1st Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to employment; modifying provisions relating 1.3 to reemployment insurance; amending Minnesota Statutes 1.4 1994, sections 268.04, subdivision 10; 268.06, 1.5 subdivisions 3a, 18, 19, 20, and 22; 268.08, 1.6 subdivision 6, and by adding a subdivision; 268.10, 1.7 subdivision 2; 268.12, subdivision 12; 268.16, 1.8 subdivisions 3a, 6, and by adding a subdivision; 1.9 268.161, subdivisions 8 and 9; 268.162, subdivision 2; 1.10 268.163, subdivision 3; 268.164, subdivision 3; 1.11 268.18, subdivisions 1, 2, 3, and 6; 270A.09, 1.12 subdivision 1a; 352.01, subdivision 2b; 352.22, 1.13 subdivision 10; and 574.26, subdivision 1; proposing 1.14 coding for new law in Minnesota Statutes, chapter 268; 1.15 repealing Minnesota Statutes 1994, sections 268.10, 1.16 subdivisions 3, 4, 5, 6, 7, 8, 9, and 10; and 268.12, 1.17 subdivisions 9, 10, and 13. 1.18 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.19 Section 1. Minnesota Statutes 1994, section 268.04, 1.20 subdivision 10, is amended to read: 1.21 Subd. 10. [EMPLOYER.] "Employer" means: (1) Any employing 1.22 unit which,
for some portion of a day, in each of 20 different1.23 weeks, whether or not such weeks are or were consecutive, and1.24 whether or not all of such weeks of employment are or were1.25 within the state within either the current or preceding calendar1.26 year, has or had in employment one or more individuals1.27 (irrespective of whether the same individual or individuals were1.28 employed in each such day) or in any calendar quarter in either1.29 the current or preceding calendar year paid $1,500 or more for1.30 services in employment,after December 31, 1995, has one or more 1.31 individuals performing services in employment for which there 2.1 were wages paid, within either the current or preceding calendar 2.2 year, except as provided in clause (18)(17) of this 2.3 subdivision; 2.4 (2) Any employing unit (whether or not an employing unit at 2.5 the time of acquisition) which acquired the organization, trade, 2.6 or business, or substantially all of the assets thereof, of 2.7 another employing unit which at the time of such acquisition was 2.8 an employer subject to this law; or which acquired a part of the 2.9 organization, trade, or business of another employing unit which 2.10 at the time of such acquisition was an employer subject to this 2.11 law; 2.12 (3) For purposes of clause (1), employment shall include 2.13 service which would constitute employment but for the fact that 2.14 such service is deemed to be performed entirely within another 2.15 state pursuant to an election under an arrangement entered into 2.16 (in accordance with section 268.13, subdivision 1) by the 2.17 commissioner and an agency charged with the administration of 2.18 any other state or federal unemployment compensation law; 2.19 (4) For purposes of clause (1), if any week includes both2.20 December 31 and January 1, the days of that week up to January 12.21 shall be deemed one calendar week and the days beginning January2.22 1 another such week;2.23 (5)Any employing unit which acquired the organization, 2.24 trade, or business, or substantially all the assets thereof, of 2.25 another employing unit, and which, if treated as a single unit 2.26 with such other employing unit, would be an employer under 2.27 clause (1); 2.28 (6)(5) Any employing unit which, together with one or more 2.29 other employing units, is owned or controlled (by legally 2.30 enforceable means or otherwise) directly or indirectly by the 2.31 same interests, or which owns or controls one or more other 2.32 employing units (by legally enforceable means or otherwise) and 2.33 which, if treated as a single unit with such other employing 2.34 units or interests or both, would be an employer under clause 2.35 (1), except as provided in clause (18)(17); 2.36 (7)(6) Any joint venture composed of one or more employers 3.1 as otherwise defined herein; 3.2 (8)(7) Any nonresident employing unit which employs within 3.3 this state one or more employees for one or more weeks; 3.4 (9)(8) Any employing unit for which service in employment, 3.5 as defined in subdivision 12, clause (9), is performed; 3.6 (10)(9) Any employing unit which, having become an 3.7 employer under the preceding clauses or 3.8 clause (14), (15), or (16) or (17), has not, under section 3.9 268.11, ceased to be an employer subject to these sections; 3.10 (11)(10) For the effective period of its election pursuant 3.11 to section 268.11, subdivision 3, any other employing unit which 3.12 has elected to become subject to sections 268.03 to 268.231; 3.13 (12)(11) Notwithstanding any inconsistent provisions of 3.14 sections 268.03 to 268.231, any employing unit not an employer 3.15 by reason of any other clause of this subdivision for which 3.16 service is performed with respect to which such employing unit 3.17 is liable for any federal tax against which credit may be taken 3.18 for contributions required to be paid into a state unemployment 3.19 compensation fund or which, as a condition for the approval of 3.20 this law for full tax credit against the tax imposed by the 3.21 federal unemployment tax act, is required pursuant to such act, 3.22 to be an "employer" under the law; 3.23 (13)(12) Except as provided in clause (12)(11), and 3.24 notwithstanding any other provisions of sections 268.03 to 3.25 268.231, no employing unit shall be initially determined a 3.26 subject employer on the basis of covered employment performed 3.27 more than four years prior to the year in which such 3.28 determination is made, unless the commissioner finds that the 3.29 records of such employment experience were fraudulently 3.30 concealed or withheld for the purpose of escaping liability 3.31 under said sections; 3.32 (14)(13) Any employing unit for which service in 3.33 employment, as defined in subdivision 12, clause (7), is 3.34 performed; 3.35 (15)(14) Any employing unit for which service in 3.36 employment as defined in subdivision 12, clause (8) is 4.1 performed; 4.2 (16)(15) Any employing unit for which agricultural labor 4.3 as defined in subdivision 12, clause (13) is performed; 4.4 (17)(16) Any employing unit for which domestic service in 4.5 employment as defined in subdivision 12, clause (14) is 4.6 performed; 4.7 (18)(17) (a) In determining whether or not an employing 4.8 unit for which domestic service and other than domestic service 4.9 is performed is an employer under clause (1) or (6)(5), the 4.10 wages earned or the employment of an employee performing 4.11 domestic service shall not be taken into account. 4.12 (b) In determining whether or not an employing unit for 4.13 which agricultural labor and other than agricultural labor is 4.14 performed is an employer under clause (1), (9)(8) or (17)(16), 4.15 the wages earned or the employment of an employee performing 4.16 service in agricultural labor after December 31, 1977 shall not 4.17 be taken into account. If an employing unit is an employer of 4.18 agricultural labor the determination of whether it is an 4.19 "employer" shall be governed by clause (1). 4.20 Sec. 2. [268.041] [DETERMINATIONS OF COVERAGE.] 4.21 An official, designated by the commissioner, upon the 4.22 commissioner's own motion or upon application of an employing 4.23 unit, shall determine if an employing unit is an employer within 4.24 the meaning of this chapter or as to whether services performed 4.25 for it constitute employment within the meaning of this chapter, 4.26 or whether the remuneration for services constitutes wages as 4.27 defined in section 268.04, subdivision 25, and shall notify the 4.28 employing unit of the determination. The determination shall be 4.29 final unless the employing unit, within 30 days after the 4.30 mailing of notice of the determination to the employing unit's 4.31 last known address, files a written appeal from it. Proceedings 4.32 on the appeal shall be conducted in accordance with section 4.33 268.105. 4.34 Sec. 3. Minnesota Statutes 1994, section 268.06, 4.35 subdivision 3a, is amended to read: 4.36 Subd. 3a. [RATE FOR NEW EMPLOYERS.] Notwithstanding the 5.1 provisions of subdivision 2, each employer, who becomes subject 5.2 to this law, shall pay contributions at a rate: 5.3 (a) Not exceeding 5-4/10 percent, that is the higher of (1) 5.4 one percent and (2) the state's five-year benefit cost rate for 5.5 the 60 consecutive month period immediately preceding July 1 of 5.6 each year for each employer, except employers in the 5.7 construction industry. For purposes of this clause, the state's 5.8 five-year benefit cost rate shall be computed annually and shall 5.9 be derived by dividing the total dollar amount of benefits paid 5.10 to claimants under this law during the 60 consecutive calendar 5.11 months immediately preceding July 1 of each year by the total 5.12 dollar amount of wages subject to contributions under this law 5.13 during the same period. The rate so determined shall be 5.14 applicable for the calendar year next succeeding each 5.15 computation date. 5.16 (b) Each employer in the construction industry who becomes 5.17 subject to this chapter shall pay contributions at a rate, not 5.18 exceeding the maximum contribution rate for all employers as 5.19 provided under subdivision 8, that is the higher of (1) one 5.20 percent, or (2) the state's five-year benefit cost rate for 5.21 construction employers for the 60 consecutive month period 5.22 immediately preceding July 1 of each year. For purposes of this 5.23 clause, the state's five-year benefit cost rate shall be 5.24 computed annually and shall be derived by dividing the total 5.25 dollar amount of benefits paid to claimants of construction 5.26 employers during the 60 consecutive calendar months immediately 5.27 preceding July 1 of each year by the total dollar amount of 5.28 wages of construction employers subject to contributions during 5.29 the same period. The rate so determined shall be applicable for 5.30 the calendar year next succeeding each computation date. 5.31 For purposes of this subdivision an employer is in the 5.32 construction industry if assigned an industrial classification 5.33 within division C of the Standard Industrial Classification 5.34 Manual issued by the United States Office of Management and 5.35 Budget as determined by the tax branch of the department, except 5.36 as excluded by rules adopted by the commissioner. 6.1 Sec. 4. Minnesota Statutes 1994, section 268.06, 6.2 subdivision 18, is amended to read: 6.3 Subd. 18. [NOTICE TO EMPLOYER.] The commissioner shall 6.4 mail to the last known address of each employer a quarterly 6.5 notice of the benefits which have been charged to the employer's 6.6 account, as determined by the department. Unless reviewed in 6.7 the manner hereinafter provided, charges set forth in such 6.8 notice, or as modified by a redetermination, a decision of a 6.9 refereereemployment insurance judge, or the commissioner, shall 6.10 be final and shall be used in determining the contribution rates 6.11 for all years in which the charges occur within the employer's 6.12 experience period and shall not be subject to collateral attack 6.13 by way of review of a rate determination, application for 6.14 adjustment or refund, or otherwise. 6.15 Sec. 5. Minnesota Statutes 1994, section 268.06, 6.16 subdivision 19, is amended to read: 6.17 Subd. 19. [NOTICE OF RATE.] The commissioner shall mail to 6.18 the last known address of each employer notice of the employer's 6.19 contribution rate as determined for any calendar year pursuant 6.20 to this section. Such notice shall contain the contribution 6.21 rate, factors used in determining the individual employer's 6.22 experience rating, and such other information as the 6.23 commissioner may prescribe. Unless changed by the procedure 6.24 provided in this subdivision, the assigned rate as initially 6.25 determined or as changed by a redetermination by the tax branch 6.26 of this department, a decision of a refereereemployment 6.27 insurance judge, or the commissioner shall be final except for 6.28 fraud and shall be the rate upon which contributions shall be 6.29 computed for the calendar year for which such rate was assigned, 6.30 and shall not be subject to collateral attack for any errors, 6.31 clerical or otherwise, whether by way of claim for adjustment or 6.32 refund, or otherwise. If the legislature changes any of the 6.33 factors used to determine the contribution rate of any employer 6.34 for any year subsequent to the original mailing of such notice 6.35 for the year, the earlier notice shall be void. The notice 6.36 based on the new factors shall be deemed to be the only notice 7.1 of rate of contributions for that year and shall be subject to 7.2 the same finality, redetermination, and review procedures as 7.3 provided above. 7.4 Sec. 6. Minnesota Statutes 1994, section 268.06, 7.5 subdivision 20, is amended to read: 7.6 Subd. 20. [PROTEST, REVIEW, REDETERMINATION, APPEAL.] A 7.7 review of the charges made to an employer's account as set forth 7.8 in the notice of charges referred to in subdivision 18 and a 7.9 review of an employer's contribution rate as set forth in the 7.10 notice of the employer's rate for any calendar year as provided 7.11 in subdivision 19, may be had by the employer by filing with the 7.12 commissioner a written protest setting forth reasons therefor 7.13 within 30 days from the date of the mailing of the notice of 7.14 charges or contribution rate to the employer. The date shall 7.15 appear on the notice. Upon receipt of the protest, the 7.16 commissioner shall refer the matter to an official designated by 7.17 the commissioner to review the charges appearing on the notice 7.18 appealed from or the computations of the protesting employer's 7.19 rate, as the case may be, to determine whether or not there has 7.20 been any clerical error or error in computation in either case. 7.21 The official shall either affirm or make a redetermination 7.22 rectifying the charges or rate as the case may be, and a notice 7.23 of the affirmation or redetermination shall immediately be 7.24 mailed to the employer. If the employer is not satisfied with 7.25 the affirmation or redetermination, the employer may appeal by 7.26 filing a written notice with the department within ten days 7.27 after the date of mailing appearing upon the 7.28 redetermination. Upon the receipt of the appeal, the7.29 commissioner shall refer the matter to a referee for a hearing7.30 and after opportunity for a fair hearing, the referee shall7.31 affirm, modify, or set aside the original determination with its7.32 affirmation or the redetermination, as appears just and proper.7.33 Proceedings on the appeal shall be conducted in accordance with 7.34 section 268.105. The commissioner may at any time upon the 7.35 commissioner's own motion correct any clerical error of the 7.36 department resulting in charges against an employer's account or 8.1 any error in the computation or the assignment of an employer's 8.2 contribution rate. The referee may order the consolidation of8.3 two or more appeals whenever, in the referee's judgment,8.4 consolidation will not be prejudicial to any interested party.8.5 At any hearing a written report of any employee of the8.6 department which has been authenticated shall be admissible in8.7 evidence. Appeals from the decision of the referee shall be8.8 provided by section 268.10, subdivision 5.8.9 Sec. 7. Minnesota Statutes 1994, section 268.06, 8.10 subdivision 22, is amended to read: 8.11 Subd. 22. [EMPLOYMENT EXPERIENCE RECORD TRANSFER.] (a) 8.12 When an employing unit succeeds to or acquires the organization, 8.13 trade or business or substantially all the assets of another 8.14 employing unit which at the time of the acquisition was an 8.15 employer subject to this law, and continues such organization, 8.16 trade or business, the experience rating record of the 8.17 predecessor employer shall be transferred as of the date of 8.18 acquisition to the successor employer for the purpose of rate 8.19 determination. 8.20 (b) When an employing unit succeeds to or acquires a 8.21 distinct severable portion of the organization, trade, business, 8.22 or assets which is less than substantially all of the employing 8.23 enterprises of another employing unit, the successor employing 8.24 unit shall acquire the experience rating record attributable to 8.25 the portion to which it has succeeded, and the predecessor 8.26 employing unit shall retain the experience rating record 8.27 attributable to the portion which it has retained, if (1) the 8.28 successor continues the organization, trade, or business of the 8.29 portion acquired, (2) the successor makes a written request to 8.30 file an application for the transfer of the experience rating 8.31 record for the severable portion acquired from the predecessor 8.32 (3) and within 90 days from the date the application is mailed 8.33 to the last known address of the successor the successor and 8.34 predecessor employing units jointly sign and file a properly 8.35 completed, written application as prescribed by the commissioner 8.36 that furnishes the commissioner with sufficient information to 9.1 substantiate the severable portion and to assign the appropriate 9.2 total and taxable wages and benefit charges to the successor for 9.3 experience rating purposes. Previously assigned contribution 9.4 rates that have become final in accordance with subdivision 19 9.5 prior to the filing of the written request to file an 9.6 application shall not be affected by the transfer. 9.7 (c) Employment with a predecessor employer shall not be 9.8 deemed to have been terminated if similar employment is offered 9.9 by the successor employer and accepted by the employee. 9.10 (d) An official, designated by the commissioner, upon the 9.11 official's own motion or upon application of an employing unit 9.12 shall determine if an employing unit is a successor within the 9.13 meaning of this subdivision and shall mail notice of such 9.14 determination to the last known address of the employing unit. 9.15 The determination shall be final unless a written appeal is 9.16 filed by the employing unit within 30 days after mailing of the 9.17 notice of determination. Proceedings on the appeal shall 9.18 be conducted in accordance with section 268.12, subdivision 139.19 268.105. 9.20 (e) Notwithstanding subdivision 19, the commissioner may, 9.21 as the result of any determination or decision regarding 9.22 succession or nonsuccession, recompute the rate of all employers 9.23 affected by the determination or decision for any year, 9.24 including the year of the acquisition or succession and 9.25 subsequent years, that is affected by the transfer or 9.26 nontransfer of part or all of the experience rating record under 9.27 this subdivision. This paragraph does not apply to rates that 9.28 have become final in accordance with subdivision 19 prior to the 9.29 filing of a written request to file an application for the 9.30 transfer of a severable portion of the experience rating record 9.31 as provided in paragraph (b). 9.32 Sec. 8. Minnesota Statutes 1994, section 268.08, is 9.33 amended by adding a subdivision to read: 9.34 Subd. 5a. [SELF-EMPLOYMENT.] (a) An individual who is 9.35 determined to be likely to exhaust regular reemployment 9.36 insurance benefits and is enrolled in a dislocated worker 10.1 program shall be considered in approved training for purposes of 10.2 this chapter for each week the individual is engaged on a 10.3 full-time basis in activities, including training, relating to 10.4 the establishment of a business and becoming self-employed. An 10.5 individual who meets the requirements of this subdivision shall 10.6 be considered unemployed for purposes of this chapter. Income 10.7 earned from the self-employment activity shall not be considered 10.8 for purposes of section 268.07, subdivision 2, paragraph (g). 10.9 Under no circumstances shall more than five percent of the 10.10 number of individuals receiving regular reemployment insurance 10.11 benefits be actively enrolled in this program at any time. This 10.12 subdivision shall not apply to persons claiming state or federal 10.13 extended or additional benefits. 10.14 (b) This subdivision shall apply to weeks beginning after 10.15 the date of enactment or weeks beginning after approval of this 10.16 subdivision by the United States Department of Labor whichever 10.17 date is later. This subdivision shall have no force or effect 10.18 for any purpose as of the end of the week preceding the date 10.19 when federal law no longer authorizes the provisions of this 10.20 subdivision, unless such date is a Saturday in which case this 10.21 subdivision shall have no force and effect for any purpose as of 10.22 that date. 10.23 Sec. 9. Minnesota Statutes 1994, section 268.08, 10.24 subdivision 6, is amended to read: 10.25 Subd. 6. [SERVICES PERFORMED FOR STATE, MUNICIPALITIES, OR 10.26 CHARITABLE CORPORATION.] Benefits based on service in employment 10.27 defined in section 268.04, subdivision 12, clauses (7), (8) and 10.28 (9), are payable in the same amount, on the same terms and 10.29 subject to the same conditions as benefits payable on the basis 10.30 of other service subject to this chapter; except that: 10.31 (a) Benefits based upon service performed in an 10.32 instructional, research, or principal administrative capacity 10.33 for an educational institution, or any other educational service10.34 agency as defined in section 3304(a)(6)(A)(IV) of the Federal10.35 Unemployment Tax Act,shall not be paid for any week of 10.36 unemployment commencing during the period between two successive 11.1 academic years or terms, or during a similar period between two 11.2 regular but not successive terms, or during a period of paid 11.3 sabbatical leave provided for in the individual's contract, to 11.4 any individual if the individual performs the services in the 11.5 first of the academic years or terms and if there is a contract 11.6 or a reasonable assurance that the individual will perform 11.7 services in any such capacity for an educational institution in 11.8 the second of the academic years or terms; 11.9 (b) With respect to service performed in any capacity other 11.10 than those capacities described in clause (a) of this 11.11 subdivision, including instructional assistants, for an 11.12 educational institution, benefits shall not be paid on the basis 11.13 of these services to any individual for any week which commences 11.14 during a period between two successive academic years or terms 11.15 if the individual performs the services in the first of the 11.16 academic years or terms and there is a reasonable assurance that 11.17 the individual will perform the services in the second of the 11.18 academic years or terms. An individual who has an agreement for 11.19 a definite period of employment between academic years or terms 11.20 shall be eligible for any weeks within that period the 11.21 educational institution fails to provide employment. If 11.22 benefits are denied to any individual under this clause and the 11.23 individual was not offered an opportunity to perform the 11.24 services in the second of the academic years or term, the 11.25 individual shall be entitled to a retroactive payment of 11.26 benefits for each week in which the individual filed a timely 11.27 claim for benefits, but the claim was denied solely because of 11.28 this clause; 11.29 (c) With respect to services described in clause (a) or 11.30 (b), benefits payable on the basis of the services shall not be 11.31 paid to any individual for any week which commences during an 11.32 established and customary vacation period or holiday recess if 11.33 the individual performs the services in the period immediately 11.34 before the vacation period or holiday recess, and there is a 11.35 reasonable assurance that the individual will perform the 11.36 services in the period immediately following the vacation period 12.1 or holiday recess; 12.2 (d) With respect to services described in clause (a) or 12.3 (b), benefits shall not be payable on the basis of services in 12.4 any capacity specified in clauses (a), (b), and (c) to any 12.5 individual who performed those services in an educational 12.6 institution while in the employ of an educational service 12.7 agency. For purposes of this clause, "educational service 12.8 agency" means a governmental agency or governmental entity which 12.9 is established and operated exclusively for the purpose of 12.10 providing services to one or more educational institutions; and 12.11 (e) With respect to services to state and local government, 12.12 or nonprofit organizations covered by section 501(c)(3) of the 12.13 Internal Revenue Code of 1986, as amended through December 31, 12.14 1992, if services are provided to or on behalf of an educational 12.15 institution, benefits must be denied under the same 12.16 circumstances as described in clauses (a) to (d). 12.17 Sec. 10. Minnesota Statutes 1994, section 268.10, 12.18 subdivision 2, is amended to read: 12.19 Subd. 2. [EXAMINATION OF CLAIMS; DETERMINATION; APPEAL.] 12.20 (1) An official, designated by the commissioner, shall promptly 12.21 examine each claim for benefits filed to establish a benefit 12.22 year pursuant to this section, and, on the basis of the facts 12.23 found, shall determine whether or not such claims are valid, and 12.24 if valid, the weekly benefit amount payable, the maximum benefit 12.25 amount payable during the benefit year, and the date the benefit 12.26 year terminates, and this determination shall be known as the 12.27 determination of validity. Notice of the determination of 12.28 validity or any redetermination as provided for in clause (4) 12.29 shall be promptly given the claimant and all other interested 12.30 parties. If within the time specified for the filing of a 12.31 protest as provided in subdivision 1, the employer makes an 12.32 allegation of disqualification or raises an issue of the 12.33 chargeability to the employer's account of benefits that may be 12.34 paid on such claim, if the claim is valid, the issue thereby 12.35 raised shall be promptly determined by said official and a 12.36 notification of the determination delivered or mailed to the 13.1 claimant and the employer. If an initial determination or a 13.2 referee'sreemployment insurance judge's decision or the 13.3 commissioner's decision awards benefits, the benefits shall be 13.4 paid promptly regardless of the pendency of any appeal period or 13.5 any appeal or other proceeding which may thereafter be taken. 13.6 Except as provided in clause (6), if a referee'sreemployment 13.7 insurance judge's decision modifies or reverses an initial 13.8 determination awarding benefits, or if a commissioner's decision 13.9 modifies or reverses an appeala reemployment insurance judge's 13.10 decision awarding benefits, any benefits paid under the award of 13.11 such initial determination or referee'sreemployment insurance 13.12 judge's decision shall be deemed erroneous payments. 13.13 (2) At any time within 24 months from the date of the 13.14 filing of a valid claim for benefits by an individual, an 13.15 official of the department or any interested party or parties 13.16 raises an issue of claimant's eligibility for benefits for any 13.17 week or weeks in accordance with the requirements of the 13.18 provisions of sections 268.03 to 268.231 or any official of the 13.19 department or any interested party or parties or benefit year 13.20 employer raises an issue of disqualification in accordance with 13.21 the rules of the commissioner, a determination shall be made 13.22 thereon and a written notice thereof shall be given to the 13.23 claimant and such other interested party or parties or benefit 13.24 year employer. A determination issued under this clause which 13.25 denies benefits for weeks for which the claimant has previously 13.26 been paid benefits is an overpayment of those benefits subject 13.27 to section 268.18. 13.28 (3) A determination issued pursuant to clauses (1) and (2) 13.29 shall be final unless ana written appeal therefrom is filed by 13.30 a claimant or employer within 15 days after the mailing of the 13.31 notice of the determination to the last known address or 13.32 personal delivery of the notice. Every notice of determination 13.33 shall contain a prominent statement indicating in clear language 13.34 the method of appealing the determination, the time within which 13.35 such an appeal must be made, and the consequences of not 13.36 appealing the determination. A timelyAn interested party may 14.1 appeal from a determination of validity in whichissued pursuant 14.2 to clause (1) on the issue isof whether an employing unit is an 14.3 employer within the meaning of this chapter or whether services 14.4 performed for an employer constitute employment within the 14.5 meaning of this chapter shall be subject to the provisions of14.6 section 268.12, subdivision 13. Proceedings on the appeal shall 14.7 be conducted in accordance with section 268.105. 14.8 (4) At any time within 24 months from the date of the 14.9 filing of a valid claim for benefits by an individual, the 14.10 commissioner on the commissioner's own motion may reconsider a 14.11 determination of validity made thereon and make a 14.12 redetermination thereof on finding that an error in computation 14.13 or identity or the crediting of wage credits has occurred in 14.14 connection therewith or if the determination was made as a 14.15 result of a nondisclosure or misrepresentation of a material 14.16 fact. A determination or redetermination issued under this 14.17 clause which denies benefits for weeks for which the claimant 14.18 has previously been paid benefits is an overpayment of those 14.19 benefits subject to section 268.18. 14.20 (5) However, the commissioner may refer any disputed claims 14.21 directly to a refereereemployment insurance judge for hearing 14.22 and determinationdecision in accordance with the procedure14.23 outlined in subdivision 3section 268.105 and the effect and 14.24 status of such determinationdecision in such a case shall be 14.25 the same as though the matter had been determined upon an appeal 14.26 to the tribunalfrom an initial determination. 14.27 (6) If a referee'sreemployment insurance judge's decision 14.28 affirms an initial determination awarding benefits or the 14.29 commissioner affirms a referee'sreemployment insurance judges's 14.30 decision awarding benefits, the decision, if finally reversed, 14.31 shall result in a disqualification only for weeks following the 14.32 week in which the decision reversing the award of benefits was 14.33 issued and benefits paid for that week and previous weeks shall 14.34 neither be deemed overpaid nor shall they be considered in 14.35 determining any individual employer's future contribution rate 14.36 under section 268.06. 15.1 Sec. 11. [268.105] [APPEAL; HEARING.] 15.2 Subdivision 1. [HEARING.] Upon appeal the department shall 15.3 set a time and place for a de novo hearing and give the 15.4 interested parties written notice of it, by mail, not less than 15.5 ten days prior to the time of the hearing. The commissioner 15.6 shall by rule adopt a procedure by which reemployment insurance 15.7 judges hear and decide appeals, subject to further appeal to the 15.8 commissioner. The rules need not conform to common law or 15.9 statutory rules of evidence and other technical rules of 15.10 procedure. The written report of any employee of the department 15.11 of economic security, except a determination, made in the 15.12 regular course of the performance of the employee's duties, 15.13 shall be competent evidence of the facts contained in it. After 15.14 the conclusion of the hearing, upon the evidence presented, the 15.15 reemployment insurance judge shall mail findings of fact and 15.16 decision to all interested parties. The reemployment insurance 15.17 judge's decision is final unless a further appeal is filed 15.18 pursuant to subdivision 3. 15.19 Subd. 2. [REEMPLOYMENT INSURANCE JUDGES.] The commissioner 15.20 shall designate one or more impartial reemployment insurance 15.21 judges to conduct hearings on appeals. The commissioner or 15.22 authorized representative may personally hear or transfer to 15.23 another reemployment insurance judge any proceedings pending 15.24 before a reemployment insurance judge. Any proceedings removed 15.25 to the commissioner or authorized representative shall be heard 15.26 in accordance with subdivision 1. 15.27 Subd. 3. [COMMISSIONER REVIEW.] Within 30 days after 15.28 mailing of the reemployment insurance judge's decision, an 15.29 interested party may appeal in writing and obtain a review by 15.30 the commissioner or an authorized representative. The 15.31 commissioner within the same period of time may on the 15.32 commissioner's own motion order a review of a decision. Upon 15.33 review, the commissioner or authorized representative shall, on 15.34 the basis of the evidence submitted at the hearing before the 15.35 reemployment insurance judge, make findings of fact and 15.36 decision, or remand the matter back to the reemployment 16.1 insurance judge for the taking of additional evidence and new 16.2 findings and decision based on all the evidence. The 16.3 commissioner may disregard the findings of fact of the 16.4 reemployment insurance judge and examine the evidence and make 16.5 any findings of fact as the evidence may, in the judgment of the 16.6 commissioner require, and make any decision as the facts found 16.7 by the commissioner require. The commissioner shall mail to all 16.8 interested parties the findings of fact and decision. The 16.9 decision of the commissioner is final unless judicial review is 16.10 sought as provided by subdivision 7. 16.11 Subd. 4. [TESTIMONIAL POWERS.] In the discharge of the 16.12 duties imposed by this section, the reemployment insurance 16.13 judge, the commissioner, or authorized representative, may 16.14 administer oaths and affirmations, take depositions, certify to 16.15 official acts, and issue subpoenas to compel the attendance of 16.16 witnesses and the production of books, papers, correspondence, 16.17 memoranda, and other records deemed necessary as evidence in 16.18 connection with the subject matter of the hearing. The 16.19 subpoenas shall be enforceable through the district court in the 16.20 district in which the subpoena is issued. Witnesses, other than 16.21 an interested party or officers and employees of an interested 16.22 party, subpoenaed pursuant to this section shall be allowed fees 16.23 the same as witness fees in a civil action in district court. 16.24 These fees shall be deemed a part of the expense of 16.25 administering sections 268.03 to 268.231. 16.26 Subd. 5. [USE OF INFORMATION.] All testimony at any 16.27 hearing conducted pursuant to subdivision 1 shall be recorded, 16.28 but shall be transcribed only if the disputed claim is appealed 16.29 further and is requested by a party, or as directed by the 16.30 commissioner or an authorized representative. Testimony 16.31 obtained under subdivision 1, may not be used or considered in 16.32 any civil, administrative, or contractual proceeding, except by 16.33 a local, state, or federal human rights group with enforcement 16.34 powers, unless the proceeding is initiated by the department. 16.35 No findings of fact or decision issued by a reemployment 16.36 insurance judge or the commissioner or authorized representative 17.1 may be held conclusive or binding or used as evidence in any 17.2 separate or subsequent action in any other forum, except 17.3 proceedings provided for under chapter 268, regardless of 17.4 whether the action involves the same or related parties or 17.5 involves the same facts. 17.6 Subd. 6. [REPRESENTATION; FEES.] In any proceeding under 17.7 these sections, a party may be represented by any agent. Except 17.8 for services provided by an attorney-at-law, a claimant for 17.9 benefits shall not be charged fees of any kind in a proceeding 17.10 before a reemployment insurance judge, the commissioner or 17.11 authorized representative, or by any court or any of its 17.12 officers. 17.13 Subd. 7. [COURT OF APPEALS; ATTORNEY FOR 17.14 COMMISSIONER.] The court of appeals may, by writ of certiorari 17.15 to the commissioner, review any decision of the commissioner 17.16 provided a petition for the writ is filed and served upon the 17.17 commissioner and the adverse party within 30 days of the mailing 17.18 of the commissioner's decision. Any interested party, except a 17.19 claimant for benefits, upon the service of the writ shall 17.20 furnish a cost bond to the commissioner in accordance with rule 17.21 107 of the rules of civil appellate procedure. The commissioner 17.22 shall be deemed to be a party to any judicial action involving 17.23 any decision and shall be represented by any qualified attorney 17.24 who is a regular salaried employee of the department of economic 17.25 security and has been designated by the commissioner for that 17.26 purpose or, at the commissioner's request, by the attorney 17.27 general. 17.28 Sec. 12. Minnesota Statutes 1994, section 268.12, 17.29 subdivision 12, is amended to read: 17.30 Subd. 12. [INFORMATION.] Except as hereinafter otherwise 17.31 provided, data gathered from any employing unit or individual 17.32 pursuant to the administration of sections 268.03 to 268.231, 17.33 and from any determination as to the benefit rights of any 17.34 individual are private data on individuals or nonpublic data not 17.35 on individuals as defined in section 13.02, subdivisions 9 and 17.36 12, and may not be disclosed except pursuant to this subdivision 18.1 or a court order. These data may be disseminated to and used by 18.2 the following agencies without the consent of the subject of the 18.3 data: 18.4 (a) state and federal agencies specifically authorized 18.5 access to the data by state or federal law; 18.6 (b) any agency of this or any other state; or any federal 18.7 agency charged with the administration of an employment security 18.8 law or the maintenance of a system of public employment offices; 18.9 (c) local human rights groups within the state which have 18.10 enforcement powers; 18.11 (d) the department of revenue shall have access to 18.12 department of economic security private data on individuals and 18.13 nonpublic data not on individuals only to the extent necessary 18.14 for enforcement of Minnesota tax laws; 18.15 (e) public and private agencies responsible for 18.16 administering publicly financed assistance programs for the 18.17 purpose of monitoring the eligibility of the program's 18.18 recipients; 18.19 (f) the department of labor and industry on an 18.20 interchangeable basis with the department of economic security 18.21 subject to the following limitations and notwithstanding any law 18.22 to the contrary: 18.23 (1) the department of economic security shall have access 18.24 to private data on individuals and nonpublic data not on 18.25 individuals for uses consistent with the administration of its 18.26 duties under sections 268.03 to 268.231; and 18.27 (2) the department of labor and industry shall have access 18.28 to private data on individuals and nonpublic data not on 18.29 individuals for uses consistent with the administration of its 18.30 duties under state law; 18.31 (g) the department of trade and economic development may 18.32 have access to private data on individual employing units and 18.33 nonpublic data not on individual employing units for its 18.34 internal use only; when received by the department of trade and 18.35 economic development, the data remain private data on 18.36 individuals or nonpublic data; 19.1 (h) local and state welfare agencies for monitoring the 19.2 eligibility of the data subject for assistance programs, or for 19.3 any employment or training program administered by those 19.4 agencies, whether alone, in combination with another welfare 19.5 agency, or in conjunction with the department of economic 19.6 security; 19.7 (i) local, state, and federal law enforcement agencies for 19.8 the sole purpose of ascertaining the last known address and 19.9 employment location of the data subject, provided the data 19.10 subject is the subject of a criminal investigation; and 19.11 (j) the department of health may have access to private 19.12 data on individuals and nonpublic data not on individuals solely 19.13 for the purposes of epidemiologic investigations. 19.14 Data on individuals and employing units which are 19.15 collected, maintained, or used by the department in an 19.16 investigation pursuant to section 268.18, subdivision 3, are 19.17 confidential as to data on individuals and protected nonpublic 19.18 data not on individuals as defined in section 13.02, 19.19 subdivisions 3 and 13, and shall not be disclosed except 19.20 pursuant to statute or court order or to a party named in a 19.21 criminal proceeding, administrative or judicial, for preparation 19.22 of a defense. 19.23 Tape recordings and transcripts of recordings of 19.24 proceedings before a referee of the departmentconducted in 19.25 accordance with section 268.105 and exhibits offered by parties19.26 other than the department andreceived into evidence at those 19.27 proceedings are private data on individuals and nonpublic data 19.28 not on individuals and shall be disclosed only pursuant to the 19.29 administration of section 268.10, subdivisions 3 to 8268.105, 19.30 or pursuant to a court order. 19.31 Aggregate data about employers compiled from individual job 19.32 orders placed with the department of economic security are 19.33 private data on individuals and nonpublic data not on 19.34 individuals as defined in section 13.02, subdivisions 9 and 12, 19.35 if the commissioner determines that divulging the data would 19.36 result in disclosure of the identity of the employer. The 20.1 general aptitude test battery and the nonverbal aptitude test 20.2 battery as administered by the department are also classified as 20.3 private data on individuals or nonpublic data. 20.4 Data on individuals collected, maintained, or created 20.5 because an individual applies for benefits or services provided 20.6 by the energy assistance and weatherization programs 20.7 administered by the department of economic security is private 20.8 data on individuals and shall not be disseminated except 20.9 pursuant to section 13.05, subdivisions 3 and 4. 20.10 Data gathered by the department pursuant to the 20.11 administration of sections 268.03 to 268.231 shall not be made 20.12 the subject or the basis for any suit in any civil proceedings, 20.13 administrative or judicial, unless the action is initiated by 20.14 the department. 20.15 Testimony obtained under subdivision 13 and section 268.10,20.16 subdivision 3, may not be used or considered in any civil,20.17 administrative, or contractual proceeding, except by a local,20.18 state, or federal human rights group with enforcement powers,20.19 unless the proceeding is initiated by the department.20.20 Sec. 13. Minnesota Statutes 1994, section 268.16, 20.21 subdivision 3a, is amended to read: 20.22 Subd. 3a. [COSTS.] Any employing unit which fails to make 20.23 and submit reports or pay any contributions or reimbursement 20.24 when due is liable to the department for any recording fees, 20.25 sheriff fees, costs incurred by referral to any public or 20.26 private agency outside the department, or litigation costs 20.27 incurred in the collection of the amounts due or obtaining the 20.28 reports. 20.29 If any check or money order, in payment of any amount due 20.30 under this chapter, is not honored when presented for payment, 20.31 the employing unit will be assessed a fee of $20 which is in 20.32 addition to any other fees provided by this chapter. The fee 20.33 shall be assessed regardless of the amount of the check or money 20.34 order or the reason for nonpayment with the exception of 20.35 processing errors made by a financial institution. 20.36 Costs due under this subdivision shall be paid to the 21.1 department and credited to the administration fund. 21.2 Sec. 14. Minnesota Statutes 1994, section 268.16, 21.3 subdivision 6, is amended to read: 21.4 Subd. 6. [ADJUSTMENTS, REFUNDS.] If an employer makes an 21.5 application for an adjustment of any amount paid as 21.6 contributions or interest thereon, to be applied against 21.7 subsequent contribution payments, or for a refund thereof 21.8 because such adjustment cannot be made, and the payment was made 21.9 within four years prior to the year in which the application is 21.10 made, and if the commissioner shall determine that payment of 21.11 such contributions or interest or any portion thereof was 21.12 erroneous, the commissioner shall allow such employer to make an 21.13 adjustment thereof, without interest, in connection with 21.14 subsequent contribution payments by the employer, or if such 21.15 adjustment cannot be made, the commissioner shall refund from 21.16 the fund to which such payment has been credited, without 21.17 interest, the amount erroneously paid. For like cause and 21.18 within the same period, adjustment or refund may be so made on 21.19 the commissioner's own initiative. 21.20 In the event that any application for adjustment or refund 21.21 is denied in whole or in part, a written notice of such denial 21.22 shall be mailed to the applicant. Within 30 days after the 21.23 mailing of such notice of denial to the applicant's last known 21.24 address, the applicant may request, in writing, that the 21.25 commissioner grant a hearing for the purpose of reconsidering 21.26 the facts submitted and to consider any additional information. 21.27 Proceedings on the appeal shall be hadconducted in accordance 21.28 with section 268.12, subdivision 13268.105. 21.29 Sec. 15. Minnesota Statutes 1994, section 268.16, is 21.30 amended by adding a subdivision to read: 21.31 Subd. 9. [PRIOR DECISIONS.] In the event a final decision 21.32 on an appeal under section 268.105 determines the amount of 21.33 contributions due under sections 268.03 to 268.231, then, if the 21.34 amount, together with interest and penalties, is not paid within 21.35 30 days after the decision, the provisions of section 268.161 21.36 apply. The commissioner shall proceed thereunder, substituting 22.1 a certified copy of the final decision in place of the 22.2 contribution report. A final decision on an appeal under 22.3 section 268.105 is conclusive for all the purposes of sections 22.4 268.03 to 268.231 except as otherwise provided, and, together 22.5 with the records therein made, shall be admissible in any 22.6 subsequent judicial proceeding involving liability for 22.7 contributions. 22.8 Sec. 16. Minnesota Statutes 1994, section 268.161, 22.9 subdivision 8, is amended to read: 22.10 Subd. 8. [LEVY.] (a) If any contribution or reimbursement 22.11 payable to the department is not paid when due, the amount may 22.12 be collected by the commissioner, a duly authorized 22.13 representative, or by the sheriff of any county to whom the 22.14 commissioner has issued a warrant, who may levy upon all 22.15 property and rights of property of the person liable for the 22.16 contribution or reimbursement, (except that which is exempt from 22.17 execution pursuant to section 550.37), or property on which 22.18 there is a lien provided by subdivision 1. The terms 22.19 "contribution or reimbursement" shall include any penalty, 22.20 interest, and costs. The term "levy" includes the power of 22.21 distraint and seizure by any means. Before a levy is made or 22.22 warrant issued, notice and demand for payment of the amount due 22.23 shall be given to the person liable for the contribution or 22.24 reimbursement at least ten days prior to the levy or issuing of 22.25 a warrant. 22.26 (b) Upon the commissioner issuing a warrant, the sheriff 22.27 shall proceed within 60 days to levy upon the rights to property 22.28 of the employer within the employer's county, except the 22.29 homestead and household goods of the employer and property of 22.30 the employer not liable to attachment, garnishment, or sale on 22.31 any final process issued from any court under the provisions of 22.32 section 550.37, and shall sell so much thereof as is required to 22.33 satisfy the contribution, reimbursement, interest, and 22.34 penalties, together with the commissioner's costs. The sales 22.35 shall, as to their manner, be governed by the law applicable to 22.36 sales of like property on execution issued against property upon 23.1 a judgment of a court of record. The proceeds of the sales, 23.2 less the sheriff's costs, shall be turned over to the 23.3 commissioner, who shall retain a part thereof as is required to 23.4 satisfy the contribution, reimbursement, interest, penalties, 23.5 and costs, and pay over any balance to the employer. 23.6 (c) If the commissioner has reason to believe that 23.7 collection of the contribution or reimbursement is in jeopardy, 23.8 notice and demand for immediate payment of the amount may be 23.9 made by the commissioner. If the contribution or reimbursement 23.10 is not paid, the commissioner may proceed to collect by levy or 23.11 issue a warrant without regard to the ten-day period provided 23.12 herein. 23.13 (d) In making the execution of the levy and in collecting 23.14 the contribution or reimbursement due, the commissioner shall 23.15 have all of the powers provided in chapter 550 and in any other 23.16 law for purposes of effecting an execution against property in 23.17 this state. The sale of property levied upon and the time and 23.18 manner of redemption therefrom shall be as provided in chapter 23.19 550. The seal of the court, subscribed by the court 23.20 administrator, as provided in section 550.04, shall not be 23.21 required. The levy for collection of contributions or 23.22 reimbursements may be made whether or not the commissioner has 23.23 commenced a legal action for collection of the amount. 23.24 (e) Where a jeopardy assessment or any other assessment has 23.25 been made by the commissioner, the property seized for 23.26 collection of the contribution or reimbursement shall not be 23.27 sold until any determination of liability, rate, or benefit 23.28 charges has become final. No sale shall be made unless the 23.29 contribution or reimbursement remain unpaid for a period of more 23.30 than 30 days after the determination becomes final. Seized 23.31 property may be sold at any time if: 23.32 (1) the employer consents in writing to the sale; or 23.33 (2) the commissioner determines that the property is 23.34 perishable or may become greatly reduced in price or value by 23.35 keeping, or that the property cannot be kept without great 23.36 expense. 24.1 (f) Where a levy has been made to collect contributions or 24.2 reimbursements pursuant to this subdivision and the property 24.3 seized is properly included in a formal proceeding commenced 24.4 under sections 524.3-401 to 524.3-505 and maintained under full 24.5 supervision of the court, the property shall not be sold until 24.6 the probate proceedings are completed or until the court so 24.7 orders. 24.8 (g) The property seized shall be returned by the 24.9 commissioner if the owner gives a surety bond equal to the 24.10 appraised value of the owner's interest in the property, as 24.11 determined by the commissioner, or deposits with the 24.12 commissioner security in a form and amount as the commissioner 24.13 deems necessary to insure payment of the liability, but not more 24.14 than twice the liability. 24.15 (h) Notwithstanding any other law to the contrary, if a 24.16 levy or sale pursuant to this section would irreparably injure 24.17 rights in property which the court determines to be superior to 24.18 rights of the state in the property, the district court may 24.19 grant an injunction to prohibit the enforcement of the levy or 24.20 to prohibit the sale. 24.21 (i) Any person who fails or refuses to surrender without 24.22 reasonable cause any property or rights to property subject to 24.23 levy upon demand by the commissioner shall be personally liable 24.24 to the department in an amount equal to the value of the 24.25 property or rights not so surrendered, but not exceeding the 24.26 amount of contribution or reimbursement for the collection of 24.27 which the levy has been made. Any amount recovered under this 24.28 subdivision shall be credited against the contribution or 24.29 reimbursement liability for the collection of which the levy was 24.30 made. The term "person" includes an officer or employee of a 24.31 corporation or a member or employee of a partnership who, as an 24.32 officer, employee, or member is under a duty to surrender the 24.33 property or rights to property or to discharge the obligation. 24.34 (j) Any action taken by the commissioner pursuant to this 24.35 subdivision shall not constitute an election by the department 24.36 to pursue a remedy to the exclusion of any other remedy. 25.1 (k) After the commissioner has seized the property of any 25.2 person, that person may, upon giving 48 hours notice to the 25.3 commissioner and to the court, bring a claim for equitable 25.4 relief before the district court for the release of the property 25.5 to the employer upon terms and conditions as the court may deem 25.6 equitable. 25.7 (l) Any person in possession of (or obligated with respect 25.8 to) property or rights to property subject to levy upon which a 25.9 levy has been made who, upon demand by the commissioner, 25.10 surrenders the property or rights to property or who pays a 25.11 liability under this subdivision shall be discharged from any 25.12 obligation or liability to the person liable for the payment of 25.13 the delinquent contribution or reimbursement with respect to the 25.14 property or rights to property so surrendered or paid. 25.15 (m) Notwithstanding any other provisions of law to the 25.16 contrary, the notice of any levy authorized by this section may 25.17 be served by certified or registeredmail or by delivery by an 25.18 employee or agent of the department of economic security. 25.19 (n) It shall be lawful for the commissioner to release the 25.20 levy upon all or part of the property or rights to property 25.21 levied upon if the commissioner determines that the release will 25.22 facilitate the collection of the liability, but the release 25.23 shall not operate to prevent any subsequent levy. If the 25.24 commissioner determines that property has been wrongfully levied 25.25 upon, it shall be lawful for the commissioner to return: 25.26 (1) the specific property levied upon, at any time; or 25.27 (2) an amount of money equal to the amount of money levied 25.28 upon, at any time before the expiration of nine months from the 25.29 date of levy. 25.30 (o) Notwithstanding section 52.12, a levy by the 25.31 commissioner made pursuant to the provisions of this section 25.32 upon an employer's funds on deposit in a financial institution 25.33 located in this state, shall have priority over any unexercised 25.34 right of setoff of the financial institution to apply the levied 25.35 funds toward the balance of an outstanding loan or loans owed by 25.36 the employer to the financial institution. A claim by the 26.1 financial institution that it exercised its right to setoff 26.2 prior to the levy by the commissioner must be substantiated by 26.3 evidence of the date of the setoff, and shall be verified by the 26.4 sworn statement of a responsible corporate officer of the 26.5 financial institution. Furthermore, for purposes of determining 26.6 the priority of any levy made under this section, the levy shall 26.7 be treated as if it were an execution made pursuant to chapter 26.8 550. 26.9 Sec. 17. Minnesota Statutes 1994, section 268.161, 26.10 subdivision 9, is amended to read: 26.11 Subd. 9. [PERSONAL LIABILITY.] Any officer, director, or 26.12 employee of a corporation or any manager, governor, member, or 26.13 employee of a limited liability company which is an employer 26.14 under sections 268.03 to 268.231, who 26.15 (1) either individually or jointly with others, have or 26.16 should have had control of, supervision over, or responsibility 26.17 for the filing of the tax reports or the making of payments 26.18 under this chapter, and 26.19 (2) willfully fails to file the reports or to make payments 26.20 as required, shall be personally liable for contributions or 26.21 reimbursement, including interest, penalties, and costs in the 26.22 event the corporation does not pay to the department those 26.23 amounts for which the employer is liable. 26.24 For purposes of this subdivision, "willfulness" means that 26.25 the facts demonstrate that the responsible party used or allowed 26.26 the use of corporate or company assets to pay other creditors 26.27 knowing that the payments required under this chapter were 26.28 unpaid. An evil motive or intent to defraud is not necessary to 26.29 satisfy the willfulness requirement. Any personal 26.30 representative of the estate of a decedent or fiduciary who 26.31 voluntarily distributes the assets filed therein without 26.32 reserving a sufficient amount to pay the contributions, 26.33 interest, and penalties due pursuant to this chapter shall be 26.34 personally liable for the deficiency. 26.35 The personal liability of any person as provided herein 26.36 shall survive dissolution, reorganization, receivership, or 27.1 assignment for the benefit of creditors. For the purposes of 27.2 this subdivision, all wages paid by the corporation shall be 27.3 considered earned from the person determined to be personally 27.4 liable. 27.5 An official designated by the commissioner shall make an 27.6 initial determination as to the personal liability under this 27.7 section. The determination shall be final unless the person 27.8 found to be personally liable shall within 30 days after mailing 27.9 of notice of determination to the person's last known address 27.10 file a written appealprotest. Upon receipt of the protest, the 27.11 official shall reexamine the personal liability determination 27.12 and either affirm or redetermine the assessment of personal 27.13 liability and a notice of the affirmation or redetermination 27.14 shall be mailed to the person's last known address. The 27.15 affirmation or redetermination shall become final unless a 27.16 written appeal is filed within ten days of the date of mailing. 27.17 Proceedings on the appeal shall be conducted in the same manner27.18 as an appeal of an employer's contribution rate or benefits27.19 charged to an employer's account under section 268.06,27.20 subdivision 20accordance with section 268.105. 27.21 Sec. 18. Minnesota Statutes 1994, section 268.162, 27.22 subdivision 2, is amended to read: 27.23 Subd. 2. [REASONABLE VALUE.] An official, designated by 27.24 the commissioner, upon the official's own motion or upon 27.25 application of the potential successor, shall determine the 27.26 reasonable value of the organization, trade, or business or 27.27 assets acquired by the successor based on available 27.28 information. The determination shall be final unless the 27.29 successor, within 30 days after the mailing of notice of the 27.30 determination to the successor's last known address, files a 27.31 written appeal from it. Any appeals of a determination under27.32 this subdivision shall be conducted in the same manner as an27.33 appeal under section 268.12, subdivision 13.Proceedings on the 27.34 appeal shall be conducted in accordance with section 268.105. 27.35 Sec. 19. Minnesota Statutes 1994, section 268.163, 27.36 subdivision 3, is amended to read: 28.1 Subd. 3. [DETERMINATION OF LIABILITY.] An official 28.2 designated by the commissioner shall make an initial 28.3 determination as to the liability under this section. The 28.4 determination shall be final unless the contractor or person 28.5 found to be liable files a written appeal within 30 days after 28.6 mailing of notice of determination to the person's last known 28.7 address. Proceedings on the appeal shall be conducted in the28.8 same manner as an appeal from a determination of employer28.9 liability under section 268.12, subdivision 13accordance with 28.10 section 268.105. 28.11 Sec. 20. Minnesota Statutes 1994, section 268.164, 28.12 subdivision 3, is amended to read: 28.13 Subd. 3. [NOTICE AND RIGHT TO HEARING.] At least 30 days 28.14 before the commissioner notifies a licensing authority pursuant 28.15 to subdivision 1, a notice and demand for payment of the amount 28.16 due shall be given to the applicant. If the applicant disputes 28.17 the amount due, the applicant must request a hearing in writing 28.18 within 30 days after the mailing of the notice and demand for 28.19 payment to the applicant's last known address. Proceedings on 28.20 the appeal of the amount due shall be conducted in the same28.21 manner as an appeal from a determination of employer liability28.22 under section 268.12, subdivision 13accordance with section 28.23 268.105. 28.24 Sec. 21. Minnesota Statutes 1994, section 268.18, 28.25 subdivision 1, is amended to read: 28.26 Subdivision 1. [ERRONEOUS PAYMENTS.] (a) Any claimant for 28.27 benefits who, by reason of the claimant's own mistake or through 28.28 the error of any individual engaged in the administration of 28.29 sections 268.03 to 268.231 or because of a determination or 28.30 redetermination issued pursuant to section 268.10, subdivision 28.31 2, has received any sum as benefits to which the claimant was 28.32 not entitled under these sections, shall promptly return those 28.33 benefits in cash to the nearest office of the Minnesota 28.34 department of economic security. If the claimant fails to 28.35 return the benefits, the department of economic security shall, 28.36 as soon as it discovers the erroneous payment, determine the 29.1 amount due and notify the individual to return it. 29.2 (b) Unless the claimant files a written appeal with the 29.3 department of economic security within 15 days after the mailing 29.4 of the notice of determination to the claimant's last known 29.5 address or personal delivery of the notice, the determination 29.6 shall become final. If the claimant files an appeal with the29.7 department in writing within the time above the matter shall be29.8 set for hearing before a referee of the department and heard as29.9 other benefit matters are heard in accordance with section29.10 268.10 with the same rights of review as outlined for benefit29.11 cases in that section.Proceedings on the appeal shall be 29.12 conducted in accordance with section 268.105. 29.13 (c) The commissioner of the department of economic security 29.14 is authorized to deduct from any future benefits payable to the 29.15 claimant under these sections in either the current or any 29.16 subsequent benefit year an amount equivalent to the overpayment 29.17 determined, except that no single deduction shall exceed 50 29.18 percent of the amount of the payment from which the deduction is 29.19 made, or the overpayment may be collected the same as 29.20 contributions or reimbursements under section 268.161. If a 29.21 claimant has been overpaid benefits under the law of another 29.22 state due to error and that state certifies to the department 29.23 the facts involved and that the individual is liable under its 29.24 law to repay the benefits and requests the department to recover 29.25 the overpayment, the commissioner is authorized to deduct from 29.26 future benefits payable to the claimant in either the current or 29.27 any subsequent benefit year an amount equivalent to the amount 29.28 of overpayment determined by that state, except that no single 29.29 deduction shall exceed 50 percent of the amount of the payment 29.30 from which the deduction is made. Benefits paid for weeks more 29.31 than three years prior to the discovery of error are not 29.32 erroneous payments. 29.33 (d) Notwithstanding paragraph (a), the commissioner shall 29.34 waive recovery of an overpayment if a refereereemployment 29.35 insurance judge or the commissioner's representative determines 29.36 the overpayment resulted from an administrative failure to 30.1 identify that a claimant's wage credits were not earned in 30.2 covered employment. 30.3 Sec. 22. Minnesota Statutes 1994, section 268.18, 30.4 subdivision 2, is amended to read: 30.5 Subd. 2. [FRAUD.] Any claimant who files a claim for or 30.6 receives benefits by knowingly and willfully misrepresenting or 30.7 misstating any material fact or by knowingly and willfully 30.8 failing to disclose any material fact which would make the 30.9 claimant ineligible for benefits under sections 268.03 to 30.10 268.231 is guilty of fraud. After the discovery of facts by the 30.11 commissioner indicating fraud in claiming or obtaining benefits 30.12 under sections 268.03 to 268.231, the commissioner is hereby 30.13 authorized to make a determination that the claimant was 30.14 ineligible for each week with reference to which benefits were 30.15 claimed or obtained by fraud for the amount as was in excess of 30.16 what the claimant would have been entitled to had the claimant 30.17 not made the fraudulent statements or failed to disclose any 30.18 material facts. The commissioner also may disqualify an 30.19 individual from benefits for one to 52 weeks in which the 30.20 claimant is otherwise eligible for benefits following the week 30.21 in which the fraud was determined. A disqualification imposed 30.22 for fraud shall not be removed by subsequent insured work or the 30.23 expiration of a benefit year but shall not apply to any week 30.24 more than 104 weeks after the week in which the fraud was 30.25 determined. The claimant shall promptly repay in cash to the 30.26 department of economic security any benefits fraudulently 30.27 obtained. Unless the claimant files a written appeal with the 30.28 department of economic security within 15 days after the mailing 30.29 of the notice of determination to the claimant's last known 30.30 address or personal delivery of the notice, the determination 30.31 shall become final. If the claimant appeals from the30.32 determination within the time above specified the matter shall30.33 be referred to a referee for a hearing as in other benefit cases30.34 and thereafter the procedure for review shall be the same as set30.35 forth in section 268.10.Proceedings on the appeal shall be 30.36 conducted in accordance with section 268.105. The commissioner 31.1 is hereby authorized to deduct from future benefits payable to 31.2 the claimant in either the current or any subsequent benefit 31.3 year an amount equivalent to the amount of overpayment 31.4 determined disregarding the 50 percent limitation provided for 31.5 in subdivision 1 or the overpayment may be collected the same as 31.6 contributions or reimbursements under section 268.161. If a 31.7 claimant has been overpaid benefits under the law of another 31.8 state due to fraud and that state certifies to the department 31.9 the facts involved and that the individual is liable to repay 31.10 the benefits and requests the department to recover the 31.11 overpayment, the commissioner is authorized to deduct from 31.12 future benefits payable to the claimant in either the current or 31.13 any subsequent benefit year an amount equivalent to the amount 31.14 of overpayment determined by that state disregarding the 50 31.15 percent limitation provided for in subdivision 1. A 31.16 determination of fraud may be made at any time. 31.17 Sec. 23. Minnesota Statutes 1994, section 268.18, 31.18 subdivision 3, is amended to read: 31.19 Subd. 3. [FALSE REPRESENTATIONS; CONCEALMENT OF FACTS; 31.20 PENALTY.] (a) Whoever obtains, or attempts to obtain, or aids or 31.21 abets any person to obtain by means of a willfully false 31.22 statement or representation, by intentional concealment of a 31.23 material fact, or by impersonation or other fraudulent device, 31.24 benefits to which the person is not entitled or benefits greater 31.25 than that to which the person is entitled under this chapter, or 31.26 under the employment security law of any state or of the federal 31.27 government or of a foreign government, either personally or for 31.28 any other person, shall be guilty of theft and shall be 31.29 sentenced pursuant to section 609.52, subdivision 3, clauses 31.30 (2), (3)(a) and, (c), and (d), (4), and (5). The amount of the 31.31 benefits incorrectly paid shall be the difference between the 31.32 amount of benefits actually received and the amount which the 31.33 person would have been entitled under state and federal law had 31.34 the department been informed of all material facts. 31.35 (b) Any employing unit or any officer or agent of an 31.36 employing unit or any other person who makes a false statement 32.1 or representation knowing it to be false, or who knowingly fails 32.2 to disclose a material fact, to prevent or reduce the payment of 32.3 benefits to any individual entitled thereto, or to avoid 32.4 becoming or remaining a subject employer or to avoid or reduce 32.5 any contribution or other payment required from an employing 32.6 unit under this chapter or under the employment security law of 32.7 any state or of the federal government, or who willfully fails 32.8 or refuses to make any such contributions or other payment at 32.9 the time required shall be guilty of a gross misdemeanor unless 32.10 the benefit underpayment, contribution, or other payment 32.11 involved exceeds $250, in which event the person is guilty of a 32.12 felony. 32.13 (c) Any person who willfully fails to produce or permit the 32.14 inspection or copying of books, papers, records, or memoranda as 32.15 required or when requested under section 268.12, subdivision 8, 32.16 or to furnish any required reports other than contribution 32.17 reports shall be guilty of a gross misdemeanor. 32.18 Sec. 24. Minnesota Statutes 1994, section 268.18, 32.19 subdivision 6, is amended to read: 32.20 Subd. 6. [EMPLOYER MISCONDUCT; PENALTY.] If the 32.21 commissioner finds that any employing unit or any employee, 32.22 officer, or agent of any employing unit, is in collusion with 32.23 any employee for the purpose of assisting the claimant to 32.24 receive benefits illegally, the employing unit shall be 32.25 penalized $500 or an amount equal to the amount of benefits 32.26 determined to be overpaid, whichever is greater. 32.27 If the commissioner finds that any part of any employer's 32.28 contribution deficiency is due to fraud with intent to avoid 32.29 payment of contributions to the fund, 50 percent of the total 32.30 amount of the deficiency or $500, whichever is greater, shall be 32.31 assessed as a penalty against the employer and collected in 32.32 addition to the deficiency. 32.33 Penalties assessed under this section shall be in addition 32.34 to any other penalties provided for by sections 268.03 to 32.35 268.231 and be subject to the same collection procedures that 32.36 apply to past due contributions under this chapter. Penalties 33.1 under this section shall be paid to the department and credited 33.2 to the contingent fund. 33.3 The assessment of the penalty shall be final unless the 33.4 employer files a written appeal with the department within 15 33.5 days after the notice of determination to the employer's last 33.6 known address. If the employer shall appeal from the33.7 determination within the time above specified, the matter shall33.8 be referred for a hearing as set forth in section33.9 268.10.Proceedings on the appeal shall be conducted in 33.10 accordance with section 268.105. 33.11 Sec. 25. Minnesota Statutes 1994, section 270A.09, 33.12 subdivision 1a, is amended to read: 33.13 Subd. 1a. [ECONOMIC SECURITY CLAIMS.] Notwithstanding 33.14 subdivision 1, any debtor contesting a setoff claim by the 33.15 department of economic security shall have a hearing conducted 33.16 in the same manner as an appeal under section 268.12,33.17 subdivision 13268.105. 33.18 Sec. 26. Minnesota Statutes 1994, section 352.01, 33.19 subdivision 2b, is amended to read: 33.20 Subd. 2b. [EXCLUDED EMPLOYEES.] "State employee" does not 33.21 include: 33.22 (1) elective state officers; 33.23 (2) students employed by the University of Minnesota, the 33.24 state universities, and community colleges unless approved for 33.25 coverage by the board of regents, the state university board, or 33.26 the state board for community colleges, as the case may be; 33.27 (3) employees who are eligible for membership in the state 33.28 teachers retirement association except employees of the 33.29 department of education who have chosen or may choose to be 33.30 covered by the Minnesota state retirement system instead of the 33.31 teachers retirement association; 33.32 (4) employees of the University of Minnesota who are 33.33 excluded from coverage by action of the board of regents; 33.34 (5) officers and enlisted personnel in the national guard 33.35 and the naval militia who are assigned to permanent peacetime 33.36 duty and who under federal law are or are required to be members 34.1 of a federal retirement system; 34.2 (6) election officers; 34.3 (7) persons engaged in public work for the state but 34.4 employed by contractors when the performance of the contract is 34.5 authorized by the legislature or other competent authority; 34.6 (8) officers and employees of the senate and house of 34.7 representatives or a legislative committee or commission who are 34.8 temporarily employed; 34.9 (9) receivers, jurors, notaries public, and court employees 34.10 who are not in the judicial branch as defined in section 43A.02, 34.11 subdivision 25, except referees and adjusters employed by the 34.12 department of labor and industry; 34.13 (10) patient and inmate help in state charitable, penal, 34.14 and correctional institutions including the Minnesota veterans 34.15 home; 34.16 (11) persons employed for professional services where the 34.17 service is incidental to regular professional duties and whose 34.18 compensation is paid on a per diem basis; 34.19 (12) employees of the Sibley House Association; 34.20 (13) the members of any state board or commission who serve 34.21 the state intermittently and are paid on a per diem basis; the 34.22 secretary, secretary-treasurer, and treasurer of those boards if 34.23 their compensation is $5,000 or less per year, or, if they are 34.24 legally prohibited from serving more than three years; and the 34.25 board of managers of the state agricultural society and its 34.26 treasurer unless the treasurer is also its full-time secretary; 34.27 (14) state troopers; 34.28 (15) temporary employees of the Minnesota state fair 34.29 employed on or after July 1 for a period not to extend beyond 34.30 October 15 of that year; and persons employed at any time by the 34.31 state fair administration for special events held on the 34.32 fairgrounds; 34.33 (16) emergency employees in the classified service; except 34.34 that if an emergency employee, within the same pay period, 34.35 becomes a provisional or probationary employee on other than a 34.36 temporary basis, the employee shall be considered a "state 35.1 employee" retroactively to the beginning of the pay period; 35.2 (17) persons described in section 352B.01, subdivision 2, 35.3 clauses (2) to (5); 35.4 (18) temporary employees in the classified service, 35.5 temporary employees in the unclassified service appointed for a 35.6 definite period of not more than six months and employed less 35.7 than six months in any one-year period and seasonal help in the 35.8 classified service employed by the department of revenue; 35.9 (19) trainee employees, except those listed in subdivision 35.10 2a, clause (10); 35.11 (20) persons whose compensation is paid on a fee basis; 35.12 (21) state employees who in any year have credit for 12 35.13 months service as teachers in the public schools of the state 35.14 and as teachers are members of the teachers retirement 35.15 association or a retirement system in St. Paul, Minneapolis, or 35.16 Duluth; 35.17 (22) employees of the adjutant general employed on an 35.18 unlimited intermittent or temporary basis in the classified and 35.19 unclassified service for the support of army and air national 35.20 guard training facilities; 35.21 (23) chaplains and nuns who are excluded from coverage 35.22 under the federal Old Age, Survivors, Disability, and Health 35.23 Insurance Program for the performance of service as specified in 35.24 United States Code, title 42, section 410(a)(8)(A), as amended, 35.25 if no irrevocable election of coverage has been made under 35.26 section 3121(r) of the Internal Revenue Code of 1986, as amended 35.27 through December 31, 1992; 35.28 (24) examination monitors employed by departments, 35.29 agencies, commissions, and boards to conduct examinations 35.30 required by law; 35.31 (25) members of appeal tribunals, exclusive of the chair,35.32 to which reference is made in section 268.10, subdivision 4;35.33 (26)persons appointed to serve as members of fact-finding 35.34 commissions or adjustment panels, arbitrators, or labor referees 35.35 under chapter 179; 35.36 (27)(26) temporary employees employed for limited periods 36.1 under any state or federal program for training or 36.2 rehabilitation including persons employed for limited periods 36.3 from areas of economic distress except skilled and supervisory 36.4 personnel and persons having civil service status covered by the 36.5 system; 36.6 (28)(27) full-time students employed by the Minnesota 36.7 historical society intermittently during part of the year and 36.8 full-time during the summer months; 36.9 (29)(28) temporary employees, appointed for not more than 36.10 six months, of the metropolitan council and of any of its 36.11 statutory boards, if the board members are appointed by the 36.12 metropolitan council; 36.13 (30)(29) persons employed in positions designated by the 36.14 department of employee relations as student workers; 36.15 (31)(30) members of trades employed by the successor to 36.16 the metropolitan waste control commission with trade union 36.17 pension plan coverage under a collective bargaining agreement 36.18 first employed after June 1, 1977; 36.19 (32)(31) persons employed in subsidized on-the-job 36.20 training, work experience, or public service employment as 36.21 enrollees under the federal Comprehensive Employment and 36.22 Training Act after March 30, 1978, unless the person has as of 36.23 the later of March 30, 1978, or the date of employment 36.24 sufficient service credit in the retirement system to meet the 36.25 minimum vesting requirements for a deferred annuity, or the 36.26 employer agrees in writing on forms prescribed by the director 36.27 to make the required employer contributions, including any 36.28 employer additional contributions, on account of that person 36.29 from revenue sources other than funds provided under the federal 36.30 Comprehensive Employment and Training Act, or the person agrees 36.31 in writing on forms prescribed by the director to make the 36.32 required employer contribution in addition to the required 36.33 employee contribution; 36.34 (33)(32) off-duty peace officers while employed by the 36.35 metropolitan council; 36.36 (34)(33) persons who are employed as full-time police 37.1 officers by the metropolitan council and as police officers are 37.2 members of the public employees police and fire fund; 37.3 (35)(34) persons who are employed as full-time 37.4 firefighters by the department of military affairs and as 37.5 firefighters are members of the public employees police and fire 37.6 fund; 37.7 (36)(35) foreign citizens with a work permit of less than 37.8 three years, or an H-1b/JV visa valid for less than three years 37.9 of employment, unless notice of extension is supplied which 37.10 allows them to work for three or more years as of the date the 37.11 extension is granted, in which case they are eligible for 37.12 coverage from the date extended; and 37.13 (37)(36) persons who are employed by the higher education 37.14 board and who elect to remain members of the public employees 37.15 retirement association or the Minneapolis employees retirement 37.16 fund, whichever applies, under section 136C.75. 37.17 Sec. 27. Minnesota Statutes 1994, section 352.22, 37.18 subdivision 10, is amended to read: 37.19 Subd. 10. [OTHER REFUNDS.] Former employees covered by the 37.20 system are entitled to apply for refunds if they are or become 37.21 members of the state patrol retirement fund, the state teacher's 37.22 retirement association, or employees of the University of 37.23 Minnesota excluded from coverage under the system by action of 37.24 the board of regents; or labor service employees, excluded from 37.25 coverage under section 352.01, subdivision 2b, clause (26)(25); 37.26 or employees of the adjutant general who under federal law 37.27 effectually elect membership in a federal retirement system; or 37.28 officers or employees of the senate or house of representatives, 37.29 excluded from coverage under section 352.01, subdivision 2b, 37.30 clause (8). The refunds must include accumulated contributions 37.31 plus interest as provided in subdivision 2. These employees may 37.32 apply 30 days or more after their coverage ceases, even if they 37.33 continue in state service but in positions not covered by this 37.34 chapter. 37.35 Sec. 28. Minnesota Statutes 1994, section 574.26, 37.36 subdivision 1, is amended to read: 38.1 Subdivision 1. [CITATION.] (a) Sections 574.26 to 574.32 38.2 are the "public contractors' performance and payment bond act," 38.3 within those sections referred to as "the act." 38.4 (b) For the purposes of the act: 38.5 (1) "public body" means the state, municipal corporation, 38.6 school district, or other public board or body; and 38.7 (2) "labor and materials" means work, skill, tools, 38.8 machinery, materials, insurance premiums, equipment or supplies, 38.9 or taxes incurred under section 290.92 or, chapter 297A or 268; 38.10 and 38.11 (3) "contract" means a contract with a public body for the 38.12 doing of public work. 38.13 Sec. 29. [REPEALER.] 38.14 Minnesota Statutes 1994, section 268.10, subdivisions 3, 4, 38.15 5, 6, 7, 8, 9, and 10; 268.12, subdivisions 9, 10, and 13, are 38.16 repealed. 38.17 Sec. 30. [EFFECTIVE DATE.] 38.18 Section 1 is effective January 1, 1996. Sections 2 to 29 38.19 are effective the day following final enactment.