN, LEVY, SETOFF, AND CIVIL ACTION.] 37.27 Subdivision 1. [LIEN.] (a) Any taxes, unemployment benefit37.28 overpayments, or reimbursements due including interest,37.29 penalties, and costsamount due under this chapter or section 37.30 116L.20, from an applicant or an employer, shall become a lien 37.31 upon all the property, within this state, both real and 37.32 personal, of the person liable, from the date of assessment. 37.33 The term "date of assessment" means the date the obligation was 37.34 due. 37.35 (b) The lien is not enforceable against any purchaser, 37.36 mortgagee, pledgee, holder of a Uniform Commercial Code security 38.1 interest, mechanic's lien, or judgment lien creditor, until a 38.2 notice of lien has been filed with the county recorder of the 38.3 county where the property is situated, or in the case of 38.4 personal property belonging to a nonresident person in the 38.5 Office of the Secretary of State. When the notice of lien is 38.6 filed with the county recorder, the fee for filing and indexing 38.7 shall be as provided in sections 272.483 and 272.484. 38.8 (c) Notices of liens, lien renewals, and lien releases, in 38.9 a form prescribed by the commissioner, may be filed with the 38.10 county recorder or the secretary of state by mail, personal 38.11 delivery, or by electronic transmission into the computerized 38.12 filing system of the secretary of state. The secretary of state 38.13 shall, on any notice filed with that office, transmit the notice 38.14 electronically to the appropriate county recorder. The filing 38.15 officer, whether the county recorder or the secretary of state, 38.16 shall endorse and index a printout of the notice as if the 38.17 notice had been mailed or delivered. 38.18 (d) County recorders and the secretary of state shall enter 38.19 information on lien notices, renewals, and releases into the 38.20 central database of the secretary of state. For notices filed 38.21 electronically with the county recorders, the date and time of 38.22 receipt of the notice and county recorder's file number, and for 38.23 notices filed electronically with the secretary of state, the 38.24 secretary of state's recording information, must be entered into 38.25 the central database before the close of the working day 38.26 following the day of the original data entry by the commissioner. 38.27 (e) The lien imposed on personal property, even though 38.28 properly filed, is not enforceable against a purchaser of 38.29 tangible personal property purchased at retail or personal 38.30 property listed as exempt in sections 550.37, 550.38, and 550.39. 38.31 (f) A notice of lien filed has priority over any security 38.32 interest arising under chapter 336, article 9, that is perfected 38.33 prior in time to the lien imposed by this subdivision, but only 38.34 if: 38.35 (1) the perfected security interest secures property not in 38.36 existence at the time the notice of lien is filed; and 39.1 (2) the property comes into existence after the 45th 39.2 calendar day following the day the notice of lien is filed, or 39.3 after the secured party has actual notice or knowledge of the 39.4 lien filing, whichever is earlier. 39.5 (g) The lien shall be enforceable from the time the lien 39.6 arises and for ten years from the date of filing the notice of 39.7 lien. A notice of lien may be renewed before expiration for an 39.8 additional ten years. 39.9 (h) The lien shall be enforceable by levy under subdivision 39.10 2 or by judgment lien foreclosure under chapter 550. 39.11 (i) The lien may be imposed upon property defined as 39.12 homestead property in chapter 510 but may be enforced only upon 39.13 the sale, transfer, or conveyance of the homestead property. 39.14 (j) The commissioner may sell and assign to a third party 39.15 the commissioner's right of redemption in specific real property 39.16 for liens filed under this subdivision. The assignee shall be 39.17 limited to the same rights of redemption as the commissioner, 39.18 except that in a bankruptcy proceeding, the assignee does not 39.19 obtain the commissioner's priority. Any proceeds from the sale 39.20 of the right of redemption shall be credited to the contingent 39.21 account. Any sale shall be by written agreement signed by an39.22 attorney who is a classified employee of the department39.23 designated by the commissioner for that purpose.39.24 Subd. 2. [LEVY.] (a) If any tax, reimbursements, or39.25 unemployment benefit overpayment, including interest, penalties,39.26 and costsamount due under this chapter or section 116L.20, from 39.27 an applicant or an employer, is not paid when due, the amount 39.28 may be collected by the commissioner by direct levy upon all 39.29 property and rights of property of the person liable for the 39.30 amount due except that exempt from execution under section 39.31 550.37. The term "levy" includes the power of distraint and 39.32 seizure by any means. 39.33 (b) In addition to a direct levy, the commissioner may 39.34 issue a warrant to the sheriff of any county who shall proceed 39.35 within 60 calendar days to levy upon the property or rights to 39.36 property of the delinquent person within the county, except that 40.1 exempt under section 550.37. The sheriff shall sell that 40.2 property necessary to satisfy the total amount due, together 40.3 with the commissioner's and sheriff's costs. The sales shall be 40.4 governed by the law applicable to sales of like property on 40.5 execution of a judgment. 40.6 (c) Notice and demand for payment of the total amount due 40.7 shall be mailed to the delinquent person at least ten calendar 40.8 days prior to action being taken under paragraphs (a) and (b). 40.9 (d) If the commissioner has reason to believe that 40.10 collection of the amount due is in jeopardy, notice and demand 40.11 for immediate payment may be made. If the total amount due is 40.12 not paid, the commissioner may proceed to collect by direct levy 40.13 or issue a warrant without regard to the ten calendar day period. 40.14 (e) In executing the levy, the commissioner shall have all 40.15 of the powers provided in chapter 550 or any other law that 40.16 provides for execution against property in this state. The sale 40.17 of property levied upon and the time and manner of redemption 40.18 shall be as provided in chapter 550. The seal of the court 40.19 shall not be required. The levy may be made whether or not the 40.20 commissioner has commenced a legal action for collection. 40.21 (f) Where any assessment has been made by the commissioner, 40.22 the property seized for collection of the total amount due shall 40.23 not be sold until any determination of liability has become 40.24 final. No sale shall be made unless a portion of the amount due 40.25 remains unpaid for a period of more than 30 calendar days after 40.26 the determination of liability becomes final. Seized property 40.27 may be sold at any time if: 40.28 (1) the delinquent person consents in writing to the sale; 40.29 or 40.30 (2) the commissioner determines that the property is 40.31 perishable or may become greatly reduced in price or value by 40.32 keeping, or that the property cannot be kept without great 40.33 expense. 40.34 (g) Where a levy has been made to collect the amount due 40.35 and the property seized is properly included in a formal 40.36 proceeding commenced under sections 524.3-401 to 524.3-505 and 41.1 maintained under full supervision of the court, the property 41.2 shall not be sold until the probate proceedings are completed or 41.3 until the court orders. 41.4 (h) The property seized shall be returned if the owner: 41.5 (1) gives a surety bond equal to the appraised value of the 41.6 owner's interest in the property, as determined by the 41.7 commissioner, or 41.8 (2) deposits with the commissioner security in a form and 41.9 amount the commissioner considers necessary to insure payment of 41.10 the liability. 41.11 (i) If a levy or sale would irreparably injure rights in 41.12 property that the court determines superior to rights of the 41.13 state, the court may grant an injunction to prohibit the 41.14 enforcement of the levy or to prohibit the sale. 41.15 (j) Any person who fails or refuses to surrender without 41.16 reasonable cause any property or rights to property subject to 41.17 levy shall be personally liable in an amount equal to the value 41.18 of the property or rights not so surrendered, but not exceeding 41.19 the amount due. 41.20 (k) If the commissioner has seized the property of any 41.21 individual, that individual may, upon giving 48 hours notice to 41.22 the commissioner and to the court, bring a claim for equitable 41.23 relief before the district court for the release of the property 41.24 upon terms and conditions the court considers equitable. 41.25 (l) Any person in control or possession of property or 41.26 rights to property upon which a levy has been made who 41.27 surrenders the property or rights to property, or who pays the 41.28 amount due shall be discharged from any obligation or liability 41.29 to the person liable for the amount due with respect to the 41.30 property or rights to property. 41.31 (m) The notice of any levy may be served personally or by 41.32 mail. 41.33 (n) The commissioner may release the levy upon all or part 41.34 of the property or rights to property levied upon if the 41.35 commissioner determines that the release will facilitate the 41.36 collection of the liability, but the release shall not prevent 42.1 any subsequent levy. If the commissioner determines that 42.2 property has been wrongfully levied upon, the commissioner shall 42.3 return: 42.4 (1) the specific property levied upon, at any time; or 42.5 (2) an amount of money equal to the amount of money levied 42.6 upon, at any time before the expiration of nine months from the 42.7 date of levy. 42.8 (o) Regardless of section 52.12, a levy upon a person's 42.9 funds on deposit in a financial institution located in this 42.10 state, shall have priority over any unexercised right of setoff 42.11 of the financial institution to apply the levied funds toward 42.12 the balance of an outstanding loan or loans owed by the person 42.13 to the financial institution. A claim by the financial 42.14 institution that it exercised its right to setoff prior to the 42.15 levy must be substantiated by evidence of the date of the 42.16 setoff, and verified by an affidavit from a corporate officer of 42.17 the financial institution. For purposes of determining the 42.18 priority of any levy under this subdivision, the levy shall be 42.19 treated as if it were an execution under chapter 550. 42.20 Subd. 3. [RIGHT OF SETOFF.] (a) Upon certification by the 42.21 commissioner to the commissioner of finance, or to any state 42.22 agency that disburses its own funds, that a person, applicant, 42.23 or employer has a liability under this chapter , including42.24 interest, penalties, and costsor section 116L.20, and that the 42.25 state has purchased personal services, supplies, contract 42.26 services, or property from that person, the commissioner of 42.27 finance or the state agency shall set off and pay to the 42.28 commissioner an amount sufficient to satisfy the unpaid 42.29 liability from funds appropriated for payment of the obligation 42.30 of the state otherwise due the person. No amount shall be set 42.31 off from any funds exempt under section 550.37 or funds due an 42.32 individual who receives assistance under chapter 256. 42.33 (b) All funds, whether general or dedicated, shall be 42.34 subject to setoff. 42.35 Regardless of any law to the contrary, the commissioner 42.36 shall have first priority to setoff from any funds otherwise due 43.1 from the department to a delinquent person. 43.2 Subd. 4. [COLLECTION BY CIVIL ACTION.] (a) Any delinquent43.3 taxes, reimbursements, or unemployment benefit overpayment,43.4 including interest, penalties, or costsamount due under this 43.5 chapter or section 116L.20, from an applicant or employer, may 43.6 be collected by civil action in the name of the state of 43.7 Minnesota. Civil actions brought under this subdivision shall 43.8 be heard as provided under section 16D.14. In any action, 43.9 judgment shall be entered in default for the relief demanded in 43.10 the complaint without proof, together with costs and 43.11 disbursements, upon the filing of an affidavit of default. 43.12 (b) Any person that is not a resident of this state and any 43.13 resident person removed from this state, shall be considered to 43.14 appoint the secretary of state as its agent for the acceptance 43.15 of process in any civil action. The commissioner shall file 43.16 process with the secretary of state, together with a payment of 43.17 a fee of $15 and that service shall be considered sufficient 43.18 service and shall have the same force and validity as if served 43.19 personally within this state. Notice of the service of process, 43.20 together with a copy of the process, shall be sent by certified 43.21 mail to the person's last known address. An affidavit of 43.22 compliance with this subdivision, and a copy of the notice of 43.23 service shall be appended to the original of the process and 43.24 filed in the court. 43.25 (c) No court filing fees, docketing fees, or release of 43.26 judgment fees may be assessed against the state for actions 43.27 pursuant to this subdivision. 43.28 Subd. 5. [INJUNCTION FORBIDDEN.] No injunction or other 43.29 legal action to prevent the determination, assessment, or 43.30 collection of any tax, reimbursements, or unemployment benefit43.31 overpayment, including interest, penalties, and costsamounts 43.32 due under this chapter or section 116L.20, from an applicant or 43.33 employer, shall be allowed. 43.34 Sec. 39. Minnesota Statutes 2003 Supplement, section 43.35 268.059, subdivision 1, is amended to read: 43.36 Subdivision 1. [NOTICE.] The commissioner may give notice 44.1 to any employer that an employee owes delinquent taxes,44.2 reimbursements, or overpaid unemployment benefits, including44.3 penalties, interest, and costsany amounts due under this 44.4 chapter or section 116L.20, and that the obligation to the trust44.5 fundshould be withheld from the employee's wages. The 44.6 commissioner may proceed only if the tax, reimbursements, or44.7 unemployment benefit overpaymentamount due is uncontested or if 44.8 the time for any appeal has expired. The commissioner shall not 44.9 proceed until 30 calendar days after mailingsending to the 44.10 debtor employee, at the debtor's last known addressby mail or 44.11 electronic transmission, a writtennotice of intent to garnish 44.12 wages and exemption notice. That notice shall list: 44.13 (1) the amount of taxes, reimbursements, overpaid44.14 unemployment benefits, interest, penalties, or costsdue from 44.15 the debtor; 44.16 (2) demand for immediate payment; and 44.17 (3) the intention to serve a garnishment notice on the 44.18 debtor's employer. 44.19 The notice shall expire 180 calendar days after it has been 44.20 mailedsent to the debtor provided that the notice may be 44.21 renewed by mailingsending a new notice that is in accordance 44.22 with this section. The renewed notice shall have the effect of 44.23 reinstating the priority of the original notice. The exemption 44.24 notice shall be in substantially the same form as in section 44.25 571.72. The notice shall inform the debtor of the right to 44.26 claim exemptions contained in section 550.37, subdivision 14. 44.27 If no writtenclaim of exemption is received by the commissioner 44.28 within 30 calendar days after mailingsending of the notice, the 44.29 commissioner may proceed with the garnishment. The notice to 44.30 the debtor's employer may be served by mail or electronic 44.31 transmission and shall be in substantially the same form as in 44.32 section 571.75. 44.33 Sec. 40. Minnesota Statutes 2002, section 268.059, 44.34 subdivision 3, is amended to read: 44.35 Subd. 3. [DISCHARGE OR DISCIPLINE PROHIBITED.] (a) If the 44.36 employee ceases to be employed by the employer before the full 45.1 amount set forth on the garnishment notice plus accrued interest 45.2 has been withheld, the employer shall immediately notify the 45.3 commissioner in writing or by electronic transmission, as 45.4 prescribed by the commissioner, of the termination date of the 45.5 employee and the total amount withheld. No employer may 45.6 discharge or discipline any employee because the commissioner 45.7 has proceeded under this section. If an employer discharges an 45.8 employee in violation of this section, the employee shall have 45.9 the same remedy as provided in section 571.927, subdivision 2. 45.10 (b) This section shall apply if the employer is the state 45.11 of Minnesota or any political subdivision. 45.12 (c) The commissioner shall refund to the employee any 45.13 excess amounts withheld from the employee. 45.14 (d) An employer that fails or refuses to comply with this 45.15 section shall be jointly and severally liable for the total 45.16 amount due from the employee. Any amount due from the employer 45.17 under this paragraph may be collected in accordance with section45.18 268.058the same manner as any other amounts due from an 45.19 employer under this chapter. 45.20 Sec. 41. Minnesota Statutes 2002, section 268.0625, as 45.21 amended by Laws 2003, First Special Session chapter 3, article 45.22 2, section 20, is amended to read: 45.23 268.0625 [REVOCATIONS OF BUSINESS LICENSES.] 45.24 Subdivision 1. [NOTICE OF DEBT TO LICENSING AUTHORITY.] 45.25 The state of Minnesota or a political subdivision may not issue, 45.26 transfer, or renew, and must revoke a license for the conduct of 45.27 any profession, trade, or business, if the commissioner notifies 45.28 the licensing authority that the licensee, applicant, or 45.29 employer owes delinquent taxes, reimbursements, or unemployment45.30 benefit overpayments, including interest, penalties, and45.31 costsany amount due under this chapter or section 116L.20, of 45.32 $500 or more. A licensing authority that has received such a 45.33 notice may issue, transfer, renew, or not revoke the license 45.34 only if the licensing authority has received a copy of the debt 45.35 clearance certificate issued by the commissioner. 45.36 Subd. 2. [DEBT CLEARANCE CERTIFICATE.] The commissioner 46.1 may issue a debt clearance certificate only if: 46.2 (1) the licensee has fully paid any delinquent taxes,46.3 reimbursements, or unemployment benefit overpayments, including46.4 interest, penalties, and costsamounts due under this chapter or 46.5 section 116L.20; or 46.6 (2) the licensee has entered into an agreement to pay the 46.7 total amount due and is current with all the terms of that 46.8 agreement. 46.9 Subd. 3. [DEFINITION.] For the purposes of this section, 46.10 "licensee" means: 46.11 (1) an individual if the license is issued to or in the 46.12 name of an individual, or the corporation, limited liability 46.13 company, or partnership if the license is issued to or in the 46.14 name of a corporation, limited liability company, or 46.15 partnership; or 46.16 (2) an officer of a corporation, manager of a limited 46.17 liability company, or a member of a partnership, or an 46.18 individual who is liable for the delinquent taxes,46.19 reimbursements, or unemployment benefit overpaymentsamounts due 46.20 under this chapter or section 116L.20, either for the entity 46.21 that the license is at issue or for another entity that the 46.22 liability was incurred, or personally as a licensee. "Licensee" 46.23 includes both the transferor and the transferee of the license 46.24 and any holder of a license. 46.25 Subd. 4. [NOTICE AND RIGHT TO HEARING.] At least 30 46.26 calendar days before the commissioner notifies a licensing 46.27 authority, a notice of action under this section shall be mailed46.28 sent to the licensee by mail or electronic transmission. If the 46.29 licensee disputes the action, the licensee must appeal within 30 46.30 calendar days after the mailingsending of the notice to 46.31 the licensee's last known addresslicensee. The only issue on 46.32 any appeal is whether the commissioner has complied with the 46.33 requirements of this section. Proceedings on the appeal shall 46.34 be conducted in accordance with section 268.105. 46.35 Subd. 5. [LICENSING AUTHORITY; DUTIES.] Upon request, the 46.36 licensing authority shall provide the commissioner with a list 47.1 of all licensees, including the name, address, business name and 47.2 address, Social Security number, and business identification 47.3 number. The commissioner may request a list of the licensees no 47.4 more than once each calendar year. Regardless of section 47.5 268.19, the commissioner may release information necessary to 47.6 accomplish this section. 47.7 Sec. 42. Minnesota Statutes 2003 Supplement, section 47.8 268.063, is amended to read: 47.9 268.063 [PERSONAL LIABILITY.] 47.10 (a) Any officer, director, or employee of a corporation or 47.11 any manager, governor, member, or employee of a limited 47.12 liability company who 47.13 (1) either individually or jointly with others, have or 47.14 should have had control of, supervision over, or responsibility 47.15 for the filing of the tax reports orpaying the amounts due 47.16 under this chapter or section 116L.20, and 47.17 (2) willfullyknowingly fails to file the tax reports or47.18 pay the amounts due, shall be personally liable for taxes or47.19 reimbursements, including interest, penalties, and coststhe 47.20 amount due in the event the employer does not pay. 47.21 For purposes of this section, " willfulnessknowingly" means 47.22 that the facts demonstrate that the responsible partyindividual 47.23 used or allowed the use of corporate or company assets to pay 47.24 other creditors knowing that the amounts due under this chapter 47.25 were unpaid. An evil motive or intent to defraud is not 47.26 necessary. 47.27 (b) Any partner of a limited liability partnership, or 47.28 professional limited liability partnership, shall be jointly and 47.29 severally liable for taxes or reimbursements, including47.30 interest, penalties, and costsany amount due under this chapter 47.31 or section 116L.20 in the event the employer does not pay. 47.32 (c) Any personal representative of the estate of a decedent 47.33 or fiduciary who voluntarily distributes the assets without 47.34 reserving a sufficient amount to pay the taxes, reimbursements,47.35 interest, and penaltiesamount due shall be personally liable 47.36 for the deficiency. 48.1 (d) The personal liability of any individual shall survive 48.2 dissolution, reorganization, receivership, or assignment for the 48.3 benefit of creditors. For the purposes of this section, all 48.4 wages paid by the employer shall be considered earned from the 48.5 individual determined to be personally liable. 48.6 (e) The commissioner shall make an initiala determination 48.7 as to personal liability. The determination shall be final 48.8 unless the individual found to be personally liable, within 30 48.9 calendar days after mailing ofsending, by mail or electronic 48.10 transmission, a notice of determination to the individual's last48.11 known address, files a protest. Upon receipt of the protest, 48.12 the commissioner shall reexamine the personal liability 48.13 determination and either affirm or redetermine the assessment of 48.14 personal liability and a notice of the affirmation or 48.15 redetermination shall be mailed to the individual's last known48.16 addresssent to the individual by mail or electronic 48.17 transmission. The affirmation or redetermination shall become 48.18 final unless an appeal is filed within 30 calendar days after 48.19 the date of mailingsending. Proceedings on the appeal shall be 48.20 conducted in accordance with section 268.105. 48.21 Sec. 43. Minnesota Statutes 2002, section 268.064, 48.22 subdivision 1, is amended to read: 48.23 Subdivision 1. [ACQUISITION OF ORGANIZATION, TRADE, 48.24 BUSINESS, OR ASSETS.] Any person who acquires all or part of the 48.25 organization, trade, business or assets from an employer, is 48.26 jointly and severally liable, in an amount not to exceed the 48.27 reasonable value of that part of the organization, trade, 48.28 business or assets acquired, for the taxesany amounts due and 48.29 unpaid by the employer. The amount of liability shall, in 48.30 addition, be a lien against the property or assets acquired and 48.31 shall be prior to all other unrecorded liens. This section does 48.32 not apply to sales in the normal course of the employer's 48.33 business. 48.34 Sec. 44. Minnesota Statutes 2002, section 268.064, 48.35 subdivision 3, is amended to read: 48.36 Subd. 3. [STATEMENT OF AMOUNT DUE.] Prior to the date of 49.1 acquisition, the commissioner shall furnish the acquiring person 49.2 with a statement of the taxesamounts due and unpaid under this 49.3 chapter or section 116L.20 upon the writtenrequest of the 49.4 potential acquiring person and the writtenrelease of the 49.5 obligor. No release is required after the date of acquisition. 49.6 Sec. 45. Minnesota Statutes 2002, section 268.065, 49.7 subdivision 1, is amended to read: 49.8 Subdivision 1. [SUBCONTRACTORS.] A contractor who 49.9 contracts with any subcontractor shall guarantee the payment of 49.10 all the taxes, interest, penalties, and collection costsamounts 49.11 that are due or become due from the subcontractor with respect 49.12 to taxable wages paid on the contract by: 49.13 (1) withholding sufficient money on the contract; or 49.14 (2) requiring the subcontractor to provide a sufficient 49.15 bond guaranteeing the payment of all taxes, interest, penalties,49.16 and collection costsamounts that may become due. 49.17 The contractor may make a writtenrequest for verification 49.18 that the subcontractor has paid the taxes due 60 calendar days 49.19 after the due date for filing the taxwage detail report that 49.20 includes the final wages paid for employment performed under the 49.21 contract. If the subcontractor has paid the taxesamounts due 49.22 for the period covered by the contract, the commissioner may 49.23 release the contractor from its liability. 49.24 The words "contractor" and "subcontractor" include 49.25 individuals, partnerships, firms, or corporations, or other 49.26 association of persons engaged in the construction industry. 49.27 Sec. 46. Minnesota Statutes 2002, section 268.065, 49.28 subdivision 2, is amended to read: 49.29 Subd. 2. [EMPLOYEE LEASING FIRMS.] A person whose work 49.30 force consists of 50 percent or more of workers provided by 49.31 employee leasing firms, is jointly and severally liable for the 49.32 unpaid taxes, penalties, interest, and collection costsamounts 49.33 that are due under this chapter or section 116L.20 on the wages 49.34 paid on the contract with the employee leasing firm. "Employee 49.35 leasing firm" means an employer that provides its employees to 49.36 other persons without severing its employer-employee 50.1 relationship with the worker for the services performed for the 50.2 lessee. 50.3 Sec. 47. Minnesota Statutes 2003 Supplement, section 50.4 268.066, is amended to read: 50.5 268.066 [CANCELLATION OF DELINQUENT TAXESAMOUNTS DUE FROM 50.6 AN EMPLOYER.] 50.7 (a) The commissioner shall cancel as uncollectible any 50.8 taxes, reimbursements, penalties, or the interest or costs50.9 thereonamounts due from an employer under this chapter or 50.10 section 116L.20, which remain unpaid six years after the amounts 50.11 have been first determined due and payable, except where the 50.12 delinquent amounts are secured by a notice of lien, a judgment, 50.13 are in the process of garnishment, or are under a payment plan. 50.14 (b) The commissioner may cancel at any time as 50.15 uncollectible any taxes, reimbursements, penalties, or the50.16 interest or costs thereonamount due, or any portion of an 50.17 amount due, from an employer under this chapter or section 50.18 116L.20, that the commissioner determines(1) are uncollectible 50.19 due to death or bankruptcy, (2) the Minnesota Collection 50.20 Enterprise under section 16D.04 was unable to collect, or (3) 50.21 the commissioner determines that it is not in the public 50.22 interest to pursue collection of the amount due. 50.23 Sec. 48. Minnesota Statutes 2003 Supplement, section 50.24 268.067, is amended to read: 50.25 268.067 [COMPROMISE.] 50.26 (a) The commissioner may compromise in whole or in part any 50.27 action, determination, or decision that affects only an employer 50.28 and not an applicant, and that has occurred during the prior 24 50.29 months. This paragraph may apply if it is determined by a court 50.30 of law, or a confession of judgment, that an applicant, while 50.31 employed, wrongfully took from the employer $500 or more in 50.32 money or property. 50.33 (b) The commissioner may at any time compromise delinquent50.34 any amount due from an employer taxes, reimbursements, interest,50.35 penalties, and costsunder this chapter or section 116L.20. 50.36 (c) Any compromise involving an amount over $2,500 shall be 51.1 authorized by written order signed byan attorney who is a51.2 classifiedan employee of the department designated by the 51.3 commissioner for that purpose. 51.4 (d) Any compromise order must set out all the terms and the51.5 reason for the order andmust be in the best interest of the 51.6 state of Minnesota. 51.7 Sec. 49. Minnesota Statutes 2003 Supplement, section 51.8 268.0675, is amended to read: 51.9 268.0675 [NO ELECTION OF REMEDY.] 51.10 Use of any remedy under this chapter for the collection of 51.11 any delinquent taxes, reimbursements, or unemployment benefit51.12 overpayment, including penalties, interest, and costs,amount 51.13 due from an employer or an applicant shall not constitute an 51.14 election of remedy to the exclusion of any other available 51.15 remedy. 51.16 Sec. 50. Minnesota Statutes 2002, section 268.07, 51.17 subdivision 1, is amended to read: 51.18 Subdivision 1. [APPLICATION FOR UNEMPLOYMENT BENEFITS; 51.19 DETERMINATION OF BENEFIT ACCOUNT.] (a) An application for 51.20 unemployment benefits may be filed in person, by mail, by51.21 telephone,or by electronic transmission as the commissioner 51.22 shall require. The applicant must be unemployed at the time the 51.23 application is filed and must provide all requested information 51.24 in the manner required. If the applicant is not unemployed at 51.25 the time of the application or fails to provide all requested 51.26 information, the communication shall not be considered an 51.27 application for unemployment benefits. 51.28 (b) The commissioner shall examine each application for 51.29 unemployment benefits to determine the base period and the 51.30 benefit year, and based upon all the covered employment in the 51.31 base period the commissioner shall determine the weekly 51.32 unemployment benefit amount available, if any, and the maximum 51.33 amount of unemployment benefits available, if any. The 51.34 determination shall be known as the determination of benefit 51.35 account. A determination of benefit account shall be sent to 51.36 the applicant and all base period employers, by mail or 52.1 electronic transmission. 52.2 (c) If a base period employer did not provide wage 52.3 information for the applicant as provided for in section 52.4 268.044, or provided erroneous information, the commissioner 52.5 shallmay accept an applicant certification as to wage credits, 52.6 based upon the applicant's records, and issue a determination of 52.7 benefit account. 52.8 (d) The commissioner may, at any time within 24 months from 52.9 the establishment of a benefit account, reconsider any 52.10 determination of benefit account and make an amended 52.11 determination if the commissioner finds that the determination 52.12 was incorrect for any reason. An amended determination shall be 52.13 promptly sent to the applicant and all base period employers, by 52.14 mail or electronic transmission. 52.15 If an amended determination of benefit account reduces the 52.16 weekly unemployment benefit amount or maximum amount of 52.17 unemployment benefits available, any unemployment benefits that 52.18 have been paid greater than the applicant was entitled is 52.19 considered an overpayment of unemployment benefits under section 52.20 268.18, subdivision 1. 52.21 Sec. 51. Minnesota Statutes 2003 Supplement, section 52.22 268.07, subdivision 2, is amended to read: 52.23 Subd. 2. [BENEFIT ACCOUNT REQUIREMENTS AND WEEKLY 52.24 UNEMPLOYMENT BENEFIT AMOUNT AND MAXIMUM AMOUNT OF UNEMPLOYMENT 52.25 BENEFITS.] (a) To establish a benefit account, an applicant must 52.26 have: 52.27 (1) high quarter wage credits of at least $1,000; and 52.28 (2) wage credits, in other than the high quarter, of at 52.29 least $250. 52.30 (b) If an applicant has established a benefit account, the 52.31 weekly unemployment benefit amount available during the benefit 52.32 year shall be the higher of: 52.33 (1) 50 percent of the applicant's average weekly wage 52.34 during the base period, to a maximum of 66-2/3 percent of the 52.35 state's average weekly wage; or 52.36 (2) 50 percent of the applicant's average weekly wage 53.1 during the high quarter, to a maximum of 45 percent of the 53.2 state's average weekly wage. 53.3 The applicant's average weekly wage under clause (1) shall 53.4 be computed by dividing the total wage credits by 52. The 53.5 applicant's average weekly wage under clause (2) shall be 53.6 computed by dividing the high quarter wage credits by 13. 53.7 (c) The state's maximum weekly unemployment benefit amount 53.8 and an applicant's weekly unemployment benefit amount and 53.9 maximum amount of unemployment benefits available shall be 53.10 rounded down to the next lowestlower whole dollar. The state's 53.11 maximum weekly benefit amount, computed in accordance with 53.12 section 268.035, subdivision 23, shall apply to a benefit 53.13 account established effective on or after the first Sunday in 53.14 August. Once established, an applicant's weekly unemployment 53.15 benefit amount shall not be affected by the first Sunday in 53.16 August change in the state's maximum weekly unemployment benefit 53.17 amount. 53.18 (d) The maximum amount of unemployment benefits available 53.19 on any benefit account shall be the lower of: 53.20 (1) 33-1/3 percent of the applicant's total wage credits; 53.21 or 53.22 (2) 26 times the applicant's weekly unemployment benefit 53.23 amount. 53.24 Sec. 52. Minnesota Statutes 2002, section 268.07, 53.25 subdivision 3, is amended to read: 53.26 Subd. 3. [SECOND BENEFIT ACCOUNT REQUIREMENTS.] To 53.27 establish a second benefit account following the expiration of a 53.28 benefit year on a prior benefit account, an applicant must have 53.29 sufficient wage credits to establish a benefit account under 53.30 subdivision 2 and must have performed services in covered 53.31 employment after the effective date of the prior benefit 53.32 account. The wages paid for that employment must equal not less 53.33 than eight times the weekly unemployment benefit amount of the 53.34 prior benefit account. A benefit account established53.35 sufficiently in advance of anticipated loss of employment to53.36 make the limitations of this subdivision ineffective shall not54.1 be allowed.The purpose of this subdivision is to prevent an 54.2 applicant from establishing more than one benefit account as a 54.3 result of one loss of employment. 54.4 Sec. 53. Minnesota Statutes 2003 Supplement, section 54.5 268.085, subdivision 1, is amended to read: 54.6 Subdivision 1. [ELIGIBILITY CONDITIONS.] An applicant 54.7 shall be eligible to receive unemployment benefits for any week 54.8 if: 54.9 (1) the applicant has an active benefit account and has 54.10 filed a continued biweekly request for unemployment benefits for 54.11 that week pursuant to section 268.086; 54.12 (2) the applicant was able to work and was available for 54.13 suitable employment, and was actively seeking suitable 54.14 employment. The applicant's weekly unemployment benefit amount 54.15 shall be reduced one-fifth for each day the applicant is unable 54.16 to work or is unavailable for suitable employment. If the 54.17 computation of the reduced unemployment benefits is not a whole 54.18 dollar, it shall be rounded down to the next lower whole dollar. 54.19 This clause shall not apply to an applicant who is in 54.20 reemployment assistance training .54.21 This clause shall not apply, or each day the applicant is 54.22 on jury duty; 54.23 (3) the applicant has served a waiting period of one week 54.24 that the applicant is otherwise entitled to some amount of 54.25 unemployment benefits. This clause shall not apply if the 54.26 applicant would have been entitled to federal disaster 54.27 unemployment assistance because of a disaster in Minnesota, but 54.28 for the applicant's establishment of a benefit account under 54.29 section 268.07; and 54.30 (4) the applicant has been participating in reemployment 54.31 assistance services, such as job search and resume writing 54.32 classes, if the applicant has been determined in need of 54.33 reemployment assistance services by the commissioner, unless 54.34 there is good cause for the applicant's failure to participate. 54.35 Sec. 54. Minnesota Statutes 2002, section 268.085, 54.36 subdivision 2, is amended to read: 55.1 Subd. 2. [NOT ELIGIBLE.] An applicant shall not be 55.2 eligible to receive unemployment benefits for any week: 55.3 (1) that occurs before the effective date of a benefit 55.4 account; 55.5 (2) that occurs in a period when the applicant is a student 55.6 in attendance at, or on vacation from a secondary school 55.7 including the period between academic years or terms; 55.8 (3) that the applicant is incarcerated or performing court 55.9 ordered community service. The applicant's weekly unemployment 55.10 benefit amount shall be reduced by one-fifth for each day the 55.11 applicant is incarcerated or performing court ordered community 55.12 service. If the computation of the reduced unemployment 55.13 benefits is not a whole dollar, it shall be rounded down to the 55.14 next lower whole dollar; 55.15 (4) that the applicant fails or refuses to provide 55.16 information on an issue of eligibility required under section 55.17 268.101, subdivision 1, paragraph (a), or an issue of 55.18 disqualification required under section 268.101, subdivision 1, 55.19 paragraph (d); 55.20 (5) that the applicant is performing services 32 hours or 55.21 more, in employment, covered employment, noncovered employment, 55.22 or self-employment regardless of the amount of any earnings; or 55.23 (6) with respect to which the applicant is receiving, has 55.24 received, or has filed an application for unemployment benefits 55.25 under any federal law or the law of any other state. If the 55.26 appropriate agency finally determines that the applicant is not 55.27 entitled to the unemployment benefits, this clause shall not 55.28 apply. 55.29 Sec. 55. Minnesota Statutes 2003 Supplement, section 55.30 268.085, subdivision 3, is amended to read: 55.31 Subd. 3. [PAYMENTS THAT DELAY UNEMPLOYMENT BENEFITS.] (a) 55.32 An applicant shall not be eligible to receive unemployment 55.33 benefits for any week with respect to which the applicant is 55.34 receiving, has received, or has filed for payment, equal to or 55.35 in excess of the applicant's weekly unemployment benefit amount, 55.36 in the form of: 56.1 (1) severance pay, bonus pay, vacation pay, sick pay, and 56.2 any other money payments, except earnings under subdivision 5, 56.3 and back pay under subdivision 6, paid by an employer because 56.4 of, upon, or after separation from employment, but only if the 56.5 money payment is considered wages at the time of payment under 56.6 section 268.035, subdivision 29, or United States Code, title 56.7 26, section 3121, clause (2), of the Federal Insurance 56.8 Contribution Act. This clause shall apply to all the weeks of 56.9 payment and shall be applied to the period immediately following 56.10 the last day of employment. The number of weeks of payment 56.11 shall be determined as follows: 56.12 (i) if the payments are made periodically, the total of the 56.13 payments to be received shall be divided by the applicant's last 56.14 level of regular weekly pay from the employer; or 56.15 (ii) if the payment is made in a lump sum, that sum shall 56.16 be divided by the applicant's last level of regular weekly pay 56.17 from the employer. This clause shall not apply to vacation pay 56.18 paid by an employer upon permanent separation from employment; 56.19 (2) pension, retirement, or annuity payments from any plan 56.20 contributed to by a base period employer including the United 56.21 States government, except Social Security benefits which are 56.22 provided for in subdivision 4. The base period employer 56.23 contributed to the plan if the contribution is excluded from the 56.24 definition of wages under section 268.035, subdivision 29, 56.25 clause (1), or United States Code, title 26, section 3121, 56.26 clause (2), of the Federal Insurance Contribution Act. 56.27 If the applicant receives a lump sum pension payment, that 56.28 sum shall be divided by the applicant's last level of regular 56.29 weekly pay to determine the number of weeks of payment. The 56.30 number of weeks of payment shall be applied to the period 56.31 immediately following the last day of employment. An applicant 56.32 shall not be considered to have received the lump sum payment if 56.33 the applicant immediately deposits that payment in a qualified 56.34 pension plan or account; or 56.35 (3) holiday pay. 56.36 (b) If the payment is less than the applicant's weekly 57.1 unemployment benefit amount, unemployment benefits shall be 57.2 reduced by the amount of the payment. If the computation of 57.3 reduced unemployment benefits is not a whole dollar, it shall be 57.4 rounded down to the next lowestlower whole dollar. 57.5 Sec. 56. Minnesota Statutes 2003 Supplement, section 57.6 268.085, subdivision 4, is amended to read: 57.7 Subd. 4. [SOCIAL SECURITY BENEFITS.] (a) Any applicant 57.8 aged 62 or over shall be required to state when filing an 57.9 application for unemployment benefits and when filing continued 57.10 biweekly requests for unemployment benefits whether the 57.11 applicant is receiving, has filed for, or intends to file for, 57.12 primary Social Security old age or disabilitybenefits for any 57.13 week during the benefit year. 57.14 (b)There shall be deducted from an applicant's weekly 57.15 unemployment benefit amount 50 percent of the weekly equivalent 57.16 of the primary Social Security old age or disabilitybenefit the 57.17 applicant has received, has filed for, or intends to file for, 57.18 with respect to that week. 57.19 (c) Regardless of paragraph(b) ,An applicant shall be57.20 ineligible for unemployment benefits for any week with respect57.21 to which the applicantwho is receiving, has received, or has 57.22 filed for primary Social Security disability benefits .57.23 This paragraph shall not apply iffor any week during the 57.24 benefit year shall be determined unable to work and unavailable 57.25 for suitable employment for that week, unless: 57.26 (1) the Social Security Administration approved the 57.27 collecting of primary Social Security disability benefits each 57.28 month the applicant was employed during the base period .; or 57.29 (2) the applicant provides a statement from an appropriate 57.30 health care professional who is aware of the applicant's Social 57.31 Security disability claim and the basis for that claim, 57.32 certifying that the applicant is able to work and available for 57.33 suitable employment. 57.34 If an applicant meets the requirements of clause (1) or 57.35 (2), then there shall be deducted from the applicant's weekly 57.36 unemployment benefit amount 50 percent of the weekly equivalent 58.1 of the primary Social Security disability benefits the applicant 58.2 is receiving, has received, or has filed for, with respect to 58.3 that week; provided, however, that if the Social Security 58.4 Administration determines that an individual is not entitled to 58.5 receive primary Social Security disability benefits for any week 58.6 the applicant has applied for those benefits, the 50 percent 58.7 deduction shall not apply to that week. 58.8 (d)(c) Information from the Social Security Administration 58.9 shall be considered conclusive, absent specific evidence showing 58.10 that the information was erroneous. 58.11 (e) Any applicant who receives primary Social Security old58.12 age or disability benefits for periods that the applicant has58.13 been paid unemployment benefits shall be considered overpaid58.14 those unemployment benefits under section 268.18, subdivision58.15 1(d) If the computation of the reduced unemployment benefits is 58.16 not a whole dollar, it shall be rounded down to the next lower 58.17 whole dollar. 58.18 (e) This subdivision does not apply to Social Security 58.19 survivor benefits. 58.20 Sec. 57. Minnesota Statutes 2003 Supplement, section 58.21 268.085, subdivision 5, is amended to read: 58.22 Subd. 5. [DEDUCTIBLE EARNINGS.] (a) If the applicant has 58.23 earnings with respect to any week, from employment, covered 58.24 employment, noncovered employment, self-employment, or volunteer 58.25 work, equal to or in excess of the applicant's weekly 58.26 unemployment benefit amount, the applicant shall be ineligible 58.27 for unemployment benefits for that week. 58.28 (b) If the applicant has earnings, with respect to any 58.29 week, that is less than the applicant's weekly unemployment 58.30 benefit amount, from employment, covered employment, noncovered 58.31 employment, self-employment, or volunteer work, that amount over 58.32 the following shall be deducted from the weekly unemployment 58.33 benefit amount: 58.34 (1) 25 percent of earnings or $50, whichever is higher; and 58.35 (2) $200 for earnings from service in the National Guard or 58.36 a United States military reserve unit. 59.1 The resulting unemployment benefit, if not a whole dollar, 59.2 shall be rounded down to the next lower whole dollar. 59.3 (c) No deduction shall be made from an applicant's weekly 59.4 unemployment benefit amount for earnings from service as a 59.5 volunteer firefighter or volunteer ambulance service personnel. 59.6 No deduction shall be made for jury duty pay. 59.7 (d) The applicant may report deductible earnings on 59.8 continued biweekly requests for unemployment benefits at the 59.9 nearestnext lower whole dollar amount. 59.10 (e) Earnings shall not include any money considered a 59.11 deductible payment under subdivision 3, but shall include all 59.12 other money considered wages and any other money considered 59.13 earned income under state and federal law for income tax 59.14 purposes. 59.15 Sec. 58. Minnesota Statutes 2003 Supplement, section 59.16 268.085, subdivision 6, is amended to read: 59.17 Subd. 6. [RECEIPT OF BACK PAY.] (a) Back pay received by 59.18 an applicant with respect to any week occurring in the 104 weeks 59.19 prior to the payment of the back pay shall be deducted from 59.20 unemployment benefits paid for that week. 59.21 If an arbitration award, administrative or judicial59.22 decision, or negotiated settlement that provides forthe back 59.23 pay does not specify the periodis not paid with respect to 59.24 which it is paida specific period, the back pay shall be 59.25 applied to the period immediately following the last day of 59.26 employment. 59.27 (b) If the back pay is reduced by the amount of 59.28 unemployment benefits that have been paid, the amount of back 59.29 pay withheld shall be: 59.30 (1) paid by the employer to the trust fund within 30 59.31 calendar days and subject to the same collection procedures that 59.32 apply to past due taxes; 59.33 (2) applied to unemployment benefit overpayments resulting 59.34 from the payment of the back pay; and 59.35 (3) credited to the maximum amount of unemployment benefits 59.36 available to the applicant in a benefit year that includes the 60.1 weeks for which back pay was deducted. 60.2 (c) Unemployment benefits paid the applicant shall be 60.3 removed from the computation of the tax rate for taxpaying 60.4 employers and removed from the reimbursable account for 60.5 nonprofit and government employers that have elected to be 60.6 liable for reimbursements in the calendar quarter the trust fund 60.7 receives payment. 60.8 (d) Payments to the trust fund under this subdivision shall 60.9 be considered as made by the applicant. 60.10 Sec. 59. Minnesota Statutes 2002, section 268.085, 60.11 subdivision 12, is amended to read: 60.12 Subd. 12. [ALIENS.] (a) An alien shall be ineligible for 60.13 unemployment benefits for any week the alien is not authorized 60.14 to work in the United States under federal law. Information 60.15 from the Immigration and Naturalization Service shall be 60.16 considered conclusive, absent specific evidence that the 60.17 information was erroneous. Pursuant to the existing agreement 60.18 between the United States and Canada, this paragraph shall not 60.19 apply to an applicant who is a Canadian citizen and has returned 60.20 to and is living in Canada each week unemployment benefits are 60.21 requested. 60.22 (b) Unemployment benefits shall not be paid on the basis of 60.23 wage credits earned by an alien unless the alien (1) was 60.24 lawfully admitted for permanent residence at the time of the 60.25 employment, (2) was lawfully present for the purposes of the 60.26 employment, or (3) was permanently residing in the United States 60.27 under color of law at the time of the employment. 60.28 (c) Any information required of applicants applying for 60.29 unemployment benefits to determine eligibility because of their 60.30 alien status shall be required from all applicants. 60.31 Sec. 60. Minnesota Statutes 2002, section 268.085, 60.32 subdivision 13a, is amended to read: 60.33 Subd. 13a. [LEAVE OF ABSENCE.] (a) An applicant on a 60.34 voluntary leave of absence shall be ineligible for unemployment 60.35 benefits for the duration of the leave of absence. An applicant 60.36 on an involuntary leave of absence shall not be ineligible under 61.1 this subdivision. 61.2 A leave of absence is voluntary when work that the 61.3 applicant can then perform is available with the applicant's 61.4 employer but the applicant chooses not to work. A medical leave 61.5 of absence shall not be presumed to be voluntary. 61.6 (b) A period of vacation requested by the applicant, paid 61.7 or unpaid, shall be considered a voluntary leave of absence. A 61.8 vacation period assigned by an employer under: (1) a uniform 61.9 vacation shutdown; (2) a collective bargaining agreement; or (3) 61.10 an established employer policy, shall notbe considered a61.11 voluntaryan involuntary leave of absence. 61.12 (c) A voluntary leave of absence shall not be considered a 61.13 quit orand an involuntary leave of absence shall not be 61.14 considered a discharge from employment for purposes of section 61.15 268.095. 61.16 (d) An applicant who is on a paid leave of absence, whether 61.17 the leave of absence is voluntary or involuntary, shall be 61.18 ineligible for unemployment benefits for the duration of the 61.19 leave. 61.20 (e) This subdivision shall apply to a leave of absence from 61.21 a base period employer, an employer during the period between 61.22 the end of the base period and the effective date of the benefit 61.23 account, or an employer during the benefit year. 61.24 Sec. 61. Minnesota Statutes 2002, section 268.085, 61.25 subdivision 14, is amended to read: 61.26 Subd. 14. [ABLE TO WORK DEFINED.] "Able to work" means an 61.27 applicant has the physical and mental ability to perform (1) the 61.28 usual duties of the applicant's usual occupation or of61.29 comparable(2) the usual duties of work that is gainful 61.30 employment engaged in by others as a means of livelihood. 61.31 [EFFECTIVE DATE.] This section is effective August 1, 2004, 61.32 and applies to all determinations and decisions issued on or 61.33 after that date. 61.34 Sec. 62. Minnesota Statutes 2003 Supplement, section 61.35 268.095, subdivision 1, is amended to read: 61.36 Subdivision 1. [QUIT.] An applicant who quit employment 62.1 shall be ineligible for all unemployment benefits except when: 62.2 (1) the applicant quit the employment because of a good 62.3 reason caused by the employer as defined in subdivision 3; 62.4 (2) the applicant quit the employment to accept other 62.5 covered employment that provided substantially better terms and 62.6 conditions of employment, but the applicant did not work long 62.7 enough at the othersecond employment to have sufficient 62.8 subsequent earnings to satisfy the disqualification that would 62.9 otherwise be imposed under subdivision 10 for quitting the first 62.10 employment; 62.11 (3) the applicant quit the employment within 30 calendar 62.12 days of beginning the employment because the employment was 62.13 unsuitable for the applicant; 62.14 (4) the employment was unsuitable for the applicant and the 62.15 applicant quit to enter reemployment assistance training; 62.16 (5) the employment was part time and the applicant also had 62.17 full-time employment in the base period, thatfrom which 62.18 full-time employment the applicant separated frombecause of 62.19 nondisqualifying reasons, and the wage credits from the 62.20 full-time employment are sufficient to meet the minimum 62.21 requirements to establish a benefit account under section 62.22 268.07; 62.23 (6) the applicant quit because the employer notified the 62.24 applicant that the applicant was going to be laid off due to 62.25 lack of work within 30 calendar days. An applicant who quit 62.26 employment within 30 calendar days of a notified date of layoff 62.27 due to lack of work shall be ineligible for unemployment 62.28 benefits through the end of the week that includes the scheduled 62.29 date of layoff; 62.30 (7) the applicant quit the employment because the 62.31 applicant's serious illness or injury made it medically 62.32 necessary that the applicant quit, provided that the applicant 62.33 inform the employer of the serious illness or injury and request 62.34 accommodation and no reasonable accommodation is made available. 62.35 If the applicant's serious illness is chemical dependency, 62.36 this exception shall not apply if the applicant was previously 63.1 diagnosed as chemically dependent or had treatment for chemical 63.2 dependency, and since that diagnosis or treatment has failed to 63.3 make consistent efforts to control the chemical dependency; or 63.4 (8) domestic abuse of the applicant or the applicant's 63.5 minor child, necessitated the applicant's quitting the 63.6 employment. Domestic abuse shall be shown by one or more of the 63.7 following: 63.8 (i) a court order for protection or other documentation of 63.9 equitable relief issued by a court; 63.10 (ii) a police record documenting the domestic abuse; 63.11 (iii) documentation that the perpetrator of the domestic 63.12 abuse has been convicted of the offense of domestic abuse; 63.13 (iv) medical documentation of domestic abuse; or 63.14 (v) written statement that the applicant or the applicant's 63.15 minor child is a victim of domestic abuse, provided by a social 63.16 worker, member of the clergy, shelter worker, attorney at law, 63.17 or other professional who has assisted the applicant in dealing 63.18 with the domestic abuse. 63.19 Domestic abuse for purposes of this clause shall be defined 63.20 under section 518B.01. 63.21 [EFFECTIVE DATE.] This section is effective August 1, 2004, 63.22 and applies to all determinations and decisions issued by the 63.23 department on or after that date. 63.24 Sec. 63. Minnesota Statutes 2003 Supplement, section 63.25 268.095, subdivision 3, is amended to read: 63.26 Subd. 3. [GOOD REASON CAUSED BY THE EMPLOYER DEFINED.] (a) 63.27 A good reason caused by the employer for quitting is a reason: 63.28 (1) that is directly related to the employment and for 63.29 which the employer is responsible; and63.30 (2) that is adverse to the worker; and 63.31 (2)(3) that is significant andwould compel an average, 63.32 reasonable worker to quit and become unemployed rather than 63.33 remaining in the employment. 63.34 (b) The analysis required in paragraph (a) must be applied 63.35 to the specific facts of each case. 63.36 (c) If an applicant was subjected to adverse working 64.1 conditions by the employer, the applicant must complain to the 64.2 employer and give the employer a reasonable opportunity to 64.3 correct the adverse working conditions before that may be 64.4 considered a good reason caused by the employer for quitting. 64.5 (c)(d) A substantial adverse change in the wages, hours,64.6 or other terms ofreason for quitting employment by the employer64.7 shall not be considered a good reason caused by the employer for 64.8 quitting unless the changeif the reason for quitting occurred 64.9 because of the applicant's employment misconduct. 64.10 (d)(e) Notification of discharge in the future, including 64.11 a layoff due to lack of work, shall not be considered a good 64.12 reason caused by the employer for quitting. 64.13 (e)(f) An applicant has a good reason caused by the 64.14 employer for quitting if it results from sexual harassment of 64.15 which the employer was aware, or should have been aware, and the 64.16 employer failed to take timely and appropriate action. Sexual 64.17 harassment means unwelcome sexual advances, requests for sexual 64.18 favors, sexually motivated physical contact or other conduct or 64.19 communication of a sexual nature when: 64.20 (1) the applicant's submission to the conduct or 64.21 communication is made a term or condition of the employment; 64.22 (2) the applicant's submission to or rejection of the 64.23 conduct or communication is the basis for decisions affecting 64.24 employment; or 64.25 (3) the conduct or communication has the purpose or effect 64.26 of substantially interfering with an applicant's work 64.27 performance or creating an intimidating, hostile, or offensive 64.28 working environment. 64.29 (f)(g) The definition of a good reason caused by the 64.30 employer for quitting employment provided by this subdivision 64.31 shall be exclusive and no other definition shall apply. 64.32 [EFFECTIVE DATE.] This section is effective August 1, 2004, 64.33 and applies to all determinations and decisions issued by the 64.34 department on or after that date. 64.35 Sec. 64. Minnesota Statutes 2002, section 268.095, 64.36 subdivision 4, is amended to read: 65.1 Subd. 4. [DISCHARGE.] An applicant who was discharged from 65.3 employment by an employer shall not be ineligible for any 65.4 unemployment benefits except when: 65.5 (1) the applicant was discharged because of employment 65.6 misconduct as defined in subdivision 6; or 65.7 (2) the applicant was discharged because of aggravated 65.8 employment misconduct as defined in subdivision 6a. 65.9 Sec. 65. Minnesota Statutes 2002, section 268.095, 65.10 subdivision 6a, is amended to read: 65.11 Subd. 6a. [AGGRAVATED EMPLOYMENT MISCONDUCT DEFINED.] (a) 65.12 For the purpose of this section, "aggravated employment 65.13 misconduct" means: 65.14 (1) the commission of any act, on the job or off the job, 65.15 that would amount to a gross misdemeanor or felony if the act 65.16 substantially interfered with the employment or adversely65.17 affectedhad a significant adverse effect on the employment; or 65.18 (2) for an employee of a facility as defined in section 65.19 626.5572, aggravated employment misconduct includes an act of 65.20 patient or resident abuse, financial exploitation, or recurring 65.21 or serious neglect, as defined in section 626.5572 and 65.22 applicable rules. 65.23 (b) If an applicant is convicted of a gross misdemeanor or 65.24 felony for the same act for which the applicant was discharged, 65.25 it is aggravated employment misconduct if the act substantially 65.26 interfered with the employment or had a significant adverse 65.27 effect on the employment. 65.28 (c) The definition of aggravated employment misconduct 65.29 provided by this subdivision shall be exclusive and no other 65.30 definition shall apply. 65.31 Sec. 66. Minnesota Statutes 2002, section 268.101, 65.32 subdivision 2, is amended to read: 65.33 Subd. 2. [DISQUALIFICATION DETERMINATION.] (a) The 65.34 commissioner shall determine any issue of disqualification 65.35 raised by information required from an applicant under 65.36 subdivision 1, paragraph (a) or (c), and at the last known address, by mail or 66.1 electronic transmission, a determination of disqualification or 66.2 a determination of nondisqualification, as is appropriate. The 66.3 determination shall state the effect on the employer under 66.4 section 268.047. A determination shall be made pursuant to this 66.5 paragraph even if a notified employer has not raised the issue 66.6 of disqualification. 66.7 (b) The commissioner shall determine any issue of 66.8 disqualification raised by an employer and at the last known address, by mail 66.10 or electronic transmission, a determination of disqualification 66.11 or a determination of nondisqualification as is appropriate. 66.12 The determination shall state the effect on the employer under 66.13 section 268.047. 66.14 If a base period employer: 66.15 (1) was not the applicant's most recent employer prior to 66.16 the application for unemployment benefits; 66.17 (2) did not employ the applicant during the six calendar 66.18 months prior to the application for unemployment benefits; and 66.19 (3) did not raise an issue of disqualification within ten 66.20 calendar days of notification under subdivision 1, paragraph 66.21 (b); 66.22 then any exception under section 268.047, subdivisions 2 and 3, 66.23 shall begin the Sunday two weeks following the week that the 66.24 issue of disqualification was raised by the employer. 66.25 (c) If any time within 24 months from the establishment of 66.26 a benefit account the commissioner finds that an applicant 66.27 failed to report any employment, loss of employment, or offers 66.28 of employment that were required to be provided by the applicant 66.29 under this section, the commissioner shall determine any issue 66.30 of disqualification on that loss of employment or offer of 66.31 employment and at the last known address, by mail or electronic transmission, a 66.33 determination of disqualification or a determination of 66.34 nondisqualification, as is appropriate. The determination shall 66.35 state the effect on the employer under section 268.047. 66.36 This paragraph shall not prevent the imposition of any 67.1 penalty under section 268.18, subdivision 2, or 268.182. 67.2 (d) An issue of disqualification shall be determined based 67.3 upon that information required of an applicant, any information 67.4 that may be obtained from an applicant or employer, and 67.5 information from any other source, without regard to any common 67.6 law burden of proof. 67.7 (e) A determination of disqualification or a determination 67.8 of nondisqualification shall be final unless an appeal is filed 67.9 by the applicant or notified employer within 30 calendar days 67.10 after mailingsending. The determination shall contain a 67.11 prominent statement indicating the consequences of not appealing. 67.12 Proceedings on the appeal shall be conducted in accordance with 67.13 section 268.105. 67.14 (f) An issue of disqualification for purposes of this 67.15 section shall include any reason for no longer working for an 67.16 employer other than a layoff due to lack of work, any question 67.17 of a disqualification from unemployment benefits under section 67.18 268.095, any question of an exception to disqualification under 67.19 section 268.095, any question of effect on an employer under 67.20 section 268.047, and any question of an otherwise imposed 67.21 disqualification that an applicant has satisfied under section 67.22 268.095, subdivision 10. 67.23 (g) Regardless of the requirements of this subdivision, the 67.24 commissioner is not required to whether timely or untimely,and at the last known address, by mail 67.33 or electronic transmission, a determination of eligibility or a 67.34 determination of ineligibility, as is appropriate. 67.35 (b) The commissioner shall determine any issue of 67.36 eligibility raised by information obtained from an applicant and 68.1 at the last known address, by mail or 68.2 electronic transmission, a determination of eligibility or a 68.3 determination of ineligibility, as is appropriate. A 68.4 determination shall be made pursuant to this paragraph even if a 68.5 notified employer has not raised the issue of eligibility. 68.6 (c) If any time within 24 months from the establishment of 68.7 a benefit account the commissioner finds the applicant failed to 68.8 provide, on an application for unemployment benefits or on a 68.9 continued biweekly request for unemployment benefits, requested 68.10 information on an issue of eligibility, the commissioner shall 68.11 determine the issue of eligibility and at the last known address, by mail or electronic 68.13 transmission, a determination of eligibility or a determination 68.14 of ineligibility, as is appropriate. 68.15 This paragraph shall not prevent the imposition of a 68.16 penalty under section 268.18, subdivision 2, or 268.182. 68.17 (d) A determination of eligibility or determination of 68.18 ineligibility shall be final unless an appeal is filed by the 68.19 applicant or notified employer within 30 calendar days after 68.20 mailingsending. The determination shall contain a prominent 68.21 statement indicating the consequences of not appealing. 68.22 Proceedings on the appeal shall be conducted in accordance with 68.23 section 268.105. 68.24 (e) An issue of eligibility for purposes of this section 68.25 shall include any question regarding the denial or allowing of 68.26 unemployment benefits under sections 268.085, 268.086, 268.115, 68.27 268.125, 268.135, and 268.155. 68.28 (f) Only if an employer raised the issue of eligibility 68.29 shall the employer be: (1) mailedsent the determination of 68.30 eligibility or a determination of ineligibility, or (2) 68.31 considered an involved employer for purposes of an appeal under 68.32 section 268.105. 68.33 Sec. 68. Minnesota Statutes 2003 Supplement, section 68.34 268.101, subdivision 3a, is amended to read: 68.35 Subd. 3a. [DIRECT HEARING.] Regardless of any provision of 68.36 the Minnesota Unemployment Insurance Law, the commissioner or an 69.1 unemployment law judge or a senior unemployment review judge 69.2 may, prior to a determination being made under this chapter, 69.3 refer any issue of disqualification, any issue of eligibility, 69.4 or any other issue under sections 268.035 to 268.23this 69.5 chapter, directly for hearing in accordance with section 69.6 268.105, subdivision 1. The status of the issue shall be the 69.7 same as if a determination had been made and an appeal filed. 69.8 Sec. 69. Minnesota Statutes 2002, section 268.101, 69.9 subdivision 4, is amended to read: 69.10 Subd. 4. [AMENDED DETERMINATION.] Unless an appeal has 69.11 been filed, the commissioner, on the commissioner's own motion, 69.12 may reconsider a determination of disqualification or 69.13 nondisqualification or a determination of eligibility or 69.14 ineligibility that has not become final and issue an amended 69.15 determination. Any amended determination shall be mailedsent 69.16 to the applicant and any involved employer at the last known69.17 addressby mail or electronic transmission. Any amended 69.18 determination shall be final unless an appeal is filed by the 69.19 applicant or notified employer within 30 calendar days 69.20 after mailingsending. Proceedings on the appeal shall be 69.21 conducted in accordance with section 268.105. 69.22 Sec. 70. Minnesota Statutes 2002, section 268.103, is 69.23 amended to read: 69.24 268.103 [APPEALS BY TELEPHONE;ELECTRONIC TRANSMISSION.] 69.25 Subdivision 1. [IN COMMISSIONER'S DISCRETION.] (a) Unless69.26 the statutory provision providing for an appeal requires that69.27 the appeal be in writing,The commissioner shall have the 69.28 discretion to allow an appeal to be madefiled by telephone or69.29 byelectronic transmission. If the commissioner allows an 69.30 appeal to be madefiled by telephone or byelectronic 69.31 transmission, that shall be clearly set out on the determination 69.32 or decision subject to appeal. 69.33 (b)The commissioner may restrict the manner, format, and 69.34 conditions under which an appeal by telephone orelectronic 69.35 transmission may be madefiled. Any restrictions as to days, 69.36 hours, telephone number, electronic transmissionaddress, or 70.1 other conditions, shall be clearly set out on the determination 70.2 or decision subject to appeal. 70.3 (c)All information requested by the commissioner when an 70.4 appeal is made by telephone orfiled by electronic transmission 70.5 must be supplied or the communication willshall not constitute 70.6 an appeal. 70.7 Subd. 2. [APPEAL IN WRITINGBY MAIL.] (a) The commissioner 70.8 must allow an appeal mayto be made in writingfiled by mail 70.9 even if an appeal by telephone or byelectronic transmission is 70.10 allowed. 70.11 (b) A written statement delivered or mailed to the 70.12 department that could reasonably be interpreted to mean that an 70.13 involved applicant or employer is in disagreement with a 70.14 specific determination or decision shall be considered an 70.15 appeal. No specific words need be used for the written 70.16 statement to be considered an appeal. 70.17 Subd. 3. [EXCLUSIVE MEANS OF APPEAL.] A written appeal, or70.18 if allowed an appeal by telephone or electronic transmission,70.19 shall be the only manner of appeal.70.20 Subd. 4. [PROTESTS BY TELEPHONE ANDELECTRONIC 70.21 TRANSMISSION.] This section shall apply to the filing of 70.22 protests to those determinations and notices that require a 70.23 protest and affirmation procedure prior to an appeal. 70.24 Sec. 71. Minnesota Statutes 2002, section 268.105, as 70.25 amended by Laws 2003, First Special Session chapter 3, article 70.26 2, section 15, is amended to read: 70.27 268.105 [ HEARINGS;APPEALS.] 70.28 Subdivision 1. [EVIDENTIARY HEARING BY AN UNEMPLOYMENT LAW 70.29 JUDGE.] (a) Upon a timely appeal having been filed, the 70.30 department shall send a notice of appeal to all involved parties 70.31 that an appeal has been filed, that a de novo due process 70.32 evidentiary hearing will be scheduled, and that the parties have 70.33 certain rights and responsibilities regarding the hearing. The 70.34 department shall set a time and place for a de novo due process 70.35 evidentiary hearing and commissionerdepartment shall adopt rules on evidentiary 71.9 hearings. The rules need not conform to common law or statutory 71.10 rules of evidence and other technical rules of procedure. The 71.11 department shall have discretion regarding the method by which 71.12 the evidentiary hearing is conducted. A report of any employee 71.13 of the department, except a determination, made in the regular 71.14 course of the employee's duties, shall be competent evidence of 71.15 the facts contained in it. 71.16 (c) After the conclusion of the hearing, upon the evidence 71.17 obtained, the unemployment law judge shall make writtenfindings 71.18 of fact and decision and The commissioner shall designate classifiedOnly 71.23 employees of the department shall serve as unemployment law 71.24 judges to conduct evidentiary hearings on appeals. The71.25 commissioner or authorized representativeA senior unemployment 71.26 review judge may personally hear or transfer to another 71.27 unemployment law judge any proceedings pending before an 71.28 unemployment law judge. Any proceedings removed to the71.29 commissioner or authorized representativea senior unemployment 71.30 review judge shall be heard in accordance with this subdivision. 71.31 Subd. 2. [ COMMISSIONERDE NOVO REVIEW BY A SENIOR 71.32 UNEMPLOYMENT REVIEW JUDGE.] (a) Within 30 calendar days after71.33 mailing of the unemployment law judge's decisionExcept as 71.34 provided under subdivision 2a, any involved applicant or 71.35 involved employer may appeal a decision of an unemployment law 71.36 judge and obtain a de novo review by the commissioner or an72.1 authorized representativea senior unemployment review judge by 72.2 filing with a senior unemployment review judge an appeal within 72.3 30 calendar days after the sending of the unemployment law 72.4 judge's decision. The commissionerA senior unemployment review 72.5 judge within the same period of time may, on the commissioner's72.6 a senior unemployment review judge's own motion, order a de novo 72.7 review of any decision of an unemployment law judge. 72.8 (b) The authorized representative of the commissionerA 72.9 senior unemployment review judge shall be an attorney who is a72.10 classifiedan employee of the department. The authority to act72.11 on behalf of the commissioner under this section shall be by72.12 specific written delegation filed with the secretary of state.72.13 (c) Upon de novo review, the commissionera senior 72.14 unemployment review judge shall, on the basis of that evidence 72.15 submitted at the evidentiary hearing under subdivision 1, make 72.16 findings of fact and decision, or remand the matter back to an 72.17 unemployment law judge for the taking of additional evidence and 72.18 the making of new findings and decision based on all the 72.19 evidence. The commissionerA senior unemployment review judge 72.20 shall, independent of the findings of fact and decision of the 72.21 unemployment law judge, examine the evidence and make those 72.22 findings of fact as the evidence, in the judgment of 72.23 the commissionersenior unemployment review judge require, and 72.24 make that decision as the facts found by the commissionersenior 72.25 unemployment review judge require. 72.26 (d) The commissionerA senior unemployment review judge may 72.27 conduct a de novo review without argument by any involved party, 72.28 or the commissionera senior unemployment review judge may allow 72.29 written argument. The commissionerA senior unemployment review 72.30 judge shall not, except for purposes of deciding whether to 72.31 remand a matter to an unemployment law judge for a further 72.32 evidentiary hearing, consider any evidence that was not 72.33 submitted at the hearing before the unemployment law judge. 72.34 (e) The commissionersenior unemployment review judge shall 72.35 send, by mail or electronic transmission, to any involved party 72.36 the commissioner'ssenior unemployment review judge's findings 73.1 of fact and decision. The decision of the commissionersenior 73.2 unemployment review judge is the final departmentdecision of 73.3 the department. Unless judicial review is sought under 73.4 subdivision 7, the decision of the commissionersenior 73.5 unemployment review judge shall become final 30 calendar days 73.6 after mailingsending. 73.7 Subd. 2a. [ORDERS BY A SENIOR UNEMPLOYMENT REVIEW 73.8 JUDGE.] (a) If an applicant or employer files an appeal in a 73.9 matter where an unemployment law judge affirmed a determination 73.10 issued under section 268.101, and there is no dispute regarding 73.11 the determinative facts, a senior unemployment review judge 73.12 shall have the discretion to decline to conduct a de novo 73.13 review. If de novo review is declined, the senior unemployment 73.14 review judge shall issue an order adopting the unemployment law 73.15 judge's findings of fact and decision. 73.16 (b) If an involved party fails, without good cause, to 73.17 appear and participate at the evidentiary hearing conducted by 73.18 an unemployment law judge under subdivision 1, and that party 73.19 files an appeal, a senior unemployment review judge shall have 73.20 the discretion to decline to conduct a de novo review. If de 73.21 novo review is declined, the senior unemployment review judge 73.22 shall issue an order dismissing the appeal. 73.23 Submission of a written statement shall not constitute an 73.24 appearance and participation at an evidentiary hearing for 73.25 purposes of this paragraph. 73.26 All involved parties must be notified of this paragraph 73.27 with the notice of appeal and notice of hearing provided for 73.28 under subdivision 1. The senior unemployment review judge shall 73.29 allow for the submission of a written argument on the issue of 73.30 good cause before dismissing an appeal under this paragraph. 73.31 "Good cause" for purposes of this paragraph is a compelling 73.32 reason that would have prevented a reasonable person acting with 73.33 due diligence from appearing and participating at the 73.34 evidentiary hearing. 73.35 (c) The senior unemployment review judge shall send to any 73.36 involved party the order issued under this subdivision. The 74.1 order may be sent by mail or electronic transmission. Unless 74.2 judicial review is sought under subdivision 7, the order of a 74.3 senior unemployment review judge becomes final 30 calendar days 74.4 after sending. 74.5 Subd. 3. [WITHDRAWAL OF APPEAL.] (a) Any appeal that is 74.6 pending a decisionbefore an unemployment law judge or the74.7 commissionera senior unemployment review judge may be withdrawn 74.8 by the appealing person, or an authorized representative of that 74.9 person, upon filing of a notice of withdrawal. 74.10 (b) The appeal shall, by writtenorder, be dismissed if a 74.11 notice of withdrawal is filed, unless the commissioneran 74.12 unemployment law judge or a senior unemployment review judge, by 74.13 writtenorder, directs that further adjudication is required for 74.14 a proper result. 74.15 (c) A notice of withdrawal may be filed by mail , by74.16 telephone,or if the commissioner allows,by electronic 74.17 transmission. 74.18 Subd. 3a. [DECISIONS.] (a) If an unemployment law judge's 74.19 decision or the commissioner'sa senior unemployment review 74.20 judge's decision or order allows unemployment benefits to an 74.21 applicant, the unemployment benefits shall be paid regardless of 74.22 any appeal period or any appeal having been filed. 74.23 (b) If an unemployment law judge's decision modifies or 74.24 reverses a determination allowing unemployment benefits to an 74.25 applicant, any benefits paid pursuant to the determination is 74.26 considered an overpayment of those unemployment benefits under 74.27 section 268.18, subdivision 1. 74.28 (c) If a commissioner'ssenior unemployment review judge's 74.29 decision modifies or reverses an unemployment law judge's 74.30 decision allowing unemployment benefits to an applicant, any 74.31 unemployment benefits paid pursuant to the unemployment law 74.32 judge's decision is considered an overpayment of those 74.33 unemployment benefits under section 268.18, subdivision 1. 74.34 (d) If the commissionera senior unemployment review judge 74.35 affirms an unemployment law judge's decision on an issue of 74.36 disqualification that allows unemployment benefits to an 75.1 applicant ,and the commissioner'ssenior unemployment review 75.2 judge's decision , if finallyor order is reversed by the 75.3 Minnesota Court of Appeals or the Supreme Court of 75.4 Minnesota, shall not result in a disqualification ofthe 75.5 applicant shall not be disqualified from unemployment benefits 75.6 under section 268.095, subdivision 10. 75.7 (e) If the commissionera senior unemployment review judge, 75.8 pursuant to subdivision 2, remands a matter to an unemployment 75.9 law judge for the taking of additional evidence, the prior 75.10 unemployment law judge's decision shall continue to be enforced 75.11 until new findings of fact and decision are made by an 75.12 unemployment law judge. 75.13 Subd. 4. [TESTIMONIAL POWERS.] TheAn unemployment law 75.14 judge , the commissioner, or authorized representative,and a 75.15 senior unemployment review judge may administer oaths and 75.16 affirmations, take depositions, and issue subpoenas to compel 75.17 the attendance of witnesses and the production of documents and 75.18 other personal property considered necessary as evidence in 75.19 connection with the subject matter of an evidentiary hearing. 75.20 The subpoenas shall be enforceable through the district court in 75.21 the district that the subpoena is issued. Witnesses subpoenaed, 75.22 other than an involved applicant or involved employer or 75.23 officers and employees of an involved employer, shall be paid by 75.24 the commissionerdepartment the same witness fees as in a civil 75.25 action in district court. 75.26 Subd. 5. [USE OF INFORMATIONEVIDENCE; DATA PRIVACY.] (a) 75.27 All testimony at any evidentiary hearing conducted pursuant to 75.28 subdivision 1 shall be recorded. A copy of any recorded 75.29 testimony and exhibits offered or received into evidence at the 75.30 hearing shall, upon request, or upon directive of the75.31 commissionera senior unemployment review judge, be furnished to 75.32 a party at no cost during the time period for filing an appeal 75.33 to the commissionera senior unemployment review judge or while 75.34 such an appeal is pending. If requested, the commissioner75.35 department shall make available a device for listening to the 75.36 recording if an appeal is pending before the commissionera 76.1 senior unemployment review judge under subdivision 2. 76.2 (b) Regardless of any provision of law to the contrary, if 76.3 recorded testimony and exhibits received into evidence at the 76.4 evidentiary hearing are not requested during the time period for 76.5 filing an appeal to the commissionera senior unemployment 76.6 review judge, or while such an appeal is pending, that testimony 76.7 and other evidence shall later be made available to an involved 76.8 party only pursuant to a court order. A subpoena shall not be 76.9 considered a court order. 76.10 (c) Testimony obtained under subdivision 1, may not be used 76.11 or considered for any purpose, including impeachment, in any 76.12 civil, administrative, or contractual proceeding, except by a 76.13 local, state, or federal human rights agency with enforcement 76.14 powers, unless the proceeding is initiated by the department. 76.15 (d)Subd. 5a. [NO COLLATERAL ESTOPPEL.] No findings of 76.16 fact or decision or order issued by an unemployment law judge or 76.17 the commissionera senior unemployment review judge may be held 76.18 conclusive or binding or used as evidence in any separate or 76.19 subsequent action in any other forum, be it contractual, 76.20 administrative, or judicial, except proceedings provided for 76.21 under this chapter, regardless of whether the action involves 76.22 the same or related parties or involves the same facts. 76.23 Subd. 6. [REPRESENTATION; FEES.] (a) In any proceeding 76.24 under subdivision 1 or, 2, or 2a, an applicant or involved 76.25 employer may be represented by any agent. 76.26 (b) Except for services provided by an attorney-at-law, an 76.27 applicant shall not be charged fees, costs, or disbursements of 76.28 any kind in a proceeding before an unemployment law judge, the76.29 commissionera senior unemployment review judge, the Minnesota 76.30 Court of Appeals, or Supreme Court of Minnesota. 76.31 Subd. 7. [JUDICIAL REVIEW.] (a) The Minnesota Court of 76.32 Appeals shall, by writ of certiorari to the commissioner76.33 department, review the senior unemployment review judge's 76.34 decision of the commissionerunder subdivision 2 or order under 76.35 subdivision 2a, provided a petition for the writ is filed with 76.36 the court and a copy is served upon the senior unemployment 77.1 review judge or the commissioner and any other involved party 77.2 within 30 calendar days of the mailingsending of the 77.3 commissioner'ssenior unemployment review judge's decision under 77.4 subdivision 2 or order under subdivision 2a. 77.5 (b) Any employer petitioning for a writ of certiorari shall 77.6 pay to the court the required filing fee and upon the service of 77.7 the writ shall furnish a cost bond to the commissioner77.8 department in accordance with the Rules of Civil Appellate 77.9 Procedure. If the employer requests a written transcript of the 77.10 testimony received at the evidentiary hearing conducted pursuant 77.11 to subdivision 1, the employer shall pay to the commissioner77.12 department the cost of preparing the transcript. That money 77.13 shall be credited to the administration account. 77.14 (c) Upon issuance by the Minnesota Court of Appeals of a 77.15 writ of certiorari as a result of an applicant's petition, the 77.16 commissionerdepartment shall furnish to the applicant at no 77.17 cost a written transcript of theany testimony received at the 77.18 evidentiary hearing conducted pursuant to subdivision 1, and, if 77.19 requested, a copy of all exhibits entered into evidence. No 77.20 filing fee or cost bond shall be required of an applicant 77.21 petitioning the Minnesota Court of Appeals for a writ of 77.22 certiorari. 77.23 (d) The commissionerdepartment shall be considered the 77.24 primary responding party to any judicial action involving the77.25 commissioner'sa senior unemployment review judge's decision or 77.26 order. The commissionerdepartment may be represented by an 77.27 attorney who is an employee of the department designated by the77.28 commissioner for that purpose. 77.29 [EFFECTIVE DATE.] This section is effective August 1, 2004, 77.30 and applies to all decisions issued by the department on or 77.31 after that date. 77.32 Sec. 72. Minnesota Statutes 2002, section 268.115, 77.33 subdivision 5, is amended to read: 77.34 Subd. 5. [MAXIMUM AMOUNT OF EXTENDED UNEMPLOYMENT 77.35 BENEFITS.] The maximum amount of extended unemployment benefits 77.36 available to an applicant shall be 50 percent of the maximum 78.1 amount of regular unemployment benefits available in the benefit 78.2 year, rounded down to the next lower whole dollar. If the total 78.3 rate of unemployment computed under subdivision 1, clause 78.4 (2)(ii), equaled or exceeded eight percent, the maximum amount 78.5 of extended unemployment benefits available shall be 80 percent 78.6 of the maximum amount of regular unemployment benefits available 78.7 in the benefit year. 78.8 Sec. 73. Minnesota Statutes 2002, section 268.125, 78.9 subdivision 5, is amended to read: 78.10 Subd. 5. [MAXIMUM AMOUNT OF UNEMPLOYMENT BENEFITS.] The 78.11 maximum amount of additional unemployment benefits available in 78.12 the applicant's benefit year shall be one-half of the 78.13 applicant's maximum amount of regular unemployment benefits 78.14 available under section 268.07, subdivision 2, rounded down to 78.15 the next lower whole dollar. Extended unemployment benefits 78.16 paid and unemployment benefits paid under any federal law other 78.17 than regular unemployment benefits shall be deducted from the 78.18 maximum amount of additional unemployment benefits available. 78.19 Sec. 74. Minnesota Statutes 2002, section 268.135, 78.20 subdivision 1, is amended to read: 78.21 Subdivision 1. [DEFINITIONS.] For purposes of this section: 78.22 (1) "Affected employee" means an employee who was 78.23 continuously employed as a member of the affected group, for at 78.24 least six months, on a full-time basis, prior to submission of 78.25 the shared work plan. 78.26 (2) "Affected group" means five or more employees 78.27 designated by the employer to participate in a shared work plan. 78.28 (3) "Shared work plan" or "plan" means an employer's 78.29 writtenplan, submitted in a manner and format prescribed by the 78.30 commissioner, under which a group of employees whose normal 78.31 weekly hours of work are reduced, in order to prevent employees 78.32 from being laid off due to lack of work. 78.33 (4) "Normal weekly hours of work" means the number of hours 78.34 in a week that the employee normally would work for the shared 78.35 work employer or 40 hours, whichever is less. 78.36 Sec. 75. Minnesota Statutes 2002, section 268.135, 79.1 subdivision 2, is amended to read: 79.2 Subd. 2. [PARTICIPATION.] (a) An employer wishing to 79.3 participate in the shared work benefit program shall submit a 79.4 writtenshared work plan to the commissioner in a manner and 79.5 format prescribed for approval. The commissioner may approve a 79.6 shared work plan only if it: 79.7 (1) specifies the employees in the affected group; 79.8 (2) applies to only one affected group; 79.9 (3) includes a certified statement by the employer that 79.10 each employee specified in the affected group is an affected 79.11 employee; 79.12 (4) includes a certified statement by the employer that for 79.13 the duration of the plan the reduction in normal weekly hours of 79.14 work of the employees in the affected group is instead of 79.15 layoffs that otherwise would result in at least as large a 79.16 reduction in the total normal weekly hours of work; 79.17 (5) specifies an expiration date that is no more than one 79.18 year from the date the employer submits the plan for approval; 79.19 (6) specifies that fringe benefits, such as health and 79.20 retirement, available to the employees in the affected group are 79.21 not reduced beyond the percentage of reduction in hours of work; 79.22 and 79.23 (7) is approved in writing by the collective bargaining 79.24 agent for each collective bargaining agreement that covers any 79.25 employee in the affected group. 79.26 (b) The commissioner shall set the beginning and ending 79.27 dates of an approved shared work plan. 79.28 (c) The commissioner shall writtendetermination, by mail or electronic transmission, 79.30 approving or disapproving the plan within 15 calendar days of 79.31 its receipt. Determinations are final. 79.32 (d) Disapproval of a plan may be reconsidered at the 79.33 discretion of the commissioner. Approval of a shared work plan 79.34 may be revoked if the approval was based, in whole or in part, 79.35 upon information that was false or misleading. 79.36 Sec. 76. Minnesota Statutes 2002, section 268.135, 80.1 subdivision 4, is amended to read: 80.2 Subd. 4. [WEEKLY BENEFIT AMOUNT.] (a) An applicant who is 80.3 eligible for shared work benefits shall be paid an amount equal 80.4 to the regular weekly unemployment benefit amount multiplied by 80.5 the nearest full percentage of reduction of the applicant's 80.6 regular weekly hours of work as set in the plan. The benefit 80.7 payment, if not a whole dollar shall be rounded down to the next 80.8 lower whole dollar. 80.9 (b) The deductible earnings provisions of section 268.085, 80.10 subdivision 5, shall not apply to earnings from the shared work 80.11 employer of an applicant eligible for shared work benefits 80.12 unless the resulting amount would be less than the regular 80.13 weekly unemployment benefit amount the applicant would otherwise 80.14 be eligible for without regard to shared work benefits. 80.15 (c) An applicant shall not be eligible for shared work 80.16 benefits for any week that employment is performed for the 80.17 shared work employer in excess of the reduced hours set forth in 80.18 the plan. 80.19 Sec. 77. Minnesota Statutes 2002, section 268.145, 80.20 subdivision 1, is amended to read: 80.21 Subdivision 1. [NOTIFICATION.] (a) Upon filing an 80.22 application for unemployment benefits, the applicant shall be 80.23 informed that: 80.24 (1) unemployment benefits are subject to federal and state 80.25 income tax; 80.26 (2) there are requirements for filing estimated tax 80.27 payments; 80.28 (3) the applicant may elect to have federal income tax 80.29 withheld from unemployment benefits; 80.30 (4) if the applicant elects to have federal income tax 80.31 withheld, the applicant may, in addition, elect to have 80.32 Minnesota state income tax withheld; and 80.33 (5) at any time during the benefit year the applicant may 80.34 change a prior election. 80.35 (b) If an applicant elects to have federal income tax 80.36 withheld, the commissioner shall deduct ten percent for federal 81.1 income tax, rounded down to the nearestnext lower whole dollar. 81.2 If an applicant also elects to have Minnesota state income tax 81.3 withheld, the commissioner shall make an additional five percent 81.4 deduction for state income tax, rounded down to the next lower 81.5 whole dollar. Any amounts deducted or offset pursuant to 81.6 sections 268.155, 268.156, 268.18, and 268.184 have priority 81.7 over any amounts deducted under this section. Federal income 81.8 tax withholding has priority over state income tax withholding. 81.9 (c) An election to have income tax withheld shall not be 81.10 retroactive and shall only apply to unemployment benefits paid 81.11 after the election. 81.12 Sec. 78. Minnesota Statutes 2003 Supplement, section 81.13 268.18, subdivision 1, is amended to read: 81.14 Subdivision 1. [NONFRAUD OVERPAYMENT.] (a) Any applicant 81.15 who (1) by reason of the applicant's own mistake, or (2) because 81.16 of an error by any employee of the department, or (3) because of 81.17 a determination , redetermination,or amended determination 81.18 issued pursuant to section 268.07 or 268.101, or (4) because of 81.19 an appeal decision under section 268.105, has received any 81.20 unemployment benefits that the applicant was not entitled to, 81.21 shall promptly repay the unemployment benefits to the trust 81.22 fund. The commissioner shall, as soon as the overpayment is 81.23 discovered, determine the amount due and notify the applicant in81.24 writingto repay the unemployment benefits. 81.25 (b) Unless the applicant files an appeal within 30 calendar 81.26 days after the mailingsending of the determination of 81.27 overpayment to the applicant's last known addressapplicant by 81.28 mail or electronic transmission, the determination shall become 81.29 final. Proceedings on the appeal shall be conducted in 81.30 accordance with section 268.105. An applicant may not 81.31 collaterally attack, by way of an appeal to an overpayment 81.32 determination, any prior determination issued pursuant to 81.33 section 268.07 or 268.101, or decision issued pursuant to 81.34 section 268.105, that has become final. 81.35 (c) If the applicant fails to repay the unemployment 81.36 benefits determined overpaid under this subdivision, the 82.1 commissioner may offset from any future unemployment benefits 82.2 otherwise payable the amount of the overpayment. Except when 82.3 the overpayment resulted because the applicant failed to report 82.4 deductible earnings or deductible or benefit delaying payments, 82.5 no single offset shall exceed 50 percent of the amount of the 82.6 payment from which the offset is made. The overpayment may also 82.7 be collected by the same methods as delinquent taxespayments 82.8 from an employer. A determination of overpayment shall state 82.9 the methods of collection the commissioner may use to recover 82.10 the overpayment. 82.11 (d) If an applicant has been overpaid unemployment benefits 82.12 under the law of another state, due to a reason other than 82.13 fraud, and that state certifies that the applicant is liable 82.14 under its law to repay the unemployment benefits and requests 82.15 the commissioner to recover the overpayment, the commissioner 82.16 may offset from future unemployment benefits otherwise payable 82.17 the amount of overpayment, except that no single offset shall 82.18 exceed 50 percent of the amount of the payment from which the 82.19 offset is made. 82.20 (e) If under paragraph (c) or (d) the reduced unemployment 82.21 benefits as a result of a 50 percent offset is not a whole 82.22 dollar amount, it shall be rounded down to the next lower whole 82.23 dollar. 82.24 (f) Unemployment benefits paid for weeks more than three 82.25 years prior to the discovery of overpayment under this 82.26 subdivision are not overpaid unemployment benefits. 82.27 Sec. 79. Minnesota Statutes 2003 Supplement, section 82.28 268.18, subdivision 2, is amended to read: 82.29 Subd. 2. [OVERPAYMENT DUE TO FRAUD.] (a) Any applicant who 82.30 receives unemployment benefits by intentionally misrepresenting, 82.31 misstating, or failing to disclose any material fact, or who 82.32 makes a false statement or representation without a good faith 82.33 belief as to the correctness of the statement or representation, 82.34 has committed fraud. After the discovery of facts indicating 82.35 fraud, the commissioner shall make a writtendetermination that 82.36 the applicant obtained unemployment benefits by fraud and that 83.1 the applicant must promptly repay the unemployment benefits to 83.2 the trust fund. In addition, the commissioner shall assess a 83.3 penalty equal to 25 percent of the amount fraudulently 83.4 obtained. If the applicant had a prior overpayment due to 83.5 fraud, the commissioner shall, on the present overpayment, 83.6 assess a penalty equal to 50 percent of the amount fraudulently 83.7 obtained. This penalty is in addition to penalties under 83.8 section 268.182. 83.9 (b) Unless the applicant files an appeal within 30 calendar 83.10 days after the mailingsending of the determination of 83.11 overpayment by fraud to the applicant's last known address83.12 applicant by mail or electronic transmission, the determination 83.13 shall become final. Proceedings on the appeal shall be 83.14 conducted in accordance with section 268.105. 83.15 (c) If the applicant fails to repay the unemployment 83.16 benefits, penalty, and interest assessed, the commissioner shall 83.17 offset from future unemployment benefits otherwise payable the 83.18 total amount of overpaymentdue. The total due may also be 83.19 collected by the same methods as delinquent taxespayments from 83.20 an employer. A determination of overpayment by fraud shall 83.21 state the methods of collection the commissioner may use to 83.22 recover the overpayment. Money received in repayment of 83.23 fraudulently obtained unemployment benefits, penalties, and 83.24 interest shall first be applied to the unemployment benefits 83.25 overpaid, then to the penalty amount due, then to any interest 83.26 due. Payments made toward penalty and interest shall be 83.27 credited to the contingent account. 83.28 (d) If an applicant has been overpaid unemployment benefits 83.29 under the law of another state because of fraud and that state 83.30 certifies that the applicant is liable to repay the unemployment 83.31 benefits and requests the commissioner to recover the 83.32 overpayment, the commissioner may offset from future 83.33 unemployment benefits otherwise payable the amount of 83.34 overpayment. 83.35 (e) A determination of overpayment by fraud may only be 83.36 made at any timewithin four years of the effective date of the 84.1 benefit account from which the unemployment benefits were 84.2 fraudulently obtained. 84.3 Sec. 80. Minnesota Statutes 2002, section 268.18, 84.4 subdivision 2b, is amended to read: 84.5 Subd. 2b. [INTEREST.] (a) On any unemployment benefits 84.6 fraudulently obtained, and any penalty amounts assessed under 84.7 subdivision 2, the commissioner may assess interest at the rate 84.8 of 1-1/2 percent per month on any amount that remains unpaid 30 84.9 calendar days after the date of the determination of overpayment 84.10 by fraud. A determination of overpayment by fraud shall state 84.11 that interest shall be assessed. 84.12 (b) If this subdivision became effective after the date of 84.13 the determination, or the determination did not state that 84.14 interest shall be assessed, interest shall be assessed beginning 84.15 30 calendar days after writtennotification, by mail or 84.16 electronic transmission, to the applicant. 84.17 Sec. 81. Minnesota Statutes 2002, section 268.18, 84.18 subdivision 6, is amended to read: 84.19 Subd. 6. [COLLECTION OF OVERPAYMENTS.] (a) The 84.20 commissioner may not compromise the amount that has been 84.21 determined overpaid under this section including penalties and 84.22 interest. 84.23 (b) The commissioner shall have discretion regarding the 84.24 use of any method ofrecovery of any overpayment under 84.25 subdivision 1. Regardless of any law to the contrary, the 84.26 commissioner shall not be required to refer any amount 84.27 determined overpaid under subdivision 1 to a public or private 84.28 collection agency, including agencies of this state. 84.29 (c) Amounts determined overpaid under subdivision 1 shall 84.30 not be considered a "debt" to the state of Minnesota for 84.31 purposes of any reporting requirements to the commissioner of 84.32 finance. 84.33 (d) A pending appeal under section 268.105 shall not toll84.34 suspend the assessment of interest, penalties, or collection of 84.35 an overpayment under this section. 84.36 (e) Section 16A.626 applies to the repayment by an 85.1 applicant of any overpayment, penalty, or interest under this 85.2 section. 85.3 Sec. 82. Minnesota Statutes 2002, section 268.182, is 85.4 amended to read: 85.5 268.182 [APPLICANT'S FALSE REPRESENTATIONS; CONCEALMENT OF 85.6 FACTS; PENALTY.] 85.7 (a)Subdivision 1. [CRIMINAL PENALTIES.] Whoever obtains, 85.8 or attempts to obtain, or aids or abets any individual to obtain 85.9 by means of an intentional false statement or representation, by 85.10 intentional concealment of a material fact, or by impersonation 85.11 or other fraudulent means, unemployment benefits that the 85.12 individual is not entitled or unemployment benefits greater than 85.13 the individual is entitled under this chapter, or under the law 85.14 of any state or of the federal government, either personally or 85.15 for any other individual, is guilty of theft and shall be 85.16 sentenced pursuant to section 609.52. 85.17 (b)Subd. 2. [ADMINISTRATIVE PENALTIES.] Any individual 85.18 who intentionally makes a false statement or representation, who 85.19 intentionally fails to disclose a material fact, or who makes a 85.20 false statement or representation without a good faith belief as 85.21 to the correctness of the statement or representation, in order 85.22 to obtain or in an attempt to obtain unemployment benefits may 85.23 be assessed, in addition to any other penalties, an 85.24 administrative penalty of denial of unemployment benefits for 85.25 one to 52 weeks that the individual would otherwise be entitled 85.26 to unemployment benefits. A denial shall not apply to any week 85.27 more than two years after the week that the penalty was 85.28 determined. A writtendetermination of denial shall be mailed85.29 sent to the individual's last known addressindividual by mail 85.30 or electronic transmission. Unless an appeal is filed within 30 85.31 calendar days of mailingsending, the determination shall be 85.32 final. Proceeding on the appeal shall be conducted in 85.33 accordance with section 268.105. 85.34 Sec. 83. Minnesota Statutes 2002, section 268.184, is 85.35 amended to read: 85.36 268.184 [EMPLOYER MISCONDUCT; PENALTY.] 86.1 Subdivision 1. [ADMINISTRATIVE PENALTIES.] (a) If the 86.2 commissioner finds that any employer or any employee, officer, 86.3 or agent of any employer, is in collusion with any applicant for 86.4 the purpose of assisting the applicant to receive unemployment 86.5 benefits illegallyfraudulently, the employer shall be penalized 86.6 $500 or the amount of unemployment benefits determined to be 86.7 overpaid, whichever is greater. 86.8 (b) If the commissioner finds that any employer or any 86.9 employee, officer, or agent of an employer has made (1) a false 86.10 statement or representation knowing it to be false, or (2) has 86.11 made a false statement or representation without a good faith 86.12 belief as to correctness of the statement or representation, or 86.13 (3) who knowingly fails to disclose a material fact, to prevent 86.14 or reduce the payment of unemployment benefits to any applicant 86.15 or to reduce or prevent the effects of unemployment benefits86.16 paid on its tax or reimbursable accountavoid any payment 86.17 required from an employer under this chapter or section 116L.20, 86.18 the employer shall be penalized $500, or 50 percent of the 86.19 reduced unemployment benefits or payment required, whichever is 86.20 greater. 86.21 (c) If the commissioner finds that an employer failed or 86.22 refused to honor a subpoena issued under section 268.105, 86.23 subdivision 4, or section 268.188, the employer shall be 86.24 penalized $500 and any costs of enforcing the subpoena, 86.25 including attorney fees. 86.26 (d) Penalties under this section shall be in addition to 86.27 any other penalties and subject to the same collection 86.28 procedures that apply to past due taxes. Penalties shall be 86.29 paid to the department within 30 calendar days of assessment and 86.30 credited to the contingent account. 86.31 (d)(e) The assessment of the penalty shall be final unless 86.32 the employer files an appeal within 30 calendar days after the 86.33 sending of notice of the penalty to the employer by mail or 86.34 electronic transmission. Proceedings on the appeal shall be 86.35 conducted in accordance with section 268.105. 86.36 (e)Subd. 2. [CRIMINAL PENALTIES.] Any employer or any 87.1 officer or agent of an employer or any other individual who 87.2 makes a false statement or representation knowing it to be 87.3 false, or who knowingly fails to disclose a material fact to 87.4 avoid or reduce any payment required from an employer under this 87.5 chapter or section 116L.20, or to prevent or reduce the payment 87.6 of unemployment benefits to any applicant, is guilty of a gross 87.7 misdemeanor unless the unemployment benefitunderpayment exceeds 87.8 $500, in that case the individual is guilty of a felony. 87.9 Sec. 84. Minnesota Statutes 2003 Supplement, section 87.10 268.186, is amended to read: 87.11 268.186 [RECORDS; AUDITS.] 87.12 (a) Each employer shall keep true and accurate records for 87.13 the periods of time and containing the information the 87.14 commissioner may require. For the purpose of administering this 87.15 chapter, the commissioner has the power to audit, examine, or 87.16 cause to be supplied or copied, any books, correspondence, 87.17 papers, records, or memoranda that are relevant, whether the 87.18 books, correspondence, papers, records, or memoranda are the 87.19 property of or in the possession of the employer or any other 87.20 person at any reasonable time and as often as may be necessary. 87.21 (b) Any employer that refuses to allow an audit of its 87.22 records by the department, or that fails to make all necessary 87.23 records available for audit in Minnesota upon request of the 87.24 commissioner, may be assessed an administrative penalty of 87.25 $500. The penalty collected shall be credited to the 87.26 administration account to be used by the commissioner to ensure 87.27 integrity in the administration of the unemployment insurance 87.28 program. 87.29 (c) The commissioner may make summaries, compilations, 87.30 photographs, duplications, or reproductions of any records, or 87.31 reports that the commissioner considers advisable for the 87.32 preservation of the information contained therein. Any 87.33 summaries, compilations, photographs, duplications, or 87.34 reproductions shall be admissible in any proceeding under this 87.35 chapter. The commissioner may duplicate records, reports, 87.36 summaries, compilations, instructions, determinations, or any 88.1 other written or recorded matter pertaining to the 88.2 administration of this chapter. 88.3 (c)(d) Regardless of any law to the contrary, the 88.4 commissioner may provide for the destruction of any records, 88.5 reports, or reproductions thereof, or other papers , that are88.6 more than two years old, andthat are no longer necessary for88.7 determining employer liability or an applicant's unemployment88.8 benefit rights orfor the administration of this chapter, 88.9 including any required audit. In addition, the commissioner may 88.10 provide for the destruction or disposition of any record, 88.11 report, or other paper from which the information has been 88.12 electronically captured and stored, or that has been 88.13 photographed, duplicated, or reproduced. 88.14 Sec. 85. Minnesota Statutes 2003 Supplement, section 88.15 268.19, subdivision 2, is amended to read: 88.16 Subd. 2. [EMPLOYER INFORMATION; ABSOLUTE PRIVILEGE.] (a) 88.17 Regardless of any provision of law to the contrary, an employer 88.18 may provide the commissioner with information on an applicant so 88.19 that the commissioner can determine an applicant's entitlement 88.20 to unemployment benefits under the Minnesota Unemployment 88.21 Insurance Law. 88.22 (b) The commissioner may disseminate any employer's name 88.23 and address and the name and address of any employer's 88.24 unemployment insurance processing agent in order to administer 88.25 the Minnesota unemployment insurance program. 88.26 (c) Information obtained pursuant to the Minnesota 88.27 Unemployment Insurance Law, in order to determine an applicant's 88.28 entitlement to unemployment benefits, shall be absolutely 88.29 privileged and shall not be made the subject matter or the basis 88.30 for any civil proceeding, administrative, or judicial. 88.31 Sec. 86. [REVISOR'S INSTRUCTION.] 88.32 The revisor of statutes shall renumber Minnesota Statutes, 88.33 section 268.022, as Minnesota Statutes, section 116L.20. 88.34 The revisor of statutes shall change the terms "evinces" 88.35 and "demonstrates" to "displays clearly" wherever they appear in 88.36 Minnesota Statutes, chapter 268.