PRIOR PRINTER'S NOS. 1133, 1189

PRINTER'S NO.  1239

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

1030

Session of

2011

  

  

INTRODUCED BY GORDNER, APRIL 28, 2011

  

  

SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, MAY 23, 2011   

  

  

  

AN ACT

  

1

Amending the act of December 5, 1936 (2nd Sp.Sess., 1937

2

P.L.2897, No.1), entitled "An act establishing a system of

3

unemployment compensation to be administered by the

4

Department of Labor and Industry and its existing and newly

5

created agencies with personnel (with certain exceptions)

6

selected on a civil service basis; requiring employers to

7

keep records and make reports, and certain employers to pay

8

contributions based on payrolls to provide moneys for the

9

payment of compensation to certain unemployed persons;

10

providing procedure and administrative details for the

11

determination, payment and collection of such contributions

12

and the payment of such compensation; providing for

13

cooperation with the Federal Government and its agencies;

14

creating certain special funds in the custody of the State

15

Treasurer; and prescribing penalties," further providing for

16

relief from charges and for establishment and maintenance of

17

employer's reserve accounts; providing for automatic relief

18

from charges; further providing for qualifications required

19

to secure compensation, for rate and amount of compensation,

20

for definitions and for rules of procedure; and providing for

21

shared-work program and for applicability.

22

The General Assembly of the Commonwealth of Pennsylvania

23

hereby enacts as follows:

24

Section 1.  Section 213 of the act of December 5, 1936 (2nd

25

Sp.Sess., 1937 P.L.2897, No.1), known as the Unemployment

26

Compensation Law, added December 9, 2002 (P.L.1330, No.156), is

27

amended to read:

 


1

Section 213.  Relief from Charges for Certain Employers.--(a)

2

An employer that makes payments in lieu of contributions

3

pursuant to Article X, XI or XII shall be relieved of charges in

4

accordance with section [302(a)] 302.1 and regulations of the

5

department, for compensation paid on applications for benefits

6

effective during a calendar year, if the employer satisfies the

7

following requirements:

8

(1)  The employer pays a nonrefundable solvency fee under

9

subsection (b) for the calendar year within thirty (30) days

10

after notice of the fee is sent to the employer's last known

11

address. The department may for good cause extend the period

12

within which the fee must be paid.

13

(2)  All reports required by this act and regulations of the

14

department for calendar quarters through the second calendar

15

quarter of the preceding calendar year are filed.

16

(b)  An employer's solvency fee for a calendar year shall be

17

the monetary amount determined by multiplying the solvency fee

18

rate for the year by the amount of wages paid, without regard to

19

the exclusion in section 4(x)(1), by the employer in the four

20

consecutive calendar quarters ending on June 30 of the preceding

21

calendar year, provided that an employer's solvency fee for a

22

year shall not be less than twenty-five dollars ($25).

23

(1)  For calendar years 2003, 2004 and 2005, the solvency fee

24

rate shall be three ten thousandths (.0003).

25

(2)  In 2005 the secretary shall redetermine the solvency fee

26

rate. The secretary shall redetermine the rate so that the

27

unrounded rate yields solvency fees approximately equal to the

28

amount of compensation for which charges are relieved under this

29

section. For purposes of redetermining the rate, the secretary

30

shall use the amount of compensation for which charges are

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1

relieved under this section paid during 2003 and 2004 and the

2

amount of wages paid, without regard to the exclusion in section

3

4(x)(1), during the same time period by employers who paid a

4

solvency fee under this section. The rate as redetermined shall

5

take effect for the next calendar year and shall remain in

6

effect for three years.

7

(3)  Beginning in 2008 and each fifth year thereafter, the

8

secretary shall redetermine the solvency fee rate. The secretary

9

shall redetermine the rate so that the unrounded rate yields

10

solvency fees approximately equal to the amount of compensation

11

for which charges are relieved under this section. For purposes

12

of redetermining the rate, the secretary shall use the amount of

13

compensation for which charges are relieved under this section

14

paid during the five calendar years immediately preceding the

15

year in which the redetermination occurs and the amount of wages

16

paid, without regard to the exclusion in section 4(x)(1), during

17

the same time period by employers who paid a solvency fee under

18

this section. The rate as redetermined shall take effect for the

19

next calendar year and shall remain in effect for five years.

20

(4)  If the solvency fee rate redetermined under paragraphs

21

(2) and (3) is not a multiple of one-hundredth of one per cent,

22

it shall be rounded to the next higher multiple of one-hundredth

23

of one per cent.

24

(c)  Solvency fees paid by employers under this section shall

25

be deposited in the Unemployment Compensation Fund. Compensation

26

for which charges are relieved under this section shall not be

27

used in the calculation of the State adjustment factor under

28

section 301.1(e).

29

(d)  The provisions of this section shall constitute the

30

exclusive means by which an employer who makes payments in lieu

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1

of contributions pursuant to Article X, XI or XII may be excused

2

from reimbursing the Unemployment Compensation Fund for

3

compensation paid to an individual that is based on wages paid

4

by the employer or that portion of the individual's compensation

5

determined in accordance with section 1108.

6

(e)  A group account under section 1109 shall constitute an

7

employer for purposes of this section.

8

Section 2.  Section 302 of the act, amended March 24, 1964

9

(Sp.Sess., P.L.53, No.1), July 6, 1977 (P.L.41, No.22), July 21,

10

1983 (P.L.68, No.30), December 19, 1996 (P.L.1476, No.189) and

11

December 9, 2002 (P.L.1330, No.156), is amended to read:

12

Section 302.  Establishment and Maintenance of Employer's

13

Reserve Accounts.--The department shall establish and maintain

14

for each employer a separate employer's reserve account in the

15

following manner:

16

(a)  [(1)  Such account shall be credited with all

17

contributions paid by such employer for periods subsequent to

18

June thirtieth, one thousand nine hundred forty-eight. Such

19

account shall be charged with an amount determined by

20

multiplying the wages of compensated employes of such employer

21

for the twelve month period ended June thirtieth, one thousand

22

nine hundred forty-nine, by the state experience heretofore used

23

in determining rates of contributions for the year one thousand

24

nine hundred forty-nine. Subsequent to January 1, 1984, such] An

25

employer's account shall be charged with all compensation,

26

including dependents' allowances, paid to each individual who

27

received from such employer wage credits constituting the base

28

of such compensation, in the proportion that such wage credits

29

with such employer bears to the total wage credits received by

30

such individual from all employers[: Provided, That if the

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1

department finds that such individual was separated from his

2

most recent work for such employer due to being discharged for

3

willful misconduct connected with such work, or due to his

4

leaving such work without good cause attributable to his

5

employment, or due to his being separated from such work under

6

conditions which would result in disqualification for benefits

7

under the provisions of section 3 or section 402(e.1),

8

thereafter no compensation paid to such individual with respect

9

to any week of unemployment occurring subsequent to such

10

separation, which is based upon wages paid by such employer with

11

respect to employment prior to such separation, shall be charged

12

to such employer's account under the provisions of this

13

subsection (a); provided, such employer has filed a notice with

14

the department in accordance with its rules and regulations and

15

within the time limits prescribed therein; and provided if the

16

department finds that such individual's unemployment is directly

17

caused by a major natural disaster declared by the President

18

pursuant to section 102(1) of the Disaster Relief Act of 1970

19

(P.L.91-606) and such individual would have been eligible for

20

disaster unemployment assistance as provided in section 240 of

21

that act with respect to such unemployment but for the receipt

22

of unemployment compensation, no compensation paid to such

23

individual with respect to any week of unemployment occurring

24

due to such natural disaster, to a maximum of the eight weeks

25

immediately following the President's declaration of emergency,

26

shall be charged to the employer's account under the provisions

27

of this subsection.

28

(2)  Notwithstanding the provisions of paragraph (1) of this

29

subsection, if the department finds that an individual

30

subsequent to separation from his work is engaged in part-time

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1

work for a base year employer, other than a base year employer

2

from whom he has separated, compensation paid to such individual

3

with respect to any week of unemployment occurring subsequent to

4

such separation and while such part-time work continues without

5

material change, shall not be charged to the account of such

6

part-time employer; provided, such part-time employer has filed

7

a notice with the department in accordance with its rules and

8

regulations and within the time limits prescribed therein.

9

(2.1)  Notwithstanding the provisions of paragraph (1) of

10

this subsection, if the department finds that an individual was

11

separated from his most recent work for such employer due to a

12

cessation of business of eighteen months or less caused by a

13

disaster, compensation paid to such individual with respect to

14

any week of unemployment occurring subsequent to such separation

15

shall not be charged to the account of such employer; provided,

16

such employer has filed a notice with the department in

17

accordance with its rules and regulations and within the time

18

limits prescribed therein.

19

(3)  The findings and determinations of the department under

20

this subsection (a) shall be subject to appeal in the manner

21

provided in this act for appeals from determinations of

22

compensation: Provided, That where the individual's eligibility

23

for compensation has been finally determined under the

24

provisions of Article V of this act, such determination shall

25

not be subject to attack in proceedings under this section.

26

(4)  The reserve account of any employer who pays

27

contributions under this section shall not be charged with

28

respect to benefits paid to any individual whose base period

29

wages include wages for previously uncovered services as defined

30

in section 401(g) to the extent that the unemployment insurance

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1

fund is reimbursed for such benefits pursuant to section 121 of

2

Public Law 94-566].

3

(b)  Any employer, at any time, may voluntarily pay into the

4

Unemployment Compensation Fund an amount in excess of the

5

contributions required to be paid under the provisions of this

6

act, and such amount shall be forthwith credited to his reserve

7

account. His rate of contribution shall be computed or

8

recomputed, as the case may be, with such amount included in the

9

calculation. To affect such employer's rate of contribution for

10

any year, such amount shall be paid not later than thirty days

11

following the mailing of notice of his rate of contribution for

12

such year: Provided, That for good cause, such time may be

13

extended by the department: And provided further, That such

14

amount, when paid as aforesaid, shall not be refunded or used as

15

a credit in the payment of contributions in whole or in part. In

16

no event shall any such amount be included in the computation or

17

recomputation for any year unless it is paid within one hundred

18

twenty days after the beginning of such year.

19

(c)  (1)  For the purpose of determining any employer's rate

20

of contribution for any year, the phrase "balance in an

21

employer's reserve account" as used in sections 301, 301.1 and

22

301.2 of this act shall mean the amount ascertained as of the

23

computation date by subtracting the amounts charged to his

24

reserve account from the amounts credited thereto including

25

voluntary contributions. If, as of the computation date, the

26

amounts charged to his reserve account exceed the amounts

27

credited by an amount equivalent to more than twenty per centum

28

(20%) of his average annual payroll, the employer may elect,

29

subject to the provisions of section 301.1(f) of this act to

30

have his reserve account balance adjusted to a negative balance

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1

equal to twenty per centum (20%) of his average annual payroll.

2

This subsection as amended shall apply to elections made after

3

December 31, 1986.

4

(2)  Notwithstanding the provisions of section 301.1(f) and

5

paragraph (1) of this subsection, for elections made on or after

6

January 1, 1984 and before May 1, 1986, if the amounts charged

7

to the employer's reserve account exceed the amounts credited by

8

an amount equivalent to more than ten per centum (10%) of his

9

average annual payroll, the department, after determining his

10

Reserve Ratio Factor shall, upon the election of the employer,

11

adjust his reserve account balance to a negative balance equal

12

to ten per centum (10%) of his average annual payroll. With

13

respect to future adjustments of negative balance accounts, the

14

secretary shall, upon the election of the employer, make

15

adjustments as follows:

16

(i)  In relation to adjustments made for the second time

17

after January 1, 1984 and before May 1, 1986, if the amounts

18

charged to his reserve account exceed the amounts credited by an

19

amount equivalent to more than fifteen per centum (15%) of his

20

average annual payroll, the department shall, upon the election

21

of the employer, adjust the reserve account balance to a

22

negative balance equal to fifteen per centum (15%) of his

23

average annual payroll.

24

(ii)  In relation to adjustments made for the third time

25

after January 1, 1984 and before May 1, 1986, if the amounts

26

charged to his reserve account exceed the amounts credited by an

27

amount equivalent to more than twenty per centum (20%) of his

28

average annual payroll, the department shall, upon the election

29

of the employer, adjust his reserve account balance to a

30

negative balance equal to twenty per centum (20%) of his average

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1

annual payroll.

2

(d)  The department shall terminate the reserve account of

3

any employer who has not paid contributions for a period of four

4

consecutive twelve month periods, ending June thirtieth in any

5

year.

6

(e)  Nothing contained in this act shall be construed to

7

grant to any employer any claim or right of withdrawal with

8

respect to any amount allocated to him from, or paid by him

9

into, the Unemployment Compensation Fund, except as provided in

10

section three hundred eleven hereof.

11

Section 3.  The act is amended by adding a section to read:

12

Section 302.1.  Relief from Charges.--Notwithstanding any

13

other provisions of this act assigning charges for compensation

14

paid to employes, the department shall relieve an employer of

15

charges for compensation in accordance with this section and

16

section 213 of this act.

17

(a)  Circumstances allowing relief:

18

(1)  If an individual was separated from his most recent work

19

for an employer due to being discharged for willful misconduct

20

connected with that work, or due to his leaving that work

21

without good cause attributable to his employment, or due to his

22

being separated from such work under conditions which would

23

result in disqualification for benefits under the provisions of

24

section 3 or section 402(e.1), the employer shall be relieved of

25

charges for compensation paid to the individual with respect to

26

any week of unemployment occurring subsequent to such

27

separation. Relief from charges under this paragraph terminates

28

if the employe returns to work for the employer.

29

(2)  If an individual's unemployment is directly caused by a

30

major natural disaster declared by the President of the United

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1

States pursuant to section 102(1) of the Disaster Relief Act of

2

1970 (Public Law 91-606, 42 U.S.C. § 4401 et seq.) and the

3

individual would have been eligible for disaster unemployment

4

assistance as provided in section 240 of the Disaster Relief Act

5

of 1970 with respect to that unemployment but for the receipt of

6

unemployment compensation, an employer shall be relieved of

7

charges for compensation paid to such individual with respect to

8

any week of unemployment occurring due to the natural disaster,

9

to a maximum of the eight weeks immediately following the

10

declaration of emergency by the President of the United States.

11

(3)  If an individual subsequent to separation from his work

12

is engaged in part-time work for a base year employer, other

13

than a base year employer from whom he has separated, the part-

14

time employer shall be relieved of charges for compensation paid

15

to the individual with respect to any week of unemployment

16

occurring subsequent to the separation and while such part-time

17

work continues without material change.

18

(4)  If the department finds that an individual was separated

19

from his most recent work for an employer due to a cessation of

20

business of eighteen months or less caused by a disaster, the

21

employer may be relieved of charges for compensation paid to

22

such individual with respect to any week of unemployment

23

occurring subsequent to that separation. Relief from charges

24

under this paragraph terminates if the employe returns to work

25

for the employer.

26

(b)  Requests for relief from charges:

27

(1)  Except as provided in subsection (c), in order to be

28

granted relief from charges for compensation an employer must

29

file a request with the department in the manner provided, and

30

containing all information required, by the department's

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1

regulations.

2

(2)  If an employer is requesting relief from charges on the

3

basis of a separation that occurs on or before the date the

4

claimant files an application for benefits or on the basis of

5

continuing part-time work, the following shall apply:

6

(i)  If the request is filed within fifteen (15) days after

7

the date of the earliest notice issued by the department under

8

section 501(a) indicating that the claimant is eligible under

9

section 401(a) and relief is granted, relief shall begin with

10

the earliest week for which the claimant is eligible for

11

benefits pursuant to the claimant's application for benefits.

12

(ii)  If the request is not filed within the time period

13

provided in subparagraph (i), relief, if granted by the

14

department, shall begin with the earliest week ending fifteen

15

(15) or more days subsequent to the date the request is filed.

16

(3)  If an employer is requesting relief from charges on the

17

basis of a separation that occurs after the claimant files an

18

application for benefits, the following shall apply:

19

(i)  If the request is filed within fifteen (15) days after

20

the date of the earliest notice issued by the department

21

indicating that the claimant is claiming benefits subsequent to

22

the separation and relief is granted, relief shall begin with

23

the earliest week for which the claimant is eligible for

24

benefits following the last day worked.

25

(ii)  If the request is not filed within the time period

26

provided in subparagraph (i), relief, if granted by the

27

department, shall begin with the earliest week ending fifteen

28

(15) or more days subsequent to the date the request is filed.

29

(c)  Relief from charges without a request:

30

(1)  If a claimant is determined ineligible for benefits

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1

under section 3 or section 402(b), (e) or (e.1) pursuant to a

2

notice of determination that has become final, the department

3

shall grant relief from charges in accordance with subsection

4

(a)(1) to the employer from whom the claimant was separated,

5

beginning with the earliest week for which the claimant is

6

eligible for benefits following the week or weeks governed by

7

the notice of determination.

8

(2)  If a claimant is determined eligible for benefits under

9

section 402(b) pursuant to a notice of determination that has

10

become final, the department shall grant or deny relief from

11

charges in accordance with subsection (a)(1) to the employer

12

from whom the claimant was separated, beginning with the

13

earliest week governed by the notice of determination, in

14

accordance with the following:

15

(i)  The department shall grant relief from charges if the

16

claimant left work for the employer without good cause

17

attributable to the claimant's employment.

18

(ii)  The department shall deny relief from charges if the

19

claimant left work for the employer with good cause attributable

20

to the claimant's employment.

21

(3)  Relief from charges granted to an employer remains in

22

effect for the purpose of benefits paid to the claimant pursuant

23

to a subsequent application for benefits if the relief has not

24

terminated in accordance with the provisions of this section.

25

(d)  Employer information:

26

(1)  An employer that is granted relief from charges on the

27

basis of a claimant's separation from employment shall notify

28

the department within fifteen (15) days if the claimant returns

29

to work for the employer. The employer shall include with the

30

notification the claimant's name and Social Security number, the

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1

employer's name and account number and the date when

2

reemployment commenced.

3

(2)  An employer that is granted relief from charges on the

4

basis of continuing part-time work shall notify the department

5

within fifteen (15) days if the employment situation of the

6

claimant changes. The employer shall include with the

7

notification the claimant's name and Social Security number and

8

the employer's name and account number.

9

(e)  General provisions:

10

(1)  Where the individual's eligibility for compensation has

11

been finally determined under the provisions of Article V, such

12

determination shall not be subject to attack in proceedings

13

under this section.

14

(2)  The findings and determinations of the department under

15

this section shall be subject to appeal in the manner provided

16

in this act for appeals from determinations of compensation.

17

Section 4.  Section 401(b) of the act, amended July 9, 1976

18

(P.L.842, No.147), is amended to read:

19

Section 401.  Qualifications Required to Secure

20

Compensation.--Compensation shall be payable to any employe who

21

is or becomes unemployed, and who--

22

* * *

23

(b)  [Has registered for work at, and thereafter continued to

24

report to an employment office in accordance with such

25

regulations as the secretary may prescribe, except that the

26

secretary may by regulation waive or alter either or both of the

27

requirements of this clause as to individuals attached to

28

regular jobs and as to such other types of cases or situations

29

with respect to which he finds that compliance with such

30

requirements would be oppressive or would be inconsistent with

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1

the purposes of the act: Provided, however, That no such

2

regulation shall conflict with section four hundred and one (c)

3

of this act;] (1)  Is making an active search for suitable

4

employment. The requirements for "active search" shall be

5

established by the department and shall include, at a minimum,

6

all of the following:

7

(i)  Registration by a claimant for employment search

8

services offered by the Pennsylvania CareerLink system or its

9

successor agency within thirty (30) days after initial

10

application for benefits.

11

(ii)  Posting a resume on the system's database, unless the

12

claimant is seeking work in an employment sector in which

13

resumes are not commonly used.

14

(iii)  Applying for positions that offer employment and wages

15

similar to those the claimant had prior to his unemployment and

16

which are within a forty-five (45) minute commuting distance.

17

(2)  The Pennsylvania CareerLink system or its successor

18

agency shall provide documentation, on a quarterly basis or more

<--

19

frequently, as the secretary deems appropriate, to the

20

Pennsylvania Unemployment Compensation Service Center system so

21

the system can conduct the necessary cross reference checks.

22

(3)  For the purposes of paragraph (1), the department may

23

determine that a claimant has made an active search for suitable

24

work if the claimant's efforts include actions comparable to

25

those traditional actions in their trade or occupation by which

26

jobs have been found by others in the community and labor market

27

in which the claimant is seeking employment.

28

(4)  The requirements of this subsection do not apply to any

29

week in which the claimant is in training approved under section

30

236(a)(1) of the Trade Act of 1974 (Public Law 93-618, 19 U.S.C.

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1

§ 2101 et seq.) or any week in which the claimant is required to

2

participate in reemployment services under section 402(j).

3

(5)  The requirements of this subsection shall not apply to a

4

claimant who is laid off for lack of work and advised by the

5

employer of the date on which the claimant will return to work.

6

(6)  The department may waive or alter the requirements of

7

this subsection in cases or situations with respect to which the

8

secretary finds that compliance with such requirements would be

9

oppressive or which would be inconsistent with the purposes of

10

this act.

11

* * *

12

Section 5.  Section 404 introductory paragraph, (d) and

13

(e)(2) of the act, amended October 19, 1988 (P.L.818, No.109)

14

and December 16, 2005 (P.L.437, No.80), are amended to read:

15

Section 404.  Rate and Amount of Compensation.--Compensation

16

shall be paid to each eligible employe in accordance with the

17

following provisions of this section except that compensation

18

payable with respect to weeks ending in benefit years which

19

begin prior to the first day of January [1989] 2012 2013 shall

<--

20

be paid on the basis of the provisions of this section in effect

21

at the beginning of such benefit years.

22

* * *

23

(d)  (1)  Notwithstanding any other provisions of this

24

section each eligible employe who is unemployed with respect to

25

any week ending subsequent to July 1, 1980 shall be paid, with

26

respect to such week, compensation in an amount equal to his

27

weekly benefit rate less the total of (i) the remuneration, if

28

any, paid or payable to him with respect to such week for

29

services performed which is in excess of his partial benefit

30

credit [and], (ii) vacation pay, if any, which is in excess of

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1

his partial benefit credit, except when paid to an employe who

2

is permanently or indefinitely separated from his employment[.] 

3

and (iii) the amount of severance pay that is attributed to the

4

week.

5

(1.1)  For purposes of clause (1)(iii), all of the following

6

apply:

7

(i)  "Severance pay" means one or more payments made by an

8

employer to an employe on account of separation from the service

9

of the employer, regardless of whether the employer is legally

10

bound by contract, statute or otherwise to make such payments.

11

The term does not include payments for pension, retirement or

12

accrued leave or payments of supplemental unemployment benefits.

13

(ii)  The amount of severance pay attributed pursuant to

14

subclause (iii) shall be an amount not less than zero determined

15

by subtracting one-half of the average annual wage as calculated

16

under subsection (e) as of June 30 immediately preceding the

17

calendar year in which the claimant's benefit year begins from

18

the total amount of severance pay paid or payable to the

19

claimant by the employer.

20

(iii)  Severance pay is attributed as follows:

21

(A)  Severance pay is attributed to the day, days, week or

22

weeks immediately following the employe's separation.

23

(B)  The number of days or weeks to which severance pay is

24

attributed is determined by dividing the total amount of

25

severance pay by the regular full-time daily or weekly wage of

26

the claimant.

27

(C)  The amount of severance pay attributed to each day or

28

week equals the regular full-time daily or weekly wage of the

29

claimant.

30

(D)  When the attribution of severance pay is made on the

- 16 -

 


1

basis of the number of days, the pay shall be attributed to the

2

customary working days in the calendar week.

3

(2)  (i)  In addition to the deductions provided for in

4

clause (1), for any week with respect to which an individual is

5

receiving a pension, including a governmental or other pension,

6

retirement or retired pay, annuity or any other similar periodic

7

payment, under a plan maintained or contributed to by a base

8

period or chargeable employer, the weekly benefit amount payable

9

to such individual for such week shall be reduced, but not below

10

zero, by the pro-rated weekly amount of the pension as

11

determined under subclause (ii).

12

(ii)  If the pension is entirely contributed to by the

13

employer, then one hundred per centum (100%) of the pro-rated

14

weekly amount of the pension shall be deducted. Except as set

15

forth in clause (4), if the pension is contributed to by the

16

individual, in any amount, then fifty per centum (50%) of the

17

pro-rated weekly amount of the pension shall be deducted.

18

(iii)  No deduction shall be made under this clause by reason

19

of the receipt of a pension if the services performed by the

20

individual during the base period or remuneration received for

21

such services for such employer did not affect the individual's

22

eligibility for, or increase the amount of, such pension,

23

retirement or retired pay, annuity or similar payment.

24

(3)  The provisions of this subsection shall be applicable

25

whether or not such vacation pay, retirement pension or

26

annuities or wages are legally required to be paid. If such

27

retirement pension or annuity payments deductible under the

28

provisions of this subsection are received on other than a

29

weekly basis, the amount thereof shall be allocated and pro-

30

rated in accordance with the rules and regulations of the

- 17 -

 


1

department. Vacation pay or other remuneration deductible under

2

the provisions of this subsection shall be pro-rated on the

3

basis of the employe's normal full-time weekly wage and as so

4

pro-rated shall be allocated to such period or periods of

5

unemployment as shall be determined by rules and regulations of

6

the department. Such compensation, if not a multiple of one

7

dollar ($1), shall be computed to the next lower multiple of one

8

dollar ($1).

9

(4)  No deductions shall be made under this subsection for

10

pensions paid under the Social Security Act (Public Law 74-271,

11

42 U.S.C. § 301 et seq.), or the Railroad Retirement Act of 1974

12

(Public Law 93-445, 88 Stat. 1305), if the pension is

13

contributed to by the individual in any amount.

14

(e)  * * *

15

(2)  (i)  The Table Specified for the Determination of Rate

16

and Amount of Benefits shall be extended or contracted annually,

17

automatically by regulations promulgated by the secretary in

18

accordance with the following procedure: for calendar year one

19

thousand nine hundred seventy-two and for all subsequent

20

calendar years, to a point where the maximum weekly benefit rate

21

[equals] shall equal sixty-six and two-thirds per centum of the

22

average weekly wage for the [twelve-month] thirty-six-month 

23

period ending June 30 preceding each calendar year. If the

24

maximum weekly benefit rate is not a multiple of one dollar

25

($1), it shall be [increased by one dollar ($1) and then] 

26

rounded to the next lower multiple of one dollar ($1): Provided,

27

however, That effective with benefit years beginning the first

28

Sunday at least thirty days after the effective date of this

29

amendatory act, the per centum stated in this paragraph for

30

establishing the maximum weekly benefit rate shall be sixty-two

- 18 -

 


1

and two-thirds per centum for the remainder of calendar year one

2

thousand nine hundred seventy-four, sixty-four and two-thirds

3

per centum for the calendar year one thousand nine hundred

4

seventy-five, and sixty-six and two-thirds per centum for the

5

calendar year one thousand nine hundred seventy-six and for all

6

subsequent calendar years.

7

The Table Specified for the Determination of Rate and Amount

8

of Benefits as so extended or contracted shall be effective only

9

for those claimants whose benefit years begin on or after the

10

first day of January of such calendar year.

11

(ii)  For the purpose of determining the maximum weekly

12

benefit rate, the Pennsylvania average weekly wage in covered

13

employment shall be computed on the basis of the average annual 

<--

14

total wages reported (irrespective of the limit on the amount of

15

wages subject to contributions) for the [twelve-month] thirty-

16

six-month period ending June 30 (determined by dividing the

<--

17

total wages reported for the thirty-six-month period by three) 

18

and this amount shall be divided by the average monthly number

19

of covered workers (determined by dividing the total covered

20

employment reported for the same [fiscal year by twelve] thirty-

21

six-month period by thirty-six) to determine the average annual

22

wage. The average annual wage thus obtained shall be divided by

23

fifty-two and the average weekly wage thus determined rounded to

24

the nearest cent. If the maximum weekly benefit rate as

25

determined under subclause (i) is less than the maximum weekly

26

benefit rate established for calendar year 2011 2012, the

<--

27

maximum weekly benefit rate will be frozen until the calendar

28

year in which the new maximum weekly benefit rate as determined

29

under subclause (i) exceeds the maximum weekly benefit rate for

30

calendar year 2011 2012.

<--

- 19 -

 


1

* * *

2

Section 6.  Section 401-A(b) and (c) of the act, amended

3

August 4, 2009 (P.L.114, No.30), are amended to read:

4

Section 401-A.  Definitions.--As used in this article:

5

* * *

6

(b)  (1)  There is a "State 'on' indicator" for this State

7

for a week if the Secretary of Labor and Industry determines in

8

accordance with the regulations of the United States Secretary

9

of Labor, that for the period consisting of such week and the

10

immediately preceding twelve weeks, the rate of insured

11

unemployment (not seasonally adjusted) under this act:

12

(i)  (A)  equaled or exceeded one hundred twenty per centum

13

of the average of such rates for the corresponding thirteen-week

14

period ending in each of the preceding two calendar years, or

15

(B)  with respect to compensation for weeks of unemployment

16

beginning after December 17, 2010, and ending on or before

17

December 31, 2011, equaled or exceeded one hundred twenty per

18

centum of the average of such rates for the corresponding

19

thirteen-week period ending in each of the preceding three

20

calendar years, and

21

(ii)  equaled or exceeded five per centum: Provided, That

22

with respect to benefits for weeks of unemployment beginning

23

with the passage of this amendment but no earlier than April 3,

24

1977, the determination of whether there has been a State "on"

25

or "off" indicator beginning or ending any extended benefit

26

period shall be made under this paragraph as if (A) this

27

paragraph did not contain subparagraph (i) thereof, and (B) the

28

per centum rate indicated in this paragraph were six, except

29

that, notwithstanding any such provision of this paragraph, any

30

week for which there would otherwise be a State "on" indicator

- 20 -

 


1

shall continue to be such a week and shall not be determined to

2

be a week for which there is a State "off" indicator.

3

(2)  There is a "State 'off' indicator" for this State for a

4

week if the Secretary of Labor and Industry determines in

5

accordance with the regulations of the United States Secretary

6

of Labor, that for the period consisting of such week and the

7

immediately preceding twelve weeks, the rate of insured

8

unemployment (not seasonally adjusted) under this act:

9

(i)  was less than one hundred twenty per centum of the

10

average of such rates for the corresponding thirteen-week period

11

ending in each of the preceding two calendar years, if paragraph

12

(1)(i)(A) applies or, the preceding three calendar years, if

13

paragraph (1)(i)(B) applies, or

14

(ii)  was less than five per centum.

15

(3)  Notwithstanding the provisions of this subsection, any

16

week for which there would otherwise be a State "on" indicator

17

shall continue to be such a week and shall not be determined to

18

be a week for which there is a State "off" indicator.

19

(c)  (1)  There is a "State 'on' indicator" for this State

20

for a week if:

21

(i)  the average rate of total unemployment in this State,

22

seasonally adjusted, for the period consisting of the most

23

recent three months for which data for all states are published

24

before the close of such week equals or exceeds six and one-half

25

per centum; and

26

(ii)  (A)  the average rate of total unemployment in this

27

State, seasonally adjusted, for the three-month period referred

28

to in subparagraph (i) equals or exceeds one hundred ten per

29

centum of such average rate for either, or both, of the

30

corresponding three-month periods ending in the two preceding

- 21 -

 


1

calendar years, or

2

(B)  with respect to compensation for weeks of unemployment

3

beginning after December 17, 2010, and ending on or before

4

December 31, 2011, the average rate of total unemployment in

5

this State, seasonally adjusted, for the three-month period

6

referred to in subparagraph (i) equals or exceeds one hundred

7

ten per centum of such average rate for any, or all, of the

8

corresponding three-month periods ending in the three preceding

9

calendar years.

10

(2)  There is a State "off" indicator for this State for a

11

week if the requirements of paragraph (1)(i) or (ii) are not

12

satisfied.

13

(3)  This subsection shall be applicable only with respect to

14

weeks of unemployment for which one hundred per centum Federal

15

sharing of extended benefits is available under section 2005(a)

16

of the American Recovery and Reinvestment Act of 2009 (Public

17

Law 111-5, 123 Stat. 115), without regard to the extension of

18

Federal sharing for certain claims as provided under section

19

2005(c) of the American Recovery and Reinvestment Act of 2009,

20

or under a subsequently enacted provision of Federal law.

21

(4)  Notwithstanding the provisions of this subsection, any

22

week for which there would otherwise be a State "on" indicator

23

shall continue to be such a week and shall not be determined to

24

be a week for which there is a State "off" indicator.

25

(5)  For purposes of this subsection, determinations of the

26

rate of total unemployment for any period, and of any seasonal

27

adjustment, shall be made by the United States Secretary of

28

Labor.

29

* * *

30

Section 7.  Section 505 of the act, amended April 23, 1942

- 22 -

 


1

(Sp.Sess., P.L.60, No.23), is amended to read:

2

Section 505.  Rules of Procedure.--The manner in which

3

appeals shall be taken, the reports thereon required from the

4

department, the claimant and employers, and the conduct of

5

hearings and appeals, shall be in accordance with rules of

6

procedure prescribed by the board whether or not such rules

7

conform to common law or statutory rules of evidence and other

8

technical rules of procedure. Rules established by the board

9

shall permit either party to a hearing to testify via telephone,

10

without regard to distance of hearing location from either

11

party.

12

When the same or substantially similar evidence is relevant

13

and material to the matter in issue in applications and claims

14

filed by more than one individual or in multiple applications

15

and claims filed by a single individual the same time and place

16

for considering each such application and claim may be fixed,

17

hearings thereon jointly conducted, a single record of the

18

proceedings made and evidence introduced with respect to any

19

application or claim considered as introduced with respect to

20

all of such applications or claims: Provided, That in the

21

judgment of the board or referee having jurisdiction of the

22

proceeding such consideration will not be prejudicial to any

23

party.

24

Section 8.  The act is amended by adding an article to read:

25

ARTICLE XIII

26

SHARED-WORK PROGRAM

27

Section 1301.  Definitions.

28

The following words and phrases when used in this act shall

29

have the meanings given to them in this section unless the

30

context clearly indicates otherwise:

- 23 -

 


1

"Affected unit."  A department, shift or other organizational

2

unit of two or more employees that is designated by an employer

3

to participate in a shared-work plan.

4

"Approved shared-work plan."  An employer's shared-work plan

5

which meets the requirements of section 1303 and which the

6

department approves in writing.

7

"Fringe benefit."  Health insurance, a retirement benefit

8

received under a pension plan, a paid vacation day, a paid

9

holiday, sick leave and any other similar employee benefit

10

provided by an employer.

11

"Participating employee."  An employee in the affected unit

12

whose hours of work are reduced by the reduction percentage

13

under the shared-work plan.

14

"Participating employer."  An employer who has a shared-work

15

plan in effect.

16

"Reduction percentage."  The percentage by which each

17

participating employee's normal weekly hours of work are reduced

18

under a shared-work plan in accordance with section 1303(b).

19

"Shared-work plan."  A plan for reducing unemployment under

20

which participating employees of an affected unit share the work

21

remaining after reduction in their normal weekly hours of work.

22

Section 1302.  Application to approve a shared-work plan.

<--

23

(a)  Requirements.--An employer that meets all of the

24

following requirements may apply to the department for approval

25

of a shared-work plan:

26

(1)  The employer has filed all quarterly reports and

27

other reports required under this act and has paid all

28

contribution, reimbursement, interest and penalty due through

29

the date of the employer's application.

30

(2)  If the employer is contributory, the employer's

- 24 -

 


1

reserve account balance as of the most recent computation

2

date preceding the date of the employer's application is a

3

positive number.

4

(3)  The employer has paid wages for the 12 consecutive

5

calendar quarters preceding the date of the employer's

6

application.

7

(b)  Application.--An application under this section shall be

8

made in the manner prescribed by the department and contain all

9

information required by the department, including the following:

10

(1)  The employer's assurance that it will provide

11

reports to the department relating to the operation of its

12

shared-work plan at the times and in the manner prescribed by

13

the department and containing all information required by the

14

department, including the number of hours worked each week by

15

participating employees.

16

(2)  The employer's assurance that it will not hire new

17

employees in, or transfer employees to, the affected unit

18

during the effective period of the shared-work plan.

19

(3)  The employer's assurance that it will not lay off

20

participating employees during the effective period of the

21

shared-work plan, or reduce participating employees' hours of

22

work by more than the reduction percentage during the

23

effective period of the shared-work plan, except in cases of

24

holidays, designated vacation periods, equipment maintenance 

25

or similar circumstances.

26

(4)  A list of the week or weeks within the requested

27

effective period of the shared-work plan during which

<--

28

participating employees are anticipated to work fewer hours

29

than the number of hours determined under section 1303(a)(5)

30

due to circumstances included in paragraph (3).

- 25 -

 


1

(5)  The employer's certification that the implementation

2

of a shared-work plan is in lieu of temporary layoffs that

3

would affect at least 10% of the employees in the affected

4

unit and would result in an equivalent reduction in work

5

hours.

6

(6)  The employer's assurance that it will abide by all

7

terms and conditions of this article.

8

(c)  Multiple shared-work plans.--An employer may apply to

<--

9

the department for approval of more than one shared-work plan.

10

Section 1303.  Plan Shared-work plan requirements.

<--

11

(a)  General rule.--The department may approve a shared-work

12

plan only if the plan meets all of the following requirements:

13

(1)  The shared-work plan applies to one affected unit.

14

(2)  All employees in the affected unit are participating

15

employees, except that the following employees may not be

16

participating employees:

17

(i)  An employee who has been employed in the

18

affected unit for less than three months prior to the

19

date the employer applies for approval of the shared-work

20

plan.

21

(ii)  An employee whose hours of work per week

22

determined under paragraph (5) is 40 or more hours.

23

(3)  There are no fewer than two participating employees,

24

determined without regard to corporate officers.

25

(4)  The participating employees are identified by name

26

and Social Security number.

27

(5)  The number of hours a participating employee will

28

work each week during the effective period of the shared-work 

<--

29

plan is determined by the following formula:

30

employee's normal weekly hours of 

- 26 -

 


1

work x (100% - reduction percentage)

2

(6)  As a result of a decrease in the number of hours

3

worked by each participating employee, there is a

4

corresponding reduction in wages.

5

(7)  If any participating employee is covered by a

6

collective bargaining agreement, the shared-work plan is

<--

7

approved in writing by the collective bargaining

8

representative.

9

(8)  The shared-work plan does not affect the fringe

<--

10

benefits of any participating employee not covered by a

11

collective bargaining agreement.

12

(9)  The effective period of the shared-work plan is not

<--

13

more than 52 consecutive weeks.

14

(10)  The effective period of the shared-work plan

<--

15

combined with effective periods of the participating

16

employer's prior shared-work plans does not equal more than

<--

17

104 weeks out of a 156-week period.

18

(11)  The reduction percentage satisfies the requirements

19

of subsection (b).

20

(b)  Reduction percentage.--The reduction percentage under an

21

approved shared-work plan shall meet all of the following

22

requirements:

23

(1)  The reduction percentage shall be no less than 20%

24

and no more than 40%.

25

(2)  The reduction percentage shall be the same for all

26

participating employees.

27

(3)  The reduction percentage shall not change during the

28

period of the shared-work plan unless the plan is modified in

29

accordance with section 1308.

30

Section 1304.  Approval or disapproval of shared-work plan.

- 27 -

 


1

The department shall approve or disapprove a shared-work plan

2

no later than 15 days after the date the employer's shared-work

3

plan application that meets the requirements of section 1302(b)

4

is received by the department. The department's decision shall

5

be made in writing and, if the shared-work plan is disapproved,

6

shall include the reasons for the disapproval.

7

Section 1305.  Effective period of shared-work plan.

<--

8

(a)  Number of weeks.--A shared-work plan is effective for

9

the number of consecutive weeks indicated in the employer's

10

application, or a lesser number of weeks as approved by the

11

department, unless sooner terminated in accordance with section

12

1309.

13

(b)  Start date.--The effective period of the shared-work

14

plan shall begin with the first calendar week following the date

15

on which the department approves the plan.

16

Section 1306.  Criteria for compensation.

17

(a)  General rule.--Compensation shall be payable to a

18

participating employee for a week within the effective period of

19

an approved shared-work plan during which the employee works the

20

number of hours determined under section 1303(a)(5) for the

21

participating employer on the same terms, in the same amount and

22

subject to the same conditions that would apply to the

23

participating employee without regard to this article, except as

24

follows:

25

(1)  A participating employee shall not be required to be

26

unemployed within the meaning of section 4(u) or file claims

27

for compensation under section 401(c).

28

(2)  Notwithstanding section 404(d)(1), a participating

29

employee shall be paid compensation in an amount equal to the

30

product of his weekly benefit rate and the reduction

- 28 -

 


1

percentage, rounded to the next lower whole dollar amount.

2

(3)  The department shall not deny compensation to a

3

participating employee for any week during the effective

4

period of the shared-work plan by reason of the application

5

of any provision of this act relating to active search for

6

work or refusal to apply for or accept work other than work

7

offered by the participating employer.

8

(4)  A participating employee satisfies the requirements

9

of section 401(d)(1) if the employee is able to work and is

10

available for the employee's normal weekly hours of work with

11

the participating employer.

12

(b)  Equivalent remuneration.--For purposes of subsection

13

(a), if a participating employee works fewer hours than the

14

number of hours determined under section 1303(a)(5) for the

15

participating employer during a week within the effective period

16

of the approved shared-work plan, but receives remuneration

17

equal to remuneration the employee would have received if the

18

employee had worked the number of hours determined under section

19

1303(a)(5), the employee will be deemed to have worked the

20

number of hours determined under section 1303(a)(5) during that

21

week.

22

(c)  Inapplicability of article.--A participating employee's

23

eligibility for compensation for a week within the effective

24

period of an approved shared-work plan shall be determined

25

without regard to this article under any of the following

26

circumstances:

27

(1)  The employee works fewer hours than the number of

28

hours determined under section 1303(a)(5) for the

29

participating employer during the week and subsection (b)

30

does not apply.

- 29 -

 


1

(2)  The employee works more hours than the number of

2

hours determined under section 1303(a)(5) for the

3

participating employer during the week.

4

(3)  The employee receives remuneration for the week from

5

the participating employer for hours in excess of the number

6

of hours determined under section 1303(a)(5).

7

Section 1307.  Participating employer responsibilities.

8

(a)  Filing claims.--The department shall establish a

9

schedule of consecutive two-week periods within the effective

10

period of the shared-work plan. The department may, as

11

necessary, include one-week periods in the schedule and revise

12

the schedule. At the end of each scheduled period, the

13

participating employer shall file claims for compensation for

14

the week or weeks within the period on behalf of the

15

participating employees. The claims shall be filed no later than

16

the last day of the week immediately following the period,

17

unless an extension of time is granted by the department for

18

good cause. The claims shall be filed in the manner prescribed

19

by the department and shall contain all information required by

20

the department to determine the eligibility of the participating

21

employees for compensation.

22

(b)  Benefit charges.--Notwithstanding any other provision of

23

this act, compensation paid to participating employees for weeks

24

within the effective period of an approved shared-work plan will

25

be charged to the participating employer.

26

Section 1308.  Modification of an approved shared-work plan.

<--

27

An employer may apply to the department for approval to

28

modify a an approved shared-work plan to meet changed

<--

29

conditions. The department shall reevaluate the plan and may

30

approve the modified plan if it meets the requirements for

- 30 -

 


1

approval under section 1304 1303. If the modifications cause the

<--

2

shared-work plan to fail to meet the requirements for approval,

3

the department shall disapprove the proposed modifications.

4

Section 1309.  Termination of an approved shared-work plan.

<--

5

(a)  General rule.--The secretary may terminate a an approved 

<--

6

shared-work plan for good cause.

7

(b)  Good cause.--For purposes of subsection (a), good cause

8

includes any of the following:

9

(1)  The approved shared-work plan is not being executed

<--

10

according to its approved terms and conditions.

11

(2)  The participating employer fails to comply with the

12

assurances given in the approved shared-work plan.

<--

13

(3)  The participating employer or a participating

14

employee violates any criteria on which approval of the

15

shared-work plan was based.

<--

16

(c)  Termination by employer.--The employer may terminate a 

<--

17

an approved shared-work plan by written notice to the

<--

18

department.

19

Section 1310.  Department discretion.

20

The decision to approve or disapprove a shared-work plan, to

21

approve or disapprove a modification of a an approved shared-

<--

22

work plan or to terminate a an approved shared-work plan will be

<--

23

made within the department's discretion. Such decisions are not

24

subject to the appeal provisions of Article V.

25

Section 1311.  Publication of notice.

26

The department shall transmit to the Legislative Reference

27

Bureau for publication in the Pennsylvania Bulletin notice that

28

the provisions of this article have been approved by the

29

department United States Department of Labor as required under

<--

30

section 3304(a)(4)(E) of the Federal Unemployment Tax Act

- 31 -

 


1

(Public Law 86-778, 26 U.S.C. § 3304(a)(4)(E)) and section

2

303(a)(5) of the Social Security Act (49 Stat. 620, 42 U.S.C. §

3

503(a)(5)).

4

Section 1312.  Severability.

5

Notwithstanding any other section of this act, if any

6

provision or provisions of this article cause the department 

<--

7

United States Department of Labor to withhold approval of this

<--

8

article as required under section 3304(a)(4)(E) of the Federal

9

Unemployment Tax Act (Public Law 86-778, 26 U.S.C. § 3304(a)(4)

10

(E)) and section 303(a)(5) of the Social Security Act (49 Stat.

11

620, 42 U.S.C. § 503(a)(5)), the department is authorized to

12

permanently suspend the provision or provisions.

13

Section 1313.  Expiration.

14

This article shall expire five years from its effective date.

15

Section 9.  This act shall apply as follows:

16

(1)  The amendment or addition of sections 213, 302 and

17

302.1, other than section 302.1(c), shall apply to charges

18

for compensation corresponding to benefit years that begin on

19

and after the effective date of sections 213, 302 and 302.1

20

of the act.

21

(2)  The addition of section 302.1(c)(1) and (2) of the

22

act shall apply to notices of determination regarding

23

eligibility for benefits that are issued on or after the date

24

of implementation of the Department of Labor and Industry's

25

system to provide relief from charges without an employer

26

request, as announced by the Secretary of Labor and Industry

27

in a notice published in the Pennsylvania Bulletin. The

28

addition of section 302.1(c)(3) shall apply to relief from

29

charges that is granted on or after such implementation date.

30

(3)  The amendment of section 401(b) shall apply to

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1

benefit years that begin on after January 1, 2012.

2

(4)  The amendment of section 404, other than the

3

amendment of section 404(d)(1) and the addition of section

4

404(d)(1.1), shall apply to the determination of the maximum

5

weekly benefit rate for benefit years that begin on or after

6

January 1, 2012 2013.

<--

7

(5)  The amendment or addition of section 404(d)(1) and

8

(1.1) shall apply to benefit years that begin on or after the

9

effective date of section 404(d)(1) and (1.1).

10

Section 10.  The amendment of section 401-A(b) and (c) shall

11

apply retroactively to December 18, 2010.

12

Section 11.  This act shall take effect as follows:

13

(1)  The amendment of section 401(b) shall take effect

14

January 1, 2012.

15

(2)  The amendment of section 404 introductory paragraph

16

and subsection (e)(2) shall take effect immediately January

<--

17

1, 2013.

18

(3)  This section shall take effect immediately.

19

(4)  The addition of Article XIII of the act shall take

20

effect upon publication in the Pennsylvania Bulletin of the

21

notice required under section 1311 of the act or July 1,

22

2011, whichever occurs later.

23

(5)  The remainder of this act shall take effect in 60

24

days.

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