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Montana Administrative Register Notice 24-7-254 No. 4   02/24/2011    
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

AND THE BOARD OF LABOR APPEALS

STATE OF MONTANA

 

In the matter of the amendment of ARM 24.7.301, 24.7.304, 24.7.305, 24.7.306, 24.7.308, 24.7.312, 24.7.315, and 24.7.316, and the adoption of NEW RULE I, pertaining to the Board of Labor Appeals; the amendment of 24.11.204, 24.11.207, 24.11.320, 24.11.450A, 24.11.452A, 24.11.454A, 24.11.455, 24.11.457, 24.11.458, 24.11.475, 24.11.616, 24.11.1207, 24.11.2407, 24.11.2511 and 24.11.2515; and the adoption of NEW RULES II through X, pertaining to unemployment insurance

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND ADOPTION

                                                                             

TO:  All Concerned Persons

 

            1.  On March 17, 2011, at 10:00 a.m., the Department of Labor and Industry (Department) and the Board of Labor Appeals (Board) will hold a public hearing to be held in the Sanders Auditorium of the DPHHS Building, 111 North Sanders, Helena, MT to consider the proposed amendment and adoption 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 15, 2011, to advise us of the nature of the accommodation that you need.  Please contact the Unemployment Insurance Division, Department of Labor and Industry, Attn: Don Gilbert, P.O. Box 8020, Helena, MT  59624-8020; telephone (406) 444-4336; fax (406) 444-2993; TDD (406) 444-5549; or e-mail dgilbert@mt.gov.

 

            3.  GENERAL STATEMENT OF REASONABLE NECESSITY:  The 2009 Montana Legislature enacted Chapter 88, Laws of 2009 (Senate Bill 150), an act generally revising unemployment insurance laws, and Chapter 489, Laws of 2009 (House Bill 645), which revised the base period for unemployment benefits and provided for part-time work and participation in worker training for unemployment purposes.  The board (chapter 7) and department (chapter 11) determined it is reasonably necessity to amend existing rules and adopt new rules for the unemployment insurance division to implement the legislation regarding part-time workers qualifying for unemployment insurance benefits, the appointment, service, and compensation of a substitute member of the board, and the authorization of additional training benefits for unemployed workers.

            The board is amending several rules in subchapter 3 to better facilitate the board's timely consideration of appeals.  The board has recently experienced a dramatic increase in the number of unemployment insurance benefit and tax appeals pending board review.  Therefore, the board is amending subchapter 3 to set reasonable timelines for submission of new evidence, distinguish between documentary evidence and argument in new material before the board, and clarify the applicability of the rules of evidence and civil procedure in board proceedings.  The board is also replacing references to a board hearing with the correct terms for board review or board proceeding to eliminate confusion between the board review process and the actual contested case hearing procedure through the department hearings bureau.  The board concluded that these amendments will clarify board processes and enable the board to better serve those Montanans with pending unemployment benefit appeals.

            The department is also amending the rules and catch phrases throughout to correct grammar, define relevant terms, simplify wording, clarify meaning, improve rule organization, delete erroneous effective dates, and comply with rule formatting and numbering requirements.  Where additional specific bases for a proposed action exist, the department will identify those reasons immediately following that rule.  Lastly, authority and implementation cites are being amended to provide the complete sources of the board's or department's rulemaking authority and to accurately reflect all statutes implemented through the rules.

 

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

 

            24.7.301  POLICY  (1)  It is the intent of this board insofar as is practical to keep appeal procedures as simple, speedy, and inexpensive as possible.  The board hearing on review of an appeal of a hearing officer's decision must be fair and conducted in accordance with procedural safeguards.  The essential requisites of fairness include but are not limited to the following elements:

            (a) through (c) remain the same.

            (2)  A decision of the board must be based solely on substantial evidence as revealed by the files, records, and any new evidence taken at the appeal hearing board review proceeding to support it.

 

AUTH:  2-4-201, MCA

IMP:     2-4-201, 39-51-1109, 39-51-2404, 39-51-2407, MCA

 

            24.7.304  RIGHT TO APPEAL  (1) through (4) remain the same.  

            (5)  Upon scheduling of an appeal, the board shall give interested parties written notice of the date, time, and place of hearing the board review, and such notice shall be mailed to such parties at least ten days prior to the date of the board's hearing review.

 

AUTH:  2-4-201, MCA

IMP:     2-4-201, 39-51-1109, 39-51-2404, 39-51-2407, MCA

 

            24.7.305  HEARING PROCEDURE BOARD REVIEW PROCEDURE  (1)  The board hearing review on an appeal of a hearing officer's decision shall be conducted informally, and in such manner as to ascertain the substantial rights of the parties.  All issues relevant to an appeal shall be considered and passed upon.

            (2)  The board may review written argument and hear oral argument from any interested party concerning the findings of fact and the conclusions of law reached by the hearing officer.  The board does not hear cross-examination by any opposing interested parties and any new material introduced for the board review must be introduced in accordance with ARM 24.7.312.

            (3)  An interested party to an appeal before the board may appear at any conference or hearing proceeding held in such appeal, either on the party's own behalf, by an attorney at law, or through an authorized lay representative as prescribed by (4).

            (4) through (4)(b) remain the same.

            (i)  an employee of the employing unit that is subject to a benefit charge or the owner of that employing unit as long as employee's or owner's typical duties include handling unemployment insurance matters for the employing unit and the employee or owner is not receiving separate remuneration; or

            (ii) remains the same.

            (c) remains the same.

            (5)  At the scheduled date and time of the board proceeding, the board will make two attempts to reach each interested party at the telephone number(s) provided.  If the board is unable to reach a party and/or the party fails to appear or make a request to continue, the board will make a determination pursuant to ARM 24.7.306.

            (5) (6)  At any time prior to the issuance of the board's decision, the board may at its discretion continue a hearing proceeding in order to secure evidence or argument that is necessary and to be fair to the parties, but in no case may the hearing board's review be continued without review board action for more than 60 days beyond the date originally set for hearing the board proceeding.  In the event that a scheduled hearing board proceeding is continued, the hearing board review shall be rescheduled with due notice to all interested parties.

 

AUTH:  2-4-201, MCA

IMP:     2-4-201, 39-51-1109, 39-51-2404, 39-51-2407, MCA

 

REASON:  The board is amending (4)(b)(i) to align the definitions of those appearing before the board throughout the board rules, including ARM 24.7.316 and 24.11.207.

 

            24.7.306  DETERMINATION OF APPEALS  (1)  The department shall transmit to the board all records that are pertinent to the appeal including documents not admitted into the record by the hearing officer.  The board will consider such records or portions of those records as the board deems appropriate.  As soon as possible after the hearing, the board will decide whether to reverse, modify, or affirm the decision of the hearing officer.  Written notice of the board's action will be mailed sent to all interested parties.

            (2)  The board will review the hearing officer's decision for errors of law or fact.  In making its determination, the board will consider the record transmitted on appeal, written or oral arguments, as well as any new evidence material admitted pursuant to ARM 24.7.312.

            (3)  If the appealing party fails to appear at the board hearing proceeding and no good cause for continuance is shown, the board shall render its decision on the basis of the record.  If the decision on appeal to the board is based on the best evidence available pursuant to ARM 24.11.320, the board may render its decision based on the best available evidence.

 

AUTH:  2-4-201, MCA

IMP:     2-4-201, 39-51-310, 39-51-1109, 39-51-2404, 39-51-2407, MCA

 

            24.7.308  CHALLENGES, DISQUALIFICATIONS  (1)  No member of the board shall participate in the hearing review proceeding of any appeal in which he has an interest nor shall any such member appeal in which he has an interest nor shall any such member represent any interested party or witness at any appeal hearing board proceeding.  Any interested party may challenge any member of the board in writing, served upon the chairman of the board, five days in advance of any scheduled appeal hearing board proceeding stating the reasons therefore, and if the board shall find merit in the challenge, it shall disqualify the challenged member and appoint another person the substitute member to hear the appeal if it deems such appointment advisable.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, 2-15-1704, MCA

 

            24.7.312  EVIDENCE NEW MATERIAL BEFORE THE BOARD  (1)  All new material introduced at the board proceeding must be mailed or delivered to the board administrative assistant and all other parties no later than five days prior to the scheduled board proceeding or the material will not be considered by the board.

            (1) (2)  The board will not consider any new material evidence introduced at for the board hearing review if it is documentary evidence unless good cause is shown why the new documentary evidence was unavailable that it was unavailable at the hearing before the hearing officer.  New material introduced at for the board hearing review that is argument and not documentary evidence will be admitted.  If new evidence is admitted, it must be the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.

            (3)  The rules of evidence and civil procedure are not binding in board administrative proceedings for unemployment insurance matters.  If new documentary evidence is admitted by the board, it must be the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.

            (2) remains the same but is renumbered (4).

             

AUTH:  2-4-201, MCA

IMP:     2-4-201, 39-51-2404, 39-51-2407, MCA

 

            24.7.315  STANDARDS AND PROCEDURES FOR RECONSIDERATION OF DECISIONS  (1)  As used in this rule, the following definitions apply:

            (a)  "Petition" means a petition for rehearing or reconsideration of a board decision.

            (b)  "Requester" means the interested party requesting a petition for rehearing or reconsideration of a board decision.

            (2) and (3) remain the same.

            (4)  Petitions are addressed to at the sole discretion of the board.

            (5) and (5)(a) remain the same.

            (b)  to present relevant evidence that was not known or discoverable with reasonable diligence by the requester at the time of the hearing board review proceeding;

            (c) remains the same.

            (d)  to present argument because good cause exists for failing to appear at the previously scheduled board hearing review proceeding.

            (6)  The petition must state the ground or grounds upon which reconsideration is sought and a detailed statement as to why the requested rehearing or reconsideration will likely mandate a change in the board's decision.

            (7)  The board shall rule upon the petition at its next regular meeting and notify the parties of its decision.  In the event there is a finding of good cause to grant the petition, the hearing board review shall be rescheduled with due notice to all interested parties.

            (8) remains the same.

 

AUTH:  2-4-201, MCA

IMP:     2-4-201, 2-15-102, 39-51-1109, 39-51-2404, 39-51-2407, MCA

 

            24.7.316  INTERESTED PARTY  (1)  An interested party is defined at ARM 24.11.207.

            (1) (2)  An interested party is entitled to receive notice of Board of Labor Appeals proceedings as well as a copy of the board's decision.  An interested party will be given The board shall provide an interested party an opportunity to participate in the board's hearing on the appeal.  An interested party may petition for review of a board decision by the district court.

            (a)  A claimant is an interested party in an appeal of the claimant's benefits determination decision.

            (b)  An employer is an interested party to an appeal that is determinative of whether benefits paid to a claimant are chargeable to that employer's account.

            (c)  An employer is an interested party to an appeal of decision on contribution, liability, contribution rate, application for refund, subject wages, self-employment, or other contribution-related issues.

            (d)  The department is an interested party.

            (e)  Any party who, upon written application to the board, is found to have a substantial interest in an issue may be deemed to be an interested party relative to the appeal.

 

AUTH:  2-4-201, MCA

IMP:     2-4-201, 39-51-1109, 39-51-2404, MCA

 

REASON:  The board is amending this rule to clarify that interested parties to a board proceeding must meet the definition at ARM 24.11.207, and align the definitions between board review proceedings and the adjudication of unemployment insurance claim benefits and employer tax liability by the department.  While persons with relevant information may testify at a hearing before the board, only persons or entities with a financial stake in the outcome of a proceeding are deemed interested parties.  The amendment will further facilitate the board's efficient review of cases.

 

            24.11.204  DEFINITIONS  remains the same.

            (1) through (26) remain the same.

            (27)  "Part-time work" means insured work that is less than 40 hours per week.

            (27) through (30) remain the same but are renumbered (28) through (31).

            (32)  "Similar work" means work in the same occupation or a different occupation that requires essentially the same skills and knowledge as the worker's current or most recent employment but does not mean identical work.

            (33)  "State-approved training program" means a program the department determines is reasonably expected to lead to employment for a claimant and meets the criteria outlined by ARM 24.11.475.

            (34)  "Suitable work" means work the department determines a claimant is reasonably suited to perform by experience, education, or training.  Suitable work is further described by [NEW RULE VIII].

            (31) through (36) remain the same but are renumbered (35) through (40).

            (41)  "Work week" or "week of work" is a week as defined in 39-51-201, MCA, in which the claimant earns wages that are covered by unemployment insurance.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-201, 39-51-2111, 39-51-2112, 39-51-2115, 39-51-2116, 39-51-2304, MCA

 

REASON: The department is amending this rule to define several terms used and implemented through the 2009 legislation.  The term "suitable work" is commonly used within the unemployment insurance program, but has never previously been defined in rule.  The term is further delineated in New Rule VIII.

 

            24.11.207  DETERMINING WHO IS AN INTERESTED PARTY  (1)  An "interested party" is a person entitled to:

            (a)  receive notice of certain issues and proceedings relative to a claim;

            (b)  receive notice of determinations, redeterminations, and decisions relative to those issues; and

            (c)  contest determinations, redeterminations, or decisions relative to those issues. 

            (2) (1)  A claimant is an interested party to proceedings that adjudicate any and all issues relative to the claimant's claim eligibility and qualification for unemployment insurance benefits.

            (3) (2)  The department is an interested party to proceedings that adjudicate any and all issues relative related to any claim benefit claims and employer tax liability.

            (4) (3)  An employer who paid wages to the claimant is an interested party to any issue proceedings that adjudicate claimant's separation from employment with that employer.  Proceedings that adjudicate claimant's separation from employment during the base period of a claim determine that is determinative of whether all or any portion of benefits paid to a claimant are chargeable to that the base period employer's account pursuant to 39-51-1125, 39-51-1212, or 39-51-1214, MCA.  An employer is not an interested party to proceedings that adjudicate nonseparation issues related to a claim.

            (4)  An employer is an interested party to proceedings that adjudicate the employer's own tax liability, contribution rate, application for refund, subject wages and other tax contribution-related issues.

            (5)  If a claimant refuses an offer of work, the employer making the offer is an interested party with respect to the issue of whether the claimant will be disqualified for failing to accept an offer of suitable work pursuant to 39-51-2304, MCA, but only if the claimant was employed by and earned wages from the employer after the beginning of the base period of the claim and prior to the offer of work.

            (6)  Any person who, upon written application, is found by the department to have a substantial interest in an issue may be deemed to be an interested party relative to that issue.

            (7)  A person described in (4) through (6) does not continue to be an interested party once the issues described therein are adjudicated and become final.  Unless the person is found to be an interested party to issues that may subsequently arise, the person is not entitled to notice of those issues or notice of determinations, redeterminations or decisions relative to those issues nor does the person have standing to contest those determinations, redeterminations, or decisions.

            (8) (5)  Any person may raise an issue relative to any and, provided the person's allegations are credible, the department may investigate the issue and make a determination of the claimant's eligibility for benefits. provide the department with information relevant to an investigation or determination of a benefit claim or an employer's tax liability.  However, the person raising the issue, unless the Unless a person is an interested party to a proceeding, is not notified the department shall not notify the person of the determination and the person does not have standing to contest the determination.

            (6)  Only an interested party to an unemployment insurance proceeding has standing to request a redetermination, contested case hearing, or appeal to the Board of Labor Appeals.

            (7)  The department shall provide written notice of a determination, redetermination, contested case hearing, and appeal only to the identified interested parties to a particular proceeding as defined by this rule.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     Title 39, Chapter 51, Parts 11 and 12, 21 through 24, and 32, MCA

 

            REASON:  The department is amending this rule to address confusion between the standing to participate as an interested party in proceedings to determine unemployment insurance eligibility and benefits and those to determine an employer's tax liability or contribution.  The amendments will remove the provision for individuals to apply for interested party status as the department concluded the provision confused proceedings by allowing various persons who may have possessed relevant information but had no financial stake in the outcome to participate as parties.  The amendments also clarify that only an interested party is entitled to receive notice and copies of department determinations and redeterminations, and that only an interested party has standing to request a redetermination or appeal a department decision to the board.

            The amendments are reasonable because each materially affected prior employer, whose account may be chargeable as a result of a claim or future claim, is designated an interested party to any proceeding that adjudicates that employer's chargeability.  The department will notify an employer of proceedings regarding the circumstances of claimant's separation from employment with that employer, whether the employer paid wages to the claimant during the base period of the claim or within six weeks of the claimant's last separation from employment.  The amended rule designates an employer as an interested party for proceedings related to a specific claim that involve the issue of claimant's separation from employment  with that employer and for proceedings related to the employer's own tax liability.

            The proposed amendments also differentiate persons who may have relevant information pertinent to an investigation or adjudication of a claim and may serve as a witness, but not qualify as an interested party.

 

            24.11.320  HEARING PROCEDURE--BENEFIT DETERMINATIONS 

            (1) and (2) remain the same.

            (3)  With the consent of the appeals referee, the parties may stipulate in writing the facts of the case.  A hearing may nevertheless be held if when the appeals referee finds such a stipulation the stipulated facts to be inadequate for decision in the case.

            (4)  If any party fails to appear at the hearing, and no emergency justifying continuance is shown, the appeals referee issues the decisions on the best evidence available. The appeals referee shall conduct the hearing within 30 days of the filing of an appeal, absent clear and convincing evidence that extraordinary circumstances justify delay.  The hearing may be postponed only for emergencies upon a party's written or verbal application to the appeals referee orally or in writing before the hearing is concluded.  The appeals referee shall deny a request to postpone unless delay is justified by extraordinary circumstances beyond the requesting party's control.

            (5)  When the appeals referee does not grant a postponement and a party fails to appear at the hearing, the appeals referee shall issue the determination based upon the best available evidence.

            (5) remains the same but is renumbered (6).

 

AUTH:  39-51-302, MCA

IMP:     39-51-2407, MCA

 

REASON:  The department is amending this rule to align with federal regulation (20 CFR 650), which requires the department hearings bureau to hold hearings within 30 days of the filing of an appeal of a department unemployment benefits determination or redetermination.  Failure to consistently meet the federal regulation subjects the department to a possible loss of federal administrative funding and other sanctions.  The amended rule will allow postponement of a hearing under extraordinary circumstances.

 

            24.11.450A  NONMONETARY DETERMINATIONS AND REDETERMINATIONS--NOTICE  (1)  The department investigates and adjudicates all nonmonetary issues that arise relative to claims for benefits and, on the basis of the information obtained, makes formal, written determinations and redeterminations of claimants' eligibility for benefits.  In addition to the department's records, information may be obtained from the claimant, the claimant's employer(s), or any other sources.  If the information obtained discloses no essential disagreement and provides a sufficient basis for a fair determination, the department investigates no further.  If the information obtained from other sources differs substantially from that furnished by the claimant, the department affords the claimant the opportunity to review and respond to the information and to submit rebuttal evidence, if any.  The department will consider evidence that is adverse to an interested party only after the party has been afforded an opportunity to review and respond to the evidence and to submit rebuttal evidence, if any.  Notices of determination and redetermination are mailed to all interested parties, any of whom may appeal the same shall adjudicate and issue formal, written determinations and redeterminations on claimant qualification and eligibility for unemployment benefits, which include the reason(s) for claimant's separation from insured work or whether claimant meets the requirements for benefit eligibility throughout the claim benefit period.

            (2)  Nonmonetary issues fall into two categories, separation issues and nonseparation issues.  Separation issues involve the circumstances under which a claimant either left or was discharged from insured work.  Nonseparation issues involve the requirements claimants must meet to maintain continuing eligibility for benefits, including, but not limited to, being able to work, available for work, and actively seeking work The department shall investigate, when necessary, prior to issuing a formal, written determination on claimant's qualification or eligibility for benefits.

            (3)  When a nonmonetary redetermination request is made and the department determines that there is no basis on which to modify or reverse the prior determination, the department may transfer the request to an appeals referee, in which case the department notifies the requesting party of its action.  The appeals referee will conduct a hearing and issue a decision based on the evidence in the record as well as testimony and any new evidence obtained during the hearing. Interested parties shall respond to all department requests for information pertinent to an investigation within eight days of the request, unless the delay in responding was for "good cause" as defined in ARM 24.11.204.  When an interested party fails to respond within eight days and in the absence of "good cause," the department shall proceed with the adjudication process.

            (4)  When the department obtains credible information that raises a nonmonetary issue relative to a claim, but there is insufficient evidence upon which to base a determination or if the claimant has not had an opportunity to respond to the information, the department notifies the claimant of the existence of the issue and of the fact that payment of benefits otherwise due will be suspended pending an initial determination relative to the issue.  The claimant has eight days in which to provide information concerning the issue.  If the claimant does not provide the requested information within the time allowed, the claimant is determined to be unavailable for work for failure to provide requested information, as provided in ARM 24.11.452(1)(b).  The ineligibility is effective on the Sunday of the week during which the act or circumstance that forms the basis of the issue occurred or came into existence.

            (a)  If, within eight days of the date of the initial determination, the claimant provides information and the department determines from that information the claimant should not have been made ineligible for benefits, the ineligibility is removed.  If the claimant provides that information after the eight days has elapsed, the ineligibility is ended either:

            (i)  as of the Saturday of the week immediately preceding the week in which the department receives the information, if the information is received on or before Tuesday of the week; or

            (ii)  as of the Saturday of the week during which the department receives the information, if the information is received on or after Wednesday of the week.  If the department determines that the claimant had good cause for failing to provide the information within the eight days, that ineligibility is removed.

            (b)  If, within eight days of the date of the initial determination, the claimant provides information and the department determines from that information that the ineligibility can be ended as of a particular date, the ineligibility is ended as of the Saturday of the week in which that date occurred.  If the claimant provides that information after the eight days has elapsed, the ineligibility is ended either:

            (i)  as of the Saturday of the week immediately preceding the week in which the department receives the information, if the information is received on or before Tuesday of the week; or

            (ii)  as of the Saturday of the week during which the department receives the information, if the information is received on or after Wednesday of the week.  If the department determines that the claimant had good cause for failing to provide the information within the eight days, that ineligibility is ended as of the particular date  

            (4)  The department shall adjudicate qualification issues in the following manner:

            (a)  When claim information obtained by the department provides a sufficient basis for a fair determination and discloses no essential disagreement between the claimant and employer, the department shall investigate no further and issue an initial determination of claimant's qualification for benefits.

            (b)  When the information relevant to the issue of qualification obtained by the department from the employer or other sources differs substantially from that furnished by the claimant, the department shall afford the claimant the opportunity to review the information, respond, and submit rebuttal evidence, if any.  The department shall consider claimant's response and rebuttal evidence, if any, prior to issuing an initial determination of claimant's qualification for benefits.

            (5)  A claimant who wishes to requalify for benefits as provided in 39‑51‑2302(2)(a) or (3), 39-51-2303(1)(a) and (b), or 39-51-2304(1), MCA, must provide evidence, subject to verification by the department, that the claimant has satisfied a particular requirement for requalification.  If the department determines from the evidence that the claimant has satisfied the requirement, the disqualification is ended as of the Saturday of the week in which the claimant satisfied the requirement, provided that the claim was not inactive at that time.  If the claim was inactive at that time, the disqualification is ended as of the Saturday of the week immediately preceding the effective date of the reopened or additional claim that reactivated the claim.  The department shall adjudicate challenges to claimant's eligibility to receive benefits in the following manner:

            (a)  When the department obtains credible information that claimant fails to meet the requirements of benefit eligibility, the department shall investigate promptly by requesting information pertinent to the allegation(s) from claimant and other sources.

            (b)  The department shall afford claimant the opportunity to review the relevant information obtained by the department, respond, and submit rebuttal evidence, if any.  The department shall consider claimant's response and rebuttal evidence prior to issuing a determination regarding claimant's eligibility for benefits.  If claimant fails to provide the requested information within the time period designated by (3), the department may determine claimant to be unavailable for work as provided in ARM 24.11.452A.

            (6)  When a determination holds that a claimant is disqualified or ineligible for benefits due to an act or circumstance that occurred prior to the effective date of an initial, additional, or reopened claim, the department shall deem claimant disqualified or ineligible for benefits as of the effective date of that claim.

            (7)  When a determination holds that a claimant failed to meet the requirements of benefit eligibility due to an act or circumstance that occurred within the benefit period of a prior or current claim, the department may find claimant liable for repayment of benefits.

            (8)  The department shall notify all interested parties of the issuance of a determination by providing each a copy of the determination via U.S. mail.  The department also shall provide copies of the determination by facsimile transmission and e-mail, upon request. 

            (9)  Within ten days following the date of department mailing of a determination, an interested party may request a redetermination by submitting a request to the department, by telephone, fax, mail, or internet, together with any additional information the party wishes the department to consider.  The following exceptions to the ten-day deadline to request a redetermination apply:

            (a)  a claimant disqualified for benefits by a department determination may submit proof of requalification at any time, pursuant to 39-51-2302, 39-51-2303, or 39-51-2304, MCA; or

            (b)  a claimant found ineligible for benefits by a department determination may submit proof of restored eligibility at any time, pursuant to 39-51-2104, MCA, and ARM 24.11.452A.

            (10)  Prior to issuance of a redetermination, the department shall provide any additional relevant information to all interested parties and invite the parties to review, respond, and submit rebuttal evidence, if any, within eight days of the department request for rebuttal.  The department shall notify all interested parties of the issuance of a redetermination, per (8).

            (11)  An appeal of a redetermination may be filed by an interested party by submitting a request for a hearing to the department by telephone, fax, mail, or internet within ten days of the department mailing of the redetermination.  The department shall notify the interested parties in writing of the appeal to the Hearings Bureau.

            (12)  An appeal of the decision of the Hearings Bureau may be filed by an interested party by submitting a request for the appeal to the department by telephone, fax, mail, or internet within ten days of the department mailing of the hearing officer's decision.  The department shall notify the interested parties in writing of the appeal to the Board of Labor Appeals.

            (13)  A claimant becomes qualified or eligible to receive benefits on the Sunday immediately preceding the date upon which the department receives information that demonstrates claimant's qualification or eligibility, regardless of the time required for claim adjudication.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2202, 39-51-2203, 39-51-2205, 39-51-2301 through 39-51-2304, 39-51-2402, 39-51-2507, 39-51-2508, 39-51-2511, 39-51-2602, 39-51-3201, 39-51-3202, 39-51-3206, MCA

 

REASON: The department determined that a complete rewriting of this rule is reasonably necessary to clearly delineate and explain the department process used to adjudicate nonmonetary issues.  Because the existing rule is excessively wordy, unnecessarily complex and, therefore, difficult to decipher, the amendments simplify and clarify with little substantive change.  The amended rule will facilitate communication with interested parties by specifying that a request for a redetermination or appeal may be made by contacting the department by telephone, fax, U.S. mail, or internet.  The proposed amendments also clarify that only information relevant to an issue of benefit qualification or eligibility will be shared by the department with interested parties.  This amendment is necessary because the department often receives inflammatory and irrelevant information during the course of an investigation and sharing irrelevant information with interested parties serves no fact-finding interest but may cause unnecessary angst or distraction.

 

            24.11.452A  ELIGIBILITY FOR BENEFITS  (1)  A claimant has not satisfied the requirements of 39-51-2104(1)(a), MCA, and is, therefore, ineligible for benefits if the claimant fails, without good cause, to:

            (a)  participate in an interview required by the department; or

            (b)  provide to the department, within eight days of the date of a mailed, faxed, or telephoned request, such information as the department may require for the proper administration of the claim. The department shall use the following criteria to determine whether a claimant is able, available, and actively seeking full-time or part-time work:

            (a)  when the majority of claimant's work weeks in the base period of the claim were full-time work, claimant must be able, available, and actively seeking suitable full-time work to be eligible for benefits, pursuant to 39-51-2104, MCA; or

            (b)  when the majority of claimant's work weeks in the base period of the claim were part-time work, the department may authorize claimant to be eligible for benefits, pursuant to 39-51-2115, MCA.  To remain eligible, claimant must be able, available, and actively seeking suitable part-time work for at least the number of hours per week authorized by the department.

            (2)  A The department shall determine a claimant is not to be able to work, available for work, or actively seeking work, within the meaning of 39-51-2104, MCA, if when the claimant is incapable reasonably fitted by experience, education, or training of performing or is unwilling to seek, apply for, or accept to perform a substantial amount of suitable work in the claimant's labor market area for which the claimant is reasonably fitted by experience, education or training, in the claimant's customary occupation or in an occupation determined by the department to be suitable for the claimant under 39-51-2304, MCA.  For the purposes of this subsection rule, a "substantial amount" of suitable work means full-time work, except when the department authorizes a claimant is limited to receive benefits while seeking less than full part-time work due to a personal medical condition and in the following circumstances:

            (a)  the medical condition and the resultant limitation are verified by a licensed and practicing health care provider the department authorized claimant for part-time work pursuant to 39-51-2115, MCA;

            (b)  the majority of the claimant's base period wages were earned in less than full time work to which the claimant was limited due to the personal medical condition; claimant has a physical or mental disability and claimant has submitted to the department an individualized determination of appropriate, less than full-time work hours, as certified and signed by a health care provider.  A claimant with a certified disability may seek a reasonable modification to this rule; or

            (c)  there exists a substantial amount of less than full-time work which is the department determines that the only suitable work for the claimant in the claimant's labor market area is part-time work. ; and

            (d)  the claimant is able to work enough hours in any week at the prevailing rate of pay in the claimant's customary occupation or in an occupation determined by the department to be suitable for the claimant to enable the claimant to earn an amount equal to at least the claimant's weekly benefit amount.

            (3)  A The department shall determine a claimant is not to be available for work within the meaning of 39-51-2104, MCA, if when the claimant:

            (a)  is unwilling or unable willing and able to accept an offer of new suitable work for more than a minimum of three two days in a benefit week if those days are normal days of work in the claimant's customary occupation. or in an occupation determined by the department to be suitable for the claimant under 39-51-2304, MCA, for reasons including, but not limited to:

            (i) lack of transportation;

            (ii) lack of child or other dependent care;

            (iii) incarceration;

            (iv)  vacation; or

            (v) travel;

            (b)  leaves work within four weeks of the intended date of termination specified in a valid notice of termination, as described under ARM 24.11.454A, provided that the leaving was in response to the notice of termination or for other reasons not constituting good cause attributable to the employment, provided that the claimant is not considered to be unavailable for work after the intended date of termination solely by reason of having left work; or

            (c)  is available only for temporary work, unless it is determined by the department that the claimant has good cause for the restriction and there exists a substantial amount of temporary work which is suitable for the claimant in the claimant's labor market area.

            (4)  A The department shall determine a claimant will be considered to be actively seeking work as required by 39‑51‑2104, MCA, if 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; and for the claimant's customary occupation or for an occupation determined by the department to be suitable for the claimant; or

            (b)  not incarcerated for more than two days in a benefit week if those days are normal work days:

            (i)  in the claimant's occupation; or

            (ii)  in a suitable occupation as determined by the department under 39-51-2304, MCA;

            (c)  "union attached," meaning that the claimant is a member in good standing and on the out-of-work list of a labor union that operates an exclusive hiring hall; or

            (d) (c)  "job attached," meaning that the claimant is able and available for full-time work and:

            (i)  claimant is not employed but has a definite or approximate date of hire or recall to insured work at which the worker will be regularly scheduled to work 30 or more hours per week; or

            (ii)  claimant is employed in insured work on a less than full-time basis, but has a reasonable expectation that the work will become full-time.

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

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

            (b)  fails to provide information requested by the department for the proper administration of the claim within eight days of the date of a mailed, faxed, or telephoned request; or

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

            (i)  a self-imposed limitation, such as an unrealistic wage or hour restriction or refusal to travel, that curtails claimant's ability to seek or accept suitable work;

            (ii)  a temporarily disabling health condition that prevents claimant from being able to perform suitable work;

            (iii)  an employer-approved leave of absence, per [NEW RULE II]; or

            (iv)  failure by claimant to actively seek or accept suitable work due to family care-giving obligations, vacation, incarceration, lack of transportation, or any other reason.

 

AUTH:  39-51-301, 39-51-302, MCA

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

 

REASON:  The department is amending this rule to further implement the provisions of the 2009 legislation.  The amendments clarify that persons who are certified by a state or federal authority as disabled are entitled to an individualized evaluation of appropriate hours of work and will not be held to the standard requirements of full or part-time workers.  The proposed amendments further provide that when a claimant refuses an offer of suitable work because the claimant has become ill or temporarily disabled since claimant qualified for benefits, the department will determine claimant to be ineligible to receive benefits until claimant overcomes the illness or disability and is again available for suitable work.  Benefit disqualification due to illness only occurs after claimant actually has refused suitable work.  When no suitable work is offered to a claimant, an ill claimant may continue to receive benefits.

            The amendment is reasonably necessary to eliminate the mandatory ineligibility of persons who leave work earlier than the date set by a notice of termination.  The U.S. Department of Labor analyzed this rule and found this mandatory ineligibility to be contrary to state and federal law because a claimant would be subjected to two benefit denials for the very same work separation.  The amendment reasonably directs the department to investigate the facts and circumstances of all work separations following a notice of termination to determine whether a claimant left work for "good cause," regardless of whether claimant left work before the termination took effect.  The proposed amendment further clarifies the distinct requirements for actively seeking work as both full and part-time workers.

 

            24.11.454A  LEAVING OR DISCHARGE FROM WORK--SUSPENSIONS

            (1)  (a)  When a worker gives a valid notice of leaving work to an employer and is discharged by the employer prior to the intended date of leaving, the worker is considered to have left work as of the intended date of leaving.  The worker's discharge is considered to have been for reasons other than misconduct, provided that the discharge was solely in response to the notice of leaving or for other reasons not constituting misconduct.  To be considered a valid notice of leaving, the notice must be "Valid notice" means a formal, unconditional, specific as to an intended date of leaving, and be communicated by the communication between an individual worker and an employer or authorized agent of an employer that provides notice of the date a worker intends to leave work voluntarily (quit) or notice of the date an employer intends to terminate a worker from employment individual worker to the employer or to an agent of the employer authorized to receive such notices.  If the notice is not valid, the worker will not be considered to have left work, but only to have been discharged for reasons other than misconduct, provided that the discharge was solely in response to the notice of leaving or for other reasons not constituting misconduct.

            (b)  In those instances where a worker attempts to retract a valid notice of leaving and the employer does not accept the retraction, the worker is considered to have left work as of the intended date of leaving.

            (2)  The department applies the following rules to determine the applicable date of separation from employment Separation from employment occurs on the last day worked by an employee.

            (3)  Following a worker's notice of intent to leave work, the department shall impute the reason for the separation in the following manner:

            (a)  When an employer gives a valid notice of termination to a worker and the worker leaves work prior to the intended date of termination, the worker is considered to have been discharged as of the intended date of discharge.  If the period of time between the worker's leaving and the intended date of discharge is four weeks or less, the worker is considered to be unavailable for work during that time as provided in ARM 24.11.452A provided that the worker's leaving was solely in response to the notice of discharge or for other reasons not constituting good cause attributable to the employment.  If the period of time between the worker's leaving and the intended date of discharge is more than four weeks, the worker is considered to have left work as of the date of leaving, provided that the worker's leaving was solely in response to the notice of discharge or for other reasons not constituting good cause attributable to the employment.  To be considered a valid notice of termination, the notice must be formal, unconditional, specific as to the individual worker and as to the intended date of termination, and be communicated to the individual worker by the employer or by an agent of the employer authorized to give such notices.  If the notice is not valid, the worker will not be considered to have been terminated, but only to have left work without good cause attributable to the employment, provided that the leaving was solely in response to the notice of discharge or for other reasons not constituting good cause attributable to the employment. when a worker's notice of intent to leave work is valid, the department shall consider the worker to have left work voluntarily, even if the employer terminates the worker prior to the worker's intended last day as identified by the valid notice;

            (b)  In those instances where an employer attempts to retract a valid notice of termination and the worker does not accept the retraction, the worker is considered to have been terminated as of the intended date of termination. when a worker attempts to retract a valid notice of intent to leave work and the employer does not accept the retraction, the department shall consider the worker to have voluntarily left work; or

            (c)  when a worker's notice of intent to leave work was not valid, the department shall consider the worker to have been discharged by the employer.

            (3) (4)  A worker on temporary layoff who informs the employer of the worker's intention not to return to work following the temporary layoff or who simply does not return to work following the temporary layoff is considered to have left work as of the date the worker would have been recalled to work, provided that work was available in the worker's position at the time the worker would have been recalled. Following an employer's notice of intent to terminate a worker, the department shall impute the reason for the separation in the following manner:

            (a)  when an employer's notice of termination is valid, the department shall consider the worker to have been discharged, regardless of whether the worker left work voluntarily prior to the intended date of termination;

            (b)  when an employer attempts to retract a valid notice of termination and the worker does not accept the retraction, the department shall consider the worker to have been discharged; or

            (c)  when an employer's notice of termination is not valid and the worker left solely in response to the invalid notice, the department shall consider the worker to have left work voluntarily.

            (4) (5)  A worker is considered to have constructively left work The department shall consider a worker to have constructively quit employment in the following circumstances: when the worker committed an act or omission that made it impracticable for the employer to utilize the worker's services and, for that reason, resulted in the worker's discharge, provided that the worker knew or should have known that the act or omission could jeopardize the worker's job and possibly result in discharge.

            (a)  As an example, a worker has constructively quit if the worker accepts employment on specified conditions and the worker fails to meet those conditions through the worker's own fault.  Such conditions may include, but are not limited to, failure to report for work due to incarceration, failing to meet license or permit requirements for employment, or failing to maintain insurability.  These examples are not meant to be exclusive reasons for a constructive quit. when an employer discharges a worker for an act or omission that made it impracticable for the employer to utilize the worker's services and the worker knew or should have known that the act or omission would jeopardize the worker's job and likely result in discharge; or

            (b)  when a worker fails to meet specified conditions of employment, which may include but are not limited to:

            (i)  failure to meet license or permit requirements for employment; or

            (ii)  failure to maintain insurability.

            (5) (6)  The department shall impute the reason for separation from work of limited duration in the following manner:

            (a)  When when a worker accepts work of a agrees to accept employment of limited duration where the duration is established as specified by the employer, or by a client of the employer in the case of a temporary service contractor, the worker is considered the department shall consider the worker to have been laid off due to a lack of work, rather than to have left work, at the end of the duration agreed upon, provided that the worker's separation was due only to the completion of the work or to the expiration of the time allotted for completion of the work. and the last day worked; or

            (b)  When when an employer employs agrees to employ a worker for a limited duration as specified by the worker, the department shall consider the worker is considered to have voluntarily left work, rather than to have been laid off due to a lack of work, at the end of the duration specified by the worker, provided that the worker's separation was due only to the expiration of the duration specified by the worker and that there was continuing work available in the worker's position only when the worker has refused an offer by the employer to continue the same work beyond the limited duration.  In the absence of a valid offer by the employer to continue the same work, the department shall consider the worker to have been laid off due to a lack of work on the last day worked.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2302, 39-51-2303, MCA

 

REASON:  The department determined it is reasonably necessary to amend this rule and eliminate the provisions regarding suspensions.  The department is proposing New Rule IV in this notice to implement Senate Bill 150 and delineate the impact of suspensions upon unemployment insurance benefit claims.

            The department is further amending this rule to clarify that the department will consider a worker to have voluntarily quit when the worker is terminated from employment following delivery of the worker's valid notice of intent to leave work.  The U.S. Department of Labor requested that the department clarify this rule to prevent a claimant from being the subject of two denials of benefits for a single separation (denial for quitting and denial for termination), which is contrary to Montana and federal unemployment insurance laws.

 

            24.11.455  REFUSAL OF WORK  (1) and (1)(a) remain the same.

            (b)  accept an offer of suitable work which the individual is physically able and mentally qualified to perform; or .

            (c)  return to customary self-employment, if any, when directed to do so by the department.

            (2)  When a claimant is authorized by the department to limit a work search to part-time work, the department may not disqualify the claimant for refusing to apply for or accept full-time work but may disqualify the claimant for refusing to apply for or accept suitable part-time work.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2115, 39-51-2304, MCA

 

REASON:  In response to a specific request by the U.S. Department of Labor, the department is amending this rule to eliminate the implication that the department may require an individual to return to self-employment.  While the department may require a claimant to apply for and accept an offer of insured work, the department lacks the authority to direct a worker to return to uninsured, self-employed status.  The rule is also amended to further implement House Bill 645, by clarifying that claimants authorized to seek part-time work will not be disqualified from receiving benefits when the worker fails to seek or accept an offer of full-time work.

 

            24.11.457  LEAVING WORK WITH OR WITHOUT GOOD CAUSE ATTRIBUTABLE TO THE EMPLOYMENT  (1)  A The department shall determine a claimant left work with good cause attributable to employment if when:

            (a)  the claimant:

            (i)  had compelling reasons arising from the work environment that caused the claimant to leave; and the claimant:

            (ii) (i)  attempted to correct the problem(s) in the work environment; and

            (iii) (ii)  informed the employer of the problem(s) and gave the employer reasonable opportunity to correct it the problem(s); or

            (b)  the claimant left work which that the department determines to be unsuitable under 39-51-2304, MCA. , and [NEW RULE VIII]; or  For the purpose of this rule, work is not unsuitable if the claimant worked in that same occupation during more than six weeks from the beginning of the base period through the date of leaving.  However, the mere fact that the claimant worked in an occupation during six weeks or less does not, by itself, mean that the occupation is "unsuitable".

            (c)  the claimant left work within 30 days of returning to state-approved training, in accordance with ARM 24.11.475.

            (2) through (2)(b) remain the same.

            (c)  a condition underlying a workers' compensation or occupational disease claim for which liability has been accepted by a workers' compensation insurer.  If the condition is one for which liability has not been accepted by the workers' compensation insurer, the department will shall independently evaluate the condition to determine whether the condition appears to result from the claimant's employment.  If the condition appears to the satisfaction of the unemployment insurance division department to be work related, the department shall consider the condition will be considered to provide a compelling reason for the purpose of this rule. leaving work;  However, upon recovery from that condition, as certified by a licensed and practicing health care provider, the claimant must offer to return to work or be disqualified for leaving work without good cause attributable to the employment, unless there is substantial evidence concerning the nature, severity, duration, and prognosis of the illness or injury, verified by a licensed and practicing health care provider, to establish that the claimant's health would be substantially jeopardized by returning to the claimant's regular or comparable suitable work; or

            (d)  remains the same.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2302, 39-51-2304, 39-51-2307, MCA

 

REASON:  The department is amending (1)(b) to remove the arbitrary and confusing provision that work is "not unsuitable" if a claimant worked in that occupation for six weeks during the base period.  The amended rule will instead reference proposed New Rule VIII, which fully delineates the department's criteria for determining suitable work.  It is reasonably necessary to further amend (1)(b) and provide a reasonable time period during which a claimant may leave work for "good cause" when enrolled in a state-approved training program.  This amendment further implements Senate Bill 150 and comports with federal guidance requiring states to provide ample time for claimants to prepare for training (U.S. Department of Labor's Training, Employment and Guidance Letter 2-09, dated August 26, 2009).

            The department is amending (2)(c) to delete the unreasonable requirement that a worker (injured or contracted an occupational disease on the job) must offer to return to that same job after partial or full recovery.  The department concluded the requirement is unnecessary when a claimant has been released to work with a permanent partial disability.  All claimants must seek suitable work, which may or may not include a claimant's previous employment, and proposed New Rule VIII will guide the department in determining what constitutes suitable work for an injured or ill worker who is released to work by a health care provider.

 

            24.11.458  SELF-EMPLOYMENT  (1)  A The department may determine a claimant who is engaged in self-employment will not be determined to be ineligible eligible for benefits under 39-51-2304 39-51-2115, MCA, or ARM 24.11.452A solely by reason of the claimant's time commitment to the self-employment venture provided that when the claimant is able, available for, and actively seeking full-time suitable insured work and is willing to accept an offer of or a referral to suitable full-time insured work, even if it would be necessary for acceptance of the offer of work would require the claimant to forego all or a part of the self-employment venture in order to accept the offer or referral.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-2101, 39-51-2115, 39-51-2304, MCA

 

REASON:  The department is amending this rule to implement House Bill 645 and present the rule positively, rather than using a double negative, to more clearly explain the unemployment insurance division processes.  Due to this change, the department is also deleting the reference to 39-51-2304, MCA, which delineates the circumstances for benefit disqualification.

 

            24.11.475  APPROVAL OF TRAINING BY THE DEPARTMENT

            (1)  Section 39-51-2307(1), MCA, denies benefits to individuals who do not have a genuine attachment to the labor market because of their regular secondary school attendance or full time attendance at an institution of higher education in the pursuit of a bachelor's or higher degree or in a program of post graduate or post doctoral studies.

            (2) (1) Section 39-51-2307(2), MCA, allows the The department to may pay benefits to individuals a claimant engaged in other types of a state-approved training program which as determined by the department, represent for those individuals the most reasonable and appropriate approach to reemployment in stable employment which utilizes their  skills and abilities to the greatest possible degree.

            (3) (2) Training that may be approved under this section includes The department shall consider the curriculum, facilities, staff and other essentials necessary to insure that a training program has the capacity to achieve the training program's objectives, including appropriate standards and practices regarding satisfactory attendance and performance of trainees.  State-approved training programs may include, but are not limited to, the following:

            (a)  job search workshops; and

            (b)  vocational or technical training, including basic education required as a prerequisite to such training; , conducted as part of a program designed to prepare individuals for gainful employment in recognized occupations and in new and emerging occupations.  Short-term

            (c)  vocationally directed academic courses; may also be approved.

            (4) The department will approve training for any claimant under the following conditions:

            (a) (d)  The job training facility programs authorized under the Workforce Investment Act of 1998 is approved by the department and by the agency of state government authorized to approve training facilities with respect to curriculum, facilities, staff and other essentials necessary to achieve the training objective, including appropriate standards and practices as to satisfactory attendance and performance of trainees;

            (b) (e)  The training programs designed to upgrade claimant's skills are in need of upgrading due to meet technological or other advances in the claimant's occupational field; or

            (f)  training programs designed to improve claimant's employability by enhancing or present or impending demands for the claimant's skills are minimal or declining and are not likely to improve;

            (c)  The training course relates to an occupation or skill for which there are, or are expected to be in the immediate future, reasonable employment opportunities in any labor market area in the state in which the claimant intends to seek work;

            (d)  The claimant's has aptitudes or skills for a demand occupation which can be usefully supplemented by the training; and

            (e)  In general, the claimant's present occupational situation is one which could be improved by the training.

            (5)  On a week-to-week basis a trainee meeting the foregoing qualifications may continue to receive benefits until benefits are exhausted if the training facility certifies that the claimant is enrolled in and satisfactorily pursuing the training course.

            (3)  The department shall consider the following criteria when determining claimant's qualification for training benefits:

            (a)  claimant's basic work skills, the lack of which may be demonstrated by a history of repeated periods of unemployment;

            (b)  claimant's history of recent employment that paid federal or state minimum wage;

            (c)  claimant's lack of formal vocational training or lack of a marketable degree from an educational institution of higher learning;

            (d)  the diminished value of claimant's skills in the labor market due to changes in technology or major reductions in the industry in which claimant was employed;

            (e)  claimant's inability to work in the claimant's customary occupation due to documented, long-term physical or mental disabilities;

            (f)  claimant's reasonable expectation that training will result in higher wages and more secure employment; and

            (g)  claimant's reasonable expectation for successful completion of the training program, as demonstrated by:

            (i)  claimant's interest in and aptitude for the course of study to be pursued; and

            (ii)  claimant's willingness to commit sufficient time to ensure completion of the training.

            (4)  For up to 30 days prior to the start of a state-approved training program, the department shall consider a claimant to be in training after the department approves the training application, even though training may not have started.

            (5)  The department shall not disqualify a claimant under the provisions of 39-51-2302, MCA, when the claimant voluntarily leaves employment within 30 days of resuming participation in a state-approved training program.

            (6)  Upon the department's written approval of a claimant for a state-approved training program, the department shall notify the claimant of the availability of additional training benefits, pursuant to [New Rule I].

            (7)  The department shall not charge an experience-rated employer's account, as defined by 39-51-1214, MCA, for benefits paid to a claimant who is qualified to receive benefits under this rule.

 

AUTH  39-51-301, 39-51-302, MCA

IMP:  39-51-2116, 39-51-2307, 39-51-2401, MCA

 

REASON:  It is reasonably necessary to amend this rule to further implement the 2009 legislation regarding unemployment insurance benefits for claimants enrolled and participating in state-approved training programs and to comply with the U.S. Department of Labor's Training, Employment and Guidance Letter 2-09 dated August 26, 2009.  The amendments also align with proposed New Rule II which delineates a state-approved training program.

 

            24.11.616  BENEFIT OVERPAYMENTS--CREDITING EMPLOYER ACCOUNTS  (1) and (2) remain the same.

            (3)  Effective April 1, 2001, charges Charges to the accounts of governmental entities and employers electing to reimburse the fund will be credited for benefit overpayments in the same manner as experience-rated employers.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-1110, MCA

 

            24.11.1207  WAIVER OF RECOVERY OF BENEFIT OVERPAYMENTS

            (1) through (1)(a)(v) remain the same.

            (b)  "average monthly cash flow" means six times the amount obtained by subtracting average monthly expenses from average monthly income, even if the amount is less than zero.

            (c)  "average monthly expenses" means the amount of all necessary and allowed expenses, converted to a monthly basis if not incurred in that manner, incurred by the claimant at the time of the claimant's request for a financial hardship waiver.

            (d)  "average monthly income" means the amount of all income, converted to a monthly basis if not paid in that manner, accruing to the claimant at the time of the claimant's request for a financial hardship waiver.

            (e) through (f)(ii) remain the same.

            (iii)  groceries and household supplies for a primary residence, but not to exceed $300 per month for the claimant and $100 per month for each of the claimant's dependents that reside with the claimant in the claimant's household;

            (iv) through (viii) remain the same.

            (2)  Not sooner than six months following the date the Upon written notice from the department that claimant was given notice of the received an overpayment, a claimant may submit a written request asking the department to waive recovery of a the benefit overpayment as provided in 39-51-3206, MCA.

            (3)  The department may waive recovery of all or a portion of a benefit overpayment if: that occurred through no fault of the claimant and involved no fraud

            (a)  the benefit overpayment is not a fraudulent benefit overpayment as defined in ARM 24.11.468(1); ARM 24.11.1209, when one or more of the following circumstances exist:

            (b) (a)  it is shown to the satisfaction of the department that recovery of the benefit overpayment would cause a long-term financial hardship on the claimant, as outlined in (5); and

            (c) (b)  the benefit overpayment was not the result of a reversal, modification, or revision on appeal of an earlier determination, redetermination, or decision which allowed the payment of benefits, unless the benefit overpayment was the result of a an incorrect monetary determination by the department that was revised due to minor errors in employer reporting; error or clerical error on the part of the department or an agent of the department.

            (c)  benefit overpayment resulted from department failure to consider relevant written documentation provided in a timely manner by a claimant, employer, or third party prior to the department's determination or redetermination; or

            (d)  benefit overpayment resulted from claimant's reliance upon erroneous written information provided by department.

            (4)  Benefit overpayment does not constitute department error when the implementation of new state or federal law requires the department to revise a claimant's state benefit claim or monetary determination and to reduce or deny benefits retroactively.

            (4) (5)  No sooner than six months after a notice of benefit overpayment, claimant may seek a financial hardship waiver by providing specific financial information to the department.  The department shall determine In determining whether recovery of the benefit overpayment would cause a long-term financial hardship on the claimant, as provided in (3)(b)(a), using the following process:  the department takes into account the claimant's average household cash flow and net value of household assets.

            (a)  The the claimant requesting a financial hardship waiver is required to shall provide the department documentation of monthly household income, assets, and expenses on a form provided by the department and may be required to provide further information if needed for the department's determination.  The department may require verification of any financial information provided.  The department may also disallow or adjust any claimed expenses that it the department deems to be unreasonably excessive.

            (b)  Recovery the department shall determine recovery of the benefit overpayment will be deemed to cause a long-term financial hardship on the claimant if when the department finds:

            (i)  that the sum of the claimant's average monthly household cash flow; and

            (ii)  the net value of the claimant's household assets equals an amount less than the identified amount of the benefit overpayment in question; and

            (iii) (ii)  finds no evidence demonstrates that the sum of claimant's average household monthly cash flow or the and net value of the claimant's household assets are, within 12 months preceding the date of the claimant's request for waiver, likely to increase in an amount that would cause the sum of the two to exceed the amount of the benefit overpayment within 12 months of the date of the claimant's request for waiver.

            (5) (6)  After consideration of a claimant's request for waiver, the department shall notifies notify the claimant of it's the decision either to grant or to deny the request and of the claimant's right to appeal under 39-51-2402 and 39-51-2403, MCA.

            (6) (7)  A claimant whose request for a financial hardship waiver has been denied only by reason of the provisions of (3)(b) may submit a new request for waiver if when the claimant's financial situation has significantly changed since the denied request was filed.

            (7) (8)  Repayment of a benefit overpayment by offset of benefits shall continues during from the time a date claimant's written request for waiver is under consideration received by the department and until a determination either allowing or denying the claimant's request for waiver, including any appeals the department's decision, becomes final.  If When the final decision approves claimant's a request for waiver is allowed, the department shall reimburse claimant is reimbursed for any repayments collected after the date the claimant's written request for waiver was received by the department.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-3206, MCA

 

REASON:  The department is amending this rule to implement Senate Bill 150 regarding waiver of benefit overpayment when the overpayment is caused by department error and clarify the waiver prerequisite that the benefit overpayment occurred through no fault of the claimant and involved no fraud.  To guide the department in determining whether benefit overpayment would result in long-term financial hardship for a claimant, the department is amending this rule to require the department to project the claimant's 12-month future financial status from the date the claimant requested a waiver.

 

            24.11.2407  DETERMINATION OF INDEPENDENT CONTACTORS – DEPARTMENT PROCEDURES  (1)  As provided in 39-51-204, MCA, an individual found to be an independent contractor pursuant to 39-71-417, MCA, is considered to be an independent contractor for the purposes of unemployment insurance.  The If an individual is not required to obtain an independent contractor exemption certificate  because the individual regularly and customarily performs services at his or her own fixed business location, or if an individual is exempt from 39-71-417, MCA, by other sections of the workers' compensation act, the department shall apply the guidance set out in ARM Title 24, chapter 35, subchapters 2 and 3 and use the following two-part test to determine whether an individual is an independent contractor or an employee:

            (a) and (b) remain the same.

            (2)  When evaluating the status of an individual who possesses an independent contractor exemption certificate, the department shall apply the two-part test in (1)(a) and (b). The department may recommend the suspension of an individual's independent contractor exemption certificate for a specific business relationship when the department determines that an employing unit exerts or retains a right of control to the degree that the certificate holder fails to qualify for independent contractor designation.  The department may recommend certificate revocation when the department determines the certificate holder has violated the provisions of 39-71-418, MCA.

            (2) through (6) remain the same, but are renumbered (3) through (7).

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-201, 39-51-204, 39-51-1109, 39-51-2402, 39-71-418, MCA

 

REASON:  The department is amending this rule to implement and clarify 39-51-204, MCA, regarding unemployment insurance benefits for independent contractors. It is reasonably necessary to amend this rule and clarify that when an individual is exempt from the Workers' Compensation Act (Act) by the terms of the Act itself, the unemployment insurance division shall use the common law test set forth in (1) to determine employment status.  The amendments will provide clear guidance to unemployment insurance auditors evaluating workers' employment status to ensure consistency and accuracy in administering the unemployment insurance programs, including recommendation of suspension or revocation of an independent contractor exemption certificate.

 

            24.11.2511  PAYMENTS THAT ARE NOT WAGES--EMPLOYEE EXPENSES  (1) through (1)(e)(ii) remain the same.

            (iii)  for drivers utilized or employed by a motor carrier with intrastate operating authority, meal and lodging expenses may be reimbursed by either of the methods provided in subsection (1)(e)(i) or (ii) for each calendar day the driver is on travel status;

            (iv)  for drivers utilized or employed by a motor carrier with interstate operating authority, meal and lodging expenses may be reimbursed by the methods provided in subsection (1)(e)(i) or (ii), or by a flat rate not to exceed $30.00 the average of in-state and out-of state meal allowances plus nonreceipted lodging under 2-18-501, MCA, for each calendar day the driver is on travel status; or

            (v) 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 respond to suggestions by members of the trucking industry to more accurately reflect the current meal and lodging reimbursements paid to truckers operating in Montana, Canada, and the continental United States.

 

            24.11.2515  PAYMENTS THAT ARE NOT WAGES--JUROR FEES, INSURANCE PREMIUMS, ANNUITIES, DIRECTOR AND PARTNERSHIP FEES

            (1) through (5) remain the same.

            (6)  The department shall consider payments made by an employer to an employee who is called to active duty in the military services for more than 30 days, when the payments represent a replacement of part or all of the wages the employee would have received for performing services for the employer, to be military differential pay and not wages for purposes of Title 39, chapter 51, MCA.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-201, 39-51-1103, MCA

 

REASON:  The department is amending this rule to address situations where some employers supplement the wages of employees on active duty by paying the difference between the military pay or wages and the employee's prior civilian wage or a higher wage amount to ensure the employee and his/her family do not suffer financial hardship during the employee's active duty service.  While receiving such payments, the employee is not performing a service for the employer and therefore, the payments do not meet the statutory definition of wages.  The department proposes this amendment to clarify the nonwage status of payments to active duty military personnel, which currently occurs with some frequency in Montana due to the increased active-duty assignment of National Guard members.

 

            5.  The proposed new rules provide as follows:

 

            NEW RULE I  SUBSTITUTE BOARD MEMBER  (1)  In matters when one of the three board members is unable to attend and participate in proceedings and decisions of a regularly scheduled Board of Labor Appeals meeting, the substitute board member may serve in that board member's place for the entire board meeting as authorized by 2-15-1704, MCA.

            (2)  The substitute board member may not serve in matters when one of the three board members is unable to participate in a proceeding and decision of a specific appeal due to a conflict of interest and in these matters two members is a majority of the membership to constitute a quorum to do business and a favorable vote by the majority is required to adopt any resolution, motion, or other decision as provided by 2-15-124, MCA.  If the two members are unable to reach a favorable vote, the most recently issued decision will stand pursuant to 39-51-2405, MCA.

 

AUTH:  2-4-201, MCA

IMP:     2-15-124, 2-15-1704, 39-51-301, 39-51-2405, MCA

 

REASON:  The board is adopting this new rule to further implement SB 150 and differentiate between a substitute board member's participation in a board meeting versus in a specific appeal case.  This new rule also clarifies that when a board member recuses himself or herself from a specific appeal, two members will still constitute a majority, and that a third (substitute board member) must decide cases where two board members have a split decision.

 

            NEW RULE II  ADDITIONAL TRAINING BENEFITS  (1)  "Additional training benefits" are unemployment benefits paid to a claimant who meets the criteria set forth by 39-51-2116, MCA, and is enrolled in a state-approved training program.  Additional training benefits become available after claimant has exhausted all regular training benefits approved under ARM 24.11.475.

            (2)  "State-approved training program" means a program the department determines is reasonably expected to lead to employment for a claimant, as defined by ARM 24.11.475.

            (3)  The department shall notify claimants of the availability of additional training benefits at the time the department approves claimants' initial unemployment benefits and regular training benefit under ARM 24.11.475.  The department encourages claimants to apply to the department for additional training benefits as soon as possible during claimants' benefit year.

            (4)  To qualify for additional training benefits, claimant must be enrolled in a state-approved training program prior to the end of the benefit year established by the claimant's valid unemployment claim, as defined in ARM 24.11.440.  After the department approves claimant's additional training application, claimant may be considered "in training" for up to 30 days before the start of actual training.

            (5)  To receive additional training benefits, claimant must remain in good standing with the state-approved training program.  The department may require reasonable evidence of claimant's satisfactory training progress, such as reports from training providers and evidence of attendance at training sessions.

            (6)  The department shall pay additional training benefits for each week that claimant attends training, which include:

            (a)  breaks within training schedule of less than 30 days; and

            (b)  partial weeks consisting of at least one day but less than five days of training in one week.

            (7)  Additional training benefits may not exceed an amount equal to 26 times the claimant's regular weekly benefit amount.

            (8)  Additional training benefits terminate when the following occurs:

            (a)  claimant completes the training program;

            (b)  claimant exhausts the maximum additional training benefits payable;

            (c)  claimant leaves or is expelled from the training program; or

            (d)  claimant becomes eligible to file a new, regular unemployment benefits claim at the end of the benefit year.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2116, MCA

 

REASON:  The department is proposing New Rule II to implement House Bill 645.  The U.S. Department of Labor authorized states to pay additional unemployment benefits to individuals who participate in state-approved training programs and have exhausted their state-funded unemployment insurance benefits.  To distinguish these additional benefits from regular unemployment insurance benefits paid during training, this new rule defines and applies the term "additional training benefits."  The proposed rule reasonably requires the department to notify all individuals of the availability of training benefits at the time the initial unemployment benefit claim is approved and again when regular training benefits are approved, pursuant to ARM 24.11.475.  This new rule also incorporates the limitation set by federal law on the total additional training benefits an individual may receive, which may not exceed 26 times the amount of a claimant's regular weekly unemployment benefit.

            The proposed rule reasonably allows a claimant who has applied for and been accepted in a training program to receive training benefits for up to 30 days prior to the start of the program to help support claimants preparing for training, which may involve relocation.  Similarly, this new rule allow claimants to collect additional training benefits during breaks in the training schedule of less than 30 days, so short holiday or mid-term breaks will not interrupt receipt of benefits, but longer breaks such as summer vacation will not be supported by additional training benefits.  This rule also clarifies that a claimant will qualify for training benefits for a partial week of ongoing training that includes at least one day of formal training.  These specific provisions are reasonable and necessary to streamline administrative oversight and support claimants throughout the training process without undue financial stress.

 

            NEW RULE III  LEAVE OF ABSENCE  (1)  A worker is not eligible for benefits while on an employer-approved leave of absence until the leave of absence ends or the worker offers to return to work, whichever occurs first.

            (2)  When a separation from employment occurs during an employer-approved leave of absence or after the agreed return date, the department shall determine the reasons for the separation based on evidence provided by the claimant, the employer, and other sources.  The department's determination dictates whether an otherwise qualified claimant is eligible for benefits.

            (3)  When a worker does not return to work upon the agreed return date, the department shall determine whether the claimant voluntarily left work or was discharged from employment.  If discharged from employment, the department shall determine whether the discharge occurred for misconduct.

            (4)  When a worker returns to work upon the agreed return date or offers to return to work during an employer-approved leave of absence, whichever occurs first, and finds suitable work is not available, the department shall determine whether the claimant is eligible for benefits due to a temporary or permanent lay-off.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2112, MCA

 

REASON:  Proposed New Rule III is reasonably necessary to implement Senate  Bill 150 by clarifying that an individual on an employer-approved leave of absence from work is not eligible for unemployment benefits during the leave of absence period.  This new rule further provides that if an individual offers to return to work – before or after the agreed date of return – the individual becomes eligible for benefits if the employer does not accept the offer of return.

 

            NEW RULE IV  SUSPENSION  (1)  A worker is ineligible for benefits during the first two weeks of an unpaid suspension or until the unpaid suspension ends, whichever occurs first.  The department shall consider a worker who receives a regular rate of pay during a suspension to be employed.

            (2)  When an unpaid suspension remains in effect for two weeks, the department shall consider the employer to have discharged the worker.

            (3)  The department shall determine whether the employer discharged the claimant for misconduct based on evidence provided by the employer, the claimant, and other sources.  When the department determines claimant was discharged for reasons other than misconduct, an otherwise qualified individual is eligible for benefits.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2101, 39-51-2113, 39-51-2202, 39-51-2402, MCA

 

REASON: New Rule IV is reasonable and necessary to implement  Senate Bill 150 and effectuate the two week statutory limitation on benefit ineligibility for individuals on unpaid suspension.  This new rule addresses the recurrent practice of some employers to place employees on unpaid suspensions for indefinite periods of time by establishing a two-week time limit for an employer to resolve a suspension and clarifying when the department will consider workers to have been discharged.

 

            NEW RULE V  CONFIDENTIAL INFORMATION  (1)  Pursuant to the requirements of 20 CFR Part 603, the department shall protect personally identifying information of claimants and employers.  Personally identifying information is data that reveals or that could foreseeably be combined with other publicly available information to reveal the name or an identifying particular about an individual, employer, or employing unit.

            (2)  The department shall bar the disclosure of personally identifying information, except as disclosure is permitted by the informed consent of the identified individual(s) or is required under federal or state law to a public official for use in the performance of official duties or pursuant to a valid subpoena or interagency cooperative agreement.

            (3)  For the purposes of this rule:

            (a)  "public official" means an official, agency, or public entity within the executive branch of federal, state, or local government with responsibility for administering or enforcing the law;

            (b)  "performance of official duties" means the administration or enforcement of law or the execution of the official responsibilities of a federal, state, or local elected official, and includes research related to unemployment insurance law administered by the Legislature or other public officials;

            (c)  "valid subpoena" means a compulsory legal process by a federal, state, or local official, other than a clerk of court on behalf of a litigant, with authority to obtain personally identifying unemployment insurance information by subpoena under federal or state law; and

            (d)  "interagency cooperative agreement" means a written data-sharing agreement between the department and a public official.

            (4)  The department shall require a recipient of personally identifying information to execute a confidentiality agreement with the department to ensure appropriate safeguards against disclosure are maintained, as specified in state and federal law.  The department shall require a public official who receives personally identifying information to safeguard the information from redisclosure, unless redisclosure is specifically authorized in writing by the department.

            (5)  The department shall charge for the cost of any disclosure to a third party other than an "interested party" pursuant to ARM 24.11.207.  Costs must be paid in full prior to the release of information.  When the disclosure consists of no more than two pages of hard copy information and involves no more than one-half hour of staff time, the department shall make no charge.

            (6)  Any unauthorized release of protected information will be prosecuted by the department, pursuant to 39-51-603, MCA.

 

AUTH:  39-51-301, 39-51-302, 39-51-603, MCA

IMP:     39-51-501, 39-51-603, MCA

 

REASON:  The department is proposing New Rule V to implement Senate Bill 150  which requires that the department adopt rules providing for confidentiality of unemployment insurance information in compliance with the U.S. Department of Labor's (USDOL) directive that states adopt more stringent standards for the release of confidential information to authorized parties.  The USDOL regulation (20 CFR 603) requires state unemployment insurance agencies to be reimbursed for time spent in retrieving and delivering confidential information to an authorized party.

 

            NEW RULE VI  CLAIMANT AGENT DESIGNATION  (1)  A claimant may designate another person to serve as claimant's agent to communicate with the department on the claimant's behalf.  Claimant shall notify the department of the level of authority conferred by claimant on the agent:

            (a)  Level 1 designation allows the agent to provide information to the department related to the claim for benefits.  Agent may respond to department requests for information by telephone or in writing.  Agent may request a redetermination or appeal on claimant's behalf;

            (b)  Level 2 designation allows the agent to file a new claim, reactivate an inactive claim, or file continued claim certifications on the claimant's behalf.  Claimant must provide the agent with claimant's Personal Identification Number to allow the agent to access claimant's account; or

            (c)  Level 3 designation grants the agent authority to act on claimant's behalf as outlined by both (a) and (b).

            (2)  Before an agent may act on a claimant's behalf, the claimant must complete, sign, and return the agent designation form to the department.  The agent designation form specifies the limits of the agent's authority and the time period covered by the designation.

            (3)  Any action taken or information provided by the agent has the same effect as an action taken or information provided by the claimant.

            (4)  Claimant may revoke or renew agent designation or alter the level of authorization at any time by notifying the department in writing.  Agent designation expires after one year or when a new claim is filed, whichever occurs first.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-3201, MCA

 

REASON:  New Rule VI is reasonably necessary to implement Senate Bill 150 which authorized a claimant to designate another person as an agent and represent the claimant in matters concerning the administration of claimant's unemployment insurance benefits.  This new rule delineates three levels of agent representation to allow a claimant discretion in granting authority to an agent.  This new rule also limits the maximum duration of an agent designation to one year and authorizes revocation, renewal, or redesignation of an agent by the claimant.

 

             NEW RULE VII  CUSTOMARY HOURS  (1)  The department shall determine the customary hours of work per week for each claimant during the base period of the claim.  Customary hours may be established by:

            (a)  contractual agreement between the employer and the claimant;

            (b)  verbal or written statement by the employer to the claimant at the time of hire or as modified by the employer during the period of employment; or

            (c)  a department determination according to the following calculations:

            (i)  for claimants willing or required to seek and accept full-time work, the department shall add the hours worked during each week of work in the base period for all employers and divide by the number of weeks of work in the base period;

            (ii)  for claimants authorized to seek part-time work, the department shall add the hours worked during each week of part-time work in the base period for all employers and divide by the number of weeks of part-time work in the base period; and

            (iii)  when the computation results in a fraction or portion of a whole number, the department shall round down the result to the lower whole number to determine claimant's customary hours of work.

            (2)  When a claimant files for a week of benefits and reports hours of work equal to or greater than claimant's customary hours, the department shall determine that no unemployment exists and pay no benefits for the week.

            (3)  Failure to accurately report hours and gross wages of insured work may subject the claimant to the penalties of Title 39, chapter 51, part 32, MCA.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2101, 39-51-2115, MCA

 

REASON:  New Rule VII is necessary to implement Senate Bill 150 and address a U.S. Department of Labor (USDOL) directive that distinguishes individuals who experience unemployment and who may qualify for unemployment benefits, from those having only wage loss who would not qualify.

 

            NEW RULE VIII  SUITABLE WORK  (1)  Claimant shall make a good faith effort to apply for suitable work and shall accept an offer of suitable work.  The department shall determine what constitutes suitable work for the claimant and shall expand the definition of suitable work as the period of claimant's unemployment increases.

            (2)  The department shall allow claimant reasonable time to seek claimant's customary occupation or comparable work to preserve claimant's highest use of skills and earning potential.  One-half of the period of claimant's benefit entitlement constitutes a reasonable time.

            (3)  To determine whether employment constitutes suitable work, the department shall consider factors including but not limited to:

            (a)  prospects for reemployment in claimant's customary occupation or comparable work;

            (b)  claimant's prior earnings and length of claimant's current unemployment:

            (i)  during the first half of the benefit entitlement period, work is suitable when it pays the prevailing wage in the locality for claimant's customary occupation or comparable work;

            (ii)  during the second half of the benefit entitlement period, work is suitable when it pays 75% of claimant's earnings in prior insured work in claimant's customary occupation; or

            (iii)  work is not suitable when the offered wage is substantially less favorable to the claimant than the prevailing wage for similar work in the locality;

            (c)  claimant's prior work experience, training, education, and occupational licensure:

            (i)  work in related occupations becomes suitable when claimant has no realistic expectation of obtaining employment in an occupation that utilizes claimant's highest skill level; and

            (ii)  during the second half of the benefit entitlement period, suitable work may be in any occupation that claimant worked during the base period or any work claimant can reasonably perform consistent with claimant's past experience, training, and skills;

            (d)  degree of risk to the claimant's health and safety:

            (i)  work is not suitable if it presents a risk to claimant's physical or mental health that is greater than the usual risks associated with claimant's customary occupation; or

            (ii)  work is not suitable if claimant would be required to perform tasks that would cause or substantially aggravate claimant's health problems;

            (e)  claimant's physical fitness and ability to perform work:

            (i)  claimant must be able to perform suitable work; and

            (ii)  work beyond claimant's capacity to perform is not suitable;

            (f)  working conditions:

            (i)  work is not suitable that does not pay at least the state or federal minimum wage;

            (ii)  work is not suitable when the provisions of an employment agreement or physical conditions of work are substantially less favorable than those of similar work in the locality;

            (iii)  suitable work corresponds with the customary hours of work for similar work in the locality or the hours worked by claimant worked during the base period;

            (iv)  claimant's convenience or preference for certain work hours does not make otherwise suitable work not suitable;

            (v)  work may not be suitable when fringe benefits offered, including group health insurance, life insurance, paid personal time off, retirement plans, or severance pay are substantially less favorable than benefits received by claimant during the base period or substantially less than fringe benefits provided for similar work in the locality, whichever is lower;

            (vi)  work is not suitable when working conditions violate any state or federal law, or the job opening is due to a strike, lockout, or labor dispute; or

            (vii)  work is not suitable when, as a condition of being employed, claimant is required to join a company union or to resign from or refrain from joining any bona fide labor organization;

            (g)  part-time work:

            (i)  when the department has authorized claimant to seek part-time work pursuant to 39-51-2115, MCA, part-time work at the hours authorized by the department may be suitable; or

            (ii)  when claimant has no recent history of part-time work, such work may be suitable when claimant has been unemployed for an extended period and has no immediate prospect of full-time work;

            (h)  religious or moral convictions:

            (i)  claimant may raise a conscientious objection to the department when otherwise suitable work conflicts with a sincerely held religious or moral conviction; and

            (ii)  claimant bears the burden to show that a conscientious objection to otherwise suitable work is held in good faith; or

            (i)  distance of available work from the claimant's residence.

            (4)  Work that was once suitable for claimant may become unsuitable due to circumstances beyond the claimant's or employer's control.  The department shall consider previously suitable work as not suitable when:

            (a)  claimant has made a good faith effort to comply with licensing requirements or governing regulations but has failed to pass the required course(s) or licensing exam;

            (b)  claimant is unable to meet certain occupational requirements due to claimant's physical or mental condition; or

            (c)  employer has unreasonably altered hours, terms of employment, working conditions, or claimant's wage by reducing the wage by 20% or more, as described by ARM 24.11.457.

            (5)  Claimant may appeal a department determination of suitable work pursuant to 39-51-2402 and 39-51-2403, MCA.  Claimant bears the burden of proof that work is not suitable.

           

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-2101, 39-51-2112, 39-51-2115, 39-51-2304, MCA

 

REASON:  The department is proposing New Rule VIII to implement Senate Bill 150 and clearly delineate what qualifies as suitable work, which is a primary component in the department's determination of a claimant's continuing eligibility for benefits during a claim period.  The department has historically relied upon the U.S. Department of Labor's technical papers for guidance in adjudicating suitable work determinations, but concluded that New Rule VIII will provide a more comprehensive definition of suitable work and set forth the criteria for adjudicating continuing benefit eligibility in a more accessible format than the technical papers.

 

            NEW RULE IX  REASONABLE WAGES  (1)  A business filing income taxes as a corporation shall accurately report compensation for services performed by a corporate officer, LLC member, or shareholder employee as wages for the purpose of unemployment insurance taxation.

            (2)  The department shall use the following factors to evaluate whether reasonable compensation for services performed by a corporate officer, LLC member, or shareholder employee has been reported to the department as wages:

            (a)  qualifications and business role of corporate officer, LLC member, or shareholder employee, including but not limited to:

            (i)  the amount of time devoted to the business;

            (ii)  position and responsibility within the business; and

            (iii)  duties performed for business;

            (b)  compensation paid to other similarly situated employees of the business and the business entity's wage policy;

            (c)  a review of the State Occupational Employment and Wage Estimates for the pertinent occupation; and

            (d)  nature, size, and location of business, including:

            (i)  complexity of the business;

            (ii)  financial condition of the business including, but not limited to, the relationship of the compensation to gross and net business income, cash flows, total sales or revenues, and net income adjusted for non cash items such as depreciation, depletion, and amortization; and

            (iii)  cost of living and general economic conditions in the business's locale.

            (3)  The department shall calculate the actual remuneration received by a corporate officer, LLC member, or shareholder employee by examining payments including, but not limited to, the following:

            (a)  direct payments by check, electronic transfer, or cash;

            (b)  payments to any family member who did not perform services for the payment;

            (c)  payments classified as gifts, distributions of profit, dividends, owner draws or contributions, and return of capital;

            (d)  distribution of property or services paid for by the corporation;

            (e)  payments for personal expenses including, but not limited to direct payments for personal debts, payments of credit card bills that include personal purchases, and use of company vehicles for personal use;

            (f)  payments classified as loans for which there is no evidence of a repayment schedule or the payment schedule does not impose a reasonable interest rate;

            (g)  payments for rent in excess of market value; and

            (h)  the market value of any remuneration paid in any medium other than cash.

            (4)  The department shall compare the reported wages to actual remuneration received by a corporate officer, LLC member, or shareholder employee and consider the factors enumerated by (2) to determine a reasonable compensation for services performed.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-201, 39-51-203, 39-51-602, 39-51-603, 39-51-1103, 39-51-1108, MCA

 

REASON:  The department is proposing New Rule IX to address the unrealistically low wages declared by some corporations and limited liability companies for corporate officers, shareholder employees, and LLC members for the purpose of unemployment insurance taxation.  The department has discovered that some corporate officers and shareholder employees enjoy actual financial compensation considerably in excess of declared wages.  Specifying the criteria for a more accurate determination of wages in New Rule IX will help to ensure that corporate entities pay a fair share of unemployment taxes and that unemployment benefits of officers, shareholder employees, and LLC members are based on accurate reporting of remuneration.

 

            NEW RULE X  REACTIVATED EMPLOYER RATES  (1)  The department shall reactivate the unemployment insurance account of an employer who begins employing workers within five years from the last date of employment.  The department shall assign the employer a contributions rate by taking into account the employer's prior experience rated record.

            (a)  The department shall assign the lowest deficit contribution rate in effect for the current rate year to a deficit employer who has reported no wages during the  three federal fiscal years immediately prior to the rate computation date.

            (b)  The department shall assign the new employer contribution rate in effect for the current rate year based on the employer's industrial classification to an eligible employer who has reported no wages in the three federal fiscal years immediately prior to the rate computation date.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:     39-51-1121, 39-51-1206, 39-51-1216, MCA

 

REASON: The department is proposing New Rule X to implement the provisions of Senate Bill 150 regarding the reactivation of employer accounts when the employer is inactive for less than five years and the assignment of employer contribution rates.

 

            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:  Don Gilbert, Unemployment Insurance Division, Department of Labor and Industry, P.O. Box 8020, Helena, Montana 59624-8020; telephone (406) 444-4336; fax (406) 444-2993; TDD (406) 444-5549; or e-mail at dgilbert@mt.gov and must be received no later than 5:00 p.m., March 24, 2011.

 

            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 which includes the name and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding all Department of Labor and Industry administrative rulemaking proceedings or other administrative proceedings.  Such written request may be mailed or delivered to the Department of Labor and Industry, attention:  Mark Cadwallader, 1327 Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, e-mailed to mcadwallader@mt.gov, 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, apply and have been fulfilled.  The proposed rule amendments and proposed new rules implement the provisions of HB 645 and SB 150, enacted by the 2009 Montana Legislature.

            The primary sponsor of HB 645, Representative John Sesso, was first contacted by e-mail by the department on June 16, 2009, and notified of the department's intent to begin work on these rules.  On June 26, 2009, Don Gilbert of the Unemployment Insurance Division mailed a letter to Representative Sesso and notified him that the department had begun the rule drafting process.  On August 3, 2009, Mr. Gilbert contacted Representative Sesso by telephone and left a voice message inviting Representative Sesso to comment upon the proposed rules.  The department has received no comments on the proposed rule amendments or proposed new rules from Representative Sesso as of the date of this notice.

            The primary sponsor of SB 150, Senator John Bruggeman, was notified of the department's intent to begin work on these rules by telephone on August 3 and August 8, 2009, by Don Gilbert.  Senator Bruggeman was invited by Mr. Gilbert to offer comments or suggestions concerning the drafting of the rules to implement to provisions of SB 150.  As of the date of this notice, Senator Bruggeman has offered no comments or suggestions regarding the proposed rule amendments and proposed new rules.

 

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

 

 

/s/ DARCEE L. MOE                                 /s/ KEITH KELLY

Darcee L. Moe,                                          Keith Kelly, Commissioner

Alternate Rule Reviewer                               DEPARTMENT OF LABOR AND INDUSTRY

 

 

           

/s/ DARCEE L. MOE                                 /s/ NORMAN GROSFIELD

Darcee L. Moe,                                          Norman Grosfield, Acting Chair

Alternate Rule Reviewer                            Board of Labor Appeals

 

            Certified to the Secretary of State February 14, 2011.

 

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