Office of the Revisor of Statutes
Minnesota Session Laws - 1994, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 488-H.F.No. 3053
An act relating to unemployment compensation; changing
its name; modifying provisions relating to reporting
requirements, eligibility conditions, and liability
for benefits; amending Minnesota Statutes 1992,
sections 268.03; 268.08, subdivision 1; and 268.10,
subdivision 1; Minnesota Statutes 1993 Supplement,
sections 268.08, subdivision 6; 268.09, subdivision 1;
268.10, subdivision 2; and 268.161, subdivision 9.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1992, section 268.03, is
amended to read:
268.03 [DECLARATION OF PUBLIC POLICY.]
As a guide to the interpretation and application of
sections 268.03 to 268.31, the public policy of this state is
declared to be as follows: Economic insecurity due to
unemployment is a serious menace to the health, morals, and
welfare of the people of this state. Involuntary unemployment
is therefore a subject of general interest and concern which
requires appropriate action by the legislature to prevent its
spread and to lighten its burdens. This can be provided by
encouraging employers to provide more stable employment and by
the systematic accumulation of funds during periods of
employment to provide benefits for periods of unemployment, thus
maintaining purchasing power and limiting the serious social
consequences of poor relief assistance. The legislature,
therefore, declares that in its considered judgment the public
good and the general welfare of the citizens of this state will
be promoted by providing, under the police powers of the state
for the compulsory setting aside of unemployment reserves to be
used for the benefit of persons unemployed through no fault of
their own. In recognition of its focus on returning the worker
to gainful employment, this program will be known in Minnesota
as "reemployment insurance."
Sec. 2. Minnesota Statutes 1992, section 268.08,
subdivision 1, is amended to read:
Subdivision 1. [ELIGIBILITY CONDITIONS.] An individual
shall be eligible to receive benefits with respect to any week
of unemployment only if the commissioner finds that the
individual:
(1) has registered for work at and thereafter has continued
to report to an employment office, or agent of the office, in
accordance with rules the commissioner may adopt; except that
the commissioner may by rule waive or alter either or both of
the requirements of this clause as to types of cases or
situations with respect to which the commissioner finds that
compliance with the requirements would be oppressive or would be
inconsistent with the purposes of sections 268.03 to 268.231.
The method of reporting allowed must not require an in-person
appearance, and may incorporate appropriate new technology;
(2) has made a claim for benefits in accordance with rules
as the commissioner may adopt;
(3) was able to work and was available for work, and was
actively seeking work. The individual's weekly benefit amount
shall be reduced one-fifth for each day the individual is unable
to work or is unavailable for work. Benefits shall not be
denied by application of this clause to an individual who is in
training with the approval of the commissioner, is a dislocated
worker as defined in section 268.975, subdivision 3, who is in
training approved by the commissioner, or in training approved
pursuant to section 236 of the Trade Act of 1974, as amended.
An individual is deemed unavailable for work with respect
to any week which occurs in a period when the individual is a
full-time student in attendance at, or on vacation from an
established school, college, or university unless a majority of
the individual's wages paid during the 52 weeks preceding the
claim date were for services performed during weeks in which the
student was attending school as a full-time student.
An individual serving as a juror shall be considered as
available for work and actively seeking work on each day the
individual is on jury duty; and
(4) has been unemployed for a waiting period of one week
during which the individual is otherwise eligible for benefits
under sections 268.03 to 268.231. However, payment for the
waiting week, not to exceed $20, shall be made to the individual
after the individual has qualified for and been paid benefits
for four weeks of unemployment in a benefit year which period of
unemployment is terminated because of the individual's return to
employment. No individual is required to serve a waiting period
of more than one week within the one-year period subsequent to
filing a valid claim and commencing with the week within which
the valid claim was filed.; and
(5) has been participating in reemployment services, such
as job search assistance services, if the individual has been
determined to be likely to exhaust regular benefits and need
reemployment services pursuant to a profiling system established
by the commissioner, unless there is justifiable cause for the
claimant's failure to participate.
Sec. 3. Minnesota Statutes 1993 Supplement, section
268.08, subdivision 6, is amended to read:
Subd. 6. [SERVICES PERFORMED FOR STATE, MUNICIPALITIES, OR
CHARITABLE CORPORATION.] Benefits based on service in employment
defined in section 268.04, subdivision 12, clauses (7), (8) and
(9), are payable in the same amount, on the same terms and
subject to the same conditions as benefits payable on the basis
of other service subject to this chapter; except that
(a) Benefits based upon service performed in an
instructional, research, or principal administrative capacity
for an educational institution of higher education or a public
school, or a nonpublic school, or the Minnesota state academy
for the deaf or Minnesota state academy for the blind, or the
Minnesota center for arts education, or in a public or nonpublic
school for an educational cooperative service unit established
under section 123.58, or any other educational service agency as
defined in section 3304(a)(6)(A)(IV) of the Federal Unemployment
Tax Act, shall not be paid for any week of unemployment
commencing during the period between two successive academic
years or terms, or during a similar period between two regular
but not successive terms, or during a period of paid sabbatical
leave provided for in the individual's contract, to any
individual if the individual performs the services in the first
of the academic years or terms and if there is a contract or a
reasonable assurance that the individual will perform services
in any such capacity for any an educational institution of
higher education, public school, nonpublic school, Minnesota
state academies for the deaf and blind, the Minnesota center for
arts education, an educational cooperative service unit, or
other educational service agency, in the second of the academic
years or terms;
(b) With respect to service performed in any capacity other
than those capacities described in clause (a) of this
subdivision, for an educational institution, benefits shall not
be paid on the basis of these services to any individual for any
week which commences during a period between two successive
academic years or terms if the individual performs the services
in the first of the academic years or terms and there is a
reasonable assurance that the individual will perform the
services in the second of the academic years or terms. If
benefits are denied to any individual under this clause and the
individual was not offered an opportunity to perform the
services in the second of the academic years or term, the
individual shall be entitled to a retroactive payment of
benefits for each week in which the individual filed a timely
claim for benefits, but the claim was denied solely because of
this clause;
(c) With respect to services described in clause (a) or
(b), benefits payable on the basis of the services shall not be
paid to any individual for any week which commences during an
established and customary vacation period or holiday recess if
the individual performs the services in the period immediately
before the vacation period or holiday recess, and there is a
reasonable assurance that the individual will perform the
services in the period immediately following the vacation period
or holiday recess;
(d) With respect to services described in clause (a) or
(b), benefits shall not be payable on the basis of services in
any capacity specified in clauses (a), (b), and (c) to any
individual who performed those services in an educational
institution while in the employ of an educational service
agency. For purposes of this clause, "educational service
agency" means a governmental agency or governmental entity which
is established and operated exclusively for the purpose of
providing services to one or more educational institutions; and
(e) With respect to services to state and local government,
or nonprofit organizations covered by section 501(c)(3) of the
Internal Revenue Code of 1986, as amended through December 31,
1992, if services are provided to or on behalf of an educational
institution, benefits must be denied under the same
circumstances as described in clauses (a) to (d).
Sec. 4. Minnesota Statutes 1993 Supplement, section
268.09, subdivision 1, is amended to read:
Subdivision 1. [DISQUALIFYING CONDITIONS.] An individual
separated from any employment under paragraph (a), (b), or (d)
shall be disqualified for waiting week credit and benefits. For
separations under paragraphs (a) and (b), the disqualification
shall continue until four calendar weeks have elapsed following
the individual's separation and the individual has earned eight
times the individual's weekly benefit amount in insured work.
(a) [VOLUNTARY LEAVE.] The individual voluntarily and
without good cause attributable to the employer discontinued
employment with such employer. For the purpose of this
paragraph, a separation from employment by reason of its
temporary nature or for inability to pass a test or for
inability to meet performance standards necessary for
continuation of employment shall not be deemed voluntary.
A separation shall be for good cause attributable to the
employer if it occurs as a consequence of sexual harassment.
Sexual harassment means unwelcome sexual advances, requests for
sexual favors, sexually motivated physical contact or other
conduct or communication of a sexual nature when: (1) the
employee's submission to such conduct or communication is made a
term or condition of the employment, (2) the employee's
submission to or rejection of such conduct or communication is
the basis for decisions affecting employment, or (3) such
conduct or communication has the purpose or effect of
substantially interfering with an individual's work performance
or creating an intimidating, hostile, or offensive working
environment and the employer knows or should know of the
existence of the harassment and fails to take timely and
appropriate action.
(b) [DISCHARGE FOR MISCONDUCT.] The individual was
discharged for misconduct, not amounting to gross misconduct
connected with work or for misconduct which interferes with and
adversely affects employment.
(c) [EXCEPTIONS TO DISQUALIFICATION.] An individual shall
not be disqualified under paragraphs (a) and (b) under any of
the following conditions:
(1) the individual voluntarily discontinued employment to
accept employment offering substantially better conditions or
substantially higher wages or both;
(2) the individual is separated from employment due to
personal, serious illness provided that such individual has made
reasonable efforts to retain employment.
An individual who is separated from employment due to the
individual's illness of chemical dependency which has been
professionally diagnosed or for which the individual has
voluntarily submitted to treatment and who fails to make
consistent efforts to maintain the treatment the individual
knows or has been professionally advised is necessary to control
that illness has not made reasonable efforts to retain
employment.
(3) the individual accepts work from a base period employer
which involves a change in location of work so that said work
would not have been deemed to be suitable work under the
provisions of subdivision 2 and within a period of 13 weeks from
the commencement of said work voluntarily discontinues
employment due to reasons which would have caused the work to be
unsuitable under the provision of said subdivision 2;
(4) the individual left employment because of reaching
mandatory retirement age and was 65 years of age or older;
(5) the individual is terminated by the employer because
the individual gave notice of intention to terminate employment
within 30 days. This exception shall be effective only through
the calendar week which includes the date of intended
termination, provided that this exception shall not result in
the payment of benefits for any week for which the individual
receives the individual's normal wage or salary which is equal
to or greater than the weekly benefit amount;
(6) the individual is separated from employment due to the
completion of an apprenticeship program, or segment thereof,
approved pursuant to chapter 178;
(7) the individual voluntarily leaves part-time employment
with a base period employer while continuing full-time
employment if the individual attempted to return to part-time
employment after being separated from the full-time employment,
and if substantially the same part-time employment with the base
period employer was not available for the individual;
(8) the individual is separated from employment based
solely on a provision in a collective bargaining agreement by
which an individual has vested discretionary authority in
another to act on behalf of the individual;
(9) except as provided in paragraph (d), separations from
part-time employment will not be disqualifying when the claim is
based on sufficient full-time employment to establish a valid
claim from which the claimant has been separated for
nondisqualifying reasons; or
(10) the individual accepts employment during the benefit
year which represents a substantial departure from the
individual's customary occupation and experience and would not
be deemed suitable work as defined under subdivision 2,
paragraphs (a) and (b), and within a period of 30 days from the
commencement of that work voluntarily discontinues the
employment due to reasons which would have caused the work to be
unsuitable under the provisions of subdivision 2 or, if in
commission sales, because of a failure to earn gross commissions
averaging an amount equal to or in excess of the individual's
weekly benefit amount. Other provisions notwithstanding,
applying this provision precludes the use of these wage credits
to clear a disqualification.
(d) [DISCHARGE FOR GROSS MISCONDUCT.] The individual was
discharged for gross misconduct connected with work or gross
misconduct which interferes with and adversely affects the
individual's employment. For a separation under this clause,
the commissioner shall impose a total disqualification for the
benefit year and cancel all of the wage credits from the last
employer from whom the individual was discharged for gross
misconduct connected with work.
For the purpose of this paragraph "gross misconduct" is
defined as misconduct involving assault and battery or the
malicious destruction of property or arson or sabotage or
embezzlement or any other act, including theft, the commission
of which amounts to a felony or gross misdemeanor. For an
employee of a health care facility, gross misconduct also
includes misconduct involving an act of patient or resident
abuse as defined in section 626.557, subdivision 2, clause (d).
If an individual is convicted of a felony or gross
misdemeanor for the same act or acts of misconduct for which the
individual was discharged, the misconduct is conclusively
presumed to be gross misconduct if it was connected with the
individual's work.
(e) [LIMITED OR NO CHARGE OF BENEFITS.] Benefits paid
subsequent to an individual's separation under any of the
foregoing paragraphs, excepting paragraphs (c)(3), (c)(5), and
(c)(8), shall not be used as a factor in determining the future
contribution rate of the employer from whose employment such
individual separated.
Benefits paid subsequent to an individual's failure to
accept an offer of suitable reemployment or to accept
reemployment which offered substantially the same or better
hourly wages and conditions of work as were previously provided
by that employer, but was deemed unsuitable under subdivision 2,
shall not be used as a factor in determining the future
contribution rate of the employer whose offer of reemployment
was not accepted or whose offer of reemployment was refused
solely due to the distance of the available work from the
individual's residence, the individual's own serious illness,
the individual's other employment at the time of the offer, or
if the individual is in training with the approval of the
commissioner.
Benefits paid by another state as a result of Minnesota
transferring wage credits under the federally required combined
wage agreement shall not be directly charged to either the
taxpaying or reimbursing employer.
(f) [ACTS OR OMISSIONS.] An individual who was employed by
an employer shall not be disqualified for benefits under this
subdivision for any acts or omissions occurring after separation
from employment with the employer.
(g) [DISCIPLINARY SUSPENSIONS.] An individual shall be
disqualified for waiting week credit and benefits for the
duration of any disciplinary suspension of 30 days or less
resulting from the individual's own misconduct. Disciplinary
suspensions of more than 30 days shall constitute a discharge
from employment.
Sec. 5. Minnesota Statutes 1992, section 268.10,
subdivision 1, is amended to read:
Subdivision 1. [FILING.] (a) Claims for benefits shall be
made in accordance with such rules as the commissioner may
prescribe. Each employer shall post and maintain printed
statements of such rules in places readily accessible to
individuals in the employer's service and shall make available
to each such individual at the time of becoming unemployed, a
printed statement of such rules. Such printed statements shall
be supplied by the commissioner to each employer without cost to
the employer.
(b) Any employer upon separation of an employee from
employment for any reason which may result in disqualification
for benefits under section 268.09, shall furnish to such
employee a separation notice which shall provide the employer's
name, address, and employer account number as registered with
the department, the employee's name and social security account
number, the inclusive dates of employment, and the reason for
the separation. A copy of such separation notice shall be filed
with the commissioner within seven days of such separation. The
commissioner shall require each individual filing a new or
reopened claim for benefits to establish a benefit year to
furnish the reason for separation from all employers in the
individual's base period and the most recent employer.
(c) For the purpose of complying with section 268.04,
subdivision 2, the commissioner may require all base period
employers to provide such information as the commissioner may
prescribe, including, but not limited to, wages paid during any
part of the base period, whether or not such information was
previously provided.
(d) Upon establishment of a benefit year, the commissioner
shall give notice to the last employer for whom the individual
worked and all base period employers and registered successors
to those employers as defined in section 268.06, subdivision
22. The employer so notified shall have seven days after the
mailing of the notice to file a protest to monetary entitlement
or a protest raising an issue of ineligibility or
disqualification.
(e) If, upon review of the wage information on file with
the department, it is found that an employer failed to provide
wage information for the claimant, the commissioner shall accept
a claimant certification as to the wage credits earned, based
upon the claimant's records, and issue a monetary determination
of validity certification. This determination may be modified
based upon corrected information subsequently received from the
employer or other sources. The employer who failed to report
the individual's wages or filed an erroneous report may be
penalized in accordance with section 268.16 or 268.18. In the
absence of fraud, if a redetermination of validity of claim
based on an employer's late corrected or erroneous report
subsequently cancels or reduces the amount of benefits to which
a claimant was entitled under the initial determination, the
claimant shall not be required to make repayment to the fund of
any benefits paid prior to such redetermination; and.
(f) The commissioner shall determine any issue raised under
paragraph (d) or by an employer's late report. If an employer
fails to file a separation notice within the time limits
prescribed in paragraph (b), Any relief from benefit charges
provided by section 268.09, subdivision 1, paragraph (e), shall
apply to weeks of unemployment beginning after the filing of the
late report or protest.
Sec. 6. Minnesota Statutes 1993 Supplement, section
268.10, subdivision 2, is amended to read:
Subd. 2. [EXAMINATION OF CLAIMS; DETERMINATION; APPEAL.]
(1) An official, designated by the commissioner, shall promptly
examine each claim for benefits filed to establish a benefit
year pursuant to this section, and, on the basis of the facts
found, shall determine whether or not such claims are valid, and
if valid, the weekly benefit amount payable, the maximum benefit
amount payable during the benefit year, and the date the benefit
year terminates, and this determination shall be known as the
determination of validity. Notice of the determination of
validity or any redetermination as provided for in clause (4)
shall be promptly given the claimant and all other interested
parties. If within the time specified for the filing of a
protest as provided in subdivision 1, the employer makes an
allegation of disqualification or raises an issue of the
chargeability to the employer's account of benefits that may be
paid on such claim, if the claim is valid, the issue thereby
raised shall be promptly determined by said official and a
notification of the determination delivered or mailed to the
claimant and the employer. If an initial determination or a
referee's decision or the commissioner's decision awards
benefits, the benefits shall be paid promptly regardless of the
pendency of any appeal period or any appeal or other proceeding
which may thereafter be taken. Except as provided in clause
(6), if a referee's decision modifies or reverses an initial
determination awarding benefits, or if a commissioner's decision
modifies or reverses an appeal decision awarding benefits, any
benefits paid under the award of such initial determination or
referee's decision shall be deemed erroneous payments.
(2) At any time within 24 months from the date of the
filing of a valid claim for benefits by an individual, an
official of the department or any interested party or parties
raises an issue of claimant's eligibility for benefits for any
week or weeks in accordance with the requirements of the
provisions of sections 268.03 to 268.231 or any official of the
department or any interested party or parties or benefit year
employer raises an issue of disqualification in accordance with
the rules of the commissioner, a determination shall be made
thereon and a written notice thereof shall be given to the
claimant and such other interested party or parties or benefit
year employer. A determination issued under this clause which
denies benefits for weeks for which the claimant has previously
been paid benefits is an overpayment of those benefits subject
to section 268.18.
(3) A determination issued pursuant to clauses (1) and (2)
shall be final unless an appeal therefrom is filed by a claimant
or employer within 15 days after the mailing of the notice of
the determination to the last known address or personal delivery
of the notice. Every notice of determination shall contain a
prominent statement indicating in clear language the method of
appealing the determination, the time within which such an
appeal must be made, and the consequences of not appealing the
determination. A timely appeal from a determination of validity
in which the issue is whether an employing unit is an employer
within the meaning of this chapter or whether services performed
for an employer constitute employment within the meaning of this
chapter shall be subject to the provisions of section 268.12,
subdivision 13.
(4) At any time within 24 months from the date of the
filing of a valid claim for benefits by an individual, the
commissioner on the commissioner's own motion may reconsider a
determination of validity made thereon and make a
redetermination thereof on finding that an error in computation
or identity or the crediting of wage credits has occurred in
connection therewith or if the determination was made as a
result of a nondisclosure or misrepresentation of a material
fact. A determination or redetermination issued under this
clause which denies benefits for weeks for which the claimant
has previously been paid benefits is an overpayment of those
benefits subject to section 268.18.
(5) However, the commissioner may refer any disputed claims
directly to a referee for hearing and determination in
accordance with the procedure outlined in subdivision 3 and the
effect and status of such determination in such a case shall be
the same as though the matter had been determined upon an appeal
to the tribunal from an initial determination.
(6) If a referee's decision affirms an initial
determination awarding benefits or the commissioner affirms a
referee's decision awarding benefits, the decision, if finally
reversed, shall result in a disqualification only for weeks
following the week in which the commissioner's decision, or the
court's decision, reversing the award of benefits was issued and
benefits paid for that week and previous weeks shall neither be
deemed overpaid nor shall they be considered in determining any
individual employer's future contribution rate under section
268.06.
Sec. 7. Minnesota Statutes 1993 Supplement, section
268.161, subdivision 9, is amended to read:
Subd. 9. [PERSONAL LIABILITY.] Any officer, director, or
employee of a corporation or any manager, governor, member, or
employee of a limited liability company which is an employer
under sections 268.03 to 268.231, and any manager, governor, or
member of a limited liability company having 20 percent
ownership interest of a limited liability company which is an
employer under sections 268.03 to 268.231, who
(1) either individually or jointly with others, have or
should have had control of, supervision over, or responsibility
for the filing of the tax reports or the making of payments
under this chapter, and
(2) willfully fails to file the reports or to make payments
as required, shall be personally liable for contributions or
reimbursement, including interest, penalties, and costs in the
event the corporation does not pay to the department those
amounts for which the employer is liable.
For purposes of this subdivision, "willfulness" means that
the facts demonstrate that the responsible party used or allowed
the use of corporate or company assets to pay other creditors
knowing that the payments required under this chapter were
unpaid. An evil motive or intent to defraud is not necessary to
satisfy the willfulness requirement. Any personal
representative of the estate of a decedent or fiduciary who
voluntarily distributes the assets filed therein without
reserving a sufficient amount to pay the contributions,
interest, and penalties due pursuant to this chapter shall be
personally liable for the deficiency.
The personal liability of any person as provided herein
shall survive dissolution, reorganization, receivership, or
assignment for the benefit of creditors. For the purposes of
this subdivision, all wages paid by the corporation shall be
considered earned from the person determined to be personally
liable.
An official designated by the commissioner shall make an
initial determination as to the personal liability under this
section. The determination shall be final unless the person
found to be personally liable shall within 30 days after mailing
of notice of determination to the person's last known address
file a written appeal. Proceedings on the appeal shall be
conducted in the same manner as an appeal of an employer's
contribution rate or benefits charged to an employer's account
under section 268.06, subdivision 20.
Sec. 8. [REVISOR INSTRUCTION.]
In the next edition of Minnesota Statutes and Minnesota
Rules the revisor of statutes shall substitute the term
"reemployment insurance" for "unemployment compensation" or
"unemployment compensation insurance" where it occurs and does
not refer to federal unemployment compensation.
Presented to the governor April 20, 1994
Signed by the governor April 22, 1994, 1:47 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes