BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 24.11.204, 24.11.206, 24.11.443, 24.11.445, 24.11.451, 24.11.452A, 24.11.459, 24.11.470, 24.11.471, 24.11.2504, 24.11.2707; the adoption of NEW RULE I; and the repeal of ARM 24.11.440, 24.11.513, 24.11.605, 24.11.1223, 24.11.2001, pertaining to unemployment insurance

) ) ) ) ) ) ) ) )

NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT,  ADOPTION, AND REPEAL

 

TO: All Concerned Persons

 

1. On March 7, 2014, at 1:00 p.m., the Department of Labor and Industry (department) will hold a public hearing in the Sanders Auditorium of the DPHHS Building, 111 North Sanders St., Helena, Montana, to consider the proposed amendment, adoption, and repeal of the above-stated rules.

 

2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m., on March 5, 2014, to advise us of the nature of the accommodation that you need. Please contact the Unemployment Insurance Division, Department of Labor and Industry, Attn: Rachel Bawden, P.O. Box 8020, Helena, MT 59604-8020; telephone (406) 444-2582; fax (406) 444-2993; Montana Relay Service at 711; or e-mail [email protected].

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

24.11.204 DEFINITIONS The terms used by the department are, in great part, defined in 39-51-201 through 39-51-205, MCA. In addition to these statutory definitions, the following definitions apply to this chapter, unless context or the particular rule provides otherwise:

            (1) and (2) remain the same.

(3) "Agent state" means any state from or through which an individual files an interstate claim for benefits against another state.

            (3) and (4) remain the same but are renumbered (4) and (5).

            (5) "Benefit overpayment" means the amount of benefits paid to a claimant to which it is subsequently determined the claimant was not entitled by reason of disqualification, ineligibility, or reduction in entitlement.

(6) "Calendar quarter" means any one of the following quarters in a year:

First - January, February, March

Second - April, May, June

Third - July, August, September

Fourth - October, November, December

            (6)(7) "Child" as used in 39-51-2111, MCA, means:

            (a)  an individual under the age of 18 who is a minor, including an emancipated minor, under the age of 18, as defined under 41-1-101, MCA; or a disabled adult

            (b) an individual who is 18 or older and meets the definition of an individual with a disability as defined by Title VII of the federal Rehabilitation Act of 1973, 29 U.S.C. 705(20)(A) and (B), as amended, and who is dependent upon his/her parent(s) or guardian(s) for food, shelter, living expenses and other necessities.

            (i)  The department will consider information provided by state or federal agencies or professional persons, who are certified by the state of Montana according to 53-21-106, MCA, to determine if an individual who is 18 or older should be considered a disabled adult.

            (7)(8)  "Claim," as used in this chapter and in Title 39, chapter 51, MCA, unless the context or language clearly indicates otherwise, means an initial, additional, or reactivated reopened, continued, or biweekly claim for unemployment insurance benefits.

            (8)(9)  "Claimant" means a person who has filed, or is in the process of filing, an initial a claim.

            (9) remains the same but is renumbered (10).

            (10) "Continued claim" means a notice filed by a claimant stating whether or not the claimant wishes to claim benefits or waiting period credit for any week that begins within the claimant's benefit year.

(11) "Commuter claimant" means an individual who customarily commutes across state lines from a residence in one state to work in a liable state.

(12) "Contribution rate schedule" means the schedule of contribution rates assigned to employers each calendar year based upon the ratio between the trust fund balance as of October 31 and the total wages in employment for the year ending June 30.

            (11) through (15) remain the same but are renumbered (13) through (17).

            (16) "File" or "filing" means:

            (a) with respect to an appeal of a determination, redetermination, or decision regarding a claim for benefits, an interested party's communication to the department, in the manner and within the time prescribed by the department, of that party's desire to have that determination, redetermination, or decision reviewed or heard by the next highest level of adjudication;

            (b) with respect to a claim for benefits, a communication to the department, in the manner and within the time prescribed by the department, of a claimant's desire to establish an initial claim, reactivate an inactive claim, or make a biweekly claim;

            (c) with respect to information required by the department for the proper administration of a claim or information an interested party wishes the department to consider regarding a claim, a communication to the department, in the manner and within the time prescribed by the department, conveying the purpose and substance of the information;

            (d) with respect to records kept by the department for unemployment insurance matters, the place where such records are stored or the act of placing information into the place where such records are stored. The department's records may be stored in a variety of media, including traditional paper copies, microfilm, and electronic or magnetic formats, or a combination of those media.

            (17) through (19) remain the same but are renumbered (18) through (20).

            (20)(21) "Insured work" means services deemed to be employment in any state pursuant to an arrangement under 39-51-504(1), MCA, and employment, as defined in 39-51-203, MCA, including federal civilian service, federal military service, and services that constitute employment in any other state, but does not include those services enumerated in 39-51-204, MCA., except for federal civilian service, federal military service, and services that constitute employment in any other state, provided that those services and the wages therefore are potentially:

            (a) assignable to this or another state pursuant to 20 CFR 609 or 20 CFR 614; or

            (b) transferable to this state or another state pursuant to 20 CFR 616.

            (21) remains the same but is renumbered (24).

(22) "Interstate Benefit Payment Plan" means the plan approved by the National Association of State Workforce Agencies (NASWA) under which benefits are payable to unemployed individuals absent from the state (or states) in which benefit credits have accumulated.

(23) "Interstate claimant" means an individual who files an interstate claim for benefits under the unemployment insurance law of a liable state.

            (22) and (23) remain the same but are renumbered (25) and (26).

            (27) "Liable state" means the state responsible for administering an interstate claim for benefits established by an individual under the law of the liable state.

            (24) and (25) remain the same but are renumbered (28) and (29).

            (26)(30) "Nonmonetary determination" means a decision involving an issue relative related to a claimant's qualification or eligibility for benefits, independent of claimant's monetary determination of benefits that does not involve a claimant's potential entitlement to benefits based upon the amount and distribution of wages in the claimant's base period.

(31)  "Offset" means the withholding of benefits that would otherwise be payable to a claimant for a compensable week of unemployment in order for the department to recover an overpayment.

(32) "Overpayment" means the amount of benefits paid to a claimant from a state or federal unemployment compensation fund that the liable state subsequently determines the claimant was not entitled to receive by reason of disqualification, ineligibility, or reduction in entitlement under the law of the liable state.

(33)  "Participating state" means a state which has subscribed to the interstate reciprocal overpayment recovery agreement.

            (27)(34)  "Part-time work" means insured work in which a worker is regularly scheduled to work that is less than 40 hours per week.

            (28) and (29) remain the same but are renumbered (35) and (36).

(37)  "Recovering state" identifies a state that has received a request from another state to assist in the recovery of a benefit overpayment.

(30) remains the same but is renumbered (38).

(39)  "Requesting state" means the state that has issued a final determination of benefit overpayment and requests another state to assist in recovering the outstanding balance from the overpaid individual.

(31) through (38) remain the same but are renumbered (40) through (47).

(48)  "Transferring state" means the state that transfers wage credits reported for a claimant to the liable state for use in determining the benefit entitlement of the claimant under the law of the liable state.

(49)  "Trust fund" means the unemployment insurance fund created in 39-51-401, MCA.

            (39) and (40) remain the same but are renumbered (50) and (51).

            (52) "Wage credits" means the wages reported to a state unemployment insurance program that were paid to an employee.

(53) "Wage credits from another state" means the assignment or transfer of wage credits, under an arrangement under 39-51-504(1), MCA, to Montana or another liable state, pursuant to 20 CFR 609, 20 CFR 616, or 20 CFR 614.

(54) "Waiting week" means a week of total unemployment, as defined by 39-51-2101, MCA, for which a claimant must file a weekly payment request but is not entitled to receive unemployment insurance benefits, pursuant to 39-51-2104, MCA.

(41)(55) "Week claimed" means any week with respect to which a claimant files a continued claim weekly payment request for benefits or waiting week credit.

            (42) remains the same but is renumbered (56).

            (57) "Week of unemployment" means any week of unemployment, as defined in the law of the liable state in which a valid claim is established.

            (58) "Weekly payment request" means the filing by a claimant of a request for benefit payment or waiting week credit for any week within claimant's benefit year.

            (59) "Work search contact" means a documented contact by a claimant with an employer or authorized agent that hires workers for work the claimant is qualified for and able to perform, and further described by [NEW RULE I].

            (43) remains the same but is renumbered (60).

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-201, 39-51-401, 39-51-504, 39-51-1103, 39-51-1213, 39-51-1218, Title 39, Ch. 51, parts 21 through 25, MCA, 39-51-2601, 39-51-2111, 39-51-2112, 39-51-2115, 39-51-2116, 39-51-2304, 39-51-3201, 39-51-3202, 39-51-3206, MCA

 

REASON: The department determines it is reasonable and necessary to consolidate all definitions commonly used in the administration of unemployment insurance benefits in a single administrative rule. The proposed rule amendment clarifies terminology, removes definitions repetitive of statutory definitions, and adds a number of new terms. "Weekly payment request" replaces the terms "biweekly claim" or "continuing claim" in order to avoid confusion between a claimant filing with the department who seeks weekly unemployment insurance benefits and the filing of an unemployment insurance "claim," which initiates a qualified claimant's access to available benefits during the subsequent year. The department further determines it is necessary to implement oversight measures to ensure that claimants consistently make appropriate work searches.  To this end, the department defines "work search contact" and refers to NEW RULE I, which fully outlines the weekly work search requirements. The department proposes to reduce redundancy by deleting all definitions for terms that are defined by 39-51-201, MCA.

 

            24.11.206 TIME ALLOWED AND PROCEDURE FOR FILINGS AND SUBMISSIONS (1) Claimants and employers must respond in a timely manner to all department requests for information. Whenever a particular thing is required to be filed with or submitted to the department within a certain number of days and the last day  The department shall notify claimants and employers of the established deadline for each submission. When a deadline falls on a Saturday, Sunday, or holiday, the filing or submission may be done occur no later than the next business day. This subsection rule does not apply to the filing of biweekly claims weekly payment requests under ARM 24.11.443.

            (2) Except as provided for the filing of biweekly claims under ARM 24.11.443, if a Claimants and employers may submit information to the department using the following means:

            (a)  telephone filing or submission is required or allowed to be done by telephone, the person wishing to make the filing or submission must contact with a customer service representative no later than the last day allowed to make the filing or submission, by calling at the department's claims processing center during the center's published business hours, and provide such information as the customer service representative may require to establish the identity of the person and the nature of the filing or submission the person intends to make.

            (b)  mailing a written If a filing or submission is required or allowed to be done in writing, the writing must be delivered to the department. either by mail or by facsimile and must contain such information as is needed to establish the identity of the person making the filing or submission and the nature of the filing or submission the person intends to make. Filings or  Submissions by mail of responses to department requests for information must be postmarked received by the department (not postmarked) by the established deadline. no later than the last day allowed to make the filing or submission.

            (c)  e-mail transmission to the file transfer service or the e-mail address designated by the department. Filings or submissions by facsimile must be received no later than the last day allowed to make the filing or submission. If the filing or submission is required or allowed to be done by electronic mail, the electronic mail message must be transmitted no later than the last day allowed to make the filing or submission and must contain such information as is needed to establish the identity of the person making the filing or submission and the nature of the filing or submission the person intends to make.

            (d) facsimile transmission at the fax number designated by the department.

            (3) Claimants and employers are allowed eight days to respond to department requests for information pertaining to a benefit claim. A timely response by mail must be received by the department no later than the established deadline. Each response must identify the person responding and address fully the department's questions.

            (4) An employer who, without good cause, provides an untimely or incomplete response to a department request for information may forfeit interested party status and the right to credit for any overpayment, pursuant to 39-51-605, MCA, and ARM 24.11.208 and 24.11.617.

(5) Claimants and employers are allowed ten days to submit a request for an appeal of a Any determination, redetermination, or decision of an appeals referee relating to a claimant's entitlement to or eligibility for benefits or to an employer's chargeability for benefits. A timely request for an appeal by mail must be received by the department no later than the established deadline. In the absence of an appeal, a determination, redetermination, or decision becomes final unless an interested party appeals the determination, redetermination, or decision within ten days after the determination, redetermination, or decision was mailed by the department to the party's last known address.

            (4)(6) The department may accept any filing or allow the untimely submission of information or request for an appeal made after the time allowed or extend the time allowed for any filing or submission to be made if only when the department determines that there is the claimant or employer had good cause to do so to be untimely.

            (5)(7) Any individual can may obtain an answer to an inquiry concerning the unemployment insurance program by submitting the inquiry by telephone, by facsimile, by mail, or by e-mail. 

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-301, 39-51-603, 39-51-605, Title 39, chapter 51, parts 11 through 13, and 21 through 24, MCA

 

REASON: The department determines it is reasonable to replace the term "biweekly claim" with the phrase "weekly payment request" to increase clarity and avoid confusion between claimant's weekly filings seeking benefits and the filing of a "claim," which initiates a qualified claimant's access to available benefits during the subsequent year. The department finds it necessary to clarify by this proposed amendment that submissions by mail must be received by the department and not simply postmarked by the designated deadline for submission of information pertaining to an unemployment insurance claim. The terms "filing" and "submission" are used interchangeably by the unemployment insurance program. The department also determines it is reasonable to add the cross reference to ARM 24.11.208 and 24.11.617, because those rules govern the procedures that apply when an employer does not timely respond. 

 

            24.11.443 BIWEEKLY CLAIMS WEEKLY PAYMENT REQUESTS (1) After filing an initial claim and establishing a valid claim for benefits, a claimant wishing to claim benefits or waiting period credit for any week that begins within the claimant's benefit year must file a timely biweekly claim for the week weekly payment requests. The biweekly claim must be filed using either the department's interactive voice response telephone system or the Internet claims application system, unless it is determined by the department determines that the a claimant is unable to use either the Internet filing method. In those instances, the department shall allow the claimant will be allowed to file biweekly claims weekly payment requests by mail, e-mail, or facsimile using biweekly claim paper forms provided by the department.  Claimants may elect to file payment requests each week or to file two payment requests every two weeks.

            (2)(a) The term "biweekly claim" refers to the manner in which continued claims, except as provided in (2)(b), must be filed. A biweekly claim consists of continued claims for any two previously unclaimed consecutive weeks that begin within a claimant's benefit year. The biweekly claim must be filed after the Saturday of the second week, but no later than seven calendar days following the Saturday of the second week.  A claimant must file weekly payment requests only after the week has passed for which the claimant seeks benefits or waiting week credit. The time frame for filing weekly payment requests begins on the Sunday following the last week for which payment or waiting week credit is requested and runs through the following seven calendar days.

            (b)  When there is only one previously unclaimed week remaining that begins within a claimant's benefit year, a continued claim may be filed for that week alone. The continued claim must be filed after the Saturday of the week, but no later than seven calendar days following the Saturday of the week. For the purposes of this rule, the term "biweekly claim" includes a continued claim filed under this subsection.

            (c) The department may extend the time allowed for filing a biweekly claim if it determines that the claimant had good cause for failing to file the claim within the time allowed. If no good cause is found for the delay in filing, benefits or waiting period credit, as the case may be, will be denied and the claimant may be required to reactivate the claim as provided in ARM 24.11.445.

            (3) When filing a biweekly claim using the interactive voice response telephone system, a claimant must enter the claimant's social security number and personal identification number to access the system and must answer each question asked by the system. A claimant must answer fully each question on the weekly payment request form and certify that the claimant's responses are true and accurate to the best of the claimant's knowledge.

            (4)  When filing a biweekly claim using weekly payment requests using the Internet claims application system, a claimant must enter the claimant's social security number, birth date, and personal identification number to access the application system and must answer each question listed on the biweekly claims form. The claimant's personal identification number, which is established by the claimant and unknown to the department. Claimants are required to keep their personal identification numbers confidential.  and which the claimant is required to keep A claimant's personal identification number confidential, is considered by the department to be the equivalent of the claimant's signature for the purpose of certifying that the claimant's responses to the questions are true and accurate to the best of the claimant's knowledge. When filing a biweekly claim by mail, a claimant must answer each question on the biweekly claim form and sign the form to certify that the claimant's responses to the questions are true and accurate to the best of the claimant's knowledge.

            (4)(5)  A claimant must report all hours of insured work and gross wages for insured work for each week claimed. The wages must be reported for the week in which they were earned rather than for the week in which they were paid, except as otherwise provided in this rule. for the following:

            (a) payments made for termination of employment in insured work must be reported for the week in which the separation from insured work occurred. Termination payments are generally known or described as severance pay, separation pay, termination pay, wages in lieu of notice, continuation of wages for a designated period of time following cessation of work, or other similar payment, and payments made under an incentive, worker buy-out, or similar plan designed to produce a general or specific reduction in force by inducing workers to leave voluntarily or in lieu of involuntary termination, whether paid in a lump sum or incrementally over any period of time, must be reported for the week in which the separation from work occurred.

            (b) through (g) remain the same.

            (5)(6)  A claimant must file timely biweekly claims weekly payment requests during the pendency of a monetary determination, a non-monetary determination, or an appeal, in order to claim request benefits or waiting period credit for that week or weeks.

            (7) A claimant must complete work search contacts seeking insured work during each week for which claimant requests payment of benefits or waiting week credit, unless the claimant is exempt from this requirement pursuant to [NEW RULE I].

(8)  The department may allow the untimely filing of a weekly payment request only when the department determines the claimant had good cause for failing to file within the time allowed. If the department determines that no good cause justifies the delay in filing, benefits or waiting week credit must be denied and the claimant may be required to reactivate the claim as provided in ARM 24.11.445.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-201, Title 39, Ch. 51, parts 21 through 23, MCA

 

REASON: The department determines the proposed rule amendment is necessary because the department no longer offers the interactive voice response system as an option for claimants filing weekly payment requests. The only two filing options available to claimants now are the Internet claim system and paper-filing by U.S. mail or facsimile. The department determines that the cost of maintaining and upgrading the voice response system is prohibitive. The proposed rule amendment is reasonable because more than 80% of claimants already use the Internet claim system and the department allows those claimants who lack access to the Internet to continue filing weekly payment requests using the department's paper forms.  The department further determines that it is necessary to require claimants to document weekly work search contacts in order to ensure claimants are actively seeking suitable employment while collecting benefits to ensure the integrity of Montana's unemployment insurance program. 

 

            24.11.445 INACTIVE CLAIMS--REACTIVATING A CLAIM (1) A claim for benefits becomes inactive if, for any two consecutive weeks within the benefit year, any of the following occur in any combination:

            (a) the claimant does not file a continued claim weekly payment request; or

            (b) the claimant does files a continued claim weekly payment request, but:

            (i) indicates that the claimant does not wish to claim benefits; or

            (ii) reports hours of work equal to or greater than 40; or

            (iii) reports hours of work equal to or greater than the claimant's established customary hours; or

(iv)  reports earnings equal to or greater than twice the claimant's weekly benefit amount.

            (2) To reactivate an inactive claim, the claimant must:

            (a) call the claims processing center during the center's published business hours and request that the claim be reactivated; or

            (b) access the department's Internet claims application system.

            (3) A reactivated claim is effective on the first day Sunday of the calendar week in which the claimant reactivates the claim. A claimant may request that the department backdate the claim to an earlier effective date. The department may backdate a claim when If the department finds determines that the claimant had good cause for the delay in reactivating the claim, the claim will be backdated.

            (4) remains the same.

 

AUTH: 39-51-301, 39-51-302, MCA

IMP:  39-51-2103, 39-51-2104, 39-51-2401, MCA

 

REASON: The proposed amendment is necessary to clarify that a claimant does not qualify for benefits for a week during which the claimant works claimant's customary hours and to update terminology.

 

            24.11.451 SIX-WEEK RULE (1) The department investigates and adjudicates each separation from insured work that occurred during the six weeks immediately preceding the effective date of an initial or an additional claim. If the claimant was not separated form insured work during the six week period, the department investigates and adjudicates the claimant's most recent separation from insured work that occurred prior to the six week immediately preceding the effective date of the claim. The department shall adjudicate all separations that occurred during the six-week period except:

            (a)  when the claimant separates from both full-time and part-time employment in insured work, the department shall adjudicate only the separation from full-time employment; and

            (2)(b) Except as provided in ARM 24.11.454A(1) and (2), if there is more than one separation occurring within the time frames specified in (1) involving when the claimant separates from insured work with the same employer more than once, the department shall adjudicate only the last separation involving that employer is investigated and adjudicated.

            (2)  If the claimant did not separate from insured work during the six-week period, the department shall investigate and adjudicate the claimant's most recent separation from insured work that occurred prior to the six weeks immediately preceding the effective date of the claim.

            (3) Each employer involved in a claimant's separation is allowed eight days to respond to the claimant's statement of the reasons for the separation. If the information obtained from any employer is substantially different from that provided by the claimant, the claimant is allowed eight days to respond to the employer's statement. The eight days allowed for the employer's or the claimant's response begins on the day following the date the information is mailed, faxed, or communicated by telephone to the employer or to the claimant. In the interest of making timely determinations and redeterminations, department personnel may attempt to provide the parties' statements to each other by telephone and obtain their responses at that time or request that they respond at sometime sooner than the expiration of the eight days allowed for them to respond. Either party may waive the eight days by providing their response prior to the expiration of the eight days. 

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-2301, 39-51-2302, 39‑51‑2303, 39-51-2304, MCA

 

REASON: The proposed amendment is necessary to avoid the inequity that has occurred when a claimant qualified for benefits on the basis of claimant's separation from full-time employment but was denied benefits due to claimant's separation from part-time employment during the six-week period immediately preceding the filing of a claim. The department determines it is reasonable to adjudicate only the separation from full-time employment in order that a claimant qualified for benefits on the basis of the separation from primary, full-time employment is not disqualified by operation of the six-week rule when the claimant leaves a comparatively insignificant part-time job during the six-week period. The department determines that it is reasonable to eliminate the portion of the rule that describes the time allowed for claimant and employer responses to department requests for information because those time frames are outlined thoroughly in ARM 24.11.450A.

 

            24.11.452A ELIGIBILITY FOR BENEFITS (1) through (3) remain the same.

            (4) The department shall determine a claimant to be actively seeking work when the claimant is:

            (a) making a reasonable independent search for suitable work in a manner appropriate for conditions in the claimant's labor market area an active, good faith effort to secure insured work during each week for which the claimant requests payment of benefits or waiting week credit, unless the claimant is exempt from this requirement pursuant to [NEW RULE I];

            (b) and (c) remain the same.

(5)  The department shall determine a claimant to be ineligible for benefits when, without good cause, the claimant:

            (a) fails to participate in a scheduled job interview required by the department;

            (b) and (c) remain the same.

            (d) withdraws temporarily or permanently from the labor market. Withdrawal from the labor market includes but is not limited to:

            (i) and (ii) remain the same.

            (iii) an employer-approved leave of absence, per ARM 24.11.476 24.11.490; or

            (iv) and (v) remain the same.

(6) remains the same.

 

AUTH:  39-51-301, 39‑51-302, MCA

IMP:  39-51-504, 39-51-2101, 39-51-2104, 39‑51‑2115, 39-51-2304, MCA

 

REASON: The proposed amendment is necessary to reference the department's new requirements for reporting work search contacts outlined by NEW RULE I and to correct a citation to rule.

 

            24.11.459 ADMINISTRATIVE PENALTY (1) through (4) remain the same.

            (5) A week is counted as a week of disqualification for the purposes of 39‑51-3201(1)(a), MCA, only if:

            (a) the claimant has filed a biweekly claim weekly payment request for the week;

            (b) through (d) remain the same.

 

AUTH: 39-51-301, 39-51-302, MCA

IMP:  39-51-3201, MCA

 

REASON: The department determines it is reasonable to replace the term "biweekly claim" with the phrase "weekly payment request" to increase clarity and avoid confusion. The phrase "weekly payment request" serves to distinguish a claimant's weekly filings seeking benefits from the filing of a "claim," which initiates a qualified claimant's access to available benefits during the subsequent year.  

 

            24.11.470 QUALITY CONTROL (1) remains the same.

            (2) This program includes, but is not limited to:

            (a) a review of the claim weekly payment request forms;

            (b) remains the same.

            (c) verifications of wages, statements, and worksearches work search contacts.

 

AUTH:  39‑51‑301, 39-51-302, MCA

IMP:  39-51-301, MCA

 

REASON: The department determines it is reasonable to replace the term "biweekly claim" with the phrase "weekly payment request" to increase clarity and avoid confusion. The phrase "weekly payment request" serves to distinguish a claimant's weekly filings seeking benefits from the filing of a "claim," which initiates a qualified claimant's access to available benefits during the subsequent year.

 

            24.11.471 ELIGIBILITY REVIEW PROGRAM (1) A program has been established by the department to review a claimant's eligibility to receive benefits and to evaluate the claimant's need for reemployment services. The purpose of the program is to review the work search contacts made by the claimant and to help the claimant in further work searches become reemployed. Any claimant may be selected to participate in the program.

            (2) A claimant who is selected to participate in the program receives a written notice to report for an interview at the local designated job service office. Failure to report to the local job service office at the scheduled time, or failure to notify the office and reschedule the interview, or failure to provide documentation of work search contacts, as required by [NEW RULE I], may result in denial of benefits.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39‑51‑2104, 39-51-2304, MCA

 

REASON: The proposed rule amendment is necessary to provide a reference to NEW RULE I, which outlines in detail the requirements for a claimant to document one work search contact during each week for which the claimant requests benefit payment or waiting week credit.

 

            24.11.2504 RENTAL OF EQUIPMENT OR CAPITAL ASSETS--NOT WAGES (1) through (5) remain the same.

            (6) Passenger vehicle expenses may be reimbursed either on the basis of actual receipts or upon mileage, at a rate no greater than that allowed by the United States Internal Revenue Service for the preceding that year, provided that the individual actually furnishes the vehicle.

            (7) remains the same.

 

            AUTH:  39-51-301, 39-51-302, MCA

            IMP:  39‑51‑201, 39-51-1103, MCA

 

REASON: The proposed amendment is necessary to bring the rule into conformance with Internal Revenue Service (IRS) regulation 26 CFR 1.274-5(g) and provide consistency with the mileage rate reimbursement allowed by ARM 24.11.2511(1)(e)(v).

 

            24.11.2707 REPORTING OF WAGES IN EXCESS OF TAXABLE WAGE BASE FOR CERTAIN EMPLOYERS (1) through (3) remain the same.

            (4)  Prior to January 1, 2014, If an employer has wages reported wages for an employee to another state, these wages may be used in calculating the employee's taxable wage in Montana.

            (5) Beginning January 1, 2014, only wages reported to the Montana unemployment insurance program may be used to calculate an employee's taxable wage in Montana.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-203, 39-51-1108, 39-51-1217, MCA

 

REASON:  The proposed amendment is necessary to simplify the determination of wages paid to employees in excess of Montana's taxable wage base.  Each state determines its own taxable wage base, which establishes the upper limit for wages subject to unemployment insurance taxation, and most wage bases differ from state to state.  When wages paid to employees working out-of-state are reported to Montana by multistate employers, a significant number of reporting errors have occurred.  Less than 1% of employers report out-of-state wages to Montana's unemployment insurance program, but the resulting incorrect calculations constitute more than 25% of the accounting discrepancies each year.  Department staff devote more than 250 hours each year to the reconciliation of out-of-state wage reporting errors.  This reconciliation burden is shared by employers and payroll tax preparers who must address the audit questions raised by the department.

 

The department's new tax system (STAARS) capably determines the correct amount of taxable wages for an employee who works in a single state. However, commercial payroll software packages currently available on the market do not have the capacity to calculate accurately taxable wages for employees who frequently relocate to work in several states.  The STAARS tax system now requires the reconciliation of employer contribution reports on a quarterly basis, rather than annually. The elimination of out-of-state wages from the calculation of an employee's taxable wage base in Montana allows for wider use of e-filing by employers and provides for much greater efficiency in all areas of Montana's unemployment insurance program. 

 

The proposed rule amendment is reasonable because employers using out-of-state wages to determine their employees' taxable wage base in Montana have enjoyed very minor reductions in their tax contributions but have accumulated some of the largest unemployment insurance deficits. In other words, the Montana unemployment insurance program has paid out disproportionally large amounts of benefits to the employees of businesses using out-of-state wages to reduce their tax contributions. Fewer than forty employers, all with extremely large deficits, received the bulk of the tax savings from use of out-of-state wages over the past three years. The proposed rule amendment will help to reduce such extreme deficits over time.  The department determines the proposed amendment will allow more employers to begin to submit electronic quarterly filings and provide employers with greater certainty regarding how to correctly calculate taxable wages for employees in Montana. 

 

4. The new rule as proposed to be adopted provides as follows:

 

NEW RULE I WORK SEARCH CONTACTS (1) The department shall determine a claimant is making an active, good faith effort to secure insured work when the claimant documents at least one valid work search contact made during the week for which claimant requests the payment of benefits or waiting week credit. A valid work search contact requires a claimant to:

(a)  directly contact an employer or an authorized agent of an employer who hires workers in the claimant's occupation(s);

(b) possess the prior work experience, knowledge, skills, and abilities to qualify for the specific job opening;

(c)  complete a job application or submit a resume that enables the employer to contact the claimant to arrange an interview or to commence employment;

(d)  make the work search contact in person, unless the normal method of applying for work in the industry or occupation is submission of an application or resume by mail, Internet, or facsimile; and

(e)  make a work search contact with a different employer for each consecutive week.

(2)  Seeking self-employment or work as an independent contractor does not constitute a valid work search for unemployment insurance purposes.

(3) The claimant must maintain a separate log of valid work search contacts and accurately report at least one work search contact to the department in the designated section of the claimant's weekly payment request form, whether filing by mail, e-mail, facsimile, or using the Internet claim system. Failure to provide a verifiable work search contact for a week or failure to answer fully all questions related to a work search contact may result in the denial of benefits.

(4) Claimants must retain separate documentation of all work search contacts for three calendar years following claimants' benefit year.

(5) Documentation of work search contacts consists of the following information:

(a)  date of the work search contact;

(b)  name of the employer;

(c)  name of the employer's contact person or employer's web address (URL);

(d)  telephone number of employer;

(e)  position applied for by claimant;

(f)  result of the work search contact;

(g)  copy of confirmation of receipt of application or resume by the employer for an online application; and

(h)  copy of job advertisement in newspaper or trade magazine, when applicable.

(6) The department may exempt a claimant from the requirement to complete work search contacts and maintain a work search log when the claimant is:

            (a) engaged in state-approved training, pursuant to ARM 24.11.475 or 24.11.476;

            (b) "union attached" as defined in ARM 24.11.452A; or

            (c) "job attached" as defined in ARM 24.11.452A.

(7)  The department may deny benefits and determine that a claimant must pay back previously paid benefits when a claimant fails to:

(a)  complete required work search contacts;

(b)  fully report work search contacts on weekly payment request forms;

(c)  provide documentation of work search contacts upon department request;

(d)  participate in the Benefits Accuracy and Measurement audit authorized by ARM 24.11.470; or

(e)  participate in the Eligibility Review Program authorized by ARM 24.11.471.

 

AUTH: 39-51-301, 39-51-302, MCA

IMP: 39-51-2104, 39-41-2115, 39-51-2304, MCA

 

REASON: The department determines proposed NEW RULE I is necessary to clarify the responsibility of each nonexempt claimant to document and report work search contacts for each week that the claimant requests payment of unemployment insurance benefits. Proposed NEW RULE I outlines explicit documentation of work search contacts that will permit the department to exercise greater oversight of a claimant's efforts to secure employment in insured work. The retention of documentation of all work search contacts by each claimant is necessary for auditing by the department's Benefits Accuracy Measurement audit and Eligibility Review Program. The department determines that three years is a reasonable period of time to permit the department to audit a claimant's work searches.

 

5.  The department proposes to repeal the following rules:

 

            24.11.440 DEFINITIONS

 

AUTH: 39-51-301, 39-51-302, MCA

IMP:  39-51-2101 through 39-51-2601, MCA

 

REASON: The department determines it is reasonable to consolidate all definitions commonly used in the administration of unemployment insurance benefits into a single administrative rule. The department incorporates all pertinent definitions of this rule as part of ARM 24.11.204. Therefore, repeal of this rule is necessary.

 

24.11.513 DEFINITIONS

 

AUTH: 39-51-301, 39-51-302, MCA

IMP: 39-51-504, MCA

 

REASON: The department determines it is reasonable to consolidate all definitions commonly used in the administration of unemployment insurance benefits into a single administrative rule. The department incorporates all pertinent definitions of this rule as part of ARM 24.11.204. Therefore, repeal of this rule is necessary.

 

24.11.605 DEFINITIONS

 

AUTH: 39-51-301, 39-51-302, MCA

IMP:  39-51-1103, 39-51-1213, MCA

 

REASON: The department determines it is reasonable to consolidate all definitions commonly used in the administration of unemployment insurance benefits into a single administrative rule. The department incorporates all pertinent definitions of this rule as part of ARM 24.11.204. Therefore, repeal of this rule is necessary.

 

24.11.1223 DEFINITIONS

 

AUTH: 39-51-301, 39-51-302, MCA

IMP: 39-51-504, 39-51-3201, 39-51-3202, 39-51-3206, MCA

 

REASON: The department determines it is reasonable to consolidate all definitions commonly used in the administration of unemployment insurance benefits into a single administrative rule. The department incorporates all pertinent definitions of this rule as part of ARM 24.11.204. Therefore, repeal of this rule is necessary.

 

24.11.2001 DEFINITIONS

 

AUTH: 39-51-301, 39-51-302, MCA

IMP: 39-51-201, 39-51-1103, MCA

 

REASON: The department determines it is reasonable to consolidate all definitions commonly used in the administration of unemployment insurance benefits into a single administrative rule. The department incorporates all pertinent definitions of this rule as part of ARM 24.11.204. Therefore, repeal of this rule is necessary.

 

6. Concerned persons may present their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to: Rachel Bawden, P.O. Box 8020, Helena, MT 59604-8020; telephone (406) 444-2582; fax (406) 444-2993; Montana Relay Service at 711; or e-mail [email protected] and must be received no later than 5:00 p.m., March 13, 2014.

 

7. An electronic copy of this notice of public hearing is available through the department's web site at http://dli.mt.gov/events/calendar.asp, under the Calendar of Events, Administrative Rules Hearings Section. The department strives to make the electronic copy of this notice of public hearing conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems, and that a person's difficulties in sending an e-mail do not excuse late submission of comments.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program or areas of law the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the Department of Labor and Industry, Attention: Mark Cadwallader, 1315 E. Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, e-mailed to [email protected], or may be made by completing a request form at any rules hearing held by the agency.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment, adoption, and repeal of the above-referenced rules will not have a significant adverse impact on small businesses. The proposed amendment of ARM 24.11.2707 requires multistate employers to use only Montana-reported wages to determine the taxable wages for employees. Less than one-tenth of one percent of the affected employers have 49 or fewer employees. The department has prepared a small business impact statement, which is available for review upon request.

 

11. The department's Hearings Bureau has been designated to preside over and conduct this hearing.

 

 

/s/ JUDY BOVINGTON                    /s/ PAM BUCY

Judy Bovington                              Pam Bucy, Commissioner

Alternate Rule Reviewer                  DEPARTMENT OF LABOR AND INDUSTRY

 

Certified to the Secretary of State February 3, 2014.