BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 24.11.204, 24.11.207, 24.11.441, 24.11.443, 24.11.450A, 24.11.452A, 24.11.453A, 24.11.454A, 24.11.459, 24.11.463, 24.11.469, 24.11.471, 24.11.475, 24.11.476, 24.11.2204, and 24.11.2511 and the adoption of New Rule I pertaining to the unemployment insurance program
NOTICE OF AMENDMENT AND ADOPTION
TO: All Concerned Persons
1. On September 23, 2016, the Department of Labor and Industry (department) published MAR Notice No. 24-11-319 regarding a public hearing on the proposed amendment of the above-stated rules at page 1630 of the 2016 Montana Administrative Register, Issue No. 18.
2. On October 14, 2016, the department held a public hearing. One member of the public commented on the proposed amendments and adoption. Written comments were also received by the department by the end of the comment period.
3. The comments and the department's responses are as follows:
Comment 1: A commenter expressed concern that under ARM 24.11.207, school employers would lose their interested party status if they fail to return the "School Fact Finding Employment Forms." In certain circumstances, described by the commenter as relating to issues of reasonable assurances of continuing employment for certain educational employees, the employer is receiving those forms from the department, and the forms have not been completed by the claimant. The commenter stated that makes it difficult for the employer to respond to the blank form.
Response 1: The employer responsibility and waiver of interested party status found in 39-51-605, MCA, would not be imposed under the circumstances described. ARM 24.11.207(3) specifically indicates that the interested party status pertains to the claimant's separation from employment. The question raised is one of reasonable assurance of employment which is not considered a separation from employment and is processed under different guidelines and sections of regulation.
Comment 2: A commenter stated that requiring reporting of hours and wages only for insured work in ARM 24.11.443(5) is not consistent with federal law (Section 304(a)(4), of the Social Security Act).
Response 2: The department agrees, and has amended the rule accordingly.
Comment 3: A commenter noted that establishing the date when a "payment was issued," as that phrase is used in ARM 24.11.443(5), is subject to multiple interpretations. The commenter stated that a claimant, for reasons beyond the control of the claimant, may not necessarily be aware of the date the employer issued (or will issue) a payment. The commenter recommended that some leeway in reporting be allowed.
Response 3: The department agrees, and has amended the rule accordingly.
Comment 4: A commenter stated that excluding inquiries about work at a temporary employment agency in ARM 24.11.453A is not consistent with federal law (Section 303(a)(12), of the Social Security Act).
Response 4: The department agrees, and has amended the rule accordingly.
Comment 5: A commenter asked whether ARM 24.11.454A only applies to a reimbursable employer or if the rule is applicable to an experience rated employer.
Response 5: ARM 24.11.454A is applicable to all employers, both experience rated employers and reimbursable employers. The intent of this section is to recognize that the limited duration of benefits are for periods of unemployment that are not due to the worker's fault.
Comment 6: A commenter asked if New Rule I would affect the offset credit received by the employer. The employer currently receives immediate credit to their account upon the discovery of an overpayment of benefits to a claimant.
Response 6: No, it will not. New Rule I does not modify the employer account credit upon discovery of the overpayment. New Rule I is a tool for the collection of overpaid amounts.
Comment 7: A commenter questioned whether New Rule I would only apply to "non-fraud" overpayments.
Response 7: Yes. However, for the purpose of avoiding confusion, the department has amended New Rule I to expressly specify that it applies only for overpayments arising under the provisions of 39-51-3206, MCA.
Comment 8: A commenter questioned whether the department's decision not to accept an offer in compromise is appealable.
Response 8: No. New Rule I(2) expressly provides that the decision is final and cannot be appealed.
Comment 9: A commenter questioned whether the department would consider the claimant's current and future resources when considering whether to accept an offer under New Rule I.
Response 9: Yes. The department considers those factors are addressed in New Rule I(1), and notes that such considerations are part of the department's decision-making process.
4. After thorough consideration of the comments received, the following rules are amended as proposed:
24.11.207 INTERESTED PARTY
24.11.441 CLAIMS FOR BENEFITS
24.11.450A NONMONETARY DETERMINATIONS AND REDETERMINATIONS
24.11.452A ELIGIBILITY FOR BENEFITS
24.11.454A LEAVING OR DISCHARGE FROM WORK
24.11.459 ADMINISTRATIVE PENALTY
24.11.463 LIE DETECTOR TESTS--DRUG AND ALCOHOL TESTING
24.11.469 DOMESTIC VIOLENCE INELIGIBILITY -- REQUALIFICATION
24.11.471 REEMPLOYMENT ELIGIBILITY PROGRAMS
24.11.475 APPROVAL OF TRAINING BY THE DEPARTMENT
24.11.476 ADDITIONAL TRAINING BENEFITS
24.11.2204 RATES FOR NEW EMPLOYERS
24.11.2511 PAYMENTS THAT ARE NOT WAGES--EMPLOYEE EXPENSES
5. After thorough consideration of the comments received, the department has amended the following rules as proposed, but with new matter underlined and deleted matter interlined:
24.11.443 WEEKLY PAYMENT REQUESTS (1) through (4) remain as proposed.
(5) A claimant must report all hours worked or for which the claimant was paid and gross wages earned for each week for which payment is requested.
For the purposes of this section, hours and gross wage reporting only applies to insured work.
(a) and (b) remain as proposed.
(c) The date payment was issued shall be established by the date printed on a physical check, the date of release of electronic funds transfer, or the date cash was tendered. The department may allow up to 14 calendar days for reporting discrepancies.
(6) through (8) remain as proposed.
AUTH: 39-51-301, 39-51-302, MCA
IMP: 39-51-201, Title 39, ch. 51, parts 21 through 23, MCA
24.11.453A WORK SEARCH CONTACTS (1) remains as proposed.
(2) A valid work search contact:
(a) requires a claimant to:
(a) through (d) remain the same, but are renumbered (i) through (iv).
(e)(v) make a work search contact with a different employer, or if for the same employer, for a different position, for each consecutive week; or
(b) requires a claimant to register for work at a temporary employment agency.
(3) A valid work search does not include:
(a) seeking self-employment;
(b) working as an independent contractor; or
inquiring about work at a temporary agency; or
(d) reporting part-time work.
(4) through (7) remain as proposed.
AUTH: 39-51-301, 39-51-302, MCA
IMP: 39-51-2104, 39-41-2115, 39-51-2304, MCA
6. After thorough consideration of the comments received, the department has adopted New Rule I as proposed, but with new matter underlined and deleted matter interlined:
NEW RULE I (24.11.1213) OFFER IN COMPROMISE (1) When a claimant offers to compromise an overpayment debt pursuant to 39-51-3206, MCA, by making a lump-sum payment of over 50% of the amount due, the department will accept or reject the offer based on the circumstances or reason for the overpayment, the overpayment balance, and how long it would take to recover the debt with just monthly payments.
(2) through (4) remain as proposed.
AUTH: 39-51-301, 39-51-302, MCA
IMP: 39-51-3206, MCA
7. The amendments and new rule are effective November 11, 2016.
/s/ MARK CADWALLADER /s/ PAM BUCY
Mark Cadwallader Pam Bucy, Commissioner
Alternate Rule Reviewer DEPARTMENT OF LABOR AND INDUSTRY
Certified to the Secretary of State October 31, 2016