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Montana Administrative Register Notice 24-11-270 No. 24   12/20/2012    
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 24.11.204, 24.11.452A, 24.11.454A, 24.11.455, 24.11 457, 24.11.475 and 24.11.485, and the adoption of New Rule I, pertaining to unemployment insurance

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND ADOPTION

 

TO:  All Concerned Persons

 

            1.  On January 18, 2013, at 1:00 p.m., the Department of Labor and Industry (department) will hold a public hearing to be held in the Sanders Auditorium of the DPHHS Building, 111 North Sanders, Helena, Montana, 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 January 14, 2013, 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. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

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

(1) through (22) remain the same.

(23) "Leaving work," as used in 39-51-2302, MCA, means:

(a)  any permanent, long-term, or indefinite voluntary reduction in a worker's hours of insured full-time work for a particular employer initiated by the worker, whether or not the reduction occurs in response to some an act or omission on the part of the employer and whether or not sanctioned or is approved by the employer; or

(b)  failing to return to work following a period of temporary layoff or suspension if the worker knew or should have known that the layoff or suspension was no longer in effect and that work was once again available to the worker a cessation of employment initiated by the worker, which resulted from the worker's absence from work without an employer-approved leave of absence for:

(i)  seven or more consecutive work days due to a physical or mental condition, which prevented the worker from performing the essential functions of the job with or without a reasonable accommodation; or

(ii)  three or more consecutive work days without the employer's permission for any other reason.

(24) through (30) remain the same.

(31)  "Same work" means an offer by an individual's present employer of the same hours, wages, terms of employment, and working conditions.

(31) through (38) remain the same but are renumbered (32) through (39).

            (40)  "Voluntary quit" means a worker left work with or without good cause attributable to the employment.

(39) through (41) remain the same but are renumbered (41) through (43).

 

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 finds there is reasonable necessity, in response to a recent increase in benefits claims issues, to propose to clarify the definition of "leaving work" by adding two distinct time periods after which the department will consider a worker to have separated from employment when the worker does not show up for work and has not been granted an employer-approved leave.  The department finds that seven work days is a reasonable time during which an injured or ill employee may determine whether the employee could quickly return to work with or without a reasonable accommodation.  The department further finds that an employee's failure to show up for work for three consecutive work days without the employer's permission reasonably constitutes job abandonment or "leaving work."  An employer may act to discharge an employee before or after the time periods designated by the proposed rule.  However, when the time frames set out by the proposed rule have run, the department will consider the employee to have "left work," which places the burden on the employee to demonstrate good cause for leaving that is attributable to the employment in order to qualify for unemployment insurance benefits.  Unreasonable actions by the employer may constitute good cause, per ARM 24.11.457(2)(b).  The proposed rule provides reasonable consistency for identifying the moving party for each separation from employment due to job abandonment. 

 

The department also finds there is reasonable necessity to propose to insert the term "full-time" as a qualifier for a voluntary work reduction because a voluntary reduction of part-time work does not constitute "leaving work," but is adjudicated by the department as a work-availability issue, pursuant to 39-51-2104, MCA, and ARM 24.11.452A.  For example, the department may determine a claimant who voluntarily reduces part-time work hours when more work hours are available to be ineligible for unemployment insurance benefits because the claimant has not made himself or herself available for remunerative work.

 

By eliminating the language related to a worker's failure to return to work after a temporary lay-off or suspension, the department proposes to harmonize the rule with ARM 24.11.491, which was adopted on May 31, 2011, to implement the provisions of Senate Bill 150 (L. 2011), codified as 39-51-2113, MCA.  The law provides that when a worker has been suspended from employment for more than two weeks, the department deems the worker to have been discharged from employment.  Similarly, the department deems a worker who has been laid-off on a temporary or permanent basis to have been discharged from employment due to a lack of work as of the last day worked.  Accordingly, a worker suspended for more than two weeks or a laid-off worker may qualify for benefits, if otherwise eligible. Therefore, the proposed amendment to the definition of "leaving work" is necessary to bring the rule into conformance with the law.

 

The department further proposes to clarify that the term "voluntary quit" means leaving work, which may occur with good cause or without good cause attributable to the employment, as part of the amendment to the rule.

 

            24.11.452A  ELIBIBILITY FOR BENEFITS  (1) through (5)(b) remain the same.

            (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 ARM 24.11.476; or

(iv)  claimant's residence in or travel to a foreign country, which is defined as any country other than the United States of America, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or Canada; or

(v)  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.

            (6)  The department may allow benefits to be paid to a claimant who resides in or travels to a foreign country that has executed a reciprocal agreement with the United States government regarding unemployment insurance.

 

AUTH:  39-51-301, 39-51-302, MCA

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

 

REASON:  The proposed amendment is reasonably necessary to put the public on notice that the department considers a claimant's availability for work to be adversely impacted by foreign travel, except when the travel occurs within the United States, Canada or certain U.S. protectorates.  When a claimant is unavailable for remunerative work, the department considers the claimant to have temporarily withdrawn from the labor market.  Therefore, a claimant who resides in or travels to a foreign country is ineligible for unemployment insurance benefits while out-of-country.  The proposed amendment reasonably requires a claimant to remain in proximity to claimant's labor market as a prerequisite for benefit eligibility.  The proposed amendment does nothing to abrogate a claimant's constitutional right to travel, but disallows the collection of benefits while travelling outside of designated geographic regions.

 

            24.11.454A  LEAVING OR DISCHARGE FROM WORK

            (1) through (5) remain the same.

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

(a)  when a worker agrees to accept employment of limited duration as specified by the employer or by a written employment contract, the department shall consider the worker to have been laid off due to a lack of work at the end of the duration agreed upon and the last day worked; or

(b)  when an employer agrees to employ a worker for a limited duration as specified by the worker or by a written employment contract, the department shall consider the worker to have voluntarily left work 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:  Following the recent decision by the Montana Supreme Court in Sheila Callahan & Friends v. DOLI, 2012 MT 133, 365 Mont. 283; 280 P.3d 895, the department determined it is reasonably necessary to amend the rule to clarify that the department deems a worker to have been laid off due to a lack of work on the termination date of a written employment contract.  When an employer offers a continuation of the same work under the same terms and conditions beyond the termination date set by an employment contract, the worker may decline the offer but the department shall consider the worker to have voluntarily left work.  When an employer offers a new contract with substantially different terms and conditions, the department shall consider the new contract to constitute an offer of new work, not the same work, and the department shall consider the worker to have been laid off.  Because the terms of a written employment contract are mutually agreed by the employer and worker who execute the contract, the written agreement proves valid notice of the end of work, regardless of the party that initially proposed the termination date.  The proposed rule amendment is reasonable because the employer is the moving party to a separation from employment caused by the termination of an employment contract.

 

24.11.455  REFUSAL OF WORK  (1)  Pursuant to 39-51-2304(1), MCA, an individual a claimant is disqualified for benefits if the individual claimant fails without good cause to:

(a) and (b) remain the same.

            (2) remains the same.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-2304, MCA

 

REASON:  The proposed amendment is reasonably necessary to clarify that a refusal of a valid offer of work only affects the benefit eligibility of an individual who is an unemployment insurance claimant at the time of the work refusal.  A person who has neither applied for nor is receiving benefits is not considered by the department to be in "claimant" status.  Therefore, the department will not consider the refusal of work as a factor in determining a person's later qualification for benefits when the person was not a claimant at the time the person declined the offer of work.  Conversely, a claimant who has applied for or is receiving benefits must accept any valid offer of suitable work as a condition of maintaining benefit eligibility.

 

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

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

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

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

(b)  the claimant left work that the department determines to be unsuitable under 39-51-2304, MCA , and pursuant to ARM 24.11.485; or

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

(2) 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 considers a person to have good cause to leave work when the person demonstrates that the work was not suitable, as outlined by ARM 24.11.485.  The department proposes to eliminate the reference to 39-51-2304, MCA, to avoid an implication that the rule is limited in its application to the adjudication of a claimant's decision to leave work during the period the claimant is qualified for or receiving unemployment insurance benefits.  Because the department determines work suitability or unsuitability when adjudicating a claimant's separation from employment, the rule amendment is necessary to remove an implied constriction in the rule's application.  The proposed amendment clarifies that the department's determination of whether work is suitable for a claimant may be applied to work the claimant accepts or is offered at any time pertinent to the adjudication of a claim.

 

            24.11.475  APPROVAL OF TRAINING BY THE DEPARTMENT 

            (1) through (5) remain the same.

            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 ARM 24.7.320 24.11.476.

            (7)  remains the same.

 

AUTH:  39-51-301, 39-51-302, MCA

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

 

REASON:  The proposed amendment is reasonably necessary to correct an erroneous reference to the administrative rule regarding the additional training benefits available to qualified claimants, while other unemployment rules are being amended.

 

24.11.485  SUITABLE WORK  (1) and (2) remain the same.

(3)  To determine whether employment constitutes a claimant has refused an offer of suitable work, pursuant to ARM 24.11.455, the department shall consider factors including, but not limited to:

(a) through (i) remain the same.

(4)  Work that was once suitable for claimant may become unsuitable due to circumstances beyond the claimant's or employer's control.  When adjudicating a work refusal, pursuant to ARM 24.11.455, or a separation from work, pursuant to ARM 24.11.457, The 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 has submitted to the department an individualized determination of work unsuitability due to claimant's physical or mental disability, certified and signed by a health care provider; 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) remains the same.

 

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

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

 

REASON:  The proposed amendment provides a reasonable and necessary distinction between the criteria for a determination of work suitability during the adjudication of a work refusal from the criteria used in the adjudication of a separation from employment.  The department will apply (3) only when adjudicating a claimant's refusal to work, pursuant to ARM 24.11.455, while the department will apply (4) when adjudicating either a work refusal or a separation from work, pursuant to ARM 24.11.457.  The proposed amendment explicitly outlines the medical proof required by the department to determine when a claimant's physical or mental condition caused work that was once suitable to become unsuitable.  

 

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

 

NEW RULE I   PENSION BENEFIT REDUCTION  (1)  For purposes of this rule, a "pension" means pension payments, retirement benefits, retirement pay, annuity, or similar periodic payment made to an individual based on previous work.  Severance or separation pay is not a "pension" payment.

            (2)  The department shall reduce a claimant's weekly unemployment benefit by the amount claimant receives or constructively receives from a pension plan that was maintained or contributed to by a base period employer.

            (3)  When no base period employer contributed to claimant's pension plan, the department shall not reduce a claimant's weekly unemployment benefit by the pension payment.

            (4)  The department shall presume a claimant made no monetary contribution to claimant's pension plan.  A claimant may overcome this presumption by providing written proof to the department demonstrating that claimant made an actual monetary contribution to the pension plan. When a claimant made direct monetary contribution to the pension plan, the department shall not reduce a claimant's weekly unemployment benefit by the pension payment.

            (5)  The claimant must promptly provide to the department all information requested by the department.  Within eight days of claimant's receipt of correspondence from the pension plan administrator concerning claimant's pension entitlement or the amount of claimant's pension payments, claimant must provide the department with copies of the correspondence.

            (6)  Claimant's base period employer must promptly furnish information related to claimant's pension plan when requested by the claimant, claimant's representative, or the department.

            (7)  A claimant "constructively" receives a pension payment when:

            (a)  the claimant or another on behalf of the claimant files an application for  pension payments; or

            (b)  the claimant receives notice from the pension plan administrator of claimant's entitlement to and the amount of pension payments.

            (8)  The department shall allocate the pension payment, which is actually or constructively received by a claimant, by attributing a fraction of the payment to each week in the following manner:

            (a)  amount of a monthly pension payment is multiplied by 12 (months) and the result is divided by 52 (weeks);

            (b)  amount of a quarterly pension payment is multiplied by 4 (quarters) and the result is divided by 52 (weeks); or

            (c)  amount of an annual pension payment is divided by 52 (weeks).

            (9)  Social security retirement and social security disability payments are not deductible from unemployment benefits under this rule.

 

AUTH:  39-51-301, 39-51-302, MCA

IMP:  39-51-2203, MCA

 

REASON:  To maintain substantial conformity with the federal laws and regulations related to unemployment insurance program, the Montana Legislature amended 39-51-2203, MCA (Sec. 12, Ch. 195, L. 1995), to clarify the requirements for pension payment off-set.  Recently, the First Judicial District Court affirmed that a claimant's weekly unemployment insurance benefit must be reduced by the amount of a weekly pension payment received by the claimant under a plan maintained or contributed to by a base period employer or chargeable employer.  DOLI v. BOLA, Gunderson, Aronson, BDV 2011-503, January 6, 2012.   Proposed New Rule I is necessary to clarify how the department will investigate and determine whether benefit reduction due to pension off-set is appropriate and determine the correct amount of that reduction.  The proposed new rule reasonably places the burden of demonstrating the claimant made a direct financial contribution to the pension plan upon the claimant, who has easier access to the necessary proof.

 

            5.  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., January 23, 2013.

 

            6.  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.

 

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

 

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

 

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

 

 

/s/  Mark Cadwallader                                 /s/  Keith Kelly                                              

Mark Cadwallader                                        Keith Kelly

Alternate Rule Reviewer                              Commissioner

                                                                        Department of Labor and Industry

           

Certified to the Secretary of State December 10, 2012.

 

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