Office of the Revisor of Statutes
Minnesota Session Laws - 2004, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 183-H.F.No. 2235
An act relating to unemployment insurance; modifying
definitions; making technical, housekeeping, and
policy changes; modifying penalty provisions; amending
Minnesota Statutes 2002, sections 176.011, subdivision
20; 268.035, subdivisions 3, 8a, 12a, 17, 20, 23a, 28,
by adding a subdivision; 268.043; 268.044,
subdivisions 2, 3, 4; 268.051, subdivisions 4, 7;
268.0511; 268.053, subdivision 2; 268.057, as amended;
268.058, as amended; 268.059, subdivision 3; 268.0625,
as amended; 268.064, subdivisions 1, 3; 268.065,
subdivisions 1, 2; 268.07, subdivisions 1, 3; 268.085,
subdivisions 2, 12, 13a, 14; 268.095, subdivisions 4,
6a; 268.101, subdivisions 2, 4; 268.103; 268.105, as
amended; 268.115, subdivision 5; 268.125, subdivision
5; 268.135, subdivisions 1, 2, 4; 268.145, subdivision
1; 268.18, subdivisions 2b, 6; 268.182; 268.184;
Minnesota Statutes 2003 Supplement, sections 268.035,
subdivision 15; 268.042, subdivisions 1, 3; 268.044,
subdivisions 1, 1a; 268.045; 268.047, subdivision 5;
268.051, subdivisions 1, 1a, 3, 5, 6; 268.052,
subdivisions 1, 2; 268.053, subdivisions 1, 3;
268.059, subdivision 1; 268.063; 268.066; 268.067;
268.0675; 268.07, subdivision 2; 268.085, subdivisions
1, 3, 4, 5, 6; 268.095, subdivisions 1, 3; 268.101,
subdivisions 3, 3a; 268.18, subdivisions 1, 2;
268.186; 268.19, subdivision 2; proposing coding for
new law in Minnesota Statutes, chapter 268.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 2002, section 176.011,
subdivision 20, is amended to read:
Subd. 20. [AVERAGE WEEKLY WAGE.] The statewide average
weekly wage for any year means that wage determined by the
commissioner in the following manner: On or before July 1
preceding the year in which the wage is to be applicable, the
total wages reported on tax wage detail reports to the
Department of Employment and Economic Security Development for
the preceding 12 months ending on December 31 of that year shall
be divided by the average monthly number of covered workers
(determined by dividing the total covered workers reported for
the year ending December 31 by 12). The average annual wage
thus obtained shall be divided by 52 and the average weekly wage
thus determined rounded to the next highest dollar.
Sec. 2. [268.032] [ELECTRONIC TRANSMISSION; WHEN ALLOWED;
SENDING TO LAST KNOWN ADDRESS REQUIRED.]
(a) If any required notice, determination, or decision
issued under this chapter provides that the commissioner may
send the notice, determination, or decision by mail or
electronic transmission, the commissioner may send the notice,
determination, or decision to an applicant or employer by
electronic transmission only if the applicant or employer has
affirmatively indicated that the applicant or employer would
prefer required notices, determinations, or decisions be sent by
electronic transmission rather than by mail. An applicant or
employer may withdraw an indicated preference for electronic
transmission.
(b) If any required notice, determination, or decision
issued under this chapter is sent by mail to an applicant or an
employer, the notice, determination, or decision must be sent to
the last known address. If any required notice, determination,
or decision issued under this chapter is sent by electronic
transmission, the notice, determination, or decision must be
sent to the last known electronic address of the applicant or
employer. If any required notice, determination, or decision
issued under this chapter is sent by electronic transmission and
the commissioner is notified that the electronic address of the
applicant or employer is no longer in service, the commissioner
must then send the required notice, determination, or decision
by mail to the last known address.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 3. [268.033] [COMPUTATION OF TIME.]
The computation of time provisions of section 645.151 apply
to this chapter.
Sec. 4. Minnesota Statutes 2002, section 268.035,
subdivision 3, is amended to read:
Subd. 3. [BACK PAY.] "Back pay" means a retroactive
payment of money by an employer to an employee or former
employee for lost wages as determined by an arbitration award,
administrative or judicial decision, or negotiated settlement.
Sec. 5. Minnesota Statutes 2002, section 268.035,
subdivision 8a, is amended to read:
Subd. 8a. [COMMISSIONER.] "Commissioner" means the
commissioner of employment and economic security development.
Sec. 6. Minnesota Statutes 2002, section 268.035,
subdivision 12a, is amended to read:
Subd. 12a. [DEPARTMENT.] "Department" means the Department
of Employment and Economic Security Development.
Sec. 7. Minnesota Statutes 2002, section 268.035, is
amended by adding a subdivision to read:
Subd. 12b. [ELECTRONIC TRANSMISSION.] "Electronic
transmission" means a communication sent by electronic, digital,
magnetic, wireless, optical, electromagnetic or similar
capabilities, and, when permitted by the commissioner, a
telephone communication.
Sec. 8. Minnesota Statutes 2003 Supplement, section
268.035, subdivision 15, is amended to read:
Subd. 15. [EMPLOYMENT.] "Employment" means service
performed by:
(1) an individual who is considered an employee under the
common law of employer-employee and not considered an
independent contractor;
(2) an officer of a corporation;
(3) a member of a limited liability company who has less
than a 25 percent ownership share and is considered an employee
under the common law of employer-employee; or
(4) an individual who performs services for a person for
compensation, as:
(i) an agent-driver or commission-driver engaged in
distributing meat products, vegetable products, fruit products,
beverages, or laundry or dry cleaning services; or
(ii) a traveling or city salesperson, other than as an
agent-driver or commission-driver, engaged full-time in the
solicitation on behalf of the person, of orders from
wholesalers, retailers, contractors, or operators of hotels,
restaurants, or other similar establishments for merchandise for
resale or supplies for use in their business operations.
This clause shall apply only if the contract of service
provides that substantially all of the services are to be
performed personally by the individual, and the services are
part of a continuing relationship with the person for whom the
services are performed, and the individual does not have a
substantial investment in facilities used in connection with the
performance of the services, other than facilities for
transportation.
[EFFECTIVE DATE.] This section is effective January 1, 2005.
Sec. 9. Minnesota Statutes 2002, section 268.035,
subdivision 17, is amended to read:
Subd. 17. [FILING; FILED.] "Filing" or "filed" means the
delivery of any document to the commissioner or any of the
commissioner's agents, or the depositing of the document in the
United States mail properly addressed to the department with
postage prepaid, in which case the document shall be considered
filed on the day indicated by the cancellation mark of the
United States Postal Service.
If, where allowed, an application, protest, appeal, or
other required action is made by telephone or electronic
transmission, it shall be considered filed on the day received
by the department.
Sec. 10. Minnesota Statutes 2002, section 268.035,
subdivision 20, is amended to read:
Subd. 20. [NONCOVERED EMPLOYMENT.] "Noncovered employment"
means:
(1) employment for the United States government or an
instrumentality thereof, including military service;
(2) employment for a state, other than Minnesota, or a
political subdivision or instrumentality thereof;
(3) employment for a foreign government;
(4) employment for an instrumentality wholly owned by a
foreign government, if the employment is of a character similar
to that performed in foreign countries by employees of the
United States government or an instrumentality thereof and the
United States Secretary of State has certified that the foreign
government grants an equivalent exemption to similar employment
performed in the foreign country by employees of the United
States government and instrumentalities thereof;
(5) employment covered under United States Code, title 45,
section 351, the Railroad Unemployment Insurance Act;
(6) employment covered by a reciprocal arrangement between
the commissioner and another state or the federal government
which provides that all employment performed by an individual
for an employer during the period covered by the reciprocal
arrangement is considered performed entirely within another
state;
(7) employment for a church or convention or association of
churches, or an organization operated primarily for religious
purposes that is operated, supervised, controlled, or
principally supported by a church or convention or association
of churches described in United States Code, title 26, section
501(c)(3) of the federal Internal Revenue Code and exempt from
income tax under section 501(a);
(8) employment of a duly ordained or licensed minister of a
church in the exercise of a ministry or by a member of a
religious order in the exercise of duties required by the order,
for Minnesota or a political subdivision or an organization
described in United States Code, title 26, section 501(c)(3) of
the federal Internal Revenue Code and exempt from income tax
under section 501(a);
(9) employment of an individual receiving rehabilitation of
"sheltered" work in a facility conducted for the purpose of
carrying out a program of rehabilitation for individuals whose
earning capacity is impaired by age or physical or mental
deficiency or injury or a program providing "sheltered" work for
individuals who because of an impaired physical or mental
capacity cannot be readily absorbed in the competitive labor
market. This clause applies only to services performed for
Minnesota or a political subdivision or an organization
described in United States Code, title 26, section 501(c)(3) of
the federal Internal Revenue Code and exempt from income tax
under section 501(a) in a facility certified by the
Rehabilitation Services Branch of the department or in a day
training or habilitation program licensed by the Department of
Human Services;
(10) employment of an individual receiving work relief or
work training as part of an unemployment work relief or work
training program assisted or financed in whole or in part by any
federal agency or an agency of a state or political subdivision
thereof. This clause applies only to employment for Minnesota
or a political subdivision or an organization described in
United States Code, title 26, section 501(c)(3) of the federal
Internal Revenue Code and exempt from income tax under section
501(a). This clause shall not apply to programs that require
unemployment benefit coverage for the participants;
(11) employment for Minnesota or a political subdivision as
an elected official, a member of a legislative body, or a member
of the judiciary;
(12) employment as a member of the Minnesota National Guard
or Air National Guard;
(13) employment for Minnesota, a political subdivision, or
instrumentality thereof, as an employee serving only on a
temporary basis in case of fire, flood, tornado, or similar
emergency;
(14) employment as an election official or election worker
for Minnesota or a political subdivision, but only if the
compensation for that employment was less than $1,000 in a
calendar year;
(15) employment for Minnesota that is a major policy making
or advisory position in the unclassified service, including
those positions established pursuant to section 43A.08,
subdivision 1a;
(16) employment for a political subdivision of Minnesota
that is a nontenured major policy making or advisory position;
(17) domestic employment in a private household, local
college club, or local chapter of a college fraternity or
sorority performed for a person, only if the wages paid in any
calendar quarter in either the current or preceding calendar
year to all individuals in domestic employment totaled less than
$1,000.
"Domestic employment" includes all service in the operation
and maintenance of a private household, for a local college
club, or local chapter of a college fraternity or sorority as
distinguished from service as an employee in the pursuit of an
employer's trade or business;
(18) employment of an individual by a son, daughter, or
spouse, and employment of a child under the age of 18 by the
child's father or mother;
(19) employment of an inmate of a custodial or penal
institution;
(20) employment for a school, college, or university by a
student who is enrolled and is regularly attending classes at
the school, college, or university;
(21) employment of an individual who is enrolled as a
student in a full-time program at a nonprofit or public
educational institution that maintains a regular faculty and
curriculum and has a regularly organized body of students in
attendance at the place where its educational activities are
carried on, taken for credit at the institution, that combines
academic instruction with work experience, if the employment is
an integral part of the program, and the institution has so
certified to the employer, except that this clause shall not
apply to employment in a program established for or on behalf of
an employer or group of employers;
(22) employment of university, college, or professional
school students in an internship or other training program with
the city of St. Paul or the city of Minneapolis pursuant to Laws
1990, chapter 570, article 6, section 3;
(23) employment for a hospital by a patient of the
hospital. "Hospital" means an institution that has been
licensed by the Department of Health as a hospital;
(24) employment as a student nurse for a hospital or a
nurses' training school by an individual who is enrolled and is
regularly attending classes in an accredited nurses' training
school;
(25) employment as an intern for a hospital by an
individual who has completed a four-year course in an accredited
medical school;
(26) employment as an insurance salesperson, by other than
a corporate officer, if all the compensation for the employment
is solely by way of commission. The word "insurance" shall
include an annuity and an optional annuity;
(27) employment as an officer of a township mutual
insurance company or farmer's mutual insurance company operating
pursuant to chapter 67A;
(28) employment of a corporate officer, if the officer owns
25 percent or more of the employer corporation, and employment
of a member of a limited liability company, if the member owns
25 percent or more of the employer limited liability company;
(29) employment as a real estate salesperson, by other than
a corporate officer, if all the compensation for the employment
is solely by way of commission;
(29) (30) employment as a direct seller as defined in
United States Code, title 26, section 3508;
(30) (31) employment of an individual under the age of 18
in the delivery or distribution of newspapers or shopping news,
not including delivery or distribution to any point for
subsequent delivery or distribution;
(31) (32) casual employment performed for an individual,
other than domestic employment under clause (17), that does not
promote or advance that employer's trade or business;
(32) (33) employment in "agricultural employment" unless
considered "covered agricultural employment" under subdivision
11; or
(33) (34) if employment during one-half or more of any pay
period was covered employment, all the employment for the pay
period shall be considered covered employment; but if during
more than one-half of any pay period the employment was
noncovered employment, then all of the employment for the pay
period shall be considered noncovered employment. "Pay period"
means a period of not more than a calendar month for which a
payment or compensation is ordinarily made to the employee by
the employer.
[EFFECTIVE DATE.] This section is effective January 1, 2005.
Sec. 11. Minnesota Statutes 2002, section 268.035,
subdivision 23a, is amended to read:
Subd. 23a. [SUITABLE EMPLOYMENT.] (a) Suitable employment
means employment in the applicant's labor market area that is
reasonably related to the applicant's qualifications. In
determining whether any employment is suitable for an applicant,
the degree of risk involved to the health and safety, physical
fitness, prior training, experience, length of unemployment,
prospects for securing employment in the applicant's customary
occupation, and the distance of the employment from the
applicant's residence shall be considered.
(b) In determining what is suitable employment, primary
consideration shall be given to the temporary or permanent
nature of the applicant's separation from employment and whether
the applicant has favorable prospects of finding employment in
the applicant's usual or customary occupation at the applicant's
past wage level within a reasonable period of time.
If prospects are unfavorable, employment at lower skill or
wage levels is suitable if the applicant is reasonably suited
for the employment because of considering the applicant's
education, training, work experience, or and current physical
and mental ability.
The total compensation must be considered, including the
wage rate, hours of employment, method of payment, overtime
practices, bonuses, incentive payments, and fringe benefits.
(c) When potential employment is at a rate of pay lower
than the applicant's former rate, consideration must be given to
the length of the applicant's unemployment and the proportion of
difference in the rates. Employment that may not be suitable
because of lower wages during the early weeks of the applicant's
unemployment may become suitable as the duration of unemployment
lengthens.
(d) For an applicant seasonally unemployed, suitable
employment includes temporary work in a lower skilled occupation
that pays average gross weekly wages equal to or more than 150
percent of the applicant's weekly unemployment benefit amount.
(e) If a majority of the applicant's wage credits were
earned from part-time employment, part-time employment in a
position with comparable skills and comparable hours that pays
average gross weekly wages equal to or more than 150 percent of
the applicant's weekly unemployment benefit amount shall be
considered suitable employment.
(f) To determine suitability of employment in terms of
shifts, the arrangement of hours in addition to the total number
of hours is to be considered. Employment on a second, third,
rotating, or split shift is suitable employment if it is
customary in the occupation in the labor market area.
(g) Employment shall not be considered suitable if:
(1) the position offered is vacant because of a labor
dispute;
(2) the wages, hours, or other conditions of employment are
substantially less favorable than those prevailing for similar
employment in the labor market area; or
(3) as a condition of becoming employed, the applicant
would be required to join a company union or to resign from or
refrain from joining any bona fide labor organization.
[EFFECTIVE DATE.] This section is effective August 1, 2004,
and applies to all determinations and decisions issued by the
department on or after August 1, 2004.
Sec. 12. Minnesota Statutes 2002, section 268.035,
subdivision 28, is amended to read:
Subd. 28. [WAGE DETAIL REPORT.] "Wage detail report" means
the report of wages paid and hours worked by on each employee in
covered employment required from an employer on a calendar
quarter basis under section 268.044. An auxiliary report broken
down by business locations, when required by the commissioner,
shall contain the number of employees in covered employment for
each month, and the quarterly total wages for each location.
The auxiliary report may be made part of the wage detail report,
the tax report, or filed separately, as required by the
commissioner.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 13. Minnesota Statutes 2003 Supplement, section
268.042, subdivision 1, is amended to read:
Subdivision 1. [EMPLOYER FOR PART OF YEAR
REGISTRATION.] (a) Each employer shall, upon or before the
submission of its first wage detail report under section
268.044, register with the commissioner for a tax account or a
reimbursable account, by electronic transmission in a format
prescribed by the commissioner. The employer must provide all
required information for registration.
(b) Except as provided in subdivision 3, any organization
or person that is or becomes an employer subject to the
Minnesota Unemployment Insurance Law within any calendar year
shall be considered to be subject to these sections this chapter
the entire calendar year.
(c) Upon the termination of business, an employer that has
been assigned a tax account or reimbursable account shall notify
the commissioner by electronic transmission, in a format
prescribed by the commissioner, that the employer no longer has
employees and does not intend or expect to pay wages to any
employees in the next calendar year and into the foreseeable
future. Upon such notification, the commissioner shall not
require the employer to file wage detail reports under section
268.044, subdivision 1, paragraph (d), commencing the calendar
quarter after the notice of termination was received by the
commissioner.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 14. Minnesota Statutes 2003 Supplement, section
268.042, subdivision 3, is amended to read:
Subd. 3. [ELECTION AGREEMENTS; TERMINATION TO HAVE
NONCOVERED EMPLOYMENT CONSIDERED COVERED EMPLOYMENT.] (a) Any
employer that has employment performed for it that does not
constitute covered is noncovered employment under section
268.035, subdivision 20, may file with the commissioner a
written, by electronic transmission in a format prescribed by
the commissioner, an election that all such employment, in one
or more distinct establishments or places of business, shall be
considered covered employment for not less than two calendar
years. The commissioner shall have discretion on the approval
of any election. Upon the written approval of the commissioner,
sent by mail or electronic transmission, the employment shall
constitute covered employment from and beginning the calendar
quarter after the date stated in the of approval or beginning a
later calendar quarter if requested by the employer. The
employment shall cease to be considered covered employment as of
the first day of January of any calendar year only if at least
30 calendar days prior to the first day of January the employer
has filed with the commissioner, by electronic transmission in a
format prescribed by the commissioner, a written notice to that
effect.
(b) The commissioner must terminate any election agreement
under this subdivision upon 30 calendar days' notice sent by
mail or electronic transmission, if the employer fails to pay
all is delinquent on any taxes due or reimbursements due the
trust fund.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 15. [268.0425] [ELECTRONIC TRANSACTION PRESUMPTION.]
If any electronic transaction is done under this chapter
using an identification number or code assigned an employer by
the commissioner, the transaction is presumed as done by that
employer unless a preponderance of the available evidence
demonstrates that it was not done by that employer.
Sec. 16. Minnesota Statutes 2002, section 268.043, is
amended to read:
268.043 [DETERMINATIONS OF COVERAGE.]
(a) The commissioner, upon the commissioner's own motion or
upon application of an organization or person, shall determine
if that organization or person is an employer or whether
services performed for it constitute employment and covered
employment, or whether the compensation for services constitutes
wages, and shall notify the organization or person of the
determination. The determination shall be final unless the
organization or person, within 30 calendar days after sending of
the determination by mail or electronic transmission, files an
appeal. Proceedings on the appeal shall be conducted in
accordance with section 268.105.
(b) The commissioner may at any time upon the
commissioner's own motion correct any error of the department
resulting in an erroneous determination under this section. A
corrected determination a protest. Upon receipt of a protest,
the commissioner shall review all available evidence and
determine whether an error has been made. The commissioner
shall send to the organization or person, by mail or electronic
transmission, an affirmation or redetermination. The
affirmation or redetermination shall be final unless, within 30
calendar days after sending of the corrected determination
affirmation or redetermination to the organization or person by
mail or electronic transmission, an appeal is filed.
Proceedings on the appeal shall be conducted in accordance with
section 268.105.
(c) (b) No organization or person shall be initially
determined an employer, or that services performed for it were
in employment or covered employment, for periods more than four
years prior to the year in which the determination is made,
unless the commissioner finds that there was fraudulent action
to avoid liability under this chapter.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 17. Minnesota Statutes 2003 Supplement, section
268.044, subdivision 1, is amended to read:
Subdivision 1. [WAGE DETAIL REPORT.] (a) Each employer
that has employees in covered employment shall file submit a
quarterly wage detail report by electronic transmission, in a
manner and format prescribed by the commissioner. The report
shall include for each employee in covered employment, the
employee's name, Social Security number, the total wages paid to
the employee, and total number of paid hours worked. For
employees exempt from the definition of employee in section
177.23, subdivision 7, clause (6), the employer shall report 40
hours worked for each week any duties were performed by a
full-time employee and shall report a reasonable estimate of the
hours worked for each week duties were performed by a part-time
employee. In addition, the wage detail report shall include the
number of employees employed on the 12th day of each calendar
month and, if required by the commissioner, the report shall be
broken down by business location and type of employment. If the
information required is not filed submitted in a manner and
format prescribed by the commissioner, it shall not be
considered a wage detail report. The report is due and must
be filed received by the commissioner on or before the last day
of the month following the end of the calendar quarter. The
commissioner may delay the due date on a specific calendar
quarter in the event the department is unable to accept wage
detail reports electronically.
(b) The employer may report the wages paid to the nearest
next lower whole dollar amount.
(c) An employer need not include the name of the employee
or other required information on the wage detail report if
disclosure is specifically exempted from being reported by
federal law.
(d) A wage detail report must be submitted for each
calendar quarter even though no wages were paid, unless the
employer has notified the commissioner, under section 268.042,
subdivision 1, paragraph (c), of termination of business.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 18. Minnesota Statutes 2003 Supplement, section
268.044, subdivision 1a, is amended to read:
Subd. 1a. [ELECTRONIC TRANSMISSION OF REPORT REQUIRED.]
Each employer that has 50 or more employees to report for a
calendar quarter under subdivision 1 must file submit the
quarterly wage detail report by electronic transmission in a
format prescribed by the commissioner. The commissioner shall
have the discretion to accept wage detail reports by magnetic
media in a format prescribed by the commissioner. Wage detail
reports from an employer with 50 or more employees to report for
a calendar quarter that are filed submitted by any other means
or the commissioner may be returned return the report submitted
by other than electronic transmission to the employer, and
reports returned shall be considered as not filed submitted and
the penalties late fees under subdivision 2 may be imposed.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 19. Minnesota Statutes 2002, section 268.044,
subdivision 2, is amended to read:
Subd. 2. [FAILURE TO TIMELY FILE REPORT; LATE FEES.] (a)
Any employer who that fails to file submit the quarterly wage
detail report when due shall pay to the department, for each
month the report is delinquent, a penalty of one-half of one
percent of total wages paid that quarter. a late fee of $10 per
employee, computed based upon the highest of:
(1) the number of employees reported on the last wage
detail report submitted;
(2) the number of employees reported in the corresponding
quarter of the prior calendar year; or
(3) if no wage detail report has ever been submitted, the
number of employees listed at the time of employer registration.
The penalty late fee shall not be assessed waived if the
wage detail report is properly made and filed received within 30
calendar days after a demand for the report is mailed sent to
the employer's address of record employer by mail or electronic
transmission. A late fee assessed an employer may not be waived
more than once each 12 months. In no case shall The amount of
the penalty, if late fee assessed, shall not be less
than $25 $50. Penalties
(b) If the wage detail report is not received in a manner
and format prescribed by the commissioner within 30 calendar
days after demand is sent under paragraph (a), the late fee
assessed under paragraph (a) shall double and a renewed demand
notice and notice of the increased late fee shall be sent to the
employer by mail or electronic transmission.
(c) Late fees due under this subdivision may be waived
compromised under section 268.067 where good cause for
late filing submission is found by the commissioner.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 20. Minnesota Statutes 2002, section 268.044,
subdivision 3, is amended to read:
Subd. 3. [MISSING OR ERRONEOUS INFORMATION.] Any employer
who files submits the wage detail report, but knowingly fails to
include any of the required employee information or knowingly
enters erroneous information, shall be subject to a penalty an
administrative service fee of $25 for each employee for whom the
information is missing or erroneous. An administrative service
fee may be compromised under section 268.067 if the commissioner
determines that the failure or error by the employer was
inadvertent.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 21. Minnesota Statutes 2002, section 268.044,
subdivision 4, is amended to read:
Subd. 4. [PENALTIES FEES.] The penalties fees provided for
in subdivisions 2 and 3 are in addition to interest and other
penalties imposed by this chapter and shall be collected in the
same manner as delinquent taxes and shall be credited to the
contingent account.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 22. Minnesota Statutes 2003 Supplement, section
268.045, is amended to read:
268.045 [EMPLOYER TAX OR REIMBURSABLE ACCOUNTS.]
(a) Subdivision 1. [ACCOUNT FOR EACH EMPLOYER.] The
commissioner shall maintain a tax account for each taxpaying
employer and a reimbursable account for each nonprofit or
government employer that has elected to be liable for
reimbursements if that employer has employees in covered
employment in the current or the prior calendar year, except as
provided in this section. The commissioner shall assess the tax
account of a taxpaying employer for all the taxes due under
section 268.051 and credit the tax account with all taxes paid.
The commissioner shall charge the reimbursable account of a
nonprofit or government employer that elects to make
reimbursements for any unemployment benefits determined
chargeable to the employer under section 268.047 and shall
credit the reimbursable account with the payments made.
(b) Subd. 2. [COMMON PAYMASTER TAX ACCOUNT.] Two or more
related taxpaying corporations concurrently employing the same
employees and compensating those employees through a common
paymaster that is one of the corporations may apply to, by
electronic transmission, in a format prescribed by the
commissioner, to establish a common paymaster tax account that
shall be the tax account of the common paymaster
corporation. The commissioner shall have discretion on approval
of a common paymaster tax account. If approved, the separate
tax accounts shall be maintained, but the employees compensated
through the common paymaster shall be reported under section
268.044 as employees of the common paymaster corporation. The
corporations using the common paymaster tax account shall be
jointly and severally liable for any unpaid taxes, penalties,
and interest owing amounts due under this chapter and section
116L.20 from the common paymaster tax account.
(c) Subd. 3. [JOINT TAX ACCOUNT.] Two or more taxpaying
employers having 50 percent or more common ownership and
compensating employees through a single payer that is one of the
employers may apply to by electronic transmission in a format
prescribed by the commissioner for a merging combining of the
experience ratings of the employers into a single experience
rating and joint tax account. The commissioner shall have
discretion on approval of a joint tax account.
If approved, the joint tax account shall be effective on
that date assigned by the commissioner and shall remain in
effect for not less than two calendar years, and continuing
unless written notice terminating the joint tax account is filed
with the commissioner by electronic transmission, in a format
prescribed by the commissioner. The termination shall be
effective on January 1 next following the filing of the written
notice of termination.
The employers in the joint tax account shall be jointly and
severally liable for any unpaid taxes, penalties, and interest
owing amounts due under this chapter and section 116L.20 from
the joint tax account.
(d) Subd. 4. [GROUP REIMBURSABLE ACCOUNT.] Two or more
nonprofit or government employers that have elected to be liable
for reimbursements may apply to the commissioner for the
establishment of a group reimbursable account for the purpose of
sharing the cost of unemployment benefits charged based upon
wage credits from all employers in the group. The application,
filed by electronic transmission in a format prescribed by the
commissioner, shall identify and authorize a group
representative to act as the group's agent for the purposes of
the reimbursable account. The commissioner shall have
discretion on approval of a group reimbursable account. If
approved, the commissioner shall establish a group reimbursable
account for the employers effective as of the beginning of the
calendar year that the application is received. The
reimbursable account shall remain in effect for not less than
two calendar years and thereafter until terminated at the
discretion of the commissioner or upon application by the group,
filed by electronic transmission in a format prescribed by the
commissioner, at least 30 calendar days prior to the end of the
two year period or 30 calendar days prior to January 1 of any
following calendar year. Each nonprofit or government employer
in the group shall be jointly and severally liable for
reimbursements for all unemployment benefits paid based upon
wage credits from all employers in the group during the period
the group reimbursable account was in effect.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 23. Minnesota Statutes 2003 Supplement, section
268.047, subdivision 5, is amended to read:
Subd. 5. [NOTICE OF UNEMPLOYMENT BENEFITS PAID.] (a) The
commissioner shall notify each employer at least quarterly by
mail or electronic transmission of the unemployment benefits
paid each applicant that will be used in computing the future
tax rate of a taxpaying employer, or that have been charged to
the reimbursable account of a nonprofit or government employer
that has elected to be liable for reimbursements. Unless a
protest is filed within 30 calendar days from the date of
sending of the notice, the notice shall be final and shall not
be subject to collateral attack by way of review of a tax rate
notice or application for a credit adjustment or refund.
(b) Upon receipt of a protest, the commissioner shall
review unemployment benefits to be used in computing the future
tax rate of a taxpaying employer or charged to the reimbursable
account of a nonprofit or government employer that has elected
to be liable for reimbursements and determine whether there has
been an error made. The commissioner shall either affirm or
make a redetermination of the unemployment benefits paid to be
used in computing the future tax rate of a taxpaying employer or
charged to the reimbursable account of a nonprofit or government
employer that has elected to be liable for reimbursements, and a
notice of affirmation or redetermination shall be sent to the
employer by mail or electronic transmission.
(c) The affirmation or redetermination shall be final
unless the employer files an appeal within 30 calendar days
after the date the affirmation or redetermination was sent.
Proceedings on the appeal shall be conducted in accordance with
section 268.105.
(d) An employer may not collaterally attack, by way of a
protest to a notice of unemployment benefits paid, any prior
determination or decision holding that unemployment benefits
paid shall be used in computing the future tax rate of a
taxpaying employer or charged to the reimbursable account of a
nonprofit or government employer that has elected to be liable
for reimbursements which determination or decision has become
final.
(e) A notice under this subdivision shall not be subject to
protest or appeal. The commissioner may at any time upon the
commissioner's own motion correct a clerical any error that
resulted in an incorrect notice under paragraph (a) and issue a
corrected notice.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 24. Minnesota Statutes 2003 Supplement, section
268.051, subdivision 1, is amended to read:
Subdivision 1. [PAYMENTS.] (a) Unemployment insurance
taxes and any additional assessments, fees, or surcharges shall
accrue and become payable by each employer for each calendar
year on the taxable wages that the employer paid wages to
employees in covered employment, except for:
(1) nonprofit organizations that elect to make
reimbursements as provided in section 268.053; and
(2) the state of Minnesota and political subdivisions that
make reimbursements, unless they elect to pay taxes as provided
in section 268.052.
Except as allowed under section 268.0511, each employer
shall pay taxes quarterly, at the employer's assigned tax rate,
on the taxable wages paid to each employee. The commissioner
shall compute the tax due from the wage detail report required
under section 268.044 and notify the employer of the tax due.
The taxes and any additional assessments, fees, or surcharges
shall be paid to the trust fund and must be received by the
department on or before the last day of the month following the
end of the calendar quarter.
(b) The total payment due may be paid in an tax amount
computed, if not a whole dollar, shall be rounded down to the
nearest next lower whole dollar.
(c) When the total payment due for any calendar quarter is
less than $1, it shall be disregarded. If for any reason the
wages on the wage detail report under section 268.044 are
adjusted for any quarter, the commissioner shall recompute the
taxes due for that quarter and assess the employer for any
amount due or credit the employer as appropriate.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 25. Minnesota Statutes 2003 Supplement, section
268.051, subdivision 1a, is amended to read:
Subd. 1a. [TAX REPORTS PAYMENTS BY ELECTRONIC PAYMENT
REQUIRED.] (a) Every employer, except those nonprofit and
government employers that have elected to make reimbursements,
shall submit a tax report on a form, or in a manner, prescribed
by the commissioner on or before the last day of the month
following the end of the calendar quarter, unless the employer
meets the requirements for submitting tax reports annually under
section 268.0511. An employer that fails to submit a tax report
when due, or submits an incorrect tax report, shall be subject
to section 268.057, subdivision 1 that reports 500 or more
employees in any calendar quarter on the wage detail report
required under section 268.044 shall make any payments due under
this chapter and section 116L.20 by electronic payment.
(b) Each tax report shall include the total wages paid and
the taxable wages paid that quarter, the amount of tax due, and
any other information required by the commissioner. All
third-party processors, paying quarterly taxes on behalf of a
client company, shall make any payments due under this chapter
and section 116L.20 by electronic payment.
(c) A tax report must be submitted for each calendar
quarter even though no wages were paid or no tax is
due. Regardless of paragraph (a) or (b), the commissioner shall
have discretion to accept payment by other means.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 26. Minnesota Statutes 2003 Supplement, section
268.051, subdivision 3, is amended to read:
Subd. 3. [COMPUTATION OF A TAXPAYING EMPLOYER'S EXPERIENCE
RATING.] (a) For each calendar year On or before each December
15, the commissioner shall compute an experience rating for each
taxpaying employer who has been subject to paying unemployment
taxes for at least the 12 calendar months ending on the prior to
July 1 of the prior June 30. The experience rating computed
shall be applicable for the following calendar year.
(b) The experience rating shall be the ratio obtained by
dividing 125 percent of the total unemployment benefits required
under section 268.047 to be used in computing the employer's tax
rate during the 48 calendar months ending on the prior June 30
of the prior calendar year, by the employer's total taxable
payroll for that same period.
(c) For purposes of paragraph (b), only that taxable
payroll upon which taxes have been paid on or before September
30 of the prior calendar year may be used in computing an
employer's experience rating.
(d) (b) The experience rating shall be computed to the
nearest one-tenth one-hundredth of a percent, to a maximum of
8.9 8.90 percent.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 27. Minnesota Statutes 2002, section 268.051,
subdivision 4, is amended to read:
Subd. 4. [EXPERIENCE RATING TRANSFER.] (a) When a
taxpaying employer acquires the organization, trade or business
or substantially all the assets of another employer, and there
is 25 percent or more common ownership, directly or indirectly,
between the predecessor and successor, the experience rating of
the predecessor employer shall be transferred as of the date of
acquisition to the successor employer for the purpose of
computing a tax rate.
(b) When a taxpaying employer acquires a distinct severable
portion of the organization, trade, business, or assets that is
less than substantially all of the employing enterprises of
another employer, and there is 25 percent or more common
ownership, directly or indirectly, between the predecessor and
successor, the successor employer shall acquire the that
percentage of a predecessor's experience rating attributable to
the portion it acquired equal to that percentage of the
predecessor's employment positions it has obtained, and the
predecessor employer shall retain that percentage of the
experience rating attributable to the portion equal to that
percentage of the employment positions that it has retained, if
(1) the successor makes a written request to apply files an
application by electronic transmission, in a format prescribed
by the commissioner, for the transfer of a percentage of the
experience rating attributable to the severable portion acquired
from of the predecessor within 180 calendar days from the date
of acquisition, and (2) files an application within the time and
in the manner prescribed by the commissioner that furnishes
sufficient information to substantiate the severable portion
acquisition and to assign the appropriate portion percentage of
the experience rating.
(c) The term "common ownership" for purposes of this
subdivision includes ownership by a spouse, parent, child,
brother, sister, aunt, uncle, niece, nephew, or first cousin, by
birth or by marriage.
(d) If the successor employer under paragraphs (a) and (b)
had an experience rating at the time of the acquisition, the
transferred experience rating of the predecessor shall be
combined with the successor's experience rating for purposes of
computing a tax rate.
(e) If there has been a transfer of an experience rating
under paragraph (a) or (b), employment with a predecessor
employer shall not be considered to have been terminated if
similar employment is offered by the successor employer and
accepted by the employee.
(f) The commissioner, upon the commissioner's own motion or
upon application of an employer shall determine if an employer
is a successor within the meaning of this subdivision and shall
send the determination to the employer by mail or electronic
transmission. The determination shall be final unless a protest
is filed by the employer within 30 calendar days after sending
the determination. Upon receipt of a protest, the commissioner
shall review all available evidence and determine whether an
error has been made. The commissioner shall either affirm or
make a redetermination on whether the employer is a successor
within the meaning of this subdivision and send the employer, by
mail or electronic transmission, the affirmation or
redetermination. The affirmation or redetermination shall be
final unless an appeal is filed by the employer within 30
calendar days after the sending of the determination affirmation
or redetermination. Proceedings on the appeal shall be
conducted in accordance with section 268.105.
(g) The commissioner may, as the result of any
determination or decision regarding succession or nonsuccession,
recompute the tax rate of all employers affected by the
determination or decision for any year, including the year of
the acquisition and subsequent years, that is affected by the
transfer or nontransfer of part or all of the experience
rating. This paragraph does not apply to rates that have become
final before the filing of a written request to apply an
application for the transfer of a severable portion of the
experience rating under paragraph (b).
(h) Should an employer not have been in operation long
enough to qualify for an experience rating under subdivision 3,
paragraph (a), the experience rating for purposes of this
subdivision shall consist of those factors that normally make up
an experience rating, without the 12-month minimum.
(i) If the commissioner finds that a transaction was done,
in whole or in part, to avoid an experience rating or the
transfer of an experience rating, the commissioner may transfer
all or part of the experience rating regardless of the
requirements or limitations of paragraph paragraphs (a) and (b).
This shall include the transferring of employees from the
payroll of an employer with a higher experience rating to the
payroll of an employer with a lower experience rating.
(j) Regardless of paragraph (a), if there is an acquisition
or merger of a publicly held corporation by or with another
publicly held corporation the experience ratings of the
corporations shall be combined as of the date of acquisition or
merger for the purpose of computing a tax rate.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 28. Minnesota Statutes 2003 Supplement, section
268.051, subdivision 5, is amended to read:
Subd. 5. [TAX RATE FOR NEW EMPLOYERS.] (a) Each new
taxpaying employer that does not qualify for an experience
rating under subdivision 3, except new employers in a high
experience rating industry, shall be assigned, for a calendar
year, a tax rate the higher of (1) one percent, or (2) the tax
rate computed, to the nearest one-hundredth of a percent, by
dividing the total amount of unemployment benefits paid all
applicants during the 48 calendar months ending on June 30 of
the prior calendar year by the total taxable wages of all
taxpaying employers during the same period, plus the applicable
base tax rate and any additional assessments under subdivision
2, paragraph (d).
(b) Each new taxpaying employer in a high experience rating
industry that does not qualify for an experience rating under
subdivision 3, shall be assigned, for a calendar year, a tax
rate of 8.0 8.00 percent, plus the applicable base tax rate and
any additional assessments under subdivision 2, paragraph (d).
An employer is considered to be in a high experience rating
industry if:
(1) the employer is engaged in residential, commercial, or
industrial construction, including general contractors;
(2) the employer is engaged in sand, gravel, or limestone
mining;
(3) the employer is engaged in the manufacturing of
concrete, concrete products, or asphalt; or
(4) the employer is engaged in road building, repair, or
resurfacing, including bridge and tunnels and residential and
commercial driveways and parking lots.
(c) The commissioner shall send to the new employer, by
mail or electronic transmission, notice of the tax rate
assigned. An employer may protest the assignment of a tax rate
in accordance with the procedures in subdivision 6, paragraph
(c).
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 29. Minnesota Statutes 2003 Supplement, section
268.051, subdivision 6, is amended to read:
Subd. 6. [NOTICE OF TAX RATE.] (a) On or before each
December 15, the commissioner shall notify each employer by mail
or electronic transmission of the employer's tax rate, along
with any additional assessments, fees, or surcharges, as
determined for any the following calendar year. The notice
shall contain the base tax rate and the factors used in
determining the employer's experience rating. Unless a protest
of the tax rate is made, the assigned computed tax rate shall be
final except for fraud and shall be the rate at which taxes
shall be paid. The tax rate shall not be subject to collateral
attack by way of claim for a credit adjustment or refund, or
otherwise.
(b) If the legislature, subsequent to the sending of the
tax rate, changes any of the factors used to determine the rate,
the earlier notice shall be void. A new tax rate based on the
new factors shall be computed and sent to the employer.
(c) A review of an employer's tax rate may be obtained by
the employer filing, in a manner prescribed by the commissioner,
a protest within 30 calendar days from the date the tax rate
notice was sent to the employer. Upon receipt of the protest,
the commissioner shall review the tax rate to determine whether
or not there has been any clerical error or error in computation
or assignment of the tax rate. The commissioner shall either
affirm or make a redetermination of the rate and a notice of the
affirmation or redetermination shall be sent to the employer by
mail or electronic transmission. The affirmation or
redetermination shall be final unless the employer files an
appeal within 30 calendar days after the date the affirmation or
redetermination was sent. Proceedings on the appeal shall be
conducted in accordance with section 268.105.
(d) The commissioner may at any time upon the
commissioner's own motion correct any error in the computation
or the assignment of an employer's tax rate.
Sec. 30. Minnesota Statutes 2002, section 268.051,
subdivision 7, is amended to read:
Subd. 7. [TAX RATE BUYDOWN.] (a) Any taxpaying employer
who has been assigned a tax rate based upon an experience rating
may, upon the voluntary payment of an amount equivalent to any
portion or all of the unemployment benefits used in computing
the experience rating plus a surcharge of 25 percent, obtain a
cancellation of unemployment benefits used equal to the payment
made, less the surcharge. Upon the payment, the commissioner
shall compute a new experience rating for the employer,
and determine compute a new tax rate.
(b) Voluntary payments may be made only during the 30
calendar day period immediately following the date of sending of
the notice of tax rate. This period may be extended, upon a
showing of good cause, but in no event shall a voluntary payment
be allowed after by electronic payment and must be received
within 120 calendar days from the beginning of the calendar year
for which the tax rate is effective.
(c) Voluntary payments made within the time required will
not be refunded unless a request is made in writing within 30
calendar days after sending of the notice of the new tax rate.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 31. Minnesota Statutes 2002, section 268.0511, is
amended to read:
268.0511 [ANNUAL PAYMENT OF SMALL LIABILITIES.]
(a) An employer may file tax reports and pay all taxes,
surcharges, and assessments due under this chapter and section
116L.20, except late fees under section 268.044, for any
calendar year on an annual basis if the employer:
(1) has an experience rating of zero for that calendar
year;
(2) had total taxable wages paid in the 12-month period
ending the prior June 30 of less than five times the state's
taxable wage base; and
(3) has no outstanding tax or assessment liability,
including penalties and interest delinquent amounts due under
this chapter or section 116L.20.
(b) Tax reports and taxes and assessments All amounts due
under this section for any calendar year shall be paid on or
before the following January 31.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 32. Minnesota Statutes 2003 Supplement, section
268.052, subdivision 1, is amended to read:
Subdivision 1. [PAYMENTS.] In lieu of taxes payable on a
quarterly basis, the state of Minnesota or its political
subdivisions shall reimburse the trust fund the amount of
unemployment benefits charged to its reimbursable account under
section 268.047. Reimbursements in the amount of unemployment
benefits charged to the reimbursable account during a calendar
quarter shall be made must be received by the department on or
before the last day of the month following the month that the
notice of unemployment benefits paid is sent pursuant to section
268.047, subdivision 5. Past due reimbursements shall be
subject to the same interest charges and collection procedures
that apply to past due taxes.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 33. Minnesota Statutes 2003 Supplement, section
268.052, subdivision 2, is amended to read:
Subd. 2. [ELECTION BY STATE OR POLITICAL SUBDIVISION TO BE
A TAXPAYING EMPLOYER.] (a) The state or political subdivision
excluding a school district may elect to be a taxpaying employer
for any calendar year if a notice of election is filed within 30
calendar days following January 1 of that calendar year. Upon
election, the state or political subdivision shall be assigned
the new employer tax rate under section 268.051, subdivision 5,
for the calendar year of the election and until it qualifies for
an experience rating under section 268.051, subdivision 3.
(b) An election shall be for a minimum period of two
calendar years following the effective date of the election and
continue unless a notice terminating the election is filed not
later than 30 calendar days before the beginning of the calendar
year. The termination shall be effective at the beginning of
the next calendar year. Upon election, the commissioner shall
establish a reimbursable account for the state or political
subdivision. A termination of election shall be allowed only if
the state or political subdivision has, since the beginning of
the experience rating period under section 268.051, subdivision
3, paid taxes and made voluntary payments under section 268.051,
subdivision 7, equal to or more than 125 percent of the
unemployment benefits used in computing the experience rating.
In addition, any unemployment benefits paid after the experience
rating period shall be transferred to the new reimbursable
account of the state or political subdivision. If the amount of
taxes and voluntary payments paid since the beginning of the
experience rating period exceeds 125 percent of the amount of
unemployment benefits paid during the experience rating period,
that amount in excess shall be applied against any unemployment
benefits paid after the experience rating period.
(c) The method of payments to the trust fund under
subdivisions 3 and 4 shall apply to all taxes paid by or due
from the state or political subdivision that elects to be
taxpaying employers under this subdivision.
(d) The commissioner may allow A notice of election or a
notice terminating election to shall be filed by mail or
electronic transmission in a format prescribed by the
commissioner.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 34. Minnesota Statutes 2003 Supplement, section
268.053, subdivision 1, is amended to read:
Subdivision 1. [ELECTION.] (a) Any nonprofit organization
that has employees in covered employment shall pay taxes on a
quarterly basis pursuant to section 268.051 unless it elects to
make reimbursements to the trust fund the amount of unemployment
benefits charged to its reimbursable account under section
268.047.
The organization may elect to make reimbursements for a
period of not less than two calendar years beginning with the
date that the organization was determined to be an employer with
covered employment by filing a notice of election not later than
30 calendar days after the date of the determination.
(b) Any nonprofit organization that makes an election will
continue to be liable for reimbursements until it files a notice
terminating its election not later than 30 calendar days before
the beginning of the calendar year the termination is to be
effective.
(c) A nonprofit organization that has been making
reimbursements that files a notice of termination of election
shall be assigned the new employer tax rate under section
268.051, subdivision 5, for the calendar year of the termination
of election and until it qualifies for an experience rating
under section 268.051, subdivision 3.
(d) Any nonprofit organization that has been paying taxes
may elect to make reimbursements by filing no less than 30
calendar days before January 1 of any calendar year a notice of
election. Upon election, the commissioner shall establish a
reimbursable account for the nonprofit organization. An
election shall be allowed only if the nonprofit organization
has, since the beginning of the experience rating period under
section 268.051, subdivision 3, paid taxes and made voluntary
payments under section 268.051, subdivision 7, equal to or more
than 125 percent of the unemployment benefits used in computing
the experience rating. In addition, any unemployment benefits
paid after the experience rating period shall be transferred to
the new reimbursable account of the nonprofit organization. If
the amount of taxes and voluntary payments paid since the
beginning of the experience rating period exceeds 125 percent of
the amount of unemployment benefits paid during the experience
rating period, that amount in excess shall be applied against
any unemployment benefits paid after the experience rating
period. The election shall not be terminable by the
organization for that and the next calendar year.
(e) The commissioner may for good cause extend the period
that a notice of election, or a notice of termination, must be
filed and may permit an election to be retroactive.
(f) The commissioner may allow A notice of election or
notice terminating election to shall be filed by mail or
electronic transmission in a format prescribed by the
commissioner.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 35. Minnesota Statutes 2002, section 268.053,
subdivision 2, is amended to read:
Subd. 2. [DETERMINATION, PROTEST, AND APPEAL.] The
commissioner shall notify each nonprofit organization by mail or
electronic transmission of any determination of its status as an
employer with covered employment and of the effective date of
any election or termination of election. The determinations
shall be final unless an appeal a protest is filed within 30
calendar days after sending of the determination. Upon receipt
of a protest, the commissioner shall review all available
evidence and determine whether an error has been made. The
commissioner shall send to the nonprofit organization, by mail
or electronic transmission, an affirmation or redetermination.
The affirmation or redetermination shall be final unless an
appeal is filed within 30 calendar days of sending the
affirmation or redetermination. Proceedings on the appeal shall
be conducted in accordance with section 268.105.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 36. Minnesota Statutes 2003 Supplement, section
268.053, subdivision 3, is amended to read:
Subd. 3. [PAYMENTS.] (a) Reimbursements, in the amount of
unemployment benefits charged to the reimbursable account,
during a calendar quarter, shall be made must be received by the
department on or before the last day of the month following the
month that the notice of unemployment benefits paid is sent
pursuant to section 268.047, subdivision 5.
(b) Past due reimbursements shall be subject to the same
interest charges and collection procedures that apply to past
due taxes.
(c) If any nonprofit organization is delinquent in making
reimbursements, the commissioner may terminate the
organization's election to make reimbursements as of the
beginning of the next calendar year, and the termination shall
be effective for that and the following calendar year. A
nonprofit organization that has its election terminated under
this paragraph shall be assigned the new employer tax rate under
section 268.051, subdivision 5, until the organization qualifies
for an experience rating under section 268.051, subdivision 3.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Sec. 37. Minnesota Statutes 2002, section 268.057, as
amended by Laws 2003, First Special Session chapter 3, article
2, sections 6 and 20, is amended to read:
268.057 [COLLECTION OF TAXES.]
Subdivision 1. [REPORTS; DELINQUENCIES; PENALTIES AMOUNT
COMPUTED PRESUMED CORRECT.] (a) Any employer who knowingly fails
to submit to the commissioner any tax report at the time the
report is required under section 268.051, subdivision 1a, or
268.0511 shall pay to the department a penalty of up to $25 or
an amount of 1-1/2 percent of taxes accrued for each month from
and after the due date until the tax report is properly
submitted, whichever is greater.
(b) If any employer required to submit tax reports fails to
do so, or submits, willfully or otherwise, an incorrect or false
tax report, the employer shall, on the demand of the
commissioner sent by mail or electronic transmission, submit the
tax report, or corrected report, within ten days and at the same
time pay the tax due. If the employer fails within that time to
submit the tax report or corrected report and pay any tax due,
the commissioner shall make an estimated tax report from the
commissioner's own knowledge and from information the
commissioner may obtain and assess a tax on that basis. That
assessed tax, plus any penalties and interest, shall be paid
within ten days after notice of the amount due has been sent by
mail or electronic transmission. Any assessed tax because of
the failure of the employer to submit a tax report or corrected
tax report shall be prima facie correct and valid, and the
employer shall have the burden of establishing its incorrectness
or invalidity in any subsequent action or proceeding. Whenever
the delinquent employer files a tax report or corrected tax
report, the commissioner may, on finding it substantially
correct, accept that report.
(c) If the commissioner finds that any part of any
employer's tax deficiency is due to fraud with intent to avoid
payment of taxes to the trust 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.
(d) The penalties provided for in paragraphs (a) and (c)
are in addition to interest and any other penalties and shall be
paid to the department and credited to the contingent account.
(e) An employer or officer or agent of an employer is
guilty of a gross misdemeanor, unless the tax or other payment
involved exceeds $500, in which case the person is guilty of a
felony, if the individual:
(1) in order to avoid becoming or remaining a subject
employer or to avoid or reduce any tax or other payment required
under this chapter:
(i) makes a false statement or representation knowing it to
be false; or
(ii) knowingly fails to disclose a material fact; or
(2) willfully fails or refuses to pay any taxes or other
payment at the time required.
Subd. 2. [TAX OR PAYMENT IN LIEU OF TAX PRESUMED VALID.]
The tax and payment in lieu of tax Any amount due from an
employer, as assessed computed by the commissioner, including
any penalties, shall be presumed to be valid and correctly
determined and assessed, and the burden shall be upon the
employer to show its incorrectness or invalidity. A statement
by the commissioner of the amount of the tax, payment in lieu of
tax, interest and penalties as determined or assessed by the
commissioner, due shall be admissible in evidence in any court
or administrative proceeding and shall be prima facie evidence
of the facts in the statement.
Subd. 2. [PRIORITY OF PAYMENTS.] (a) Any payment received
from a taxpaying employer shall be applied in the following
order:
(1) unemployment insurance taxes; then
(2) special assessment for interest on any federal loan;
then
(3) workforce development fee; then
(4) interest on past due taxes; then
(5) penalties, late fees, administrative service fees, and
costs.
(b) Paragraph (a) shall be the priority used for all
payments received from a taxpaying employer, regardless of how
the employer may designate the payment to be applied, except
when:
(1) there is an outstanding lien and the employer
designates that the payment made should be applied to satisfy
the lien;
(2) the payment is for back pay withheld from an applicant
pursuant to section 268.085, subdivision 6, paragraph (b);
(3) the payment is specifically designated by the employer
to be applied to an outstanding overpayment of unemployment
benefits of an applicant;
(4) a court or administrative order directs that the
payment be applied to a specific obligation;
(5) a preexisting payment plan provides for the application
of payment; or
(6) the commissioner, under the compromise authority of
section 268.067, agrees to apply the payment to a different
priority.
Subd. 3. [CONFESSION OF JUDGMENT ESTIMATING THE TAX
DUE.] (a) Any tax report or other form that is required to be
filed with the commissioner concerning taxes or reimbursements
due, shall contain a written declaration that it is made under
the penalties for willfully making a false report and shall
contain a confession of judgment for the amount of the tax or
reimbursements shown due thereon to the extent not timely paid
together with any interest and penalty due under this chapter.
(b) The commissioner may, within six years after the report
or other form is filed, regardless of section 541.09, enter
judgment on any confession of judgment after 20 calendar days'
notice served upon the employer by mail. The judgment shall be
entered by the court administrator of any county upon the filing
of a photocopy of the confession of judgment along with a
statement of the commissioner that the tax or payment in lieu of
tax has not been paid. Only if an employer fails to make all
necessary records available for an audit pursuant to section
268.186, paragraph (b), and the commissioner has reason to
believe the employer has not reported all the required wages on
the quarterly wage detail reports under section 268.044, may the
commissioner then estimate the amount of tax due and assess the
employer the estimated amount due.
Subd. 4. [COSTS.] Any person that fails to pay any taxes,
reimbursements, or unemployment benefit overpayment, including
interest and penalties, amount when due under this chapter is
liable for any filing fees, recording fees, sheriff fees, costs
incurred by referral to any public or private collection agency,
or litigation costs, including attorney fees, incurred in the
collection of the amounts due.
If any check or money order, in tendered payment of any
amount due, is not honored when presented to a financial
institution for payment, a fee of $25 shall be assessed.
Costs and fees collected under this subdivision shall be
credited to the administration account to be used by the
commissioner to ensure integrity in the administration of the
unemployment insurance program.
Subd. 5. [INTEREST ON AMOUNTS PAST DUE TAXES.] If
any taxes, reimbursements, fees, assessments, surcharges, or any
penalties amounts due from an employer under this chapter or
section 268.184 116L.20, except late fees under section 268.044,
are not paid received on the date due the unpaid balance shall
bear interest at the rate of one and one-half percent per month
or any part thereof. Any payments received by mail postmarked
on a day following the date due shall be considered to have been
paid on the due date if there is substantial evidence that the
payment was actually deposited in the United States mail
properly addressed to the department with postage prepaid
thereon on or before the due date. Interest assessed, if not a
whole dollar amount, shall be rounded down to the next lower
whole dollar. Interest collected shall be credited to the
contingent account. Interest may be waived compromised under
section 268.067.
Subd. 6. [INTEREST ON JUDGMENTS.] Regardless of section
549.09, if judgment is entered upon any past due tax or
reimbursements amounts from an employer under this chapter or
section 116L.20, the unpaid judgment shall bear interest at the
rate specified in subdivision 5 until the date of payment.
Subd. 7. [CREDIT ADJUSTMENTS, REFUNDS.] (a) If an employer
makes an application for a credit adjustment of any amount
paid as taxes or interest thereon under this chapter or section
116L.20 within four years of the year that the payment was made,
in a manner and format prescribed by the commissioner, and the
commissioner determines that the payment or any portion was
erroneous, the commissioner shall make an adjustment and issue a
credit without interest. If a credit cannot be used, the
commissioner shall refund, without interest, the amount
erroneously paid. The commissioner, on the commissioner's own
motion, may make a credit adjustment or refund under this
subdivision.
Any refund returned to the commissioner shall be considered
unclaimed property under chapter 345.
(b) If a credit adjustment or refund is denied in whole or
in part, a notice of denial shall be sent to the employer by
mail or electronic transmission. Within 30 calendar days after
sending of the notice of denial, the employer may appeal protest.
Upon receipt of a timely protest, the commissioner shall
review the denial and either affirm the denial or redetermine
the credit adjustment or refund. The affirmation of denial or
redetermination of the credit adjustment or refund, sent by mail
or electronic transmission, shall be final unless an employer
files an appeal within 30 calendar days after sending.
Proceedings on the appeal shall be conducted in accordance with
section 268.105.
Subd. 10. [PRIORITIES UNDER LEGAL DISSOLUTIONS OR
DISTRIBUTIONS.] In the event of any distribution of an
employer's assets pursuant to an order of any court, including
any receivership, assignment for benefit of creditors,
adjudicated insolvency, or similar proceeding, taxes then or
thereafter due shall be paid in full prior to all other claims
except claims for wages of not more than $1,000 per former
employee, earned within six months of the commencement of the
proceedings. In the event of an employer's adjudication in
bankruptcy under federal law, taxes then or thereafter due shall
be entitled to the priority provided in that law for taxes due
any state.
[EFFECTIVE DATE.] This section is effective July 1, 2005.
Subdivision 5 does not apply to late tax report penalties issued
prior to July 1, 2005.
Sec. 38. Minnesota Statutes 2002, section 268.058, as
amended by Laws 2003, First Special Session chapter 3, article
2, section 20, is amended to read:
268.058 [LIEN, LEVY, SETOFF, AND CIVIL ACTION.]
Subdivision 1. [LIEN.] (a) Any taxes, unemployment benefit
overpayments, or reimbursements due including interest,
penalties, and costs amount due under this chapter or section
116L.20, from an applicant or an employer, shall become a lien
upon all the property, within this state, both real and
personal, of the person liable, from the date of assessment.
The term "date of assessment" means the date the obligation was
due.
(b) The lien is not enforceable against any purchaser,
mortgagee, pledgee, holder of a Uniform Commercial Code security
interest, mechanic's lien, or judgment lien creditor, until a
notice of lien has been filed with the county recorder of the
county where the property is situated, or in the case of
personal property belonging to a nonresident person in the
Office of the Secretary of State. When the notice of lien is
filed with the county recorder, the fee for filing and indexing
shall be as provided in sections 272.483 and 272.484.
(c) Notices of liens, lien renewals, and lien releases, in
a form prescribed by the commissioner, may be filed with the
county recorder or the secretary of state by mail, personal
delivery, or by electronic transmission into the computerized
filing system of the secretary of state. The secretary of state
shall, on any notice filed with that office, transmit the notice
electronically to the appropriate county recorder. The filing
officer, whether the county recorder or the secretary of state,
shall endorse and index a printout of the notice as if the
notice had been mailed or delivered.
(d) County recorders and the secretary of state shall enter
information on lien notices, renewals, and releases into the
central database of the secretary of state. For notices filed
electronically with the county recorders, the date and time of
receipt of the notice and county recorder's file number, and for
notices filed electronically with the secretary of state, the
secretary of state's recording information, must be entered into
the central database before the close of the working day
following the day of the original data entry by the commissioner.
(e) The lien imposed on personal property, even though
properly filed, is not enforceable against a purchaser of
tangible personal property purchased at retail or personal
property listed as exempt in sections 550.37, 550.38, and 550.39.
(f) A notice of lien filed has priority over any security
interest arising under chapter 336, article 9, that is perfected
prior in time to the lien imposed by this subdivision, but only
if:
(1) the perfected security interest secures property not in
existence at the time the notice of lien is filed; and
(2) the property comes into existence after the 45th
calendar day following the day the notice of lien is filed, or
after the secured party has actual notice or knowledge of the
lien filing, whichever is earlier.
(g) The lien shall be enforceable from the time the lien
arises and for ten years from the date of filing the notice of
lien. A notice of lien may be renewed before expiration for an
additional ten years.
(h) The lien shall be enforceable by levy under subdivision
2 or by judgment lien foreclosure under chapter 550.
(i) The lien may be imposed upon property defined as
homestead property in chapter 510 but may be enforced only upon
the sale, transfer, or conveyance of the homestead property.
(j) The commissioner may sell and assign to a third party
the commissioner's right of redemption in specific real property
for liens filed under this subdivision. The assignee shall be
limited to the same rights of redemption as the commissioner,
except that in a bankruptcy proceeding, the assignee does not
obtain the commissioner's priority. Any proceeds from the sale
of the right of redemption shall be credited to the contingent
account. Any sale shall be by written agreement signed by an
attorney who is a classified employee of the department
designated by the commissioner for that purpose.
Subd. 2. [LEVY.] (a) If any tax, reimbursements, or
unemployment benefit overpayment, including interest, penalties,
and costs amount due under this chapter or section 116L.20, from
an applicant or an employer, is not paid when due, the amount
may be collected by the commissioner by direct levy upon all
property and rights of property of the person liable for the
amount due except that exempt from execution under section
550.37. The term "levy" includes the power of distraint and
seizure by any means.
(b) In addition to a direct levy, the commissioner may
issue a warrant to the sheriff of any county who shall proceed
within 60 calendar days to levy upon the property or rights to
property of the delinquent person within the county, except that
exempt under section 550.37. The sheriff shall sell that
property necessary to satisfy the total amount due, together
with the commissioner's and sheriff's costs. The sales shall be
governed by the law applicable to sales of like property on
execution of a judgment.
(c) Notice and demand for payment of the total amount due
shall be mailed to the delinquent person at least ten calendar
days prior to action being taken under paragraphs (a) and (b).
(d) If the commissioner has reason to believe that
collection of the amount due is in jeopardy, notice and demand
for immediate payment may be made. If the total amount due is
not paid, the commissioner may proceed to collect by direct levy
or issue a warrant without regard to the ten calendar day period.
(e) In executing the levy, the commissioner shall have all
of the powers provided in chapter 550 or any other law that
provides for execution against property in this state. The sale
of property levied upon and the time and manner of redemption
shall be as provided in chapter 550. The seal of the court
shall not be required. The levy may be made whether or not the
commissioner has commenced a legal action for collection.
(f) Where any assessment has been made by the commissioner,
the property seized for collection of the total amount due shall
not be sold until any determination of liability has become
final. No sale shall be made unless a portion of the amount due
remains unpaid for a period of more than 30 calendar days after
the determination of liability becomes final. Seized property
may be sold at any time if:
(1) the delinquent person 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.
(g) Where a levy has been made to collect the amount due
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 orders.
(h) The property seized shall be returned if the owner:
(1) gives a surety bond equal to the appraised value of the
owner's interest in the property, as determined by the
commissioner, or
(2) deposits with the commissioner security in a form and
amount the commissioner considers necessary to insure payment of
the liability.
(i) If a levy or sale would irreparably injure rights in
property that the court determines superior to rights of the
state, the court may grant an injunction to prohibit the
enforcement of the levy or to prohibit the sale.
(j) Any person who fails or refuses to surrender without
reasonable cause any property or rights to property subject to
levy shall be personally liable in an amount equal to the value
of the property or rights not so surrendered, but not exceeding
the amount due.
(k) If the commissioner has seized the property of any
individual, that individual 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
upon terms and conditions the court considers equitable.
(l) Any person in control or possession of property or
rights to property upon which a levy has been made who
surrenders the property or rights to property, or who pays the
amount due shall be discharged from any obligation or liability
to the person liable for the amount due with respect to the
property or rights to property.
(m) The notice of any levy may be served personally or by
mail.
(n) The commissioner may 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 prevent
any subsequent levy. If the commissioner determines that
property has been wrongfully levied upon, the commissioner shall
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) Regardless of section 52.12, a levy upon a person'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 person
to the financial institution. A claim by the financial
institution that it exercised its right to setoff prior to the
levy must be substantiated by evidence of the date of the
setoff, and verified by an affidavit from a corporate officer of
the financial institution. For purposes of determining the
priority of any levy under this subdivision, the levy shall be
treated as if it were an execution under chapter 550.
Subd. 3. [RIGHT OF SETOFF.] (a) Upon certification by the
commissioner to the commissioner of finance, or to any state
agency that disburses its own funds, that a person, applicant,
or employer has a liability under this chapter, including
interest, penalties, and costs or section 116L.20, and that the
state has purchased personal services, supplies, contract
services, or property from that person, the commissioner of
finance or the state agency shall set off and pay to the
commissioner an amount sufficient to satisfy the unpaid
liability from funds appropriated for payment of the obligation
of the state otherwise due the person. No amount shall be set
off from any funds exempt under section 550.37 or funds due an
individual who receives assistance under chapter 256.
(b) All funds, whether general or dedicated, shall be
subject to setoff.
Regardless of any law to the contrary, the commissioner
shall have first priority to setoff from any funds otherwise due
from the department to a delinquent person.
Subd. 4. [COLLECTION BY CIVIL ACTION.] (a) Any delinquent
taxes, reimbursements, or unemployment benefit overpayment,
including interest, penalties, or costs amount due under this
chapter or section 116L.20, from an applicant or employer, may
be collected by civil action in the name of the state of
Minnesota. Civil actions brought under this subdivision shall
be heard as provided under section 16D.14. In any action,
judgment shall be entered in default for the relief demanded in
the complaint without proof, together with costs and
disbursements, upon the filing of an affidavit of default.
(b) Any person that is not a resident of this state and any
resident person removed from this state, shall be considered to
appoint the secretary of state as its agent for the acceptance
of process in any civil action. The commissioner shall file
process with the secretary of state, together with a payment of
a fee of $15 and that service shall be considered sufficient
service and shall have the same force and validity as if served
personally within this state. Notice of the service of process,
together with a copy of the process, shall be sent by certified
mail to the person's last known address. An affidavit of
compliance with this subdivision, and a copy of the notice of
service shall be appended to the original of the process and
filed in the court.
(c) No court filing fees, docketing fees, or release of
judgment fees may be assessed against the state for actions
pursuant to this subdivision.
Subd. 5. [INJUNCTION FORBIDDEN.] No injunction or other
legal action to prevent the determination, assessment, or
collection of any tax, reimbursements, or unemployment benefit
overpayment, including interest, penalties, and costs amounts
due under this chapter or section 116L.20, from an applicant or
employer, shall be allowed.
Sec. 39. Minnesota Statutes 2003 Supplement, section
268.059, subdivision 1, is amended to read:
Subdivision 1. [NOTICE.] The commissioner may give notice
to any employer that an employee owes delinquent taxes,
reimbursements, or overpaid unemployment benefits, including
penalties, interest, and costs any amounts due under this
chapter or section 116L.20, and that the obligation to the trust
fund should be withheld from the employee's wages. The
commissioner may proceed only if the tax, reimbursements, or
unemployment benefit overpayment amount due is uncontested or if
the time for any appeal has expired. The commissioner shall not
proceed until 30 calendar days after mailing sending to the
debtor employee, at the debtor's last known address by mail or
electronic transmission, a written notice of intent to garnish
wages and exemption notice. That notice shall list:
(1) the amount of taxes, reimbursements, overpaid
unemployment benefits, interest, penalties, or costs due from
the debtor;
(2) demand for immediate payment; and
(3) the intention to serve a garnishment notice on the
debtor's employer.
The notice shall expire 180 calendar days after it has been
mailed sent to the debtor provided that the notice may be
renewed by mailing sending a new notice that is in accordance
with this section. The renewed notice shall have the effect of
reinstating the priority of the original notice. The exemption
notice shall be in substantially the same form as in section
571.72. The notice shall inform the debtor of the right to
claim exemptions contained in section 550.37, subdivision 14.
If no written claim of exemption is received by the commissioner
within 30 calendar days after mailing sending of the notice, the
commissioner may proceed with the garnishment. The notice to
the debtor's employer may be served by mail or electronic
transmission and shall be in substantially the same form as in
section 571.75.
Sec. 40. Minnesota Statutes 2002, section 268.059,
subdivision 3, is amended to read:
Subd. 3. [DISCHARGE OR DISCIPLINE PROHIBITED.] (a) If the
employee ceases to be employed by the employer before the full
amount set forth on the garnishment notice plus accrued interest
has been withheld, the employer shall immediately notify the
commissioner in writing or by electronic transmission, as
prescribed by the commissioner, of the termination date of the
employee and the total amount withheld. No employer may
discharge or discipline any employee because the commissioner
has proceeded under this section. If an employer discharges an
employee in violation of this section, the employee shall have
the same remedy as provided in section 571.927, subdivision 2.
(b) This section shall apply if the employer is the state
of Minnesota or any political subdivision.
(c) The commissioner shall refund to the employee any
excess amounts withheld from the employee.
(d) An employer that fails or refuses to comply with this
section shall be jointly and severally liable for the total
amount due from the employee. Any amount due from the employer
under this paragraph may be collected in accordance with section
268.058 the same manner as any other amounts due from an
employer under this chapter.
Sec. 41. Minnesota Statutes 2002, section 268.0625, as
amended by Laws 2003, First Special Session chapter 3, article
2, section 20, is amended to read:
268.0625 [REVOCATIONS OF BUSINESS LICENSES.]
Subdivision 1. [NOTICE OF DEBT TO LICENSING AUTHORITY.]
The state of Minnesota or a political subdivision may not issue,
transfer, or renew, and must revoke a license for the conduct of
any profession, trade, or business, if the commissioner notifies
the licensing authority that the licensee, applicant, or
employer owes delinquent taxes, reimbursements, or unemployment
benefit overpayments, including interest, penalties, and
costs any amount due under this chapter or section 116L.20, of
$500 or more. A licensing authority that has received such a
notice may issue, transfer, renew, or not revoke the license
only if the licensing authority has received a copy of the debt
clearance certificate issued by the commissioner.
Subd. 2. [DEBT CLEARANCE CERTIFICATE.] The commissioner
may issue a debt clearance certificate only if:
(1) the licensee has fully paid any delinquent taxes,
reimbursements, or unemployment benefit overpayments, including
interest, penalties, and costs amounts due under this chapter or
section 116L.20; or
(2) the licensee has entered into an agreement to pay the
total amount due and is current with all the terms of that
agreement.
Subd. 3. [DEFINITION.] For the purposes of this section,
"licensee" means:
(1) an individual if the license is issued to or in the
name of an individual, or the corporation, limited liability
company, or partnership if the license is issued to or in the
name of a corporation, limited liability company, or
partnership; or
(2) an officer of a corporation, manager of a limited
liability company, or a member of a partnership, or an
individual who is liable for the delinquent taxes,
reimbursements, or unemployment benefit overpayments amounts due
under this chapter or section 116L.20, either for the entity
that the license is at issue or for another entity that the
liability was incurred, or personally as a licensee. "Licensee"
includes both the transferor and the transferee of the license
and any holder of a license.
Subd. 4. [NOTICE AND RIGHT TO HEARING.] At least 30
calendar days before the commissioner notifies a licensing
authority, a notice of action under this section shall be mailed
sent to the licensee by mail or electronic transmission. If the
licensee disputes the action, the licensee must appeal within 30
calendar days after the mailing sending of the notice to
the licensee's last known address licensee. The only issue on
any appeal is whether the commissioner has complied with the
requirements of this section. Proceedings on the appeal shall
be conducted in accordance with section 268.105.
Subd. 5. [LICENSING AUTHORITY; DUTIES.] Upon request, the
licensing authority shall provide the commissioner with a list
of all licensees, including the name, address, business name and
address, Social Security number, and business identification
number. The commissioner may request a list of the licensees no
more than once each calendar year. Regardless of section
268.19, the commissioner may release information necessary to
accomplish this section.
Sec. 42. Minnesota Statutes 2003 Supplement, section
268.063, is amended to read:
268.063 [PERSONAL LIABILITY.]
(a) Any officer, director, or employee of a corporation or
any manager, governor, member, or employee of a limited
liability company 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 paying the amounts due
under this chapter or section 116L.20, and
(2) willfully knowingly fails to file the tax reports or
pay the amounts due, shall be personally liable for taxes or
reimbursements, including interest, penalties, and costs the
amount due in the event the employer does not pay.
For purposes of this section, "willfulness knowingly" means
that the facts demonstrate that the responsible party individual
used or allowed the use of corporate or company assets to pay
other creditors knowing that the amounts due under this chapter
were unpaid. An evil motive or intent to defraud is not
necessary.
(b) Any partner of a limited liability partnership, or
professional limited liability partnership, shall be jointly and
severally liable for taxes or reimbursements, including
interest, penalties, and costs any amount due under this chapter
or section 116L.20 in the event the employer does not pay.
(c) Any personal representative of the estate of a decedent
or fiduciary who voluntarily distributes the assets without
reserving a sufficient amount to pay the taxes, reimbursements,
interest, and penalties amount due shall be personally liable
for the deficiency.
(d) The personal liability of any individual shall survive
dissolution, reorganization, receivership, or assignment for the
benefit of creditors. For the purposes of this section, all
wages paid by the employer shall be considered earned from the
individual determined to be personally liable.
(e) The commissioner shall make an initial a determination
as to personal liability. The determination shall be final
unless the individual found to be personally liable, within 30
calendar days after mailing of sending, by mail or electronic
transmission, a notice of determination to the individual's last
known address, files a protest. Upon receipt of the protest,
the commissioner 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 individual's last known
address sent to the individual by mail or electronic
transmission. The affirmation or redetermination shall become
final unless an appeal is filed within 30 calendar days after
the date of mailing sending. Proceedings on the appeal shall be
conducted in accordance with section 268.105.
Sec. 43. Minnesota Statutes 2002, section 268.064,
subdivision 1, is amended to read:
Subdivision 1. [ACQUISITION OF ORGANIZATION, TRADE,
BUSINESS, OR ASSETS.] Any person who acquires all or part of the
organization, trade, business or assets from an employer, is
jointly and severally liable, in an amount not to exceed the
reasonable value of that part of the organization, trade,
business or assets acquired, for the taxes any amounts due and
unpaid by the employer. The amount of liability shall, in
addition, be a lien against the property or assets acquired and
shall be prior to all other unrecorded liens. This section does
not apply to sales in the normal course of the employer's
business.
Sec. 44. Minnesota Statutes 2002, section 268.064,
subdivision 3, is amended to read:
Subd. 3. [STATEMENT OF AMOUNT DUE.] Prior to the date of
acquisition, the commissioner shall furnish the acquiring person
with a statement of the taxes amounts due and unpaid under this
chapter or section 116L.20 upon the written request of the
potential acquiring person and the written release of the
obligor. No release is required after the date of acquisition.
Sec. 45. Minnesota Statutes 2002, section 268.065,
subdivision 1, is amended to read:
Subdivision 1. [SUBCONTRACTORS.] A contractor who
contracts with any subcontractor shall guarantee the payment of
all the taxes, interest, penalties, and collection costs amounts
that are due or become due from the subcontractor with respect
to taxable wages paid on the contract by:
(1) withholding sufficient money on the contract; or
(2) requiring the subcontractor to provide a sufficient
bond guaranteeing the payment of all taxes, interest, penalties,
and collection costs amounts that may become due.
The contractor may make a written request for verification
that the subcontractor has paid the taxes due 60 calendar days
after the due date for filing the tax wage detail report that
includes the final wages paid for employment performed under the
contract. If the subcontractor has paid the taxes amounts due
for the period covered by the contract, the commissioner may
release the contractor from its liability.
The words "contractor" and "subcontractor" include
individuals, partnerships, firms, or corporations, or other
association of persons engaged in the construction industry.
Sec. 46. Minnesota Statutes 2002, section 268.065,
subdivision 2, is amended to read:
Subd. 2. [EMPLOYEE LEASING FIRMS.] A person whose work
force consists of 50 percent or more of workers provided by
employee leasing firms, is jointly and severally liable for the
unpaid taxes, penalties, interest, and collection costs amounts
that are due under this chapter or section 116L.20 on the wages
paid on the contract with the employee leasing firm. "Employee
leasing firm" means an employer that provides its employees to
other persons without severing its employer-employee
relationship with the worker for the services performed for the
lessee.
Sec. 47. Minnesota Statutes 2003 Supplement, section
268.066, is amended to read:
268.066 [CANCELLATION OF DELINQUENT TAXES AMOUNTS DUE FROM
AN EMPLOYER.]
(a) The commissioner shall cancel as uncollectible any
taxes, reimbursements, penalties, or the interest or costs
thereon amounts due from an employer under this chapter or
section 116L.20, which remain unpaid six years after the amounts
have been first determined due and payable, except where the
delinquent amounts are secured by a notice of lien, a judgment,
are in the process of garnishment, or are under a payment plan.
(b) The commissioner may cancel at any time as
uncollectible any taxes, reimbursements, penalties, or the
interest or costs thereon amount due, or any portion of an
amount due, from an employer under this chapter or section
116L.20, that the commissioner determines (1) are uncollectible
due to death or bankruptcy, (2) the Minnesota Collection
Enterprise under section 16D.04 was unable to collect, or (3)
the commissioner determines that it is not in the public
interest to pursue collection of the amount due.
Sec. 48. Minnesota Statutes 2003 Supplement, section
268.067, is amended to read:
268.067 [COMPROMISE.]
(a) The commissioner may compromise in whole or in part any
action, determination, or decision that affects only an employer
and not an applicant, and that has occurred during the prior 24
months. This paragraph may apply if it is determined by a court
of law, or a confession of judgment, that an applicant, while
employed, wrongfully took from the employer $500 or more in
money or property.
(b) The commissioner may at any time compromise delinquent
any amount due from an employer taxes, reimbursements, interest,
penalties, and costs under this chapter or section 116L.20.
(c) Any compromise involving an amount over $2,500 shall be
authorized by written order signed by an attorney who is a
classified an employee of the department designated by the
commissioner for that purpose.
(d) Any compromise order must set out all the terms and the
reason for the order and must be in the best interest of the
state of Minnesota.
Sec. 49. Minnesota Statutes 2003 Supplement, section
268.0675, is amended to read:
268.0675 [NO ELECTION OF REMEDY.]
Use of any remedy under this chapter for the collection of
any delinquent taxes, reimbursements, or unemployment benefit
overpayment, including penalties, interest, and costs, amount
due from an employer or an applicant shall not constitute an
election of remedy to the exclusion of any other available
remedy.
Sec. 50. Minnesota Statutes 2002, section 268.07,
subdivision 1, is amended to read:
Subdivision 1. [APPLICATION FOR UNEMPLOYMENT BENEFITS;
DETERMINATION OF BENEFIT ACCOUNT.] (a) An application for
unemployment benefits may be filed in person, by mail, by
telephone, or by electronic transmission as the commissioner
shall require. The applicant must be unemployed at the time the
application is filed and must provide all requested information
in the manner required. If the applicant is not unemployed at
the time of the application or fails to provide all requested
information, the communication shall not be considered an
application for unemployment benefits.
(b) The commissioner shall examine each application for
unemployment benefits to determine the base period and the
benefit year, and based upon all the covered employment in the
base period the commissioner shall determine the weekly
unemployment benefit amount available, if any, and the maximum
amount of unemployment benefits available, if any. The
determination shall be known as the determination of benefit
account. A determination of benefit account shall be sent to
the applicant and all base period employers, by mail or
electronic transmission.
(c) If a base period employer did not provide wage
information for the applicant as provided for in section
268.044, or provided erroneous information, the commissioner
shall may accept an applicant certification as to wage credits,
based upon the applicant's records, and issue a determination of
benefit account.
(d) The commissioner may, at any time within 24 months from
the establishment of a benefit account, reconsider any
determination of benefit account and make an amended
determination if the commissioner finds that the determination
was incorrect for any reason. An amended determination shall be
promptly sent to the applicant and all base period employers, by
mail or electronic transmission.
If an amended determination of benefit account reduces the
weekly unemployment benefit amount or maximum amount of
unemployment benefits available, any unemployment benefits that
have been paid greater than the applicant was entitled is
considered an overpayment of unemployment benefits under section
268.18, subdivision 1.
Sec. 51. Minnesota Statutes 2003 Supplement, section
268.07, subdivision 2, is amended to read:
Subd. 2. [BENEFIT ACCOUNT REQUIREMENTS AND WEEKLY
UNEMPLOYMENT BENEFIT AMOUNT AND MAXIMUM AMOUNT OF UNEMPLOYMENT
BENEFITS.] (a) To establish a benefit account, an applicant must
have:
(1) high quarter wage credits of at least $1,000; and
(2) wage credits, in other than the high quarter, of at
least $250.
(b) If an applicant has established a benefit account, the
weekly unemployment benefit amount available during the benefit
year shall be the higher of:
(1) 50 percent of the applicant's average weekly wage
during the base period, to a maximum of 66-2/3 percent of the
state's average weekly wage; or
(2) 50 percent of the applicant's average weekly wage
during the high quarter, to a maximum of 45 percent of the
state's average weekly wage.
The applicant's average weekly wage under clause (1) shall
be computed by dividing the total wage credits by 52. The
applicant's average weekly wage under clause (2) shall be
computed by dividing the high quarter wage credits by 13.
(c) The state's maximum weekly unemployment benefit amount
and an applicant's weekly unemployment benefit amount and
maximum amount of unemployment benefits available shall be
rounded down to the next lowest lower whole dollar. The state's
maximum weekly benefit amount, computed in accordance with
section 268.035, subdivision 23, shall apply to a benefit
account established effective on or after the first Sunday in
August. Once established, an applicant's weekly unemployment
benefit amount shall not be affected by the first Sunday in
August change in the state's maximum weekly unemployment benefit
amount.
(d) The maximum amount of unemployment benefits available
on any benefit account shall be the lower of:
(1) 33-1/3 percent of the applicant's total wage credits;
or
(2) 26 times the applicant's weekly unemployment benefit
amount.
Sec. 52. Minnesota Statutes 2002, section 268.07,
subdivision 3, is amended to read:
Subd. 3. [SECOND BENEFIT ACCOUNT REQUIREMENTS.] To
establish a second benefit account following the expiration of a
benefit year on a prior benefit account, an applicant must have
sufficient wage credits to establish a benefit account under
subdivision 2 and must have performed services in covered
employment after the effective date of the prior benefit
account. The wages paid for that employment must equal not less
than eight times the weekly unemployment benefit amount of the
prior benefit account. A benefit account established
sufficiently in advance of anticipated loss of employment to
make the limitations of this subdivision ineffective shall not
be allowed. The purpose of this subdivision is to prevent an
applicant from establishing more than one benefit account as a
result of one loss of employment.
Sec. 53. Minnesota Statutes 2003 Supplement, section
268.085, subdivision 1, is amended to read:
Subdivision 1. [ELIGIBILITY CONDITIONS.] An applicant
shall be eligible to receive unemployment benefits for any week
if:
(1) the applicant has an active benefit account and has
filed a continued biweekly request for unemployment benefits for
that week pursuant to section 268.086;
(2) the applicant was able to work and was available for
suitable employment, and was actively seeking suitable
employment. The applicant's weekly unemployment benefit amount
shall be reduced one-fifth for each day the applicant is unable
to work or is unavailable for suitable employment. If the
computation of the reduced unemployment benefits is not a whole
dollar, it shall be rounded down to the next lower whole dollar.
This clause shall not apply to an applicant who is in
reemployment assistance training.
This clause shall not apply, or each day the applicant is
on jury duty;
(3) the applicant has served a waiting period of one week
that the applicant is otherwise entitled to some amount of
unemployment benefits. This clause shall not apply if the
applicant would have been entitled to federal disaster
unemployment assistance because of a disaster in Minnesota, but
for the applicant's establishment of a benefit account under
section 268.07; and
(4) the applicant has been participating in reemployment
assistance services, such as job search and resume writing
classes, if the applicant has been determined in need of
reemployment assistance services by the commissioner, unless
there is good cause for the applicant's failure to participate.
Sec. 54. Minnesota Statutes 2002, section 268.085,
subdivision 2, is amended to read:
Subd. 2. [NOT ELIGIBLE.] An applicant shall not be
eligible to receive unemployment benefits for any week:
(1) that occurs before the effective date of a benefit
account;
(2) that occurs in a period when the applicant is a student
in attendance at, or on vacation from a secondary school
including the period between academic years or terms;
(3) that the applicant is incarcerated or performing court
ordered community service. The applicant's weekly unemployment
benefit amount shall be reduced by one-fifth for each day the
applicant is incarcerated or performing court ordered community
service. If the computation of the reduced unemployment
benefits is not a whole dollar, it shall be rounded down to the
next lower whole dollar;
(4) that the applicant fails or refuses to provide
information on an issue of eligibility required under section
268.101, subdivision 1, paragraph (a), or an issue of
disqualification required under section 268.101, subdivision 1,
paragraph (d);
(5) that the applicant is performing services 32 hours or
more, in employment, covered employment, noncovered employment,
or self-employment regardless of the amount of any earnings; or
(6) with respect to which the applicant is receiving, has
received, or has filed an application for unemployment benefits
under any federal law or the law of any other state. If the
appropriate agency finally determines that the applicant is not
entitled to the unemployment benefits, this clause shall not
apply.
Sec. 55. Minnesota Statutes 2003 Supplement, section
268.085, subdivision 3, is amended to read:
Subd. 3. [PAYMENTS THAT DELAY UNEMPLOYMENT BENEFITS.] (a)
An applicant shall not be eligible to receive unemployment
benefits for any week with respect to which the applicant is
receiving, has received, or has filed for payment, equal to or
in excess of the applicant's weekly unemployment benefit amount,
in the form of:
(1) severance pay, bonus pay, vacation pay, sick pay, and
any other money payments, except earnings under subdivision 5,
and back pay under subdivision 6, paid by an employer because
of, upon, or after separation from employment, but only if the
money payment is considered wages at the time of payment under
section 268.035, subdivision 29, or United States Code, title
26, section 3121, clause (2), of the Federal Insurance
Contribution Act. This clause shall apply to all the weeks of
payment and shall be applied to the period immediately following
the last day of employment. The number of weeks of payment
shall be determined as follows:
(i) if the payments are made periodically, the total of the
payments to be received shall be divided by the applicant's last
level of regular weekly pay from the employer; or
(ii) if the payment is made in a lump sum, that sum shall
be divided by the applicant's last level of regular weekly pay
from the employer. This clause shall not apply to vacation pay
paid by an employer upon permanent separation from employment;
(2) pension, retirement, or annuity payments from any plan
contributed to by a base period employer including the United
States government, except Social Security benefits which are
provided for in subdivision 4. The base period employer
contributed to the plan if the contribution is excluded from the
definition of wages under section 268.035, subdivision 29,
clause (1), or United States Code, title 26, section 3121,
clause (2), of the Federal Insurance Contribution Act.
If the applicant receives a lump sum pension payment, that
sum shall be divided by the applicant's last level of regular
weekly pay to determine the number of weeks of payment. The
number of weeks of payment shall be applied to the period
immediately following the last day of employment. An applicant
shall not be considered to have received the lump sum payment if
the applicant immediately deposits that payment in a qualified
pension plan or account; or
(3) holiday pay.
(b) If the payment is less than the applicant's weekly
unemployment benefit amount, unemployment benefits shall be
reduced by the amount of the payment. If the computation of
reduced unemployment benefits is not a whole dollar, it shall be
rounded down to the next lowest lower whole dollar.
Sec. 56. Minnesota Statutes 2003 Supplement, section
268.085, subdivision 4, is amended to read:
Subd. 4. [SOCIAL SECURITY BENEFITS.] (a) Any applicant
aged 62 or over shall be required to state when filing an
application for unemployment benefits and when filing continued
biweekly requests for unemployment benefits whether the
applicant is receiving, has filed for, or intends to file for,
primary Social Security old age or disability benefits for any
week during the benefit year.
(b) There shall be deducted from an applicant's weekly
unemployment benefit amount 50 percent of the weekly equivalent
of the primary Social Security old age or disability benefit the
applicant has received, has filed for, or intends to file for,
with respect to that week.
(c) Regardless of paragraph (b), An applicant shall be
ineligible for unemployment benefits for any week with respect
to which the applicant who is receiving, has received, or has
filed for primary Social Security disability benefits.
This paragraph shall not apply if for any week during the
benefit year shall be determined unable to work and unavailable
for suitable employment for that week, unless:
(1) the Social Security Administration approved the
collecting of primary Social Security disability benefits each
month the applicant was employed during the base period.; or
(2) the applicant provides a statement from an appropriate
health care professional who is aware of the applicant's Social
Security disability claim and the basis for that claim,
certifying that the applicant is able to work and available for
suitable employment.
If an applicant meets the requirements of clause (1) or
(2), then there shall be deducted from the applicant's weekly
unemployment benefit amount 50 percent of the weekly equivalent
of the primary Social Security disability benefits the applicant
is receiving, has received, or has filed for, with respect to
that week; provided, however, that if the Social Security
Administration determines that an individual is not entitled to
receive primary Social Security disability benefits for any week
the applicant has applied for those benefits, the 50 percent
deduction shall not apply to that week.
(d) (c) Information from the Social Security Administration
shall be considered conclusive, absent specific evidence showing
that the information was erroneous.
(e) Any applicant who receives primary Social Security old
age or disability benefits for periods that the applicant has
been paid unemployment benefits shall be considered overpaid
those unemployment benefits under section 268.18, subdivision
1 (d) If the computation of the reduced unemployment benefits is
not a whole dollar, it shall be rounded down to the next lower
whole dollar.
(e) This subdivision does not apply to Social Security
survivor benefits.
Sec. 57. Minnesota Statutes 2003 Supplement, section
268.085, subdivision 5, is amended to read:
Subd. 5. [DEDUCTIBLE EARNINGS.] (a) If the applicant has
earnings with respect to any week, from employment, covered
employment, noncovered employment, self-employment, or volunteer
work, equal to or in excess of the applicant's weekly
unemployment benefit amount, the applicant shall be ineligible
for unemployment benefits for that week.
(b) If the applicant has earnings, with respect to any
week, that is less than the applicant's weekly unemployment
benefit amount, from employment, covered employment, noncovered
employment, self-employment, or volunteer work, that amount over
the following shall be deducted from the weekly unemployment
benefit amount:
(1) 25 percent of earnings or $50, whichever is higher; and
(2) $200 for earnings from service in the National Guard or
a United States military reserve unit.
The resulting unemployment benefit, if not a whole dollar,
shall be rounded down to the next lower whole dollar.
(c) No deduction shall be made from an applicant's weekly
unemployment benefit amount for earnings from service as a
volunteer firefighter or volunteer ambulance service personnel.
No deduction shall be made for jury duty pay.
(d) The applicant may report deductible earnings on
continued biweekly requests for unemployment benefits at the
nearest next lower whole dollar amount.
(e) Earnings shall not include any money considered a
deductible payment under subdivision 3, but shall include all
other money considered wages and any other money considered
earned income under state and federal law for income tax
purposes.
Sec. 58. Minnesota Statutes 2003 Supplement, section
268.085, subdivision 6, is amended to read:
Subd. 6. [RECEIPT OF BACK PAY.] (a) Back pay received by
an applicant with respect to any week occurring in the 104 weeks
prior to the payment of the back pay shall be deducted from
unemployment benefits paid for that week.
If an arbitration award, administrative or judicial
decision, or negotiated settlement that provides for the back
pay does not specify the period is not paid with respect to
which it is paid a specific period, the back pay shall be
applied to the period immediately following the last day of
employment.
(b) If the back pay is reduced by the amount of
unemployment benefits that have been paid, the amount of back
pay withheld shall be:
(1) paid by the employer to the trust fund within 30
calendar days and subject to the same collection procedures that
apply to past due taxes;
(2) applied to unemployment benefit overpayments resulting
from the payment of the back pay; and
(3) credited to the maximum amount of unemployment benefits
available to the applicant in a benefit year that includes the
weeks for which back pay was deducted.
(c) Unemployment benefits paid the applicant shall be
removed from the computation of the tax rate for taxpaying
employers and removed from the reimbursable account for
nonprofit and government employers that have elected to be
liable for reimbursements in the calendar quarter the trust fund
receives payment.
(d) Payments to the trust fund under this subdivision shall
be considered as made by the applicant.
Sec. 59. Minnesota Statutes 2002, section 268.085,
subdivision 12, is amended to read:
Subd. 12. [ALIENS.] (a) An alien shall be ineligible for
unemployment benefits for any week the alien is not authorized
to work in the United States under federal law. Information
from the Immigration and Naturalization Service shall be
considered conclusive, absent specific evidence that the
information was erroneous. Pursuant to the existing agreement
between the United States and Canada, this paragraph shall not
apply to an applicant who is a Canadian citizen and has returned
to and is living in Canada each week unemployment benefits are
requested.
(b) Unemployment benefits shall not be paid on the basis of
wage credits earned by an alien unless the alien (1) was
lawfully admitted for permanent residence at the time of the
employment, (2) was lawfully present for the purposes of the
employment, or (3) was permanently residing in the United States
under color of law at the time of the employment.
(c) Any information required of applicants applying for
unemployment benefits to determine eligibility because of their
alien status shall be required from all applicants.
Sec. 60. Minnesota Statutes 2002, section 268.085,
subdivision 13a, is amended to read:
Subd. 13a. [LEAVE OF ABSENCE.] (a) An applicant on a
voluntary leave of absence shall be ineligible for unemployment
benefits for the duration of the leave of absence. An applicant
on an involuntary leave of absence shall not be ineligible under
this subdivision.
A leave of absence is voluntary when work that the
applicant can then perform is available with the applicant's
employer but the applicant chooses not to work. A medical leave
of absence shall not be presumed to be voluntary.
(b) A period of vacation requested by the applicant, paid
or unpaid, shall be considered a voluntary leave of absence. A
vacation period assigned by an employer under: (1) a uniform
vacation shutdown; (2) a collective bargaining agreement; or (3)
an established employer policy, shall not be considered a
voluntary an involuntary leave of absence.
(c) A voluntary leave of absence shall not be considered a
quit or and an involuntary leave of absence shall not be
considered a discharge from employment for purposes of section
268.095.
(d) An applicant who is on a paid leave of absence, whether
the leave of absence is voluntary or involuntary, shall be
ineligible for unemployment benefits for the duration of the
leave.
(e) This subdivision shall apply to a leave of absence from
a base period employer, an employer during the period between
the end of the base period and the effective date of the benefit
account, or an employer during the benefit year.
Sec. 61. Minnesota Statutes 2002, section 268.085,
subdivision 14, is amended to read:
Subd. 14. [ABLE TO WORK DEFINED.] "Able to work" means an
applicant has the physical and mental ability to perform (1) the
usual duties of the applicant's usual occupation or of
comparable (2) the usual duties of work that is gainful
employment engaged in by others as a means of livelihood.
[EFFECTIVE DATE.] This section is effective August 1, 2004,
and applies to all determinations and decisions issued on or
after that date.
Sec. 62. Minnesota Statutes 2003 Supplement, section
268.095, subdivision 1, is amended to read:
Subdivision 1. [QUIT.] An applicant who quit employment
shall be ineligible for all unemployment benefits except when:
(1) the applicant quit the employment because of a good
reason caused by the employer as defined in subdivision 3;
(2) the applicant quit the employment to accept other
covered employment that provided substantially better terms and
conditions of employment, but the applicant did not work long
enough at the other second employment to have sufficient
subsequent earnings to satisfy the disqualification that would
otherwise be imposed under subdivision 10 for quitting the first
employment;
(3) the applicant quit the employment within 30 calendar
days of beginning the employment because the employment was
unsuitable for the applicant;
(4) the employment was unsuitable for the applicant and the
applicant quit to enter reemployment assistance training;
(5) the employment was part time and the applicant also had
full-time employment in the base period, that from which
full-time employment the applicant separated from because of
nondisqualifying reasons, and the wage credits from the
full-time employment are sufficient to meet the minimum
requirements to establish a benefit account under section
268.07;
(6) the applicant quit because the employer notified the
applicant that the applicant was going to be laid off due to
lack of work within 30 calendar days. An applicant who quit
employment within 30 calendar days of a notified date of layoff
due to lack of work shall be ineligible for unemployment
benefits through the end of the week that includes the scheduled
date of layoff;
(7) the applicant quit the employment because the
applicant's serious illness or injury made it medically
necessary that the applicant quit, provided that the applicant
inform the employer of the serious illness or injury and request
accommodation and no reasonable accommodation is made available.
If the applicant's serious illness is chemical dependency,
this exception shall not apply if the applicant was previously
diagnosed as chemically dependent or had treatment for chemical
dependency, and since that diagnosis or treatment has failed to
make consistent efforts to control the chemical dependency; or
(8) domestic abuse of the applicant or the applicant's
minor child, necessitated the applicant's quitting the
employment. Domestic abuse shall be shown by one or more of the
following:
(i) a court order for protection or other documentation of
equitable relief issued by a court;
(ii) a police record documenting the domestic abuse;
(iii) documentation that the perpetrator of the domestic
abuse has been convicted of the offense of domestic abuse;
(iv) medical documentation of domestic abuse; or
(v) written statement that the applicant or the applicant's
minor child is a victim of domestic abuse, provided by a social
worker, member of the clergy, shelter worker, attorney at law,
or other professional who has assisted the applicant in dealing
with the domestic abuse.
Domestic abuse for purposes of this clause shall be defined
under section 518B.01.
[EFFECTIVE DATE.] This section is effective August 1, 2004,
and applies to all determinations and decisions issued by the
department on or after that date.
Sec. 63. Minnesota Statutes 2003 Supplement, section
268.095, subdivision 3, is amended to read:
Subd. 3. [GOOD REASON CAUSED BY THE EMPLOYER DEFINED.] (a)
A good reason caused by the employer for quitting is a reason:
(1) that is directly related to the employment and for
which the employer is responsible; and
(2) that is adverse to the worker; and
(2) (3) that is significant and would compel an average,
reasonable worker to quit and become unemployed rather than
remaining in the employment.
(b) The analysis required in paragraph (a) must be applied
to the specific facts of each case.
(c) If an applicant was subjected to adverse working
conditions by the employer, the applicant must complain to the
employer and give the employer a reasonable opportunity to
correct the adverse working conditions before that may be
considered a good reason caused by the employer for quitting.
(c) (d) A substantial adverse change in the wages, hours,
or other terms of reason for quitting employment by the employer
shall not be considered a good reason caused by the employer for
quitting unless the change if the reason for quitting occurred
because of the applicant's employment misconduct.
(d) (e) Notification of discharge in the future, including
a layoff due to lack of work, shall not be considered a good
reason caused by the employer for quitting.
(e) (f) An applicant has a good reason caused by the
employer for quitting if it results from sexual harassment of
which the employer was aware, or should have been aware, and the
employer failed to take timely and appropriate action. Sexual
harassment means unwelcome sexual advances, requests for sexual
favors, sexually motivated physical contact or other conduct or
communication of a sexual nature when:
(1) the applicant's submission to the conduct or
communication is made a term or condition of the employment;
(2) the applicant's submission to or rejection of the
conduct or communication is the basis for decisions affecting
employment; or
(3) the conduct or communication has the purpose or effect
of substantially interfering with an applicant's work
performance or creating an intimidating, hostile, or offensive
working environment.
(f) (g) The definition of a good reason caused by the
employer for quitting employment provided by this subdivision
shall be exclusive and no other definition shall apply.
[EFFECTIVE DATE.] This section is effective August 1, 2004,
and applies to all determinations and decisions issued by the
department on or after that date.
Sec. 64. Minnesota Statutes 2002, section 268.095,
subdivision 4, is amended to read:
Subd. 4. [DISCHARGE.] An applicant who was discharged from
employment by an employer shall not be ineligible for any
unemployment benefits except when:
(1) the applicant was discharged because of employment
misconduct as defined in subdivision 6; or
(2) the applicant was discharged because of aggravated
employment misconduct as defined in subdivision 6a.
Sec. 65. Minnesota Statutes 2002, section 268.095,
subdivision 6a, is amended to read:
Subd. 6a. [AGGRAVATED EMPLOYMENT MISCONDUCT DEFINED.] (a)
For the purpose of this section, "aggravated employment
misconduct" means:
(1) the commission of any act, on the job or off the job,
that would amount to a gross misdemeanor or felony if the act
substantially interfered with the employment or adversely
affected had a significant adverse effect on the employment; or
(2) for an employee of a facility as defined in section
626.5572, aggravated employment misconduct includes an act of
patient or resident abuse, financial exploitation, or recurring
or serious neglect, as defined in section 626.5572 and
applicable rules.
(b) If an applicant is convicted of a gross misdemeanor or
felony for the same act for which the applicant was discharged,
it is aggravated employment misconduct if the act substantially
interfered with the employment or had a significant adverse
effect on the employment.
(c) The definition of aggravated employment misconduct
provided by this subdivision shall be exclusive and no other
definition shall apply.
Sec. 66. Minnesota Statutes 2002, section 268.101,
subdivision 2, is amended to read:
Subd. 2. [DISQUALIFICATION DETERMINATION.] (a) The
commissioner shall determine any issue of disqualification
raised by information required from an applicant under
subdivision 1, paragraph (a) or (c), and mail send to the
applicant and employer at the last known address, by mail or
electronic transmission, a determination of disqualification or
a determination of nondisqualification, as is appropriate. The
determination shall state the effect on the employer under
section 268.047. A determination shall be made pursuant to this
paragraph even if a notified employer has not raised the issue
of disqualification.
(b) The commissioner shall determine any issue of
disqualification raised by an employer and mail send to the
applicant and that employer at the last known address, by mail
or electronic transmission, a determination of disqualification
or a determination of nondisqualification as is appropriate.
The determination shall state the effect on the employer under
section 268.047.
If a base period employer:
(1) was not the applicant's most recent employer prior to
the application for unemployment benefits;
(2) did not employ the applicant during the six calendar
months prior to the application for unemployment benefits; and
(3) did not raise an issue of disqualification within ten
calendar days of notification under subdivision 1, paragraph
(b);
then any exception under section 268.047, subdivisions 2 and 3,
shall begin the Sunday two weeks following the week that the
issue of disqualification was raised by the employer.
(c) If any time within 24 months from the establishment of
a benefit account the commissioner finds that an applicant
failed to report any employment, loss of employment, or offers
of employment that were required to be provided by the applicant
under this section, the commissioner shall determine any issue
of disqualification on that loss of employment or offer of
employment and mail send to the applicant and involved employer
at the last known address, by mail or electronic transmission, a
determination of disqualification or a determination of
nondisqualification, as is appropriate. The determination shall
state the effect on the employer under section 268.047.
This paragraph shall not prevent the imposition of any
penalty under section 268.18, subdivision 2, or 268.182.
(d) An issue of disqualification shall be determined based
upon that information required of an applicant, any information
that may be obtained from an applicant or employer, and
information from any other source, without regard to any common
law burden of proof.
(e) A determination of disqualification or a determination
of nondisqualification shall be final unless an appeal is filed
by the applicant or notified employer within 30 calendar days
after mailing sending. The determination shall contain a
prominent statement indicating the consequences of not appealing.
Proceedings on the appeal shall be conducted in accordance with
section 268.105.
(f) An issue of disqualification for purposes of this
section shall include any reason for no longer working for an
employer other than a layoff due to lack of work, any question
of a disqualification from unemployment benefits under section
268.095, any question of an exception to disqualification under
section 268.095, any question of effect on an employer under
section 268.047, and any question of an otherwise imposed
disqualification that an applicant has satisfied under section
268.095, subdivision 10.
(g) Regardless of the requirements of this subdivision, the
commissioner is not required to mail send to an applicant a
determination where the applicant has satisfied any otherwise
potential disqualification under section 268.095, subdivision 10.
Sec. 67. Minnesota Statutes 2003 Supplement, section
268.101, subdivision 3, is amended to read:
Subd. 3. [ELIGIBILITY DETERMINATION.] (a) The commissioner
shall determine any issue of eligibility raised by an
employer, whether timely or untimely, and mail send to the
applicant and that employer at the last known address, by mail
or electronic transmission, a determination of eligibility or a
determination of ineligibility, as is appropriate.
(b) The commissioner shall determine any issue of
eligibility raised by information obtained from an applicant and
mail send to the applicant at the last known address, by mail or
electronic transmission, a determination of eligibility or a
determination of ineligibility, as is appropriate. A
determination shall be made pursuant to this paragraph even if a
notified employer has not raised the issue of eligibility.
(c) If any time within 24 months from the establishment of
a benefit account the commissioner finds the applicant failed to
provide, on an application for unemployment benefits or on a
continued biweekly request for unemployment benefits, requested
information on an issue of eligibility, the commissioner shall
determine the issue of eligibility and mail send to the
applicant at the last known address, by mail or electronic
transmission, a determination of eligibility or a determination
of ineligibility, as is appropriate.
This paragraph shall not prevent the imposition of a
penalty under section 268.18, subdivision 2, or 268.182.
(d) A determination of eligibility or determination of
ineligibility shall be final unless an appeal is filed by the
applicant or notified employer within 30 calendar days after
mailing sending. The determination shall contain a prominent
statement indicating the consequences of not appealing.
Proceedings on the appeal shall be conducted in accordance with
section 268.105.
(e) An issue of eligibility for purposes of this section
shall include any question regarding the denial or allowing of
unemployment benefits under sections 268.085, 268.086, 268.115,
268.125, 268.135, and 268.155.
(f) Only if an employer raised the issue of eligibility
shall the employer be: (1) mailed sent the determination of
eligibility or a determination of ineligibility, or (2)
considered an involved employer for purposes of an appeal under
section 268.105.
Sec. 68. Minnesota Statutes 2003 Supplement, section
268.101, subdivision 3a, is amended to read:
Subd. 3a. [DIRECT HEARING.] Regardless of any provision of
the Minnesota Unemployment Insurance Law, the commissioner or an
unemployment law judge or a senior unemployment review judge
may, prior to a determination being made under this chapter,
refer any issue of disqualification, any issue of eligibility,
or any other issue under sections 268.035 to 268.23 this
chapter, directly for hearing in accordance with section
268.105, subdivision 1. The status of the issue shall be the
same as if a determination had been made and an appeal filed.
Sec. 69. Minnesota Statutes 2002, section 268.101,
subdivision 4, is amended to read:
Subd. 4. [AMENDED DETERMINATION.] Unless an appeal has
been filed, the commissioner, on the commissioner's own motion,
may reconsider a determination of disqualification or
nondisqualification or a determination of eligibility or
ineligibility that has not become final and issue an amended
determination. Any amended determination shall be mailed sent
to the applicant and any involved employer at the last known
address by mail or electronic transmission. Any amended
determination shall be final unless an appeal is filed by the
applicant or notified employer within 30 calendar days
after mailing sending. Proceedings on the appeal shall be
conducted in accordance with section 268.105.
Sec. 70. Minnesota Statutes 2002, section 268.103, is
amended to read:
268.103 [APPEALS BY TELEPHONE; ELECTRONIC TRANSMISSION.]
Subdivision 1. [IN COMMISSIONER'S DISCRETION.] (a) Unless
the statutory provision providing for an appeal requires that
the appeal be in writing, The commissioner shall have the
discretion to allow an appeal to be made filed by telephone or
by electronic transmission. If the commissioner allows an
appeal to be made filed by telephone or by electronic
transmission, that shall be clearly set out on the determination
or decision subject to appeal.
(b) The commissioner may restrict the manner, format, and
conditions under which an appeal by telephone or electronic
transmission may be made filed. Any restrictions as to days,
hours, telephone number, electronic transmission address, or
other conditions, shall be clearly set out on the determination
or decision subject to appeal.
(c) All information requested by the commissioner when an
appeal is made by telephone or filed by electronic transmission
must be supplied or the communication will shall not constitute
an appeal.
Subd. 2. [APPEAL IN WRITING BY MAIL.] (a) The commissioner
must allow an appeal may to be made in writing filed by mail
even if an appeal by telephone or by electronic transmission is
allowed.
(b) A written statement delivered or mailed to the
department that could reasonably be interpreted to mean that an
involved applicant or employer is in disagreement with a
specific determination or decision shall be considered an
appeal. No specific words need be used for the written
statement to be considered an appeal.
Subd. 3. [EXCLUSIVE MEANS OF APPEAL.] A written appeal, or
if allowed an appeal by telephone or electronic transmission,
shall be the only manner of appeal.
Subd. 4. [PROTESTS BY TELEPHONE AND ELECTRONIC
TRANSMISSION.] This section shall apply to the filing of
protests to those determinations and notices that require a
protest and affirmation procedure prior to an appeal.
Sec. 71. Minnesota Statutes 2002, section 268.105, as
amended by Laws 2003, First Special Session chapter 3, article
2, section 15, is amended to read:
268.105 [HEARINGS; APPEALS.]
Subdivision 1. [EVIDENTIARY HEARING BY AN UNEMPLOYMENT LAW
JUDGE.] (a) Upon a timely appeal having been filed, the
department shall send a notice of appeal to all involved parties
that an appeal has been filed, that a de novo due process
evidentiary hearing will be scheduled, and that the parties have
certain rights and responsibilities regarding the hearing. The
department shall set a time and place for a de novo due process
evidentiary hearing and mail send notice to any involved
applicant and any involved employer, by mail or electronic
transmission, not less than ten calendar days prior to the date
of the hearing.
(b) The evidentiary hearing shall be conducted by an
unemployment law judge without regard to any common law burden
of proof as an evidence gathering inquiry and not an adversarial
proceeding. The unemployment law judge shall ensure that all
relevant facts are clearly and fully developed. The
commissioner department shall adopt rules on evidentiary
hearings. The rules need not conform to common law or statutory
rules of evidence and other technical rules of procedure. The
department shall have discretion regarding the method by which
the evidentiary hearing is conducted. A report of any employee
of the department, except a determination, made in the regular
course of the employee's duties, shall be competent evidence of
the facts contained in it.
(c) After the conclusion of the hearing, upon the evidence
obtained, the unemployment law judge shall make written findings
of fact and decision and mail send those, by mail or electronic
transmission, to all involved parties. The unemployment law
judge's decision is the final department decision unless a
further appeal is filed pursuant to subdivision 2.
(d) The commissioner shall designate classified Only
employees of the department shall serve as unemployment law
judges to conduct evidentiary hearings on appeals. The
commissioner or authorized representative A senior unemployment
review judge may personally hear or transfer to another
unemployment law judge any proceedings pending before an
unemployment law judge. Any proceedings removed to the
commissioner or authorized representative a senior unemployment
review judge shall be heard in accordance with this subdivision.
Subd. 2. [COMMISSIONER DE NOVO REVIEW BY A SENIOR
UNEMPLOYMENT REVIEW JUDGE.] (a) Within 30 calendar days after
mailing of the unemployment law judge's decision Except as
provided under subdivision 2a, any involved applicant or
involved employer may appeal a decision of an unemployment law
judge and obtain a de novo review by the commissioner or an
authorized representative a senior unemployment review judge by
filing with a senior unemployment review judge an appeal within
30 calendar days after the sending of the unemployment law
judge's decision. The commissioner A senior unemployment review
judge within the same period of time may, on the commissioner's
a senior unemployment review judge's own motion, order a de novo
review of any decision of an unemployment law judge.
(b) The authorized representative of the commissioner A
senior unemployment review judge shall be an attorney who is a
classified an employee of the department. The authority to act
on behalf of the commissioner under this section shall be by
specific written delegation filed with the secretary of state.
(c) Upon de novo review, the commissioner a senior
unemployment review judge shall, on the basis of that evidence
submitted at the evidentiary hearing under subdivision 1, make
findings of fact and decision, or remand the matter back to an
unemployment law judge for the taking of additional evidence and
the making of new findings and decision based on all the
evidence. The commissioner A senior unemployment review judge
shall, independent of the findings of fact and decision of the
unemployment law judge, examine the evidence and make those
findings of fact as the evidence, in the judgment of
the commissioner senior unemployment review judge require, and
make that decision as the facts found by the commissioner senior
unemployment review judge require.
(d) The commissioner A senior unemployment review judge may
conduct a de novo review without argument by any involved party,
or the commissioner a senior unemployment review judge may allow
written argument. The commissioner A senior unemployment review
judge shall not, except for purposes of deciding whether to
remand a matter to an unemployment law judge for a further
evidentiary hearing, consider any evidence that was not
submitted at the hearing before the unemployment law judge.
(e) The commissioner senior unemployment review judge shall
send, by mail or electronic transmission, to any involved party
the commissioner's senior unemployment review judge's findings
of fact and decision. The decision of the commissioner senior
unemployment review judge is the final department decision of
the department. Unless judicial review is sought under
subdivision 7, the decision of the commissioner senior
unemployment review judge shall become final 30 calendar days
after mailing sending.
Subd. 2a. [ORDERS BY A SENIOR UNEMPLOYMENT REVIEW
JUDGE.] (a) If an applicant or employer files an appeal in a
matter where an unemployment law judge affirmed a determination
issued under section 268.101, and there is no dispute regarding
the determinative facts, a senior unemployment review judge
shall have the discretion to decline to conduct a de novo
review. If de novo review is declined, the senior unemployment
review judge shall issue an order adopting the unemployment law
judge's findings of fact and decision.
(b) If an involved party fails, without good cause, to
appear and participate at the evidentiary hearing conducted by
an unemployment law judge under subdivision 1, and that party
files an appeal, a senior unemployment review judge shall have
the discretion to decline to conduct a de novo review. If de
novo review is declined, the senior unemployment review judge
shall issue an order dismissing the appeal.
Submission of a written statement shall not constitute an
appearance and participation at an evidentiary hearing for
purposes of this paragraph.
All involved parties must be notified of this paragraph
with the notice of appeal and notice of hearing provided for
under subdivision 1. The senior unemployment review judge shall
allow for the submission of a written argument on the issue of
good cause before dismissing an appeal under this paragraph.
"Good cause" for purposes of this paragraph is a compelling
reason that would have prevented a reasonable person acting with
due diligence from appearing and participating at the
evidentiary hearing.
(c) The senior unemployment review judge shall send to any
involved party the order issued under this subdivision. The
order may be sent by mail or electronic transmission. Unless
judicial review is sought under subdivision 7, the order of a
senior unemployment review judge becomes final 30 calendar days
after sending.
Subd. 3. [WITHDRAWAL OF APPEAL.] (a) Any appeal that is
pending a decision before an unemployment law judge or the
commissioner a senior unemployment review judge may be withdrawn
by the appealing person, or an authorized representative of that
person, upon filing of a notice of withdrawal.
(b) The appeal shall, by written order, be dismissed if a
notice of withdrawal is filed, unless the commissioner an
unemployment law judge or a senior unemployment review judge, by
written order, directs that further adjudication is required for
a proper result.
(c) A notice of withdrawal may be filed by mail, by
telephone, or if the commissioner allows, by electronic
transmission.
Subd. 3a. [DECISIONS.] (a) If an unemployment law judge's
decision or the commissioner's a senior unemployment review
judge's decision or order allows unemployment benefits to an
applicant, the unemployment benefits shall be paid regardless of
any appeal period or any appeal having been filed.
(b) If an unemployment law judge's decision modifies or
reverses a determination allowing unemployment benefits to an
applicant, any benefits paid pursuant to the determination is
considered an overpayment of those unemployment benefits under
section 268.18, subdivision 1.
(c) If a commissioner's senior unemployment review judge's
decision modifies or reverses an unemployment law judge's
decision allowing unemployment benefits to an applicant, any
unemployment benefits paid pursuant to the unemployment law
judge's decision is considered an overpayment of those
unemployment benefits under section 268.18, subdivision 1.
(d) If the commissioner a senior unemployment review judge
affirms an unemployment law judge's decision on an issue of
disqualification that allows unemployment benefits to an
applicant, and the commissioner's senior unemployment review
judge's decision, if finally or order is reversed by the
Minnesota Court of Appeals or the Supreme Court of
Minnesota, shall not result in a disqualification of the
applicant shall not be disqualified from unemployment benefits
under section 268.095, subdivision 10.
(e) If the commissioner a senior unemployment review judge,
pursuant to subdivision 2, remands a matter to an unemployment
law judge for the taking of additional evidence, the prior
unemployment law judge's decision shall continue to be enforced
until new findings of fact and decision are made by an
unemployment law judge.
Subd. 4. [TESTIMONIAL POWERS.] The An unemployment law
judge, the commissioner, or authorized representative, and a
senior unemployment review judge may administer oaths and
affirmations, take depositions, and issue subpoenas to compel
the attendance of witnesses and the production of documents and
other personal property considered necessary as evidence in
connection with the subject matter of an evidentiary hearing.
The subpoenas shall be enforceable through the district court in
the district that the subpoena is issued. Witnesses subpoenaed,
other than an involved applicant or involved employer or
officers and employees of an involved employer, shall be paid by
the commissioner department the same witness fees as in a civil
action in district court.
Subd. 5. [USE OF INFORMATION EVIDENCE; DATA PRIVACY.] (a)
All testimony at any evidentiary hearing conducted pursuant to
subdivision 1 shall be recorded. A copy of any recorded
testimony and exhibits offered or received into evidence at the
hearing shall, upon request, or upon directive of the
commissioner a senior unemployment review judge, be furnished to
a party at no cost during the time period for filing an appeal
to the commissioner a senior unemployment review judge or while
such an appeal is pending. If requested, the commissioner
department shall make available a device for listening to the
recording if an appeal is pending before the commissioner a
senior unemployment review judge under subdivision 2.
(b) Regardless of any provision of law to the contrary, if
recorded testimony and exhibits received into evidence at the
evidentiary hearing are not requested during the time period for
filing an appeal to the commissioner a senior unemployment
review judge, or while such an appeal is pending, that testimony
and other evidence shall later be made available to an involved
party only pursuant to a court order. A subpoena shall not be
considered a court order.
(c) Testimony obtained under subdivision 1, may not be used
or considered for any purpose, including impeachment, in any
civil, administrative, or contractual proceeding, except by a
local, state, or federal human rights agency with enforcement
powers, unless the proceeding is initiated by the department.
(d) Subd. 5a. [NO COLLATERAL ESTOPPEL.] No findings of
fact or decision or order issued by an unemployment law judge or
the commissioner a senior unemployment review judge may be held
conclusive or binding or used as evidence in any separate or
subsequent action in any other forum, be it contractual,
administrative, or judicial, except proceedings provided for
under this chapter, regardless of whether the action involves
the same or related parties or involves the same facts.
Subd. 6. [REPRESENTATION; FEES.] (a) In any proceeding
under subdivision 1 or, 2, or 2a, an applicant or involved
employer may be represented by any agent.
(b) Except for services provided by an attorney-at-law, an
applicant shall not be charged fees, costs, or disbursements of
any kind in a proceeding before an unemployment law judge, the
commissioner a senior unemployment review judge, the Minnesota
Court of Appeals, or Supreme Court of Minnesota.
Subd. 7. [JUDICIAL REVIEW.] (a) The Minnesota Court of
Appeals shall, by writ of certiorari to the commissioner
department, review the senior unemployment review judge's
decision of the commissioner under subdivision 2 or order under
subdivision 2a, provided a petition for the writ is filed with
the court and a copy is served upon the senior unemployment
review judge or the commissioner and any other involved party
within 30 calendar days of the mailing sending of the
commissioner's senior unemployment review judge's decision under
subdivision 2 or order under subdivision 2a.
(b) Any employer petitioning for a writ of certiorari shall
pay to the court the required filing fee and upon the service of
the writ shall furnish a cost bond to the commissioner
department in accordance with the Rules of Civil Appellate
Procedure. If the employer requests a written transcript of the
testimony received at the evidentiary hearing conducted pursuant
to subdivision 1, the employer shall pay to the commissioner
department the cost of preparing the transcript. That money
shall be credited to the administration account.
(c) Upon issuance by the Minnesota Court of Appeals of a
writ of certiorari as a result of an applicant's petition, the
commissioner department shall furnish to the applicant at no
cost a written transcript of the any testimony received at the
evidentiary hearing conducted pursuant to subdivision 1, and, if
requested, a copy of all exhibits entered into evidence. No
filing fee or cost bond shall be required of an applicant
petitioning the Minnesota Court of Appeals for a writ of
certiorari.
(d) The commissioner department shall be considered the
primary responding party to any judicial action involving the
commissioner's a senior unemployment review judge's decision or
order. The commissioner department may be represented by an
attorney who is an employee of the department designated by the
commissioner for that purpose.
[EFFECTIVE DATE.] This section is effective August 1, 2004,
and applies to all decisions issued by the department on or
after that date.
Sec. 72. Minnesota Statutes 2002, section 268.115,
subdivision 5, is amended to read:
Subd. 5. [MAXIMUM AMOUNT OF EXTENDED UNEMPLOYMENT
BENEFITS.] The maximum amount of extended unemployment benefits
available to an applicant shall be 50 percent of the maximum
amount of regular unemployment benefits available in the benefit
year, rounded down to the next lower whole dollar. If the total
rate of unemployment computed under subdivision 1, clause
(2)(ii), equaled or exceeded eight percent, the maximum amount
of extended unemployment benefits available shall be 80 percent
of the maximum amount of regular unemployment benefits available
in the benefit year.
Sec. 73. Minnesota Statutes 2002, section 268.125,
subdivision 5, is amended to read:
Subd. 5. [MAXIMUM AMOUNT OF UNEMPLOYMENT BENEFITS.] The
maximum amount of additional unemployment benefits available in
the applicant's benefit year shall be one-half of the
applicant's maximum amount of regular unemployment benefits
available under section 268.07, subdivision 2, rounded down to
the next lower whole dollar. Extended unemployment benefits
paid and unemployment benefits paid under any federal law other
than regular unemployment benefits shall be deducted from the
maximum amount of additional unemployment benefits available.
Sec. 74. Minnesota Statutes 2002, section 268.135,
subdivision 1, is amended to read:
Subdivision 1. [DEFINITIONS.] For purposes of this section:
(1) "Affected employee" means an employee who was
continuously employed as a member of the affected group, for at
least six months, on a full-time basis, prior to submission of
the shared work plan.
(2) "Affected group" means five or more employees
designated by the employer to participate in a shared work plan.
(3) "Shared work plan" or "plan" means an employer's
written plan, submitted in a manner and format prescribed by the
commissioner, under which a group of employees whose normal
weekly hours of work are reduced, in order to prevent employees
from being laid off due to lack of work.
(4) "Normal weekly hours of work" means the number of hours
in a week that the employee normally would work for the shared
work employer or 40 hours, whichever is less.
Sec. 75. Minnesota Statutes 2002, section 268.135,
subdivision 2, is amended to read:
Subd. 2. [PARTICIPATION.] (a) An employer wishing to
participate in the shared work benefit program shall submit a
written shared work plan to the commissioner in a manner and
format prescribed for approval. The commissioner may approve a
shared work plan only if it:
(1) specifies the employees in the affected group;
(2) applies to only one affected group;
(3) includes a certified statement by the employer that
each employee specified in the affected group is an affected
employee;
(4) includes a certified statement by the employer that for
the duration of the plan the reduction in normal weekly hours of
work of the employees in the affected group is instead of
layoffs that otherwise would result in at least as large a
reduction in the total normal weekly hours of work;
(5) specifies an expiration date that is no more than one
year from the date the employer submits the plan for approval;
(6) specifies that fringe benefits, such as health and
retirement, available to the employees in the affected group are
not reduced beyond the percentage of reduction in hours of work;
and
(7) is approved in writing by the collective bargaining
agent for each collective bargaining agreement that covers any
employee in the affected group.
(b) The commissioner shall set the beginning and ending
dates of an approved shared work plan.
(c) The commissioner shall mail send to the employer a
written determination, by mail or electronic transmission,
approving or disapproving the plan within 15 calendar days of
its receipt. Determinations are final.
(d) Disapproval of a plan may be reconsidered at the
discretion of the commissioner. Approval of a shared work plan
may be revoked if the approval was based, in whole or in part,
upon information that was false or misleading.
Sec. 76. Minnesota Statutes 2002, section 268.135,
subdivision 4, is amended to read:
Subd. 4. [WEEKLY BENEFIT AMOUNT.] (a) An applicant who is
eligible for shared work benefits shall be paid an amount equal
to the regular weekly unemployment benefit amount multiplied by
the nearest full percentage of reduction of the applicant's
regular weekly hours of work as set in the plan. The benefit
payment, if not a whole dollar shall be rounded down to the next
lower whole dollar.
(b) The deductible earnings provisions of section 268.085,
subdivision 5, shall not apply to earnings from the shared work
employer of an applicant eligible for shared work benefits
unless the resulting amount would be less than the regular
weekly unemployment benefit amount the applicant would otherwise
be eligible for without regard to shared work benefits.
(c) An applicant shall not be eligible for shared work
benefits for any week that employment is performed for the
shared work employer in excess of the reduced hours set forth in
the plan.
Sec. 77. Minnesota Statutes 2002, section 268.145,
subdivision 1, is amended to read:
Subdivision 1. [NOTIFICATION.] (a) Upon filing an
application for unemployment benefits, the applicant shall be
informed that:
(1) unemployment benefits are subject to federal and state
income tax;
(2) there are requirements for filing estimated tax
payments;
(3) the applicant may elect to have federal income tax
withheld from unemployment benefits;
(4) if the applicant elects to have federal income tax
withheld, the applicant may, in addition, elect to have
Minnesota state income tax withheld; and
(5) at any time during the benefit year the applicant may
change a prior election.
(b) If an applicant elects to have federal income tax
withheld, the commissioner shall deduct ten percent for federal
income tax, rounded down to the nearest next lower whole dollar.
If an applicant also elects to have Minnesota state income tax
withheld, the commissioner shall make an additional five percent
deduction for state income tax, rounded down to the next lower
whole dollar. Any amounts deducted or offset pursuant to
sections 268.155, 268.156, 268.18, and 268.184 have priority
over any amounts deducted under this section. Federal income
tax withholding has priority over state income tax withholding.
(c) An election to have income tax withheld shall not be
retroactive and shall only apply to unemployment benefits paid
after the election.
Sec. 78. Minnesota Statutes 2003 Supplement, section
268.18, subdivision 1, is amended to read:
Subdivision 1. [NONFRAUD OVERPAYMENT.] (a) Any applicant
who (1) by reason of the applicant's own mistake, or (2) because
of an error by any employee of the department, or (3) because of
a determination, redetermination, or amended determination
issued pursuant to section 268.07 or 268.101, or (4) because of
an appeal decision under section 268.105, has received any
unemployment benefits that the applicant was not entitled to,
shall promptly repay the unemployment benefits to the trust
fund. The commissioner shall, as soon as the overpayment is
discovered, determine the amount due and notify the applicant in
writing to repay the unemployment benefits.
(b) Unless the applicant files an appeal within 30 calendar
days after the mailing sending of the determination of
overpayment to the applicant's last known address applicant by
mail or electronic transmission, the determination shall become
final. Proceedings on the appeal shall be conducted in
accordance with section 268.105. An applicant may not
collaterally attack, by way of an appeal to an overpayment
determination, any prior determination issued pursuant to
section 268.07 or 268.101, or decision issued pursuant to
section 268.105, that has become final.
(c) If the applicant fails to repay the unemployment
benefits determined overpaid under this subdivision, the
commissioner may offset from any future unemployment benefits
otherwise payable the amount of the overpayment. Except when
the overpayment resulted because the applicant failed to report
deductible earnings or deductible or benefit delaying payments,
no single offset shall exceed 50 percent of the amount of the
payment from which the offset is made. The overpayment may also
be collected by the same methods as delinquent taxes payments
from an employer. A determination of overpayment shall state
the methods of collection the commissioner may use to recover
the overpayment.
(d) If an applicant has been overpaid unemployment benefits
under the law of another state, due to a reason other than
fraud, and that state certifies that the applicant is liable
under its law to repay the unemployment benefits and requests
the commissioner to recover the overpayment, the commissioner
may offset from future unemployment benefits otherwise payable
the amount of overpayment, except that no single offset shall
exceed 50 percent of the amount of the payment from which the
offset is made.
(e) If under paragraph (c) or (d) the reduced unemployment
benefits as a result of a 50 percent offset is not a whole
dollar amount, it shall be rounded down to the next lower whole
dollar.
(f) Unemployment benefits paid for weeks more than three
years prior to the discovery of overpayment under this
subdivision are not overpaid unemployment benefits.
Sec. 79. Minnesota Statutes 2003 Supplement, section
268.18, subdivision 2, is amended to read:
Subd. 2. [OVERPAYMENT DUE TO FRAUD.] (a) Any applicant who
receives unemployment benefits by intentionally misrepresenting,
misstating, or failing to disclose any material fact, or who
makes a false statement or representation without a good faith
belief as to the correctness of the statement or representation,
has committed fraud. After the discovery of facts indicating
fraud, the commissioner shall make a written determination that
the applicant obtained unemployment benefits by fraud and that
the applicant must promptly repay the unemployment benefits to
the trust fund. In addition, the commissioner shall assess a
penalty equal to 25 percent of the amount fraudulently
obtained. If the applicant had a prior overpayment due to
fraud, the commissioner shall, on the present overpayment,
assess a penalty equal to 50 percent of the amount fraudulently
obtained. This penalty is in addition to penalties under
section 268.182.
(b) Unless the applicant files an appeal within 30 calendar
days after the mailing sending of the determination of
overpayment by fraud to the applicant's last known address
applicant by mail or electronic transmission, the determination
shall become final. Proceedings on the appeal shall be
conducted in accordance with section 268.105.
(c) If the applicant fails to repay the unemployment
benefits, penalty, and interest assessed, the commissioner shall
offset from future unemployment benefits otherwise payable the
total amount of overpayment due. The total due may also be
collected by the same methods as delinquent taxes payments from
an employer. A determination of overpayment by fraud shall
state the methods of collection the commissioner may use to
recover the overpayment. Money received in repayment of
fraudulently obtained unemployment benefits, penalties, and
interest shall first be applied to the unemployment benefits
overpaid, then to the penalty amount due, then to any interest
due. Payments made toward penalty and interest shall be
credited to the contingent account.
(d) If an applicant has been overpaid unemployment benefits
under the law of another state because of fraud and that state
certifies that the applicant is liable to repay the unemployment
benefits and requests the commissioner to recover the
overpayment, the commissioner may offset from future
unemployment benefits otherwise payable the amount of
overpayment.
(e) A determination of overpayment by fraud may only be
made at any time within four years of the effective date of the
benefit account from which the unemployment benefits were
fraudulently obtained.
Sec. 80. Minnesota Statutes 2002, section 268.18,
subdivision 2b, is amended to read:
Subd. 2b. [INTEREST.] (a) On any unemployment benefits
fraudulently obtained, and any penalty amounts assessed under
subdivision 2, the commissioner may assess interest at the rate
of 1-1/2 percent per month on any amount that remains unpaid 30
calendar days after the date of the determination of overpayment
by fraud. A determination of overpayment by fraud shall state
that interest shall be assessed.
(b) If this subdivision became effective after the date of
the determination, or the determination did not state that
interest shall be assessed, interest shall be assessed beginning
30 calendar days after written notification, by mail or
electronic transmission, to the applicant.
Sec. 81. Minnesota Statutes 2002, section 268.18,
subdivision 6, is amended to read:
Subd. 6. [COLLECTION OF OVERPAYMENTS.] (a) The
commissioner may not compromise the amount that has been
determined overpaid under this section including penalties and
interest.
(b) The commissioner shall have discretion regarding the
use of any method of recovery of any overpayment under
subdivision 1. Regardless of any law to the contrary, the
commissioner shall not be required to refer any amount
determined overpaid under subdivision 1 to a public or private
collection agency, including agencies of this state.
(c) Amounts determined overpaid under subdivision 1 shall
not be considered a "debt" to the state of Minnesota for
purposes of any reporting requirements to the commissioner of
finance.
(d) A pending appeal under section 268.105 shall not toll
suspend the assessment of interest, penalties, or collection of
an overpayment under this section.
(e) Section 16A.626 applies to the repayment by an
applicant of any overpayment, penalty, or interest under this
section.
Sec. 82. Minnesota Statutes 2002, section 268.182, is
amended to read:
268.182 [APPLICANT'S FALSE REPRESENTATIONS; CONCEALMENT OF
FACTS; PENALTY.]
(a) Subdivision 1. [CRIMINAL PENALTIES.] Whoever obtains,
or attempts to obtain, or aids or abets any individual to obtain
by means of an intentional false statement or representation, by
intentional concealment of a material fact, or by impersonation
or other fraudulent means, unemployment benefits that the
individual is not entitled or unemployment benefits greater than
the individual is entitled under this chapter, or under the law
of any state or of the federal government, either personally or
for any other individual, is guilty of theft and shall be
sentenced pursuant to section 609.52.
(b) Subd. 2. [ADMINISTRATIVE PENALTIES.] Any individual
who intentionally makes a false statement or representation, who
intentionally fails to disclose a material fact, or who makes a
false statement or representation without a good faith belief as
to the correctness of the statement or representation, in order
to obtain or in an attempt to obtain unemployment benefits may
be assessed, in addition to any other penalties, an
administrative penalty of denial of unemployment benefits for
one to 52 weeks that the individual would otherwise be entitled
to unemployment benefits. A denial shall not apply to any week
more than two years after the week that the penalty was
determined. A written determination of denial shall be mailed
sent to the individual's last known address individual by mail
or electronic transmission. Unless an appeal is filed within 30
calendar days of mailing sending, the determination shall be
final. Proceeding on the appeal shall be conducted in
accordance with section 268.105.
Sec. 83. Minnesota Statutes 2002, section 268.184, is
amended to read:
268.184 [EMPLOYER MISCONDUCT; PENALTY.]
Subdivision 1. [ADMINISTRATIVE PENALTIES.] (a) If the
commissioner finds that any employer or any employee, officer,
or agent of any employer, is in collusion with any applicant for
the purpose of assisting the applicant to receive unemployment
benefits illegally fraudulently, the employer shall be penalized
$500 or the amount of unemployment benefits determined to be
overpaid, whichever is greater.
(b) If the commissioner finds that any employer or any
employee, officer, or agent of an employer has made (1) a false
statement or representation knowing it to be false, or (2) has
made a false statement or representation without a good faith
belief as to correctness of the statement or representation, or
(3) who knowingly fails to disclose a material fact, to prevent
or reduce the payment of unemployment benefits to any applicant
or to reduce or prevent the effects of unemployment benefits
paid on its tax or reimbursable account avoid any payment
required from an employer under this chapter or section 116L.20,
the employer shall be penalized $500, or 50 percent of the
reduced unemployment benefits or payment required, whichever is
greater.
(c) If the commissioner finds that an employer failed or
refused to honor a subpoena issued under section 268.105,
subdivision 4, or section 268.188, the employer shall be
penalized $500 and any costs of enforcing the subpoena,
including attorney fees.
(d) Penalties under this section shall be in addition to
any other penalties and subject to the same collection
procedures that apply to past due taxes. Penalties shall be
paid to the department within 30 calendar days of assessment and
credited to the contingent account.
(d) (e) The assessment of the penalty shall be final unless
the employer files an appeal within 30 calendar days after the
sending of notice of the penalty to the employer by mail or
electronic transmission. Proceedings on the appeal shall be
conducted in accordance with section 268.105.
(e) Subd. 2. [CRIMINAL PENALTIES.] Any employer or any
officer or agent of an employer or any other individual who
makes a false statement or representation knowing it to be
false, or who knowingly fails to disclose a material fact to
avoid or reduce any payment required from an employer under this
chapter or section 116L.20, or to prevent or reduce the payment
of unemployment benefits to any applicant, is guilty of a gross
misdemeanor unless the unemployment benefit underpayment exceeds
$500, in that case the individual is guilty of a felony.
Sec. 84. Minnesota Statutes 2003 Supplement, section
268.186, is amended to read:
268.186 [RECORDS; AUDITS.]
(a) Each employer shall keep true and accurate records for
the periods of time and containing the information the
commissioner may require. For the purpose of administering this
chapter, the commissioner has the power to audit, examine, or
cause to be supplied or copied, any books, correspondence,
papers, records, or memoranda that are relevant, whether the
books, correspondence, papers, records, or memoranda are the
property of or in the possession of the employer or any other
person at any reasonable time and as often as may be necessary.
(b) Any employer that refuses to allow an audit of its
records by the department, or that fails to make all necessary
records available for audit in Minnesota upon request of the
commissioner, may be assessed an administrative penalty of
$500. The penalty collected shall be credited to the
administration account to be used by the commissioner to ensure
integrity in the administration of the unemployment insurance
program.
(c) The commissioner may make summaries, compilations,
photographs, duplications, or reproductions of any records, or
reports that the commissioner considers advisable for the
preservation of the information contained therein. Any
summaries, compilations, photographs, duplications, or
reproductions shall be admissible in any proceeding under this
chapter. The commissioner may duplicate records, reports,
summaries, compilations, instructions, determinations, or any
other written or recorded matter pertaining to the
administration of this chapter.
(c) (d) Regardless of any law to the contrary, the
commissioner may provide for the destruction of any records,
reports, or reproductions thereof, or other papers, that are
more than two years old, and that are no longer necessary for
determining employer liability or an applicant's unemployment
benefit rights or for the administration of this chapter,
including any required audit. In addition, the commissioner may
provide for the destruction or disposition of any record,
report, or other paper from which the information has been
electronically captured and stored, or that has been
photographed, duplicated, or reproduced.
Sec. 85. Minnesota Statutes 2003 Supplement, section
268.19, subdivision 2, is amended to read:
Subd. 2. [EMPLOYER INFORMATION; ABSOLUTE PRIVILEGE.] (a)
Regardless of any provision of law to the contrary, an employer
may provide the commissioner with information on an applicant so
that the commissioner can determine an applicant's entitlement
to unemployment benefits under the Minnesota Unemployment
Insurance Law.
(b) The commissioner may disseminate any employer's name
and address and the name and address of any employer's
unemployment insurance processing agent in order to administer
the Minnesota unemployment insurance program.
(c) Information obtained pursuant to the Minnesota
Unemployment Insurance Law, in order to determine an applicant's
entitlement to unemployment benefits, shall be absolutely
privileged and shall not be made the subject matter or the basis
for any civil proceeding, administrative, or judicial.
Sec. 86. [REVISOR'S INSTRUCTION.]
The revisor of statutes shall renumber Minnesota Statutes,
section 268.022, as Minnesota Statutes, section 116L.20.
The revisor of statutes shall change the terms "evinces"
and "demonstrates" to "displays clearly" wherever they appear in
Minnesota Statutes, chapter 268.
Presented to the governor May 7, 2004
Signed by the governor May 10, 2004, 9:03 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes