Office of the Revisor of Statutes
Minnesota Session Laws - 1995, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 54-S.F.No. 1060
An act relating to employment; modifying provisions
relating to reemployment insurance; amending Minnesota
Statutes 1994, sections 268.04, subdivision 10;
268.06, subdivisions 3a, 18, 19, 20, and 22; 268.08,
subdivision 6, and by adding a subdivision; 268.10,
subdivision 2; 268.12, subdivision 12; 268.16,
subdivisions 3a, 6, and by adding a subdivision;
268.161, subdivisions 8 and 9; 268.162, subdivision 2;
268.163, subdivision 3; 268.164, subdivision 3;
268.18, subdivisions 1, 2, 3, and 6; 270A.09,
subdivision 1a; 352.01, subdivision 2b; 352.22,
subdivision 10; and 574.26, subdivision 1; proposing
coding for new law in Minnesota Statutes, chapter 268;
repealing Minnesota Statutes 1994, sections 268.10,
subdivisions 3, 4, 5, 6, 7, 8, 9, and 10; and 268.12,
subdivisions 9, 10, and 13.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1994, section 268.04,
subdivision 10, is amended to read:
Subd. 10. [EMPLOYER.] "Employer" means: (1) Any employing
unit which, for some portion of a day, in each of 20 different
weeks, whether or not such weeks are or were consecutive, and
whether or not all of such weeks of employment are or were
within the state within either the current or preceding calendar
year, has or had in employment one or more individuals
(irrespective of whether the same individual or individuals were
employed in each such day) or in any calendar quarter in either
the current or preceding calendar year paid $1,500 or more for
services in employment, after December 31, 1995, has one or more
individuals performing services in employment for which there
were wages paid, within either the current or preceding calendar
year, except as provided in clause (18) (17) of this
subdivision;
(2) Any employing unit (whether or not an employing unit at
the time of acquisition) which acquired the organization, trade,
or business, or substantially all of the assets thereof, of
another employing unit which at the time of such acquisition was
an employer subject to this law; or which acquired a part of the
organization, trade, or business of another employing unit which
at the time of such acquisition was an employer subject to this
law;
(3) For purposes of clause (1), employment shall include
service which would constitute employment but for the fact that
such service is deemed to be performed entirely within another
state pursuant to an election under an arrangement entered into
(in accordance with section 268.13, subdivision 1) by the
commissioner and an agency charged with the administration of
any other state or federal unemployment compensation law;
(4) For purposes of clause (1), if any week includes both
December 31 and January 1, the days of that week up to January 1
shall be deemed one calendar week and the days beginning January
1 another such week;
(5) Any employing unit which acquired the organization,
trade, or business, or substantially all the assets thereof, of
another employing unit, and which, if treated as a single unit
with such other employing unit, would be an employer under
clause (1);
(6) (5) Any employing unit which, together with one or more
other employing units, is owned or controlled (by legally
enforceable means or otherwise) directly or indirectly by the
same interests, or which owns or controls one or more other
employing units (by legally enforceable means or otherwise) and
which, if treated as a single unit with such other employing
units or interests or both, would be an employer under clause
(1), except as provided in clause (18) (17);
(7) (6) Any joint venture composed of one or more employers
as otherwise defined herein;
(8) (7) Any nonresident employing unit which employs within
this state one or more employees for one or more weeks;
(9) (8) Any employing unit for which service in employment,
as defined in subdivision 12, clause (9), is performed;
(10) (9) Any employing unit which, having become an
employer under the preceding clauses or
clause (14), (15), or (16) or (17), has not, under section
268.11, ceased to be an employer subject to these sections;
(11) (10) For the effective period of its election pursuant
to section 268.11, subdivision 3, any other employing unit which
has elected to become subject to sections 268.03 to 268.231;
(12) (11) Notwithstanding any inconsistent provisions of
sections 268.03 to 268.231, any employing unit not an employer
by reason of any other clause of this subdivision for which
service is performed with respect to which such employing unit
is liable for any federal tax against which credit may be taken
for contributions required to be paid into a state unemployment
compensation fund or which, as a condition for the approval of
this law for full tax credit against the tax imposed by the
federal unemployment tax act, is required pursuant to such act,
to be an "employer" under the law;
(13) (12) Except as provided in clause (12) (11), and
notwithstanding any other provisions of sections 268.03 to
268.231, no employing unit shall be initially determined a
subject employer on the basis of covered employment performed
more than four years prior to the year in which such
determination is made, unless the commissioner finds that the
records of such employment experience were fraudulently
concealed or withheld for the purpose of escaping liability
under said sections;
(14) (13) Any employing unit for which service in
employment, as defined in subdivision 12, clause (7), is
performed;
(15) (14) Any employing unit for which service in
employment as defined in subdivision 12, clause (8) is
performed;
(16) (15) Any employing unit for which agricultural labor
as defined in subdivision 12, clause (13) is performed;
(17) (16) Any employing unit for which domestic service in
employment as defined in subdivision 12, clause (14) is
performed;
(18) (17) (a) In determining whether or not an employing
unit for which domestic service and other than domestic service
is performed is an employer under clause (1) or (6) (5), the
wages earned or the employment of an employee performing
domestic service shall not be taken into account.
(b) In determining whether or not an employing unit for
which agricultural labor and other than agricultural labor is
performed is an employer under clause (1), (9) (8) or (17) (16),
the wages earned or the employment of an employee performing
service in agricultural labor after December 31, 1977 shall not
be taken into account. If an employing unit is an employer of
agricultural labor the determination of whether it is an
"employer" shall be governed by clause (1).
Sec. 2. [268.041] [DETERMINATIONS OF COVERAGE.]
An official, designated by the commissioner, upon the
commissioner's own motion or upon application of an employing
unit, shall determine if an employing unit is an employer within
the meaning of this chapter or as to whether services performed
for it constitute employment within the meaning of this chapter,
or whether the remuneration for services constitutes wages as
defined in section 268.04, subdivision 25, and shall notify the
employing unit of the determination. The determination shall be
final unless the employing unit, within 30 days after the
mailing of notice of the determination to the employing unit's
last known address, files a written appeal from it. Proceedings
on the appeal shall be conducted in accordance with section
268.105.
Sec. 3. Minnesota Statutes 1994, section 268.06,
subdivision 3a, is amended to read:
Subd. 3a. [RATE FOR NEW EMPLOYERS.] Notwithstanding the
provisions of subdivision 2, each employer, who becomes subject
to this law, shall pay contributions at a rate:
(a) Not exceeding 5-4/10 percent, that is the higher of (1)
one percent and (2) the state's five-year benefit cost rate for
the 60 consecutive month period immediately preceding July 1 of
each year for each employer, except employers in the
construction industry. For purposes of this clause, the state's
five-year benefit cost rate shall be computed annually and shall
be derived by dividing the total dollar amount of benefits paid
to claimants under this law during the 60 consecutive calendar
months immediately preceding July 1 of each year by the total
dollar amount of wages subject to contributions under this law
during the same period. The rate so determined shall be
applicable for the calendar year next succeeding each
computation date.
(b) Each employer in the construction industry who becomes
subject to this chapter shall pay contributions at a rate, not
exceeding the maximum contribution rate for all employers as
provided under subdivision 8, that is the higher of (1) one
percent, or (2) the state's five-year benefit cost rate for
construction employers for the 60 consecutive month period
immediately preceding July 1 of each year. For purposes of this
clause, the state's five-year benefit cost rate shall be
computed annually and shall be derived by dividing the total
dollar amount of benefits paid to claimants of construction
employers during the 60 consecutive calendar months immediately
preceding July 1 of each year by the total dollar amount of
wages of construction employers subject to contributions during
the same period. The rate so determined shall be applicable for
the calendar year next succeeding each computation date.
For purposes of this subdivision an employer is in the
construction industry if assigned an industrial classification
within division C of the Standard Industrial Classification
Manual issued by the United States Office of Management and
Budget as determined by the tax branch of the department, except
as excluded by rules adopted by the commissioner.
Sec. 4. Minnesota Statutes 1994, section 268.06,
subdivision 18, is amended to read:
Subd. 18. [NOTICE TO EMPLOYER.] The commissioner shall
mail to the last known address of each employer a quarterly
notice of the benefits which have been charged to the employer's
account, as determined by the department. Unless reviewed in
the manner hereinafter provided, charges set forth in such
notice, or as modified by a redetermination, a decision of a
referee reemployment insurance judge, or the commissioner, shall
be final and shall be used in determining the contribution rates
for all years in which the charges occur within the employer's
experience period and shall not be subject to collateral attack
by way of review of a rate determination, application for
adjustment or refund, or otherwise.
Sec. 5. Minnesota Statutes 1994, section 268.06,
subdivision 19, is amended to read:
Subd. 19. [NOTICE OF RATE.] The commissioner shall mail to
the last known address of each employer notice of the employer's
contribution rate as determined for any calendar year pursuant
to this section. Such notice shall contain the contribution
rate, factors used in determining the individual employer's
experience rating, and such other information as the
commissioner may prescribe. Unless changed by the procedure
provided in this subdivision, the assigned rate as initially
determined or as changed by a redetermination by the tax branch
of this department, a decision of a referee reemployment
insurance judge, or the commissioner shall be final except for
fraud and shall be the rate upon which contributions shall be
computed for the calendar year for which such rate was assigned,
and shall not be subject to collateral attack for any errors,
clerical or otherwise, whether by way of claim for adjustment or
refund, or otherwise. If the legislature changes any of the
factors used to determine the contribution rate of any employer
for any year subsequent to the original mailing of such notice
for the year, the earlier notice shall be void. The notice
based on the new factors shall be deemed to be the only notice
of rate of contributions for that year and shall be subject to
the same finality, redetermination, and review procedures as
provided above.
Sec. 6. Minnesota Statutes 1994, section 268.06,
subdivision 20, is amended to read:
Subd. 20. [PROTEST, REVIEW, REDETERMINATION, APPEAL.] A
review of the charges made to an employer's account as set forth
in the notice of charges referred to in subdivision 18 and a
review of an employer's contribution rate as set forth in the
notice of the employer's rate for any calendar year as provided
in subdivision 19, may be had by the employer by filing with the
commissioner a written protest setting forth reasons therefor
within 30 days from the date of the mailing of the notice of
charges or contribution rate to the employer. The date shall
appear on the notice. Upon receipt of the protest, the
commissioner shall refer the matter to an official designated by
the commissioner to review the charges appearing on the notice
appealed from or the computations of the protesting employer's
rate, as the case may be, to determine whether or not there has
been any clerical error or error in computation in either case.
The official shall either affirm or make a redetermination
rectifying the charges or rate as the case may be, and a notice
of the affirmation or redetermination shall immediately be
mailed to the employer. If the employer is not satisfied with
the affirmation or redetermination, the employer may appeal by
filing a written notice with the department within ten days
after the date of mailing appearing upon the
redetermination. Upon the receipt of the appeal, the
commissioner shall refer the matter to a referee for a hearing
and after opportunity for a fair hearing, the referee shall
affirm, modify, or set aside the original determination with its
affirmation or the redetermination, as appears just and proper.
Proceedings on the appeal shall be conducted in accordance with
section 268.105. The commissioner may at any time upon the
commissioner's own motion correct any clerical error of the
department resulting in charges against an employer's account or
any error in the computation or the assignment of an employer's
contribution rate. The referee may order the consolidation of
two or more appeals whenever, in the referee's judgment,
consolidation will not be prejudicial to any interested party.
At any hearing a written report of any employee of the
department which has been authenticated shall be admissible in
evidence. Appeals from the decision of the referee shall be
provided by section 268.10, subdivision 5.
Sec. 7. Minnesota Statutes 1994, section 268.06,
subdivision 22, is amended to read:
Subd. 22. [EMPLOYMENT EXPERIENCE RECORD TRANSFER.] (a)
When an employing unit succeeds to or acquires the organization,
trade or business or substantially all the assets of another
employing unit which at the time of the acquisition was an
employer subject to this law, and continues such organization,
trade or business, the experience rating record of the
predecessor employer shall be transferred as of the date of
acquisition to the successor employer for the purpose of rate
determination.
(b) When an employing unit succeeds to or acquires a
distinct severable portion of the organization, trade, business,
or assets which is less than substantially all of the employing
enterprises of another employing unit, the successor employing
unit shall acquire the experience rating record attributable to
the portion to which it has succeeded, and the predecessor
employing unit shall retain the experience rating record
attributable to the portion which it has retained, if (1) the
successor continues the organization, trade, or business of the
portion acquired, (2) the successor makes a written request to
file an application for the transfer of the experience rating
record for the severable portion acquired from the predecessor
(3) and within 90 days from the date the application is mailed
to the last known address of the successor the successor and
predecessor employing units jointly sign and file a properly
completed, written application as prescribed by the commissioner
that furnishes the commissioner with sufficient information to
substantiate the severable portion and to assign the appropriate
total and taxable wages and benefit charges to the successor for
experience rating purposes. Previously assigned contribution
rates that have become final in accordance with subdivision 19
prior to the filing of the written request to file an
application shall not be affected by the transfer.
(c) Employment with a predecessor employer shall not be
deemed to have been terminated if similar employment is offered
by the successor employer and accepted by the employee.
(d) An official, designated by the commissioner, upon the
official's own motion or upon application of an employing unit
shall determine if an employing unit is a successor within the
meaning of this subdivision and shall mail notice of such
determination to the last known address of the employing unit.
The determination shall be final unless a written appeal is
filed by the employing unit within 30 days after mailing of the
notice of determination. Proceedings on the appeal shall
be conducted in accordance with section 268.12, subdivision 13
268.105.
(e) Notwithstanding subdivision 19, the commissioner may,
as the result of any determination or decision regarding
succession or nonsuccession, recompute the rate of all employers
affected by the determination or decision for any year,
including the year of the acquisition or succession and
subsequent years, that is affected by the transfer or
nontransfer of part or all of the experience rating record under
this subdivision. This paragraph does not apply to rates that
have become final in accordance with subdivision 19 prior to the
filing of a written request to file an application for the
transfer of a severable portion of the experience rating record
as provided in paragraph (b).
Sec. 8. Minnesota Statutes 1994, section 268.08, is
amended by adding a subdivision to read:
Subd. 5a. [SELF-EMPLOYMENT.] (a) An individual who is
determined to be likely to exhaust regular reemployment
insurance benefits and is enrolled in a dislocated worker
program shall be considered in approved training for purposes of
this chapter for each week the individual is engaged on a
full-time basis in activities, including training, relating to
the establishment of a business and becoming self-employed. An
individual who meets the requirements of this subdivision shall
be considered unemployed for purposes of this chapter. Income
earned from the self-employment activity shall not be considered
for purposes of section 268.07, subdivision 2, paragraph (g).
Under no circumstances shall more than five percent of the
number of individuals receiving regular reemployment insurance
benefits be actively enrolled in this program at any time. This
subdivision shall not apply to persons claiming state or federal
extended or additional benefits.
(b) This subdivision shall apply to weeks beginning after
the date of enactment or weeks beginning after approval of this
subdivision by the United States Department of Labor whichever
date is later. This subdivision shall have no force or effect
for any purpose as of the end of the week preceding the date
when federal law no longer authorizes the provisions of this
subdivision, unless such date is a Saturday in which case this
subdivision shall have no force and effect for any purpose as of
that date.
Sec. 9. Minnesota Statutes 1994, 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, 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 an educational institution 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, including instructional assistants, 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. An individual who has an agreement for
a definite period of employment between academic years or terms
shall be eligible for any weeks within that period the
educational institution fails to provide employment. 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. 10. Minnesota Statutes 1994, 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 reemployment insurance judge'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 reemployment
insurance judge's decision modifies or reverses an initial
determination awarding benefits, or if a commissioner's decision
modifies or reverses an appeal a reemployment insurance judge's
decision awarding benefits, any benefits paid under the award of
such initial determination or referee's reemployment insurance
judge'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 a written 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 An interested party may
appeal from a determination of validity in which issued pursuant
to clause (1) on the issue is of 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. Proceedings on the appeal shall
be conducted in accordance with section 268.105.
(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 reemployment insurance judge for hearing
and determination decision in accordance with the procedure
outlined in subdivision 3 section 268.105 and the effect and
status of such determination decision 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 reemployment insurance judge's decision
affirms an initial determination awarding benefits or the
commissioner affirms a referee's reemployment insurance judges's
decision awarding benefits, the decision, if finally reversed,
shall result in a disqualification only for weeks following the
week in which the 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. 11. [268.105] [APPEAL; HEARING.]
Subdivision 1. [HEARING.] Upon appeal the department shall
set a time and place for a de novo hearing and give the
interested parties written notice of it, by mail, not less than
ten days prior to the time of the hearing. The commissioner
shall by rule adopt a procedure by which reemployment insurance
judges hear and decide appeals, subject to further appeal to the
commissioner. The rules need not conform to common law or
statutory rules of evidence and other technical rules of
procedure. The written report of any employee of the department
of economic security, except a determination, made in the
regular course of the performance of the employee's duties,
shall be competent evidence of the facts contained in it. After
the conclusion of the hearing, upon the evidence presented, the
reemployment insurance judge shall mail findings of fact and
decision to all interested parties. The reemployment insurance
judge's decision is final unless a further appeal is filed
pursuant to subdivision 3.
Subd. 2. [REEMPLOYMENT INSURANCE JUDGES.] The commissioner
shall designate one or more impartial reemployment insurance
judges to conduct hearings on appeals. The commissioner or
authorized representative may personally hear or transfer to
another reemployment insurance judge any proceedings pending
before a reemployment insurance judge. Any proceedings removed
to the commissioner or authorized representative shall be heard
in accordance with subdivision 1.
Subd. 3. [COMMISSIONER REVIEW.] Within 30 days after
mailing of the reemployment insurance judge's decision, an
interested party may appeal in writing and obtain a review by
the commissioner or an authorized representative. The
commissioner within the same period of time may on the
commissioner's own motion order a review of a decision. Upon
review, the commissioner or authorized representative shall, on
the basis of the evidence submitted at the hearing before the
reemployment insurance judge, make findings of fact and
decision, or remand the matter back to the reemployment
insurance judge for the taking of additional evidence and new
findings and decision based on all the evidence. The
commissioner may disregard the findings of fact of the
reemployment insurance judge and examine the evidence and make
any findings of fact as the evidence may, in the judgment of the
commissioner require, and make any decision as the facts found
by the commissioner require. The commissioner shall mail to all
interested parties the findings of fact and decision. The
decision of the commissioner is final unless judicial review is
sought as provided by subdivision 7.
Subd. 4. [TESTIMONIAL POWERS.] In the discharge of the
duties imposed by this section, the reemployment insurance
judge, the commissioner, or authorized representative, may
administer oaths and affirmations, take depositions, certify to
official acts, and issue subpoenas to compel the attendance of
witnesses and the production of books, papers, correspondence,
memoranda, and other records deemed necessary as evidence in
connection with the subject matter of the hearing. The
subpoenas shall be enforceable through the district court in the
district in which the subpoena is issued. Witnesses, other than
an interested party or officers and employees of an interested
party, subpoenaed pursuant to this section shall be allowed fees
the same as witness fees in a civil action in district court.
These fees shall be deemed a part of the expense of
administering sections 268.03 to 268.231.
Subd. 5. [USE OF INFORMATION.] All testimony at any
hearing conducted pursuant to subdivision 1 shall be recorded,
but shall be transcribed only if the disputed claim is appealed
further and is requested by a party, or as directed by the
commissioner or an authorized representative. Testimony
obtained under subdivision 1, may not be used or considered in
any civil, administrative, or contractual proceeding, except by
a local, state, or federal human rights group with enforcement
powers, unless the proceeding is initiated by the department.
No findings of fact or decision issued by a reemployment
insurance judge or the commissioner or authorized representative
may be held conclusive or binding or used as evidence in any
separate or subsequent action in any other forum, except
proceedings provided for under chapter 268, regardless of
whether the action involves the same or related parties or
involves the same facts.
Subd. 6. [REPRESENTATION; FEES.] In any proceeding under
these sections, a party may be represented by any agent. Except
for services provided by an attorney-at-law, a claimant for
benefits shall not be charged fees of any kind in a proceeding
before a reemployment insurance judge, the commissioner or
authorized representative, or by any court or any of its
officers.
Subd. 7. [COURT OF APPEALS; ATTORNEY FOR
COMMISSIONER.] The court of appeals may, by writ of certiorari
to the commissioner, review any decision of the commissioner
provided a petition for the writ is filed and served upon the
commissioner and the adverse party within 30 days of the mailing
of the commissioner's decision. Any interested party, except a
claimant for benefits, upon the service of the writ shall
furnish a cost bond to the commissioner in accordance with rule
107 of the rules of civil appellate procedure. The commissioner
shall be deemed to be a party to any judicial action involving
any decision and shall be represented by any qualified attorney
who is a regular salaried employee of the department of economic
security and has been designated by the commissioner for that
purpose or, at the commissioner's request, by the attorney
general.
Sec. 12. Minnesota Statutes 1994, section 268.12,
subdivision 12, is amended to read:
Subd. 12. [INFORMATION.] Except as hereinafter otherwise
provided, data gathered from any employing unit or individual
pursuant to the administration of sections 268.03 to 268.231,
and from any determination as to the benefit rights of any
individual are private data on individuals or nonpublic data not
on individuals as defined in section 13.02, subdivisions 9 and
12, and may not be disclosed except pursuant to this subdivision
or a court order. These data may be disseminated to and used by
the following agencies without the consent of the subject of the
data:
(a) state and federal agencies specifically authorized
access to the data by state or federal law;
(b) any agency of this or any other state; or any federal
agency charged with the administration of an employment security
law or the maintenance of a system of public employment offices;
(c) local human rights groups within the state which have
enforcement powers;
(d) the department of revenue shall have access to
department of economic security private data on individuals and
nonpublic data not on individuals only to the extent necessary
for enforcement of Minnesota tax laws;
(e) public and private agencies responsible for
administering publicly financed assistance programs for the
purpose of monitoring the eligibility of the program's
recipients;
(f) the department of labor and industry on an
interchangeable basis with the department of economic security
subject to the following limitations and notwithstanding any law
to the contrary:
(1) the department of economic security shall have access
to private data on individuals and nonpublic data not on
individuals for uses consistent with the administration of its
duties under sections 268.03 to 268.231; and
(2) the department of labor and industry shall have access
to private data on individuals and nonpublic data not on
individuals for uses consistent with the administration of its
duties under state law;
(g) the department of trade and economic development may
have access to private data on individual employing units and
nonpublic data not on individual employing units for its
internal use only; when received by the department of trade and
economic development, the data remain private data on
individuals or nonpublic data;
(h) local and state welfare agencies for monitoring the
eligibility of the data subject for assistance programs, or for
any employment or training program administered by those
agencies, whether alone, in combination with another welfare
agency, or in conjunction with the department of economic
security;
(i) local, state, and federal law enforcement agencies for
the sole purpose of ascertaining the last known address and
employment location of the data subject, provided the data
subject is the subject of a criminal investigation; and
(j) the department of health may have access to private
data on individuals and nonpublic data not on individuals solely
for the purposes of epidemiologic investigations.
Data on individuals and employing units which are
collected, maintained, or used by the department in an
investigation pursuant to section 268.18, subdivision 3, are
confidential as to data on individuals and protected nonpublic
data not on individuals as defined in section 13.02,
subdivisions 3 and 13, and shall not be disclosed except
pursuant to statute or court order or to a party named in a
criminal proceeding, administrative or judicial, for preparation
of a defense.
Tape recordings and transcripts of recordings of
proceedings before a referee of the department conducted in
accordance with section 268.105 and exhibits offered by parties
other than the department and received into evidence at those
proceedings are private data on individuals and nonpublic data
not on individuals and shall be disclosed only pursuant to the
administration of section 268.10, subdivisions 3 to 8 268.105,
or pursuant to a court order.
Aggregate data about employers compiled from individual job
orders placed with the department of economic security are
private data on individuals and nonpublic data not on
individuals as defined in section 13.02, subdivisions 9 and 12,
if the commissioner determines that divulging the data would
result in disclosure of the identity of the employer. The
general aptitude test battery and the nonverbal aptitude test
battery as administered by the department are also classified as
private data on individuals or nonpublic data.
Data on individuals collected, maintained, or created
because an individual applies for benefits or services provided
by the energy assistance and weatherization programs
administered by the department of economic security is private
data on individuals and shall not be disseminated except
pursuant to section 13.05, subdivisions 3 and 4.
Data gathered by the department pursuant to the
administration of sections 268.03 to 268.231 shall not be made
the subject or the basis for any suit in any civil proceedings,
administrative or judicial, unless the action is initiated by
the department.
Testimony obtained under subdivision 13 and section 268.10,
subdivision 3, may not be used or considered in any civil,
administrative, or contractual proceeding, except by a local,
state, or federal human rights group with enforcement powers,
unless the proceeding is initiated by the department.
Sec. 13. Minnesota Statutes 1994, section 268.16,
subdivision 3a, is amended to read:
Subd. 3a. [COSTS.] Any employing unit which fails to make
and submit reports or pay any contributions or reimbursement
when due is liable to the department for any recording fees,
sheriff fees, costs incurred by referral to any public or
private agency outside the department, or litigation costs
incurred in the collection of the amounts due or obtaining the
reports.
If any check or money order, in payment of any amount due
under this chapter, is not honored when presented for payment,
the employing unit will be assessed a fee of $20 which is in
addition to any other fees provided by this chapter. The fee
shall be assessed regardless of the amount of the check or money
order or the reason for nonpayment with the exception of
processing errors made by a financial institution.
Costs due under this subdivision shall be paid to the
department and credited to the administration fund.
Sec. 14. Minnesota Statutes 1994, section 268.16,
subdivision 6, is amended to read:
Subd. 6. [ADJUSTMENTS, REFUNDS.] If an employer makes an
application for an adjustment of any amount paid as
contributions or interest thereon, to be applied against
subsequent contribution payments, or for a refund thereof
because such adjustment cannot be made, and the payment was made
within four years prior to the year in which the application is
made, and if the commissioner shall determine that payment of
such contributions or interest or any portion thereof was
erroneous, the commissioner shall allow such employer to make an
adjustment thereof, without interest, in connection with
subsequent contribution payments by the employer, or if such
adjustment cannot be made, the commissioner shall refund from
the fund to which such payment has been credited, without
interest, the amount erroneously paid. For like cause and
within the same period, adjustment or refund may be so made on
the commissioner's own initiative.
In the event that any application for adjustment or refund
is denied in whole or in part, a written notice of such denial
shall be mailed to the applicant. Within 30 days after the
mailing of such notice of denial to the applicant's last known
address, the applicant may request, in writing, that the
commissioner grant a hearing for the purpose of reconsidering
the facts submitted and to consider any additional information.
Proceedings on the appeal shall be had conducted in accordance
with section 268.12, subdivision 13 268.105.
Sec. 15. Minnesota Statutes 1994, section 268.16, is
amended by adding a subdivision to read:
Subd. 9. [PRIOR DECISIONS.] In the event a final decision
on an appeal under section 268.105 determines the amount of
contributions due under sections 268.03 to 268.231, then, if the
amount, together with interest and penalties, is not paid within
30 days after the decision, the provisions of section 268.161
apply. The commissioner shall proceed thereunder, substituting
a certified copy of the final decision in place of the
contribution report. A final decision on an appeal under
section 268.105 is conclusive for all the purposes of sections
268.03 to 268.231 except as otherwise provided, and, together
with the records therein made, shall be admissible in any
subsequent judicial proceeding involving liability for
contributions.
Sec. 16. Minnesota Statutes 1994, section 268.161,
subdivision 8, is amended to read:
Subd. 8. [LEVY.] (a) If any contribution or reimbursement
payable to the department is not paid when due, the amount may
be collected by the commissioner, a duly authorized
representative, or by the sheriff of any county to whom the
commissioner has issued a warrant, who may levy upon all
property and rights of property of the person liable for the
contribution or reimbursement, (except that which is exempt from
execution pursuant to section 550.37), or property on which
there is a lien provided by subdivision 1. The terms
"contribution or reimbursement" shall include any penalty,
interest, and costs. The term "levy" includes the power of
distraint and seizure by any means. Before a levy is made or
warrant issued, notice and demand for payment of the amount due
shall be given to the person liable for the contribution or
reimbursement at least ten days prior to the levy or issuing of
a warrant.
(b) Upon the commissioner issuing a warrant, the sheriff
shall proceed within 60 days to levy upon the rights to property
of the employer within the employer's county, except the
homestead and household goods of the employer and property of
the employer not liable to attachment, garnishment, or sale on
any final process issued from any court under the provisions of
section 550.37, and shall sell so much thereof as is required to
satisfy the contribution, reimbursement, interest, and
penalties, together with the commissioner's costs. The sales
shall, as to their manner, be governed by the law applicable to
sales of like property on execution issued against property upon
a judgment of a court of record. The proceeds of the sales,
less the sheriff's costs, shall be turned over to the
commissioner, who shall retain a part thereof as is required to
satisfy the contribution, reimbursement, interest, penalties,
and costs, and pay over any balance to the employer.
(c) If the commissioner has reason to believe that
collection of the contribution or reimbursement is in jeopardy,
notice and demand for immediate payment of the amount may be
made by the commissioner. If the contribution or reimbursement
is not paid, the commissioner may proceed to collect by levy or
issue a warrant without regard to the ten-day period provided
herein.
(d) In making the execution of the levy and in collecting
the contribution or reimbursement due, the commissioner shall
have all of the powers provided in chapter 550 and in any other
law for purposes of effecting an execution against property in
this state. The sale of property levied upon and the time and
manner of redemption therefrom shall be as provided in chapter
550. The seal of the court, subscribed by the court
administrator, as provided in section 550.04, shall not be
required. The levy for collection of contributions or
reimbursements may be made whether or not the commissioner has
commenced a legal action for collection of the amount.
(e) Where a jeopardy assessment or any other assessment has
been made by the commissioner, the property seized for
collection of the contribution or reimbursement shall not be
sold until any determination of liability, rate, or benefit
charges has become final. No sale shall be made unless the
contribution or reimbursement remain unpaid for a period of more
than 30 days after the determination becomes final. Seized
property may be sold at any time if:
(1) the employer consents in writing to the sale; or
(2) the commissioner determines that the property is
perishable or may become greatly reduced in price or value by
keeping, or that the property cannot be kept without great
expense.
(f) Where a levy has been made to collect contributions or
reimbursements pursuant to this subdivision and the property
seized is properly included in a formal proceeding commenced
under sections 524.3-401 to 524.3-505 and maintained under full
supervision of the court, the property shall not be sold until
the probate proceedings are completed or until the court so
orders.
(g) The property seized shall be returned by the
commissioner if the owner gives a surety bond equal to the
appraised value of the owner's interest in the property, as
determined by the commissioner, or deposits with the
commissioner security in a form and amount as the commissioner
deems necessary to insure payment of the liability, but not more
than twice the liability.
(h) Notwithstanding any other law to the contrary, if a
levy or sale pursuant to this section would irreparably injure
rights in property which the court determines to be superior to
rights of the state in the property, the district court may
grant an injunction to prohibit the enforcement of the levy or
to prohibit the sale.
(i) Any person who fails or refuses to surrender without
reasonable cause any property or rights to property subject to
levy upon demand by the commissioner shall be personally liable
to the department in an amount equal to the value of the
property or rights not so surrendered, but not exceeding the
amount of contribution or reimbursement for the collection of
which the levy has been made. Any amount recovered under this
subdivision shall be credited against the contribution or
reimbursement liability for the collection of which the levy was
made. The term "person" includes an officer or employee of a
corporation or a member or employee of a partnership who, as an
officer, employee, or member is under a duty to surrender the
property or rights to property or to discharge the obligation.
(j) Any action taken by the commissioner pursuant to this
subdivision shall not constitute an election by the department
to pursue a remedy to the exclusion of any other remedy.
(k) After the commissioner has seized the property of any
person, that person may, upon giving 48 hours notice to the
commissioner and to the court, bring a claim for equitable
relief before the district court for the release of the property
to the employer upon terms and conditions as the court may deem
equitable.
(l) Any person in possession of (or obligated with respect
to) property or rights to property subject to levy upon which a
levy has been made who, upon demand by the commissioner,
surrenders the property or rights to property or who pays a
liability under this subdivision shall be discharged from any
obligation or liability to the person liable for the payment of
the delinquent contribution or reimbursement with respect to the
property or rights to property so surrendered or paid.
(m) Notwithstanding any other provisions of law to the
contrary, the notice of any levy authorized by this section may
be served by certified or registered mail or by delivery by an
employee or agent of the department of economic security.
(n) It shall be lawful for the commissioner to release the
levy upon all or part of the property or rights to property
levied upon if the commissioner determines that the release will
facilitate the collection of the liability, but the release
shall not operate to prevent any subsequent levy. If the
commissioner determines that property has been wrongfully levied
upon, it shall be lawful for the commissioner to return:
(1) the specific property levied upon, at any time; or
(2) an amount of money equal to the amount of money levied
upon, at any time before the expiration of nine months from the
date of levy.
(o) Notwithstanding section 52.12, a levy by the
commissioner made pursuant to the provisions of this section
upon an employer's funds on deposit in a financial institution
located in this state, shall have priority over any unexercised
right of setoff of the financial institution to apply the levied
funds toward the balance of an outstanding loan or loans owed by
the employer to the financial institution. A claim by the
financial institution that it exercised its right to setoff
prior to the levy by the commissioner must be substantiated by
evidence of the date of the setoff, and shall be verified by the
sworn statement of a responsible corporate officer of the
financial institution. Furthermore, for purposes of determining
the priority of any levy made under this section, the levy shall
be treated as if it were an execution made pursuant to chapter
550.
Sec. 17. Minnesota Statutes 1994, 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, 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 protest. Upon receipt of the protest, the
official shall reexamine the personal liability determination
and either affirm or redetermine the assessment of personal
liability and a notice of the affirmation or redetermination
shall be mailed to the person's last known address. The
affirmation or redetermination shall become final unless a
written appeal is filed within ten days of the date of mailing.
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 accordance with section 268.105.
Sec. 18. Minnesota Statutes 1994, section 268.162,
subdivision 2, is amended to read:
Subd. 2. [REASONABLE VALUE.] An official, designated by
the commissioner, upon the official's own motion or upon
application of the potential successor, shall determine the
reasonable value of the organization, trade, or business or
assets acquired by the successor based on available
information. The determination shall be final unless the
successor, within 30 days after the mailing of notice of the
determination to the successor's last known address, files a
written appeal from it. Any appeals of a determination under
this subdivision shall be conducted in the same manner as an
appeal under section 268.12, subdivision 13. Proceedings on the
appeal shall be conducted in accordance with section 268.105.
Sec. 19. Minnesota Statutes 1994, section 268.163,
subdivision 3, is amended to read:
Subd. 3. [DETERMINATION OF LIABILITY.] An official
designated by the commissioner shall make an initial
determination as to the liability under this section. The
determination shall be final unless the contractor or person
found to be liable files a written appeal within 30 days after
mailing of notice of determination to the person's last known
address. Proceedings on the appeal shall be conducted in the
same manner as an appeal from a determination of employer
liability under section 268.12, subdivision 13 accordance with
section 268.105.
Sec. 20. Minnesota Statutes 1994, section 268.164,
subdivision 3, is amended to read:
Subd. 3. [NOTICE AND RIGHT TO HEARING.] At least 30 days
before the commissioner notifies a licensing authority pursuant
to subdivision 1, a notice and demand for payment of the amount
due shall be given to the applicant. If the applicant disputes
the amount due, the applicant must request a hearing in writing
within 30 days after the mailing of the notice and demand for
payment to the applicant's last known address. Proceedings on
the appeal of the amount due shall be conducted in the same
manner as an appeal from a determination of employer liability
under section 268.12, subdivision 13 accordance with section
268.105.
Sec. 21. Minnesota Statutes 1994, section 268.18,
subdivision 1, is amended to read:
Subdivision 1. [ERRONEOUS PAYMENTS.] (a) Any claimant for
benefits who, by reason of the claimant's own mistake or through
the error of any individual engaged in the administration of
sections 268.03 to 268.231 or because of a determination or
redetermination issued pursuant to section 268.10, subdivision
2, has received any sum as benefits to which the claimant was
not entitled under these sections, shall promptly return those
benefits in cash to the nearest office of the Minnesota
department of economic security. If the claimant fails to
return the benefits, the department of economic security shall,
as soon as it discovers the erroneous payment, determine the
amount due and notify the individual to return it.
(b) Unless the claimant files a written appeal with the
department of economic security within 15 days after the mailing
of the notice of determination to the claimant's last known
address or personal delivery of the notice, the determination
shall become final. If the claimant files an appeal with the
department in writing within the time above the matter shall be
set for hearing before a referee of the department and heard as
other benefit matters are heard in accordance with section
268.10 with the same rights of review as outlined for benefit
cases in that section. Proceedings on the appeal shall be
conducted in accordance with section 268.105.
(c) The commissioner of the department of economic security
is authorized to deduct from any future benefits payable to the
claimant under these sections in either the current or any
subsequent benefit year an amount equivalent to the overpayment
determined, except that no single deduction shall exceed 50
percent of the amount of the payment from which the deduction is
made, or the overpayment may be collected the same as
contributions or reimbursements under section 268.161. If a
claimant has been overpaid benefits under the law of another
state due to error and that state certifies to the department
the facts involved and that the individual is liable under its
law to repay the benefits and requests the department to recover
the overpayment, the commissioner is authorized to deduct from
future benefits payable to the claimant in either the current or
any subsequent benefit year an amount equivalent to the amount
of overpayment determined by that state, except that no single
deduction shall exceed 50 percent of the amount of the payment
from which the deduction is made. Benefits paid for weeks more
than three years prior to the discovery of error are not
erroneous payments.
(d) Notwithstanding paragraph (a), the commissioner shall
waive recovery of an overpayment if a referee reemployment
insurance judge or the commissioner's representative determines
the overpayment resulted from an administrative failure to
identify that a claimant's wage credits were not earned in
covered employment.
Sec. 22. Minnesota Statutes 1994, section 268.18,
subdivision 2, is amended to read:
Subd. 2. [FRAUD.] Any claimant who files a claim for or
receives benefits by knowingly and willfully misrepresenting or
misstating any material fact or by knowingly and willfully
failing to disclose any material fact which would make the
claimant ineligible for benefits under sections 268.03 to
268.231 is guilty of fraud. After the discovery of facts by the
commissioner indicating fraud in claiming or obtaining benefits
under sections 268.03 to 268.231, the commissioner is hereby
authorized to make a determination that the claimant was
ineligible for each week with reference to which benefits were
claimed or obtained by fraud for the amount as was in excess of
what the claimant would have been entitled to had the claimant
not made the fraudulent statements or failed to disclose any
material facts. The commissioner also may disqualify an
individual from benefits for one to 52 weeks in which the
claimant is otherwise eligible for benefits following the week
in which the fraud was determined. A disqualification imposed
for fraud shall not be removed by subsequent insured work or the
expiration of a benefit year but shall not apply to any week
more than 104 weeks after the week in which the fraud was
determined. The claimant shall promptly repay in cash to the
department of economic security any benefits fraudulently
obtained. Unless the claimant files a written appeal with the
department of economic security within 15 days after the mailing
of the notice of determination to the claimant's last known
address or personal delivery of the notice, the determination
shall become final. If the claimant appeals from the
determination within the time above specified the matter shall
be referred to a referee for a hearing as in other benefit cases
and thereafter the procedure for review shall be the same as set
forth in section 268.10. Proceedings on the appeal shall be
conducted in accordance with section 268.105. The commissioner
is hereby authorized to deduct from future benefits payable to
the claimant in either the current or any subsequent benefit
year an amount equivalent to the amount of overpayment
determined disregarding the 50 percent limitation provided for
in subdivision 1 or the overpayment may be collected the same as
contributions or reimbursements under section 268.161. If a
claimant has been overpaid benefits under the law of another
state due to fraud and that state certifies to the department
the facts involved and that the individual is liable to repay
the benefits and requests the department to recover the
overpayment, the commissioner is authorized to deduct from
future benefits payable to the claimant in either the current or
any subsequent benefit year an amount equivalent to the amount
of overpayment determined by that state disregarding the 50
percent limitation provided for in subdivision 1. A
determination of fraud may be made at any time.
Sec. 23. Minnesota Statutes 1994, section 268.18,
subdivision 3, is amended to read:
Subd. 3. [FALSE REPRESENTATIONS; CONCEALMENT OF FACTS;
PENALTY.] (a) Whoever obtains, or attempts to obtain, or aids or
abets any person to obtain by means of a willfully false
statement or representation, by intentional concealment of a
material fact, or by impersonation or other fraudulent device,
benefits to which the person is not entitled or benefits greater
than that to which the person is entitled under this chapter, or
under the employment security law of any state or of the federal
government or of a foreign government, either personally or for
any other person, shall be guilty of theft and shall be
sentenced pursuant to section 609.52, subdivision 3, clauses
(2), (3)(a) and, (c), and (d), (4), and (5). The amount of the
benefits incorrectly paid shall be the difference between the
amount of benefits actually received and the amount which the
person would have been entitled under state and federal law had
the department been informed of all material facts.
(b) Any employing unit or any officer or agent of an
employing unit or any other person who makes a false statement
or representation knowing it to be false, or who knowingly fails
to disclose a material fact, to prevent or reduce the payment of
benefits to any individual entitled thereto, or to avoid
becoming or remaining a subject employer or to avoid or reduce
any contribution or other payment required from an employing
unit under this chapter or under the employment security law of
any state or of the federal government, or who willfully fails
or refuses to make any such contributions or other payment at
the time required shall be guilty of a gross misdemeanor unless
the benefit underpayment, contribution, or other payment
involved exceeds $250, in which event the person is guilty of a
felony.
(c) Any person who willfully fails to produce or permit the
inspection or copying of books, papers, records, or memoranda as
required or when requested under section 268.12, subdivision 8,
or to furnish any required reports other than contribution
reports shall be guilty of a gross misdemeanor.
Sec. 24. Minnesota Statutes 1994, section 268.18,
subdivision 6, is amended to read:
Subd. 6. [EMPLOYER MISCONDUCT; PENALTY.] If the
commissioner finds that any employing unit or any employee,
officer, or agent of any employing unit, is in collusion with
any employee for the purpose of assisting the claimant to
receive benefits illegally, the employing unit shall be
penalized $500 or an amount equal to the amount of benefits
determined to be overpaid, whichever is greater.
If the commissioner finds that any part of any employer's
contribution deficiency is due to fraud with intent to avoid
payment of contributions to the fund, 50 percent of the total
amount of the deficiency or $500, whichever is greater, shall be
assessed as a penalty against the employer and collected in
addition to the deficiency.
Penalties assessed under this section shall be in addition
to any other penalties provided for by sections 268.03 to
268.231 and be subject to the same collection procedures that
apply to past due contributions under this chapter. Penalties
under this section shall be paid to the department and credited
to the contingent fund.
The assessment of the penalty shall be final unless the
employer files a written appeal with the department within 15
days after the notice of determination to the employer's last
known address. If the employer shall appeal from the
determination within the time above specified, the matter shall
be referred for a hearing as set forth in section
268.10. Proceedings on the appeal shall be conducted in
accordance with section 268.105.
Sec. 25. Minnesota Statutes 1994, section 270A.09,
subdivision 1a, is amended to read:
Subd. 1a. [ECONOMIC SECURITY CLAIMS.] Notwithstanding
subdivision 1, any debtor contesting a setoff claim by the
department of economic security shall have a hearing conducted
in the same manner as an appeal under section 268.12,
subdivision 13 268.105.
Sec. 26. Minnesota Statutes 1994, section 352.01,
subdivision 2b, is amended to read:
Subd. 2b. [EXCLUDED EMPLOYEES.] "State employee" does not
include:
(1) elective state officers;
(2) students employed by the University of Minnesota, the
state universities, and community colleges unless approved for
coverage by the board of regents, the state university board, or
the state board for community colleges, as the case may be;
(3) employees who are eligible for membership in the state
teachers retirement association except employees of the
department of education who have chosen or may choose to be
covered by the Minnesota state retirement system instead of the
teachers retirement association;
(4) employees of the University of Minnesota who are
excluded from coverage by action of the board of regents;
(5) officers and enlisted personnel in the national guard
and the naval militia who are assigned to permanent peacetime
duty and who under federal law are or are required to be members
of a federal retirement system;
(6) election officers;
(7) persons engaged in public work for the state but
employed by contractors when the performance of the contract is
authorized by the legislature or other competent authority;
(8) officers and employees of the senate and house of
representatives or a legislative committee or commission who are
temporarily employed;
(9) receivers, jurors, notaries public, and court employees
who are not in the judicial branch as defined in section 43A.02,
subdivision 25, except referees and adjusters employed by the
department of labor and industry;
(10) patient and inmate help in state charitable, penal,
and correctional institutions including the Minnesota veterans
home;
(11) persons employed for professional services where the
service is incidental to regular professional duties and whose
compensation is paid on a per diem basis;
(12) employees of the Sibley House Association;
(13) the members of any state board or commission who serve
the state intermittently and are paid on a per diem basis; the
secretary, secretary-treasurer, and treasurer of those boards if
their compensation is $5,000 or less per year, or, if they are
legally prohibited from serving more than three years; and the
board of managers of the state agricultural society and its
treasurer unless the treasurer is also its full-time secretary;
(14) state troopers;
(15) temporary employees of the Minnesota state fair
employed on or after July 1 for a period not to extend beyond
October 15 of that year; and persons employed at any time by the
state fair administration for special events held on the
fairgrounds;
(16) emergency employees in the classified service; except
that if an emergency employee, within the same pay period,
becomes a provisional or probationary employee on other than a
temporary basis, the employee shall be considered a "state
employee" retroactively to the beginning of the pay period;
(17) persons described in section 352B.01, subdivision 2,
clauses (2) to (5);
(18) temporary employees in the classified service,
temporary employees in the unclassified service appointed for a
definite period of not more than six months and employed less
than six months in any one-year period and seasonal help in the
classified service employed by the department of revenue;
(19) trainee employees, except those listed in subdivision
2a, clause (10);
(20) persons whose compensation is paid on a fee basis;
(21) state employees who in any year have credit for 12
months service as teachers in the public schools of the state
and as teachers are members of the teachers retirement
association or a retirement system in St. Paul, Minneapolis, or
Duluth;
(22) employees of the adjutant general employed on an
unlimited intermittent or temporary basis in the classified and
unclassified service for the support of army and air national
guard training facilities;
(23) chaplains and nuns who are excluded from coverage
under the federal Old Age, Survivors, Disability, and Health
Insurance Program for the performance of service as specified in
United States Code, title 42, section 410(a)(8)(A), as amended,
if no irrevocable election of coverage has been made under
section 3121(r) of the Internal Revenue Code of 1986, as amended
through December 31, 1992;
(24) examination monitors employed by departments,
agencies, commissions, and boards to conduct examinations
required by law;
(25) members of appeal tribunals, exclusive of the chair,
to which reference is made in section 268.10, subdivision 4;
(26) persons appointed to serve as members of fact-finding
commissions or adjustment panels, arbitrators, or labor referees
under chapter 179;
(27) (26) temporary employees employed for limited periods
under any state or federal program for training or
rehabilitation including persons employed for limited periods
from areas of economic distress except skilled and supervisory
personnel and persons having civil service status covered by the
system;
(28) (27) full-time students employed by the Minnesota
historical society intermittently during part of the year and
full-time during the summer months;
(29) (28) temporary employees, appointed for not more than
six months, of the metropolitan council and of any of its
statutory boards, if the board members are appointed by the
metropolitan council;
(30) (29) persons employed in positions designated by the
department of employee relations as student workers;
(31) (30) members of trades employed by the successor to
the metropolitan waste control commission with trade union
pension plan coverage under a collective bargaining agreement
first employed after June 1, 1977;
(32) (31) persons employed in subsidized on-the-job
training, work experience, or public service employment as
enrollees under the federal Comprehensive Employment and
Training Act after March 30, 1978, unless the person has as of
the later of March 30, 1978, or the date of employment
sufficient service credit in the retirement system to meet the
minimum vesting requirements for a deferred annuity, or the
employer agrees in writing on forms prescribed by the director
to make the required employer contributions, including any
employer additional contributions, on account of that person
from revenue sources other than funds provided under the federal
Comprehensive Employment and Training Act, or the person agrees
in writing on forms prescribed by the director to make the
required employer contribution in addition to the required
employee contribution;
(33) (32) off-duty peace officers while employed by the
metropolitan council;
(34) (33) persons who are employed as full-time police
officers by the metropolitan council and as police officers are
members of the public employees police and fire fund;
(35) (34) persons who are employed as full-time
firefighters by the department of military affairs and as
firefighters are members of the public employees police and fire
fund;
(36) (35) foreign citizens with a work permit of less than
three years, or an H-1b/JV visa valid for less than three years
of employment, unless notice of extension is supplied which
allows them to work for three or more years as of the date the
extension is granted, in which case they are eligible for
coverage from the date extended; and
(37) (36) persons who are employed by the higher education
board and who elect to remain members of the public employees
retirement association or the Minneapolis employees retirement
fund, whichever applies, under section 136C.75.
Sec. 27. Minnesota Statutes 1994, section 352.22,
subdivision 10, is amended to read:
Subd. 10. [OTHER REFUNDS.] Former employees covered by the
system are entitled to apply for refunds if they are or become
members of the state patrol retirement fund, the state teacher's
retirement association, or employees of the University of
Minnesota excluded from coverage under the system by action of
the board of regents; or labor service employees, excluded from
coverage under section 352.01, subdivision 2b, clause (26) (25);
or employees of the adjutant general who under federal law
effectually elect membership in a federal retirement system; or
officers or employees of the senate or house of representatives,
excluded from coverage under section 352.01, subdivision 2b,
clause (8). The refunds must include accumulated contributions
plus interest as provided in subdivision 2. These employees may
apply 30 days or more after their coverage ceases, even if they
continue in state service but in positions not covered by this
chapter.
Sec. 28. Minnesota Statutes 1994, section 574.26,
subdivision 1, is amended to read:
Subdivision 1. [CITATION.] (a) Sections 574.26 to 574.32
are the "public contractors' performance and payment bond act,"
within those sections referred to as "the act."
(b) For the purposes of the act:
(1) "public body" means the state, municipal corporation,
school district, or other public board or body; and
(2) "labor and materials" means work, skill, tools,
machinery, materials, insurance premiums, equipment or supplies,
or taxes incurred under section 290.92 or, chapter 297A or 268;
and
(3) "contract" means a contract with a public body for the
doing of public work.
Sec. 29. [REPEALER.]
Minnesota Statutes 1994, section 268.10, subdivisions 3, 4,
5, 6, 7, 8, 9, and 10; 268.12, subdivisions 9, 10, and 13, are
repealed.
Sec. 30. [EFFECTIVE DATE.]
Section 1 is effective January 1, 1996. Sections 2 to 29
are effective the day following final enactment.
Presented to the governor April 17, 1995
Signed by the governor April 18, 1995, 12:18 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes